Reading up or down EU legislation: a plea for a principled approach to an extraordinary judicial power

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.