EFFET UTILE REASONING BY THE COURT OF JUSTICE OF THE EUROPEAN UNION IS MOSTLY INDIRECT: EVIDENCE AND CONSEQUENCES

Legal reasoning cannot merely be categorized by the content of the arguments used, such as reference to specific rules, principles or policies. Arguments can also be distinguished in terms of whether they are used directly (i.e. ostensively) to defend a certain position or interpretation or indirectly (i.e. apagogically) to contest it. Empirical analysis of the Court of Justice of the European Union judgments in the 'important pre-accession case law' demonstrates that effet utile arguments are mostly used indirectly: the Court points out how a certain interpretation of European Union law would undermine its effectiveness and concludes that the opposite interpretation should be followed. This empirical analysis therefore appears to counter the claim that the Court uses effet utile reasoning in a maximalist manner. Nevertheless, apagogic reasoning is not an innocent way of reasoning, since it can lead to fallacies and provides greater opportunities to hide the reasons for decisions.