10. The purpose of the recitals is to set out concise reasons for the chief provisions of the enacting terms, without reproducing or paraphrasing them. They shall not contain normative provisions or political exhortations.
The ‘recitals’ are the part of the act which contains the statement of reasons for the act; they are placed between the citations and the enacting terms. The statement of reasons begins with the word ‘Whereas:’ and continues with numbered points (see Guideline 11) comprising one or more complete sentences. It uses non-mandatory language and must not be capable of confusion with the enacting terms.
Regulations, directives and decisions must state the reasons on which they are based. The purpose is to enable any person concerned to ascertain the circumstances in which the enacting institution exercised its powers as regards the act in question (see Case 24/62 Germany v Commission [1963] ECR 63), to give the parties to a dispute the opportunity to defend their interests and to enable the Community judicature to exercise its power of review.
If it is necessary to recall the historical context of the act, the facts are set out in chronological order. The reasoning in relation to the specific provisions of the act follows the order of those provisions.
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.
Certain basic rules for the statement of reasons can, however, be laid down
The recitals should state concisely the reasons for the main provisions of the enacting terms of the act. Accordingly:
The recitals should constitute a genuine statement of reasons; they should not set out the legal bases (which must be in the citations) nor should they repeat the passage in the provision already cited as the legal basis which empowers the institution to act. Furthermore, recitals which do no more than state the subject-matter of the act or reproduce or even paraphrase its provisions without stating the reasons for them are superfluous or pointless.
Recitals which state that certain measures should be taken, without giving reasons for them, must not be included.
The statement of reasons should not consist, in whole or in part, merely of a reference to the reasons given for another act (see Case 230/78
Eridania v
Ministry of Agriculture and Forestry [1979] ECR 2749 and Case 73/74
Papiers Peints de Belgique v Commission [1975] ECR 1514).
The recitals must relate to the enacting terms, and the order in which they appear must correspond as far as possible to that of the provisions for which they give the reasons.
Naturally, there is no need to give reasons for each individual provision. However, grounds must always be given for repealing an act or deleting a provision (see also point 10.14).
Any recital not serving to give the reasons for the enacting terms should be omitted, except in the following cases:
— with regard to Article 308 of the EC Treaty, where the wording to be used is as follows:
— where there may be a choice between different legal bases, for example: between Articles 37 and 94 or 95; between Articles 95 and 175; between Articles 26, 37 and 133 of the EC Treaty; in this case, the reasons for the choice of legal basis should be given.
Where a particular legal basis provides for recourse to legal acts without specifying the type (‘The Council shall adopt the measures necessary …’) 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. The author must also bear in mind the instructions of the Protocol annexed to the EC Treaty on the application of the principles of subsidiarity and proportionality.
The extent of the obligation to state reasons depends on the nature of the act or provision in question
a) Acts of general application
In
basic legislative acts, the statement of reasons should seek to expound the general philosophy of the act 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 acts, 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 acts do not need to recount, much less to assess, the facts on the basis of which the act is adopted. In particular, a detailed statement of reasons (including calculations) for acts such as those setting import duties or agricultural refunds would be impracticable and it is enough simply to refer to the criteria and methods used in the calculations by indicating the general situation which led to adoption of the act, on the one hand, and the general objectives which it is intended to achieve, on the other (see Case 16/65
Schwarze v
Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877).
b) Individual acts
The reasons on which an individual act is based should be stated more precisely, particularly if it is refusing an application.
That is true, for example, of competition decisions, in which complicated situations of law and of fact must be described; since the decision must nevertheless remain clear, an effort should also be made to be concise.
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.
d) Statement of reasons for subsidiarity and proportionality of the act
For these principles, a specific statement of reasons should be given.
When exercising their legislative powers, the institutions have regard to the principle of subsidiarity and state how they are doing so in the explanatory memorandum and, more succinctly, in the recitals.
The text of the subsidiarity recital will vary from one case to another, but follows the structure in point 10.15.3. However, it is important to remember the distinction made in Article 5 of the EC Treaty between areas where the Community has exclusive powers and those where powers are shared.
.
In areas where the Community has exclusive powers, all that the third paragraph of Article 5 requires is compliance with the principle of proportionality. The recital will therefore contain in particular the following elements:
Where the Community does not have exclusive powers, the recital will contain references both to subsidiarity stricto sensu and to proportionality, as set out in the following example:
Comitology recital
In basic acts involving a committee procedure for the exercise of the Commission’s implementing powers, a standard recital refers to Council Decision 1999/468/EC
.
Reference to consultations
Council Decision 1999/468/EC lays down the procedures for the exercise of implementing powers conferred on the Commission. The consultations provided for in that Decision are referred to in the preambles to the acts adopted by the Commission in the exercise of those powers.
Consultation of a management committee (Article 4 of the Decision) or a regulatory committee (Article 5 of the Decision) always produces legal effects, which will vary according to the provisions of the basic act. The fact that a committee has been consulted is not referred to in a citation, but in the final recital. (For reference to consultation of an advisory committee, see point 9.14.)
The formula to be used differs accordingly.
Insertion of financial recitals in legislative acts
On 17 May 2006, the European Parliament, the Council and the Commission adopted an Interinstitutional Agreement on budgetary discipline and sound financial management
, which replaces, with effect from 1 January 2007, the Interinstitutional Agreement of 6 May 1999 on budgetary discipline and improvement of the budgetary procedure.
. Point 37 of the Agreement states that acts concerning multiannual programmes adopted under the co-decision procedure are to contain a provision in which the legislative authority lays down the financial envelope for the programme. That provision is accompanied by the following standard recital:
In accordance with point 38 of the Interinstitutional Agreement of 17 May 2006, acts concerning multiannual programmes not subject to the co-decision procedure do not contain an ‘amount deemed necessary’. Commission proposals therefore contain no financial provisions for acts other than those mentioned in point 10.18. 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 EC Treaty. This provision should be mentioned in all acts which include such a financial reference
.
Accordingly, these acts contain the following recital:
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 within the meaning of point 10.18.
In that event, the recital set out below will be used in place of that in point 10.18 but the enacting terms will remain the same:
*
It is clear from the foregoing that there is scope for some standardisation in the statement of reasons. Formulas will be incorporated in LegisWrite which, with slight modifications, may serve as models.
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