¹ The literature on balancing is burgeoning in the constitutional law camp (for a synthesis see A Stone Sweet ‘Proportionality balancing and global constitutionalism’ (2008–09) 47 Columbia Journal of Transnational Law 1, 72–164Google Scholar) but less so in the private law camp. However, on balancing in private law see, in relation to the US, J, M Horwitz, The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy (Cambridge MA, Harvard University Press, 1992) [Volume 2]Google Scholar; in relation to Europe and the US, Kennedy, D, ‘A Transnational Genealogy of Proportionality in Private Law’ in Brownsword, R, Micklitz, H-W, Niglia, L and Weatherill, S (eds), The Foundations of European Private Law (Oxford, Hart Publishing, 2011)Google Scholar; in relation to Europe, N Reich, ‘Balancing in private law and the imperatives of public interest’ in ibid at 221.

² Kennedy, A Transnational Genealogy, n 1 above; Reich, ‘Balancing in private law’, n 1 above.

³ Hesselink, MW, ‘The general principles of civil law: their nature, roles and legitimacy’ in Leczykiewicz, D and Weatherill, S (eds), The Involvement of EU Law in Private Law Relationships (Oxford, Hart Publishing, 2013)Google Scholar; Weatherill, S, ‘Consumer Protection under EU Law “is not absolute”: yes, but be careful! ’ (2012) 2 European Review of Contract Law 221 Google Scholar; Van Gerven, W, ‘The ECJ Case-law as a Means of Unification of Private Law?’ in Hartkamp et al, Towards a European Civil Code, 2nd edn (Boston MA/The Hague, Kluwer Law International, 1998) 91 Google Scholar.

⁴ ‘Textualism’ in this chapter indicates ‘subsumption’ or ‘rule construction’ (the judicial operation of subsuming facts under rules) as opposed to ‘balancing’ (for this contrast in general see eg Alexy, R, ‘On Balancing and Subsumption: A Structural Comparison’ (2003) 16 Ratio Juris 433 CrossRefGoogle Scholar). I derive the reading of the case-law under scrutiny as textualist from W Van Gerven, ‘The ECJ Case-law as a Means of Unification of Private Law?’ in Hartkamp et al, Towards a European Civil Code, 2nd edn (n 3 above) 91, at 92–93 (3rd edn, 2004) 101, at 103) (‘Where the ECJ’s interpretation of Treaty provisions and, even more so, of the underlying general principles is not infrequently bold, or even audacious, that is not normally the case as regards the ECJ’s interpretation of specific directive provisions which is, more often than not, of a rather textual nature relating, as it usually does, to precise and often technical expressions’ and calling it ‘textual interpretation’; discussing textual interpretation in relation to private consumer law directives as ‘no bold Treaty-related interpretation but only literally minded Directive-related interpretation’: 101 et seq). Textualism is sometimes presented in conjunction with other arguments: first, the consideration that the CJEU would adopt it for respect of the competence boundaries to which private law is bound in the context of the wider EU constitutional structure (see, critically, Collins, H, The European Civil Code. The Way Forward (Cambridge, CUP, 2007) at 56–58 Google Scholar, commenting on Dietzinger, as discussed in the remainder) and, second, the implicit consideration that the CJEU would be ‘protecting the consumer’ to the extent that the text allows this (see Unberath, H and Johnston, A, ‘The Double-Headed Approach of the ECJ Concerning Consumer Protection’ (2007) 44 Common Market Law Review 1237 Google Scholar as discussed in the remainder). To these two arguments I return in the remainder where I also comment on a third position, closer to the balancing reading that I am proposing, adopting the interpretation that in its private consumer law case-law the CJEU would be protecting the consumer in purposive qua teleological mode, in the context of the broader Court’s self-conscious constitutional role.

⁵ Raising general criticism on the role of the CJEU and national courts in private law on the basis of an understanding of European private law as having to embody the balancing of market-orientated and of social justice objectives (see ‘Manifesto of the Study Group on Social Justice in European Private Law’ (2004) 6 European Law Journal 653, at 671: warning that one should ‘not rely on haphazard practice of national courts making references to the European Court of Justice, and the occasional comparisons made between national court decisions’; and placing faith in the legislature’s work of balancing (at 656): ‘A unified law will similarly have to strike a balance between, on the one hand, the weight attached to individual private autonomy as expressed in the idea of freedom of contract, and, on the other hand, principles which respect other equally important demands for social solidarity, which prohibit individuals from taking advantage of superior economic strength or from ignoring the claims of justified reliance upon others’.). For criticism in relation to individual CJEU cases not necessarily skeptical of balancing, see below at section III.

⁶ Needless to say, the standard of ‘rights optimisation’ has become a conventional way in which comparative constitutional studies analyse decisions of constitutional courts towards a critical understanding of their rationality and legitimacy (see below, Section V).

⁷ Aleinikoff, A, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale Law Journal 943, at 945CrossRefGoogle Scholar.

⁸ Alexy, ‘On Balancing’, n 4 above.

⁹ See Alexy, ‘Constitutional Rights, Balancing and Rationality’ (2003) Ratio Juris 131.

¹⁰ BVerfGE vol 7, 198, 201 (Lüth) at 205, 15 January 1958.

¹¹ Lüth, 254.

¹² Lüth, 210.

¹³ Not only, considering that in Germany the obligation to interpret private law consistently with the Basic Law (that is, not inconsistently with it) applies to ordinary civil courts: for discussion see Ruffert, Matthias, Vorrang der Verfassung und Eigenständigkeit des Privatrechts (Tubingen, Mohr Beck, 2001) at 65 Google Scholar.

¹⁴ Alexy, ‘On Balancing’, n 4 above, at 136.

¹⁵ Alexy, ‘Constitutional Rights’ (2003) Ratio Juris 131, at 136 (on ‘scales’ involved in the balancing exercise).

¹⁶ Aleinikoff, ‘Constitutional Law’, n 7 above, at 946.

¹⁷ Brüggemeier, G, ‘Constitutionalisation of Private Law—The German Perspective’ in Barkhuysen, T and Lindenbergh, S (eds), Constitutionalisation of Private Law (Leiden and Boston, Martinus Nijhoff, 2006), at 69 Google Scholar.

¹⁸ See eg Van Gerven, ‘The ECJ Case-law as a Means of Unification of Private Law?’ in Hartkamp et al, Towards a European Civil Code, 2nd edn (1998), 91, at 92–93 and 96 et seq. in the context of an argument that applies to directives in general and private (contract) law directives more specifically; Unberath, H and Johnston, A, ‘The Double-Headed Approach of the ECJ Concerning Consumer Protection’ (2007) 44 Common Market Law Review 1237 as discussed at n 36 belowGoogle Scholar.

¹⁹ Van Gerven, ‘The ECJ Case-law’, n 18 above at 100–102.

²⁰ Case C-441/93 Panagis Pafitis v Trapeza Kentrikis Ellados AE [1996] ECR I-1347.

²¹ I am translating in the balancing vocabulary adopted in this chapter the remarks of Van Gerven, ‘The ECJ Case-law’, n 18 above, at 93 as also partly quoted in the text, that is, that ‘The Court based its decision on a textual interpretation of the Second Company directive’; and that ‘[t]he Court did not even try … to weigh the underlying and conflicting interests of shareholders and depositors against each other’). For further elaboration on this point see the remainder.

²² Ibid at 93.

²³ Ibid at 93.

²⁴ I am developing further an insight in scholarship whereby consumer protection in the case law of the CJEU is based on constitutional choice rather than textualism, proposing to reconstruct it in balancing mode. For scholarship pointing to the importance of what one can call a purposive orientated (teleological) mode of interpretation as making the Court’s case law in the area really intelligible, see Weatherill, S, ‘An Ever Tighter Grip: The European Court’s Pro-consumer Interpretation of the EC’s Directives Affecting Contract Law’ in Andenas, M et al, (eds), Liber Amicorum Guido Alpa. Private Law Beyond the National Systems (London, British Institute of International and Comparative Law, 2007) 1037 Google Scholar; Hesselink, M ‘A Toolbox for Judges’ (2011) 17 European Law Journal 441–69CrossRefGoogle Scholar. This scholarship stresses the key role of consumer protection in constitutional terms (Weatherill, ‘An Ever Tighter Grip’, ibid, at 1054—Court ‘ambitious, even aggressive, in pursuing its role in the field of contract law’; Court ‘insists on the need for an autonomous meaning for legal concepts supplied by Community law but it also typically draws on the interest in consumer protection in choosing the direction of that interpretation and it also on occasion reaches beyond the explicit material scope of the legislation in asserting a Community content to matters in dispute, including those pertaining to matters of civil procedure’; Weatherill, ‘Consumer Protection’, above n 3, noting ‘the long-standing and constitutionally proper assumption that the EU’s legislative acquis shall benefit from a pro-consumer interpretation’, a line of analysis that focuses on substantive aspects, as opposed to reading it all through the lens of mechanical applications of texts, and to which this chapter hopes to contribute by considering such substantive aspects in relation to the technique of balancing.

²⁵ Case C-237/02 Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Ludger Hofstetter and Ulrike Hofstetter [2004] ECR I-3403. For a fuller critical analysis of the decision see the remainder of the chapter.

²⁶ Case C-45/96 Bayerische Hypotheken und Wechselbank v Dietzinger [1998] ECR I-1199.

²⁷ Ibid at para 12.

²⁸ Ibid at para 20.

²⁹ Ibid at paras 22 and 23.

³⁰ For more discussion on this point see the remainder of the chapter.

³¹ Ibid, para 22.

³² For the argument that the Court fails to convince in terms of substance see, eg H Collins, The European Civil Code, n 4 above, at 56–58 (critical on the ground that the Court follows the argument from constraints descending from the competence limitations of the EU, as opposed to arguments from coherence of policy or principle, arguing that guarantees ancillary to a commercial transaction should be covered by the Doorstep Selling Directive). The argument whereby the CJEU would adopt textualism for respect of the competence boundaries to which private law is bound in the context of the wider EU constitutional structure, cannot explain the activism of the CJEU in a case such as Case C-453/99 Courage Ltd v Crehan [2001] ECR I-6297 (an argument implicitly held by Collins) or Case C-481/99, Heininger v Bayerische Hypound Vereinsbank AG [2001] ECR I-9945, nor the typically creative role of the CJEU in other fields, nor the integrationist stance of the Court in consumer private law cases such as Oceano (n 54 below) and Freiburger (n 25 above), nor even the rest of the consumer private law cases that I consider in the remainder insofar as they protect the consumer under EU law—in all of these cases the CJEU takes an integrationist and/or consumer protectionist stance that indicates a Court acting as a conscious constitutional actor unrestrained by considerations regarding competence limitations. These considerations, however, should not be understood as meaning that the CJEU should act without regard for the requirements of the national constitutional realms (including those incorporated in the argument from competences): for the argument that all of the decisions of the CJEU need to be subjected to rights’ optimisation tests as practised under national constitutional law see below, at Section V.

³³ On this point, see already Case C-481/99, Heininger v Bayerische Hypound Vereinsbank AG, [2001] ECR I-9945 (applicability of the Doorstep Selling Directive to credit agreements secured by a charge on land unlimited in time; preclusion of national legislation imposing a time limit; opposing argument on legal certainty raised by the trader, holding that the trader could have avoided the legal uncertainty by informing the consumer of the right to withdrawal), as discussed in the remainder of the chapter.

³⁴ Case C-350/03 Schulte v Deutsche Bausparkasse Badenia AG [2005] ECR I-9215 (Schulte) (holding that the directive cannot be interpreted in the sense that the loan-taker has a right of cancellation: at paras 75–76: ‘the Directive expressly and unequivocally excludes contracts for the sale of immovable property from its scope. While other Community directives intended to protect the interests of consumers, inter alia Directive 87/102, contain rules concerning connected contracts, the Directive contains no rule of that type and provides no basis for an assumption that such rules are implied’ (emphasis added). See also Case C-229/04 Crailsheimer Volksbank eG v Conrads and others [2005] ECR I-9293 (Crailsheimer Volksbank). For criticism see Reich, ‘Balancing in private law’, n 1 above

³⁵ For discussion see Reich, ‘Balancing in private law’, n 1 above; Unberath, H and Johnston, A, ‘The Double-Headed Approach of the ECJ Concerning Consumer Protection’ (2007) 44 Common Market Law Review 1237, at 1258 et seqGoogle Scholar (with details on 359(3) BGB; Terryn (2007) 44 Common Market Law Review 501.

³⁶ Contrast what one may call textual purposivism ( Unberath, H and Johnston, A, ‘The Double-Headed Approach of the ECJ Concerning Consumer Protection’ (2007) 44 Common Market Law Review Google Scholar 1237—arguing, after analysing many of the relevant private consumer protection cases that ‘Article 95 EC instructs the Community legislature and ultimately the Court to enforce a “high level” of consumer protection’ and that ‘[t]he Court is, as in principle it should be, neutral as to the policy implications of the laws it applies. Rather it amplifies what is given to it as Community rule’ (emphasis added))—with the more substantively purposivist and constitutionally orientated arguments about consumer protection put forward by Collins, The European Civil Code, n 4 above, at 56–58 that I am referring to in the text. The latter arguments expose an understanding of directives’ interpretation as a tool self-consciously deployed by an activist, constitutional Court (law-maker; not policy neutral), that is, closer to the view of the case law as revolving around balancing that this chapter proposes, albeit with a focus on arguments from ‘coherent policy of principle’ to be implemented, rather than pointing to the role of balancing techniques. I understand the writings of Reich, ‘Balancing in private law’, n 1 above (discussing various consumer private law cases, including the Schulte saga, in a vocabulary of balancing that the author draws on the work of J Esser) and of Weatherill, ‘Consumer Protection’, n 3 above, as discussed in the remainder, to be the closest to the reading that I am adopting in this chapter.

³⁷ As discussed above. For a detailed critique of Freiburger, see below and Niglia, L, ‘The Rules Dilemma’—The Court of Justice and the Regulation of Standard Form Contracts in Europe (2006) 13 Columbia Journal of European Law 124 Google Scholar.

³⁸ See Alexy, nn 9 and 15 above.

³⁹ Ibid.

⁴⁰ On ‘interests’ (in the vocabulary of Joseph Heck) as ‘transfer norms for values’ see N Reich, ‘Balancing’, n 1 above, at 227 (explaining the work of the judge in Germany this way and drawing on the work of J Esser) and then applying this perspective for understanding key CJEU private consumer cases as involving conflicting interests.

⁴¹ For the relevance of the values of ‘consumer protection’ see eg CJEU, Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid v Asocación de Usuarios de Servicios Bancarios (Ausbanc) [2010] ECR I-4785 at para 27: ‘[A]ccording to settled case-law, the system of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms’ (Directive on Unfair Terms interpreted as implicating the requirement of protecting the consumer in ‘settled case-law’); and, commenting on Ausbanc and identifying the contending set of constitutional values, that is, ‘the general principles of EU law, such as open market economy, competition and the fundamental freedoms’, see N Reich, ‘Balancing in private law and the imperatives of public interest’ in Brownsword, Micklitz, Niglia and Weatherill (eds), The Foundations of European Private Law, n 1 above, at 240.

⁴² Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council ([2011] OJ L304/64), which fully harmonises the areas of pre-contractual information to be given to consumers, the consumer’s right of withdrawal in distance and off-premises contracts, as well as certain aspects of delivery of goods and passing of risk.

⁴³ I draw on, and adapt to the European cases under considerations, Aleinikoff’s synthesis of balancing based on the US experience (see Aleinikoff, ‘Constitutional Law’, n 7 above), according to whom definitional balancing means cases in which the court ‘talks about one interest outweighing another’ and ‘places the interests on a set of scales and rules the way the scales tip’ (at 946 and at 949, the example being that of ‘constitutional standards requiring “compelling” or “important” … interests’) as opposed to ad hoc balancing which means instead cases in which the court ‘speaks of “striking a balance” between or among competing interests’, the ‘image’ being ‘one of balanced scales with constitutional doctrine calibrated according to the relative weights of the interests’, that is, interests are always subject to balancing and never taken to outweigh other interests in all circumstances (at 946 and at 958). For the purpose of this chapter, Alexy’s law of balancing is taken to overlap with ad hoc balancing (ad hoc balancing as a practice of rights’ optimisation insofar as it is about weighing the degree of relative importance of rights vis-à-vis each other) whilst definitional balancing stands for those particular decisions in which the Court holds some interests to outweigh others once and for all, without engaging in weighing their degree of importance relative to other interests as a practice needed for concretising the objective of rights’ optimisation.

⁴⁴ This is why I must consider Dietzinger to have been decided on the basis of a ‘definitional balancing’ reasoning pattern that under-optimises rights.

⁴⁵ Case C-350/03 Schulte [2005] ECR I-9215.

⁴⁶ Critical in this sense it Reich, ‘Balancing’, above n 1.

⁴⁷ Here my critical remarks apply to the denial of the right of cancellation in relation to property rights. Insofar as the decision follows the precedent of Heininger in relation to obligatory (loan) rights, that portion of the decision could be justified on the ground of ad hoc balancing (as I argue in the remainder that it is in the case of Heininger) but the fact that the Court ultimately excluded full protection for Mr and Mrs Schulte as requested by the German lower courts’ reference by embracing textualism turns that act of balancing in ‘definitional’ (ultimately, the CJEU decision holds that the interests of the consumers weigh lower than those of the counterparty). This is one more reason (that is, the Court having ‘balanced’ but then having ultimately ‘limited’ the potential for optimisation by embracing textualism), alongside the reason explained earlier at nn 43 and 44 above, why I consider also Dietzinger to have been based on a ‘definitional’ type of balancing.

⁴⁸ See eg Teubner, G, ‘Legal Irritants: Good Faith in British Law or How Unifying Law End Up in New Divergencies’ (1998) 61 Modern Law Review 1 Google Scholar. For a critical analysis of para 21 of Freiburger (‘the consequences of the term under the law applicable to the contract must also be taken into account’, which requires that ‘consideration be given to the national law’.) see Niglia, ‘The Rules Dilemma’, n 37 above, at 141 et seq.

⁴⁹ Cf eg, in a vast literature, and for a recent re-edition of this now classical law-and-economic argument, see Bar-Gill, O and Shadar, O Ben, ‘Regulatory Techniques in Consumer Protection. A Critique of European Consumer Contract Law’ (2012) 50 Common Market Law Review at 113–14 (‘[C]onsumers are a heterogeneous group, with different preferences and different budgets’Google Scholar; [w]hilst some consumers may prefer to pay high prices for strong protections, others may prefer the low-price-low-protection combination’ and ‘[a]mong the latter group are some consumers who would be priced out of the high-protection market’).

⁵⁰ The same criticism applies to the textualist variant of purposivism as discussed above at n 36.

⁵¹ For the note that the writers of the 2004 Manifesto had directed this criticism to the CJEU for not being the best branch for implementing the balancing of market and social elements in contract law see Mengozzi, P, ‘Il rapporto tra stati e individui nella giurisprudenza comunitaria’ in La Formazione del Diritto Europeo. Giornata di Studio per Alberto Trabucchi nel centenario della nascita Quaderni della Rivista di Diritto Civile (Padua, Cedam, 2008) 111 as discussed belowGoogle Scholar.

⁵² It was addressed to the role of national courts and the CJEU in European private law in general, with no reference to specific cases towards substantiating the writers’ opinion.

⁵³ For critical views see Collins, The European Civil Code, as discussed above at n 36 (regarding Dietzinger); Hesselink, ‘Toolbox’, as discussed above at n 24 (regarding Hamilton); Reich, ‘Balancing’, above at n 1 (regarding Dietzinger); Van Gerven, ‘The ECJ Case-law’ as discussed above at n 21 et seq (regarding Panagis Pafitis); Weatherill, ‘Consumer Protection’, above n 3 (as discussed in the remainder in relation to Gonzáles).

⁵⁴ See notably representative cases such as C-481/99, Heininger v Bayerische Hypound Vereinsbank AG, [2001] ECR I-9945 as discussed above, at n 33; Cases C-240/98 to 244/98 Oceano Grupo Editorial SA v Rocio Murciano Quintero [2000] ECR I-4941.

⁵⁵ See eg Case 412/06 Annelore Hamilton v Volksbank Filder [2008] ECR I-2383; Case C-215/08, E Friz GmbH v Carsten von der Heyden [2010] ECR I-2947; Case C-40/08 Asturcom Telecomunicaciones SL v Nogueira [2009] ECR I-9579. For discussion see Weatherill, ‘Consumer Protection’, above n 3, at 231 (‘In Hamilton, Friz and Asturcom Telecomunicaciones the Court uses the observation that consumer protection is not absolute as an introduction to a careful examination of whether the pro-consumer interpretative presumption is apt to prevail over competing concerns such as legal certainty and a fair division of risk. This is already an intriguing exercise in balancing principles and priorities, but here is not the place to explore that dimension’ (emphasis added)), whose reading and note on ‘careful examination’ I am reconstructing in the vocabulary of ad hoc balancing.

⁵⁶ Weatherill, ‘Consumer Protection’, above n 3, at 227.

⁵⁷ See cases mentioned at n 55 above—considering the timing of the sequence of cases that under-optimise rights, that is, Dietzinger (1998), Freiburger (2004) and Schulte (2005).

⁵⁸ Case Ángel Lorenzo González Alonso v Nationale Nederlanden Vida Cia De Seguros y Reaseguros SAE 166/11, judgment of 1 March 2012. For critique of this decision see Weatherill, ‘Consumer Protection’, above n 3 (warning that ‘the Court’s declaration for the third time in recent years that the protection of consumers pursued by the EU’s rules is not absolute and is subject to certain limits’ … ‘should not be elevated to an interpretative principle apt to challenge the long-standing and constitutionally proper assumption that the EU’s legislative acquis shall benefit from a pro-consumer interpretation’).

⁵⁹ See González, ibid, at para 28 (on the basis of the argument that exclusions should be interpreted narrowly, at para 27).

⁶⁰ See Weatherill, ‘Consumer Protection’, above n 3, rightly denouncing González as a problematic decision in its clinging on a textualist interpretation of the legislative exclusions based on the background argument of ‘no absolute protection’ for the consumer. I understand González to be a decision based on ‘definitional balancing’ (the interest of the insurer as protected by the Directive’s textual exclusion of ‘insurance contracts’ considered to outweigh that of the consumer to cancel the linked insurance contract in all circumstances) in that it holds that the argument for ‘no absolute protection’ runs counter to any attempt at arguing for the reversal of the legislative decision to exclude insurance contracts from the scope of the Doorstep Selling Directive.

⁶¹ I agree with Weatherill, ibid at 233 (‘probably an accident’ and warning that ‘the ruling González Alonso should therefore be festooned with red warning lights and not relied upon in future’).

⁶² An argument convincingly made by Weatherill, ibid, in relation to the ambiguous use of the argument from ‘no absolute protection’ for consumers made by the Court in González.

⁶³ CfVon Bogdandy, A, ‘Founding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16 European Law Journal 95, at 103, as quoted at n 73 belowCrossRefGoogle Scholar.

⁶⁴ For the weakness of this argument see Weatherill, ‘Consumer Protection’, above n 3.

⁶⁵ For a recent interdisciplinary synthesis of sociological and political writings regarding legal epistemic conditions, see eg Rehder, Britta, Rechtsprechung als Politik: der Beitrag des Bundesarbeitsgerichts zur Entwicklung der Arbeitsbeziehungen in Deutschland (Schriften des Max-Planck-Instituts für Gesellschaftsforschung, Köln, Bd 74) (Frankfurt, Campus Verlag, 2011) at 65 et seqGoogle Scholar.

⁶⁶ Mengozzi, P, ‘Il rapporto tra stati e individui nella giurisprudenza comunitaria’ in La Formazione del Diritto Europeo. Giornata di Studio per Alberto Trabucchi nel centenario della nascita Quaderni della Rivista di Diritto Civile (Padua, Cedam, 2008) 111, at 113–14Google Scholar (criticising the position of the 2004 Manifesto insofar as sceptical of leaving it to courts to balance social justice and market orientated objectives; arguing that the case law of the CJEU is about producing solutions ‘che non si limitano a stabilire la disciplina del mercato ma vanno largamente nella direzione della protezione dei singoli’; referring to Courage (n 32 above) as a model decision in that respect.

⁶⁷ Ibid.

⁶⁸ To paraphrase an argument of the Tribunal Constitutional, Spain, Decision 1/2004 (acknowledgement of primacy as exigencia existential of European law).

⁶⁹ Notably, in general, the critique of Habermas, Jürgen Between Facts and Norms (trans Rehg, W) (Cambridge, Polity Press, 1996 [1st edn 1992]) 256 et seqGoogle Scholar.

⁷⁰ See Moellers, C, The Three Branches (Oxford, OUP, 2013) at 135 CrossRefGoogle Scholar (critically commenting on the notion that ‘[t]he protection of basic rights is the most significant and most debated function of constitutional courts’).

⁷¹ See Mengozzi, ‘Il rapporto tra stati e individui’ as commented above at n 66 above.

⁷² For the critical note see Weatherill, ‘Consumer Protection’, n 3 above.

⁷³ On the need for public scrutiny in relation to the value choice being made at the judicial level in the context of the EU see Von Bogdandy, A, ‘Founding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16 European Law Journal 95, at 103CrossRefGoogle Scholar: ‘a judicial decision which employs the balancing of principles is more intelligible for most citizens than a ‘legal-technical’ reasoning phrased in hermetic language which obscures the valuations of the court. To devise legal controversies as conflicts of principles allows for a politicisation which should be welcomed in light of the principle of democracy, since it promotes the public discourse on judicial decisions’.

⁷⁴ For references see n 4 above.

⁷⁵ Von Bogdandy, ‘Founding Principles’, n 73 above (on balancing as enhancing democracy through promotion of the public discourse on judicial decisions); Rodota, S, ‘Il Codice civile e il processo costituente europeo’ in Roppo, V (ed), A European Civil Code? Perspectives and Problems (Milan, Giuffrè, 2005) 183 Google Scholar, at 193 (in the context of arguments in favour of the role of private law adjudication, arguing that a critique of ‘judicial activism’ would be about abstracting from real-life problems, and it would even be ideological, for it would not consider the real modalities of production of private law norms which are heavily privatised; defending judicial intervention in that respect as being undoubtedly good for democracy).

⁷⁶ I am thinking of the established CJEU practice of deriving fundamental rights from, and respecting, the domestic constitutional realms, which entails a constitutional requirement on the part of the CJEU to follow standards of ‘optimisation’ based on nationally established constitutional values qua fundamental rights: see the decision Solange II of the BVerfG and the related debate on constitutional pluralism: for discussion on constitutional and private law pluralism see Niglia, L (ed), Pluralism and European Private Law (Oxford, Hart Publishing, 2013)Google Scholar.

⁷⁷ On balancing as a practice of hybridization see also the perspective of P Mengozzi, ‘The Judicial Protection of Individual Rights and the Principle of Proportionality after the Lisbon Treaty’ in this Symposium, above at p 339.

⁷⁸ T Tridimas ‘Fundamental Rights’ (in this Symposium).

⁷⁹ In the sense discussed for example in Kumm, M, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 341 Google Scholar.

⁸⁰ I address this problematic of ‘quasi-optimisation’ in the third instalment of this series of essays on the state of European constitutional law. See also Niglia, L, The Struggle for European Private Law: A Critique of Codification (Oxford, Hart Publishing, 2015)Google Scholar.