Detecting the Footprints of the Legal Reasoning of the Court of Justice: Inquiry into the Citation Methods

In its rulings, the Court of Justice of the EU (CJEU) largely rely on its precedents. Sometimes these references do not seem particularly important, as they might be chosen without a precise method, or are simply aimed at showing that the argument made is rooted in the previous case-law. In other cases, scholars may use citations to trace a point of law back to its precedents and discover non-immediately evident elements. Citations may not attract attention, but learning to use some techniques, apt to disclose the approach of the Luxembourg Court behind the use of references to previous case law, greatly helps, on many occasions, to grasp the way the CJEU looks at its precedents and to catch how it manages the relationships with the different lines of its previous case law. As part of the textual analysis, the aim of the inquiry into citations is, in particular, to discover possible shifts in meaning of certain expressions throughout the chain of citations covering sometimes large time spans, or to highlight undermotivated passages in the legal reasoning contained in CJEU’s judgments, maybe in the context of explicit or implicit overturns. Anyway, citations analysis investigates, at least sometimes, almost casual choices, therefore it should be used carefully and without overestimating its results. It should be combined with other tools to confirm and corroborate the elements emerged, on the basis of an equilibrate approach based on systematic interpretation and a solid theory of precedents, and with a view to avoiding the risks of exasperate originalism applied to case law. Moreover, all elements should be read under the light of historical changes involving sectoral lines of interpretation or even some basic paradigms of Union Law, that can provoke apparent inconsistencies, but that often also show the vitality of the EU legal order.