Travaux to the Treaties: Treasures or trivia?

Miettinen, Samuli and Kettunen, Merita (2015) Travaux to the Treaties: Treasures or trivia? [Conference Proceedings] (Submitted)

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Abstract

Introduction: For most of the current era of European integration, the Court of Justice has not admitted preparatory work as evidence of the frames’ intent when interpreting Treaties. Even the teleology of ‘ever closer union’, as radical as its application has been, is firmly rooted in the text of the Treaties. Literature suggests this was linked to the secrecy surrounding early negotiations, and poor public access to the documents. Some at the Court have considered that these concerns are no longer relevant to the preparatory work to more recent Treaties. In several recent cases, the Court has reversed its initial opposition to relying on preparatory works to the Treaties. In these judgments, the travaux préparatoires have not offered merely superfluous additional arguments. We examine the extent to which the Court and the Advocates General have relied preparatory work to interpret the Treaties and determine the ‘intent’ of their framers. The references, whilst introducing a new source for legal interpretation, do not result in dynamic constitution-building. Rather, they reinforce static interpretations of existing provisions. Nevertheless, the possibility that this doctrine will develop into a more dynamic one calls for further research on their proper role in the interpretative process. If preparatory works should now routinely be accepted, on which precedents should the Court’s rules be modeled?

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