Seitenhistorie

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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).

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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.

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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

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