The Treaties of Rome as travaux préparatoires

Research Project

The use of travaux préparatoires in the interpretation of European Union (EU) law has traditionally been met with suspicion. As is well known, the Court of Justice (CJEU) rejected recourse to the travaux préparatoires in the interpretation of the Treaties early on, both explicitly and implicitly. The CJEU referred to the spirit, the general scheme and the wording of the provisions as permissible aids in the interpretation of the Treaties; references to the drafting history were conspicuously absent. Only a few heretics argued that European law should follow the more conservative approach that has traditionally been used in public international law. There, the use of travaux préparatoires and reference to the intentions of the contracting parties are widely recognized as a permissible aid to treaty interpretation. Both these traditional positions are deeply problematic. The claim that the travaux should not matter in the interpretation of the Treaties at all allows the Court to move beyond and against the wishes of the contracting states and against any conception of the separation of powers in the context of the European Union. Likewise, the contention that an examination of the travaux could lead to a clear understanding of the intentions of the contracting parties which would then simply have to be implemented by the Court appears to be too simplistic. It ignores the fact that states rarely have singular and unambiguous motives and that these preferences have strongly evolved since 1957.

On the occasion of an international conference on the 60th anniversary of the Treaties of Rome, this project attempts to go beyond the two traditional positions on the status of the travaux. Bringing together lawyers and historians in an unprecedented fashion, it will first revisit the largely forgotten history of the negotiation by qualified historians who would aim to produce well-documented historical narratives that, in their entirety, provide a thorough account of the negotiations leading to the Treaties of Rome. Leading EU lawyers will comment on the findings in order to assess whether the history of the Treaties still speaks to us today. In a second step it will ask to which extent, if any, the travaux préparatoires and the legal history surrounding them have any relevance for contemporary European lawyers. It will situate the Treaties of Rome in the longue durée of legal history. Does their full understanding require us to reconsider established doctrines and orthodox positions of EU law, particularly at a moment where the idea of an ‘ever closer union’ is being subjected to unprecedented challenges? In short, should we go back to history in order to shape the future of the Union? This project will be organised around a two-day conference at the Max-Planck-Institute for Legal History and Legal Theory which has recently established its new research field ‘Legal History of the European Union'.