LEGISLATIVE DRAFTING

A Commission Manual

For internal use only

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 lawmaking - 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 to ascertain their rights and obligations under Community legislation, if the national courts are to be able to ensure that those rights and obligations are respected, and if the Member States are, where necessary, to transpose it into their national legal orders properly and in good time, Community legislation must be drafted in clear, unambiguous and coherent terms and uniform principles of drafting and layout must be applied. The Council and the Commission have both taken steps to meet the aim of better law-making. On 8 June 1993 the Council adopted a Resolution on the quality of legislative drafting (the ten commandments, annexed to 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 for legislation and other legal acts. A second edition was issued in 1991 taking account of the Single 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 on European 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 the Institutional Vademecum, the Manual of Operational Procedures, the Manual of Precedents drawn up by the Council's lawyer-linguists and the Publications Office Vade-mecum for Editors (Interinstitutional Style Guide). The Legal Service, which watches over orthodox legislative practice in the Commission, and particularly its Group of Legal Revisers - which is responsible for checking the drafting of legislation - 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

CONTENTS Page Preface I. 1. 2. 2.1 2.2 STRUCTURE OF ACTS INTRODUCTORY TITLE Introductory 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 3. 4. 4.1 4.2 Acts with EEA relevance NAME OF INSTITUTION AND ENACTING FORMULA CITATIONS Introductory Form

4.3 Reference to the provisions under which the act is adopted 4.3.1 Reference to the Treaty 4.3.2 Precise reference to legal basis 4.3.3 Conclusion of international agreements 4.3.4 Reference to successive empowering provisions 4.3.5 More than one legal basis 4.3.6 Act referring to a future act to be adopted by the same procedure 4.3.7 Legal basis for amendments to an act

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4.4 5.

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

5.1 Introductory 5.1.1 Recital referring to subsidiarity 5.2 Extent of obligation to state reasons (a) Acts of general application (b) Individual acts (c) Special provisions

5.3 Committee procedures: reference to consultations 5.3.1 Consultation of management or regulatory committee 5.3.2 Modus vivendi 5.3.3 Consultation of Association Council or associated country 5.4 5.5 Financial recitals Form (a) General (b) Special rule for certain categories of acts of the Commission ENACTING TERMS Introductory Provisions to be omitted (a) Provisions with no legal import (b) Superfluous provisions (c) Provisions relating to individuals (d) Other types of provision

6. 6.1 6.2

6.3 Divisions of the enacting terms 6.3.1 Introductory 6.3.2 Higher divisions: grouping of articles 6.3.3 Articles 6.3.4 Subdivisions of articles 6.4 Provisions conferring implementing powers 6.4.1 Introductory 6.4.2 Conferment of implementing powers on the Council 6.4.3 Conferment of different implementing powers 6.5 6.6 6.7 6.8 Amending provisions Repeals Transitional provisions Penalty provisions
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6.9 6.9.1 6.9.2 6.9.3 6.9.4 6.9.5 7. 7.1 7.2 8. 8.1 8.2 8.3

Final provisions Beginning of periods of validity Indication of the end of periods of validity Citation requirement Addressees No reference to publication or notification CLOSING FORMULAS Statement that an act is binding in its entirety and directly applicable Date and signature ANNEXES AND ANNEXED ACTS Introductory Annexes in the strict sense Pre-existing legal instruments annexed

8.4 Annexes to agreements 8.4.1 Annexes in the strict sense and non-autonomous legal instruments annexed 8.4.2 Autonomous legal instruments annexed 9. 9.1 9.2 II. 1. FOOTNOTES Introductory OJ references AMENDMENT OF ACTS INTRODUCTORY

1.1 Types of amendment 1.1.1 Partial amendment 1.1.2 Amendment affecting the whole of an act 1.2 1.3 2. Choice of form of amendment Formal parallelism SUBSTANTIVE AMENDMENTS

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3.

TEXTUAL AMENDMENTS

3.1 Subject matter of amendment 3.1.1 Title and preamble 3.1.2 Enacting terms 3.1.3 Intermediate amendments 3.2 Structure of the amending act 3.2.1 Title 3.2.2 Introductory formula 3.2.2.1 Single amendment 3.2.2.2 Multiple amendments to one act 3.2.3 Other cases 4. 4.1 4.2 4.3 4.3.1 4.3.2 RECASTING Introductory Statement of reasons Enacting terms Improvements Repeal of the old act: consequences (a) Need for formal repeal (b) Citations (c) Implementing measures CODIFICATION AND CONSOLIDATION Introductory Consolidation

5. 5.1 5.2

5.3 Codification (or official codification) 5.3.1 Horizontal codification 5.3.2 Vertical codification 5.3.3 Form 6. 6.1 6.2 6.3 PERIODIC ACTS Introductory Statement of reasons Duration

7. 7.1 7.1.1 7.1.2 7.2 III. 1. 1.1

CORRECTION OF ERRORS What form should the correction take? Corrigenda Amending acts The correction procedure DRAFTING RULES TERMINOLOGY Clarity (a) Consistency (b) Following precedents and improving them (c) Choosing the right term (d) Ordinary meaning; definitions Concordance of language versions PRESENTATION Sentence structure Numerals (a) Dates (b) Numbers (c) Physical quantities, percentages, money Abbreviations and acronyms 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 PROTOCOL Order of references to the Communities in titles of acts of more than one Community Order of references to the Treaties establishing the Communities Names of States: order of listing

1.2 2. 2.1 2.2

2.3 2.4

3. 3.1 3.2 3.3

3.3.1 Member States 3.3.2 Member States and third countries; international organisations 3.4 Order of references to languages
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(a) multilingual texts (b) monolingual texts 4. 4.1 4.2 4.3 4.4 4.5 4.6 REFERENCES Introductory References in title References in citations References in recitals References in the enacting terms References to unpublished acts

4.7 References to subdivisions of the enacting terms 4.7.1 Structure 4.7.2 Lists of provisions 4.7.3 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 the enacting institution or institutions, citations, recitals comprising the statement of reasons, the enacting terms divided into articles, and finally the place and date of adoption and the signature or signatures, preceded (in the case of regulations and ECSC general decisions) by the formula used in the second paragraph of Article 189 of the EC Treaty (see point 7.1). This is the form prescribed by Articles 11 to 14 and 16 of the Council's Rules of Procedure1 for acts of the Council and acts adopted by the European Parliament and the Council jointly, and the Commission also uses it for its own 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 themselves to 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) or political acts (Council resolutions, Commission statements) is not prescribed and can vary 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 on 7 February 1992 and came into force on 1 November 1993, amended the ECSC, EEC and Euratom Treaties by Articles H, G3 and I respectively. It also made provision for a common foreign and security policy (CFSP) (Article J) and for cooperation in justice and home affairs (JHA) (Article K). However, the TEU did not actually replace the ECSC, EC and Euratom Treaties, which is why acts adopted under those Treaties must always refer to the "Community" in question, 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 and JHA) is different as regards both the substantive and procedural provisions of the EC Treaty. Those acts include common positions and joint positions (Articles J.2 and K.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. But where decisions are taken under Article K.3(2)(c), their form is very close to that of a classic sui generis decision.

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. 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. With effect from 1 November 1993, the abbreviation for Community acts based on the EC Treaty is accordingly EC and not EEC. See footnote 10 for the first EC Regulation. Cf. Article 17 of the Councils Rules of Procedure (cited in footnote 1).

2. 2.1

TITLE Introductory As regards titles, a distinction is to be made between acts whose publication is obligatory 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, that is directives and decisions adopted under the codecision procedure (Article 189b of the EC Treaty) and directives addressed to all Member States. Regulations, directives and decisions adopted jointly by the European Parliament and the Council by the codecision procedure (Article 189b) are published in the OJ, 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 to all Member States, are published in the OJ, L Series, Part I, by the Secretary-General of the 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) of the EC Treaty; Euratom directives and decisions; EC and Euratom sui generis decisions, recommendations and opinions; and ECSC individual decisions, individual recommendations and opinions. Directives (EC and Euratom), like regulations, are given an official serial number which is an integral part of the title7. Other legal acts whose publication is not obligatory do not bear an official number forming part of the title but, if they are published, they are 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, publication is required by the Treaties (see the last subparagraph of Article 65(2) of the ECSC Treaty) or by secondary legislation (see Article 21 of Council Regulation No 17)9.

5 6

For footnote references to the OJ, see point 9.2. 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. 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. The number is allocated on the day the directive is adopted; the register of directive numbers is kept by the Council's General Coordination Department. Other acts that may have to be published in this part of the OJ (budget, rules of procedure) are subject to specific rules. 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).

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 to do 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 of individuals. acts should be published unless the Commission

Consequently, all decides otherwise.

Where publication is not obligatory, the Council decides unanimously whether its directives 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 decides unanimously 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 of common positions adopted by the Council pursuant to the procedures under Article 189b (codecision) and Article 189c (cooperation) with their explanatory memoranda (Article 15 of the Council's Rules of Procedure). (b) Acts whose publication is not obligatory also include those adopted under Titles V and VI of the TEU, in particular common positions, joint positions and joint actions adopted by the Council. The Council decides unanimously whether they are 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 are always published in the OJ (Article 18(3) and (4) of the Council's Rules of Procedure). 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) or the Council; the type of act and (in the case of regulations, in parentheses) the abbreviation of the Community concerned (ECSC, EC or Euratom); the official serial number; the date of adoption; and a short description of the subject matter.

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 and recommendations is preceded by the contraction No (not followed by a full 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 formed differently from the numbers of regulations, the order being year/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

11 12 13

The structure of the official serial number of regulations has been changed twice - on 1 January 1963 and on 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. For the order of citation of the Communities, see point 4.3.1, and point III.3.1. See point 2.3(a)(1). Ibid.

(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 of the 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 two apparently 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 frequent references 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 specify the purpose of the amendment, using for example the expression "as regards". But it is not desirable to give precise details of the amendment. For example, rather than "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 the title 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 the mere 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 of which 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 and Swedish, the same name is used for decisions sui generis as for decisions as referred to in Article 189 of the EC Treaty, Article 161 of the Euratom Treaty and Article 14 of the ECSC Treaty ("decision", ptos, "dcision", " ", "decisione", "deciso", "decisin", beslut). On the other hand, 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 the TEU to bear one of the following titles, as appropriate: Common position defined by the Council on the basis of Article J.2 of the Treaty on European Union or Joint position defined by the Council on the basis of Article K.3 of the Treaty on European Union; Joint action adopted by the Council on the basis of Article J.3/K.3 of the Treaty on European Union; Convention drawn up on the basis of Article K.3 of the Treaty on European 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 adopting an act which is authentic in only one language (decisions addressed to an individual Member State or person), the Council never does so. 2.4 Acts with EEA relevance are identified by the following words, in parentheses below the title: (Text with EEA relevance) The Agreement on the European Economic Area14 requires all future legislation to be extended to the EEA where it covers matters dealt with by the Agreement, that is to say legislation 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 the Commission for a new legislative act will indicate whether the proposed act concerns an EEA matter and should therefore extend to the EEA.

14

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

3.

NAME OF INSTITUTION AND ENACTING FORMULA The name of the enacting institution and the enacting formula are to be given as follows: THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION15/THE COUNCIL OF THE EUROPEAN UNION/THE COMMISSION OF THE EUROPEAN COMMUNITIES16 ... HAVE/HAS ADOPTED THIS REGULATION/THIS REGULATION/THIS DIRECTIVE/THIS DECISION: Decisions sui generis use the formula: HAS DECIDED AS FOLLOWS: FINANCIAL

4. 4.1

CITATIONS 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 appear the 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 by the words 'Having regard to'" and "(c) a citation containing a reference to proposals submitted and opinions obtained and to consultations held". When citations are being drafted, care should be taken to ensure that they correspond to these definitions. If not, the material in question should be included in the recitals, if indeed it is needed at all.

4.2

Form Both types of citation (legal bases and prior procedural steps) generally17 begin in the same way in the English text (with the expression "Having regard to") and in the Danish, Finnish, French, Greek (the expression " " appearing once for all the citations), Italian, Portuguese, Spanish and Swedish versions; Dutch and German have different introductory words for each type.

15

16

17

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). In official documents the Commission retains the use of its official name as determined by the Merger Treaty (OJ 152, 13.7.1967). But see point 4.4(b) and (c).

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 the institutions, in particular amendments to Commission proposals, the opinions of the Commission, the three readings of the European Parliament and the Councils common 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 footnote reference18; the footnote gives the series, number, date and page of the OJ19 in which the act was published (e.g. OJ L 158, 8.7.1995, p. 4). Citations of opinions delivered by the European Parliament20, the Court of Auditors, the Economic and Social Committee and 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 be shown (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 general basis 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 and Steel Community ...". If more than one Treaty is to be referred to, they should be cited in 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

19 20

There is no footnote reference to the OJ for citations of Treaties establishing the Communities, Treaties amending those Treaties, Acts of Accession etc. (see also point III.4.3.1(a)). See point 9.2. See point 4.4(c).

4.3.2 Precise reference to legal basis Reference must then be made specifically, with the introductory words "and in particular", to those provisions of a Treaty21 or secondary legislation which constitute in the strict sense the legal basis for the act, that is those empowering the European 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 which determine the purpose, conditions and substantive aspects of the decisions to be taken. For instance, a regulation establishing a common organisation of an agricultural market must cite Article 43 of the EC Treaty, which gives the Council power to act by qualified majority on a proposal from the Commission after consulting the European Parliament, rather than Article 39, which defines the objectives of the common agricultural policy, or Article 40, which sets out the principles on which the common organisations are to be based. Similarly, where an act sets out in a series of articles the purpose of future decisions and indicates in another article the institution empowered to take those decisions, it is the latter article alone which is to be cited. Similarly, where an act contains within one article a paragraph on the purpose of the measures and another giving power to act, it is the latter paragraph only22, rather than the entire article, that is cited. For instance, in adopting general rules governing aid for skimmed milk processed into casein, it is Article 11(2) of Regulation (EEC) No 804/68 of 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 proper understanding of the enacting terms, or as a check on their lawfulness, this should be made in the recitals. 4.3.3 Conclusion of international agreements The procedure for the conclusion of international agreements by the Community is exhaustively 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 external powers; it should be followed by the relevant provisions of Article 228 of the EC Treaty in order to specify the applicable procedural rules25:

21

22

23 24

25

Where an act is based on a provision of an Act of Accession, the formula used is: "Having regard to the Act of Accession ..., and in particular Article ... thereof" or " ..., and in particular Article ... of Protocol No ... thereto." Where a paragraph contains two empowering provisions in subparagraphs, e.g. one for the Council and one for the Commission, the appropriate subparagraph should be cited. OJ L 148, 28.6.1968, p. 13. They are implicitly covered by the general citation referred to at point 4.3.1, followed by the formula and in particular .... See Note SEC(95) 207 of 6.2.1995.

as regards Parliament: consultation (first subparagraph of Article 228(3), except where Article 113 is applicable), or assent (second subparagraph of Article 228(3); as regards the Council: qualified majority (first sentence of Article 228(2), or unanimity (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 for internal powers is essential since the reference to the basis for external powers is incomplete (Article 130r(4) or Article 130y) or implicit. In environmental matters, for example, 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 130y will be cited. Implicit external powers are those in areas where the articles conferring internal powers make no reference to external aspects (e.g. Article 75(1) and Article 84(2)) or refer to external relations without conferring power to conclude agreements (Articles 126, 127, 128, 129 and 129d); in accordance with the principles established 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 of an 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 amended by Regulation (EC) No 1866/94(**), and in particular Article 13(5) thereof28, It may be that by a basic act the Council has reserved the right to exercise all or part of the implementing powers itself, by virtue of the exception envisaged in the third indent of Article 145 of the EC Treaty, but in a second-tier act it confers some of those powers on the Commission. In such cases, the citations should be formulated as in the following example from Commission Regulation (EC) No 2658/9529:
26

27 28

29

Case 22/70 Commission v Council [1971] ECR 263. Court judgments and cases are also reported in summary form in the Notices section of the OJ C series. Opinion 1/76 [1977] ECR 741. Here, and in subsequent examples, asterisks represent footnote references to the OJ in which the acts cited appear. OJ L 273, 16.11.1995, p. 24.

10

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 laying down 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 relevant paragraph, subparagraph and sentence) is made only of the legal basis for the act being adopted 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 nor Article 3(6) of Regulation No 136/66/EEC is cited. Citation of those articles might give the 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 an inordinate number of legal bases. (a) The first of these formulas (known as citation by correspondence) is suitable for horizontal regulations (laying down identical rules for a number of different areas). In agricultural regulations, for instance, instead of a series of identical provisions in the regulations covering the various sectors, one single provision is cited with the addition of the phrase "and to the corresponding provisions of the other Regulations 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 corresponding provisions referred to;

30

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

11

the acts referred to in the simplified citation must be easily identifiable; if this cannot be done by the use of a general formula ("other Regulations on the common organisation of markets"), they should be cited in shortened form 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 of citations. Rather than citing specifically all the provisions on which the regulation to be amended was based, the draftsman refers in general terms to "the provisions cited in the preamble to [the regulation to be amended]". This simplified form of citation requires the reader to refer to another act in order to ascertain the actual legal basis32. Again, the formula should be used only in exceptional circumstances where the simplification is considerable (a saving of five citations at least); also, it should not be used in such a way that acts referred to refer in turn to other acts. (c) Where it would be possible to use either of these two formulas (e.g. in amending a general provision in a horizontal regulation), preference should be given to the 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 a specific matter by a provision specifying the procedure to be followed does not exhaust its 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 should normally 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 taken within 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 the only 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 the EAEC Treaty".

31 32 33

Such as the third citation of Regulation (EEC) No 3665/87, OJ L 351, 16.12.1987, p. 1. See, e.g. Regulation (EEC) No 1663/81: OJ L 166, 24.6.1981, p. 9. OJ L 312, 23.12.1995, p. 1.

12

4.3.7 Legal basis for amendments to an act Where the European Parliament and the Council, or the Council or the Commission amend, extend or repeal an act, the same empowering provision should be cited as formed 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. It will be referred to only in the recitals. Certain acts of the Council adopted on the basis of the Treaties contain a provision enabling either the Council by a simplified procedure35, or the Commission36 to "revise" or "adapt" certain amounts, lists or technical provisions to take account of objective changes in the legal or economic situation or of technical progress. Acts making 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 revised or 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 the provisions 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 the citations 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 the Council 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 the Commission does nevertheless submit a draft, the Council act will contain a citation reading: Having regard the Commission, to the draft [Regulation/Decision] submitted by

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

34

35

36 37

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 the EC Treaty where the conditions for the application of that Article are met. E.g. Article 53(2) of Council Directive 78/660/EEC (annual accounts of companies): OJ L 222, 14.8.1978, p. 11. E.g. Article 11(1) of Council Directive 78/631/EEC (pesticides): OJ L 206, 29.7.1978, p. 13. Council decisions under for example Article 113(3) or Article 104c(6) of the EC Treaty will cite the Commission recommendation.

13

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 worded as 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 worded as follows: Having regard to the assent of the European Parliament, (d) Where consultation is not mandatory but the Council nevertheless asks the European Parliament, the Economic and Social Committee or the Committee of the Regions for an opinion, the Council has agreed that any such opinion also be cited 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 in Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission39, the form of reference varies depending on whether or not the outcome of the consultation (favourable, unfavourable or neither) produces legal effects.

38

39

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 regard to the common position approved by the Conciliation Committee on ... (cf. point 4.2). OJ L 197, 18.7.1987, p. 33. This is known as the Comitology or Committee Procedures Decision and is reproduced at Annex II.

14

If no legal effects ensue, as under Procedure I of Decision 87/373/EEC (advisory committee), compliance with the procedural requirement should be mentioned 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 under Procedure 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 consultations have 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. The consultation 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 be an obligation to act within a prescribed period after the application has been received) but is not actually essential to the procedure being started, it is referred to in a recital. (h) In the case of citations of proposals, opinions, consultations and the like which are published in the OJ, footnote references must be provided. The General Secretariat of the Council will insert the actual footnotes, giving the details of the OJ concerned. 5. 5.1 RECITALS Introductory EC and Euratom regulations, directives and decisions must state the reasons on which they are based (see Article 190 of the EC Treaty and Article 162 of the Euratom 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 to defend their interests, to enable the Community judicature to exercise its review jurisdiction and to allow Member States and any other interested parties to ascertain how the enacting institution has applied the relevant Treaty42. These considerations also apply to decisions sui generis, which should therefore also state the reasons on which they are based, including decisions which in effect amend
40 41 42

The forms to be used are shown at point 5.3.1. The forms to be used are shown at point 5.3.3. See judgments of the Court of Justice in Case 24/62 Germany v Commission [1963] ECR 143 and in Case 350/88 Delacre v Commission [1990] ECR I-395.

15

the Treaties (see, for example, Council Decision 83/516/EEC of 17 October 1983 on the tasks of the European Social Fund)43. On the other hand, there are binding legal acts such as the budget and rules of procedure which do not customarily contain a statement 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 therefore be adopted.

No more precise indication of the content of a statement of reasons for a Community legal act can be given. It is impossible to reduce to a uniform formula the reasoning for general and individual acts covering different fields or adopted in different circumstances. The recitals should state concisely the reasons for the main provisions of the enacting terms of the act. Accordingly: (a) The recitals should constitute a genuine statement of reasons: they should not set out the legal bases (the proper place for which is in the citations), nor should they set out the wording of a provision already cited as a legal basis. Recitals which do no more than state the purpose of the act or reproduce or paraphrase its provisions without stating the reasons for them are superfluous or pointless. Recitals which state that certain measures need to be taken, without more, should not be included.

(b) The statement of reasons should not consist, in whole or in part, merely of a reference to the reasons given for another act44. (c) The recitals must relate to the substantive provisions, and the order in which they appear should correspond as far as possible to that of the provisions for which they give the reasons. (Naturally, there is no need to give individual reasons for each provision)45. Any recital not serving to give the reasons for the enacting terms 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 example between Article 43 and Articles 100 or 100a; between Articles 100a and 130s; between Articles 28, 43 and 113 of the EC Treaty;

43 44

45

OJ L 289, 22.10.1983, p. 38. 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 v Commission [1975] ECR 1514 (paras 30 and 31). Grounds must always be given for repealing an instrument (see point 6.6, p. ..) or deleting a provision (see point II.3.2.3).

16

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 to be taken which of the Community legal acts is appropriate, the reasons why the particular act has been chosen should be given. If, in a given case, for instance, it would be possible to legislate by means of a directly applicable regulation, an explanation should be given of why it is preferable to adopt only 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 of subsidiarity and states how it is doing so in the recitals as well as in the explanatory memorandum where there is one. The content of the subsidiarity recital will vary from one case to another, and standard formulations 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 exclusive powers and those where powers are shared46. In areas where the Community has exclusive powers, all that the third paragraph of Article 3b requires is compliance with the principle of proportionality. The recital will therefore 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 both reference to subsidiarity stricto 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;

46

See the Legislative Checklist (general guidelines for legislative policy) adopted by the Commission on 16 January 1996, reproduced at Annex III.

17

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 the general philosophy of the measure rather than give all the reasons for each specific provision. But specific reasons will be given for a number of individual provisions either because of their importance or because they are not inherent in the general philosophy. In implementing measures, the reasons to be given will necessarily be more specific, though an effort should always be made to be concise. However, the reasons given for such measures do not need to recount, much less to assess, the facts on the basis of which the act is to be adopted. In particular, a detailed statement of reasons (including calculations) for measures such as those setting 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 certain provisions 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 cereal prices, which the Commission must adopt rapidly so as not to upset the operation of the common market organisation. 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 charges on 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 which measures 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. 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."

18

Where power to act is subject to a specified condition, the recitals must duly show that the condition has been satisfied. Where an institution is authorised to take certain steps for a specific purpose, one of 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 a regulatory committee (Procedure III)48 has been consulted is referred to not in a citation 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 of Council Decision 87/373/EEC)49. The outcome must, therefore, always be recorded 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 failed to deliver an opinion within the period prescribed by 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 of Article ... ([paragraph number]) of [basic act], be communicated to the Council forthwith50; [whereas they should nevertheless be applied without delay ...] (reasons justifying urgency or necessity in the specific case)51. Regulatory Committee - Procedure III
48

49 50

51

Model rules of procedure for this type of committee have been drawn up in the Community languages by the Commissions Legal Service, from which copies may be obtained. Cf. point 4.4(e) and footnote 39. 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 the period prescribed in the basic act in Procedure II, variant (b), running from the date of communication to the Council). Procedure II, variant (a), if the Commission chooses not to defer application of the measures.

19

Consultation of a Regulatory Committee always produces legal effects, which will vary according to the provisions of the basic act. The outcome must, therefore, always be recorded 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 in accordance with the Committees opinion, the Commission must submit to the 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, by virtue of Article ... ([paragraph number]) of [basic act], be adopted by the Council where, on the expiry of the period laid down in the basic act, the Council has not acted, the Commission adopts the measures and uses the following 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 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; 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 adoption of acts by the codecision procedure by reason of comitology problems, on
20

20 December 1994, the European Parliament, the Council and the Commission agreed on a modus vivendi52 concerning the implementing measures for acts adopted in accordance with that procedure. In the course of the legislative procedure, though never of its own motion, the Commission 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 forms to 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 bases and maximum amounts of 6 July 199453, the European Parliament, the Council and the Commission 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 in particular the fact that, in order that the full importance of the budget procedure may be preserved, the fixing of maximum amounts in legislative acts must be avoided, as must the 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 in the following circumstances:

52 53 54 55

OJ C 102, 4.4.1996, p. 1. Bull. EC 7/8-94, point 4.1.4.1. OJ C 102, 4.4.1996, p. 4. OJ C 194, 28.7.1982, p. 1.

21

(a) Legislative acts concerning multiannual programmes adopted under the codecision procedure These acts are to contain a provision in which the legislative authority lays down the 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 procedure57. 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 than those mentioned at (a)58. If the Council wishes to include a financial reference, it will be taken as illustrating the will of the legislative authority and will not affect the 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 financial reference amount under the conciliation procedure provided for by the Joint Declaration of 4 March 1975, it will be treated as a reference amount of the type covered by point (a).

56

57

58 59

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. 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 which explicit and precise reasons are given. Cf. SEC(95) 2100, 27.11.1995. It is worded as follows: 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.

22

In that event, the recital set out below will be used in place of that in (b) but the enacting terms will remain the same: Whereas the European Parliament and the Council, in accordance with the conciliation procedure provided for in the Joint Declaration of 4 March 1975 ..., have reached agreement on an amount which, for the entire duration of the programme, 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; 5.5 Form (a) General The statement of reasons is divided into recitals, each beginning with the word "Whereas". Each recital ends with a semicolon except for the final one which is followed by a comma. (If the reasons are very simple and there is just one recital, it ends with a comma.) Where a recital is divided into several parts, each begins with the word "whereas" and ends with a semicolon. (b) Special rule for certain categories of acts of the Commission For categories of acts which normally require a complex statement of reasons, with an extensive exposition and appraisal of the facts, the Commission uses a simplified form in all language versions, along the lines used in the Danish, Finnish, German and Swedish versions of the acts: the word "Whereas" is used once at the beginning and is followed by a number of self-contained paragraphs, each ending in a full stop, except the last, which ends in a comma. The categories of acts for which this form of recital can be used are: ECSC decisions determining and applying quotas (Article 58) and maximum or minimum prices (Article 61); decisions applying Articles 65 and 66 of the ECSC Treaty or Articles 85 and 86 of the EC Treaty, decisions applying Council Regulation (EEC) No 4064/89 (the Merger Regulation)60 and State aid decisions pursuant to Article 93(2) of the EC Treaty; EC decisions granting individual projects; contributions from Community funds to

measures applying the ECSC and EC anti-dumping rules61 and other trade protection measures;

60 61

OJ L 395, 30.12.1989, p. 1; corrected version in OJ L 257, 21.9.1990, p. 13. In measures applying the EC anti-dumping rules, the Council too uses the simplified form.

23

ECSC State aid decisions based on Commission Decisions No 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 than three recitals. 6. 6.1 ENACTING TERMS Introductory (a) The enacting terms are the legislative part of the act, giving effect to the legislator's intent to regulate a certain matter. They set forth the new rules which are to be laid down and also include provisions: conferring, if necessary, implementing powers on the enacting institution itself or, in an act of the Council, on the Commission; ensuring that the new rules do not conflict with existing rules (amending and repealing provisions and, where appropriate, transitional provisions); specifying the date of entry into force and, where appropriate, the date from which the provisions are to have effect.

(b) The enacting terms must be selfcontained, without having recourse to explanatory 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 and regularly adopted, to demonstrate that the measures are appropriate and to provide the 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 used for both mandatory and declaratory provisions: Les Etats Membres prennent les mesures ncessaires ....
62 63

OJ L 362, 31.12.1991, p. 1, and OJ L 329, 30.12.1993, p. 12. It is permissible, on the other hand, to make references to scientific or technical methods appended to international agreements or published by specialist organisations.

24

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 is precisely 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 them to be still applicable; restate, but do not amend or repeal, existing provisions with the same binding status 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 or legal 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 essentially temporary nature. Regulatory provisions and those laying down basic rules should not appear in the same act as provisions of a completely different nature.
25

Acts to be adopted by the Council should not contain provisions which the Commission itself could adopt in exercise of powers conferred upon it. Basic acts should not contain detailed provisions which could be laid down by an implementing 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 acts must be drafted entirely in the form of articles. If the enacting terms are simple and 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 the point. (d) The rules regarding the name, symbol and method of reference for each of the divisions 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 titles in parts. (b) Articles should not be grouped in chapters, titles or parts unless this is justified by the diversity of the subject matter, the number of articles or a concern for clarity or ease of consultation. (c) When an act is divided in this way, care must be taken to ensure that the divisions embrace 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 the higher division to which they belong. They are identified by cardinal numbers expressed as figures (roman for titles, roman or arabic for chapters, and arabic for sections). (e) As a rule, each part, title, chapter or section is given a title. 6.3.3 Articles (a) Provisions which are not directly related to each other must not appear in the same article.
26

Even if provisions are directly related to each other, they should not appear in the same article if they are too numerous. It is better to split the text into separate 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 or sections. Do not restart the numbering in each subdivision with Article 1. Each article is identified by an arabic numeral (the only exception being that in French 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 numbering articles 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 more paragraphs, which may be unnumbered or numbered with arabic numerals. Note that 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 lowercase roman 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 introductory phrase (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.

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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 acts65. The rule (third indent of Article 145 of the EC Treaty) is for the implementing powers to be conferred on the Commission, possibly subject to the procedures laid down in Council Decision 87/373/EEC of 13 July 198766. (a) When these procedures are applied, the enacting terms should contain a separate article setting out the procedure chosen using the description given in Decision 87/373/EEC, in full, with no alterations (other than the time-limits to be determined under the relevant procedure), except where recourse is to be had to a committee set up by an earlier act67. If the proposal provides for different types of procedure to be followed, depending on the nature of the measures to be taken, the text of the procedures should be reproduced 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 Community languages from the Commission's Legal Service. Those rules apply if a new committee 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 to the article describing the procedure, as mentioned in (a). The wording to be used is 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, a proposal may reserve implementing powers to the Council. The proposal must then specify the procedural rules to be applied: proposal from the Commission, possible
65

66

67

68

But proposals for Council acts should not provide for the setting-up of committees to assist the Commission in the exercise of its own powers. That is a matter for the Commission itself. See point 4.4(e), and footnote 39; the text is reproduced in Annex II; see also the Institutional Vade-mecum. In such cases the first paragraph of Procedure I, II or III, as set forth in Decision 87/373/EEC, is transposed as 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. For example: detailed rules for the implementation of this Regulation, general conditions for the granting of financial aid or criteria for the selection of projects.

28

consultation of the European Parliament or another institution or body and, where appropriate, adoption by qualified majority (if there is no requirement of a qualified majority, the Council acts by a simple majority of its members, as laid down in Article 148 of the EC Treaty and Article 118 of the Euratom Treaty, or by the majority defined in the first sentence of the fourth paragraph of Article 28 of the ECSC Treaty.) 6.4.3 Conferment of different implementing powers A single provision should not confer two or more different implementing powers on the Council or the Commission: this could give rise to confusion in the citations of implementing measures taken in exercise of the powers. Separate articles, or at least separate 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 an act are to be repealed (deletion). (a) To repeal an act is to revoke or abrogate it, so that it will cease to have binding effect. Where the repeal of existing provisions is required by a new act of the same status as 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 that have become obsolete or have ceased to have effect should be repealed 69. This applies 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. The following should accordingly be repealed: measures implementing an act that have become inapplicable either because they are incompatible with the original act by virtue of subsequent amendments to it or because the original act has been repealed70; an act that has become inapplicable because of the repeal of a parallel act71 or because it has become incompatible with that parallel act by virtue of subsequent amendments to the latter.

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

69 70 71

SEC(96) 1073, 4.6.1996. Cf. point II.4.3.2(c). A parallel act is one which, though not in the same family, independently governs the same subject-matter.

29

(c) Repeal should be stated in express and precise terms; the repeal of earlier acts should not have to be implied from the mere fact that they are inconsistent with a new act. It is not sufficient to repeal "all earlier provisions": the provisions in question must be specified. (d) Except in amending acts, repealing provisions should be contained in a single article among the final provisions, before the transitional provisions and those specifying the date of entry into force. (e) Where the act to be repealed has been amended, it is sufficient to repeal the original act without referring to all the amending acts. However, the most recent amending act should be mentioned in the recital which states the reasons for 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, the transitional provisions constitute an exception from the total and final repeal of the repealed act.

6.7

Transitional provisions A distinction should be made between temporary provisions and transitional provisions, which have different effects. Temporary provisions are binding for a limited period, irrespective of any parallel legislation, whereas transitional provisions merely 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 infringement by those on whom it imposes obligations and second to impose due penalties on those who do not comply with it. The Court of Justice has held that where Community legislation does not specifically provide any penalty for infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law, notably by making penalties effective, proportionate and dissuasive72. In view of the limitations of reference to national systems of penalties73, the Commission has developed a number of specific penalty measures. First, in the exercise of the powers for the implementation of Council rules, it has established a

72 73

See in particular Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24. For instance the coexistence of various national systems of penalties which are incompatible with the sound operation of the single market, and the possibility that national systems might jeopardize the effectiveness, proportionality and dissuasiveness of the penalties concerned.

30

system of administrative penalties, for example in the context of the common agricultural policy. Second, in the context of its general anti-fraud strategy, horizontal rules have been laid down 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 include penalty clauses in its proposals for legislation75. Unless more specific clauses are chosen by the Commission for certain acts, the following standard clauses should be inserted 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 shall notify 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 apply and 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 at 00.00 hours on the date indicated76. Some of the expressions used to indicate the beginning of a period are: from ... (to ...)77
74 75 76

77

OJ L 312, 23.12.1995, p. 1. COM(95) 162 final, 3.5.1995. See Article 4(2) of Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits (OJ L 124, 8.6.1971, p. 1). The words "beginning on ..." or "from ..." should be used only in expressions such as "for a period of ...[days/weeks/months] beginning on/from ...".

31

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 from 1 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 date specified in them or, in the absence thereof, on the twentieth day following that of their publication: (1) ECSC general decisions and recommendations; (2) regulations; (3) directives and decisions adopted by the codecision procedure laid down by Article 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 on the twentieth day after their publication. But a different date may be set in the act itself. The date of entry into force is normally stated in the final article. In ECSC general recommendations and acts referred to in points (3) and (4), the article determining the date of entry into force precedes the article specifying the addressees. A distinction should be made between entry into force and application, 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 deferred application of regulations, see points (iv) and (v); as regards implementation of directives, see point (d). (i) Date of entry into force The date of entry into force must be set on a specific date or a date determined 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.

78

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

32

The entry into force of an act which forms the legal basis for another act cannot be made conditional on the entry into force of that other act. No act may enter into force before the date set for the entry into force of the act on which it is based. The entry into force of an act cannot be made conditional on the fulfilment of a condition or the expiry of a deadline of which the general public cannot have knowledge. It may be provided, however, that an express provision will fix the date of entry into force. (ii) Guidelines for determining the date of entry into force There may be practical reasons and considerations of urgency which justify entry into force prior to the twentieth day after publication79. It is primarily for regulations that such a need may arise. The following rules apply: - there must be grounds of urgency for entry into force on the third day following publication; in each case it is necessary to check that there is real urgency; - entry into force on the day of publication must remain a real exception and be justified by an overriding need - to avoid a legal vacuum, for instance, or to forestall speculation - closely bound up with the nature of the act80. There must be a specific recital giving appropriate reasons for the urgency, except where the general practice is already well known to interested circles, (for example in the case of regulations fixing import duties or export refunds). The "date of publication" of an act is taken to be the date on which the OJ in which it is published is actually available in all eleven languages at the Publications Office. (iii) Urgent measures The daily and weekly regulations by means of which the Commission fixes the import levies (and/or the additional levies in certain sectors of agriculture) and refunds applicable to trade with nonmember countries have to be adopted as short a time as possible before they are applied. Since the purpose of the levies and refunds is to offset the difference between prices within the Community and world market prices on a particular day or during a particular week, the Commission must base itself on the most recent market
79

80

In its answer to Written Question No 241/67 from Mr Illerhaus the Commission stated: "The Commission takes the view that, as a general rule, the time between the publication of a regulation and its entry into force should not be too short. Admittedly, there are cases where rapid entry into force is justified by the actual content of the regulation, e.g. if its purpose is to set or adjust levies or other amounts collected on imports under the current system. But where a completely new system is to be introduced, the Commission's view is that as far as possible the parties concerned should be given sufficient time to adjust to the new arrangements." For example, regulations fixing import duties and export refunds, though in these cases there are also special publicity arrangements to remedy the problem of the different delays in distributing the OJ in the various Member States.

33

price; it must also forestall speculation. Moreover, since the basic regulations provide for such periodic fixings, they come as no surprise to the interested circles. It has therefore been agreed that such periodic regulations are to enter into force on the day of their publication or on the next following working day. However, to minimise the inconvenience arising from differences in the time required to distribute the OJ in the Member States, a more effective system of actually making them public has been established. A similar arrangement is expressly provided for in the regulations laying down rules for the application of protective clauses in the agricultural sector, where it may be necessary, in cases of extreme urgency, to adopt measures with immediate effect at a certain time of the day. Such measures, which are in the form of decisions, are simultaneously notified to the Member States and posted up at the Commission's headquarters. They have the effect of suspending the issue of import or export licences from the time specified, which must be later than the time of notification (in the wine sector, for example, see Article 3 of Regulation (EEC) No 346/79, OJ L 54, 5.3.1979, p. 72). (iv) Retroactive application of regulations Exceptionally, and subject to the requirements stemming from the principle of legal certainty, a regulation may have retroactive effect81. The words "It shall apply from ..." are then added to the final article, as follows: Article ... This Regulation shall enter into force on [the day/nth day following that of its publication in the Official Journal of the European Communities] (or on DD/MM/YY). It (or Article N) shall apply from [date]. To give retroactive effect to an act, terms such as the following are often used in an article other than the final article: for the period ... to ... from ... to ... (in the case of tariff quota regulations, for example) with effect from ... (in the case of regulations adjusting the remuneration of officials, for example) (v) Deferred application A distinction is sometimes drawn between the entry into force of the regulation itself and the application of the arrangements introduced by the regulation, which is deferred. This was done for example for the regulations which set up the common organisations of the market. The purpose of the distinction is to enable the new bodies provided for in the regulation (for example management
81

Cf. point 5.2(c) third indent.

34

committees) to be set up immediately and to enable the Commission to adopt implementing measures on which those new bodies have to be consulted. Should it prove necessary to defer the application of part of a regulation until a later date than that of its entry into force, the regulation should clearly specify the provisions concerned. (c) Date on which certain directives and decisions take effect Article 189 of the EC Treaty and Article 161 of the Euratom Treaty provide that directives and decisions are binding only on those to whom they are addressed. Under Article 191(1) and (2) of the EC Treaty, as mentioned in (b), the concept of entry into force replaces the concept of the date of taking effect for directives and decisions adopted by the codecision procedure and for directives addressed to all Member States. Pursuant to Article 191(3), however, other directives and other decisions are notified to those to whom they are addressed and they take effect upon such notification. The same applies to directives and decisions referred to in the second paragraph of Article 163 of the Euratom Treaty and to individual decisions and recommendations referred to in Article 15 of the ECSC Treaty. Article 18 of the Council's Rules of Procedure provides for notification of common positions, joint positions and joint actions under Articles J.2, J.3 and K.3 of the TEU. In practice, the final article of such decisions often lays down the date of entry into force as well as the period of application. Decisions sui generis of the Communities do not normally contain any provision specifying when they take effect and may generally be considered to take effect on the date of their adoption. Decisions of joint bodies set up by agreements (and, in exceptional cases, decisions sui generis of the Communities) contain provisions concerning their entry into force and, where appropriate, retroactive or deferred application. (d) Implementation of directives A distinction must be made between the date of entry into force or taking effect, on the one hand, and the date of application, on the other (see (b)), in all cases where the addressees will need time to meet their obligations under the act. This is particularly true of directives, which should include provision to the following effect in an article preceding the article concerning entry into force or, as appropriate, the addressees: Member States [shall take the necessary measures] [shall bring into force the laws, regulations and administrative provisions necessary] to comply with this Directive by ... at the latest. In particular in the case of directives designed to ensure the free movement of goods, persons and services, in order to prevent the creation of new barriers by virtue of differences in the application of the Member States' provisions up to the
35

end of the prescribed period, a date should be specified from which national provisions must apply. For this purpose, the following formula should be used: Member States shall adopt and publish, before ..., the provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof. They shall apply those provisions with effect from .... (e) Implementation of non-binding acts Acts which have no binding force, such as EC and Euratom recommendations, should not bear a date of taking effect or application. If the addressees of an EC or Euratom recommendation (whether Member States or individuals) are to be given a date for giving effect to it, a provision should be inserted to the following effect: The addressees of this Recommendation are requested to give effect to it by ... at the latest. 6.9.2 Indication of the end of periods of validity The final article may also specify when the act ceases to be valid. Save where expressly provided otherwise, a period ends at midnight on the date specified 82. Some of the expressions used to indicate the end of periods are: until ...83 shall apply until the entry into force of ... or ..., whichever is the earlier ... at the latest (from ...) to ... shall expire on ... shall be repealed on ... shall cease to apply on ... N.B. Decisions authorising agreements, decisions or concerted practices must specify the period of the authorisations validity (see Article 6(1) and Article 8(1) of Council Regulation No 1784). The period of validity should not, however, be specified in the final article, which should contain only the indication of the addressees. 6.9.3 Citation requirement
82 83 84

See Article 4(3) of Regulation (EEC, Euratom) No 1182/71, cited in footnote 76. The word inclusive is superfluous here and in all such expressions of time. See footnote 9.

36

In the interests of transparency of Community law, the European Parliament has asked that all directives should include a provision requiring Member States to cite the relevant Community directive in the measures taken to transpose it into national law. The Council, by agreement with the Commission, has decided on the wording of this "citation requirement" (known as clause d'interconnexion in French), which must now be included in every directive or Commission proposal for a directive. It should appear in the final provisions as the last paragraph of the article governing the implementation of the directive and should read as follows: When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 6.9.4 Addressees As stated in point 6.9.1(c), EC and Euratom directives and decisions, as well as ECSC individual decisions and recommendations, are binding only on those to whom they are addressed. The addressees are named in the final article of the act. If the addressee is a country, its full official name must be used. The final article should therefore read, for example: This Decision is addressed to [the Kingdom of Belgium] [the Member States]. In decisions sui generis there is no reference to addressees. 6.9.5 No reference to publication or notification The enacting terms should not state whether the act is to be published in the OJ. The decision whether to publish an act whose application is not conditional upon its being published is taken at administrative level, quite separately from the decision by which the act is adopted85. Similarly, directives and decisions do not refer to their notification to the addressees. But Article 18(3) of the Council's Rules of Procedure provides that the publication in the OJ of common positions, joint positions and joint actions under Articles J.2, J.3 and K.3 of the TEU is to be decided on by unanimous Council decision on a case-by-case basis at the time of adoption. This will be mentioned in the final article, either using the words:

85

This rule should be applied to decisions sui generis. If the date on which they take effect is to be determined by reference to the date of publication, it will suffice to say, for example: "This Decision shall take effect on the day of its publication".

37

This Decision shall be published in the Official Journal. or implicitly by the words: This Decision shall enter into force on the day of its publication. 7. 7.1 CLOSING FORMULAS Statement that an act is binding in its entirety and directly applicable The following sentence appears after the end of the last article, of which it does not form part, and before the actual closing formula in regulations and ECSC general decisions: This Regulation (Decision) shall be binding in its entirety and directly applicable in all Member States. 7.2 Date and signature The actual closing formula begins with the words: Done at [place], [date], the place and date being those of the adoption of the act by the enacting institution. They are followed: for acts adopted by the codecision procedure, by: For the European Parliament The President for acts adopted by the Council, by: For the Council The President in each case followed by the name of the president in office at the time of adoption. Under the Commission's Rules of Procedure, its acts may be signed by the President, a VicePresident or a Member. In this case the formula on the right of the page is "For the Commission", followed by the name of the signatory on the next line and his or her title on a third line. 8. 8.1 ANNEXES AND ANNEXED ACTS Introductory This section deals with all material which is not incorporated in the actual enacting terms of the act but is appended thereto.
38

For the Council The President

Annexes are used as a means of presenting material outside the actual enacting terms because it is voluminous or technical or both. Examples of such material might be rules to be applied by customs officers, doctors or veterinarians (such as chemical analysis techniques, sampling methods, and forms to be used), lists of products, tables of figures, plans and drawings and so on. However, an annex to an act may also set out other legal acts pre-existing it which are generally approved by it. Examples of acts which may be set out in this way are rules of subordinate bodies and international agreements. Such annexed acts, in particular international agreements, may themselves have annexes. 8.2 Annexes in the strict sense Where there are practical obstacles to incorporating technical rules or data in the actual enacting terms, the recommended practice is to put them in an annex. There must always be a clear reference in the appropriate part of the enacting terms to the link between those provisions and the annex (using phrases such as "listed in the Annex" or "set out in Annex I"). An annex is by its very nature an integral part of the act, and there is accordingly no need for that to be stated in the provision referring to the annex. The word "ANNEX" must appear at the beginning of the annex, and there will often be no need for any other heading. If there is more than one annex, they must be numbered. There are no specific rules governing the form and style of annexes. In English reference is made to "the Annex to the Regulation" (in French "l'annexe du rglement") and to material "in" annexes. 8.3 Pre-existing legal instruments annexed Where an instrument is complete in itself but a regulation or a decision is needed in order for it to take effect, the instrument must be reproduced in the annex to the regulation or decision and not in the enacting terms. Such instruments are not preceded by the word "ANNEX". Examples of such instruments are: instruments constituting subordinate bodies, rules of procedure and the like, approved by the Council; international agreements whose conclusion requires a Council act.

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8.4

Annexes to agreements

8.4.1 Annexes in the strict sense and non-autonomous legal instruments annexed Agreements often contain not only annexes in the strict sense but also other instruments which, by virtue of their content, form part of the agreement (declarations, protocols, exchanges of letters, and so forth). The final provisions of the agreement itself must always contain a form of words along the following lines expressly stating that the annexes are an integral part of the agreement: The protocol annexed to this agreement shall constitute an integral part of it86. Such non-autonomous instruments do not generally have to be signed separately, though exchanges of letters obviously must be signed. In the regulation or decision concluding the agreement, there is no need for specific approval of such non-autonomous instruments, since they constitute an integral part of the agreement. 8.4.2 Autonomous legal acts annexed There are cases where texts annexed to agreements are autonomous legal instruments. The word "ANNEX" does not appear at the head of them. Examples are unilateral or bilateral declarations and other supplementary instruments which are linked to an agreement but do not constitute an integral part of it. In the regulation or decision concerning the conclusion of an agreement, the article relating to approval of the agreement must specifically mention those instruments, since they are not an integral part of the agreement. N.B. A common practice is to sign such instruments by means of a final act. A final act is not an independent international legal instrument but simply a practical expedient making it unnecessary for all the instruments referred to in it to be signed individually. The final act, therefore, unlike the individual instruments, will not be approved as such. 9. 9.1 FOOTNOTES Introductory (a) As a general rule, footnotes serve to indicate where the act referred to is published in the OJ or to provide some other purely documentary information.

86

For the reasons given at point 8.2, this rule does not apply to annexes in the strict sense. The Treaties of Rome, for instance, referred only to the protocols. Elsewhere, particularly in the Acts of Accession, the form of words applied jointly to the protocols and the annexes.

40

(b) To preclude confusion as to the meaning of the text, footnotes serving any other purpose must be avoided wherever possible. It is preferable for the material concerned to appear in the text of the act itself. However, even footnotes of such a nature constitute an integral part of the instrument as part of the expression of the will of the enacting institution and they accordingly have the same binding force as the articles themselves. Examples are the frequent annotations which are set out in footnotes in annexes and relate to tariff headings87. 9.2 OJ references Before 1 July 1967 (OJ 138), OJ pages were numbered continuously through the year; since that date, the page numbering has begun afresh in each issue. The OJ was divided into separate series ("L" = Legislation and "C" = Information and Notices) from 1 January 1968, with separate page numbering by issue for each series. The following forms of reference therefore exist: before 1 July 1967: OJ 56, 7.7.1962, p. 1606/62; from 1 July to 31 December 1967: OJ 314, 23.12.1967, p. 9; from 1 January 1968 onwards: OJ L 148, 28.6.1968, p. 13. II. AMENDMENT OF ACTS 1. 1.1 INTRODUCTORY Types of amendment An amendment may relate to part of an act or affect the whole act. In exceptional cases where the old version of a provision is to reapply after the amended version has applied for a limited period only, this must be clearly indicated in a specific provision of the amending instrument. 1.1.1 Partial amendment Partial amendment may take one of two forms. In one, the principal text remains formally unchanged but the new provisions bring about a substantive change by confining or extending its scope or changing the terms on which it applies. The principal text remains in force legally and coexists with the new text, which suspends some of its provisions or supplements them or modifies their scope. Some examples:

87

Judgment of the Court of Justice in Case 80/72 Koninklijke Lassiefabrieken v Hoofdproduktschap voor Akkerbouwprodukten [1973] ECR 636; see paragraphs 14 to 17.

41

By way of derogation from Article N of Regulation (EC) No ..., applications for ... may be made until .... The application of Article N shall be suspended until .... The decision referred to in Article N may also authorise .... The other form consists of formally amending the actual text of the old act: Article N of Regulation (EC) No ... is amended as follows: "..., " (the new text being enclosed in inverted commas). The sole legal effect of the new act is to amend the old one; that being done, it has exhausted its effects. The amending act should not, therefore, contain new substantive provisions which are independent of the act being amended88. The only act left in existence, formally, is the old one, which continues to govern the whole of the matter. 1.1.2 Amendment affecting the whole of an act Amendment affecting the whole of an act may consist of one of the following89: (a) recasting the act, with all or some of its provisions being changed (see point 4);

(b) codification of an act that has been amended several times or of several acts adopted in parallel to govern different aspects of the same matter (see point 5). 1.2 Choice of form of amendment (a) Where part of the content of an earlier act is to be amended, it should be done, if at all possible, by amending the text of the earlier act. This avoids fragmentation of rules in a succession of acts, all of which remain in force. A single act, the first, is left in existence formally, and continues to govern the whole of the matter. Although it has been amended on one or more occasions, it is still the same act (with the same number, date, title, etc.). Users are left in no doubt as to what is in force and what has been repealed; it should be possible to reconstitute the full text of the enacting terms of the act as amended and now in force by simply assembling the relevant provisions.

88 89

Cf. point 9 of the Council Resolution of 8 June 1993 (reproduced in Annex I). It is also possible, of course, simply to repeal the old act without enacting new provisions on the matter.

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(b) A substantive amendment by an autonomous act coexisting with the original act is, however, to be preferred when providing for a short-term derogation (which must be clearly indicated by the words "by way of derogation from ...") or suspension is provided for90,91. If the derogation is to be permanent, it is preferable to amend the actual text by adding a provision beginning "However,". The practice of combining the textual and substantive techniques in the same amending act should be avoided unless both permanent and temporary amendments are to be made simultaneously. (c) An act which completely replaces the enacting terms of an earlier act, leaving only the title and the preamble intact, should never be described as an amending act; in fact the original act is being recast and it should accordingly be repealed. (d) Where an act or set of acts has been amended several times, and at the latest after the tenth amendment, it must be codified (see point II.5.3). 1.3 Formal parallelism An act which amends an earlier act must generally take the same form. Regulations, for instance, may be amended only by regulations and not by decisions. There are, however, a number of Treaty articles which empower the institutions to make substantive amendments by acts of secondary legislation (third and fourth paragraphs of Article 95 of the ECSC Treaty; Article 104c(14), Article 106(5), Article109f(7) and Article 165 of the EC Treaty; Article 76 of the Euratom Treaty; Article 147(2) and Article149(2) of the Act of Accession of Austria, Finland and Sweden). 2. SUBSTANTIVE AMENDMENTS For the distinction between substantive and textual amendment, see point 1.1.1. The latter is to be preferred: see point 1.2(a).

90

91

It is possible to use the textual technique for temporary amendments, but it must be made clear in the text itself that the amendments are temporary and that, if they are not extended, the original provision reapplies. One method that must not be used is to make an amendment described as temporary when it is in fact bound to be permanent. An example of its use was the introduction of the ecu for common agricultural policy purposes by Council Regulation (EEC) No 652/79 of 29 March 1979 on the impact of the European Monetary System on the common agricultural policy (OJ L 84, 4.4.1979, p. 1), originally applicable only until 30 June 1979 but subsequently extended several times by further regulations also of limited duration.

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3. 3.1

TEXTUAL AMENDMENTS Subject matter of amendment

3.1.1 Title and preamble Amendments normally relate to the enacting terms of an act. Less frequently the title may have to be amended where it is so specific that it no longer corresponds to the content of the act as amended (if, for instance, it refers to a specific year and the act is renewed). In very rare cases the citations may be amended, as occurred when Regulation (EEC) No 2746/7292 replaced the citation of Article 103 of the EEC Treaty in Regulation (EEC) No 974/71 by a citation of Article 43 of the EEC Treaty in order to bring the system of monetary compensatory amounts under the common agricultural policy measure whereas Regulation (EEC) No 974/71 had introduced it as a measure of economic policy93. The idea was put forward that recitals relating to amended provisions should also be amended; it would then be possible for users to reconstitute from the amending acts the latest version not only of the enacting terms but of the act as a whole. The idea was dismissed in order to avoid an excess of unnecessary legislative work: the grounds for an amended act should be clear from the combined reading of the recitals to the original act and to the amending acts. In any case, where the enacting terms of an act have been amended many times or substantially, it should be recast or codified, involving a reorganisation of the recitals. 3.1.2 Enacting terms (a) Amendment of the enacting terms may relate to an article, a paragraph, a subparagraph or even a single sentence. This avoids the calling into question in the course of the legislative procedure of those parts of the text that are not to be changed. Moreover, the reader can ascertain the precise scope of the changes. But if the amendment relates to a substantial proportion or to several components of a given article, paragraph or subparagraph, in the interest of clarity the article, paragraph or subparagraph should be reformulated in its entirety, while preserving the original terminology, structure and numbering. Sometimes it will be necessary to preserve phrases or expressions which are not affected by the amendment, even if some other solution would be more satisfactory from the stylistic or terminological viewpoint. It is dangerous to amend a provision, even if it is unfortunately drafted, if the meaning is established and not open to discussion, simply for the sake of formal improvements. Likewise, an amending act should never simply move or renumber articles. Such changes can generate difficulties with regard to references to those articles in other acts.
92 93

OJ L 291, 28.12.1972, p. 148. See also Council Regulation (EEC) No 3528/89 (OJ L 347, 28.11.1989, p. 1) which deleted the citation to Article 235 of the EEC Treaty from Regulation (EEC) No 2658/87 (customs nomenclature) (OJ L 256, 7.9.1989, p. 1) following case-law of the Court of Justice on the scope of Articles 28 and 113 of the EEC Treaty.

44

Sometimes, in order to amend one or more provisions, it suffices to change a date, an expression or even a single word. Where the various language versions permit it, such a limited amendment serves to render the change more comprehensible to the reader, for example: In Articles X and Y, "31 December 1992". "31 December 1991" is replaced by

(b) Some provisions of the original act might have been intended to have effect for only a limited period of time (such as transitional provisions) or to cease to have effect on a specified date (such as a final provision setting the date of entry into force). When it is decided to amend the act, those provisions may long have exhausted their effects, and the question therefore arises whether they should be preserved or deleted. That is purely a question of what is appropriate in the circumstance for whether those provisions are preserved or deleted, their effects remain confined to the period fixed at the outset and will be neither extended nor confined. If, for instance, the date set in the final article stands in the regulation as amended, it simply means that the provisions of the original act came into force on that date. Conversely, the deletion of that provision (from the time of the amendment), does not by any means retroactively cancel its past effects. In the interests of clarity and transparency, however, it is appropriate to delete such provisions, like any others that have become obsolete or ceased to have effect94. (c) Amending instruments are no exception to the general rules on the date of their application. It is not acceptable to describe them as interpretation provisions so as to give them retroactive effect. (d) Amendments to the annex to an act are made by an annex to the amending act. Reference is made, however, to those amendments in the enacting terms of the amending act. 3.1.3 Intermediate amendments Where an autonomous act has substantively amended a provision of the original act and the text of that provision is now to be amended, incorporating the earlier substantive amendment, the intermediate autonomous act must be repealed. But if a first textual amendment has been made to the act and a second textual amendment is to be made, the intermediate act need not be repealed or amended having exhausted its effects once the original act was amended.

94

Cf. point I.6.6(b).

45

3.2

Structure of the amending act

3.2.1 Title The most common practice is to refer simply to the title of the act being amended, mentioning neither the enacting institution nor the date: Act being amended Commission Regulation (EC) No ... of ... introducing a countervailing duty on imports of artichokes originating in Malta Amending act Commission Regulation (EC) No ... of ... amending Regulation (EC) No ... introducing a countervailing duty on imports of artichokes originating in Malta Another practice which is also correct and sometimes more useful to the reader is to mention only the number of the act being amended and to specify what is to be amended (cf. point I.2.2): (a) Act being amended Commission Regulation (EC) No ... of ... laying down detailed rules for the application of the special arrangements for imports of bran, sharps and other residues, whether or not in the form of pellets, derived from the sifting, milling or other working of cereals other than maize and rice covered by CN codes 2302 30 and 2302 40 Amending act Commission Regulation (EC) No ... of ... amending Regulation (EC) No ... in respect of the documents required for imports of bran (b) Act being amended Council Regulation (EC) No ... of ... on improving the efficiency of agricultural structures Amending act Council Regulation (EC) No ... of ... amending Regulation (EC) No ... as regards extensification of production 3.2.2 Introductory formula The introductory formula (cf. point I.6.3.4) is the form of words that identifies the provision to be amended and indicates the nature of the amendment.
46

There are different introductory formulas, depending on the nature and scale of the amendment. A distinction must first be made between single amendments and multiple amendments. 3.2.2.1 Single amendment A further distinction must be made between a full or part amendment. (a) Replacing an article Where a whole provision, such as an article, is to be replaced, the amendment should be introduced by the following formula: Article N of Regulation (EC) No ... is replaced by the following: "Article N [new text of article]" (b) Replacing part of an article The aim here is to replace only part of an existing article - a numbered or unnumbered paragraph, a subparagraph, a number of words, a single word, a date or a figure. Replacing a numbered paragraph The following introductory formula should be used: In Article N of Regulation (EC) No ..., paragraph n is replaced by the following: "n. ..." Replacing an unnumbered paragraph The following introductory formula should be used: In Article N of Regulation (EC) No ..., the nth paragraph is replaced by the following: "[text of new paragraph]". Replacing a subparagraph The following introductory formula should be used: In Article N(n) of Regulation (EEC) No ... , the nth subparagraph is replaced by the following: "[text of new subparagraph]". Replacing a sentence
47

The formula set out above for subparagraphs may be used mutatis mutandis for sentences. Replacing one or more words In Article N of Regulation (EC) No ..., "Y" is replaced by "Z". N.B. The exact location of the words to be replaced must be specified. The following formula should be used: In the second paragraph of Article N of Regulation (EC) No ... etc. Replacing a date The formula to be used is as follows: In Article N of Regulation (EC) No ..., "[old date]" is replaced by "[new date]". Replacing a figure It is possible either to replace the terms containing the figure to be changed or to replace the whole sentence, subparagraph or paragraph. The situation is then very similar to those described under the foregoing headings. Alternatively, the following simpler form may often be appropriate: In Article N of Regulation (EC) No ..., "[EUR ...]" is replaced by "[EUR ...]". N.B. Where the words, dates or amounts to be amended are contained in a very short sentence or paragraph, there is no reason why the entire sentence or paragraph in question should not be replaced. 3.2.2.2 Multiple amendments to one act (a) Where several provisions of the same act are to be amended, all the amendments are combined in a single article comprising an introductory phrase and points following the numerical order of the articles to be amended: Regulation (EC) No ... is amended as follows: (1) Article 2 is replaced by the following: "Article 2 ..."

48

(2) Article 4 is amended as follows: (a) Paragraph 1 is replaced by the following: "1. ..." (b) The following paragraph 4 is added: "4. ..." (3) The following Article 7a is inserted: "Article 7a ..." If there is a large number of amendments to be made, a separate article may be used to amend each article affected (unless a sequence of consecutive articles is to be replaced by a new sequence of consecutive articles). (b) If several acts are amended by a single amending act, the amendments to each act should be set out together in a separate article. The sequence of amending articles must follow the chronological order of the acts being amended: Article 1 Regulation (EC) No .../95 is amended as follows: (1) Article 2 ... (2) Article 3 ... (3) Article 5 ... Article 2 Regulation (EC) No .../96 is amended as follows: (1) ... (2) ... (3) ... (c) Where a large number of amendments is being made, the amending act can be divided into separate chapters for each act to be amended, with each chapter being divided into separate articles for each article to be amended.
49

3.2.3 Other cases Instead of replacement of text, amendments may consist of insertions or deletions. This will have no effect on the title of the amending instrument, which will always be on the model: Regulation (EC) No ... amending Regulation (EC) No ..., following one of the two forms in point 3.2.1. The further details must be given in the enacting terms. The forms used will be similar to those set out for amendments in the narrower sense. N.B. A distinction must be made between "adding" and "inserting". Material is "added" only when it is placed at the end of an article, paragraph or subparagraph. In all other cases, it is "inserted". Examples: Inserting a single new article Article 1 of the amending regulation should read as follows: Article 1 The following Article Na is inserted in Regulation (EC) No ...: "Article Na [text of new article]". (For the numbering of newly-inserted articles, see footnote 2 to Annex IV.) Inserting a single new numbered paragraph within an article Article 1 of the amending regulation should read as follows: Article 1 In Article N of Regulation (EC) No ..., the following paragraph na is inserted: "na. [text of new paragraph]." (The letter "n" represents the number of the preceding paragraph.) Inserting a single new unnumbered paragraph or subparagraph Article 1 of the amending regulation should read as follows:

50

Article 1 In Article N of Regulation (EC) No ..., the following paragraph is inserted after the nth paragraph: "[text of new paragraph]". or In Article N(n) of Regulation (EC) No ..., the following subparagraph is inserted between the xth and yth subparagraphs: "[text of new subparagraph]." Inserting several new articles in an act or making several amendments, one of which consists of inserting a new article Article 1 of the amending regulation should read as follows: Article 1 Regulation (EC) No ... is amended as follows: (1) The following Article Na is inserted: "Article Na [text of new article]". (2) ... (3) ... (The letter "N" represents the number of the preceding article.) Adding a single new numbered paragraph Article 1 of the amending regulation should read as follows: Article 1 In Article N of Regulation (EC) No ..., the following paragraph n is added: "n. [text of new paragraph]".

51

Adding a single unnumbered paragraph or subparagraph Article 1 of the amending regulation should read as follows: Article 1 In Article N of Regulation (EC) No ..., the following paragraph is added: "[text of new paragraph]". or In Article N(n) of Regulation (EC) No ..., the following subparagraph is added: "[text of new subparagraph]". Deletions The same rules apply and the same examples may be followed mutatis mutandis. N.B. A distinction is made between repeal, which relates to an entire act, and deletion, which relates to all or part of one or more articles: (1) Regulation (EC) No ... is repealed. (2) Article N of Regulation (EC) No ... is deleted. (3) In Article N of Regulation (EC) No ..., paragraph n is deleted. 4. 4.1 RECASTING Introductory An act is said to be recast when its provisions are changed in whole or in part and the old act ceases to exist and is replaced by the new one. The number of the regulation or directive and at least part of its provisions must change; the title and some of its provisions (with recitals relating to them) may remain the same. There are two types of recasting, depending on the degree of change: (a) The rules are fundamentally altered in line with a new philosophy. In 1967 and 1968, for instance, the 1963 and 1964 regulations on the gradual introduction of the common organisation of markets in agricultural produce, which had only partly removed the barriers between national markets, were replaced by new regulations establishing a single market.

52

(b) There may be a large number of changes relating to specific aspects which do not affect the underlying philosophy. Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organisation of the market in fishery products95 is an example. The rules governing governing codification. 4.2 Statement of reasons There are two ways of approaching the statement of the reasons on which the new act is based: one is the historical approach, giving an outline of the original act followed by details of the reasons for and nature of the changes; the other approach is to pass over the history and set out in a systematic manner the reasons for the new rules. In practice the pattern of the earlier reasons is maintained and solely adapted to reflect the changes now being made to the enacting terms. The historical approach is recommended only in the case of a fundamental recasting as described in point 4.1(a) (it was taken to the 1967 and 1968 agricultural regulations). Otherwise, the second approach should generally be followed. The first recital will state that the act is a recasting and set out the title of the original act with an indication of the last amendment: Whereas [name of enacting institution] Regulation ... No ... [Directive .../.../...] of ... 19.. [title], as last amended by ... , has been substantially amended several times; whereas, since further amendments are to be made, it should be recast in the interests of clarity (cf. point 5.3.3). . Where a directive is being recast, the final recital should state that the new directive has no effect on the periods prescribed by the original directive for transposal into national law. Explicit reference should be made to the earlier directives; where there are many of them, they may be listed in an annex with their respective transposal dates: Whereas this Directive should be without prejudice to the time-limits within which the Member States are to comply with Directives ../../EC, ../../EC and ../../EC, Whereas this Directive should be without prejudice to the time-limits set out in Annex ...within which the Member States are to comply with Directive ../../EC and the acts amending it (cf. point 5.3.3). 4.3 Enacting terms the latter category are very similar to those

4.3.1 Improvements When an act is recast, the opportunity should be taken to make stylistic improvements and, if necessary, to rearrange the provisions in a more rational order. If, as was the case when the agricultural market regulations were recast in 1967 and 1968, several acts governing similar fields are to be amended at the same time, the opportunity
95

OJ L 379, 31.12.1981, p. 1; replaced by Regulation (EEC) No 3759/92 (OJ L 388, 31.12.1992, p. 1).

53

should be taken to adopt uniform solutions to recurring problems. As far as possible, the solution should consist of provisions with identical forms of words. 4.3.2 Repeal of the old act: consequences (cf. point I.6.6) (a) The new act must formally repeal the old act. (b) Citations Acts of some importance are often cited in other related or implementing acts. Under the rules of interpretation of legal acts, if an act is replaced by a new one, references to the old text are normally to be construed as references to the corresponding provisions of the new act. But the following questions arise: Which provision of the new act corresponds to the provision of the old act to which reference was made? Does that reference still serve a purpose?

The recommended approach now commonly adopted96 is that the penultimate article should contain an unnumbered paragraph repealing the relevant act or acts and an unnumbered paragraph relating to references, as follows: Article N Directive/Regulation ... is repealed. References to the repealed Directive/Regulation shall be construed as references to this Directive/Regulation and shall be read in accordance with the correlation table in the Annex. The correlation table is then given in two columns with the repealed provisions on the left and the corresponding provisions of the new act on the right. (c) Implementing measures The general principle is that where implementing measures adopted on the basis of an instrument which is repealed are not themselves repealed, they remain in force in so far as they are not incompatible with the new act. It is not advisable for the new act to contain a provision expressly setting out the principle, since it could come to be regarded as a standard formula and its accidental omission could give rise to a contrario interpretations. Where there are doubts as to the compatibility of implementing provisions with the new act, it is better to indicate expressly which measures are repealed and which are not (cf. point I.6.6): Regulation ... and the regulations adopted in implementation thereof [give references or refer to an annex] ... are repealed.
96

For example in Regulation (EEC) No 3796/81 (the fisheries Regulation; see point 4.1(b).

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5. 5.1

CODIFICATION AND CONSOLIDATION Introductory Codification and consolidation consist of combining a number of Community acts into a single text so as to make the law clearer, more transparent and more easily accessible. There are distinctions to be made in terms of form (consolidation or codification)97 and also in terms of substance (horizontal or vertical codification or consolidation).

5.2

Consolidation Consolidation consists of publishing the combined articles and annexes of the original act, as amended, in the C Series of the OJ purely for information. Citations and recitals are generally omitted, since the text has no legal force. The acts which are combined are not repealed. The chief advantage of consolidation is that it saves time. Since the consolidated text has no legal effect, the Commission can prepare it quickly, without the Council and European Parliament being involved. Examples of consolidation are: Council Directive 66/400/EEC of 14 June 1966 on the marketing of beet seed (OJ C 66, 8.6.1974, p. 1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ C 325, 10.12.1992, p. 1)

5.3

Codification (or official codification) Codification, also known as official codification, consists of combining without any substantive amendment the Community acts concerned in a new text adopted in accordance with the same procedure as the original, which replaces the old acts and repeals them with effect from the date on which the codified act enters into force. The new act is accordingly published in the L Series of the OJ. In the event of a discrepancy between the old text and the new, the new text prevails. Codification extends not only to the enacting terms but also to the citations and recitals. In practice, the structure of the statement of reasons follows that of the old text, while taking account of changes made to the enacting terms, including the corresponding recitals, which are sometimes adapted to the new legal situation. Codification thus precludes any change of substance but it is possible to make stylistic improvements, to harmonise terminology, to correct mistakes, to make structural changes and delete obsolete provisions. The numbering of the articles and of the annexes, if any, may be adjusted as appropriate.

97

The Conclusions of the Edinburgh European Council (11 and 12 December 1992) uses the term official codification; this also appears in the Interinstitutional Agreement of 20 December 1994 on the accelerated working method for official codification of legislative texts (OJ C 102, 4.4.1996, p. 2).

55

The Commission has decided98 that codification must be undertaken wherever an act or set of acts has been amended several times, and no later than after the tenth amendment. The European Parliament, the Council and the Commission have agreed on an accelerated working method for official codification of legislative texts99. It requires a Consultative Working Party representing the Legal Services of the three institutions to confirm that the proposal is "indeed confined to straightforward codification without substantive changes". Codification may be accompanied by amendment of the act in question. There are two possible techniques. The first combines codification and amendment from the outset. It constitutes a recasting operation (cf. point 4), and the interinstitutional agreement does not apply. The chief advantage of a recasting is that, from the beginning of the procedure onwards, there is a single text in which all the amendments are logically incorporated, which means that the new provisions are easier to read and understand. On the other hand, the procedure is more time-consuming because of the grave risk of the discussions on the substance of the amendments leading to a reconsideration of the existing provisions which were not intended to be revised. Example: Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ L 107, 22.4.1987, p. 1) The second technique reduces that risk. It separates the codification from the amendment. In parallel with, but quite separately from, the codification exercise, to which the Interinstitutional Agreement applies, a proposal for an amending act is laid before the Community legislator. That proposal is adopted first and then incorporated in the final codified act. 5.3.1 Horizontal codification Horizontal codification consists of combining a number of different but parallel acts on the same subject, together with any amendments, in a single act, the old acts being repealed. The codified text is always accompanied by an annex containing a correlation table between the articles and annexes of the previous texts and those of the codified text. Examples: Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organisation of the market in wine (OJ L 84, 27.3.1987, p. 1) Council Directive 96/26/EC of 29 April 1996 on admission to the occupation of road haulage operator and road passenger transport operator and mutual
98 99

Decision of 1 April 1987 (COM(87) Min 868). Cf. footnote 97.

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recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations (OJ L 124, 23.5.1996, p. 1) 5.3.2 Vertical codification Vertical codification consists of combining an act and all amendments to it into a single new act, the original act being repealed. It is the most commonly used form of codification. A correlation table is necessary, as in the case of horizontal codification. The two forms of codification may be combined where several acts, together with all the amendments made to them over the years, are merged. Examples: Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts (OJ L 232, 9.8.1989, p. 13) Council Directive 93/77/EEC of 21 September 1993 on fruit juices and certain similar products (OJ L 244, 30.9.1993, p. 23) 5.3.3 Form The title of the new act will be the same as the title of the original act (vertical codification) or of the principal act (horizontal codification), unless there is a specific need to change or adapt it. Recitals will always be treated in accordance with the second of the two procedures described at point 4.2. The first recital will state that the act is a codified act and give the title of the original act or acts with an indication of the last amendment: Whereas [enacting institution] Regulation (EC) No ... / Directive ../.../EC of ... [title], as last amended by ..., has been substantially amended several times;* whereas, in the interests of clarity and rationality, it should therefore be codified; Where directives are being codified, the final recital should state that the codified directive is without prejudice to the periods prescribed by the original directives for their implementation in national law. The original directives should be referred to explicitly; if there is a large number of them, they may be listed in an annex, with the time-limit for implementation given in each case.

The footnote will refer the reader to the annex or part listing all the amendments (in acts or provisions) to the codified act or acts.

57

Examples: Whereas this Directive should be without prejudice to the time-limits within which the Member States are to comply with Directives ../.../EC, ../.../EC and ../.../EC; Whereas this Directive should be without prejudice to the time-limits set out in Annex ... within which the Member States are to comply with Directive ../.../EC, and the acts amending it; The provision of the act corresponding to this recital will read: Directive(s) ../.../EC is/are repealed, without prejudice to the obligations of the Member States concerning the time-limits for transposition and application set out in Annex .... The rules for recasting (point 4.3) apply, subject to the following points: all the provisions will be substantively identical to the last version of the provisions being codified, although stylistic and structural improvements may be made if necessary; since there are no substantive changes, it will be necessary to repeal certain implementing measures (see point 4.3.2(c)), which by definition will all be in conformity with the new act.

6. 6.1

PERIODIC ACTS Introductory There are a large number of prices, levies, premiums, refunds and other amounts which the Commission is required to fix at regular intervals (each working day, each week or at other intervals), primarily under the common organisation of agricultural markets. Most are laid down by regulation, as acts which must immediately have effects for individuals. The actual amounts are generally listed in one or more tables annexed to the regulation. Such amounts could theoretically each be fixed by an autonomous act replacing its predecessor, but for the reasons set out at points 6.2 and 6.3 an alternative approach has been taken whereby the first act in the series is simply amended by its successors, even if all the amounts are changed. In other words, the original act remains in force and the grounds for it continue to apply; only the figures in the annexes change. Each series of periodic acts may be of limited or unlimited duration. Acts of limited durection include those "fixing" export refunds in accordance with the management committee procedure on a weekly or monthly basis, some of them being amended by the Commission alone during the intervening period; at the specified expiry date, the refunds are "fixed" again and a new series commences. Alternatively, the series may be of unlimited duration (subject to what is said in the last paragraph of point 6.2); examples are the daily, weekly or other additional import duties fixed by the Commission on its own.
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6.2

Statement of reasons There are problems with the statement of reasons for periodic acts. Specific reasons with figures in support have had to be dispensed with on the grounds set out in point I.5.2(a). But the calculation criteria and procedures used pursuant to a number of texts have to be set out in some detail; those texts are referred to in the recitals so that the reader is given a complete picture of how the competent institution is required to perform the calculations. The result is a fairly long series of recitals, which can hardly be repeated when each periodic act is adopted without rendering the text excessively heavy. The remedy is to give a full statement of reasons, with a complete analytical description of the calculation procedure with reference to the various provisions imposing it, only in the first act in the series. The subsequent acts contain very short preambles, as, for example, in the Commission regulations laying down levies applicable to certain cereal products: Whereas the import levies on ... were fixed by Regulation (EC) No ... and subsequent amending regulations; ... Whereas it follows from applying the detailed rules referred to in Regulation (EC) No ... to today's offer prices and quotations known to the Commission that the levies at present in force should be altered to the amounts set out in the Annex to this Regulation; Where there is a new provision which changes the calculation procedure, for example by incorporating new criteria or by removing some of the existing ones, a new regulation should be produced giving full reasons; subsequent regulations will then refer to the new regulation and not to the original regulation.

6.3

Duration There are two possible approaches to the duration of periodic acts: (a) an act can be adopted for a specified period, on the expiry of which it is "automatically repealed" as it were; or (b) acts are adopted for an indefinite duration but each successive act is so drafted as to make clear that the new provisions replace the old ones. In agriculture, the second approach has come to be generally adopted to avoid the risk of any legal vacuum in the event of a delay. The regulations laying down levies for cereals provide as follows:

59

Article 1 The import levies to be charged on products listed in Article N of Regulation (EC) No ... shall be as set out in the Annex to this Regulation. Article 2 This Regulation shall enter into force on .... 7. 7.1 CORRECTION OF ERRORS What form should the correction take? In each case, consideration must be given to: the principle of legitimate expectations, which must be respected in all circumstances; and the historical context of the error (the stage at which the error entered the text).

7.1.1 Corrigenda A corrigendum (in French: rectificatif) may be used where: (a) the error is manifest and must be corrected100; or (b) the error found its way into the text after the Commission's decision on it and the act has not yet entered into force (or has not even been published or notified). 7.1.2 Correcting acts In all other cases the Commission must make the correction by means of an correcting regulation (or directive or decision, as the case may be; in French: acte rectificatif). The correcting regulation may apply from the date of the original act if this is compatible with the principle of legitimate expectations (for example, where the correction works to the advantage of the persons concerned or where the national authorities concerned inform the Commission that they have not applied the text containing the error). Where the correction works to the advantage of some but to the disadvantage of others, the Commission will adopt a regulation which states that it will apply retroactively only upon request of the person concerned. Finally it is imperative that the correcting regulation applies as from the time of its adoption where that is necessary for the preservation of acquired rights.

100

Since all those concerned will normally rely on their own language versions, the question whether the mistake is an obvious one must be answered separately for each language version so as to avoid jeopardizing any of their legitimate expectations. Where the mistake is in a document that was presented to a committee and was already in the version approved by that committee, it is normally preferable to issue an correcting act rather than a corrigendum, so that the committee can be reconsulted.

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On some occasions an error occurring only in one or some of the language versions needs to be corrected by a regulation which is not retroactive, or at least not fully retroactive. In this rather delicate situation, differences between the language versions and, consequently, between practice in the different Member States will have to be accepted as regards the past; the versions containing the error will therefore be corrected for the future, the other versions remaining intact. An act correcting a mistake in one or more language versions of another act must contain all the components of an "ordinary" act (title, citations, recitals) in all the language versions, but not the enacting terms in the case of language versions not concerned by the mistake. The enacting terms of these versions will not contain the corrected version in the language containing the mistake but will indicate the precise point at which the corrected text is to be inserted and state, for example in the English version: Concerns only the X version/X and Y versions. If a directive or a decision for which notification is provided by the Treaties contains a mistake in the version as notified but not in the version as published in the OJ, only the version as notified need be corrected. 7.2 The correction procedure On 13 July 1977 the Commission took the following decision (COM(77) Min 438): (a) In accordance with Article 27 of the Commission's provisional Rules of Procedure101 and its decision of 23 July 1975, laying down the principles and conditions whereby the Commission may delegate its powers, the Secretary-General of the Commission is authorised, in the name of and on the responsibility of the Commission, to make corrections to Commission legal acts: which contain an obvious error; whether the documents are published or not; whether the error occurs in one or more language versions.

(b) If the Secretary-General is prevented from making the corrections, the person deputising for him is authorised to do so. (c) The Secretary-General will act on the basis of a request from the department or departments concerned, in agreement with the Legal Service as co-responsible department.

101

Article 11 of the Commission's Rules of Procedure of 17 February 1993 which are currently in force (OJ L 230, 11.9.1993, p. 15), as amended by Decision 95/148/EC, Euratom, ECSC (OJ L 97, 29.4.1995, p. 82).

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III. 1. 1.1 TERMINOLOGY Clarity (a) Consistency

DRAFTING RULES102

There are two basic rules to avoid creating confusion for those called on to interpret an act: The same terms must be used throughout to express a given concept. The same terms must not be used with different meanings.

This applies not only to the provisions of one act but also to provisions of related acts. An implementing act, for instance, should not depart from the terminology of the basic act. The same applies where a number of parallel acts containing comparable provisions are drawn up to govern different areas. (b) Following precedents and improving them It is common for an act to be drafted in whole or in part on the basis of earlier acts. Sometimes, provisions of an act that is to be replaced will be taken over in the new act, or provisions from an act applying in one area will be taken over in an act applying in another. Improvements may be made to such precedents, where appropriate, and mistakes should always be corrected. (c) Choosing the right term For a given concept, choose the term which will express it most precisely. Do not use words that make it necessary to give interpretations extending or restricting their sense (for example, use "measures" rather than "provisions" where the intention is to refer not just to formal rules but other forms of action as well). (d) Ordinary meaning; definitions Use terms in their ordinary sense. If a particular word has one meaning in everyday language but a different meaning in legal language, rephrase the text to avoid any ambiguity. Where in a given act terms are to be used in a sense different from their usual or legal meaning, that sense must be indicated in the act by a definition or some other means. In no circumstances may words be given a sense different from that in consistent usage.

102

See also the Council Resolution of 8 June 1993, reproduced in Annex I.

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Definitions need not be given if a word is being used with its ordinary or legal meaning. 1.2 Concordance of language versions In Community legislation it is often necessary to avoid using terms that are commonly used in domestic law but have no satisfactory equivalent in one or more of the other Community languages, or where concepts are broader or narrower in the different languages. In such situations, either use a different term which, while it may be less elegant, may be more appropriate in context, or, as long as the will of the enacting institution is still achieved, rephrase the text in such a way that it can be rendered in the same way in all the languages. 2 2.1 PRESENTATION Sentence structure (a) For practical reasons, and in particular so that cross references can be the same in all languages, the text must be divided into separate sentences at the same places in all language versions. Where this creates difficulties in one or other language, the semicolon may be used to break sentences. (b) Since articles and numbered paragraphs are autonomous, self-contained units of text, it is often useful and sometimes essential to ensure clarity by repeating words and expressions used in one article or numbered paragraph in another article or numbered paragraph. Example: Do not write: 1. 2. The Council shall take all the measures necessary to ensure that .... It shall adopt these measures in accordance with the procedure laid down ....

but write: 1. 2. 2.2 The Council shall take all the measures necessary to ensure that .... The Council shall adopt the measures referred to in paragraph 1 in accordance with the procedure laid down ....

Numerals (a) Dates Figures are generally used for times of day and for the day of the month and the year in dates, whereas the name of the month is spelt out (except in document references in footnotes):

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Examples: On 10 January 1995 At 12.00 hours on 1 October 1994 One general exception to this rule is that dates are spelt out in full in the closing formulas of international agreements: Example: Done at Brussels on the twenty-eighth day of April in the year one thousand nine hundred and ninety-five. (b) Numbers The basic rule is to spell out numbers up to nine and to use figures above that but when that would lead to inconsistency within one sentence, use figures throughout. Common sense will often dictate other exceptions, depending on the nature of the text (scientific, statistical, general) and the frequency with which numbers appear in it. Be consistent within one and the same act. Figures are generally used for dates (see point (a)) and always for subdivisions of text, such as articles103 and numbered paragraphs (see Annex IV). Figures are used, for instance, to refer to page 2 or to Article 45(2). But note that some subdivisions (paragraph, subparagraph or sentence) are unnumbered (see point I.6.3.4) and are consequently identified by the ordinal adjective, for example, the "second indent of the first sentence of the third subparagraph (not the 3rd subparagraph or subparagraph 3) of Article 45(2)". (c) Physical quantities, percentages, money Physical quantities such as lengths and areas, percentages and amounts of money are generally expressed in figures, particularly when symbols or abbreviations are used, but this is not a hard and fast rule and regard must be had to the nature of the text: 2.54 cm vessels exceeding eight metres length overall a speed of 5 km/h 6 m2 holdings with an area of more than ten hectares a rate of 2.25% a one pcercentage point increase a fine of EUR 20 000.

103

The only exception in English is where an act contains only one article, which is referred to as the "Sole Article".

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Figures are always used in tables and lists. Note that the words "million" and "billion" are usually written out in full. 2.3 Abbreviations and acronymns (a) Abbreviations and acronyms should be used sparingly. But where a short form is commonly used, notably to designate a body or programme, the short form may appear in parentheses after the name (see also point (b)). In some cases the short form may be derived from another language. Cases where each language uses its own abbreviation: European Agricultural Guidance and Guarantee Fund (EAGGF) Cases where all languages use the abbreviation that is specific to one of them, for example a French acronym: European Committee for Standardisation (CEN) Cases where some languages use their own abbreviation and others use a standard: Scientific and Technical Research Committee (Crest) (b) Where a long name is repeatedly referred in an act, it is often best to use a short form or an abbreviation or acronym, which should appear in parentheses after the full name at the first reference and alone thereafter. Where an abbreviation is commonly used, particularly to designate a body or a programme, use it in the following way: First reference: the Scientific and Technical Research Committee (Crest)

Subsequent references: Crest If there is no recognised abbreviation, use a short form as follows: First reference: the Standing Committee (hereinafter "the Committee") on Employment

Subsequent references: the Committee (c) Units of measurement and currencies are generally spelt out except in tables and lists. For the names, symbols and definitions of units of measurement, see Council Directive 80/181/EEC104. For currency names and symbols, you are recommended to follow International Monetary Fund (IMF) practice.
104

OJ L 39, 15.2.1980, p. 40; last amended by Directive 89/617/EEC: OJ L 357, 7.12.1989, p. 28.

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The names and symbols of the Member States' currencies are as follows: Belgian franc: Danish krone: German mark: Greek drachma: Spanish peseta: French franc: Finnish mark: Irish pound: Italian lira: Luxembourg franc: Dutch guilder: Austrian schilling: Portuguese escudo: Swedish crown: Pound sterling: BEF DKK DEM GRD ESP FRF FIM IEP ITL LUF NLG ATS PTE SEK GBP

See Article 109g of the EC Treaty as regards the ECU. 2.4 Capitalisation Standard English practice is to use initial capital letters for all key words in names of organisations, important documents and so on (unlike the practice in French of writing only the first letter of the first noun as a capital). (a) Personal names Capitalise only the first letter of each name and place the forename before the family name: Robert Schuman, not Schuman Robert, nor Robert SCHUMAN. (b) Formal names of Member States All key words - references to the type of state (e.g. Republic) and territorial divisions, whether adjectives or substantives - take initial capitals: Kingdom of Belgium Kingdom of Denmark Federal Republic of Germany Hellenic Republic Kingdom of Spain French Republic Ireland Italian Republic Grand Duchy of Luxembourg Kingdom of the Netherlands Republic of Austria Portuguese Republic Republic of Finland Kingdom of Sweden
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United Kingdom of Great Britain and Northern Ireland See also point 3.3.1. (c) Organisations, institutions, international agreements and the like Use initial capitals for all major words: European Atomic Energy Community United Nations Food and Agriculture Organisation European Parliament European Agricultural Guidance and Guarantee Fund Treaty establishing the European Economic Community General Agreement on Tariffs and Trade Convention on International Trade in Endangered Species of Wild Flora and Fauna (Cites) Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Judgments Convention) Multifibre Arrangement (d) Instruments and provisions thereof The words "treaty", "regulation", "directive" and "article" take initial capitals where they refer to a specific act or article but are lowercased where the reference is generic: Regulation (EEC) No 822/87 on the common organisation of the market in wine Articles 85 and 86 BUT the regulations on wine the articles concerned (e) Abbreviations and acronyms The general practice for abbreviations and acronyms is to use full capitals without points: ECSC, EEC, UN (not UNO), UNHCR, UNRWA BBC, IBM, CCT, CN COST, JET However, Publications Office practice is to use capitals only for the first letter of acronyms of six letters or more that can be pronounced:

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Cenelec, Euratom, Unesco, Nimexe, Stabex Comett, Teleman 3. 3.1 PROTOCOL Order of references to the Communities in titles of acts of more than one Community The abbreviations of the Communities are now cited in the historical order (ECSC, EC, Euratom). Regulation (ECSC, EC, Euratom) No .../94 Decision 95/.../EC, Euratom N.B. For older acts, the abbreviations are cited in the order in which they appear in those acts. 3.2. Order of references to the Treaties establishing the Communities The order to be followed, in particular in the citations, is the historical order: Treaty establishing the European Coal and Steel Community, Treaty establishing the European Community, Treaty establishing the European Atomic Energy Community. 3.3 Names of States: order of listing

3.3.1 Member States Where only Member States are listed, they should appear in the alphabetical order (Latin alphabet) of their names in their own languages105. Their names therefore appear in the following order in all languages (short forms): Belgium Denmark Germany Greece Spain France Ireland Italy Luxembourg Netherlands Austria Portugal
105

B DK D EL E F IRL I L NL A P

Belgi/Belgique, Danmark, Deutschland, Ellas, Espaa, France, Ireland, Italia, Luxembourg, Nederland, sterreich, Portugal, Suomi Finland, Sverige, United Kingdom. Accession treaties and other treaties having a status comparable to that of the founding treaties are also drafted in Irish and the order ought therefore to be changed to place the Irish name of Ireland (ire) before Greece; however, this is not done in practice.

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Finland Sweden United Kingdom

FIN S UK

The full, official names of States (Federal Republic of Germany, French Republic, United Kingdom of Great Britain and Northern Ireland, for instance) are used only in the formal parts of an act where the State is referred to qua legal entity. Note that the full, official designation in English of Ireland is "Ireland" (not the "Republic of Ireland". As a general rule, the short forms of Member States' names should be used (e.g. Germany, France, United Kingdom). Never use "FRG" or "BRD" to refer to Germany. "UK" is acceptable only when used adjectivally. 3.3.2 Member States and third countries; international organisations Where a list includes both Member States and third countries, refer to them in the alphabetical order of the language in which you are writing. In English, for instance, write: Austria, Chad, Denmark, France, Spain, Switzerland, United Kingdom, United States. 3.4 Order of references to languages (a) For multilingual texts, the order followed in secondary legislation is the alphabetical order (Latin alphabet) of the official names of languages as given in the respective language versions of Council Regulation No 1 determining the languages to be used by the European Economic Community and Regulation No 1 determining the languages to be used by the European Atomic Energy Community (OJ 17, 6.10.1958, pp. 385 and 401 respectively), that is to say: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) Spanish (castellano)106 Danish (dansk) German (Deutsch) Greek (ellinika) English French (franais) Italian (italiano) Dutch (Nederlands) Portuguese (portugus) Finnish (suomi) Swedish (svenska) ES DA DE EL EN FR IT NL PT FI SV

This is the order to be used, for example in: annexes to regulations and directives, the Community laissez-passer (see Council Regulation (ECSC, EEC, Euratom) No 1829/69)107, final clauses of agreements, models of Community certificates and the like.

106

107

Castellano (Castilian) is the Spanish State language and is used in the Spanish versions of the two Regulations No 1 (thus determining its position in the alphabetical list); at the request of the Spanish authorities, the language is in practice referred to as "Spanish" (la lengua espaola). OJ L 235, 18.9.1969, p. 1.

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The rule is to be applied strictly in closing formulas of treaties and agreements (in accession treaties and other treaties having comparable status to the founding treaties, Irish108 must be inserted after French). (b) In monolingual texts, the languages should be listed in Latin alphabetical order of the official names of the languages in the language of the text. Example: Only the Danish, Dutch, English, etc. versions are authentic 4. 4.1 REFERENCES Introductory Where one act is to be referred to in another act, the title should be given in full or in particular if the reference is in the title or if the other act has already been cited - in a short form. The reference may be to the whole act or to one or more of its provisions. 4.2 References in title Where the title of an act is referred to in the title of another act: where both acts are enacted by the same institution, the name of the institution is not repeated; the date is omitted, unless the reference is to an unpublished act which has no official serial number or publication number; no reference is made to the OJ in which it was published; and no mention is made of any amending acts.

The act referred to may be cited not by its full title but by a short form with a succinct description of the subject matter. Examples: Enacting institution is the same Council Regulation (EEC) No 3822/85 of 20 December 1985 amending Regulation (EEC) No 918/83 setting up a Community system of reliefs from customs duty

108

Gaeilge.

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Enacting institution is not the same Commission Regulation (EEC) No 2287/83 of 29 July 1983 laying down provisions for the implementation of Article 127 of Council Regulation (EEC) No 918/83 setting up a Community system of reliefs from customs duty The act is not published and bears no number Resolution of the Representatives of the Governments of the Member States meeting within the Council, of 14 July 1986, supplementary to the Resolutions of 23 June 1981 and 30 June 1982 concerning the introduction of a passport of uniform pattern 4.3 References in citations The general rule is that the full title should be given. In the case of directives or decisions to be notified which have been published, the publication number is inserted. The full title is followed by a superscript arabic numeral in parentheses referring to a footnote indicating the OJ in which the act was published. There is no such footnote in the case of the Treaties establishing the Communities and other equally well-known acts (Accession Treaties, ACP-EEC Convention of Lom). References to the Acts concerning conditions of accession and adjustments to the Treaties are given in short form without reference to the Treaties of Accession themselves: Example: Having regard to the Act of Accession of Spain and Portugal, ... The Staff Regulations are referred to by the main part of the title and the official serial number of the regulation: Example: ... the Staff Regulations of Officials (and Conditions of Employment of Other Servants) of the European Communities, laid down by Regulation (EEC, Euratom, ECSC) No 259/68(*) If the act cited (regulation, directive, decision) has been amended, there will be added the words "as amended by ..." or, if there has been more than one amendment, "as last amended by ...". Reference to the most recent amending act enables the reader to retrace all the earlier amending acts. The amending act is cited by its number and the abbreviation of the Community concerned, the enacting institution is specified only if it is not the same as the institution that adopted the amended act. The date and title are not given.

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4.4

References in recitals Acts are cited with their full title save where that is not necessary for a proper understanding of the text: Example: Whereas under Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products(*), the Member States are to exempt ...; If the act cited (regulation, directive, decision) has been amended, there will be added the words "as amended by ..." or, if there has been more than one amendment, "as last amended by ...". Reference to the most recent amending act enables the reader to retrace all the earlier amending acts. The amending act is cited by its number and the abbreviation of the Community concerned; the enacting institution is specified only if it is not the same as the institution that adopted the amended act. The date and title are not given. The citation is followed by a reference to the footnote indicating the OJ reference. Example: Whereas the conditions governing intervention buying-in of cereals were laid down by Council Regulation (EC) No ... (*), as amended by Regulation (EC) No ... (**), and by Commission Regulation (EC) No ... (***), as last amended by Regulation (EC) No ... (****); If it is wished to draw attention to an amendment made to a key provision of the act cited before the most recent amendment, that may be done at the appropriate place.

4.5

References in the enacting terms References to other acts in the enacting terms must be confined to those that are absolutely essential. The enacting terms must be capable of being understood on their own, without the reader having to refer to other instruments. The potential problems stemming from amendment or repeal of the act cited must also be avoided109. Where possible, it is preferable to refer in general terms to rules existing elsewhere rather than to a specific text, which may at any time be amended or repealed. In references in the enacting terms, amending acts are never cited.

109

If the act cited is amended, the reference is taken to be to the act as amended. If the act is replaced, the reference is taken to be to the new act. If an act is repealed and not replaced, any lacunae can be supplied by means of interpretation. Where acts are recast or consolidated and articles are renumbered in the process, the changes must be set out in a correlation table annexed to the consolidated or recast act (see point II.4.3.2(b)).

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Examples: (a) Cases where the act has already been cited In accordance with Article N of Regulation (EC) No .... (b) Cases where the act has not yet been cited Subject to the provisions referred to in paragraph 2, products shall be bought in in accordance with the provisions of Council Regulation (EC) No ... (*). 4.6 References to unpublished acts Where the reference is to an unpublished act which has no number, the form, enacting institution and date of adoption are given. At the first reference in the enacting terms, even if the act has already been referred to in the preamble, the title is repeated. If a number of unpublished acts adopted on the same date are to be referred to, it is necessary to repeat at least the short title each time. 4.7 References to subdivisions of the enacting terms110

4.7.1 Structure (a) References to individual provisions will often have to specify various subdivisions to identify the precise location. Subdivisions are hierarchically structured and are generally referred to in descending order where they are numbered (e.g. Article 45(2) and in ascending order where they are not (e.g. the first paragraph of Article 46)111. Care must be taken with hybrid combinations of numbered and unnumbered subdivisions (e.g. the second indent of the first subparagraph of Article 45(1)). For the sake of clarity, refer to the lowest possible subdivision of the provision. Examples: the second sentence of Article 1(1) at the beginning of the third subparagraph of paragraph 2 the second indent of point (b). N.B. Subdivisions should be referred to in the forms set out in the table in Annex IV; do not abbreviate, for example, "Article" to "Art.". (b) When referring to higher or preceding subdivisions of the same provision, give only such references as are necessary.
110 111

See Annex IV. This rule does not always apply to divisions of an act higher than an article. Example: Chapter 1 of Title III in Part Three of the Treaty. An alternative is to give the divisions in descending order, separated by commas: Part Three, Title III, Chapter 1.

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Example: If point (b) of Article 3(1) is to refer to the second indent of point (a) of the same paragraph, write: ... in the second indent of point (a) not: ... in the second indent of Article 3(1)(a) nor: ... in the second indent of point (a) of this paragraph. N.B. When reference is made to articles which are themselves grouped within a higher subdivision (part, title, chapter, section), there is no need to refer to those higher subdivisions since articles are numbered consecutively from the beginning to the end of the act. Example: Article 2, not Article 2 of Section 1 4.7.2 Lists of provisions (a) Where references are made in the form of lists of subdivisions of the same level which are not subdivided at lower levels, references can be simplified by not repeating the level before each of them but using the plural form. Examples: Chapters 1 and 2 Articles 1, 4 and 9 Articles 1 to 4 Articles 1 to 4 and 9 the first and third indents112 N.B. If the list comprises only three consecutive subdivisions, it is preferable to specify them individually rather than to contract them:

112

Where a provision is subdivided not by the dashes commonly used to open indents but by lowercase letters or roman numerals in parentheses ((a), (b), (c), etc. or (i), (ii), (iii), etc.), the reference will be to "points (a) and (c)" or "points (i) and (iii)".

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Example: Articles 2, 3 and 4, not Articles 2 to 4. (b) Where a list comprises subdivisions of the same level but some are subdivided to lower levels, it is necessary to repeat the name of the higher subdivision each time it is accompanied by lower subdivisions and for each group of provisions not so accompanied: Example: Article 1, Article 5(2) and (3) and Articles 6 to 9 not Articles 1, 5(2) and (3) and 6 to 9 4.7.3 Expressions to be avoided in references Where a reference is made within an act to another subdivision of the same act: do not refer to the "foregoing", "preceding" or "following" subdivision instead of the exact reference; never add "above" or "below" to the exact reference; where the reference is to a sequence of consecutive articles (e.g. "Articles 3 to 6"), the word "inclusive" is superfluous; only add "of this Regulation/Article" and the like if there is otherwise a risk of ambiguity. Examples: Where paragraph 2 of an article refers to paragraph 1 of the same article, write: 2. not: ... in the foregoing paragraph .... nor: ... in paragraph 1 above .... nor, unless there is a real danger of ambiguity: ... in paragraph 1 of this Article ... The procedure provided for in paragraph 1 shall apply ....

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ANNEX I

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ANNEX II
COUNCIL DECISION of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (1999/468/EC)

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ANNEX III

LEGISLATIVE CHECKLIST
The explanatory memorandum must satisfy the following requirements. 1. 2. 3. JUSTIFICATION AND OBJECTIVE: reference to the Commission's work programme. LEGAL BASIS THE TEXT MUST BE READER-FRIENDLY AND USER-FRIENDLY. It must be clearly worded, simple in presentation and content, and concise. It should not stretch to more than twenty pages. SUBSIDIARITY AND PROPORTIONALITY What are the objectives of the planned measure in relation to the Community's obligations? Does the measure fall within the Community's exclusive competence or is competence shared with the Member States? Where competence is shared, apply the subsidiarity test: . . . What is the Community dimension of the problem? Necessity test: can the objectives not be adequately achieved by the Member States? Effectiveness test: what is the most effective solution, that achieved by Community means or that achieved by national means? What specific added value is contributed by the planned Community measure and what would be the cost of taking no action?

4.

Proportionality test: are the means of Community action proportionate to the objectives? . What is the most suitable act for achieving the objectives? (Recommendation, financial support, mutual recognition, legislation, etc.). In the case of legislation, is the scope, duration or intensity greater than what is necessary?

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5.

SIMPLIFICATION (legislative and administrative): any advantages or constraints resulting from the proposed measure, both for the Community and for the Member States, should be explained in detail. CONSISTENCY WITH OTHER COMMUNITY POLICIES EXTERNAL CONSULTATIONS: an account must be given of the procedures and outcome of such consultations. ASSESSMENT: every act must be subject to assessment; procedures and techniques should be specified. ASSESSMENT OF FRAUD RISKS _______________________________

6. 7. 8. 9.

10.

FINANCIAL STATEMENT (a separate document showing the budgetary implications and the human and administrative resources required).

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Annex IV: Structure of the enacting terms

Designation I. Higher divisions1 Part Title Chapter Section II. Basic unit Article or Point2 I, II (or A, B) (or I. or A. or 1.) ... Sole Article or Article 1, 2 (or I, II) (in the) Sole Article (in) Article 1, 2 (or I, II) (in) point I, II (A, B) (in) point I (A or 1) Symbol Part I, II Title I, II (in) Title I, II Chapter I, II (or 1, 2) (in) Chapter I, II (or 1, 2) Section 1, 2 (in) Section 1, 2 Basic units may or may not have a title Continuous numbering (even where there are higher divisions)3 Used in certain recommendations, resolutions, declarations and statements Subdivisions do not have a title Independent subdivision of an article Non-independent element of an article Subdivision of a numbered paragraph Generally preceded by an introductory phrase6 Method of reference (in) Part I, II (or Part One, Part Two) Comments These divisions may or may not have a title Used (together or singly) in certain long and highly structured texts)

III. Subdivisions Paragraph (numbered) Paragraph (unnumbered) Subparagraph Point4 1., 2. none none (a), (b) (1), (2) (i), (ii), (iii), (iv) none (in) paragraph 1, 2 (in) the first paragraph (in) the first subparagraph (in or at) (point) (a), (b) (in or at) (point) (1), (2) (in or at) (point) (i), (ii) in the first indent in the first sentence

Indent5 Sentence

2 3 4 5

Where more than one of these divisions occur in the same text, do not use roman numerals for all of them: use a combination of the various possibilities (cardinal numbers, roman numerals, arabic numerals), as in the EEC Treaty (Part Two, Title III, Chapter 1). Method of referring to subdivisions of such points: e.g. point I.(a), point A.(1). For the numbering of new articles for insertion, see point II.3.2.3(a). Method of referring to combinations of such points: e.g. point (a)(i), point (1)(i). For the purposes of presentation, subindents (additional indents further to the right) and double indents (=) should not be used in lists etc.; if necessary, use (i), (ii), etc. Reference to the introductory phrase may be made by words such as at the beginning of, the introductory words of or the introductory part of. The introductory phrase ends with a colon. When, within a paragraph, points (2), (b) etc. are not preceded by an introductory phrase they are treated as genuine subparagraphs and end with a full stop.

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INDEX
(References are to point numbers) Abbreviations and acronyms, III.2.3 by language, III.2.3(a) capitals, full or initial, III.2.4 for Communities, III.3.1 for currencies, III.2.3(c) for languages, III.3.4 for units of measurement, III.2.3(c) used after or instead of full name, III.2.3(a, b) See also Names of organisations and the like; Names of States Acts annexed. See Annexes Addition of material, II.3.2.3 See also Insertion of a provision Addressees, I.6.9.4 Amendment, II amendment in part, II.1.1.1 choice of form of, II.1.2 codification and consolidation, II.1.1.2(b), II.1.2(d), II.5 correction of mistakes, II.7 formal parallelism, II.1.3 full-scale amendment, II.1.1.2 periodic acts, II.6 recasting, II.1.1.2(a), II.1.2(c) references to amended acts, III.4 substantive, II.1.1.1, II.1.2(b), II.2 textual, II.1.1.1, II.1.2(a) See also Consolidation and codification; Correction of mistakes; Periodic acts; Recasting; Textual amendments Annexes, I.8 acts annexed, I.8.3 in the strict sense, I.8.2 to agreements, I.8.4 See also Textual amendments Applicability, direct, I.7.1 Applications or requests (to be mentioned in citations or recitals), I.4.4(g) Arrangement of enacting terms, I.6.3, Annex IV arrangement of articles (part, title, chapter, section), I.6.3.2 basic unit (article), I.6.3.3 subdivisions (paragraph, subparagraph, point, indent, sentence), I.6.3.4 See also Article; Implementing powers; Point; References to subdivisions of enacting terms; Textual amendments
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Article, I.6.3.3, Annex IV basic unit, I.6.3.1(a), I.6.3.3 clarity, I.6.3.3(a) final, I.6.8 (see also Enacting terms) grouping, I.6.3.2(b) numbering of articles inserted later, II.3.2.3(a) of original articles, I.6.3.3(b) sole, I.6.3.1(a) subdivisions, I.6.3.4, Annex IV title, I.6.3.3(a) See also Arrangement of enacting terms; References to subdivisions of enacting terms; Textual amendments Assents, consultations and opinions (mandatory), I.4.4(b) OJ reference, I.4.4(h) Parliament, I.4.4(c) Beginning of periods of validity, I.6.9.1 date on which certain directives and decisions take effect, I.6.9.1(c) deferred application, I.6.9.1(b) (v) entry into force determination of date, I.6.9.1(b)(i, ii) general treaty rules, I.6.9.1(b) expressions to be used, I.6.9.1(a) implementation of directives, I.6.9.1(d) implementation of non-binding acts, I.6.9.1(e) retroactive application of regulations, I.6.9.1(b)(iv) time of day when period begins, I.6.9.1(a) Capitalisation, III.2.4 abbreviations and acronyms, III.2.4(e) formal names of Member States, III.2.4(b) instruments and provisions thereof, III.2.4(d) organisations, institutions, international agreements and the like, III.2.4(c) personal names, III.2.4(a) Chapter. See Arrangement of enacting terms Check-list, legislative, footnote 46, Annex III Citation requirement, I.6.9.3 Citations, I.4 amendment, II.3.1.1 applications and requests, I.4.4(g) assents, I.4.4(b) codecision procedure, I.4.2 conciliation, I.4.2 drafts, I.4.4(a) form, I.4.2
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proposals, I.4.4(a) reference to OJ, I.4.2, I.4.4(h) See also Consultations and opinions; Legal basis; Treaties Closing formulas, I.7 binding in its entirety and directly applicable, I.7.1 date and signature, I.7.2, III.2.2(a) dates spelt out in full, III.2.2(a) regulations and ECSC general decisions, I.7.1 Codecision citations, I.4.2, I.4.4(c) conciliation, I.4.2, footnote 38 modus vivendi, I.5.3.2 multiannual programmes, I.5.4(a) preparatory acts, I.4.2 publication, I.2.1.A signature, I.7.2 Codification See Consolidation and codification Commission statements, I.1 Committee procedures, I.4.4(e), I.5.3 advisory committee, I.4.4(e), footnote 67 Council Decision 87/373/EEC, I.4.4(e), Annex II management committee, I.4.4(e), I.5.3.1, footnote 67 regulatory committee, I.4.4(e), I.5.3.1, footnote 67 See also Implementing powers Common foreign and security policy (CFSP), I.1 Common position (codecision and cooperation procedures) publication in OJ, I.2.1(B)(a) Common position (TEU) duration, I.6.9.1(c) form, I.1 notification, I.6.9.1(c) title, publication in OJ, publication number, I.2.1(B)(b), I.2.3(a)(3), I.6.9.5 Communities, order of reference, III.3.1 Conciliation financial reference amount, I.5.4(c) codecision procedure, I.4.2, footnote 38

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Consolidation and codification, II.1.1.2(b), II.1.2(d), II.5 accelerated procedure, II.5.3 accompanied by amendment, II.5.3 codification, II.5.3 consolidation, II.5.2 directives, II.5.3.3 form, II.5.3.3 horizontal codification, II.5.3.1 Interinstitutional Agreement, footnote 97 official codification, II.5.3 recitals, II.5.3.3 title, II.5.3.3 vertical codification, II.5.3.2 See also Recasting, Correlation table Consultations and opinions advisory committees, I.4.4(e) Association Councils or associated countries, I.4.4(f), I.5.3.3 European Parliament, I.4.4(c), I.4.4(d) form of citation, I.4.2 management committees, I.4.4(e), I.5.3.1 mandatory consultation, I.4.4(b) optional consultation, I.4.4(d) references in Official Journal, I.4.4(h) regulatory committees, I.4.4(e), I.5.3.1 Conventions (justice and home affairs) Title, publication in OJ, number, I.2.1(B)(b), I.2.3(a)(3) Cooperation with European Parliament Reference in recitals, I.4.4(c) Correction of errors, II.7 amending acts, II.7.1.2 corrigenda, II.7.1.1 form of correction, II.7.1 procedure, II.7.2 Correlation table codification, II.5.3.1, II.5.3.2 recasting, II.4.3.2(b) Council resolutions, I.1, I.6.3.1(c) Currencies, III.2.3(c) Date of taking effect (of directives and decisions), I.6.9.1(c) See also Beginning of periods of validity

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Dates adoption in closing formula, I.7.2 in title, I.2.2(d) amendment, II.3.2.2.1(b) entry into force, I.6.9.1(b)(i, ii) form (figures or words), III.2.2(a) publication, I.6.9.1(b)(iii) Decisions and recommendations (ECSC), general binding nature, I.7.1 closing formulas, I.7 designation, I.2.2(a), I.2.3(a)(1) direct applicability, I.7.1 enacting formula, I.3 entry into force, I.6.9.1(b) title, publication in OJ, official number, I.2.1(A), I.2.2, I.2.2(b)(i) Decisions and recommendations (ECSC), individual designation, I.2.3(a)(1) enacting formula, I.3 entry into force, I.6.9.1(c) title, publication in OJ, publication number, I.2.1(B)(a), I.2.3 Decisions (EC and Euratom) closing formula, I.7 date of taking effect, I.6.9.1(c) designation, I.2.2(a) enacting formula, I.3 entry into force, I.6.9.1(b) title, publication in OJ, official serial number, I.2.1(A), I.2.2 title, publication in OJ, publication number, I.2.1(B)(a), I.2.3 Decisions, justice and home affairs form, I.1 Decisions of mixed bodies (established by Agreements) entry into force, deferred or retroactive application, I.6.9.1(c) Decisions sui generis date of taking effect, I.6.9.1(c) deferred or retroactive application, I.6.9.1(c) designation, I.2.3(a)(2) enacting formula, I.3 entry into force, I.6.9.1(c) title, publication in OJ, publication number, I.2.1(B), I.2.3 Deferred application, I.6.9.1(b)(v) Definitions, III.1.1(d) Deletion of a provision
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form, II.3.2.3 statement of reasons, footnote 45 Direct applicability, I.7.1 Directives date of taking effect, I.6.9.1(c) enacting formula, I.3 entry into force, I.6.9.1(b)(3, 4) implementation, I.6.9.1(d) interconnection clause, I.6.9.3 title, publication in OJ, official serial number, I.2.1(A), I.2.2(b), footnote 7 title, publication in OJ, publication number, I.2.1(B)(a), I.2.3 Drafting rules, III Resolution on quality of drafting, Annex I Drafts and proposals reference in citations, I.4.4(a) reference to OJ, I.4.4(h) Duration or end of periods of validity expressions to be used, I.6.9.2 general, I.6.9.2 periodic acts, II.6.1, II.6.3 ECU How to write, III.2.3(c) Effect date on which directives and decisions take effect, I.6.9.1(c) deferred application , I.6.9.1(b)(v) implementation of directives, I.6.9.1(d) retroactive, I.6.9.1(b)(iv) See also Beginning of periods of validity; Duration or end of periods of validity Enacting formula, I.3 Enacting terms, I.6 amendment, II.3.1.1 content, I.6.1(a, b) final provisions, I.6.9 addressees, I.6.9.4 beginning of periods of validity, I.6.9.1, II.3.1.2(b) end of periods of validity, I.6.9.2, II.6.3 publication and notification, no reference to, I.6.9.5 provisions amendment, I.6.5, II conferring implementing powers, I.6.4 penalties, I.6.8 repeal, I.6.6 temporary and transitional, I.6.7
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to be omitted, I.6.2 use of shall, I.6.1(c) See also Arrangement of enacting terms; Beginning of periods of validity; Consolidation and codification; Duration or end of periods of validity; Recasting; Textual amendments Entry into force, I.6.9.1(b) See also Application; Beginning of periods of validity; Date of taking effect European Economic Area (EEA) texts with EEA relevance, I.2.4 Explanatory memorandum legislative check-list, footnote 45, Annex III Figures. See Numbering; Numbers Financial Regulation, enacting formula, I.3 Footnotes, I.9 content and legal status, I.9.1 OJ references, I.4.2, I.9.2 See also References Foreign and security policy, common (CFSP), I.1 Form of binding acts, I.1 of non-binding acts, I.1 Formal names of states, III.2.4(b), III.3.3.1 Formal parallelism, II.1.3 Implementing powers, I.6.4 See also Committee procedures Indent, I.6.3.4(d), Annex IV See also Arrangement of enacting terms Insertion (of a provision), II.3.2.3 See also Addition of material Institution, enacting in opening formula, I.3 in title, I.2.2(a) Interconnexion, clause d. See Citation requirement

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Introductory phrases, I.6.3.4(d), II.3.2.2, II.3.2.2.2(a), Annex IV Joint actions and joint positions (TEU) duration, I.6.9.1(c) form, I.1 notification, I.6.9.1(c) title and publication, I.2.1.B(b), I.2.3(a)(3), I.6.9.5 Justice and home affairs cooperation, I.1 form of decisions, I.1 Languages abbreviations, III.3.4 acts not authentic in all eleven versions, I.2.3(c) concordance of versions, III.1.2 mistakes in some versions only, II.7.1.2 order of references to, III.3.4 Legal basis (to be cited), I.4.3 citation by correspondence, I.4.3.5(a) citation by reference, I.4.3.5(b) for amendments, I.4.3.7 in the broader sense successive empowering provisions, I.4.3.4 Treaties, I.4.3.1 in the strict sense, I.4.3.2 international agreements, I.4.3.3 more than one, I.4.3.5 reference to future acts, I.4.3.6 See also Citations Legislative check-list, footnote 46, Annex III Modal use of shall, I.6.1(c) Modus vivendi, See Codecision procedure Names of international agreements, nomenclatures, etc., III.2.4(d) Names of organisations and the like abbreviations and acronyms, III.2.3(a), III.2.4(f) capitalisation, III.2.4(c, d) full and shortened forms, III.2.3 (a, b) Names of States abbreviations, III.3.3.1 formal names, III.2.4(b) short form, III.3.3.1 See also Capitalisation; Order of references Notification
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not specified in act, I.6.9.5 required for directives and decisions to take effect, I.6.9.1(c) urgent measures posted up, I.6.9.1(b)(iii) Numbering, Annex IV of acts. See Official number; Publication number of articles, I.6.3.3(b) of chapters, parts, sections, titles, I.6.3.2(d) of paragraphs and points, I.6.3.4(c, d) Numbers (figures or words), III.2.2(b) See also Numbering Official Journal acts whose publication is not obligatory, I.2.1(B) decision to publish, I.2.1(B) publication number, I.2.1(B)(a, b) acts whose publication is obligatory, I.2.1(A) official (serial) number, I.2.1(A), I.2.2(b) divided into L and C Series, I.9.2 pagination, I.9.2 references in footnotes, I.4.2, I.9.2, III.4.3, III.4.4 Official number, I.2.1(A), I.2.2, I.2.3(b)(1) Opinions, ECSC, EC and Euratom basic subdivision, I.6.3.1(c) form, I.1 title, publication and numbering, I.2.1(B)(a) See also Consultations and opinions Order of references Communities, III.3.1 languages, III.3.4(a) states, III.3.3 Treaties, III.3.2 Paragraph, I.6.3.1(b), I.6.3.4, Annex IV replacement, II.3.2.2.1(b) See also Arrangement of enacting terms; References to subdivisions of enacting terms; Textual amendments Part, I.6.3.2, Annex IV See also Arrangement of enacting terms Penalties, I.6.8

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Periodic acts, II.6 duration (definite or indefinite), II.6.3 series (of limited or unlimited duration), II.6.1 statement of reasons, II.6.2 urgent measures posted up, I.6.8.1(b)(iii) Personal names, III.2.4(a) Physical quantities, III.2.2(c) Place of adoption of act, I.7.2 Point basic unit of opinions, recommendations and resolutions, I.6.3.1(c), Annex IV subdivision of the article, I.6.3.4(c), Annex IV See also Arrangement of enacting terms Preamble. See Citations; Recitals Precedents, following and improving, III.1.1(b) Proportionality, I.5.1.1, Annex IV Proposals and drafts references in recitals, I.4.4(a) reference to OJ, I.4.4(h) Protocol. See Order of references Publication in OJ not obligatory, I.2.1(B) not to be stated in act, I.6.9.5 obligatory, I.2.1(A) urgent measures posted up, I.6.9.1(b) (iii) See also Notification; Official Journal Publication number, I.2.1(B)(a), I.2.3(B)(b) Punctuation in citations, I.4.2 in recitals, I.5.4 in title, I.2.2 Reasons, statement of. See Recitals Recasting, II.1.1.2(a, c), II.4 accompanying amendments, II.1.12(a, c) accompanying consolidation, II.5.3 citations (references), II.4.3.2(b) correlation table, II.4.3.2(b) directives, II.4.2
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enacting terms, II.4.3 improvements, II.4.3.1 need for formal repeal, II.4.3.2(a) repeal of implementing measures, II.4.3.2(c) repeal of old act, II.4.3.2 statement of reasons, II.4.2 Recitals (statement of reasons), I.5 absence of (budget, rules of procedure), I.5.1 amendment, II.3.1.1 Article 235 used as legal basis, I.5.1(c) check-list (legislative), n. 46, Annex III choice of act, I.5.1(c) codecision procedure, I.5.3.2 committee procedures to be mentioned in, I.5.3 common positions (TEU), I.1 consultations, I.5.3 of Association Council or associated country, I.5.3.3 entry into force on day of publication, I.6.9.1(b)(ii) extent of obligation to state reasons, I.5.2 individual acts, I.5.2(b) acts of general application, I.5.2(a) special provisions (exceptional or prejudicial), I.5.2(c) financial recitals, I.5.4 Declaration (Parliament, Council, Commission), I.5.4 Multiannual programmes - codecision procedure, I.5.4(a) Multiannual programmes - other procedures, I.5.4(b) Reference amount (conciliation procedure), I.5.4(c) form, I.5.5 general rules, I.5.5(a) special cases, I.5.5(b) general acts, I.5.2(a) individual acts, I.5.2(b) joint actions and joint positions (TEU), I.1 legal basis, I.5.1(c) legislative check-list, n. 46, Annex III material to be avoided, I.5.1(a) obligation to state reasons, I.5.1, I.5.2 proportionality, I.5.1.1, Annex III reference to another act, I.5.1(b), footnote 44 repeal, footnote 45, I.6.6(b) special provisions, I.5.2(c) subsidiarity, I.5.1.1, Annex III summary grounds, footnote 44 textual amendments, II.3.1.1 See also Committee procedures; Consolidation; Periodic acts; Recasting Recommendations (ECSC). See Decisions and recommendations (ECSC)

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Recommendations (EC and Euratom) date of taking effect, I.6.9.1(c) form, I.1 points, I.6.3.1(c) title, publication in OJ, publication number, I.2.1(B)(a), I.2.3 Recommendations to the Council, footnote 37 References correlation table, II.4.3.2(b) in articles, III.4.5 in citations, III.4.3 in recitals, III.4.4 in title, III.4.2 to languages, III.3.4(a, b) to repealed acts, II.4.3.2(b) to subdivisions of enacting terms, III.4.7 expressions to be avoided, III.4.7.3 lists, III.4.7.2 structure, III.4.7.1 to unpublished acts, III.4.6 Regulations binding nature, I.7.1 closing formulas, I.7.1 deferred effect, I.6.9.1(b)(v) directly applicable, I.7.1 enacting formula, I.3 entry into force, I.6.9.1(b) provisions to be omitted, I.6.2 retroactive effect, I.6.9.1(b)(iv) title, publication in OJ, official number, I.2.1(A), I.2.2, footnote 10 urgent measures, I.6.9.1(b)(iii) Repeal, I.6.6 and deletion, II.3.2.3(g) and transitional provisions, I.6.6(f) definition, I.6.6(a) express terms, I.6.6(c), II.4.3.2(a) of amended act, I.6.6(e) of implementing measures, II.4.3.2(c) of intermediate amending act, II.3.1.3 of obsolete act, I.6.6(b) partial, II.3.2.3 place in text, I.6.6(d) reasons, I.6.6(d), footnote 45 references to repealed acts, II.4.3.2(b) See also Recasting Repetition of words and expressions, III.2.1(b)
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Replacing a provision, II.3.2.2.1 Resolutions (Council) form, I.1 arrangement of enacting terms, I.6.3.1(c) Retroactive effect, I.6.9.1(b) (iv) Rules of procedure of committees, I.6.4.1(a), footnote 48 of the Council, I.1, I.4.1 Section. See Arrangement of enacting terms Sentence repetition of words in, III.2.1(b) replacement, II.3.2.2.1(b) structure, III.2.1 subdivision of articles, I.6.3.4, Annex IV See also Arrangement of enacting terms Signature in closing formula, I.7.2 States. See Names of states; Order of references Subparagraph. See Arrangement of enacting terms Subsidiarity, I.5.1.1, Annex III Terminology, III.1 clarity, III.1.1 consistency, III.1.1(a) conformity of language versions, III.1.2 definitions, III.1.1(d) following and improving precedents, III.1.1(b) using the right word, III.1.1(c) using words in their usual meaning, III.1.1(d) Textual amendments, II.3 structure of amending acts adding, II.3.2.3 (e, f) deletion, II.3.2.3(g) introductory formula, II.3.2.2 insertion, II.3.2.3 (a-d) multiple amendments, II.3.2.2.2 replacing, II.3.2.2.1 single, II.3.2.2.1 title, II.3.2.1 subject matter, II.3.1 annexes, II.3.1.2(d) enacting terms, II.3.1.2
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intermediate amendments, II.3.1.3 provisions of limited duration, II.3.1.2(b) scope of amendment (which provisions amended), II.3.1.2(a) title and preamble, II.3.1.1 Times of day Beginning of periods, I.6.9.1(a) How to write, III.2.2(a) Safeguard measures, I.6.9.1(b)(iii) Title acts not authentic in all languages, I.2.3(b) amending acts, II.3.2.1 annexes, I.8.2 codified acts, II.5.3.3 common positions (TEU), I.2.3(a)(3) conventions (TEU), I.2.3(a)(3) date, I.2.2(d) decisions sui generis, I.2.3(a)(2) enacting institution, I.2.2(c)) full, in citations, III.4.3 higher divisions of an act (chapters, sections), I.6.3.2, Annex IV individual decisions (ECSC), I.2.3(a)(1) individual recommendations (ECSC), I.2.3(a)(1) number official serial number, I.2.1(B)(a), I.2.2(b), footnote 10 publication, I.2.1(B)(a) joint actions and joint positions (TEU), I.2.3(a)(3) title proper (subject matter), I.2.2(e) textual amendment of, II.3.1.1 type of act, I.2.2(a), I.2.3(a) See also Arrangement of enacting terms; Consolidation; References Treaties citations, I.4.3.1 no reference to OJ, I.4.2, footnote 18 order of reference, III.3.2 Treaty on European Union, I.1 Units of measurement, III.2.3(c) Urgent measures (notification by posting up), I.6.9.1(b)(iii) Validity. See Beginning of periods of validity; Duration or end of periods of validity Verb forms, I.6.1(c)

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