10.6092/issn.2531-6133/18492
The Court of Justice of the European Union (E.U.) is sometimes labelled “a teleological court”. In this paper I will show why it is a misleading label. Then I will propose a more appropriate label for it – “a contextualist court” – and describe what such a label reveals about the interpretation of E.U. law by the Court of Justice. In particular, I will show that the contextual/systemic arguments are the most defining feature of the Court’s legal reasoning and that those arguments are essential for the Court’s use of other categories of interpretive arguments: textual/linguistic, purposive/teleological, and historical/intentional. I will also discuss what are the values promoted by such an approach to the interpretation of E.U. law. In the end, I will demonstrate, using a recent case study, that the Court’s interpretive approach leads to integrationist outcomes less often than is usually thought. This challenges accounts built on the alleged integrationist bias of the Court of Justice, which is often used interchangeably with the label “teleological”.
application/pdf
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Davor Petrić
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Contextualism
The Court of Justice of the E.U.: A Contextualist Court
Text.Serial.Journal
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2023-11-30
2023-11-20
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2023-12-07
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UBLR
Davor Petrić
2023/11/30
10.6092/issn.2531-6133/18492
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University of Zagreb
2531-6133
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Contextualism
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The Court of Justice of the E.U.: A Contextualist Court
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llVOLUME 8                                      llISSUE 2                          ARTICLES & ESSAYS



                            UNIVERSITY OF BOLOGNA LAW REVIEW
                            https://doi.org/10.6092/issn.2531‐6133/18492

             Received: 9 Feb. 2023 | Accepted: 3 March 2023 | Published: 30 Nov. 2023

                                                     A

        The Court of Justice of the E.U.: a Contextualist Court


                                             DAVOR PETRIć


Davor Petrić is a lecturer and postdoctoral researcher at University of Zagreb (Croatia), Faculty of
Law, Department of European Public Law. He obtained a PhD at the University of Zagreb (Croatia)
and completed a Master of Laws (LLM) degree at the University of Michigan Law School (U.S.A) as
a “Hugo Grotius Fellow”. He also obtained a degree in law at the University of Mostar (Bosnia and
Herzegovina) and in European Studies from the University of Zagreb (Croatia). He spent research
periods at the Europa-Institut of the Saarland University (Germany), Court of Justice of the
European Union (Luxembourg), Vrije Universiteit Amsterdam (Netherlands), New University in
Ljubljana (Slovenia), Hertie School in Berlin (Germany), and University College Dublin (Ireland).
He is a member of the academic staff of the Jean Monnet Centre of Excellence “EU Global
Leadership in the Rule of Law” at the University of Zagreb (Croatia), Faculty of Law. His research
interests revolve around EU law (especially the EU judicial system), judicial politics,
constitutional aspects of European integration, and jurisprudence.

 @ davor.petric@pravo.unizg.hr
  ID
       0000-0001-7737-2150


                                                ABSTRACT

The Court of Justice of the European Union (E.U.) is sometimes labelled “a teleological court”. In
this paper I will show why it is a misleading label. Then I will propose a more appropriate label
for it – “a contextualist court” – and describe what such a label reveals about the interpretation
of E.U. law by the Court of Justice. In particular, I will show that the contextual/systemic
arguments are the most defining feature of the Court’s legal reasoning and that those arguments
are essential for the Court’s use of other categories of interpretive arguments: textual/linguistic,
purposive/teleological, and historical/intentional. I will also discuss what are the values
promoted by such an approach to the interpretation of E.U. law. In the end, I will demonstrate,
using a recent case study, that the Court’s interpretive approach leads to integrationist outcomes
less often than is usually thought. This challenges accounts built on the alleged integrationist
bias of the Court of Justice, which is often used interchangeably with the label “teleological”.


                                               KEYWORDS
           Interpretation of E.U. Law; Court of Justice; Legal Reasoning; Teleology; Contextualism




                                                     11
                 THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


                                          TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     .   .   .   13
1. Great Cases Make Bad Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        .   .   .   14
2. The Interpretive Approach of a Contextualist Court . . . . . . . . . . . . . . . . . .          .   .   .   19
        2.1. Textual or Linguistic Arguments . . . . . . . . . . . . . . . . . . . . . . . .       .   .   .   19
        2.2. Contextual or Systemic Arguments . . . . . . . . . . . . . . . . . . . . . .          .   .   .   22
        2.3. Purposive or Teleological Arguments . . . . . . . . . . . . . . . . . . . . .         .   .   .   27
           2.3.1. Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     .   .   .   28
           2.3.2. Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   .   .   .   31
           2.3.3. Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       .   .   .   33
           2.3.4. Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    .   .   .   34
        2.4. Historical or Intentional Arguments . . . . . . . . . . . . . . . . . . . . .         .   .   .   38
3. The Value of Having a Contextualist Court . . . . . . . . . . . . . . . . . . . . . . . .       .   .   .   43
4. “Contextualist” or “Teleological” - Does it Matter if Both Reach the Same Outcome?              .   .   .   45
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     .   .   .   49




                                                    12
2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                          [Vol. 8:2


      INTRODUCTION

The Court of Justice of the E.U. receives incredible attention from legal scholars. It
always has. They dissect its case law in every possible area of E.U. law. They analyse its
legal reasoning. They discuss its institutional setup. They sketch its relationship with
other institutional actors, especially the E.U. legislature and national courts. They
question or defend its legitimacy and authority. They look deeper into its judgments to
find a particular ideology, biases, or policy preferences. They describe, explain, criticise
and justify what the Court is or does, as well as urge, advocate, require, and propose what
the Court should be doing.
          E.U. legal scholars also label. They take certain features or characteristics of the
Court’s setup, case law, reasoning, etc., and come up with labels that best capture them.
These labels are then used descriptively to give as accurate and detailed an account of
judicial practice in the E.U. as possible, as well as, normatively, defending or criticising
such practice.1
          One such label is “teleological”. It is meant to describe the typical approach of
the Court of Justice to the interpretation of E.U. law. Namely, in its legal reasoning the
Court is supposedly giving great(er) weight to the teleological arguments – including
objectives, purposes, and effectiveness of E.U. law – often at the expense of the textual
argument or the intention of the E.U. legislator.2 Its interpretive philosophy can thus be
characterised as purposivism,3 which is usually associated with judicial activism and a
lack of judicial restraint and deference to the legislator.4 The omnipresence of the
Court’s teleology and purposivism are sometimes taken axiomatically - such that the
focus shifts to the purported justifications of such interpretations.5
1
  Cf. Paul Craig, Pringle and the Nature of Legal Reasoning, 21 MAASTRICHT J. EUR. & COMP. L. 205, 209 (2014) (U.K.).
2
  Cf. Gunnar Beck, The Structural Impact of General International Law on EU Law. The Court of Justice of the EU and
  the Vienna Convention on the Law of Treaties, 35 Y. B. EUR. L. 484 (2016) (U.K.) [hereinafter Beck, The Structural
  Impact]; see also Gunnar Beck, The Legal Reasoning of the Court of Justice and the Euro Crisis – the Flexibility of the
  Cumulative Approach and the Pringle Case, 20 MAASTRICHT J. EUR. & COMP. L. 635 (2013) (U.K.); Timothy Millett,
  Rules of Interpretation of EEC Legislation, 10 STATUTE L. REV. 163 (1989) (U.K.).
3
  Cf. GIULIO ITZCOVICH, THE INTERPRETATION OF COMMUNITY LAW BY THE EUROPEAN COURT OF JUSTICE, 10 GERMAN L. J.
  537, 557–59 (2009) (Ger.); see also MITCHEL DE S.-O.-L’E. LASSER, JUDICIAL DELIBERATIONS: A COMPARATIVE ANALYSIS
  OF JUDICIAL TRANSPARENCY AND LEGITIMACY 229 (Oxford University Press, 2009) (U.K.) (who rather terms it
  “meta-purposive” or “meta-teleological”); Nial Fennelly, Legal Interpretation at the European Court of Justice, 20
  FORDHAM INT’L L. J. 656 (1996). For sector-specific studies, see generally Oreste Pollicino, Legal Reasoning of
  the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint, 5 GERMAN
  L. J. 283 (2004) (Ger.); Kenneth M. Lord, Bootstrapping an Environmental Policy from an Economic Covenant: The
  Teleological Approach of the European Court of Justice, 29 CORNELL INT’L L. J. 571 (1996); David Mazzarella, The
  Integration of Aviation Law in the E.C.: Teleological Jurisprudence and the European Court of Justice, 20 TRANSP. L. J.
  353 (1992).
4
  Cf. HJALTE RASMUSSEN, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE: A COMPARATIVE STUDY IN JUDICIAL
  POLICYMAKING (Brill Nijhoff ed., 1986) (Neth.); see also Trevor C. Hartley, The European Court, Judicial Objectivity,
  and the Constitution of the European Union, 112 Law Q. Rev. 95 (1996) (U.K.).
5
  Cf. Stephen Brittain, Justifying the Teleological Methodology of the European Court of Justice: A Rebuttal, 55 Irish
  Jurist 134 (2016) (Ir.).
                                                          13
                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


Some authors have rejected this label as inadequate, selective, and superficial.6 I will
briefly revisit their objections and explain why we should break off with the label
“teleological” for good. At the same time, I will propose a more accurate label for the
Court of Justice – a “contextualist” court. I will argue that, as a descriptive matter, the
contextual/systemic arguments are the most defining feature of the Court’s legal
reasoning and its judicial philosophy. I will also show that the Court’s use of other
general categories of interpretive arguments – textual/linguistic, purposive/teleological,
and historical/intentional7 – is marked by their contextualisation. Following that, as a
normative matter, I will ask what value or good is promoted by such an approach to legal
reasoning. Lastly, I will reflect on the relationship between a “contextualist” reasoning
and outcomes of adjudication.                 The main concern is that contextualism, just like
teleology, will in most cases lead to integrationist outcomes that reflect E.U. interests.
Based on a sample of recent cases of the Court of Justice, I will illustrate why that is not
necessarily so. The final section concludes with looking into the factors that call for a
contextualist court in the current state of the E.U. legal system.




      1. GREAT CASES MAKE BAD LAW

The label “teleological” given to the Court of Justice has two major limitations. First, it is
based on a limited number of cases.8 And second, those cases are what we usually call
“landmark” cases. They make up for only a tiny fraction of all cases the Court of Justice
deals with – a dozen a year at most, compared to almost a thousand a year which the
Court is currently deciding.9 They feature exceptional controversies that raise salient
legal and political issues of a constitutional nature, which cannot merely be solved by

6
  See Albertina Albors Llorens, The European Court of Justice, More than a Teleological Court, 2 Cambridge Y. B. Eur.
  Legal Stud. 373 (1999–2000) (U.K.); see also David Edward, Judicial Activism – Myth or Reality?, in Legal Reasoning
  and Judicial Interpretation of European Law: Essays in Honour of Lord Mackenzie Stuart 29 (Angus I. L.
  Campbell & Meropi Voyatzi eds., 1996).
7
  For discussion of these main interpretive arguments that appear in judicial reasoning in many contemporary
  jurisdictions and legal traditions, and in general of the interpretation of law as argumentative practice,
  see generally Neil MacCormick, Argumentation and Interpretation in Law, 9 Argumentation 467 (1995) (Neth.);
  see also NEIL MACCORMICK & ROBERT SUMMERS, Interpreting Statutes: A Comparative Study, Routledge (Neil
  MacCormick & Robert Summers eds., 1991) (U.K.).
8
  One of the major critical works readily admits this limitation when it notes that it takes into account “only a
  tiny proportion” of the Court’s case law – less than 0.3% of judgments in a thirty years period; see Sir Patrick
  Neill, The European Court of Justice: A Case Study in Judicial Activism (European Policy Forum ed., 1995)
  (Neth.).
9
  In 2021, the Court received 838 new cases, completed 772 cases, and had 1113 cases pending. 2019 was the
  peak year, before the Covid-19 pandemic hit. In that year the Court received 966 new cases, completed 865
  cases, and had 1102 cases pending; see Court of Justice of the E.U., Ann. Rep. 2021 – Judicial activity (Mar. 2022).


                                                         14
2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 8:2


only looking into the text of legal provisions and their relevant context. On the contrary,
in those cases the Court is often presented with a range of arguments that point to
rivalling yet equally plausible conclusions. So, once the immediate rules run out, the
Court has to use what Advocate General Michal Bobek termed “constitutional
interpretive tiebreakers”.10 These are, for instance, certain moral or political values and
principles like dignity, equality, liberty, peace, solidarity, cultural diversity, free
movement, market liberalisation, etc. They are characteristic of a liberal democracy
being a political order and liberal constitutionalism as a legal order in general. More
importantly, they are recognised as such in the E.U. constitutional order, be it in Article 2
of the Treaty on European Union (T.E.U.) or other provisions of the founding Treaties.
Hence, they represent the intentionally made “fundamental constitutional choice” of the
E.U. Treaty-makers.11 By extension, they inform the legal reasoning of the Court of
Justice in the interpretation of E.U. law and not only in these landmark cases - albeit that
in them this becomes the most apparent. Of course, although we may all subscribe to
nominally the same values and principles, reasonable disagreements about their
conceptions, their meaning, and their requirements in particular circumstances still
exist.12 The controversies in these landmark cases usually concern disagreements about
moral and political issues. So, whichever side the Court takes – and one side it must
always take – there will surely be those who will loudly protest the outcome. For that
reason, landmark cases typically receive the greatest scholarly and public attention.




10
   Case C‑129/19, Presidenza del Consiglio dei Ministri v. B. V., Opinion of Advocate General Bobek,
   ECLI:EU:C:2020:375, ¶¶ 104–117 (May 14, 2020).
11
   See Siniša Rodin, Liberal Constitutionalism, Rule of Law and Revolution by Other Means, IL DIRITTO DELL’UNIONE
   EUROPEA 203, 226–27, 230–31 (2021) (It.).
12
   Cf. Martijn van den Brink, Justice, Legitimacy and the Authority of Legislation within the European Union, 82 MOD.
   L. REV. 293, 300 (2019) (U.K.).


                                                         15
                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


In an often-quoted passage from his dissenting opinion, U.S. Supreme Court Justice
Oliver Wendell Holmes famously reminded us that “[g]reat cases, like hard cases, make
bad law”.13 The same holds true in the E.U. context: a fixation on “great” cases can give
false impressions and expectations about the actual practices of the Court of Justice and
lead to a distorted picture of its legal reasoning.14 For the same reason, labels assigned
on the basis of great cases are bad. The one about “teleological” courts is too simplistic
and selective. It was never verified by a larger and comprehensive case law analysis that
describes the reasoning of the Court in a meaningfully selected sample of cases that
cover certain areas of law or periods of time.15 At the same time, it leaves out a vast
majority of the Court’s judgments. In them, the Court routinely deals with ordinary
cases that involve somewhat simpler questions of interpretation of E.U. (often
secondary) law. These questions are about politically or morally non-salient
controversies; and therefore, receive scant attention.
           One may push back against this and say that what actually matters is what the
Court of Justice does in hard, exceptional cases. They set the tone for the Court’s practice
13
   Northern Securities Co. v. United States, 193 U. S. 197, 400 (1904) (Holmes, J., dissenting).
14
   What is acknowledged by many authors, including those that are the most critical of the Court’s alleged
   purposivism: see, e.g., Giulio Itzcovich, The European Court of Justice, in Comparative Constitutional Reasoning
   277, 294 (András Jakab, Arthur Dyevre & Giulio Itzcovich eds., 2017):
               [T]he fact that literal arguments are almost absent [. . .] [from the Court’s leading
               cases that are notable for] their impact on the legal culture of the Member States,
               their contribution to the completion of the common market, and their influence on
               the development of European law [. . .] cannot be regarded as indicative of a general
               feature of the Court’s legal reasoning;
   Beck, The Structural Impact, supra note 2, at 496:
               [I]n most run-of-the-mill cases, which concern the application of more or less clear,
               detailed, and technical provisions [. . .] the Court generally pays close regard
               to the wording of the applicable provisions, and it is exceptional for the Court to
               reach a conclusion based on teleological criteria, which are opposed to a literal
               reading. However, the Court’s pro-Union default position becomes crucial and often
               the decisive factor in cases involving major issues of principle, such as constitutional
               issues or the division of competences between the [E.U.] and Member States;
   Gerard Conway, The Quality of Decision-Making at the Court of Justice of the European Union, in How to Measure
   the Quality of Judicial Reasoning 225, 231 (Mátyás Bencze & Gar Yein Ng eds., 2018):
               [T]he [European Court of Justice] has a marked tendency to meta-teleological
               interpretation [. . .] purposive interpretation at a very high level of generality
               related to the [E.U.] legal system overall, rather than to particular legislative
               provisions or pieces of legislation. This sets it apart from national and other
               international courts and gives it great scope for creativity, albeit that it only really
               does this in a minority of cases.
15
   On the contrary, it was challenged in certain studies; see, e.g., Albors Llorens, supra note 6, at 398, who notes
   that:
               [W]hichever view one takes of the Court’s work, it is too facile to generalise on
               the basis of a few decisions randomly selected from more than forty [now seventy]
               years of case law. A more rigorous approach, based on a systematic analysis of the
               Court’s case law in different areas, would do it more justice. The comparatively few
               judgments where it has reached a seemingly dramatic result must not obscure the
               careful and painstaking interpretative task carried out by the Court in the majority
               of its decisions.


                                                        16
2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 8:2


overall and are thus the most important for the E.U. legal system and community. Hence,
they deserve all the attention, and it is most important to know how the Court will go
about deciding those cases. But in reality, the reason why a certain case is considered
important is often unclear.                 They rarely lead to major twists and turns in the
jurisprudence of the Court, nor fierce reactions from national courts and governments,
or dramatic changes in everyday life of ordinary citizens. Sometimes it is legal scholars
who overstate the importance of certain judgments - for better or worse.
             Alternatively, cases that are considered routine and simple may often be equally
important. They may affect the legal position of many individuals or impose significant
financial burdens on those that end up on the losing side. They are very important, at
least, for many legal practitioners and national judges who will have to apply E.U. law to
solve real-life disputes. So, what the Court of Justice does in these cases is not less
important from what happens in cases that stir great controversy. The fact that the
former cases exceed the latter by far in numbers makes them only more important. Our
knowledge about the Court’s reasoning in those cases is much more useful for everyone
outside academia - especially if we measure the usefulness of that knowledge by how
successful it is in predicting the outcomes of judicial rulings.16 It can also provide a more
solid basis for describing and characterising the Court’s legal reasoning, including
labelling its approach to the interpretation of E.U. law.




16
     Echoing Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897): “The prophecies of what
     courts will do in fact, and nothing more pretentious, are what I mean by the law”.


                                                         17
                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


To overcome the obstacles of selectiveness and representation, my observations in this
paper build upon a study of a recent set of cases, which does not (only or mostly) consist
of landmark cases. It is composed of 102 preliminary references received by the Court of
Justice between mid-2018 and 2020,17 which contain 135 questions of interpretation of E.U.
law posed by national courts. These questions are about the interpretation of different
substantive areas of E.U. law, from customs and taxes; to consumer protection and the
free movement of workers; to environment and asylum; as well as different sources of E.U.
law: both primary and secondary. Questions were referred by courts from twenty-one
Member States of different jurisdiction and rank: from ordinary, administrative, financial,
and constitutional courts to first instance, appellate, and apex courts.18
           Moreover, among these references, there is a small number of those that could
perhaps be characterised as hard cases, if we assume that those cases are reserved for the
Grand Chamber - of which there are seven in total (containing ten questions of
interpretation).19 There are also only a few cases that the Court decided with a reasoned
order, which can be considered as “easy” cases and there are three in total (containing
four questions).20 Other cases fall on the spectrum between these two ends where
fifty-one cases (containing sixty-one questions) dealt with three-judge chambers and
without the opinion of the Advocate General (except in one case);21 eight cases
(containing eleven questions) dealt with five-judge chambers without the opinion of the
Advocate General; and thirty-three cases (containing forty-nine questions) dealt with
five-judge chambers with the opinion of the Advocate General.
17
   Which is around one-seventh of all preliminary references (720 in total) received by the Court during this
   period.
18
   This set of cases was compiled of preliminary references in which national courts proposed answers to the
   questions of interpretation of E.U. law sent to the Court of Justice. In an earlier study, I have compared those
   references to the responses of the Court of Justice; see Davor Petrić, Interpreting E.U. Law: Legal Reasoning
   of National Courts in the Preliminary Ruling Procedure (2022) (Ph.D. dissertation, University of Zagreb),
   in which I aimed to assess the interpretive practice of national courts. Since the analyzed cases covered
   a significant number of diverse legal questions, which were not restricted to specific area(s) or source(s)
   of law, national background or type(s) of the referring courts, they provided a solid sample for describing
   general features of the legal reasoning of the Court of Justice.
19
   Cf. Rules of Procedure of the Court of Justice of the E.U., art. 60(1), 2012 O.J. (L 265) 1. (“Assignment of cases
   to formations of the Court”): “The Court shall assign to the Chambers of five and of three Judges any case
   brought before it in so far as the difficulty or importance of the case or particular circumstances are not
   such as to require that it should be assigned to the Grand Chamber [. . .]”.
20
   Cf. Id. at art. 99. (“Reply by reasoned order”):
                 Where a question referred to the Court for a preliminary ruling is identical to a
                 question on which the Court has already ruled, where the reply to such a question
                 may be clearly deduced from existing case-law or where the answer to the question
                 referred for a preliminary ruling admits of no reasonable doubt, the Court may at
                 any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate
                 General, decide to rule by reasoned order.
21
   Cf. 3. Protocol on the Statute of the Court of Justice of the E.U, art. 20(5), 2004 O.J. (C 310) 210 : “Where it
   considers that the case raises no new point of law, the Court may decide, after hearing the Advocate General,
   that the case shall be determined without a submission from the Advocate General”.


                                                         18
2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 8:2


Such a diverse sample of cases – most importantly, in terms of their perceived legal
difficulty and subject areas – arguably comes closer to representing the bulk of the
everyday interpretive practice of the Court of Justice. Therefore, it enables a more
accurate description of the Court’s general approach to the interpretation of E.U. law.




      2. THE INTERPRETIVE APPROACH OF A CONTEXTUALIST COURT

Against this background, in this Section I take up the most important categories of
interpretive arguments the Court of Justice uses when interpreting E.U. law.
Those are          textual/linguistic,        contextual/systemic, purposive/teleological, and
historical/intentional arguments. For each of these arguments, I will show what are the
main characteristics of their use and what place context and contextualisation have in that
process.



     2.1. TEXTUAL OR LINGUISTIC ARGUMENTS

Legal provisions are typically expressed in writing.                   Written text is, therefore, the
starting point of legal interpretation. The same holds true in E.U. law.22 Indeed, the
Court of Justice often cites textual or linguistic features of E.U. legal provisions as a first
step in their interpretation.23 The Court refers to these features in different ways. Some
examples are the “[strict/actual] wording”,24 “expression”,25 “usual meaning [in
everyday language]”,26 “everyday meaning”,27 “terms”,28 etc. The Court, however, rarely
adds anything to these brief references. Rather, it merely asserts that the meaning or
scope of a legal provision is “clear” or “apparent” based on its text; or that from its
wording or terms or ordinary use a specific meaning or scope inevitably “follows”. The


22
   Cf. Case C‐482/09, Budějovický Budvar, Opinion of Advocate General Trstenjak, 2011 E.C.R. I-08701:
   “According to traditional principles of construction, the starting-point of any interpretation, and also its
   boundary, is always the wording of a provision”.
23
   In my study, it did so in more than half of situations (57.1%) or in 76 of 135 questions of interpretation.
24
   Case C-129/19, Presidenza del Consiglio dei Ministri v. B. V., ECLI:EU:C:2020:566, ¶ 39 (July 16, 2020); Case
   C-292/89, Antonissen, ¶ 9, 1991 E.C.R. I-00745.
25
   Case C-112/19, Marvin M., ECLI:EU:C:2020:864, ¶ 37 (Oct.                        28, 2020); Case C-363/19,
   Konsumentombudsmannen v. Mezina, ECLI:EU:C:2020:693, ¶¶ 46–47 (Sept. 10, 2020).
26
   Case C-264/19, Constantin Film Verleih, ECLI:EU:C:2020:542, ¶¶ 29–30 (July 9, 2020). Occasionally, the Court
   makes a distinction between “the usual meaning” of a term or sentence “in scientific language and in
   everyday language”; see Case C-346/08, Comm’n v. United Kingdom, 2010 E.C.R. I-03491, ¶ 37.
27
   Case C-437/19, État luxembourgeois v. L., ECLI:EU:C:2021:953, ¶ 51 (Nov. 25, 2021).
28
   Case C‑513/20, Termas Sulfurosas de Alcafache, ECLI:EU:C:2022:18, ¶ 29 (Feb. 13, 2022).


                                                      19
                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


only exception is that the Court may support this assertion with a remark that other
parties in the proceedings share the same understanding.29
           For their part, (some) Advocates General are usually more elaborate with these
assertions. When they make them, they may cite dictionaries,30 technical manuals and
scientific writings,31 legal scholarship and legal vocabulary, etc.32 These legally
non-binding materials support the conclusion that the meaning of provisions follows
from their text or ordinary use. They may indirectly appear in the Court’s judgments.
For instance, when judgments refer to specific points in the opinions (“as the Advocate
General observed/stated/noted in her Opinion, [. . .]”) or “soft law” instruments
published by E.U. institutions, which the Court recognises as admissible aids to
interpretation.33
           In some situations, the Court of Justice may implicitly rely on the linguistic rules
on grammar and syntax. For example, it may point to the form or function of the words or
their position in a sentence. Typical examples are the use of the word “shall” which implies
obligation;34 or the word “only” which implies exhaustiveness;35 or the conjunction “or”
which implies alternatives;36 or the indefinite article “a” which implies a general scope or
status.37
           However, these linguistic subtleties and inferences are not what lead the Court
of Justice to conclude that the meaning of a provision is clear and unambiguous. What
leads it there more often is contextualisation of the text. As Neil MacCormick noted, “[n]o
linguistic communication is fully comprehensible save in a whole presupposed context of
utterance”.38 To illustrate how this works, consider the following example.


29
   See Case C-167/95, Linthorst, 1997 E.C.R. I-04383, ¶ 13:
                The term “valuations”, as it is understood in common parlance, signifies – as the
                German Government and the Commission have pertinently observed – examination
                of the physical condition or investigation of the authenticity of a good with a view
                to estimating its value or quantifying work to be carried out or the extent of damage
                sustained.
30
   See Case C-264/19, Constantin Film Verleih, Opinion of Advocate General Øe, ECLI:EU:C:2020:261, ¶ 30 (Apr.
   2, 2020); Case C-535/19, A. v. Latvian Ministry of Health, Opinion of Advocate General Øe, ECLI:EU:C:2021:114,
   ¶ 88 (Feb. 11, 2021).
31
   See Case C-88/19, T. M. and Others, Opinion of Advocate General Kokott, ECLI:EU:C:2020:93, ¶¶ 34, 39 (Feb.
   13, 2020).
32
   See Case C-532/18, G. N. v. Z. U., Opinion of Advocate General Øe, ECLI:EU:C:2019:788, ¶ 45 (Sept. 26, 2019).
33
   Cf. Case C-189/19, Spenner v. Germany, ECLI:EU:C:2020:381, ¶¶ 48-49 (May 14, 2020).
34
   See Joined Cases C-101/19 and C-102/19, Deutsche Homöopathie-Union, ECLI:EU:C:2020:304, ¶ 39 (Apr. 23,
   2020); Case C-112/19, Marvin M., ECLI:EU:C:2020:864, ¶ 37 (Oct. 28, 2020).
35
   See Case C-564/18, L. H., ECLI:EU:C:2020:218, ¶¶ 29–30 (Mar. 19, 2020); see also Case C-321/19, B. Y. and C. Z.,
   ECLI:EU:C:2020:866, ¶¶ 31–32 (Oct. 28, 2020).
36
   See Case C-540/19, W. V. v. Landkreis Harburg, ECLI:EU:C:2020:732, ¶ 29 (Sept. 17, 2020).
37
   See Joined Cases C-322/19 and C-385/19, K. S. and Others, ECLI:EU:C:2021:11, ¶ 63 (Jan. 14, 2021).
38
   MacCormick, supra note 7, at 475.


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In Presidenza del Consiglio dei Ministri v. B. V., the Court was asked to interpret Article 12(2)
of Directive 2004/80/EC relating to compensation to crime victims. That provision
mandates Member States to “ensure that their national rules provide for the existence of
a scheme on compensation to victims of violent intentional crimes committed in their
respective territories, which guarantees fair and appropriate compensation to victims”.
The Court noted that from its “wording” it follows that “that provision sets out, in
general terms, the obligation for Member States to provide for the existence of a scheme
on compensation to “victims of violent intentional crimes committed in their respective
territories” and not only to victims that are in a cross-border situation”.39 But that
conclusion follows only after juxtaposing the wording of Article 12(2) to the wording of
other provisions of the same Directive, which expressly refer to the existence of
cross-border elements as a precondition of their application.40 So, the meaning that the
Court brings to the “wording” of this provision is not usual or everyday meaning that it
could be ascribed to the text in question. Rather, it is a contextualised meaning that
becomes apparent only in a relevant context, i.e., in an immediate setting of a provision
in question or a wider setting of the legislative act.
          In many other situations encountered in my study,41 the Court of Justice was
using the textual/linguistic arguments in the same way.                         It pointed to textual or
linguistic features of E.U. legal texts not in isolation but rather in their immediate or
wider surrounding.
          Of course, there may be certain words, phrases or sentences whose meaning may
be ascertained only by observation of the natural language in which they are expressed,
without inquiring about their context. It may be argued that every text does have the
“core” meaning – after all: “[a] cigarette is not an elephant”.42 In many situations in
everyday life, we can understand the meaning of legal texts without much effort or
background information. But these are not situations that generate controversy or end

39
   Case C-129/19, Presidenza del Consiglio dei Ministri v. B. V., ECLI:EU:C:2020:566, ¶ 39 (July 16, 2020).
40
   See Council Directive 2004/80/EC of 29 April 2004 relating to Compensation to Crime Victims, 2004 O.J. (L
   261) 15, 1.
41
   See generally, Case C-502/18, C. S. and Others, ECLI:EU:C:2019:604, ¶ 20 (July 11, 2019); see also Case C-
   524/18, Willmar Schwabe, ECLI:EU:C:2020:60, ¶ 52 (Jan. 30, 2020); see Case C-578/18, Energiavirasto,
   ECLI:EU:C:2020:35, ¶¶ 38–40 (Feb. 23, 2020); see Case C-610/18, AFMB and Others, ECLI:EU:C:2020:565, ¶¶
   52-53 (July 16, 2020); see Case C-722/18, KROL v. Porr, ECLI:EU:C:2019:1028, ¶¶ 30–32 (Nov. 28, 2019); see
   Case C-791/18, Stichting Schoonzicht, ECLI:EU:C:2020:731, ¶¶ 30–31 (Sept. 17, 2020); see Case C-796/18,
   Informatikgesellschaft für Software-Entwicklung, ECLI:EU:C:2020:395, ¶¶ 29–30 (May 28, 2020); see Case C-
   299/19, Techbau, ECLI:EU:C:2020:937, ¶¶ 39–46 (Nov. 18, 2020); see Case C-365/19, F. D., ECLI:EU:C:2021:189,
   ¶¶ 28–30 (Mar. 10, 2021); see Case C-530/19, N. M. v. O. N., ECLI:EU:C:2020:635, ¶¶ 24–25 (Sept. 3, 2020); see
   Case C-619/19, Land Baden-Württemberg v. D. R., ECLI:EU:C:2021:35, ¶¶ 37–40 (Jan. 20, 2021); Case C-189/19,
   Spenner v. Germany, ECLI:EU:C:2020:381, ¶¶ 37-40, 45 (May 14, 2020); Landkreis Harburg, ECLI:EU:C:2020:732
   ¶¶ 29-31.
42
   Aharon Barak, Hermeneutics and Constitutional Interpretation, 14 CARDOZO L. REV. 767, 767 (1992).


                                                       21
                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


up being litigated before courts.                Those that do usually concern the “penumbral”
meaning of the text, which cannot be ascertained only by following the rules of ordinary
language.43       These situations represent the tip of the iceberg of all legal questions
requiring judicial resolution.44
           Cases that are brought before the Court of Justice are of the same kind.
Therefore, in the interpretation of E.U. law, it is indeed “context and not text that
provides answers to legal questions”.45 For that reason, most situations in which the
Court refers to the textual/linguistic arguments are characterised by the
contextualisation of linguistic expressions, in the way just described. What provides
relevant context are typically other provisions found within the same legal act. These
provisions, together with provisions of different but related legal acts or of higher
sources of law, are part of what is usually considered as making the content of the
following category of interpretive arguments.



     2.2. CONTEXTUAL OR SYSTEMIC ARGUMENTS

These arguments are used to ensure that the meaning of a legal provision “fits” into its
context horizontally and vertically.                As the Court famously noted in CILFIT, “every
provision of [E.U.] law must be placed in its context and interpreted in the light of the
provisions of [Union] law as a whole”.46 What makes the relevant context is expressed
through different types of contextual/systemic arguments - the most important being
contextual harmonisation, precedent, analogy, and general principles. These will be
discussed in the following lines.
           In the case law of the Court of Justice, contextual harmonisation and precedent are
by far the most frequently used arguments.47 It can rightfully be said that it is impossible
to find a judgement of the Court that does not cite at least one of these two arguments.
           The first of them is contextual harmonisation. It is important since no legal
provision is enacted in isolation from other provisions. Rather, every provision is a part
of a certain section or chapter of some legislative act, which is, together with related
legislative acts, part of a certain area of law, which is, in turn, a part of the entire legal
43
   See Riccardo Guastini, Legal Interpretation. The Realistic View, in ENCYCLOPEDIA OF THE PHILOSOPHY OF LAW AND
   SOCIAL PHILOSOPHY (Mortimer Sellers & Stephan Kirste eds., 2020).
44
   See Brian Leiter, Explaining Theoretical Disagreement, 76 U. CHI. L. REV. 1215, 1226–31 (2009).
45
   Siniša Rodin, In the Classroom and the Courtroom, 20 MAASTRICHT J. EUR. & COMP. L. 475, 477 (2013) (U.K.).
46
   Case 283/81, Srl CILFIT v. Ministry of Health, 1982 E.C.R. 03415, ¶ 20.
47
   In my study, the Court used the argument from contextual harmonization in 83.4% questions of
   interpretation or 111 in total, and the argument from precedent in 84.2% of questions of interpretation
   or 112 in total. As for the other two contextual/systemic arguments, general principles were cited in 29.3%
   of questions of interpretation or 39 in total, and analogy in 28.6% of questions of interpretation or 38 in total.


                                                         22
2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:2


system. This, then, finds its place next to other legal systems in the transnational legal
arena, and so on.           In line with this, the Court of Justice uses the argument from
contextual harmonisation to interpret provisions of E.U. law consistently with other
relevant provisions, on different levels and in different dimensions. Most notably:


      • to determine the meaning of a term consistently with the meaning of other terms
        found in the same provision (also known as ejusdem generis [of the same kind]
        argument);48


      • to determine the meaning of a provision consistently with the meaning of provisions
        immediately surrounding it,49 or with provisions with which it forms a specific Unit
        or Chapter of a source of law,50 or with provisions from Annexes to that source of
        law;51


      • to determine the meaning of a provision consistently with the title of a Section or
        Chapter of the legal act in which it is found;52


      • to determine the meaning of a provision consistently with analogous provisions
        from other legal acts,53 and other areas of law,54 or with provisions from different
        legislative acts regulating the same area of law (also known as in pari materia
        argument);55
48
   See Case C-272/19, V. Q. v. Land Hessen, ECLI:EU:C:2020:535, ¶¶ 69–71 (July 9, 2020); see also Case C-73/16,
   Peter Puškár v. Finančné ECLI:EU:C:2017:725, ¶¶ 39–40 (Sept. 27, 2017); see Case C-101/01, Bodil Lindqvist,
   2003 E.C.R. I-12971, ¶¶ 44–45.
49
   See Case C-546/19, B. Z. v. Westerwaldkreis, ECLI:EU:C:2021:432, ¶¶ 43–46 (June 3, 2021); see also Case C-
   543/19, Jebsen & Jessen v. Hauptzollamt Hamburg, ECLI:EU:C:2020:830, ¶¶ 56–57 (July 1, 2019); see Case C-
   686/2019, SIA “Soho Group” v. Patērētāju, ECLI:EU:C:2020:582 ¶¶ 38–42 (July 6, 2020); see Case C-616/19, M. S.
   and Others v. Minister for Justice and Equality, ECLI:EU:C:2020:1010, ¶¶ 32–36 (Dec. 10, 2020); Case C-791/18,
   Stichting Schoonzicht, ECLI:EU:C:2020:731, ¶ 26 (Sept. 17, 2020); Case C-437/19, État luxembourgeois v. L.,
   ECLI:EU:C:2021:953 ¶¶ 43-48 (Nov. 25, 2021).
50
   See Case C-786/18, ratiopharm GmbH v. Novartis Consumer Health GmbH, ECLI:EU:C:2020:459, ¶ 34 (Oct.
   31, 2018); Joined Cases C-101/19 and C-102/19, Deutsche Homöopathie-Union, ECLI:EU:C:2020:304, ¶¶ 25-35
   (Apr. 23, 2020).
51
   See Case C-881/19, Tesco Stores ČR a.s. v. Ministerstvo zemědělství, ECLI:EU:C:2022:15, ¶¶ 34–39 (Jan. 13,
   2022).
52
   See Case C-129/19, Presidenza del Consiglio dei Ministri v. B. V., ECLI:EU:C:2020:566, ¶ 40 (July 16, 2020); Case
   C-500/18, AU v Reliantco Investments, ECLI:EU:C:2020:264, ¶ 60 (Apr. 2, 2020).
53
   See Case C-706/18, X. v. Belgische Staat, ECLI:EU:C:2019:993, ¶¶ 34–37 (Nov. 20, 2019).
54
   See Case C-306/06, 01051 Telecom GmbH v. Deutsche Telekom A.G., 2008 E.C.R. I-01923, ¶ 27 (Apr. 3, 2008);
   see also Case C-360/00, Commission v. Italian Republic, 2003 E.C.R. I-05767, ¶ 38 (Jun. 12, 2003) (concerning
   payments in commercial transactions and payments to the E.U. budget).
55
   See Case C-815/18, Federatie Nederlandse Vakbeweging v. Van den Bosch Transporten BV,
   ECLI:EU:C:2020:976, ¶ 35 (Dec. 1, 2020); see Case C-346/19, Bundeszentralamt für Steuern v. Y-GmbH,
   ECLI:EU:C:2020:1050, ¶¶ 40–42 (Dec. 17, 2020); see Case C-619/19, Land Baden-Württemberg v. D. R.,
   ECLI:EU:C:2021:35, ¶¶ 55-56 (Jan. 20, 2021); see Case C-264/19, Constantin Film Verleih, ECLI:EU:C:2020:542,
   ¶ 33 (July 9, 2020); see also Joined Cases C-322/19 and C-385/19, K. S. and Others, ECLI:EU:C:2021:11 ¶ 66.


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


      • to determine the meaning of a provision consistently with provisions of
         hierarchically higher sources of law:56 secondary law consistently with primary
         law,57 which includes: the Charter,58 and general principles,59 as well as with
         international law;60 or implementing legislation consistently with primary
         legislative act;61

      • to determine the meaning of a provision in light of a generic requirement of
         completeness and coherence of the E.U. legal system.62

Second important argument in this category is precedent.                                 Its appearance in the
jurisprudence of the Court of Justice has been discussed many times.63 As we saw, the
Court makes references to its earlier case law in almost every judgement. Case law thus
makes an important element of the context in which legal provisions are placed. In its
jurisprudence, the Court of Justice constantly interprets provisions from different
56
   See Joined Cases C-392/16, C-77/17 and C-78/17, M. and Others v. Commissaire général aux réfugiés et aux
   apatrides, ECLI:EU:C:2019:403, ¶ 77 (May 14, 2019):
                [I]n accordance with a general principle of interpretation, an [E.U.] measure must
                be interpreted, as far as possible, in such a way as not to affect its validity and in
                conformity with primary law as a whole and, in particular, with the provisions of the
                Charter [. . .] Thus, if the wording of secondary [E.U.] law is open to more than one
                interpretation, preference should be given to the interpretation which renders the
                provision consistent with primary law rather than to the interpretation which leads
                to its being incompatible with that law.
57
   See Case C-199/19, R.L. sp. z o.o. v., ECLI:EU:C:2020:548, ¶ 30 (July 19, 2020).
58
   See Case C-949/19, M.A. v. Konsul Rzeczypospolitej Polskiej w N., ECLI:EU:C:2021:186, ¶ 44 (Mar. 10, 2021).
59
   See Case C-356/19, Delfly sp. z o.o. v. Smartwings Poland sp. z o. o., formerly Travel Service Polska sp. z o.o,
   ECLI:EU:C:2020:633, ¶ 29 (Sept. 3, 2020); Case C-826/19, W.Z. v. Austrian Airlines AG, ECLI:EU:C:2021:318, ¶
   41 (Apr. 22, 2021).
60
   See Case C-515/19, Eutelsat SA v. Autorité de régulation des communications électroniques et des postes
   (ARCEP) e Inmarsat Ventures SE, ECLI:EU:C:2021:273, ¶ 63 (Apr. 15, 2021); see also Case C-790/19, Parchetul
   v. L.G. and M.H., E.C.R., ¶¶ 55–58 (Sept. 2, 2021); see Case C-795/19, X.X. v. Tartu Vangla, ECLI:EU:C:2021:606,
   ¶ 49 (July 15, 2021). Note also that the limit to consistent interpretation of E.U. law with international
   law is reached if the outcome of interpretation would prejudice the fundamental principles of the E.U.
   constitutional order or undermine its autonomy: see Comprehensive Economic and Trade Agreement
   between Canada, of the one part, and the European Union and its Member States, of the other part (CETA),
   Opinion 1/17 of the Court, ECLI:EU:C:2019:341, ¶ 107 (Apr. 30, 2019); see also Joined Cases C-302/05 and C-
   415/05, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union
   and Commission of the European Communities, 2008 E.C.R. I-06351, ¶¶ 284–285.
61
   See Case C-815/19, Natumi GmbH v. Land Nordrhein-Westfalen, ECLI:EU:C:2021:336, ¶ 52 (Apr. 29, 2021);
   Case C-361/06, Feinchemie Schwebda GmbH and Bayer CropScience AG v. College voor de toelating van
   bestrijdingsmiddelen, 2008 E.C.R. I ‐ 3865, ¶ 49.
62
   See Case C-482/08, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union,
   2010 E.C.R. I-10413, ¶ 48. For classic expressions of this requirement, see Case 294/83, Parti écologiste “Les
   Verts” v. European Parliament, 1986 E.C.R. 01339, ¶ 23; Case 314/85, Foto-Frost v. Hauptzollamt Lübeck-Ost,
   1987 E.C.R. 04199, ¶ 16.
63
   See generally Itzcovich, supra note 14, at 296–97; GUNNAR BECK, THE LEGAL REASONING OF THE COURT OF JUSTICE OF
   THE EU 290–91 (Bloomsbury Publishing, 2013) (U.K.); see also Mitchel de S.-O.-l’E. Lasser, Anticipating Three
   Models of Judicial Control, Debate and Legitimacy: The European Court of Justice, the Cour de cassation and the United
   States Supreme Court 51 (N.Y.U. L. Sch., Jean Monnet Working Paper No. 1/03, 2003), who noted that “the
   Court’s “case-law”, identified explicitly as such, constitutes probably the single most important focal point
   in [the Court’s] argumentation”.


                                                           24
2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:2


sources of E.U. law.           These earlier interpretations then become relevant for later
interpretations of the same, similar, or related provisions. Some of the reasons for
holding earlier judicial interpretations as authoritative and relevant – and not only in
E.U. law – include stability and predictability of the legal system; institutional knowledge
and wisdom accumulated during periods of development; and consolidation of
precedents; and the value of equality which requires treating the same or similar cases in
a same or similar manner.
           Precedent is closely related to other types of contextual/systemic arguments
mentioned earlier like analogy and general principles. Regarding analogy, when the
Court encounters situations that have the same or similar factual or legal background as
situations that have already been resolved in an earlier judgement, it can extend its
holding from an earlier case and apply it by analogy to a later case.64
           As for general principles of E.U. law, which are unwritten sources of law, they are
developed in the case law. Hence, they can always be traced back to the original
judgement that established them. In these rulings, the Court of Justice drew general
principles from some of the existing, written sources of law in order to fill in the gaps left
by the Treaties.          In this exercise, wider legal context becomes essential.                          When
establishing the general principles, the Court of Justice refers to the Treaties and their
“general/whole” “system/scheme”,65 constitutional traditions common to the Member
States,66 comparative law in general,67 and international law.68 Of course, this doctrinal
exercise cannot be reduced to arithmetic, but requires evaluative choices.69 In other
words, the Court does not seek “a lowest common denominator” among these written
sources of law, but rather a principle that would “fit” best within the scheme of the
Treaties, ultimate objectives and fundamental values of E.U. integration.70 This is where

64
   See Case C-535/18, I. L. and Others, ECLI:EU:C:2020:391, ¶¶ 94–98 (May 28, 2020); see also Joined Cases C-
   762/18 and C-37/19, Q. H., C. V. v. Iccrea Banca, ECLI:EU:C:2020:504 ¶¶ 65–70; see Case C-29/19, Z. P.
   v. Bundesagentur für Arbeit, ECLI:EU:C:2020:36, ¶ 40 (Jan. 23, 2020); Case C-87/19, TV Play Baltic v. v
   Lietuvos radijo ir televizijos komisija, ECLI:EU:C:2019:1063, ¶¶ 22, 28–29 (Dec. 11, 2019). see Case C-329/19,
   Condominio di Milano v. Eurothermo SpA, ECLI:EU:C:2020:263, ¶ 37 (Apr. 2, 2020); see Case C-673/19, M. and
   Others, ECLI:EU:C:2021:127, ¶¶ 36, 44 (Feb. 24, 2021); Council Directive 2004/80/EC, supra note 40, art. 1 ¶¶
   38–40; Case C-363/19, Konsumentombudsmannen v. Mezina, ECLI:EU:C:2020:693, ¶¶ 60–61 (Sept. 10, 2020);
   Case C-949/19, M.A. v. Konsul Rzeczypospolitej Polskiej w N., ECLI:EU:C:2021:186, ¶ 46 (Mar. 10, 2021).
65
   Case 22/70, Commission v. Council (ERTA), ECLI:EU:C:1971:32, ¶¶ 12, 15 (Mar. 31, 1971).
66
   See Case 11/70, Internationale Handelsgesellschaft, ECLI:EU:C:1970:114, ¶ 4 (Dec. 17, 1970).
67
   See generally Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur/Factortame,1996 I-01029, ¶¶ 27–30.
68
   See Case 4/73, Nold, 1974 00491, ¶ 13; Case 44/79, Liselotte Hauer v Land Rheinland-Pfalz, 1979 E.C.R. 03727,
   ¶ 15.
69
   See Koen Lenaerts & José A. Gutiérrez-Fons, The Constitutional Allocation of Powers and General Principles of EU
   Law, 47 COMMON MKT. L. REV. 1629, 1635-54 (2010).
70
   See Case 13/61, Kledingverkoopbedrijf v. Bosch GmbH, 1962 E.C.R. 00045, ¶¶ 283–284; Constantinos N.
   Kakouris, Use of the Comparative Method by the Court of Justice of the European Communities, 6 PACE INT’L L. REV.
   267, 273-275 (1994).


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


general principles overlap with the category of purposive/teleological arguments,71
which is discussed below.
           But, it should be noted that cases in which the Court of Justice establishes
general principles are very exceptional. They have mostly been laid out in early case law,
during the formative period of the E.U.’s legal order. In most situations afterwards,
general principles were used as arguments in the interpretation of different provisions
of E.U. law.72 Or, absent specific provisions, they are applied to situations that share
relevant factual or legal properties, which is where general principles interact with
analogy. Furthermore, at certain points many unwritten principles developed in the case
law were codified, be it in a human rights catalogue or secondary law instruments. For
instance, the general principle of equal treatment is expressed in several provisions in
Title III (“Equality”) of the E.U. Charter of Fundamental Rights and directives regulating,
e.g., access to employment and working conditions. From there, the Court of Justice can
invoke that principle by reference to respective provisions of the Charter or directives in
question. This is where the argument from general principles becomes intertwined with
the argument from contextual harmonisation.
           In the majority of situations in which they nowadays appear in the Court’s case
law, general principles are indeed used alongside other arguments from this category:
contextual harmonisation, precedent, and analogy. For instance, the principle of equal
treatment is paired with provisions of primary or secondary law which give a more
concrete expression to it;73 or recalled from the case law in which it was previously
applied;74 or applied by analogy to legally or factually similar situations.75 As can be
seen, the principle of equal treatment or non-discrimination – together with the
principle of fiscal neutrality as its iteration in the area of tax law – seems to be the most
versatile and frequently used across different areas of law.
           These combinations of interpretive arguments reveal another important feature
of the legal reasoning of the Court of Justice. It concerns the use of the argument from
precedent. Typically, the Court provides a literal “copy–paste” quotation of its earlier

71
   Cf. Miguel Poiares Maduro, Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism,
   1 EUR. J. LEGAL STUD. 137, 141 (2007): “Comparative law becomes, in this way, one more instrument of what
   is the prevailing technique of interpretation at the Court: teleological interpretation”.
72
   Cf. Case C-759/18, O. F. v. P. G., ECLI:EU:C:2019:816, ¶¶ 32, 34 (Oct. 3, 2019) (interpretation in conformity
   with the principles of legal certainty and mutual trust); Case C-45/19, Compañía de Tranvías de La Coruña,
   ECLI:EU:C:2020:224, ¶ 21 (Mar. 19, 2020) (interpretation in conformity with the principle of legal certainty);
   Case C-854/19, Vodafone GmbH v. Bundesrepublik Deutschland, ECLI:EU:C:2021:675, ¶ 24 (Sept. 2, 2021).
   (interpretation in conformity with the principle of equal treatment).
73
   Cf. Case C-830/18, P. F. and Others, ECLI:EU:C:2020:275, ¶ 69 (Apr. 2, 2020); Council Directive 2004/80/EC,
   supra note 40, art. 1.
74
   Cf. Case C-346/19, Bundeszentralamt für Steuern v. Y-GmbH, ECLI:EU:C:2020:1050, ¶¶ 43–51 (Dec. 17, 2020).
75
   Cf. Case C-707/19, K. S. v. A. B., ECLI:EU:C:2021:405, ¶¶ 31–32 (May 20, 2021).


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rulings, without additional discussion or explanations. At times, one has to go back to
these referenced judgements to see how exactly (if at all) they are relevant for the situation
at hand. In these judgements, the Court may be pointing to two things. One is a previously
determined rule or outcome, as in: “The Court held in A. v. B. that the meaning of Article X
of Directive Y is Z.” The other is specific interpretive arguments that were employed in the
earlier judgement, as in “The Court held in A. v. B. that the purpose of Article X of Directive
Y is Z.” By the latter form of the argument from precedent, we can see that this argument in
the Court’s reasoning becomes “transcategorical”.76 In other words, although the Court is
formally citing precedent, it is actually referring to some other argument, like contextual
harmonisation, textual argument, purpose, or the intention of the legislator.77
             To sum up:          so far, we have seen how the Court of Justice cites the
contextual/systemic arguments the most, in particular contextual harmonisation and
precedent to justify its rulings; how contextual harmonisation is used for putting textual
and linguistic features of E.U. legal provisions in a proper context; how precedent serves
as a “bridge” to other types and categories of interpretive arguments; and how these
arguments in general are essential for avoiding legal antinomies, i. e., ensuring that
different provisions do not conflict with each other, which manifests in two dimensions.
One, horizontally, for the E.U. legal system to be coherent, internally consistent and
gapless. And vertically, to preserve validity and constitutionality of provisions in sources
of law that are lower in rank.
             In what follows, we will see how the contextual/systemic arguments interact with
the remaining two general categories of interpretive arguments.



       2.3. PURPOSIVE OR TELEOLOGICAL ARGUMENTS

These arguments are used to ensure that the meaning of a legal provision corresponds
to the purpose, end, or goal (“telos”) of that provision or of the legal act in which that
provision is situated. The idea of interpreting law in conformity with its purpose is not
new. It goes back to Roman law, where it was expressed in the maxim: “[S]cire leges non




76
     For an explanation of this term, MacCormick, supra note 7, at 472.
77
     For examples of the argument from precedent leading to the argument from contextual harmonisation, see
     Case C-488/18, Golfclub Schloss Igling, ECLI:EU:C:2020:1013, ¶¶ 34–38 (Dec. 10, 2020); see also Case C-373/19,
     Dubrovin & Tröger – Aquatics, ECLI:EU:C:2021:873, ¶ 20 (Oct. 21, 2021); see Joined Cases C-503/19 and C-
     592/19, U. Q. and S. I., ECLI:EU:C:2020:629, ¶¶ 41–42 (Sept. 3, 2020).


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


hoc est verba earum tenere, sed vim ac potestatem” [knowing the laws does not mean knowing
their words, but their intent and purpose].78 The same is well established in the E.U. law.79
           There are different ways of framing these arguments. The interpreters can thus
rely on the purpose of a specific legal provision; the purpose of a legal act or entire legal
system, including values that are recognized in them; or the consequences that are
assumed to follow for an identified purpose from adopting a certain interpretation.
These different types of the purposive arguments are discussed below.
           The relevant purposes, values, and consequences referred to can be expressly
found in the text of some legal sources. Or they can be imputed by the interpreters, as
implicit in those sources. In the former case, purposes, values, and consequences are
drawn by the interpreters from written sources. So, in a wider sense they can be
understood as a part of the context that is relevant for the interpretation of specific
provisions, alongside other related provisions, legal acts, judicial decisions, and legal
principles.        This overlap between contextual and purposive arguments is often
acknowledged in E.U. law.80 Hence, in the entire system of the Treaties or the legislative
acts the Court can find relevant purposes of their provisions.81



     2.3.1. PURPOSES

When using the argument from purpose, the Court of Justice, almost as a rule, refers to
actual purposes written down in different sources of E.U. law rather than imputing the
purposes to those sources. These purposes – also referred to as “goals”, “aims”, or
“objectives” of the E.U. or of specific policy areas – concern different areas of political
and social life: from the internal market and consumer protection to economic growth
and price stability, to environmental protection and protection of health, and to free
movement of persons and elimination of inequalities.                            These can be found in the
operative part of the Treaties or legislative             acts,82   in which case they are legally binding;

78
   András Jakab, Judicial Reasoning in Constitutional Courts: A European Perspective, 14 GERMAN L. J. 1215, 1241 (2013)
   (Ger.).
79
   See Case 283/81, Srl CILFIT v. Ministry of Health, 1982 E.C.R. 03415, ¶ 20.
80
   What Bengoetxea terms “teleo-systemic criteria” of interpretation; see, e.g., Joxerramon Bengoetxea, The
   Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence 250–51 (Cambridge
   University Press, 1993).
81
   Cf. Koen Lenaerts & José A. Gutiérrez-Fons, To Say What the Law of the EU Is: Methods of Interpretation and the
   European Court of Justice, 20 COLUM. J. EUR. L. 3, 32 (2014).
82
   For a classic example, see Case 43/75, Defrenne, 1976 E.C.R. 00455, ¶¶ 8–12, in which the Court interpreted
   what is nowadays art. 157 of the Treaty on the Functioning of the European Union [hereinafter T.F.E.U.], a
   provision that codifies the principle of equal pay for equal work for men and women. The Court famously
   noted that this provision “pursues a double aim [. . .] which is at once economic and social”: on the one hand,
   fair competition, and on the other, elimination of inequalities between men and women and prohibition of
   discrimination based on sex, which are expressed in the operative part of the Treaties.

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2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:2


or in the Preambles to the Treaties or legislative acts in which case they are not legally
binding although they are authoritative.83
           Many Treaty provisions have indeed been drafted in goal-oriented terms. That is
why the Treaties have sometimes been referred to as “traité‐cadre” or “framework
treaties”.84 The Preamble to the Treaties also contains a number of overarching purposes
of E.U. integration, such as the creation of “ever closer Union among the peoples of
Europe”.85 Similarly, recitals of the Preambles to the acts of secondary law typically
contain numerous statements of purpose. This is a peculiarity of E.U. law, unlike in other
legal systems, where the E.U. legislator and Treaty-makers specifically reflect on the
ratio and purpose of adopting certain regulatory arrangements, which makes it easier
for the interpreters to identify those purposes. And given that Member States regularly
agree on these purposes – unanimously in the case of the Treaties’ amendments,
unanimously or by qualified majority when adopting secondary law (alongside the
Parliament) – it is inevitable that the Court will frequently take recourse to them when
interpreting E.U. law.
           E.U. law may at times pursue several, equally important yet not fully compatible,
purposes. In certain situations, those purposes could pull the interpreters into different
directions.86 To solve the problem, it is not sufficient to point to one of those purposes
and insist on it. The reason is obvious: “[t]he game of “choose the recital you like” leads
wherever one wishes it to: it is just necessary to pick the fitting recital”.87 Rather, judges
need to weigh and balance the contradictory purposes. The Court of Justice does so by
lifting its reasoning to a higher level: it uses values as “constitutional interpretive
tiebreakers” that are in the background of those purposes and takes them through the
proportionality test.
83
   Cf. Joined Cases C-402/07 and C-432/07, Sturgeon and Others, 2009 E.C.R. I-10923, ¶ 42 : “[T]he operative
   part of an act is indissociably linked to the statement of reasons for it [provided in the Preamble], so that,
   when it has to be interpreted, account must be taken of the reasons which led to its adoption”; Case C-
   162/97, Nilsson and Others, 1998 E.C.R. I-07477, ¶ 54: “[T]he [P]reamble to a [Union] act has no binding legal
   force and cannot be relied on as a ground for derogating from the actual provisions of the act in question”.
   Although some cases seem to indicate that recitals have legal status greater than “a mere interpretative
   guidance”; see Case C‑129/19, Presidenza del Consiglio dei Ministri v. B. V., Opinion of Advocate General
   Bobek, ECLI:EU:C:2020:375, ¶ 120 (May 14, 2020).
84
   Itzcovich, supra note 3, at 558.
85
   As declared by the Court of Justice, “the objective of all the [E.U.] [T]reaties is to contribute together to
   making concrete progress towards European unity”; and “to contribute [. . .] to the implementation of the
   process of integration that is the raison d’être of the [E.U.] itself ”; see Opinion 1/91, Draft agreement on the
   European Economic Area, 1991 E.C.R. I-06079, ¶ 17; Opinion 2/13, Draft agreement on the accession of the
   EU to the European Convention on Human Rights, ECLI:EU:C:2014:2454, ¶ 172 (Dec. 18, 2014).
86
   Cf. Presidenza del Consiglio dei Ministri, ECLI:EU:C:2020:375 ¶¶ 46-51 (Opinion of Advocate General Bobek);
   Case C-16/18, Dobersberger, Opinion of Advocate General Szpunar, ECLI:EU:C:2019:638, ¶¶ 23–24 (July 29,
   2019); Case C-442/16, Gusa, Opinion of Advocate General Wathelet, ECLI:EU:C:2017:607, ¶ 52 (July 26, 2017);
   Case C‑140/12, Brey, ECLI:EU:C:2013:565, ¶ 71 (Sept. 19, 2019).
87
   Presidenza del Consiglio dei Ministri, ECLI:EU:C:2020:375 ¶ 101 (Opinion of Advocate General Bobek).


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                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


But this happens very exceptionally. In most situations, the Court straightforwardly
identifies a single relevant purpose of a provision that informs its interpretation. It did
so in about two out of every three questions included in my study.88 The argument from
purpose is thus explicitly invoked more often than textual arguments, but not as often as
contextual harmonisation and precedent. Moreover, the purpose is usually found in the
text of the legislative act, be it in an operative part or the Preamble.89 At times, the Court
will refer to its earlier judgement in which the purpose of a provision was identified,90
which as discussed above reveals the “transcategorical” nature of the argument from
precedent. There were rarely any references to the broader purposes of E.U. law found in
the sources of primary law or the system of the Treaties, like purposes of specific areas of
law as defined in the Treaties,91 or meta-purposes like the classic “ever closer union”.92
This may be explained by the fact that nowadays most of the cases before the Court of
Justice arguably concern the interpretation of E.U. secondary law, or are framed as



88
   That is, in 66.1% of questions of interpretation or eighty-eight in total.
89
   Cf. Case C-527/18, Gesamtverband Autoteile-Handel eV v. KIA Motors Corporation, ECLI:EU:C:2019:762 ¶ 35
   (Sept. 19, 2019); Case C-671/18, CJIB, ECLI:EU:C:2019:1054 ¶ 29 (Dec. 5 2019); Case C-20/19, kunsthaus muerz
   v. Zürich Versicherungs AG, ECLI:EU:C:2020:273 ¶ 34 (Apr. 2, 2020); Case C-88/19, Asociaţia “Alianța pentru
   combaterea abuzurilor” v. T. M. and Others, ECLI:EU:C:2020:458 ¶¶ 21, 46 (June 11 2020); Case C-191/19, O.
   I. v. Air Nostrum Líneas Aéreas del Mediterráneo SA, ECLI:EU:C:2020:339 ¶ 32 (Apr. 30, 2020); Case C-267/19
   and C-323/19, PARKING d.o.o. and Interplastics s.r.o. v SAWAL d.o.o. and Letifico d.o.o., ECLI:EU:C:2020:351
   ¶ 48 (May 7, 2020); Case C-330/19, Staatssecretaris van Financiën v. Exter, ECLI:EU:C:2020:809 ¶¶ 25, 27
   (Oct. 8, 2020); Case C-477/19, I. E. v. Magistrat der Stadt Wien, ECLI:EU:C:2020:517 ¶ 18 (Jan. 2, 2020); Case C-
   636/19, Y. v. Centraal Administratie Kantoor, ECLI:EU:C:2021:885 ¶ 51 (Oct. 28, 2021); Case C-524/18, Willmar
   Schwabe, ECLI:EU:C:2020:60, ¶¶ 35, 55 (Jan. 30, 2020); Case C-722/1 KROL v. Porr, ECLI:EU:C:2019:1028, ¶
   35 (Nov. 28, 2019); Techbau,ECLI:EU:C:2020:937, ¶¶ 53–54 (Nov. 18, 2020); Case C-329/19, Condominio di
   Milano v. Eurothermo SpA, ECLI:EU:C:2020:263, ¶ 23 (Apr. 2, 2020); Land Baden-Württemberg v. D. R.,
   ECLI:EU:C:2021:35, ¶¶ 30, 44, 46 (Jan. 20, 2021); SIA “Soho Group” v. Patērētāju, ECLI:EU:C:2020:582 ¶¶
   27, 48–50 (July 6, 2020) ; Spenner v. Germany, ECLI:EU:C:2020:381, ¶ 63 (May 14, 2020); Jebsen & Jessen
   v. Hauptzollamt Hamburg, ECLI:EU:C:2020:830, ¶¶ 58, 76 (July 1, 2019); L. G. Case C-790/19, Parchetul v.
   L.G. and M.H., E.C.R., ¶ 68 (Sept. 2, 2021); K. S. and Others, ECLI:EU:C:2021:11 ¶¶ 69–70; Case C-437/19, État
   luxembourgeois v. L., ECLI:EU:C:2021:953, ¶¶ 42–43, 54, 56–57 (Nov. 25, 2021); Case C-881/19, Tesco Stores
   ČR a.s. v. Ministerstvo zemědělství, ECLI:EU:C:2022:15, ¶¶ 34, 43–46 (Jan. 13, 2022).
90
   Cf. Case C-583/18, Verbraucherzentrale Berlin eV v. DB Vertrieb GmbH, ECLI:EU:C:2020:199 ¶ 31 (Mar. 13,
   2020); Case C-48/19, X. v. Finanzamt Z., ECLI:EU:C:2020:169 ¶ 24 (Mar. 12, 2020); Case C-97/19, Pfeifer &
   Langen GmbH & Co. KG v. Hauptzollamt Köln, ECLI:EU:C:2020:574 ¶¶ 32, 44 (July 16, 2020); Case C‑331/19,
   Staatssecretaris van Financiën v. X., ECLI:EU:C:2020:786 ¶¶ 33–34, 38 (Oct. 1, 2020); Case C-509/19, BMW
   Bayerische Motorenwerke AG v. Hauptzollamt München, ECLI:EU:C:2020:694 ¶ 13 (Sept. 10, 2020); Case C-
   799/19, N. I. and Others v. Sociálna poisťovňa, ECLI:EU:C:2020:960 ¶ 64 (Nov.25, 2020); Bundeszentralamt für
   Steuern v. Y-GmbH, ECLI:EU:C:2020:1050, ¶ 45 (Dec. 17, 2020); L. H., Case C-564/18, L. H., ECLI:EU:C:2020:218,
   ¶¶ 30, 76 (Mar. 19, 2020); Case C-488/18, Golfclub Schloss Igling, ECLI:EU:C:2020:1013, ¶ 46 (Dec. 10, 2020);
   Case C-707/19, K. S. v. A. B., ECLI:EU:C:2021:405, ¶ 27 (May 20, 2021); Case C-373/19, Dubrovin & Tröger –
   Aquatics, ECLI:EU:C:2021:873, ¶ 21 (Oct. 21, 2021); W. V. v. Landkreis Harburg, ECLI:EU:C:2020:732, ¶¶ 33, 37
   (Sept. 17, 2020).
91
   Sole exception is C-629/19, Sappi Austria Produktions-GmbH & Co KG and Wasserverband “Region Gratkorn-
   Gratwein” v. Landeshauptmann von Steiermark, ECLI:EU:C:2020:824 ¶ 43 (Oct. 14, 2020).
92
   Only two Opinions reflected on this kind of purposes; see C-616/19, M. S. and Others v. Minister for Justice
   and Equality, Opinion of A. G. Øe, ECLI:EU:C:2020:648 ¶ 71 (Sep. 3, 2020); see Case C‑243/19, A. v. Veselības
   ministrija, Opinion of A. G. Øe, ECLI:EU:C:2020:325 (Apr. 30, 2020).


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such.93 They do not raise questions of interpretation of E.U. primary law or questions of
(non-)conformity of secondary law with primary law.
           As can be seen, the Court of Justice in most situations refers to the purposes of
E.U. law in the same way as when using the contextual arguments: either by pointing to
the specific purposes expressed in the operative part or in Preamble of a written source
of E.U. law, which makes a wider context of a provision that is being interpreted,94 which
basically corresponds to how the argument from contextual harmonisation is used; or by
invoking its case law in which the relevant purpose has already been confirmed, which
corresponds to the argument from precedent. In both ways, the purposive arguments
resemble the contextual arguments.
           How about other iterations of the purposive arguments which are grounded in
values and consequences associated with established purposes?



     2.3.2. VALUES

Judicial interpretations of law are expected to conform with values that are of
fundamental importance to a legal system.                       These values capture moral norms or
political and policy ideas, and may include e.g., liberty, equality, equity, dignity, justice,
fairness, tolerance, solidarity, democracy, federalism, etc. They are not necessarily
found in or derived from a formal source of law, like constitutions or treaties, but may
fall in the domains of politics and morality. Moreover, these values may be expressed in
various purposes or consequences that are assumed to follow from specific
interpretations. Consider the following: “The purpose of this provision is to achieve
equality between men and women”, or “[s]ince the proposed interpretation of this
provision would lead to a restriction of the liberty of individuals, it cannot be accepted”.
           When interpreting E.U. law, the Court of Justice very rarely invokes these values
(moral, political, social, economic, etc.) as self-standing reason justifying its decision,
even in its landmark rulings. Rather, it usually traces them back to some legal source and
presents them in the form of a distinctly legal argument.95 For instance, the Court can
link values of human dignity or equality to respective provisions of the Charter.96 Other
values can be accommodated in general principles of law: for instance, in Defrenne the

93
   Cf. Bruno de Witte, The Freedom to Provide Services: The Controversial Freedom?, in THE INTERNAL MARKET 2.0 137,
   144-45 (Sacha Garben & Inge Govaere eds., 2021) (concerning free movement of services).
94
   Cf. Vienna Convention on the Law of Treaties art. 31, May 23, 1969 (“General rule of interpretation”): “The
   context for the purpose of the interpretation of a treaty shall comprise [. . .] the text, including its [P]reamble
   and [A]nnexes [. . .]”.
95
   See Itzcovich, supra note 14, at 302–03.
96
   See Charter of Fundamental Rights of the European Union, Art. 1-5 and Art. 20-23, Dec. 18, 2000, 2000 O.J. (C
   364) 1 [hereinafter CFR].
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                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 Court seemed willing to accept economic interests as a reason to limit the temporal
 effects of its decision, but nevertheless the argument it put forward was the principle of
 legal certainty.97       In these situations, values appear in the form of the contextual
 arguments. And although parties before the Court at times explicitly refer to values as an
 independent argument, the Court would dismiss it by saying that it is not “called upon to
 broach” non-legal value questions, but instead “must restrict itself to a legal
 interpretation”.98
           It is therefore unsurprising that, in my study,99 I found only one situation in which
 the Court of Justice was referring to a certain value on its own.100 In K. S. and Others, the
 Court was asked whether asylum seekers have the right to access the labour market under
 the Reception Conditions Directive 2013/33/EU, where a transfer decision has been taken
 in their regard under the Dublin III Regulation (Regulation (EU) No. 604/2013). Answering
 in the positive, the Court mentioned, among many other things, the value of work that
 contributes to a life of dignity, and avoidance of financial costs that Member States would
 have to bear for paying social benefits to individuals who without a job cannot sustain
 themselves and their families.101
           In most situations that it handles, therefore, the Court of Justice is not faced with
 questions of interpretation that require moral or political values to be answered. On the
 contrary, in these cases the Court justifies its answers with the support of other available
 arguments which are grounded in written sources of law. And where certain values are
 indirectly referred to, they come through other types of arguments like contextual
 harmonisation or general principles.


97
    See Case 43/75, Defrenne, 1976 E.C.R. 00455, ¶¶ 69–70, 74.
98
    Case C-34/10, Oliver Brüstle v. Greenpeace eV., 2011 E.C.R. I-09821, ¶ 30 and Case C-159/90, The Society for
    the Protection of Unborn Children Ireland Ltd v. Stephen Grogan and Others, ECLI:EU:C:1991:378 ¶¶ 19–20
    (Oct. 4, 1991).
 99
    Which is 0.75% of all analysed questions of interpretation.
100
    See Opinions of Advocates General referred to independent values somewhat more. See also Joined Cases
    C-322/19 and C-385/19, K. S. and Others, Opinion of Advocate General de la Tour, ECLI:EU:C:2020:642
    ¶¶ 85–87 (Sept. 3, 2020) (referring to the value of work for preservation of one’s dignity; increased
    vulnerability, precariousness, isolation, and social exclusion of non-working asylum seekers; and social
    and financial burdens for supporting non-working asylum seekers that host Member States bear); Case
    C-581/18, R. B. v. TÜV Rheinland LGA Products GmbH and Allianz IARD SA, Opinion of Advocate General
    Bobek, ECLI:EU:C:2020:77 ¶ 107 (Feb. 6, 2020) (referring to the value of “equal dignity”); Case C-481/19,
    D. B. v. Consob, Opinion of Advocate General Pikamäe, ECLI:EU:C:2020:861 ¶ 99 (referring to autonomy,
    freedom of determination and formation of one’s will without coercion, and human dignity); Case C-
    580/19, R. J. v. Stadt Offenbach am Main, Opinion of Advocate General Pitruzzella, ECLI:EU:C:2020:797
    ¶ 44 (Oct. 6, 2020) (referring to the need to protect the worker as a weaker party in the employment
    relationship); see Joined Cases C-762/18 and C-37/19, Q. H., C. V. v. Iccrea Banca, Opinion of Advocate
    General Hogan, ECLI:EU:C:2020:49 ¶ 48 (referring to the notion of justice in the relationship between worker
    and their employer); Case C-535/19, A. v. Latvian Ministry of Health, Opinion of Advocate General Øe,
    ECLI:EU:C:2021:114, ¶¶ 151, 153 (Feb. 11, 2021) (referring to the value of solidarity).
101
    See K. S. and Others, ECLI:EU:C:2020:642, ¶¶ 69–73 (Opinion of Advocate General de la Tour).


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      2.3.3. CONSEQUENCES

 Another one of the purposive arguments is the argument of consequences. When invoking
 it, the Court of Justice is considering consequences that are likely to affect some purpose
 or value in case a certain interpretation is adopted.102 The Court is often expressing this
 argument in negative terms, i.e., referring to the undesirable consequences that ought
 to be avoided in the interpretation of E.U. law. Furthermore, these consequences may be
 of two kinds: socio-economic consequences, typically related to the functioning of the
 internal market, and legal consequences.
           The example of the former may be found in the free movement cases. When
 interpreting relevant Treaty provisions on free movement of workers, establishment, or
 services, and deciding that they are applicable to relationships between private parties,
 the Court emphasised that the abolition of obstacles to free movement between Member
 States – the purpose of those provisions – would be compromised if actors governed by
 private law are allowed to keep certain barriers in place.103
           These kinds of consequences appear regularly in the Court’s judgments: in my
 study, they occurred in nearly every third question the Court was answering.104 Specific
 consequences are usually invoked side by side with related purposes,105 which are, as we

102
    Cf. Defrenne, E.C.R. 00455 ¶ 71, where the Court acknowledged that “the practical consequences of any
    judicial decision must be carefully taken into account”, before adding that “it would be impossible to go
    so far as to diminish the objectivity of the law and compromise its future application on the ground of the
    possible repercussions which might result [. . .]”.
103
    See Case 36/74, B.N.O. Walrave and L.J.N. Koch v. Association Union cycliste internationale,
    ECLI:EU:C:1974:140 ¶¶ 17–18 (Dec. 12, 1974); see also Case C-281/98, Roman Angonese v. Cassa di
    Risparmio di Bolzano SpA, 2000 E.C.R. I-04139, ¶ 32; see Case C-438/05, International Transport Workers’
    Federation and Finnish Seamen’s Union v. Viking Line ABP and OÜ Viking Line Eesti., 2007 E.C.R. I-10779 ¶
    57.
104
    That is, in 30.3% of questions of interpretation or forty-one in total.
105
    Cf. Case C-828/18, Trendsetteuse SARL v. DCA SARL, ECLI:EU:C:2020:438 ¶¶ 37–38 (June 4, 2020); Case C-
    96/19, V. O. v. Bezirkshauptmannschaft Tulln, ECLI:EU:C:2020:353 ¶ 38 (May 7, 2020); Case C-290/19, R. N.
    v. Home Credit Slovakia a.s., ECLI:EU:C:2019:1130 ¶ 31 (Dec. 19, 2019); Case C-742/19, B. K. v. Republika
    Slovenija, ECLI:EU:C:2021:597 ¶¶ 43, 79 (July 15, 2021); Case C-879/19, FORMAT Urządzenia i Montaże
    Przemysłowe v. Zakład Ubezpieczeń Społecznych I Oddział w Warszawie, ECLI:EU:C:2021:409 ¶¶ 29–32 (May
    20, 2021); Case C-868/19, M-GmbH v. Finanzamt für Körperschaften Berlin, ECLI:EU:C:2021:285, ¶¶ 44, 51
    (Apr. 15, 2021); Case C-895/19, A. v. Dyrektor Krajowej Informacji Skarbowej, ECLI:EU:C:2021:216, ¶ 46
    (Mar. 18, 2021). Case C-610/18, AFMB and Others, ECLI:EU:C:2020:565, ¶¶ 66–69 (July 16, 2020); Case C-
    45/19, Compañía de Tranvías de La Coruña, ECLI:EU:C:2020:224, ¶¶ 20–22, 26 (Mar. 19, 2020); Case C-299/19,
    Techbau, ECLI:EU:C:2020:937, ¶¶ 54–55 (Nov. 18, 2020); W. V. v. Landkreis Harburg, ECLI:EU:C:2020:732, ¶¶
    34–38 (Sept. 17, 2020); Case C-199/19, R.L. sp. z o.o. v., ECLI:EU:C:2020:548 ¶¶ 35–36 (July 19, 2020); Case
    C-437/19, État luxembourgeois v. L., ECLI:EU:C:2021:953, ¶¶ 58–59 (Nov. 25, 2021); Joined Cases C-101/19 and
    C-102/19, Deutsche Homöopathie-Union, ECLI:EU:C:2020:304, ¶ 46 (Apr. 23, 2020); Case C-112/19, Marvin M.,
    ECLI:EU:C:2020:864, ¶ 41 (Oct. 28, 2020); Case C-29/19, Z. P. v. Bundesagentur für Arbeit, ECLI:EU:C:2020:36,
    ¶¶ 37, 42 (Jan. 23, 2020); Case C-502/18, C. S. and Others, ECLI:EU:C:2019:604, ¶ 30 (July 11, 2019); Case C-
    786/18, ratiopharm GmbH v. Novartis Consumer Health GmbH, ECLI:EU:C:2020:459, ¶ 44 (Oct. 31, 2018); Case
    C-330/19, Staatssecretaris van Financiën v. Exter, ECLI:EU:C:2020:809, ¶ 29 (Oct. 8, 2020); Case C-616/19, M.
    S. and Others v. Minister for Justice and Equality, ECLI:EU:C:2020:1010, ¶ 52 (Dec. 10, 2020).


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 saw, found in the entire context of E.U. legal acts.                      In that sense, references to
 consequences are not less “legal” and more “political”, if the latter would mean that
 relevant consequences are found in a non-legal realm.106 Rather, they are related to
 what the law already expressly proclaimed are its goals and objectives.



      2.3.4. EFFECTIVENESS

 As for the legal consequences, they may concern either effectiveness or redundancy of
 provisions that are interpreted. The assumption is that the purpose of a legal provision
 can only be achieved if that provision produces all its intended useful effects and is not
 rendered meaningless or superfluous.                  This version of the purposive argument is,
 therefore, used to justify interpretations that ensure the effectiveness of a provision and
 to discard interpretations that would diminish its effectiveness or lead to its redundancy.
           These two notions – effectiveness and redundancy – are of the same kind, with
 the only difference being that they vary in degree. A redundant provision would be fully
 stripped of its effectiveness. Yet a provision of limited or decreased effectiveness would
 not necessarily be redundant. The same appears to be the understanding of the Court of
 Justice.107 Its approach seems to be: to interpret E.U. law in order not to make any
 provision redundant, and to make every provision as effective as possible. The latter
 indicates that the effectiveness is conceived in maximalist terms to ensure the greatest
 possible effects of a provision in question.108 However, the same could be conceived in a
 minimalist sense, i. e., to ensure some useful effects of a provision; hence, not to make it
 completely useless or redundant, but to allow certain limitations to its effects for the
 sake of other arguments or interests.109
           Another rationale behind this argument is that a rational (E.U.) legislator
 intends the provisions it enacts to be as effective as possible and does not enact
 provisions that are ineffective.110 In that sense, it can overlap with the argument of the
 legislator’s intention discussed below. It often also overlaps with contextual arguments.
106
    Contrary to what was argued by Conway, supra note 14, §13.12 “Conclusions”: “Consequentialist is clearly
    less dependent upon legal sources and the discipline of legal method, it is less predictable and may be
    dependent upon an extra-legal evidential base, including complex socio-economic data. Consequentialism
    is more political and less “legal””.
107
    See Case C-173/03, Traghetti del Mediterraneo SpA v. Repubblica italiana, 2006 E.C.R. I-05177 ¶¶ 36, 40.
108
    A classic example of effectiveness as seeking to ensure not some effect but maximum effect of E.U. law is
    Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, ECLI:EU:C:1963:1, 13 (Feb. 5,
    1963).
109
    An example of using effectiveness in a non-maximalist sense would be the case law on horizontal direct
    effect of directives; see Tamara Ćapeta, Ideology and Legal Reasoning at the European Court of Justice, in The
    Transformation or Reconstitution of Europe 89, 111–13 (Tamara Perišin & Siniša Rodin eds., 2018).
110
    Cf. Lenaerts & Gutiérrez-Fons, supra note 81, at 17.


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 2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:2


 For instance, a provision is made redundant if its interpretation is identical to another
 provision’s interpretation. Similarly, meaning given to one provision can impact the
 effectiveness of another provision. Therefore, when using this argument, the Court of
 Justice does not always constrain itself to looking at a single provision of E.U. law but
 operates in a wider system of primary and secondary law.
            Effectiveness of E.U. law (effet utile) featured in many important judgments of the
 Court of Justice. A settled case law of the Court is that “where a provision of E.U. law is
 open to several interpretations, preference must be given to that interpretation which
 ensures that the provision retains its effectiveness”.111 The Court was invoking this
 argument not only to ensure the effectiveness of a single provision of E.U. law,112 but
 also the effectiveness: of provisions of E.U. law as a whole;113 of a class of E.U. legal
 acts;114 of procedures established by the Treaties;115 of the Treaty itself;116 and of general
 principles of E.U. law established by the Court.117
 Unsurprisingly, then, effectiveness is often considered as being the key argument in the
 repertoire of a teleological Court, which appears frequently and carries significant weight.
 As Michal Bobek wrote in his early work:

             In its [Union] guise, the problem with the use of purposive reasoning
             is not so much the unpredictability of the value choice of the judge;
             on the contrary, it is the fact that recourse to teleological reasoning by
             the Court of Justice almost always leads us on a journey to a well-known
             destination called “effet utile”. The problem with the case law of the
             Court of Justice [. . .] might well be the fact that purposive reasoning
             is often reduced to one and only one purpose: the full effectiveness of
             [E.U.] law, which is turned into the crucial principle not allowing for
             any balancing or opposition.118


111
    Case C‑576/20, C. C. v. Pensionsversicherungsanstalt, ECLI:EU:C:2022:525 ¶ 54 (July 7, 2022).
112
    See Case 43/75, Defrenne, 1976 E.C.R. 00455, ¶ 33.
113
    See Joined Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v. Italian Republic,
    1991 E.C.R. I-05357 ¶ 33.
114
    See Case 9/70, Franz Grad v. Finanzamt Traunstein, ECLI:EU:C:1970:78 ¶ 5 (Oct. 6, 1970) (concerning direct
    effect of decisions); Case 41/74, Yvonne van Duyn v. Home Offic., 1974 E.C.R. 01337 ¶ 12 (concerning direct
    effect of directives).
115
    See Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1978 E.C.R. 00629 ¶ 20
    (concerning the preliminary ruling procedure under art. 267 T.F.E.U.).
116
    Id. ¶ 18.
117
    See Case C-173/03, Traghetti del Mediterraneo SpA v. Repubblica italiana, 2006 E.C.R. I-05177 ¶ 40
    (concerning the principle of state liability for damages due to violations of E.U. law committed by national
    courts as confirmed in Case C-224/01, Gerhard Köbler v. Republik Österreich, 2003 E.C.R. I-10239).
118
    See Michal Bobek, On the Application of European Law in (Not Only) the Courts of the New Member States: “Don’t Do
    as I Say”?, 10 CAMBRIDGE Y. B. EUR. LEGAL STUD. 1, 21 (2008) (U.K.).


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 In reality, however, this happens rarely.                            In my study, the argument of
 effectiveness/redundancy appeared in around one in every six cases.119 It was cited
 alongside specific purposes and not isolated from them.120 The reason why the issue of
 effectiveness is raised in a relatively small number of cases may be that the Court of
 Justice is able to interpret provisions of E.U. law with support of other arguments,
 especially contextual arguments, in a way that does not impact their effectiveness.
 Moreover, in certain cases the argument of effectiveness gave way to other arguments
 and considerations. This shows the effectiveness of E.U. law as not just being a one-way
 street. Consider the following example.
            Constantin Film Verleih concerned the interpretation of the term “addresses” from
 Article 8(2)(a) of the Intellectual Property Rights Directive 2004/48/EC, which enlisted
 information that must be provided in cases of infringement of intellectual property
 rights. One of the questions was whether that term covers “email addresses” and “I.P.
 addresses” of users through which files that infringe intellectual property rights were
 uploaded. The referring court, the German Bundesgerichtshof [Federal Court of Justice],
 proposed an answer in the affirmative. It offered several purposive arguments in support
 of that answer: that email and I.P. addresses, in the same way as postal addresses,
 facilitate identification of copyright infringers, and are thus necessary for safeguarding
 the right to intellectual property under Article 17(2) of the Charter; the purpose of the
 Directive, according to its Recital 3, is “protective” – it concerns effective enforcement of
 intellectual property rights in the E.U. internal market; broad interpretation of the term
 “addresses” would contribute to the effectiveness of the regime for protection of
 intellectual property rights under the Directive given that many platform operators do
 not collect or verify personal names and postal addresses of its users; the term
 “addresses” should be given “dynamic” interpretation, to take account of the
 technological developments, since the objectives of the Directive could not be ensured “as
 long as the traditional understanding of the terms” in question would be maintained.121


119
    That is, in 16.3% of questions of interpretation or twenty-two in total. See Case C-540/19, W. V. v. Landkreis
    Harburg, ECLI:EU:C:2020:732, ¶¶ 34–35 (Sept. 17, 2020); see also Case C-346/19, Bundeszentralamt für Steuern
    v. Y-GmbH, ECLI:EU:C:2020:1050, ¶¶ 50, 53 (Dec. 17, 2020); Case C-828/18, Trendsetteuse SARL v. DCA SARL,
    ECLI:EU:C:2020:438, ¶ 37 (June 4, 2020); see État luxembourgeois v. L., ECLI:EU:C:2021:953, ¶¶ 54, 58 (Nov. 25,
    2021); see Case C-706/18, X. v. Belgische Staat, ECLI:EU:C:2019:993, ¶¶ 26, 37 (Nov. 20, 2019); see Case C-215/19,
    Veronsaajien oikeudenvalvontayksikkö, ECLI:EU:C:2020:518 ¶ 39 (concerning effectiveness as a limit to the
    requirement of narrow interpretation of exemptions to general rule).
120
    Cf. Case C-580/19, R. J. v. Stadt Offenbach am Main, ECLI:EU:C:2021:183 ¶ 32 (Mar. 9, 2021); Case C-686/2019,
    SIA “Soho Group” v. Patērētāju, ECLI:EU:C:2020:582, ¶ 51 (July 6, 2020); C-629/19, Sappi Austria Produktions-
    GmbH & Co KG and Wasserverband “Region Gratkorn-Gratwein” v. Landeshauptmann von Steiermark,
    ECLI:EU:C:2020:824, ¶ 45 (Oct. 14, 2020); Case C-535/18, I. L. and Others, ECLI:EU:C:2020:391, ¶ 100 (May
    28, 2020).
121
    See Case C-264/19, Constantin Film Verleih, order for reference, ECLI:EU:C:2020:542, ¶¶ 12-15 (July 9, 2020).


                                                          36
 2023]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 8:2


 The Court of Justice nonetheless disagreed. The Court did implicitly acknowledge the
 referring court’s argument – that adopting its proposed answer would “ensure the
 effective exercise of the fundamental right to property, which includes the intellectual
 property right [. . .] by enabling the holder of an intellectual property right to identify
 the person who is infringing that right and take the necessary steps in order to protect
 it”.122 However, the Court offered a number of arguments supporting the opposite
 outcome, i.e., that Article 8(2)(a) should not be interpreted as covering emails and I.P.
 addresses. Most importantly, the Court looked into “the usual meaning of the term
 “address” in everyday language”123 and how the same term is used in a wider “scheme”
 of E.U. secondary law,124 as well as having analysed the travaux préparatoires.125 From all
 of this, it became apparent that the E.U. legislators attempted to strike a balance
 between the competing rights and interests: the protection of intellectual property
 rights on the one hand and the freedom of expression or the protection of private life
 and personal data safeguarded by Articles 7 and 8 of the Charter on the other.
 Furthermore, the Court added that in the Directive “the E.U. legislature chose to provide
 for minimum harmonisation concerning the enforcement of intellectual property rights
 in general”.126 So, concerning the provision in question, “that harmonisation is limited [.
 . .] to narrowly defined information”.127 To support that claim, the Court pointed to
 Article 8(3)(a) of the Directive, in which the E.U. legislator expressly provided an option
 to the Member State “to grant holders of intellectual property rights the right to receive
 fuller information”.128 So, under Article 8(2)(a) there would be no obligation to provide
 the right holders with information about emails and I.P. addresses of infringers of
 intellectual property rights.          Nonetheless, from the context of the Directive it was
 apparent that the Member States were left to choose whether to provide for this
 additional information.
           In Constantin Film Verleih, we can see that the Court of Justice was willing to
 accept that, in circumstances such as those in the main action, the provision of the E.U.
 law in question would not produce the maximum effect that it could possibly have.
 Rather, from the context of that provision and the Directive in general, the Court
 concluded that the legislator’s intention was to achieve minimum harmonisation with
 the Intellectual Property Rights Directive and thus establish a narrower scope of Article

122
    Case C-264/19, Constantin Film Verleih, Judgment, ECLI:EU:C:2020:542, ¶¶ 12-15 (July 9, 2020).
123
    Id. ¶ 30.
124
    Id. ¶¶ 32–33.
125
    Id. ¶ 31.
126
    Id. ¶ 36.
127
    Id.
128
    Id. ¶ 39.


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                     THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 8(2)(a). In essence, the Court was deferring to the E.U. legislator instead of taking effet
 utile as a knockout argument that wins in every interpretive dilemma.129 From this it
 also transpires how the Court uses contextual arguments to substantiate the argument
 from the intention of the legislator, which will be discussed in the following Section.
            In my case study, there were several other examples that showed the same
 trend.130     The referring courts tend to adopt purposive and consequential reasoning at
 the expense of textualism.                   Based on that approach, they propose “dynamic”
 interpretations of E.U. law in the light of technological and social development; hence,
 appearing “activist”.            Meanwhile, the Court of Justice tends to adopt a balanced
 reasoning based on the observations of context and systemic coherence, demonstrating
 thereby judicial restraint and deference to the E.U. legislator. That is hardly an approach
 of a teleological Court. It also raises a question about the influence of the referring courts:
 whether they at times push the Court of Justice into adopting ambitious interpretations
 of E.U. law.131 Furthermore, this takes the whole interpretive burden off the Court’s
 shoulders and indicates that the interpretation of E.U. law is a collaborative exercise in
 which multiple actors interact; introduce different arguments; and push for different
 solutions.132



      2.4. HISTORICAL OR INTENTIONAL ARGUMENTS

 Historical or intentional arguments support the interpretation of a legal provision that
 corresponds with the intention of the legislator which enacted that provision. Since the
 courts are bound by the authority of the legislator, democratic will expressed by it when passing
 laws, and the separation of powers, it is unsurprising that they will often refer to the intention
 of the legislator when interpreting the law. These arguments are also called “historical”,

129
    Advocate General Henrik Saugmandsgaard Øe explicitly referred to the principle of separation of powers
    which promotes the value of legislative primacy; see Case C-264/19, Constantin Film Verleih, Opinion of
    Advocate General Øe, ECLI:EU:C:2020:261, ¶¶ 43, 58–59 (Apr. 2, 2020).
130
    Cf. Joined Cases C‑101/19 and C‑102/19, Deutsche Homöopathie-Union DHU Arzneimittel GmbH & Co. KG
    v. Bundesrepublik Deutschland, ECLI:EU:C:2020:304 (Apr. 23, 2020) REQUESTS for a preliminary ruling
    under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany) order
    for reference (Nov. 6, 2018) and the Court’s reply in Joined Cases C-101/19 and C-102/19, Deutsche
    Homöopathie-Union, ECLI:EU:C:2020:304 (Apr. 23, 2020); Case C-535/19, A. v. Latvian Ministry of Health,
    Augstākā tiesa (Senāts) ECLI:EU:C:2021:595 (July 15, 2021) REQUEST for a preliminary ruling under Article
    267 TFEU from the Augstākā tiesa (Senāts) (Supreme Court, Latvia) order for reference (July 9, 2019) and the
    Court’s reply in Case C-535/19, A. v. Latvian Ministry of Health, ECLI:EU:C:2021:595; and cases discussed infra
    Section 2.4.
131
    Cf. Maduro, supra note 71, at 148; and Edward, supra note 6, at 44, 54.
132
    Cf. Antoine Vauchez, Close-Ups to Long Shot: In Search of the “Political Role”of the Court of Justice of the European
    Union, in NEW LEGAL APPROACHES TO STUDYING THE COURT OF JUSTICE: REVISITING LAW IN CONTEXT 45 (Claire
    Kilpatrick & Joanne Scott eds., 2020) (U.K.).


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 2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 8:2


 since they look at what the legislator wanted to achieve when enacting that legislation in
 a particular moment in history; as well as “psychological”, since they impute the specific
 intent – basically a state of mind – to the legislator as a collective entity.133 The use of
 these arguments is regularly acknowledged in E.U. law too.134 In my study, they appeared
 in around one in every three questions the Court of Justice was answering.135
           Like in other legal systems, the argument from the intention of the legislator is
 “transcategorical”. It is typically expressed through one of the previously discussed
 types of interpretive arguments, which means that it also depends on proper
 contextualization. In the case law of the Court of Justice, several different ways of
 conceptualising the intention can be distinguished.
           First, the intention can be found in the wording of a provision.136 The wording or
 text of enacted provisions is obviously legally binding and authoritative.137 If that wording
 or text is clear and unambiguous, it is taken as the evidence of what the E.U. legislator
 intended with that provision.138 The assumption would be that the E.U. legislators used
 or intended to use the words and the text in their ordinary meaning when enacting that
 provision. In this respect, the argument from intention moves back to textual arguments
 as discussed above.
           Second, the intention can be established by observing the relevant context of a
 provision.      For instance, by observing the provisions in their immediate or wider


133
    Cf. Fabrizio Macagno & Douglas Walton, Arguments of Statutory Interpretation and Argumentation Schemes, 2
    INT’L J. LEGAL. DISCOURSE 47, 51 (2017) (Ger.)
134
    Cf. Case C‐583/11, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European
    Union, ECLI:EU:C:2013:625 ¶ 50 (Oct. 3, 2013): “The origins of a provision of European Union law may
    also provide information relevant to its interpretation”; Fennelly, supra note 3, at 657: “The object of all
    interpretation lies in the true intention of the lawmakers, whether they be framers of a constitution or a
    treaty, legislators, or drafters of secondary legislation”.
135
    That is, in 29.6% of questions of interpretation or forty in total.
136
    See Case C-671/18, CJIB, ECLI:EU:C:2019:1054, ¶ 35 (Dec. 5 2019); Case C-828/18, Trendsetteuse SARL v. DCA
    SARL, ECLI:EU:C:2020:438, ¶ 24 (June 4, 2020); see Case C-530/19, N. M. v. O. N., ECLI:EU:C:2020:635, ¶ 24
    (Sept. 3, 2020); see Case C-686/2019, SIA “Soho Group” v. Patērētāju, ECLI:EU:C:2020:582, ¶ 31 (July 6,
    2020); see Case C-346/19, Bundeszentralamt für Steuern v. Y-GmbH, ECLI:EU:C:2020:1050, ¶ 39 (Dec. 17,
    2020); C-629/19, Sappi Austria Produktions-GmbH Co KG and Wasserverband “Region Gratkorn-Gratwein”
    v. Landeshauptmann von Steiermark, ECLI:EU:C:2020:824, ¶¶ 33–34 (Oct. 14, 2020); see also Joined Cases C-
    322/19 and C-385/19, K. S. and Others, ECLI:EU:C:2021:11, ¶ 63 (Jan. 14, 2021); Case C‐547/14, Philip Morris
    Brands SARL e.a. v. Secretary of State for Health, ECLI:EU:C:2016:325 ¶ 63 (May 4, 2016).
137
    See Case C‐815/18, Federatie Nederlandse Vakbeweging v. Van den Bosch Transporten BV and Others,
    Opinion of Advocate General Bobek, ECLI:EU:C:2020:319 ¶ 62 (Apr. 30, 2020): “[. . .] Hopes, ideas, or wishes
    are not legally binding. The adopted text is”.
138
    See Case C‐482/09, Budějovický Budvar, Opinion of Advocate General Trstenjak, 2011 E.C.R. I-08701, ¶ 69: “[A]
    semantic examination of the various terms used gives a sufficiently clear indication of what the legislature
    actually intended”; see also Case 28/76, Milac GmbH Groß-und Außenhandel v. Hauptzollamt Freiburg,
    Opinion of Advocate General Warner, ECLI:EU:C:1976:144, (Oct. 28, 1976): “[A]t the end of the day, I think
    that the solution of the problem must lie in seeking to ascertain, from the wording of the relevant legislation
    of the Council what, objectively, the intention of its authors was [...]”.


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 context;139 or comparing the differences in the wording between the surrounding
 provisions or chapters;140 or making inferences from the “silence” of the wording i.e.,
 from what is not explicitly mentioned in the text of a provision or its context;141 or using
 what is expressly provided as exceptions to a general rule to infer what cannot be
 implied as an additional exception to that rule (the so called expressio unius argument,
 which is a variation of the a contrario argument),142 etc. Here, the E.U. legislators are
 assumed to act and legislate rationally, e.g. to enact internally coherent and valid
 legislation, which does not overlap with provisions in its horizontal context nor infringe
 provisions in its vertical context. In this respect, the argument from intention falls back
 to contextual arguments - discussed above.
            Third, the intention can be established by looking into the statement of reasons
 made by the E.U. legislator in the Recitals of the Preamble to a legal act.143 Preambles are
 not legally binding and cannot derogate from the clear and unambiguous wording of
 operative provisions.144 Nevertheless, they can be taken as authoritative when they
 disclose the intent of the E.U. legislator in a clear and convincing manner.145 At times,
 the statements of intent in the Preambles are indistinguishable from the statements of


139
    See Case C-715/18, Segler-Vereinigung Cuxhaven, ECLI:EU:C:2019:1138 ¶ 32; see also Case C-796/18,
    Informatikgesellschaft für Software-Entwicklung, ECLI:EU:C:2020:395, ¶¶ 34, 66–70 (May 28, 2020); see Case
    C-868/19, M-GmbH v. Finanzamt für Körperschaften Berlin, ECLI:EU:C:2021:285, ¶¶ 34–35 (Apr. 15, 2021);
    Case C-373/19, Dubrovin & Tröger – Aquatics, ECLI:EU:C:2021:873, ¶¶ 26–27 (Oct. 21, 2021); see Case C-493/17,
    Weiss and Others, ECLI:EU:C:2018:1000 ¶ 60 (Dec. 11, 2018).
140
    See Case C-616/19, M. S. and Others v. Minister for Justice and Equality, ECLI:EU:C:2020:1010, ¶ 35 (Dec. 10,
    2020); Case C-477/19, I. E. v. Magistrat der Stadt Wien, ECLI:EU:C:2020:517, ¶ 27 (Jan. 2, 2020); Case C-129/19,
    Presidenza del Consiglio dei Ministri v. B. V., ECLI:EU:C:2020:566, ¶¶ 40–42 (July 16, 2020); Case C‐370/12,
    Thomas Pringle v. Government of Ireland and Others, ECLI:EU:C:2012:756 ¶¶ 130–132 (Nov. 27, 2012); see also
    Joined Cases C‐439/05 P and C‐454/05 P, Land Oberösterreich and Republic of Austria v. Commission of the
    European Communities, 2007 E.C.R. I-07141, ¶¶ 37–41.
141
    See Case C-219/19, Parsec Fondazione v. ANAC, ECLI:EU:C:2020:470, ¶ 27 (Jun. 11, 2020); Case C-365/19, F. D.,
    ECLI:EU:C:2021:189, ¶¶ 38–39 (Mar. 10, 2021); see also Joined Cases C-297/88 and C-197/89, Massam Dzodzi v.
    Belgian State, ECLI:EU:C:1990:360, ¶ 36 (Oct. 18, 1990).
142
    See Case C-815/18, Federatie Nederlandse Vakbeweging v. Van den Bosch Transporten BV,
    ECLI:EU:C:2020:976, ¶¶ 32–33 (Dec. 1, 2020); Federatie Nederlandse Vakbeweging, ECLI:EU:C:2020:319, ¶ 56
    (Opinion of Advocate General Bobek): “[I]f something is be to excluded from the scope of an otherwise
    generally worded act, it can and should be stated clearly”.
143
    See Case C-774/19, Personal Exchange International, ECLI:EU:C:2020:1015, ¶ 35 (Dec. 10, 2020); see also Case C-
    941/19, Samohýl group v. Generální ředitelství cel., ECLI:EU:C:2021:192, ¶ 42 (Mar. 10, 2021); Case C-786/18,
    Ratiopharm GmbH v. Novartis Consumer Health GmbH, ECLI:EU:C:2020:459, ¶ 49 (Oct. 31, 2018); Case C-
    129/19, Presidenza del Consiglio dei Ministri v. B. V., ECLI:EU:C:2020:566, ¶¶ 46, 51; Case C-707/19, K. S. v. A.
    B., ECLI:EU:C:2021:405, ¶ 27 (May 20, 2021); Case C-790/19, Parchetul v. L.G. and M.H., E.C.R., ¶ 60 (Sept. 2,
    2021). For a classic example, see Case 29/69, Stauder v. City of Ulm, ECLI:EU:C:1969:57, ¶ 5 (Nov. 12, 1969):
    “The last recital of the preamble to this decision shows that the Commission intended to adopt the proposed
    amendment”.
144
    See supra text accompanying notes 82–83; see also Tadas Klimas & Jūratė Vaičiukaitė, The Law of Recitals in
    European Community Legislation, 15 ILSA J. INT’L & COMPAR. L. 61 (2008).
145
    For a remark that the Court of Justice occasionally treats Preambles as something more than “a mere
    interpretative guidance” see Case C‑129/19, Presidenza del Consiglio dei Ministri v. B. V., Opinion of
    Advocate General Bobek, ECLI:EU:C:2020:375, ¶ 120 (May 14, 2020).


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 2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:2


 purpose.146       This is understandable, since the two are intertwined: after all, “the
 legislature’s intent is to write a law that [fulfils] the legislative purpose”.147 So, the claim
 would be that when enacting legislation the E.U. legislators intended to achieve specific
 purposes, to reach some desirable outcomes or avoid undesirable (absurd, unjust)
 outcomes, etc. In this respect, the argument from intention falls back to purposive
 arguments - discussed above.
           Fourth, the intention can be established by investigating materials that are,
 unlike operative provisions and Preambles, outside the legislative act that is being
 interpreted.       These are different documents related to the drafting history of the
 legislation, also known as the travaux préparatoires. The requirement of their use in the
 interpretation of E.U. law is that they are made publicly available. This was the reason
 why, until recently, the Court of Justice has been using the travaux only for the
 interpretation of secondary law.148 Nowadays, the Court uses them when interpreting
 the Treaties,149 and the Charter,150 as well as secondary law.151 Still, being external to
 the legislative act, the travaux are not legally binding. But they can be used as an
 ancillary argument to support the finding of the intent of the E.U. legislator based on
 other arguments. In that sense, they are especially persuasive as the indicator of the
 legislators’ intent when they confirm the clear and unambiguous wording of the
 operative parts of the legislative act.152 So, the travaux are most useful when providing
 context and clarification to the wording or objectives expressed in the text of the
 legislation.
           The argument from intention seems to have the greatest weight when it is linked
 to either textual or contextual arguments. In several examples from my study, the Court

146
    Cf. C-29/69. Stauder v. Stadt Ulm, ECLI:EU:C:1969:57, ¶ 3, where the Court referred to “the real intention
    of [the] author and the aim he seeks to achieve”. See also Case C‑331/19, Staatssecretaris van Financiën v.
    X., ECLI:EU:C:2020:786, ¶ 33 (Oct. 1, 2020); see Case C-267/19 and C-323/19, PARKING d.o.o. and Interplastics
    s.r.o. v. SAWAL d.o.o. and Letifico d.o.o., ECLI:EU:C:2020:351 ¶ 48 (May. 7, 2020); see Joined Cases C-322/19
    and C-385/19, K. S. and Others, ECLI:EU:C:2021:11, ¶ 88 (Jan. 14, 2021).
147
    See LAWRENCE M. SOLAN, THE LANGUAGE OF STATUTES: LAWS AND THEIR INTERPRETATION 142 (2010).
148
    For a discussion, see Samuli Miettinen & Merita Kettunen, Travaux to the EU Treaties: Preparatory Work as a
    Source of EU Law, 17 CAMBRIDGE Y. B. EUR. LEGAL STUD. 145 (2015); Case C-583/11 P, Inuit, Opinion of Advocate
    General Kokott, ECLI:EU:C:2013:21, ¶ 32 (Jan. 17, 2013).
149
    Case C‐370/12, Thomas Pringle v. Government of Ireland and Others, ECLI:EU:C:2012:756, ¶ 135 (Nov. 27,
    2012).
150
    See Case C-279/09, DEB v. Germany, ECLI:EU:C:2010:811, ¶¶ 32–39 (Dec. 22, 2010), (using Explanations relating
    to the Charter of Fundamental Rights, published by the Convention that drafted the Charter); see also TEU
    art. 6(1) and CFR art. 52(7). For further discussion, see Lenaerts & Gutiérrez-Fons, supra note 81, at 52–59.
151
    See Case C-264/19, Constantin Film Verleih, ECLI:EU:C:2020:542, ¶ 31 (July 9, 2020); Case C-321/19, B. Y. and C.
    Z., ECLI:EU:C:2020:866, ¶ 28 (Oct. 28, 2020); Case C-299/19, Techbau, ECLI:EU:C:2020:937, ¶ 56 (Nov. 18, 2020);
    Case C-796/18, Informatikgesellschaft für Software-Entwicklung, ECLI:EU:C:2020:395, ¶ 33 (May 28, 2020);
    Case C-619/19, Land Baden-Württemberg v. D. R., ECLI:EU:C:2021:35, ¶ 44 (Jan. 20, 2021).
152
    See Case C-306/06, 01051 Telecom GmbH v. Deutsche Telekom A.G., 2008E.C.R. I-01923, ¶¶ 23–25 (Apr. 3,
    2008); Case C-488/18, Golfclub Schloss Igling, ECLI:EU:C:2020:1013, ¶ 39 (Dec. 10, 2020).


                                                         41
                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 employed it to outweigh the purposive arguments. The following one is particularly
 indicative.
           Criminal proceedings against F. O. concerned the interpretation of two Regulations
 on road transport.153 The dispute arose from a roadside check in France, which showed
 that a bus driver of the German transport company had driven through Germany
 without inserting his card in the vehicle’s tachograph. The question was whether one
 Regulation allows French authorities to sanction that driver or his transport company
 for infringement of the other Regulation committed on the German territory but
 detected on French territory. The referring court, the French Cour de cassation [Court of
 cassation], seemed to have thought that it did. The reasons were that, first, such a broad
 interpretation would be in line with the purposes of these Regulations, which include
 improvement of the working conditions of employees in the road transport sector and,
 in general, improvement of road safety; and second, it would ensure the effective
 enforcement of the two Regulations.154
           The Court of Justice nevertheless disagreed. It pointed out that the unambiguous
 wording of the provision in question,155 and its immediate context,156 confirmed beyond
 doubt that the E.U. legislator envisaged the system under which national authorities
 cannot issue criminal sanctions based on one Regulation for the infringements of the
 other Regulation.157            Even if such an interpretation may lead to undesirable
 consequences for the drivers’ working conditions and road safety, the Court added that it
 was up to the E.U. legislators to make appropriate amendments to the text of the
 Regulations.158
           In this example, we can again see the Court of Justice adopting a reasoning based
 on the consideration of the text and relevant context. From there, it infers the E.U.
 legislator’s intent and defers to it; hence, prioritising the legislative primacy over
 purported purpose and effectiveness of E.U. legislation - contrary to what the referring
 court, intervening government, and the Commission had suggested.159 The intention of
 the E.U. legislator, when convincingly established, clearly becomes imposed as a limit on


153
    See Regulation (EC) No. 561/2006 of the European Parliament and of the Council of 15 March 2006 on
    the harmonization of certain social legislation relating to road transport, 2006 O. J. (L 102) 1, and Council
    Regulation (EEC) No. 3821/85 of 20 December 1985 on recording equipment in road transport, 1985 0. J. (L
    370) 8.
154
    Case C-906/19, Criminal proceedings against F. O., Judgment, ECLI:EU:C:2021:715, ¶¶ 31–33 (Sep. 9, 2021).
155
    Id. at ¶ 41.
156
    Id. at ¶¶ 42-44.
157
    Case C-906/19, Criminal proceedings against F. O., ECLIEU:C:2021:178, ¶¶ 45–57, especially ¶¶ 54, 57 (Mar. 4,
    2021) (separate opinion by Bobek, M.).
158
    Case C-906/19, Criminal proceedings against F. O., Judgment, at ¶ 45.
159
    Case C-906/19, Criminal proceedings against F. O., separate opinion by Bobek, M., at ¶¶ 47-48.


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 the Court’s purposivism. Again, hardly something one would expect from a teleological
 Court.




       3. THE VALUE OF HAVING A CONTEXTUALIST COURT

 The examples discussed in the previous Sections illustrate that in a significant number of
 cases, the Court of Justice favours systemic coherence over the effectiveness of
 individual provisions of E.U. law, or their particular purposes, or avoiding bad
 consequences that follow from certain interpretations. In those situations, the Court
 favours general, structural or macro over particular or micro values and interests. As Mitchel
 Lasser rightly noted, “[t]he [Court of Justice’s] interpretive technique is therefore
 oriented primarily towards developing a proper legal order, namely, one that would be
 sufficiently certain, uniform and effective”.160 The question that can be raised at this
 point is what good is promoted by such an interpretive approach?
           First of all, the Court’s contextualist approach to the interpretation of E.U. law,
 which places a premium on the coherence of the E.U. legal system, can be linked to the
 idea of the E.U. legislator being a rational actor. That the E.U. legislator intends to create a
 coherent and consistent legal system, to adopt a sensible legislation that does not conflict
 or overlap with already enacted legislation or higher sources of law, and not to depart
 from the previous case law of the Court unless expressly provided so, etc., is indeed a
 “benign”161 assumption that guides the interpretation of E.U. law.162 It can even be argued
 that such a legislative behaviour is mandated by the E.U. Treaties. Article 7 of the T.F.E.U.
 can thus be read as one of the expressions of that mandate: it prescribes that “[t]he Union
 shall ensure consistency between its policies and activities, taking all of its objectives into
 account [. . .]”.
           Moreover, the contextualist approach means that the interpretive arguments the
 Court uses will always be grounded in formal sources of law “posited” by the E.U.
 legislator. So, a “contextualist” court could, at the same time, be understood as a

160
    Lasser, supra note 63, at 54. Cf. Edward, supra note 6, at 66–67: “In any system based on case-law the judge
    must proceed from one case to another seeking, as points come up for decision, to make the legal system
    consistent, coherent, workable and effective”.
161
    Cf. Green v. Bock Laundry Machine Co., 490 U. S. 504, 528 (1989) (Scalia, J., concurring), who argued that
    the meaning of a legal provision ought to be determined by considering which meaning is, among other
    things, “most compatible with the surrounding body of law into which the provision must be integrated – a
    compatibility which, by a benign fiction, we assume Congress always has in mind”.
162
    Cf. Lenaerts & Gutiérrez-Fons, supra note 81, at 17: “[T]he authors of the Treaties are assumed to have
    established a legal order that is consistent and complete”.


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 “positivist” court. By linking the arguments in its reasoning to legal sources posited by
 the E.U. legislator, the Court defers to the choices made by the democratically
 legitimated legislator.          It understands itself to be “a faithful agent”163 of the E.U.
 legislator who is tasked with “making sense rather than nonsense”164 out of the body of
 law enacted and developed by the historical and contemporary legislature. Such an
 approach to the interpretation of E.U. law promotes the values of democracy and
 separation of powers (in the E.U. context, known as institutional balance).
            The contextualist approach is also essential for one of the key functions of the
 Court of Justice – making E.U. law intelligible – alongside other important functions such
 as reviewing acts of the E.U. legislator and protecting individual rights. By ensuring the
 intelligibility of E.U. law, the Court enables private and public actors to adjust their
 behaviour to directives that stem from sources of E.U. law, while enabling E.U. law to
 fulfil its normative function of guiding the behaviour of its subjects. This is what
 arguably all courts strive to achieve in practice and most of the contemporary legal
 systems work reasonably well most of the time.165 The value thereby promoted is legal
 certainty, which is less of a concern in the teleological interpretation that typically gives
 way to momentary, short-term interests which cannot always be predicted beforehand.
            Making law intelligible might be even more important in a complex institutional
 system such as the E.U. For the E.U. legal system to function optimally, the Court of
 Justice needs the cooperation of other actors, supranational and national: from the
 Council, the Parliament, the Commission, and the E.U. agencies and offices, to Member
 State legislatures, national courts, and executives.                       National actors are especially
 important since they are mainly responsible for the everyday application of E.U. law. If
 E.U. law that they ought to give effect to is made consistent and coherent by the Court of
 Justice, they will likely have little to no difficulties in enforcing it. E.U. law will then
 produce equal effects in all Member States and will apply to all E.U. citizens in the same
 manner, thereby ensuring their equal treatment. So, making sense of the body of E.U.
 law eventually ensures its efficiency and uniformity, which are important structural
 values, and ultimately the equality of Member States and their citizens, another


163
    Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J. L. & PUB. POL’Y 61, 63
    (1994).
164
    See Justice Scalia’s majority opinion in West Virginia University Hospitals v. Casey, 499 U. S. 83, 100–01
    (1991): Where a statutory term presented to us for the first time is ambiguous, we construe it to contain
    that permissible meaning which fits most logically and comfortably into the body of both previously and
    subsequently enacted law [...] because it is our role to make sense, rather than nonsense, out of the corpus
    juris.
165
    See D. Neil MacCormick & Robert S. Summers, Interpretation and Justification, in INTERPRETING STATUTES 511,
    535 (Neil MacCormick & Robert Summers eds., 1991).


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 2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                         [Vol. 8:2


 fundamental value of the E.U. legal system.                        In such a decentralised institutional
 environment, contextualism seems to be the most appropriate interpretive approach.
            It should also be added that the Court’s interpretive approach that aims at
 ensuring coherence, completeness, and consistency of E.U. law corresponds to the ideal
 of a constitutional court as envisaged by Hans Kelsen. For Kelsen, a constitutional court
 is responsible for ordering the legal system so as to achieve unity of law, which would be
 free of any contradiction.166 That system is necessarily hierarchical and monist, since no
 one can be above the constitutional court that is tasked with making the system
 coherent and whole.167 That the Court of Justice indeed understands itself to be such a
 Kelsenian court transpires from the clash with the German Federal Constitutional Court
 following the ruling in Weiss.168 In a number of reactions – institutional,169 judicial,170
 and extra judicial171 – it was strongly asserted that there can be only one final authority
 in the interpretation of E.U. law, thus rejecting the notion of interpretive pluralism in
 the E.U. legal system,172 which would in theory be just the opposite from the ideal of
 coherence and consistency of law.




        4. “CONTEXTUALIST” OR “TELEOLOGICAL” ‐ DOES IT MATTER IF
        BOTH REACH THE SAME OUTCOME?

 An important objection against the label “contextualist” and a description of the legal
 reasoning of the Court of Justice proposed so far, as well as the values it promotes, could be
 to question whether it matters at all? In other words, do different interpretive approaches



166
    See Stanley L. Paulson, Formalism, “Free Law”, and the “Cognition” Quandary: Hans Kelsen’s Approaches to Legal
    Interpretation, 27 U. QUEENSLAND L. J. 7, 29 (2008).
167
    See Daniel Halberstam, Systems Pluralism and Institutional Pluralism in Constitutional Law: National, Supranational,
    and Global Governance 28–32, 39–43 (Univ. Mich. L. Sch. Pub. L. Working Paper Series, Working Paper No. 229,
    2011).
168
    See Case C-493/17, Weiss and Others, ECLI:EU:C:2018:1000 (Dec. 11, 2018); see also Bundesverfassungsgericht
    [BVerfG] (Federal Constitutional Court), May. 15, 2020, 2 BvR 859/15, Judgment of the Second Senate
    regarding Public Sector Purchase Program, ECLI:DE:BVerfG:2020:rs20200505.2bvr085915 (Ger.).
169
    See Court of Justice of the EU, Press Release No. 58/20 following the judgment of the German Constitutional
    Court of 5 May 2020 (May 8, 2020).
170
    See Case C‐824/18, A. B., C. D., E. F., G. H., I. J. v. Polish National Council of the Judiciary, Opinion of Advocate
    General Tanchev, ECLI:EU:C:2020:1053 ¶¶ 80–84 (Dec. 17, 2020).
171
    See Koen Lenaerts, No Member State is More Equal than Others: The Primacy of EU law and the Principle of the
    Equality of the Member States before the Treaties, Verfassungsblog (Oct. 8, 2020), https://verfassungsblog.de/no-
    member-state-is-more-equal-than-others/ (Ger.).
172
    See Gareth Davies, Does the Court of Justice Own the Treaties? Interpretative Pluralism as a Solution to
    Over‐constitutionalisation, 24 Eur. L. J. 358 (2018) (U.K.).


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                    THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 lead to different interpretive outcomes, if we assume that the outcomes of adjudication are
 what in the end matters the most?
           Those who insist on the label “teleological” and accuse the Court of Justice of
 judicial activism may not actually be concerned with the reasoning of the Court that is
 offered to justify particular outcomes, but with those outcomes themselves. So, the
 problem would be that the Court’s teleological interpretive approach has a built-in
 “communautaire tendency” that inevitably results in “pro-integration” outcomes.173 In
 other words, whenever a doubt about the outcome of interpretation exists – i.e., about
 the resolution of a case – the Court will always opt for the “federal” or “centralising”
 solution that favours the Union, enhances European integration, and promotes its
 interests.174 Many studies, both critical and sympathetic, hence, argued that the Court of
 Justice consistently and in all strands of the case law arrives at these integrationist
 outcomes,175 irrespective of the reasoning it adopts that purportedly lead there.
 For many advocates of the Court of Justice, this cannot be seen as surprising. Teleological
 interpretation is driven by the goals of E.U. law and those goals are distinctly
 integrationist and “pro-E.U.”. As David Edward wrote, if anything like “integrationist
 agenda” or “communautaire tendency” exists, it is in the Treaties. The Member States
 have set it, and the Court cannot ignore it when interpreting E.U. law.176 The following
 remark with a similar tenor is often quoted:

             The preference for Europe is determined by the genetic code
             transmitted to the Court by the founding fathers, who entrusted to it
             the task of ensuring that the law is observed in the application of a
             Treaty whose primary objective is an “ever closer union among the
             peoples of Europe”.177

 But this “genetic code” may not only be in the objectives and purposes of E.U. law. It may
 permeate the entire E.U. legal system - down to every single provision in every source of
 law. That is why some insiders to the Court like Advocate General Miguel Poiares Maduro
 spoke about “meta-teleology”, about the “constitutional telos” of the legal context in

173
    Cf. Beck, supra note 63, at 318–31.
174
    See Hartley, supra note 4, at 95; Rasmussen, supra note 4, at 3; see also Derrick Wyatt, Does the European Court
    of Justice Need a New Judicial Approach For the 21st Century?, Lecture at the Bingham Centre (Nov. 2, 2015).
175
    Cf. Anna Bredimas, Methods of Interpretation and Community Law 179 (1978); Eric Stein, Lawyers, Judges
    and the Making of a Transnational Constitution, 75 AM. J. INT’L L. 1, 24–27 (1981) TREVOR C. HARTLEY, THE
    FOUNDATIONS OF EUROPEAN COMMUNITY LAW: AN INTRODUCTION TO THE CONSTITUTIONAL AND ADMINISTRATIVE LAW
    OF THE EUROPEAN COMMUNITY 78 (4th ed., 1998).
176
    See David Edward, The European Court of Justice - Friend or Foe?, EUR. ATLANTIC J. 60, 67-68 (1996) (U.K.).
177
    Giuseppe Federico Mancini & David T. Keeling, Democracy and the European Court of Justice, 57 MOD. L. REV. 175,
    186 (1994) (U.K.).


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 2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                          [Vol. 8:2


 which provisions of E.U. law exist,178                           where the systemic/contextual and
 purposive/teleological interpretation become one. So, not only télos (end) but also óntos
 (essence) of E.U. law is integrationist.179 For that reason, a contextualist court will act
 just like a teleological court would. If the Court of Justice is contextualist, and the
 context is implicitly but surely integrationist, the Court will in the end come to the
 integrationist outcomes. If the result is the same, the labels given to the interpreter are
 irrelevant.
            However, there are several issues with making it all about the integrationist
 outcomes. Namely, what makes an outcome an integrationist one is rather elusive.
 “Integration as a term does not mean anything in itself ”,180 Advocate General Tamara
 Ćapeta wrote. It is hard not to agree with this remark. European integration has so many
 diverse objectives, some of which may be contradictory in certain circumstances. When
 the Court of Justice gives preference to one objective at the expense of another, has the
 outcome thus reached integrationist or not? So, looking at the E.U. ’s values, interests,
 and policies at the macro level, we cannot know what exactly would qualify them as
 integrationist.         Is it right or left, socially liberal or conservative, economically
 interventionist or laissez-faire?              Does integration imply preference for market and
 competition or social justice and equity? In the Court’s case law, one can find outcomes
 that further all these causes. And they would all qualify as integrationist.181 But if all of
 these different causes are integrationist, then that term loses a lot of its explanatory
 power. For integration to be more useful conceptually in this context, it would require a
 master plan. However, there is no such thing, there never was, and cannot be in such a
 diverse and dynamic political community like the E.U. As Robert Schuman said in his
 address when launching the idea of the European Coal and Steel Community, “Europe
 will not be made all at once, or according to a master plan”.
            Some authors did, however, offer a more specific and analytically useful measure
 of integration. For instance, Trevor Hartley considered an outcome integrationist if it
 promoted European integration in the way that it strengthened the Union and its federal
 elements, increased the scope and effectiveness of E.U. law, or enlarged powers of the E.U.
 institutions.182 However, when put to test, these criteria likewise fail for the following
 reasons.
178
    See Maduro, supra note 71, at 140. See also Lasser, supra note 3, at 203–38; and for a similar concept of économie
    générale that informs the Court’s interpretation of E.U. law, see Siniša Rodin, Interpretation in the Court of Justice
    of the European Union: Originalism, Purposivism and L’Économie Générale, 34 AM. UNIV. INT’L L. REV. 601 (2019).
179
    See Siniša Rodin, A Metacritique of the Court of Justice of the European Union, 2 IL DIRITTO DELL’UNIONE EUROPEA
    LAW OF THE EUROPEAN UNION 193 (2016) (It.).
180
    Ćapeta, supra note 109, at 105.
181
    Id. at 104–07.
182
    See Hartley, supra note 175, at 78.


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                   THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 Not every case before the Court of Justice raises these issues. Perhaps some or most of the
 landmark cases do in one way or another. But these represent only a smaller portion of
 cases dealt with by the Court of Justice. They are not representative of what the Court does
 in most of the situations.183 In the same way that great cases make bad law and provide
 bad labels for judicial reasoning, they give a bad impression of judicial preferences for
 integrationist outcomes.
           The same thing can be noticed in the case study I performed for the purposes of
 this paper. In 135 questions of interpretation of E.U. law, I analysed, and I counted how
 many outcomes reached by the Court of Justice could be classified as integrationist,
 non-integrationist, and neutral. Echoing Hartley’s suggestion, I looked into whether the
 outcome: (i) broadens or restricts the scope of E.U. law; (ii) widens or narrows the
 exception from application of a general rule of E.U. law; (iii) leads to a more or less
 effective and efficient enforcement of E.U. law; (iv) precludes or allows application of
 national law that restricts application of an E.U. rule and consequently narrows or
 widens discretion of national authorities; (v) was supported or opposed by the
 Commission in the proceedings before the Court.
           The outcomes for which none of these criteria could be established were
 considered as neutral. They concern, for instance, certain technical questions which
 seemingly do not involve political or value considerations, or have no impact on
 structural features of the E.U. legal order. Examples would be classification of a copper
 rod or a medicinal product under one or the other customs’ heading of the combined
 nomenclature of the E.U. common customs tariff;184 or allowing or prohibiting a package
 leaflet of homoeopathic medicinal products to contain information about dosage
 schedules; etc.185 It is difficult to consider these outcomes as being integrationist or not
 absent certain indications based on the aforementioned (or other similar) criteria. In any
 event, in 135 questions of interpretation of E.U. law covered in my study, the Court of
 Justice had 54 neutral outcomes - which is 40% of the total number.
           As for the other two types of outcomes, the situation is as follows: the Court of
 Justice reached 64 integrationist outcomes, which is 47.4% of the total number, and 17
 non-integrationist outcomes, which is 12.6% of the total number. So, in less than half
 of all cases the Court’s integrationist bias surfaces. But in one in every eight cases, the
 Court reaches outcomes that cannot be considered as promoting the E.U. integration, no
183
    Cf. Conway, supra note 14, § 13.12 “Conclusions”, where he notes that “the Court’s role remains a matter of
    controversy in those important cases where the Court pursues a pro-integration policy instead of a more
    conventional hermeneutic discipline”.
184
    See Case C-340/19, Valsts ieņēmumu dienests v. Hydro Energo, ECLI:EU:C:2020:488, (Jun. 18, 2020); see also
    Case C-941/19, Samohýl group v. Generální ředitelství cel, ECLI:EU:C:2021:192 ¶ 42 (Mar. 10, 2021).
185
    See Joined Cases C-101/19 and C-102/19, Deutsche Homöopathie-Union, ECLI:EU:C:2020:304 (Apr. 23, 2020).


                                                      48
 2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 8:2


 matter how contradictory that may sound. Moreover, two in every five cases will not even
 raise these concerns. So, the full picture is less black-and-white and much more nuanced
 than authors who criticise the Court of Justice’s alleged integrationist bias are willing to
 admit.186 Which should not come as a surprise, given how unlikely it would be to have
 a full agreement over anything between twenty-seven judges sitting in the Luxembourg
 benches.187
           From this, we can see that the Court of Justice, in the many situations in which it
 interprets E.U. law, does not reach integrationist outcomes. By extension, the entire E.U.
 legal context cannot be fully integrationist. Rather, a significant number of cases will
 deal with integration-neutral issues in which a contextualist court has to make sense of a
 complex web of technical legislative solutions. What is more, in some parts of the E.U.
 legal context Member States may have envisaged a limited scope of E.U. law or firm
 exceptions from application of E.U. law; or have granted wide discretion to national
 authorities; or left the matter completely to be dealt with at the national level. In those
 situations, a contextualist court that seeks to make the E.U. legal system intelligible,
 coherent, and consistent will take into account those decentralising pieces of the puzzle
 instead of blindly and forcefully trying to fit centralising solutions in that frame.




       CONCLUSION

 The Court of Justice is a contextualist court. In my view,188 that is the most appropriate
 label for its approach to the interpretation of E.U. law, and the fairest characterisation of
 its legal reasoning. It may sound like an apology, but it is difficult not to come to that
 conclusion after reading a bigger sample of the Court’s judgments. My claim is easily
 verifiable. Anyone can take a look at a randomly or carefully selected sample of cases,
 related or not to a specific area of E.U. law or legislative act, in a limited period of time,
 and read a hundred or more judgments of the Court of Justice - not only those that draw
 some controversy but also those rather uninteresting ones to which scholars rarely pay
186
    Cf. Rodin, supra note 179, § III “Ontological metacritique: how the CJEU should be deciding cases?”, where
    he noted that “[w]hile it is true that the Court has generated solid jurisprudence that can be characteri[s]ed
    as Europeanizing, there are also abundant examples of [the Court promoting] de-centrali[s]ing values”.
187
    Cf. Michael Malecki, Do ECJ Judges All Speak with the Same Voice? Evidence of Divergent Preferences from the
    Judgments of Chambers, 19 J. EUR. PUB. POL’Y 59 (2012) (U.K.) (showing that the Court’s judges do not have
    uniform preferences when it comes to pursuing pro-integration agenda, but rather they fall on a spectrum
    between “Europhilia” and “Euroscepticism”).
188
    Here I should reiterate that my observations were based on a study of the Court’s recent case law, that is a
    sample of judgments delivered between 2019 and 2021, so these conclusions should be read with that caveat
    in mind. For the explanation of the design of my research, see supra Section 1.


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                       THE COURT OF JUSTICE OF THE E.U.: A CONTEXTUALIST COURT


 attention. When reading, they should take note of the following: the nature of legal
 questions – whether they have an integrationist “flavour”; how the Court uses specific
 interpretive arguments; what are the most frequently used arguments; and what kind of
 outcomes the Court usually reaches. After they are done with reading and taking notes, I
 am convinced that the pattern they will identify with all those points will reveal “the
 careful and painstaking interpretative task carried out by the Court in the majority of its
 decisions”,189 and not some carefree activist approach unrestricted with the letter of E.U.
 law that pursues a grand plan of delivering a European superstate or something along
 those lines.
              The label “contextualist”, moreover, could make the most sense in the current
 state of development of the E.U. legal order. You may even think that it is logical that the
 Court will have such an approach to the interpretation of E.U. law some seventy years
 after the creation of the first European communities, compared to what it championed in
 the formative years of the E.U. or during periods of political turmoil, which could
 perhaps be labelled “teleological”. So, first, the E.U. legal system was built from scratch
 by a teleological court. On that basis, it grew and consolidated. And now, it is being
 systematised and perfected by a contextualist court.
              There are several factors that may have contributed to such an evolution of the
 interpretive approach of the Court of Justice. The first is the number of cases it handles.
 From a few dozen a year in the first decades to almost a thousand a year in recent years.
 Perhaps over time the Court will keep delivering a similar absolute number of bold,
 purposive rulings. Before they stood out and could be thought of as being representative
 of the Court’s legal reasoning. But lately those become drowned in hundreds of rulings in
 which the Court routinely solves the issue by a careful consideration of the text and
 relevant context.
              The second factor concerns the personnel. From seven judges sitting at the early
 court to twenty-seven being there at the moment. A greater number of judges overall
 means more diversity in opinion, which makes it more difficult to have everyone in
 favour of ambitious reasoning and far-reaching outcomes. Moreover, the original seven
 were initially handling all cases together and could indeed adopt a distinct judicial
 philosophy and follow it consistently. Since they had to make the system operative and
 secure its institutional authority along the way, they could have been more eager to rely
 on purposivism. Now, cases are being handled mostly in chambers of three and five
 judges. This may serve as a steadying factor that pushes everyone to come up with a
 solution that will be the most acceptable to the rest of the judges. And since more cases
189
      Albors Llorens, supra note 6, at 398.


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 2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 8:2


 handled by different formations of the Court will produce more material to work with, it
 becomes important to consolidate the case law and make it coherent and consistent.
              The third factor concerns the nature of the cases the Court is dealing with.
 Initially, the Court was mostly asked to interpret Treaty provisions which are broadly
 drafted and goal-driven. They are often concerned with issues related to free movement,
 which were essential for the establishment and functioning of the internal market. And
 in certain periods, the Union legislator was in a deadlock and could not enact legislation
 that would make those provisions operative. Furthermore, there was less case law in
 which the subsequent rulings had to be situated. At the same time, the Court was less
 known and politically exposed, “blessed with benign neglect by the powers that be and
 the mass media”,190 so some ambitious rulings could fly under the radar. And some of
 them dealt with rather mundane facts such as import of chemicals, unpaid electricity
 bills, or subsidies for slaughtering cows. Such an environment, indeed, may be more
 conducive to purposivism. But today, that environment has markedly changed. The
 internal market is more or less completed and solidly in place. The Court is dealing not
 so much with the Treaty provisions but rather with the intricate, extensive, technical,
 and ever-growing body of the E.U. secondary law,191 which shows that the legislative
 output is there. That law regulates sensitive matters like social security or human rights,
 which are politically more problematic for Member States since they may encroach on
 the areas of their reserved competence. And the Court’s rulings and legal reasoning are
 scrutinised more closely than ever, not only by scholars but also by the media, interest
 groups, politicians, and national judiciaries. Such an environment calls for a
 contextualist court, and the Court of Justice seems to be responding.




190
      Stein, supra note 175, at 1.
191
      Cf. Michal Bobek, What Are Grand Chambers For?, 23 CAMBRIDGE Y. B. EUR. LEGAL STUD. 1 (2021) (U.K.):
                  [I]in contrast to the cases which came, for example, in the 1980s or even in the 1990s,
                  the main role of the Court today is perhaps not so much focused on proactively
                  opening up new areas of law, often based on broadly stated constitutional or primary
                  law principles or Treaty provisions. The cases put before the Court today require
                  ever more navigating through a rather complex web of detailed secondary law
                  instruments, seeking to establish at least some sort of internal order and consistency.


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