Craig, P. and De Burca, G. EU Law 6 ed. 2015.

p. 63

      The Court’s jurisprudence cannot be properly understood without an awareness of its approach to interpretation. This is generally described as purposive or teleological.252 The fact that the documents leading to the making of the original Treaties, known as the travaux préparatoires, were not available for thirty years meant these were not used as a source, and this is reflected in the Court’s case law.253 In the case of secondary legislation, declarations and extracts from the minutes have occasionally

p. 64

been relied on as aids to interpretation before the Court.254 However in most cases it has denied the relevance of this material if it does not appear in the text of the legislation.255

p. 189

      It reasoned partly from the text of the Treaty. It pointed to the Preamble which makes reference to citizens as well as to states, and argued that the preliminary ruling procedure established in what is now Article 267 TFEU envisaged that parties before national courts could plead and rely on points of Community law.17 The ECJ pointed also to the fact that citizens were envisaged as having a role to play under the Treaties through the European Parliament. This textual ‘evidence’ for direct effect is not particularly strong. The ECJ’s argument based on Article 267 TFEU is nonetheless interesting. We do not have the travaux préparatoires and hence we do not know what the Treaty framers intended with this provision. If however individuals could not invoke EU law in national courts through Article 267 then it could only ever be used if the parties to the case were both public bodies, and there is nothing in the wording of Article 267 to indicate any such limitation. The ECJ replayed this same argument when it justified the direct effect of directives.18

  1. "original Treaties" refers to the Treaty of Rome, right?

  2. Why were its travaux préparatoires "not available for thirty years"? The technology exists, right? This looks more about cover-up or secrecy?

  3. Is p. 189 right? Or did the authors forget to update it? Are travaux préparatoires still gagged and unavailable? Of note SCOTUS Justice Souter blocked access to his papers for 50 years.

1 Answer 1


Yes, treaties refers to the Treaties of Rome (i.e. the Treaty on the Functioning of the European Union and the Treaty Establishing the European Atomic Energy Community).

It appears that the extant (and limited) documents referred to were originally treated by the inner six founding nations as any other piece of moderately sensitive information at the time, i.e. to be archived, with limited access on a need to know basis. As open government movements and inter member standardisation took hold, Council Regulation (EEC, Euratom) No 354/83 (in 1983, surprisingly enough) mandated that EU-related documents were to be made available to the general public after 30 years. Subsequent Council regulations formed the Historical Archives of the European Union in Florence to centralise these archives. Such delayed releases of politically sensitive material are not at all unusual, given the privacy concerns and the difficulties of performing complicated negotiations in public.

I can't find any specific information on article 267, so it's possible that it's simply the case that no supporting documents exist any more.

Note that views on the relationship between the Court of Justice, the Treaty text and supporting material differ. These authors appear to argue the Court intended an "originalist" interpretation, dependent on the original authors intent, which was stymied by the lack of material. Others have suggested the "textualist" interpretation was deliberate.

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