Argumentative patterns in the European Union’s directives. An effective tool to foster compliance by the Member States

This paper provides an account of the arguments advanced by the EU legislator in the preamble of directives adopted for harmonization in the internal market, and assesses them as to their potential at convincing the Member States to implement the directive at issue. We show what directives should argue for and how they do so in practice, by focussing in particular on Directive 2011/83/EU on consumer rights. Furthermore, this contribution moves beyond a purely academic discussion by linking the theoreticalnormative framework advanced to the CJEU’s approach to assessing the preambles of EU directives in the context of the ‘check’ on the duty to state reasons under Article 296 TFEU. Our analysis unveils a legislative practice in which the obligation to give reasons is not discharged adequately from an argumentative perspective, and which remains generally unsanctioned due to the rather light and flexible test used by CJEU under Article 296 TFEU.