Volume 23 (2017)

Volume 23 (2017) / Issue 2

Timo Rademacher, 'Reading Up or Down EU Legislation: A Plea for a Principled Approach to an Extraordinary Judicial Power' (2017) 23 European Public Law, Issue 2, pp. 319–346

Keywords:
purposive interpretation; teleological interpretation; literalism; legal certainty; legal predictability; rectification; judicial law-making; Inco Europe; Rechtsfortbildung; prospective overruling

Abstract

When courts apply the technique of purposive legislative interpretation there will be cases in which the result of that interpretation cannot be reconciled with the literal meaning of the statute. Confronted with such a situation, the CJEU tends to give prevalence to the purposive interpretation, i.e. to read up or down legislation it deems to be literally deficient. At the same time the Court recognizes that individuals, under the principle of legal certainty and predictability, are entitled, in principle, to rely on the wording of legislation. The Court has yet to develop a principled approach on how to deal with that conflict. Based on the experiences of English and German law with the reading up or down of legislation this article tries to identify the most convincing approach the CJEU might choose to adopt.

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ISSN: 1354-3725
ID: EURO2017020