EU LEGISLATIVE DRAFTING 1997

7/29/2019 EU LEGISLATIVE DRAFTING 1997

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LEGISLATIVE DRAFTING

A Commission Manual

For internal use only


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PREFACE

The Community sometimes faces fierce criticism for the lack of clarity or the poor quality of

its legislation. Since the Edinburgh European Council in 1992, the need for better law-making - by clearer, simpler acts complying with the basic principles of legislative drafting -has been recognised at the highest political level. If individuals and firms are to be able toascertain their rights and obligations under Community legislation, if the national courts areto be able to ensure that those rights and obligations are respected, and if the Member Statesare, where necessary, to transpose it into their national legal orders properly and in goodtime, Community legislation must be drafted in clear, unambiguous and coherent terms anduniform principles of drafting and layout must be applied. The Council and the Commissionhave both taken steps to meet the aim of better law-making. On 8 June 1993 the Counciladopted a Resolution on the quality of legislative drafting (the ten commandments, annexedto this Manual). On 16 January 1996 the Commission adopted general guidelines for

legislation.

In 1985 the Commission introduced drafting rules for use by the authors of proposals forlegislation and other legal acts. A second edition was issued in 1991 taking account of theSingle European Act and the adoption by the Council of its Comitology Decision in 1987.This new edition adapts the rules to the changes and innovations brought in by the Treaty onEuropean Union in the light of the experience gained from the first years of its application.Account has been taken of suggestions emanating from inside and outside the Commission.

Useful adjuncts to this manual are theInstitutional Vademecum, theManual of OperationalProcedures, the Manual of Precedents drawn up by the Council's lawyer-linguists and thePublications Office Vade-mecum for Editors (Interinstitutional Style Guide).

The Legal Service, which watches over orthodox legislative practice in the Commission, andparticularly its Group of Legal Revisers - which is responsible for checking the drafting oflegislation - are always available to help if you have problems in applying the Rules.

This new edition of the manual applies from 1 January l997.

D. F. Williamson J. L. Dewost

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C O N T E N T S

Page

Preface

I. STRUCTURE OF ACTS

1. INTRODUCTORY

2. TITLE

2.1 Introductory

2.2 Acts whose publication is obligatory

(a) Type of act(b) Official serial number(c) Enacting institution(d) Date(e) Title

2.3 Acts whose publication is not obligatory

(a) Type of act(b) Act not authentic in all languages

2.4 Acts with EEA relevance

3. NAME OF INSTITUTION AND ENACTING FORMULA

4. CITATIONS

4.1 Introductory

4.2 Form

4.3 Reference to the provisions under which the act is adopted4.3.1 Reference to the Treaty4.3.2 Precise reference to legal basis4.3.3 Conclusion of international agreements4.3.4 Reference to successive empowering provisions4.3.5 More than one legal basis4.3.6 Act referring to a future act to be adopted by

the same procedure4.3.7 Legal basis for amendments to an act

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4.4 Proposals, consultations, opinions, agreements, applicationsand requests

5. RECITALS

5.1 Introductory

5.1.1 Recital referring to subsidiarity5.2 Extent of obligation to state reasons

(a) Acts of general application(b) Individual acts(c) Special provisions

5.3 Committee procedures: reference to consultations5.3.1 Consultation of management or regulatory committee5.3.2 Modus vivendi5.3.3 Consultation of Association Council or associated country

5.4 Financial recitals

5.5 Form(a) General(b) Special rule for certain categories of acts of the Commission

6. ENACTING TERMS

6.1 Introductory

6.2 Provisions to be omitted(a) Provisions with no legal import(b) Superfluous provisions(c) Provisions relating to individuals(d) Other types of provision

6.3 Divisions of the enacting terms6.3.1 Introductory6.3.2 Higher divisions: grouping of articles6.3.3 Articles

6.3.4 Subdivisions of articles

6.4 Provisions conferring implementing powers6.4.1 Introductory6.4.2 Conferment of implementing powers on the Council6.4.3 Conferment of different implementing powers

6.5 Amending provisions

6.6 Repeals

6.7 Transitional provisions

iii6.8 Penalty provisions


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6.9 Final provisions6.9.1 Beginning of periods of validity6.9.2 Indication of the end of periods of validity6.9.3 Citation requirement6.9.4 Addressees

6.9.5 No reference to publication or notification7. CLOSING FORMULAS7.1 Statement that an act is binding in its entirety and

directly applicable7.2 Date and signature

8. ANNEXES AND ANNEXED ACTS

8.1 Introductory

8.2 Annexes in the strict sense

8.3 Pre-existing legal instruments annexed

8.4 Annexes to agreements8.4.1 Annexes in the strict sense and non-autonomous legal

instruments annexed8.4.2 Autonomous legal instruments annexed

9. FOOTNOTES

9.1 Introductory

9.2 OJ references

II. AMENDMENT OF ACTS

1. INTRODUCTORY

1.1 Types of amendment1.1.1 Partial amendment

1.1.2 Amendment affecting the whole of an act

1.2 Choice of form of amendment

1.3 Formal parallelism

2. SUBSTANTIVE AMENDMENTS

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3. TEXTUAL AMENDMENTS

3.1 Subject matter of amendment3.1.1 Title and preamble3.1.2 Enacting terms3.1.3 Intermediate amendments

3.2 Structure of the amending act3.2.1 Title3.2.2 Introductory formula3.2.2.1 Single amendment3.2.2.2 Multiple amendments to one act3.2.3 Other cases

4. RECASTING

4.1 Introductory

4.2 Statement of reasons

4.3 Enacting terms4.3.1 Improvements4.3.2 Repeal of the old act: consequences

(a) Need for formal repeal(b) Citations(c) Implementing measures

5. CODIFICATION AND CONSOLIDATION

5.1 Introductory

5.2 Consolidation

5.3 Codification (or official codification)5.3.1 Horizontal codification5.3.2 Vertical codification5.3.3 Form

6. PERIODIC ACTS

6.1 Introductory

6.2 Statement of reasons

6.3 Duration

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7. CORRECTION OF ERRORS

7.1 What form should the correction take?7.1.1 Corrigenda7.1.2 Amending acts

7.2 The correction procedureIII. DRAFTING RULES

1. TERMINOLOGY

1.1 Clarity(a) Consistency(b) Following precedents and improving them(c) Choosing the right term(d) Ordinary meaning; definitions

1.2 Concordance of language versions

2. PRESENTATION

2.1 Sentence structure

2.2 Numerals(a) Dates(b) Numbers(c) Physical quantities, percentages, money

2.3 Abbreviations and acronyms

2.4 Capitalisation(a) Personal names(b) Formal names of Member States(c) Organisations, institutions, international agreements and the like(d) Instruments and provisions thereof(e) Abbreviations and acronyms

3. PROTOCOL

3.1 Order of references to the Communities in titles ofacts of more than one Community

3.2 Order of references to the Treaties establishing the Communities

3.3 Names of States: order of listing

3.3.1 Member States

3.3.2 Member States and third countries; international organisations

vi3.4 Order of references to languages


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(a) multilingual texts(b) monolingual texts

4. REFERENCES

4.1 Introductory

4.2 References in title

4.3 References in citations

4.4 References in recitals

4.5 References in the enacting terms

4.6 References to unpublished acts

4.7 References to subdivisions of the enacting terms4.7.1 Structure4.7.2 Lists of provisions4.7.3 Expressions to be avoided in references

Annex I: Council Resolution on quality of drafting

Annex II: Council Decision 87/373/EEC (comitology)

Annex III: Legislative checklist

Annex IV: Structure of the enacting terms

Index

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I. STRUCTURE OF ACTS

1. INTRODUCTORY

Binding legal acts must be drawn up in solemn form, with a title, the name of theenacting institution or institutions, citations, recitals comprising the statement of

reasons, the enacting terms divided into articles, and finally the place and date ofadoption and the signature or signatures, preceded (in the case of regulations andECSC general decisions) by the formula used in the second paragraph of Article 189 ofthe EC Treaty (see point 7.1). This is the form prescribed by Articles 11 to 14 and 16of the Council's Rules of Procedure1 for acts of the Council and acts adopted by theEuropean Parliament and the Council jointly, and the Commission also uses it for itsown acts.

Solemn form requires the statement of reasons to be drafted more concisely,omitting recitals not material to the enacting terms, and the enacting terms themselvesto be carefully specified. It also serves to make the rights and obligations of all

concerned clearer2

.

The form of nonbinding legal acts (EC and Euratom recommendations, opinions) orpolitical acts (Council resolutions, Commission statements) is not prescribed and canvary according to circumstances. Recommendations and resolutions should, however,

be drawn up in a form modelled on that of binding acts.

The Treaty on European Union (TEU), which was signed at Maastricht on7 February 1992 and came into force on 1 November 1993, amended the ECSC, EECand Euratom Treaties by Articles H, G3 and I respectively. It also made provision for acommon foreign and security policy (CFSP) (Article J) and for cooperation in justiceand home affairs (JHA) (Article K).

However, the TEU did not actually replace the ECSC, EC and Euratom Treaties, whichis why acts adopted under those Treaties must always refer to the "Community" inquestion, not the "Union". This applies both to the recitals and to the enacting terms.

The form of acts adopted by the Council under Titles V and VI of the TEU (CFSP andJHA) is different as regards both the substantive and procedural provisions of theEC Treaty. Those acts include common positions and joint positions (Articles J.2 andK.3(2)(a) of the TEU) and joint actions (Articles J.3 and K.3(2)(b) of the TEU)4. They

generally have no recitals, and the reasons may appear in the body of the text. Butwhere decisions are taken under Article K.3(2)(c), their form is very close to that of aclassicsui generis decision.

1 Decision 93/662/EC, OJ L 304, 10.12.1993, p. 1. Amended by Decision 95/24/EC/Euratom, ECSC,OJ L 31, 10.2.1995, p. 14.

2 On the more general question of the drafting of legal acts, see the Council Resolution of 8 June 1993 on

the quality of drafting of Community legislation: OJ C 166, 17.6.1993, p. 1, reproduced in Annex I.

3 With effect from 1 November 1993, the abbreviation for Community acts based on the EC Treaty isaccordingly EC and not EEC. See footnote 10 for the first EC Regulation.

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4 Cf. Article 17 of the Councils Rules of Procedure (cited in footnote 1).


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2. TITLE

2.1 Introductory

As regards titles, a distinction is to be made between acts whose publication isobligatory and those whose publication is not.

A. Legal acts whose publication is obligatory appear in the Official Journal (OJ), L Series,Part I5, and are given an official number which is an integral part of the title6. They are:EC and Euratom regulations; ECSC general decisions and general recommendations;and directives and decisions referred to in Article 191(1) and (2) of the EC Treaty, thatis directives and decisions adopted under the codecision procedure (Article 189b of theEC Treaty) and directives addressed to all Member States.

Regulations, directives and decisions adopted jointly by the European Parliamentand the Council by the codecision procedure (Article 189b) are published in theOJ, L Series, Part I, by the General Secretariat of the last institution whose President

signed them.

Council and Commission regulations, and directives of those institutions addressed toall Member States, are published in the OJ, L Series, Part I, by the Secretary-General ofthe institution concerned.

B. Other legal acts may be distinguished as follows:

(a) A first group comprises: directives and decisions referred to in Article 191(3) ofthe EC Treaty; Euratom directives and decisions; EC and Euratom sui generisdecisions, recommendations and opinions; and ECSC individual decisions,

individual recommendations and opinions. Directives (EC and Euratom), likeregulations, are given an official serial number which is an integral part ofthe title7. Other legal acts whose publication is not obligatory do not bearan official number forming part of the title but, if they are published, theyare allocated a number by the Publications Office ("publication number").Legal acts whose publication is not obligatory are nonetheless frequently

published in the OJ, L series, Part II, for information8. In some cases, publicationis required by the Treaties (see the last subparagraph of Article 65(2) of theECSC Treaty) or by secondary legislation (see Article 21 of Council Regulation

No 17)9.

5 For footnote references to the OJ, see point 9.2.

6 A blank space should be left for this number, which will be filled in by the Office for Official Publications

of the European Communities, the publisher of the OJ.7 The practice of giving an official serial number to directives at the time of adoption started on

1 January 1992. Before then, directives were given a number only at the time of publication in the OJ. Thenumber is allocated on the day the directive is adopted; the register of directive numbers is kept by theCouncil's General Coordination Department.

8

Other acts that may have to be published in this part of the OJ (budget, rules of procedure) are subject tospecific rules.

2

9 Full title: Council Regulation No 17 of 6 February 1962, First Regulation for the application of Articles 85

and 86 of the Treaty (OJ 13, 21.2.1963, p. 204/62).


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The Commission's practice as regards publication is as follows.

As a rule, all acts are published in the OJ unless there is an important reason not todo so, for instance:

- the act contains secret or confidential material; or

- it is of interest to only one or certain Member States or a limited number ofindividuals.

Consequently, all acts should be published unless the Commissiondecides otherwise.

Where publication is not obligatory, the Council decides unanimously whether itsdirectives which are not addressed to all Member States and its decisions should

be published by its Secretary-General in the OJ, L series, Part II. It also decidesunanimously whether its recommendations should be published (Article 18(5) of

its Rules of Procedure). Publication in these cases is for information purposes.

The Council General Secretariat also arranges for publication in the OJ ofcommon positions adopted by the Council pursuant to the procedures underArticle 189b (codecision) and Article 189c (cooperation) with their explanatorymemoranda (Article 15 of the Council's Rules of Procedure).

(b) Acts whose publication is not obligatory also include those adopted under Titles Vand VI of the TEU, in particular common positions, joint positions and jointactions adopted by the Council. The Council decides unanimously whether theyare to be published (in the L Series of the OJ). If so, they are allocated a

publication number. Conventions drawn up under Article K.3(2) of the TEU arealways published in the OJ (Article 18(3) and (4) of the Council's Rules ofProcedure).

2.2 The title of an act whose publication is obligatory must set out the following:

- the name of the institution or institutions concerned - the Commission,the European Parliament and the Council (after the name of the act) orthe Council;

- the type of act and (in the case of regulations, in parentheses) the abbreviation ofthe Community concerned (ECSC, EC or Euratom);

- the official serial number;

- the date of adoption; and

- a short description of the subject matter.

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Example:

Commission Regulation (EC) No 1663/94 of 7 July 1994 concerning the

classification of certain goods in the Combined Nomenclature

(a) The type of act is identified using the terms in Article 14 of the ECSC Treaty,

Article 189 of the EC Treaty or Article 161 of the Euratom Treaty.(b) (1) The official serial number of regulations10, decisions referred to in

Article 191(1) of the EC Treaty and ECSC general decisions andrecommendations is preceded by the contraction No (not followed by afull stop) and follows the pattern shown in the examples below:

Examples:

Regulation (EC) No 1663/94

Regulation (Euratom) No 1493/93

Regulation (ECSC, EEC, Euratom) No 1826/6911

Decision No 341/94/ECSC12

Recommendation No 73/95/ECSC13

Decision No 1692/96/EC

(2) The official serial number of (EC and Euratom) directives is formeddifferently from the numbers of regulations, the order beingyear/number/abbreviation.

Example:

Commission Directive 95/45/EC

(c) The enacting institution is identified simply by the words Commission,of the European Parliament and the Council or Council.

10 The structure of the official serial number of regulations has been changed twice - on 1 January 1963 andon 1 January 1968. The formats are as follows:before 1 January 1963: Regulation No 17;from the beginning of 1963 to the end of 1967: Regulation No 1043/67/EEC;from 1 January 1968 to 31 October 1993: Regulation (EEC) No 85/68; and

since 1 November 1993: Regulation (EC) No 3031/96.

11 For the order of citation of the Communities, see point 4.3.1, and point III.3.1.12 See point 2.3(a)(1).13 Ibid.

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(d) In dates, the day and the year are indicated in figures, but the month is spelt out.

Example: "19 October 1981" (see point III.2.2(a)).

(e) The title proper should give a precise, complete but succinct indication ofthe subject matter and should not mislead the reader as to the content of the

enacting terms.The indication of subject matter is commonly introduced by a general term such as"concerning" or "on" but where an act fixes or increases amounts or extends or amends

provisions and so forth, the specific verb should be used ("fixing", "increasing","extending", "amending" and so forth). A balance must be struck between twoapparently conflicting interests:

- the need for the title of an act to give readers a clear idea of the content of the act,or at least the area to which it relates;

and

- the need for the title to be as brief as possible so that the possibly frequentreferences that have to be made to it in subsequent acts are not too cumbersome.

Where an act is amending an earlier act, it should as far as possible specifythe purpose of the amendment, using for example the expression "as regards". But itis not desirable to give precise details of the amendment. For example, ratherthan "Regulation ... amending certain provisions of Article N of Regulation ...",it is sufficient to write "Regulation ... amending Regulation ... as regards ...."(see point II. 3.2.1).

2.3 In the case of acts whose publication is not obligatory, the requirements concerning thetitle are the same as outlined above, subject to the following points.

(a) As regards the type of act:

(1) The ECSC Treaty (Articles 14 and 15) uses the same terms "decision" or"recommendation" for acts of general application, which take effect by themere fact of publication in the OJ, and acts of an individual nature, which

become binding upon being notified to the party concerned (Article 15).

To distinguish the latter (which are fewer in number and only some ofwhich are published) from the former, they are described in the title as"individual decision" or "individual recommendation".

(2) In English, Finnish, French, Greek, Italian, Portuguese, Spanish andSwedish, the same name is used for decisions sui generis as for decisions asreferred to in Article 189 of the EC Treaty, Article 161 of the Euratom Treatyand Article 14 of the ECSC Treaty ("decision", ptos, "dcision"," ", "decisione", "deciso", "decisin", beslut). On the otherhand, the Danish, Dutch and German words ("afgrelse", "besluit","Beschluss") differ from those used in Article 189 of the EC Treaty

("beslutning", "beschikking", "Entscheidung").

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(3) Article 17 of the Councils Rules of Procedure requires common positions,joint positions, joint actions and Conventions under Titles V and VI of theTEU to bear one of the following titles, as appropriate:

- Common position defined by the Council on the basis of Article J.2of the Treaty on European Union or Joint position defined by

the Council on the basis of Article K.3 of the Treaty onEuropean Union;

- Joint action adopted by the Council on the basis of Article J.3/K.3 ofthe Treaty on European Union;

- Convention drawn up on the basis of Article K.3 of the Treaty onEuropean Union.

(b) Where an act is not authentic in all the official languages of the Community,this must be indicated by the following, in parentheses below the title:

(Only the [name of language] text is authentic)

Note that whereas the Commission does avail itself of the possibility of adoptingan act which is authentic in only one language (decisions addressed to anindividual Member State or person), the Council never does so.

2.4 Acts with EEA relevance are identified by the following words, in parentheses belowthe title:

(Text with EEA relevance)

The Agreement on the European Economic Area14 requires all future legislation to beextended to the EEA where it covers matters dealt with by the Agreement, that is to saylegislation that amends, replaces or amplifies legislation listed in the annexes to it(or in Protocols 21 or 47) and new legislation in fields governed by the EEA.

The explanatory memorandum submitted to the Council with any proposal by theCommission for a new legislative act will indicate whether the proposed act concernsan EEA matter and should therefore extend to the EEA.

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14 Document SEC(95) 1365 sets out instructions to Commission departments as regards EEA directives; itconsiders the EEA Agreement in some detail.


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3. NAME OF INSTITUTION AND ENACTING FORMULA

The name of the enacting institution and the enacting formula are to be givenas follows:

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN

UNION

15

/THE COUNCIL OF THE EUROPEAN UNION/THE COMMISSIONOF THE EUROPEAN COMMUNITIES16

... HAVE/HAS ADOPTED THIS REGULATION/THIS FINANCIAL

REGULATION/THIS DIRECTIVE/THIS DECISION:

Decisionssui generis use the formula:

HAS DECIDED AS FOLLOWS:

4. CITATIONS

4.1 Introductory

Between the name of the enacting institution and the enacting formula "has adopted ..."or "has decided as follows", depending on the circumstances (see point 3), there appearthe citations and recitals.

As regards the citations, Article 13 of the Council's Rules of Procedure distinguishes:

"(b) a reference to the provisions under which the Regulation is adopted, preceded bythe words 'Having regard to'" and

"(c) a citation containing a reference to proposals submitted and opinions obtained andto consultations held".

When citations are being drafted, care should be taken to ensure that they correspond tothese definitions. If not, the material in question should be included in the recitals, ifindeed it is needed at all.

4.2 Form

Both types of citation (legal bases and prior procedural steps) generally17

begin in thesame way in the English text (with the expression "Having regard to") and in theDanish, Finnish, French, Greek (the expression "" appearing once forall the citations), Italian, Portuguese, Spanish and Swedish versions; Dutch andGerman have different introductory words for each type.

15 See Council Decision of 8 November 1993 on its designation following the entry into force of the TEU

(OJ L 281, 16.11.1993, p. 18).

16 In official documents the Commission retains the use of its official name as determined by theMerger Treaty (OJ 152, 13.7.1967).

17 But see point 4.4(b) and (c).7


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The specific citation in acts adopted under the codecision procedure is:

Acting in accordance with the procedure laid down in Article 189b of the Treaty,

This citation should be accompanied by a footnote listing the preparatory acts of theinstitutions, in particular amendments to Commission proposals, the opinions of

the Commission, the three readings of the European Parliament and the Councilscommon position.

Where a conciliation procedure has yielded a positive result, the specific citation is:

Acting in accordance with the procedure laid down in Article 189b of the Treaty

and having regard to the common position approved by the Conciliation

Committee on ... (cf. footnote 38).

Citations begin with a capital letter and end with a comma.

Citations of a legal basis in secondary legislation are followed by a footnotereference18; the footnote gives the series, number, date and page of the OJ19 in whichthe act was published (e.g. OJ L 158, 8.7.1995, p. 4). Citations of opinions delivered bythe European Parliament20, the Court of Auditors, the Economic and Social Committeeand the Committee of the Regions should also be followed by a footnote reference,the footnote showing the OJ in which the opinion was published (e.g. OJ C 128,9.6.1975, p. 11).

If the opinion has not yet been published, the date on which it was delivered should beshown (e.g. Opinion delivered on 10 April 1992 (not yet published in the OJ)).

4.3 Reference to the provisions under which the act is adopted

4.3.1 Reference to the Treaty

The first citation is a general reference to the Treaty which constitutes the generalbasis for the action that is being taken. The citation is drafted as follows:"Having regard to the Treaty establishing the European Economic Community ..."or "... the European Atomic Energy Community ..." or " ... the European Coal andSteel Community ...". If more than one Treaty is to be referred to, they should be citedin historical order: ECSC, EC, Euratom. For an Act of Accession, a shortened form of

the title is used: e.g. "the Act of Accession of Austria, Finland and Sweden".

18

There is no footnote reference to the OJ for citations of Treaties establishing the Communities, Treatiesamending those Treaties, Acts of Accession etc. (see also point III.4.3.1(a)).19 See point 9.2.20 See point 4.4(c).

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4.3.2 Precise reference to legal basis

Reference must then be made specifically, with the introductory words "and inparticular", to those provisions of a Treaty21 or secondary legislation which constitutein the strict sense the legal basis for the act, that is those empowering theEuropean Parliament and the Council or the Council or the Commission to act

(cf. point 4.3.4).The empowering provisions should be clearly distinguished from provisions whichdetermine the purpose, conditions and substantive aspects of the decisions to be taken.For instance, a regulation establishing a common organisation of an agricultural marketmust cite Article 43 of the EC Treaty, which gives the Council power to act byqualified majority on a proposal from the Commission after consulting theEuropean Parliament, rather than Article 39, which defines the objectives of thecommon agricultural policy, or Article 40, which sets out the principles on which thecommon organisations are to be based.

Similarly, where an act sets out in a series of articles the purpose of future decisionsand indicates in another article the institution empowered to take those decisions, it isthe latter article alone which is to be cited.

Similarly, where an act contains within one article a paragraph on the purpose of themeasures and another giving power to act, it is the latter paragraph only22, rather thanthe entire article, that is cited. For instance, in adopting general rules governing aid forskimmed milk processed into casein, it is Article 11(2) of Regulation (EEC) No 804/68of the Council23 which should be cited.

The general institutional provisions of the EC Treaty (e.g. Articles 148, 155, 189),

which also apply to the act in question, should not be mentioned in the citations24.

If reference to the content of provisions other than the legal basis is needed for a properunderstanding of the enacting terms, or as a check on their lawfulness, this should bemade in the recitals.

4.3.3 Conclusion of international agreements

The procedure for the conclusion of international agreements by the Community isexhaustively covered by the TEU in Article 228 of the EC Treaty. The first provision

to be cited is accordingly that provision of the EC Treaty which confers externalpowers; it should be followed by the relevant provisions of Article 228 of the ECTreaty in order to specify the applicable procedural rules25:

21 Where an act is based on a provision of an Act of Accession, the formula used is: "Having regard to theAct of Accession ..., and in particular Article ... thereof" or " ..., and in particular Article ... ofProtocol No ... thereto."

22 Where a paragraph contains two empowering provisions in subparagraphs, e.g. one for the Council andone for the Commission, the appropriate subparagraph should be cited.

23

OJ L 148, 28.6.1968, p. 13.

24 They are implicitly covered by the general citation referred to at point 4.3.1, followed by the formulaand in particular ....

25 See Note SEC(95) 207 of 6.2.1995.9


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as regardsParliament: consultation (first subparagraph of Article 228(3), except whereArticle 113 is applicable), or assent (second subparagraph of Article 228(3);

as regards the Council: qualified majority (first sentence of Article 228(2), orunanimity (second sentence of Article 228(2)).

Provisions conferring external powers may do so explicitly or implicitly. Articles 109,113, 130m and 238 do so explicitly. In all other cases, citation of a legal basis forinternal powers is essential since the reference to the basis for external powers isincomplete (Article 130r(4) or Article 130y) or implicit. In environmental matters, forexample, the citation will refer to Article 130s(1) or (2) as the case may be (without it

being necessary to cite Article 130r(4)), and for development cooperation Article 130ywill be cited. Implicit external powers are those in areas where the articles conferringinternal powers make no reference to external aspects (e.g. Article 75(1) andArticle 84(2)) or refer to external relations without conferring power to concludeagreements (Articles 126, 127, 128, 129 and 129d); in accordance with the principlesestablished in the case-law of the Court of Justice external powers may nonetheless be

derived in those areas under certain conditions (see the ERTA case26

, Opinion 1/7627

).In such cases the citation will refer to the article or articles governing the matter or,failing that, to Article 235.

Example:

Having regard to the Treaty establishing the European Community, and in

particular Article 238 thereof, in conjunction with the second sentence of

Article 228(2) and the second subparagraph of Article 238(3)

4.3.4 Reference to successive empowering provisions

If the provision forming the legal basis for an act is not a Treaty article but an article ofan act of the institutions, it is necessary to trace back the successive empowering

provisions leading to that provision:

Example:

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992

establishing a common organisation of the markets in cereals(*), as last amendedby Regulation (EC) No 1866/94(**), and in particular Article 13(5) thereof

28,

It may be that by a basic act the Council has reserved the right to exercise all or part ofthe implementing powers itself, by virtue of the exception envisaged in the third indentof Article 145 of the EC Treaty, but in a second-tier act it confers some of those powerson the Commission. In such cases, the citations should be formulated as in thefollowing example from Commission Regulation (EC) No 2658/9529:

26 Case 22/70 Commission v Council [1971] ECR 263. Court judgments and cases are also reported insummary form in the Notices section of the OJ C series.

27

Opinion 1/76 [1977] ECR 741.

28 Here, and in subsequent examples, asterisks represent footnote references to the OJ in which the actscited appear.

29 OJ L 273, 16.11.1995, p. 24.10


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Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the

establishment of the common organisation of the market in oils and fats(*),

Having regard to Council Regulation (EEC) No 2661/84 of 17 July 1984 layingdown general rules on the granting of aid for the production of olive oil and of aid

to olive-oil producer organisations(**), and in particular Article 19 thereof,

Note that specific citation (that is of the relevant article and, if need be, the relevantparagraph, subparagraph and sentence) is made only of the legal basis for the act beingadopted and not to the successive empowering provisions serving to establish that legal

basis. For instance, in the example just given, neither Article 43 of the EC Treaty norArticle 3(6) of Regulation No 136/66/EEC is cited. Citation of those articles might givethe false impression that the act itself had more than one legal basis.

4.3.5 More than one legal basis

Where an act to be adopted has more than one legal basis, they should all be cited.

However, by way of exception two simplified formulas can be used to avoid citing aninordinate number of legal bases.

(a) The first of these formulas (known as citation by correspondence) is suitable forhorizontal regulations (laying down identical rules for a number ofdifferent areas).

In agricultural regulations, for instance, instead of a series of identical provisionsin the regulations covering the various sectors, one single provision is cited withthe addition of the phrase "and to the corresponding provisions of the otherRegulations on the common organisation of markets in agricultural products"30.

The formula can be used either for initial regulations or for amending regulations.

Its use should be restricted to the following cases:

- the simplification must be significant; as a general rule, the formula should

be used only if it allows a saving of at least five citations;

- anyone familiar with the field must be easily able to locate the correspondingprovisions referred to;

11

30 See, for example, Regulation (EC) No 1384/95: OJ L 134, 20.6.1995, p. 14.


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- the acts referred to in the simplified citation must be easily identifiable; ifthis cannot be done by the use of a general formula ("other Regulations onthe common organisation of markets"), they should be cited in shortenedform in a single citation31.

(b) A second formula (citation by reference) is suitable for use in any amending

regulation where the regulation to be amended contains a large number ofcitations. Rather than citing specifically all the provisions on which the regulationto be amended was based, the draftsman refers in general terms to "the provisionscited in the preamble to [the regulation to be amended]".

This simplified form of citation requires the reader to refer to another act in orderto ascertain the actual legal basis32. Again, the formula should be used only inexceptional circumstances where the simplification is considerable (a saving offive citations at least); also, it should not be used in such a way that acts referredto refer in turn to other acts.

(c) Where it would be possible to use either of these two formulas (e.g. in amendinga general provision in a horizontal regulation), preference should be given tothe first.

4.3.6 Act referring to a future act to be adopted by the same procedure

It can happen that an institution on which the Treaty has conferred power to regulate aspecific matter by a provision specifying the procedure to be followed does not exhaustits power the first time it adopts rules on that matter but refers, in respect of a particular

point, to a future act to be adopted on the basis of the same provision. The point shouldnormally have been dealt with in the original act, but this was not done (for political or

technical reasons, say), and the institution has referred to further action to be takenwithin a specified period without laying down criteria restricting its decision-making

power. In such cases the act to be adopted later will rank with the earlier act and theonly legal basis is that on which the earlier act itself was adopted.

Example:

Article 10 of Council Regulation (EC, Euratom) No 2988/9533

(protection of the

Communitys financial interests): "Additional general provisions relating to

checks and inspections on the spot shall be adopted later in accordance with the

procedures laid down in Article 235 of the EC Treaty and Article 203 of theEAEC Treaty".

31 Such as the third citation of Regulation (EEC) No 3665/87, OJ L 351, 16.12.1987, p. 1.32 See, e.g. Regulation (EEC) No 1663/81: OJ L 166, 24.6.1981, p. 9.33 OJ L 312, 23.12.1995, p. 1.

12


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4.3.7 Legal basis for amendments to an act

Where the European Parliament and the Council, or the Council or the Commissionamend, extend or repeal an act, the same empowering provision should be cited asformed the basis for the initial act34. An act based on Article 100a of the EC Treaty can

be amended only by an act which is itself based on Article 100a. Clearly, the act that is

to be amended, extended or repealed is not the legal basis and should not be cited. Itwill be referred to only in the recitals.

Certain acts of the Council adopted on the basis of the Treaties contain a provisionenabling either the Council by a simplified procedure35, or the Commission36 to"revise" or "adapt" certain amounts, lists or technical provisions to take account ofobjective changes in the legal or economic situation or of technical progress. Actsmaking changes of this nature are framed as measures implementing the original act.Their legal basis is consequently the relevant provision of the act that is to be revisedor adapted, and that should be the only provision cited.

Where the act to be changed has more than one legal basis, only the one specific to theprovisions being changed should be cited if it can be individualised.

4.4 Proposals, consultations, opinions, agreements, applications and requests

(a) Acts adopted on the basis of a Commission proposal37 contain, following thecitations specifying the legal basis, a citation reading:

Having regard to the proposal from the Commission,

Where no action by the Commission is envisaged in a provision giving theCouncil power to act (e.g. Article 213 of the EC Treaty), there can be no"proposal" from the Commission in the technical sense of the term. If theCommission does nevertheless submit a draft, the Council act will contain acitation reading:

Having regard to the draft [Regulation/Decision] submitted by

the Commission,

(b) References to mandatory consultations, opinions and assents are mentioned afterthe legal bases (and the reference to the proposal from the Commission, if any)

and before the recitals.

34 An exception is possible where the legal basis itself has been changed in the meantime; for instance,directives based on Article 100 of the EEC Treaty should be amended on the basis of Article 100a of theEC Treaty where the conditions for the application of that Article are met.

35 E.g. Article 53(2) of Council Directive 78/660/EEC (annual accounts of companies): OJ L 222, 14.8.1978,

p. 11.

36 E.g. Article 11(1) of Council Directive 78/631/EEC (pesticides): OJ L 206, 29.7.1978, p. 13.

13

37 Council decisions under for example Article 113(3) or Article 104c(6) of the EC Treaty will cite theCommission recommendation.


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Examples:

With the assent of the Council acting unanimously,

Having regard to the Opinion of the Economic and Social Committee,

Having regard to the Opinion of the Committee of the Regions,

After consulting the Consultative Committee,

Having regard to the opinion of the [name of committee],

(c) Where the European Parliament is to be consulted, the citation is wordedas follows:

Having regard to the opinion of the European Parliament,

Where the Council is to act in cooperation with the European Parliament(Article 189c), the citation is worded as follows:

Acting in accordance with the procedure laid down in Article 189c of the

Treaty, in cooperation with the European Parliament,

Where the codecision procedure applies, the citation is worded as follows:

Acting in accordance with the procedure laid down in Article 189b of

the Treaty38

,

Where the European Parliaments assent is required, the citation is wordedas follows:

Having regard to the assent of the European Parliament,

(d) Where consultation is not mandatory but the Council nevertheless asks theEuropean Parliament, the Economic and Social Committee or the Committee ofthe Regions for an opinion, the Council has agreed that any such opinion also becited in the Council act (using the same wording as for mandatory opinions)unless the Council, acting unanimously, decides otherwise. The same rule should

apply to opinions of the Court of Auditors.

(e) Where a Commission act is to be adopted under one of the procedures set out inCouncil Decision 87/373/EEC of 13 July 1987 laying down the procedures for theexercise of implementing powers conferred on the Commission39, the form ofreference varies depending on whether or not the outcome of the consultation(favourable, unfavourable or neither) produces legal effects.

38 To show that there has been a successful conciliation procedure, the citation will read:

Acting in accordance with the procedure laid down in Article 189b of the Treaty and having regardto the common position approved by the Conciliation Committee on ... (cf. point 4.2).

14

39 OJ L 197, 18.7.1987, p. 33. This is known as the Comitology or Committee Procedures Decision and isreproduced at Annex II.


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If no legal effects ensue, as under Procedure I of Decision 87/373/EEC(advisory committee), compliance with the procedural requirement should bementioned in a citation reading:

After consulting the Advisory Committee on [name of committee],

If, on the other hand, the result of consultation does have legal effects - as underProcedure II (management committee) and Procedure III (regulatory committee)of Decision 87/373/EEC - reference should be made to it in the recitals40.Reference to it in the citations is considered superfluous.

(f) Another case where practice departs from the rule that mandatory consultationshave to be cited is where an Association Council or an associated country has to

be consulted, irrespective of whether the outcome has to be specified. Theconsultation is referred to in the recitals41.

(g) Where an application or request has to be made before the procedure for adopting

an act can be started, it is cited as follows:

Having regard to the application/request ... made on ...,

However, where the application may have legal consequences (e.g. there may bean obligation to act within a prescribed period after the application has beenreceived) but is not actually essential to the procedure being started, it is referredto in a recital.

(h) In the case of citations of proposals, opinions, consultations and the like which arepublished in the OJ, footnote references must be provided. The GeneralSecretariat of the Council will insert the actual footnotes, giving the details of theOJ concerned.

5. RECITALS

5.1 Introductory

EC and Euratom regulations, directives and decisions must state the reasons onwhich they are based (see Article 190 of the EC Treaty and Article 162 of theEuratom Treaty), as must both general and individual ECSC decisions and

recommendations and ECSC opinions (see Article 15 of the ECSC Treaty).

The purpose of this requirement is to give the parties to a dispute the opportunity todefend their interests, to enable the Community judicature to exercise its review

jurisdiction and to allow Member States and any other interested parties to ascertainhow the enacting institution has applied the relevant Treaty42.

These considerations also apply to decisions sui generis, which should therefore alsostate the reasons on which they are based, including decisions which in effect amend

40

The forms to be used are shown at point 5.3.1.

41 The forms to be used are shown at point 5.3.3.

15

42 See judgments of the Court of Justice in Case 24/62 Germany v Commission [1963] ECR 143 and inCase 350/88Delacre v Commission [1990] ECR I-395.


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the Treaties (see, for example, Council Decision 83/516/EEC of 17 October 1983 onthe tasks of the European Social Fund)43. On the other hand, there are binding legalacts such as the budget and rules of procedure which do not customarily contain astatement of reasons.

Ideally, the statement of reasons should set out:

- a succinct statement of the relevant points of fact and of law; and

- the conclusion that the measures set out in the enacting terms should thereforebe adopted.

No more precise indication of the content of a statement of reasons for aCommunity legal act can be given. It is impossible to reduce to a uniform formula thereasoning for general and individual acts covering different fields or adopted indifferent circumstances.

The recitals should state concisely the reasons for the main provisions of the enactingterms of the act. Accordingly:

(a) The recitals should constitute a genuine statement ofreasons: they should not setout the legal bases (the proper place for which is in the citations), nor should theyset out the wording of a provision already cited as a legal basis. Recitals which dono more than state the purpose of the act or reproduce or paraphrase its provisionswithout stating the reasons for them are superfluous or pointless. Recitals whichstate that certain measures need to be taken, without more, should not beincluded.

(b) The statement of reasons should not consist, in whole or in part, merely of areference to the reasons given for another act44.

(c) The recitals must relate to the substantive provisions, and the order in which theyappear should correspond as far as possible to that of the provisions for whichthey give the reasons. (Naturally, there is no need to give individual reasons foreach provision)45. Any recital not serving to give the reasons for the enactingterms should be omitted, except in the following cases:

- with regard to Article 235 of the EC Treaty, where the wording to be used is

as follows: "whereas the Treaty does not provide, for the adoption of[this Decision], powers other than those under Article 235";

- where there may be a choice between different legal bases, for examplebetween Article 43 and Articles 100 or 100a; between Articles 100a and130s; between Articles 28, 43 and 113 of the EC Treaty;

43 OJ L 289, 22.10.1983, p. 38.44 But the Court of Justice has held that reasons for an implementing act may be given by reference to those

given for the basic act (Case 230/78 Eridania v Ministry of Agriculture and Forestry [1979] ECR 2749(paras 15 and 16). In individual acts forming part of a consistent decision-making practice, summary

grounds may suffice, in particular by reference to that practice (Case 73/74 Papiers peints de Belgique vCommission [1975] ECR 1514 (paras 30 and 31).

16

45 Grounds must always be given for repealing an instrument (see point 6.6, p. ..) or deleting a provision(see point II.3.2.3).


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- where a particular legal basis provides for recourse to legal acts without

specifying their nature and it is not clear from the content of the measure tobe taken which of the Community legal acts is appropriate, the reasons whythe particular act has been chosen should be given. If, in a given case, forinstance, it would be possible to legislate by means of a directly applicable

regulation, an explanation should be given of why it is preferable to adoptonly a directive which must be transposed into national law.

5.1.1 Recital referring to subsidiarity

When exercising its legislative powers the Commission has regard to the principle ofsubsidiarity and states how it is doing so in the recitals as well as in the explanatorymemorandum where there is one.

The content of the subsidiarity recital will vary from one case to another, and standardformulations cannot be laid down. But it is important to remember the distinction made

in Article 3b of the EC Treaty between areas where the Community has exclusivepowers and those where powers are shared46.

In areas where the Community has exclusive powers, all that the third paragraph ofArticle 3b requires is compliance with the principle of proportionality. The recital willtherefore contain in particular the following elements:

Whereas, in accordance with the principle of proportionality, it is necessary and

appropriate for the achievement of the basic objective of [specify the general

objective] to lay down rules on [refer to the specific measures governed by the act

in question]; whereas this [name of the act] confines itself to what is necessary in

order to achieve the objectives pursued in accordance with the third paragraph of

Article 3b of the Treaty;

Where the Community does not have exclusive powers, the recital will contain bothreference to subsidiaritystricto sensu and reference to proportionality as set out above.

Example:

Whereas, in accordance with the principles of subsidiarity and proportionality

as set out in Article 3b of the Treaty, the objectives of the proposed action

[specify the objectives] cannot be sufficiently achieved by the Member States[give reasons] and can therefore, by reason of [specify the scale or effects of the

action], be better achieved by the Community; whereas this [name of the act]

confines itself to the minimum required in order to achieve those objectives and

does not go beyond what is necessary for that purpose;

17

46 See the Legislative Checklist (general guidelines for legislative policy) adopted by the Commission on16 January 1996, reproduced at Annex III.


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5.2 The extent of the obligation to state reasons depends on the nature of the act.

(a) Acts of general application

In basic legislative acts, the statement of reasons should seek to expound thegeneral philosophy of the measure rather than give all the reasons for each

specific provision. But specific reasons will be given for a number of individualprovisions either because of their importance or because they are not inherent inthe general philosophy.

In implementing measures, the reasons to be given will necessarily be morespecific, though an effort should always be made to be concise.

However, the reasons given for such measures do not need to recount, much lessto assess, the facts on the basis of which the act is to be adopted. In particular, adetailed statement of reasons (including calculations) for measures such as thosesetting agricultural levies or refunds would be impracticable and it is enough

simply to refer to the criteria and methods used in the calculations47

.

(b) Individual acts

The reasons on which an individual act is based should be stated more precisely,particularly if it is refusing an application.

(c) Special provisions

Particular care needs to be taken with the statement of reasons for certainprovisions such as:

- derogations;

- departures from the general scheme of rules;

- exceptions to a general principle, such as retroactive provisions;

- those liable to be prejudicial to certain interested parties; and

- those which provide for entry into force on the day of publication

(see point 6.9.1(b)(ii)).47 In Case 16/65 Schwarze v Einfuhr- und Vorratsstelle fr Getreide und Futtermittel[1965] ECR 877 the

Court of Justice upheld this kind of statement of reasons for the weekly setting of freeatfrontier cerealprices, which the Commission must adopt rapidly so as not to upset the operation of the common marketorganisation. The Court confirmed that approach in Case 5/67 Beus v Hauptzollamt Mnchen [1968]ECR 83, where it considered the statement of reasons for a regulation determining countervailing chargeson table grapes. Here, the Court made no reference to the time factor. It held:"The extent of the requirement laid down by Article 190 of the Treaty to state the reasons on whichmeasures are based depends on the nature of the measure in question.

It is a question in the present case of a regulation, that is to say, a measure intended to have general

application, the preamble to which may be confined to indicating the general situation which led to its

adoption, on the one hand, and the general objectives which it is intended to achieve on the other.

18

Consequently, it is not possible to require that it should set out the various facts, which are often very

numerous and complex, on the basis of which the regulation was adopted, or a fortiori that it should

provide a more or less complete evaluation of those facts."


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Where power to act is subject to a specified condition, the recitals must duly showthat the condition has been satisfied.

Where an institution is authorised to take certain steps for a specific purpose, oneof the recitals should specify that action is being taken under that authority.

5.3 Committee procedures: reference to consultations

5.3.1 As stated in point 4.4(e), the fact that a management committee (Procedure II) or aregulatory committee (Procedure III)48 has been consulted is referred to not in acitation but in one of the recitals. The forms to be used, depending on circumstances,are set out below.

Management Committee - Procedure II

Consultation of a Management Committee always produces legal effects, which will

vary according to the provisions of the basic act (which follows the wording ofCouncil Decision 87/373/EEC)49. The outcome must, therefore, always be recorded inthe recitals to the implementing act in one of the following forms:

(i) where the measures are in accordance with the Committees opinion:

Whereas the measures provided for in this Regulation are in accordance with

the opinion of the [name] Committee

(ii) where the Committee has failed to deliver an opinion within the period prescribedby its Chairman:

Whereas the [name] Committee has not delivered an opinion within the

time-limit laid down by its Chairman

(iii) where the measures are not in accordance with the Committees opinion(variants (a) and (b)):

Whereas the measures provided for in this Regulation are not in accordance

with the opinion of the [name] Committee; whereas they must therefore,

by virtue ofArticle ... ([paragraph number]) of [basic act], be communicated

to the Council forthwith

50

; [whereas they should nevertheless beapplied without delay ...] (reasons justifying urgency or necessity in the

specific case)51

.

Regulatory Committee - Procedure III

48 Model rules of procedure for this type of committee have been drawn up in the Community languages bythe Commissions Legal Service, from which copies may be obtained.

49 Cf. point 4.4(e) and footnote 39.50 If the Commission chooses to defer application of the measures (Procedure II, variant (a)), or if it is

required to do so (Procedure II, variant (b)), the final article of the enacting terms must specify the date

from which the act is to be applied (within one month at most in Procedure II, variant (a), and within theperiod prescribed in the basic act in Procedure II, variant (b), running from the date of communication tothe Council).

19

51 Procedure II, variant (a), if the Commission chooses not to defer application of the measures.


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Consultation of a Regulatory Committee always produces legal effects, which will varyaccording to the provisions of the basic act. The outcome must, therefore, always berecorded in the recitals to the implementing act in one of the following forms:

(i) where the measures are in accordance with the Committees opinion:

Whereas the measures provided for in this Regulation are in accordance with

the opinion of the [name] Committee

(ii) - where the Committee has not delivered an opinion or the measures are not inaccordance with the Committees opinion, the Commission must submit tothe Council a proposal containing the following recital:

Whereas the [name] Committee has not delivered an opinion within the

time-limit laid down by its Chairman OR Whereas the measures

provided for in this Regulation are not in accordance with the opinion

delivered by the [name] Committee; whereas they must therefore, byvirtue ofArticle ... ([paragraph number]) of [basic act], be adopted bythe Council

- where, on the expiry of the period laid down in the basic act, the Councilhas not acted, the Commission adopts the measures and uses thefollowing recital:

variant (a)

Whereas the [name] Committee did not deliver an opinion within the

time-limit laid down by its Chairman OR Whereas the measures

provided for in this Regulation are not in accordance with the opinion of

the [name] Committee and the Commission therefore submitted to the

Council a proposal relating to these measures; whereas on the expiry of

the period laid down in Article ... ([paragraph number]) of ... [basic act]

the Council had not acted and it is accordingly for the Commission to

adopt these measures

variant (b)

Whereas the [name] Committee did not deliver an opinion within thetime-limit laid down by its Chairman OR Whereas the measures

provided for in this Regulation are not in accordance with the opinion of

the [name] Committee and the Commission therefore submitted to the

Council a proposal relating to these measures; whereas on the expiry of

the period laid down in Article ... ([paragraph number]) of ... [basic act]

the Council had not acted; whereas the Council has not decided by a

simple majority against the measures proposed by the Commission

pursuant to Article ... ([paragraph number]) of [basic act] and it is

accordingly for the Commission to adopt these measures

5.3.2 In order to overcome the difficulties arising in connection with the adoptionof acts by the codecision procedure by reason of comitology problems, on

20


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20 December 1994, the European Parliament, the Council and the Commission agreedon a modus vivendi52 concerning the implementing measures for acts adopted inaccordance with that procedure.

In the course of the legislative procedure, though never of its own motion, theCommission agrees to incorporate the following recital in its proposals where the

European Parliament or the Council or both so wish:Whereas a modus vivendi ... on measures for the implementation of instruments

adopted by the codecision procedure was concluded between the

European Parliament, the Council and the Commission on 20 December 1994;

5.3.3 Where an Association Council or an associated country has been consulted, the formsto be used are as follows:

Whereas the consultations required by Article ... of the [fourth] ACPEEC

Lom Convention have been carried out;

Whereas [name of country] has been consulted, as required by Article ... of

Regulation (EEC) No .... ;

5.4 Financial recitals

On 6 March 1995, following the Commission communication concerning legal basesand maximum amounts of 6 July 199453, the European Parliament, the Council and theCommission agreed on a new joint Declaration on the incorporation of financial

provisions into legislative acts54, amplifying the Joint Declaration of 30 June 198255.

The 1995 Declaration confirms the broad lines of the 1982 Joint Declaration and inparticular the fact that, in order that the full importance of the budget procedure may bepreserved, the fixing of maximum amounts in legislative acts must be avoided, as mustthe entry in the budget of amounts in excess of what can actually be expended.However, the 1995 Declaration does allow the incorporation of financial provisions inthe following circumstances:

52

OJ C 102, 4.4.1996, p. 1.

53 Bull. EC 7/8-94, point 4.1.4.1.54 OJ C 102, 4.4.1996, p. 4.55 OJ C 194, 28.7.1982, p. 1.

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(a) Legislative acts concerning multiannual programmes adopted under thecodecision procedure

These acts are to contain a provision in which the legislative authority lays downthe financial framework for the entire duration of the programme56.This constitutes the principal point of reference for the budgetary authority for the

purposes of the annual budgetary procedure

57

.These acts contain the following recital:

Whereas this [act] establishes a financial framework for the entire duration

of the programme which is to be the principal point of reference, within the

meaning of point 1 of the Declaration of the European Parliament, the

Council and the Commission of 6 March 1995, for the budgetary authority

during the annual budgetary procedure;

(b) Legislative acts concerning multiannual programmes not subject to the

codecision procedure

These acts are not to contain an amount deemed necessary.

Commission proposals will contain no financial provisions for acts other thanthose mentioned at (a)58. If the Council wishes to include a financial reference, itwill be taken as illustrating the will of the legislative authority and will not affectthe powers of the budgetary authority as defined by the Treaty. This provision will

be mentioned in all acts which include such a financial reference59.

Accordingly, these acts contain the following recital:

Whereas a financial reference amount within the meaning of point 2 of the

Declaration of the European Parliament, the Council and the Commission of

6 March 1995 is inserted in this [act] for the entire duration of the

programme, without the powers of the budgetary authority as defined by the

Treaty being affected thereby;

(c) If there has been an agreement with the European Parliament on the financialreference amount under the conciliation procedure provided for by theJoint Declaration of 4 March 1975, it will be treated as a reference amount of the

type covered by point (a).

56 It is worded as follows:The financial framework for the implementation of [the programme] for the period ... shall be .... Annual

appropriations shall be authorised by the budgetary authority within the limit of the financial perspective.57 The budgetary authority and the Commission, when drawing up its preliminary draft budget (PDB),

undertake not to depart from this amount unless new, objective, long-term circumstances arise, for whichexplicit and precise reasons are given.

58 Cf. SEC(95) 2100, 27.11.1995.59

It is worded as follows:

22

The financial reference amount for the implementation of [the programme] for the period ... shall be ....Annual appropriations shall be authorised by the budgetary authority within the limit of the

financial perspective.


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- ECSC State aid decisions based on Commission DecisionsNo 3855/91/ECSC (iron and steel) and No 3632/93/ECSC (coal)62;

- decisions based on Article 83 of the Euratom Treaty.

However, this simplified form is not used for acts which fall within these

categories but require only a simple statement of reasons containing not more thanthree recitals.

6. ENACTING TERMS

6.1 Introductory

(a) The enacting terms are the legislative part of the act, giving effect to thelegislator's intent to regulate a certain matter. They set forth the new rules whichare to be laid down and also include provisions:

- conferring, if necessary, implementing powers on the enacting institutionitself or, in an act of the Council, on the Commission;

- ensuring that the new rules do not conflict with existing rules (amending andrepealing provisions and, where appropriate, transitional provisions);

- specifying the date of entry into force and, where appropriate, the date fromwhich the provisions are to have effect.

(b) The enacting terms must be selfcontained, without having recourse toexplanatory notes or referring to the title or preamble, which serve only to identify

the act and the enacting institution, to attest that the act has been lawfully andregularly adopted, to demonstrate that the measures are appropriate and to providethe public with details of texts referred to in the enacting terms63.

(c) In English, the auxiliary "shall" is used to express mandatory provisions:

Member States shall take the necessary measures....

But the present tense is used to express declaratory provisions:

A committee ... is established.

Article N is amended as follows: ....

Regulation ... is repealed.

This contrasts with French drafting technique, in which the present tense is usedfor both mandatory and declaratory provisions:

Les Etats Membres prennent les mesures ncessaires ....

62 OJ L 362, 31.12.1991, p. 1, and OJ L 329, 30.12.1993, p. 12.

24

63 It is permissible, on the other hand, to make references to scientific or technical methods appended tointernational agreements or published by specialist organisations.


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Il est tabli un comit ....

L'article N est modifi comme suit: ...

Le reglement ... est abrog.

Use of the future tense with "will" is to be avoided.

6.2 Provisions to be omitted

(a) Provisions with no legal import

Binding acts should not contain provisions which have no legislative function,for example those which merely:

- make recommendations;

- announce intentions;

- state facts (except where the power conferred on the enacting institution isprecisely to make a finding of fact);

- provide an explanation or comment on the text;

- state the reasons for the text.

(b) Superfluous provisions

Acts should not contain provisions which merely:

- reproduce or paraphrase binding provisions of a higher status or declare themto be still applicable;

- restate, but do not amend or repeal, existing provisions with the same bindingstatus and legal import.

For example, a provision of the Treaty should not be restated in a regulation nor a

provision of one act in another.

(c) Provisions relating to individuals

Regulatory acts should not include provisions which relate solely to natural orlegal persons specified by name (for example, to appoint them to office).

(d) Other types of provision

Provisions of a definitive nature should not be included in an act of an essentiallytemporary nature.

25

Regulatory provisions and those laying down basic rules should not appear in thesame act as provisions of a completely different nature.


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Acts to be adopted by the Council should not contain provisions which theCommission itself could adopt in exercise of powers conferred upon it.

Basic acts should not contain detailed provisions which could be laid down by animplementing act.

6.3 Divisions of the enacting terms (see also the Table in Annex IV)

6.3.1 Introductory

(a) The "basic unit" of binding acts is the article. The enacting terms of such actsmust be drafted entirely in the form of articles. If the enacting terms are simpleand are not divisible into separate articles, they will be set out in a "Sole Article".

(b) If need be, articles may be grouped in higher subdivisions: "parts", "titles","chapters" and "sections". Each article may be subdivided into numbered and

unnumbered paragraphs, subparagraphs, points, indents and sentences.

(c) In nonbinding acts (opinions, EC and Euratom recommendations, resolutions),the basic unit is not the article but thepoint.

(d) The rules regarding the name, symbol and method of reference for each of thedivisions of the enacting terms are summarized in the Table in Annex IV.

6.3.2 Higher divisions: grouping of articles

(a) Where appropriate, articles are normally grouped in chapters, which may be

subdivided into sections. Chapters may themselves be grouped in titles and titlesin parts.

(b) Articles should not be grouped in chapters, titles or parts unless this is justified bythe diversity of the subject matter, the number of articles or a concern for clarityor ease of consultation.

(c) When an act is divided in this way, care must be taken to ensure that the divisionsembrace all the articles.

(d) Parts are identified by cardinal numbers, either spelled out (Part One,Part Two, etc.) or expressed as roman figures (Part I, Part II, etc.).

Titles, chapters and sections are numbered separately and consecutively within thehigher division to which they belong. They are identified by cardinal numbersexpressed as figures (roman for titles, roman or arabic for chapters, and arabicfor sections).

(e) As a rule, each part, title, chapter or section is given a title.

6.3.3 Articles

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(a) Provisions which are not directly related to each other must not appear in thesame article.


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Even if provisions are directly related to each other, they should not appear inthe same article if they are too numerous. It is better to split the text intoseparate articles.

If it is felt necessary to give titles to articles, they must be coherent with the

legislative tenor of the provisions.(b) Where an act contains more than one article, the articles are numbered

consecutively throughout, even if they are arranged in parts, titles, chapters orsections. Do not restart the numbering in each subdivision with Article 1.

Each article is identified by an arabic numeral (the only exception being that inFrench the first article is identified by the ordinal: "article premier", cited as"article 1er").

In the original version of an act, articles must not be given such numbers as

"2a" or "2b" ("2 bis", "2 ter" in French): this system is used only for numberingarticles which are inserted after the adoption of an act by an amending act64.

6.3.4 Subdivisions of articles

(a) An article may consist of one or more sentences constituting one or moreparagraphs, which may be unnumbered or numbered with arabic numerals. Notethat in French, numbered paragraphs are termed "paragraphe" and unnumbered

paragraphs are termed "alina".

(b) Numbered paragraphs may themselves be subdivided into unnumbered

subparagraphs (in French also "alina").

(c) Paragraphs (whether numbered or unnumbered) and subparagraphs may contain:

- points, which are identified by lowercase letters or by arabic or lowercaseroman numerals in parentheses; or

- indents, which are preceded by a dash.

These subdivisions should not be used unless they make the text clearer or easier

to understand.

Points and indents (unlike paragraphs) are generally preceded by an introductoryphrase (cf. point II.3.2.2), to which reference may be made by words such as"at the beginning of", "the introductory words of" or "the introductory part of".

64 See point II.3.2.3.27


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6.4 Provisions conferring implementing powers

6.4.1 Introductory

Any proposal for an act based on an article of the Treaty must make appropriate

provision for the adoption of any necessary implementing acts

65

.The rule (third indent of Article 145 of the EC Treaty) is for the implementing powersto be conferred on the Commission, possibly subject to the procedures laid down inCouncil Decision 87/373/EEC of 13 July 198766.

(a) When these procedures are applied, the enacting terms should contain a separatearticle setting out the procedure chosen using the description given inDecision 87/373/EEC, in full, with no alterations (other than the time-limits to bedetermined under the relevant procedure), except where recourse is to be had to acommittee set up by an earlier act67.

If the proposal provides for different types of procedure to be followed, dependingon the nature of the measures to be taken, the text of the procedures should bereproduced in separate numbered paragraphs of a single article.

No mention of the committee's tasks should appear in that article.

Model rules of procedure for such a committee are available in the Communitylanguages from the Commission's Legal Service. Those rules apply if a newcommittee is set up or if the rules of an existing committee have to be amended

because it has been given new responsibilities.

(b) Provisions for the adoption of implementing measures must in all cases refer tothe article describing the procedure, as mentioned in (a). The wording to be usedis as follows:

The [exact description of the measures to be taken]68

shall be adopted in

accordance with the procedure laid down in Article N(n).

6.4.2 Conferment of implementing powers on the Council

In exceptional cases, for which a detailed statement of reasons has to be supplied, aproposal may reserve implementing powers to the Council. The proposal must thenspecify the procedural rules to be applied: proposal from the Commission, possible

65 But proposals for Council acts should not provide for the setting-up of committees to assist theCommission in the exercise of its own powers. That is a matter for the Commission itself.

66 See point 4.4(e), and footnote 39; the text is reproduced in Annex II; see also theInstitutional Vade-mecum.

67 In such cases the first paragraph of Procedure I, II or III, as set forth in Decision 87/373/EEC, is transposedas follows: "The Commission shall be assisted by the committee set up by [title of the Council act]" or"The Commission shall be assisted by the [name of committee]". It is still necessary, however, to

reproduce in full the other provisions corresponding to the procedure chosen. For the forms in question,see Annex II.

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68 For example: detailed rules for the implementation of this Regulation, general conditions for thegranting of financial aid or criteria for the selection of projects.


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consultation of the European Parliament or another institution or body and, whereappropriate, adoption by qualified majority (if there is no requirement of a qualifiedmajority, the Council acts by a simple majority of its members, as laid down inArticle 148 of the EC Treaty and Article 118 of the Euratom Treaty, or by the majoritydefined in the first sentence of the fourth paragraph of Article 28 of the ECSC Treaty.)

6.4.3 Conferment of different implementing powersA single provision should not confer two or more different implementing powers onthe Council or the Commission: this could give rise to confusion in the citations ofimplementing measures taken in exercise of the powers. Separate articles, or at leastseparate numbered paragraphs, should be used for this purpose.

6.5 Amending provisions

See Part II.

6.6 Repeals

See Part II for the procedure to be followed where only some of the provisions of anact are to be repealed (deletion).

(a) To repeal an act is to revoke or abrogate it, so that it will cease to havebinding effect.

Where the repeal of existing provisions is required by a new act of the same statusas the earlier act, repeal should be effected by an article in the new act rather than

by a separate act.

(b) For the sake of the clarity and transparency of Community rules, provisions thathave become obsolete or have ceased to have effect should be repealed 69. Thisapplies to acts that have achieved their object or ceased to produce legal effects

by reason of a change in circumstances or in the legal background to the act. Thefollowing should accordingly be repealed:

- measures implementing an act that have become inapplicable either becausethey are incompatible with the original act by virtue of subsequentamendments to it or because the original act has been repealed70;

- an act that has become inapplicable because of the repeal of a parallel act71 orbecause it has become incompatible with that parallel act by virtue ofsubsequent amendments to the latter.

Adequate grounds for the repeal should be given in a recital to the repealing act.

69

SEC(96) 1073, 4.6.1996.

70 Cf. point II.4.3.2(c).

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71 A parallel act is one which, though not in the same family, independently governs the samesubject-matter.


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(c) Repeal should be stated in express and precise terms; the repeal of earlier actsshould not have to be implied from the mere fact that they are inconsistent with anew act.

It is not sufficient to repeal "all earlier provisions": the provisions in questionmust be specified.

(d) Except in amending acts, repealing provisions should be contained in a singlearticle among the final provisions, before the transitional provisions and thosespecifying the date of entry into force.

(e) Where the act to be repealed has been amended, it is sufficient to repeal theoriginal act without referring to all the amending acts. However, the most recentamending act should be mentioned in the recital which states the reasonsfor repeal.

(f) The repealing provision should not be stated to be subject to any transitional

provisions laid down in the repealing act since, by their very nature, thetransitional provisions constitute an exception from the total and final repeal ofthe repealed act.

6.7 Transitional provisions

A distinction should be made between temporary provisions and transitionalprovisions, which have different effects. Temporary provisions are binding for alimited period, irrespective of any parallel legislation, whereas transitional provisionsmerely regulate the changeover from an existing set of rules to a new one.

Transitional provisions should logically be placed after the repealing provisions.

6.8 Penalty provisions

In Community law, as in any system of law, it is necessary first to deter infringementby those on whom it imposes obligations and second to impose due penalties on thosewho do not comply with it.

The Court of Justice has held that where Community legislation does not specificallyprovide any penalty for infringement or refers for that purpose to national laws,

regulations and administrative provisions, Article 5 of the Treaty requires theMember States to take all measures necessary to guarantee the application andeffectiveness of Community law, notably by making penalties effective, proportionateand dissuasive72.

In view of the limitations of reference to national systems of penalties73, theCommission has developed a number of specific penalty measures. First, in theexercise of the powers for the implementation of Council rules, it has established a

72

See in particular Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24.

30

73 For instance the coexistence of various national systems of penalties which are incompatible with thesound operation of the single market, and the possibility that national systems might jeopardize theeffectiveness, proportionality and dissuasiveness of the penalties concerned.


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system of administrative penalties, for example in the context of the commonagricultural policy.

Second, in the context of its general anti-fraud strategy, horizontal rules have been laiddown by Council Regulation (EC, Euratom) No 2988/9574, which includes a list of

penalties of which those most appropriate to the needs of a given sector are to be

specified wherever necessary.Lastly, in its role as guardian of the Treaties, the Commission has decided to includepenalty clauses in its proposals for legislation75. Unless more specific clauses arechosen by the Commission for certain acts, the following standard clauses should beinserted in Commission proposals:

(a) for regulations:

The Member States shall lay down the rules on penalties applicable to

infringements of the provisions of this Regulation and shall take all measures

necessary to ensure that they are implemented. The penalties provided for

must be effective, proportionate and dissuasive. The Member States shallnotify those provisions to the Commission by ... at the latest and shall notify it

without delay of any subsequent amendment affecting them.

(b) for directives:

The Member States shall lay down the rules on penalties applicable to

infringements of the national provisions adopted pursuant to this Directive

and shall take all measures necessary to ensure that they are implemented.

The penalties provided for must be effective, proportionate and dissuasive.

The Member States shall notify those provisions to the Commission by the

date specified in Article ... (time-limit for implementation) at the latest and

shall notify it without delay of any subsequent amendment affecting them.

6.9 Final provisions

The final provisions specify, where necessary, the period for which the act is to applyand those to whom it is addressed.

6.9.1 Beginning of periods of validity

(a) Introductory

In the absence of express indications to the contrary, a period begins at00.00 hours on the date indicated76. Some of the expressions used to indicate the

beginning of a period are:

from ... (to ...)77

74 OJ L 312, 23.12.1995, p. 1.75 COM(95) 162 final, 3.5.1995.76

See Article 4(2) of Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rulesapplicable to periods, dates and time-limits (OJ L 124, 8.6.1971, p. 1).

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77 The words "beginning on ..." or "from ..." should be used only in expressions such as "for a period of...[days/weeks/months] beginning on/from ...".


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with effect from ...

to take effect on ...

to have effect from ...

to enter into force on ...

N.B. The word "after ..." should not normally be used because it may cause confusion.If it is used, the date which follows should be the date preceding that on which the

period begins. The expression "after 31 December 1988" means on or with effect from1 January 1989.

(b) Entry into force

In accordance with the relevant ECSC rules78, Article 191 of the EC Treaty and

Article 163 of the Euratom Treaty, the following acts enter into force on the datespecified in them or, in the absence thereof, on the twentieth day following that oftheir publication:

(1) ECSC general decisions and recommendations;

(2) regulations;

(3) directives and decisions adopted by the codecision procedure laid down byArticle 189b of the EC Treaty;

(4) EC directives addressed to all Member States.

In principle, legislation must give those concerned sufficient time to adapt to it.That is why those Treaty rules lay down the principle that acts enter into force onthe twentieth day after their publication. But a different date may be set in the actitself. The date of entry into force is normally stated in the final article. In ECSCgeneral recommendations and acts referred to in points (3) and (4), the articledetermining the date of entry into force precedes the article specifying theaddressees. A distinction should be made between entry into force andapplication, since these do not necessarily coincide. The date of application may

be set before or after that of entry into force (as regards retroactive or deferredapplication of regulations, see points (iv) and (v); as regards implementation ofdirectives, see point (d).

(i) Date of entry into force

The date of entry into force must be set on a specific date or a datedetermined by reference to the date of publication. It must not be in the past.As far as possible it should not be determined by reference to a date to be set

by another act.

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78 Article 6 of High Authority Decision No 22-60 of 7 September 1960 on the implementation of Article 15of the [ECSC] Treaty: OJ 61, 29.9.1960, p. 1248/60.


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The entry into force of an act which forms the legal basis for another actcannot be made conditional on the entry into force of that other act. No actmay enter into force before the date set for the entry into force of the act onwhich it is based.

The entry into force of an act cannot be made conditional on the fulfilment ofa condition or the expiry of a deadline of which the general public cannothave knowledge. It may be provided, however, that an express provision willfix the date of entry into force.

(ii) Guidelines for determining the date of e

Documents

EU LEGISLATIVE DRAFTING 1997