Legal reasoning in the European Court of Justice has always been a
source of much lively debate, often conducted in perhaps less than
temperate terms. Allegations abound of Europe governed by judges,
judges out of touch with the desires of the Member States and their
populations, and judges making disastrous decisions. The debate really
attracted attention with the Judicial and Academic Conference held at
the Court in September 19761 in which Hans Kutscher lifted the veil to a
certain extent on the Court’s methods of interpretation: a lively debate
ensued. That the Court has on many occasions been sensitive to
criticism of its judgments is well known, but judicial toes should not
be easily trodden on, as criticism does not have to be purely negative.
A central part of the problem is that the judgments are often poorly
reasoned in terms which can be readily understood. They have all the
hallmarks of the definition of a picture of a camel (a horse, drawn by a
committee), and recourse must frequently be had to the Opinion of the
Advocate General to understand what is or may be meant. The canons of
legal reasoning applied by the Court must be viewed in light of the
objectives of the European Union and the fact that the Court is a
creature of the Treaties, albeit a creature which takes account of general
principles of law, both written and unwritten, and seeks to ensure that
the actions of all the Union’s institutions (including itself), agencies,
other bodies comply with fundamental rights recognized in particular
in the European Convention and in the Union’s Charter