Proportionality in methodology? Identifying a methodological framework to provide acceptance and legitimacy for the CJEU

Abstract

The Court of Justice of the European Union (CJEU) performs to different audiences in the pluralistic EU legal context. These different audiences demand methodological soundness in the Court’s performance. From their perspective, the judgments of the Court must appear coherent and justified. Employing an institutional approach to law, this thesis proposes a methodological framework which seeks to provide the Court with acceptance among these audiences and therewith legitimacy in its performance as the supreme interpreter of EU law. By looking at the four components of legal reasoning, approach to precedent, the EU legal context, and legal principles of EU law in one context - i.e. the methodological framework - the thesis provides a theoretical outlook which may facilitate a deeper understanding of the methodological dynamics of the CJEU. In essence, the thesis provides framework that, fundamentally, seeks to help the Court escape criticism on a methodological basis. In the case PSPP, the Court received such criticism from the German Federal Constitutional Court, and this case is on occasion used as an example in the thesis. In conclusion, the thesis presents the view that the value of proportionality serves as a counterweight to the demand of effectiveness of EU law, and that such a value of proportionality therefore has a role to play in the methodology of the Court. Put differently, proportionality in methodology provides the CJEU with acceptance and legitimacy among its audiences.