Dogma und Dissonanz in der Jurisprudenz des EuGH

In the last 50 years, the European Union has gone through substantial transformations impacting its very nature. It matured in lockstep with the relentless progress of European Legal Integration, promoted and presided over by the powerful Court of Justice of the European Union. Yet, a fundamental legal and political double helix remains at the core of both the Court and the Union. This DNA, having arisen from the primordial soup of the Union's Foundational Period, is constituted by what we call Pescatorian Hermeneutics and Governance Functionalism. Despite the passage of time and transformative changes to the Union, this genetic imprint of the European construct is not mere European pre-history, but rather still expressed today. Of particular importance is the dogmatic persistence of Pescatorian Hermeneutics in the jurisprudence of the CJEU, which, as we argue, is inappropriate to the current circumstance of a much-changed Union, resulting - in tandem with both other inherited constitutional deficits as well as the reality of modern Europe - in threats to its entire architecture. We explore threads of this phenomenon in selected CJEU decisions concerning different areas like citizenship, ritual slaughter and gender equality in insurance matters. Through this analysis, we provide evidence that the style and understanding at the core of the hermeneutic approach which constituted the new legal order (and was thus constituted as the default approach of the CJEU itself) are alive and well even in current decisions. Additionally, throughout the essay, we substantiate our claim that these approaches of the CJEU may be harmful to the Union as a whole by affecting legitimacy, coherence and balance of powers within the Union. We close our contribution by suggesting reformative changes to the Court, which would allow it to fully shed its foundational skin and rectify the temporal dissonance brought about by its insistence on employing Pescatorian Hermeneutics.