16. References to other acts should be kept to a minimum. References shall indicate precisely the act or provision to which they refer. Circular references (references to an act or an article which itself refers back to the initial provision) and serial references (references to a provision which itself refers to another provision) shall also be avoided.
Internal and external references
An internal reference refers to another provision of the same act. External references refer to another act, either in Community legislation or from another source.
Example of an internal reference:
Example of an external reference:
Both internal and external references must be sufficiently precise to enable the reader easily to consult the act to which reference is made.
External references require extra care. In particular, the act to which reference is made should be sufficiently clear and accessible to the public.
Principle
Reference should be made to another act only if:
- it makes it possible to simplify the text, by not repeating the content of the provision referred to;
- the comprehensibility of the provision is not affected; and
- the act referred to has been published or is sufficiently accessible to the public.
Moderation is also called for in the use of references because of the principle of transparency. It should be possible to read and understand a legislative act without consulting other acts. However, the readability of a text should not result in the reproduction of provisions of primary law in secondary legislation (see point 12.2).
Before deciding whether it is appropriate to make a reference, it may be useful to consider the consequences of any subsequent amendments to the act to which reference is to be made.
Comprehensibility
A reference should be worded in such a way that the central element of the provision to which reference is to be made can be understood without consulting that provision.
Clarity
The elements of fact in, or legal consequences of, a provision to which reference is to be made should be specified.
References made merely by citing another provision in brackets must be avoided.
The same is true of references made with a view to analogous application (using words such as ‘
mutatis mutandis’). It is preferable to state the purpose for which the reference is made, or not to make the reference at all.
The consequences of references introduced by the words ‘without prejudice’ are often far from clear. There may,
inter alia, be contradictions between the act containing the reference, and the act to which reference is thus made. Such references can generally be avoided by better defining the scope. Furthermore, it is unnecessary to use this formula to refer to higher-ranking provisions, which apply in any event.
Citation of the act to which reference is made
Where one act is to be referred to in another act, the title must be given either in full, with the publication source, or in a short form — in particular if the reference is in the title or if the other act has already been cited.
Where the title of an act is referred to in the title of another act:
- the name of the institution is not repeated if both acts are enacted by the same institution;
- 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 Official Journal in which it was published.
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.
In the citations the 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 Official Journal in which the act was published. There is no such footnote in the case of the Treaties establishing the Communities and other well-known acts (for example: Accession Treaties, ACP–EEC Lomé Convention).
Where acts are cited for the first time in the recitals, their full title is given, save where that is not necessary for a proper understanding of the text; subsequently, it is sufficient to refer to them by number.
References to other acts in the enacting terms must be confined to those that are absolutely necessary. It should be possible for the reader to understand the enacting terms in isolation, without having to refer to other acts. The potential problems resulting from amendment or repeal of the act to which reference is made must also be avoided
.
It is good legislative practice to mention in the recitals all acts to which reference will subsequently be made in the act. They are to be cited with Official Journal references and as a result, in the articles, they can be referred to merely by their numbers.
Citations in the enacting terms are, as a general rule, dynamic references (see points 16.13 to 16.16).
Static references
A static reference refers to a specific text as it stands on a specific date, by stating the title of the act and the source, and specifying, where appropriate, an amending act.
Where the provision referred to is amended or repealed, the provision referring to it must also be amended as necessary.
In the enacting terms of acts of Community law, static references are the exception, rather than the norm. In contrast, references to non-Community acts are, in principle, static.
Dynamic references
A reference is dynamic if a provision cited is always taken to be the provision with any amendments.
References in the enacting terms of acts of Community law are, in general, dynamic references.
Nevertheless, dynamic references may lead to the risk of a legislative act being indeterminate, in the sense that the content of the provision making the reference is not predetermined, but varies according to any subsequent amendments to the provision referred to.
Adaptation of a reference
It may be necessary for a reference to be adapted where:
- the provision referred to has been deleted and replaced by a new text;
- in the case of a static reference, the provision referred to has been amended;
- an amendment to the provision referred to has unintended repercussions on the provision in which the reference was made.
For a generalised adaptation, a simple correlation clause is sufficient.
In some cases, it may be appropriate to set out a correlation table in an annex.
Establishing the correlation to the new provision in textual form is not recommended.
Circular references
A circular reference is a reference to another provision which itself refers back to the provision which referred to it. Such references are to be avoided.
Serial references
A serial reference is a reference to another provision, which itself refers to a third provision, and so on. In the interests of ease of understanding of Community acts, such references are to be avoided.
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