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Taking Private Law Rights Seriously: Of Balancing and the Jurisprudence of the Court of Justice of the European Union

Abstract This chapter reviews conventional understandings of the CJEU private (consumer) law jurisprudence towards overcoming the tendency to read it as if judges were just mechanically applying the relevant legislative texts (textualism). It argues that the CJEU jurisprudence revolves around the employment of balancing modes of reasoning; that it is characterised by an unresolved tension between balancing decisions that optimise rights and balancing decisions that under-optimise rights; and that scholarship should exercise vigilance, with an eye on national constitutional realms, in relation to the judges’ balancing acts towards promoting awareness over the extent of rights’ optimisation, rather than clinging on textualist readings that blind us as to what is really happening in the courtrooms.