18. Every amendment of an act shall be clearly expressed. Amendments shall take the form of a text to be inserted in the act to be amended. Preference shall be given to replacing whole provisions (articles or subdivisions of articles) rather than inserting or deleting individual sentences, phrases or words.
An amending act shall not contain autonomous substantive provisions which are not inserted in the act to be amended.
Principle of formal amendment
Partial amendment of an act is usually done by a formal amendment, that is to say, a textual amendment, to the act in question
. The text of the amendment must therefore be inserted into the text to be amended.
Articles, paragraphs or points must not be renumbered, because of the potential problems of references in other acts. Likewise, blanks left by the deletion of articles or other numbered parts of the text should not subsequently be filled by other provisions, except when the content is identical to the textly deleted.
In the interests of clarity and in view of the problems of translation into all the official languages, it is recommended that amendments should not be made by inserting or deleting sections of text, other than dates or figures.
No autonomous substantive provisions
The amending act must not contain new substantive provisions which are autonomous in relation to the act being amended. Since the sole legal effect of the new act is to amend the old one, it exhausts its effects once it enters into force. Only the old act as amended is left in existence and continues to govern the whole of the matter.
This approach simplifies the codification of legislative texts considerably, since the presence of autonomous provisions within a body of amending provisions leads to a convoluted legal situation.
No amendment of amending acts
Since an amending act must not contain any autonomous substantive provisions, amending acts must not be amended. Amendments must always relate to the initial act.
Nature of the amending act
In general, it is preferable for the amending act to be of the same type as the amended act. In particular, it is not recommended to amend a regulation by means of a directive.
However, certain provisions of primary legislation leave the choice of the type of act to the institutions, by granting them power to adopt ‘measures’ or by expressly mentioning several possible types of act.
In addition, the act being amended may have provided for amendment to be made by another type of act.
Amendments to annexes
Further to the foregoing, amendments to annexes containing technical passages are normally made in the annex to the amending act. This rule may be departed from only when the amendment is a minor one.
Updating of references
If an amendment is to be made to a provision mentioned in a reference, the consequences for the provision in which the reference is made must be considered. If the amendment is also intended to apply to the latter, nothing need be done in the case of a dynamic reference but in the case of a static reference, a consequential amendment will be necessary.
Title of an amending act
The title of the amending act must mention the number of the act being amended and either indicate the title of the act, or specify what is to be amended.
If the amending act is adopted by an institution other than the institution which adopted the act being amended, the title must indicate the name of the former institution.
Drafting an amending act
Amendments are made in the form of text inserted into the act to be amended. Amendments must fit seamlessly into the basic text. In particular, the structure and terminology of the basic text must be maintained.
The replacement of complete units of text (an article or a subdivision of an article) is preferable to the insertion or deletion of sentences or of one or more terms (but see also point 18.3).
In the case of multiple amendments, an introductory formula should be used.
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.
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 various types of amendment (replacement, insertion, addition, deletion) are made in a normative manner, using the standard formulas (see the Council’s Manual of Precedents, the Commission’s Manual on Legislative Drafting and LegisWrite).
In view of the need to avoid autonomous substantive provisions, it is preferable for amendments relating to dates, time limits, exceptions, derogations, extensions and the temporal application of the act to be inserted into the act to be amended.
As indicated in point 18.1, where an act is to be amended, that should, as a general rule, be done by formal amendment.
It is possible, however, that for reasons of urgency or for practical reasons and the sake of simplicity, the drafter wishes to include in an act provisions which in fact constitute substantive amendments to another act. Such substantive amendments may concern the scope of the other act, derogations from its obligations, exceptions to the period of application of the act, and so forth.
As a general rule, and in particular for reasons of transparency, it is preferable to avoid substantive amendments of that kind. In such cases, the other act remains unchanged and the new provisions derogate from it in such a way that the old text, which remains in force, exists alongside the new text, which disactivates some of its provisions, alters their scope or adds to them.
To the extent that a substantive amendment has a very limited scope, it is acceptable not to make a textual amendment of the corresponding act. However, if the amendments are important, a separate amending act must be adopted.