A. Introduction to Historical Interpretation

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Historical intepretation is a method of legislative interpretation which takes into account circumstances prior to the enactment of the legislation in question. The historical approach is described by David and Brierley as 'clarifying present texts in the light of previous circumstances and taking into account the legislator's intention'.

B. Application in European Union law

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According to the Art. 19 para. 1 , 3b TEU; the Court of Justice of the European Union "shall ensure that in the interpretation and application of the Treaties the law is observed" and "give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions". Various approaches to statutory interpretation may be applied under European Union Law, including literal, contextual, comparative and teleological methods.

Historical interpretation, in the case of EU law, relies on the historical background, the content of travaux preparatoires or similar materials, which record the legislators' intention and the purpose for which the provision was made. 

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As travaux preparatoires are not published for EU treaties, the European Court of Justice does not apply the historical approach in the interpretation of primary EU law.

In the case of secondary legislation however, it is observed that "the Court can make use of the preparatory documents such as debates in the European Parliament or preparatory discussions in a management or consultative committee".A wide variety of documents may be considered under such an approach including not only proposals and opinions of the Commission, but other documents which have a link to the legislative procedure (eg documents considered by the Parliament, and records of its debates, amendments and reasoning).

C. ECJ's judgments using historical interpretation

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There is some hostility towards the use of historical interpretation within EU law due to the lengthy and complex processes involved in adopting EU legal acts which may see considerable changes in meaning throughout the negotiation period, as well as the potential for anomalies arising from the Court's reliance on any one document in the context of many diverse national legal traditions informing the enactment of EU law.

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Unlike for EU Treaties, Commission proposals and opinions are available to inform a historical interpretation approach for secondary EU law, though the Court has still only rarely applied this method in such cases, for example Markus v Hauptzollamt Hamburg-Jonas where the ECJ relied on an assumption of the authors' intention based on the recitals of the regulation. 

In ECJ case C-68/94 paragraph 167 France v Commission, it appears that the Court attempted to apply historical interpretation to a treaty before finding that the authors' intention was not clearly expressed within the travaux preparatoires. Although not ultimately applied in this case, this shows that historical interpretation remains a potential option for the ECJ despite criticisms of its usefulness.

D. Conclusion

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With a greater shift to transparency and accountability in the creation of European law, it is likely that travaux preparatoires will be more widely available for future EU treaties. In turn, it is foreseeable that the ECJ will rely on such published materials in their consideration of primary EU law and thereby raise the importance of historical interpretation in this field. 

outgoing links

• http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994CJ0068:EN:PDF