Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts
Date: 2001-11-28
Institutions: Council of the European Union, European Commission, European Parliament
Subjects: codification of EU law, drafting of EU law, interinstitutional agreement

28.3.2002

EN

Official Journal of the European Communities

C 77/1

I

(Information)

EUROPEAN PARLIAMENT

COUNCIL

COMMISSION

INTERINSTITUTIONAL AGREEMENT

of 28 November 2001

on a more structured use of the recasting technique for legal acts

(2002/C 77/01)

THE EUROPEAN PARLIAMENT, THE COUNCIL OF THE EUROPEAN
EUROPEAN
AND
UNION
COMMUNITIES,

COMMISSION OF

THE

THE

Whereas:

(1) The European Council, meeting in Edinburgh in December
1992 underlined the importance for the Community of
making Community
and
comprehensible.

legislation more

accessible

(5) In that context, where a substantive amendment has to be
made to an earlier legal act, the recasting technique permits
the adoption of a single legislative text which simul-
taneously makes the desired amendment, codifies that
amendment with the unchanged provisions of the earlier
act, and repeals that act.

(6) Consequently, in so far as it prevents the proliferation of
isolated amending acts which often make regulations
difficult to understand, the recasting technique is an appro-
priate means of ensuring the readability of Community
legislation on a permanent and universal basis.

(2) On 20 December 1994, following the guidelines drawn up
by the European Council, the European Parliament, the
Council and the Commission concluded an Interinstitu-
tional Agreement on an accelerated working method for
official codification of legaislative texts (1) with a view to
substantially improving the readability of legal acts which
have been extensively amended.

(7) A more structured use of the recasting technique forms
part of the measures undertaken by the institutions to
make Community legislation more accessible, such as the
adoption of the accelerated working method for official
codification and the establishment of common guidelines
for
the quality of drafting of Community legislation
through the Interinstitutional Agreement of 22 December
1998 (2).

(3) Experience shows, however, that despite the use of the
submission of
the Commission's
accelerated method,
legislature's
proposals
codification
official
adoption of official codification acts are often delayed, in
particular because new amendments to the legal act in
question have been adopted in the meanwhile, which
leads to the codification work having to start all over again.

and

the

(4) It

amended legal

is therefore advisable,

in particular with regard to
frequently
legislative
technique which enables amendments to, and codification
of, acts to be carried out within the framework of a single
legislative text.

to use

acts,

a

(8) The European Council meeting in Helsinki

in December
1999 wished an Interinstitutional Agreement on the use
of the recasting technique to be concluded as quickly as
possible by the European Parliament, the Councl and the
Commission,

HAVE AGREED AS FOLLOWS:

1.
The aim of this Agreement is to lay down procedural
the
rules enabling a more structured use to be made of
recasting technique pursuant to the Community's normal legis-
lative process.

(1) OJ C 102, 4.4.1996, p. 2.

(2) OJ C 73, 17.3.1999, p. 1.

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Recasting shall consist in the adoption of a new legal act
2.
which incorporates in a single text both the substantive
amendments which it makes
to an earlier act and the
unchanged provisions of that act. The new legal act replaces
and repeals the earlier act.

(iii) specify which provisions of

the earlier act remain

unchanged.

(b) The proposed legislative text shall be presented in a way

which:

3.
A proposal for recasting submitted by the Commission
shall deal with the substantive amendments which it makes to
an earlier act. On a secondary level, the proposal shall include
the codification of the unchanged provisions of the earlier act
with those substantive amendments.

4.

For the purposes of this Agreement:

(i) enables the substantive amendments and new recitals to
be clearly distinguished from the provisions and recitals
which remain unchanged;

(ii) with regard to the provisions and recitals which remain
unchanged, is similar to the method used for presenting
proposals for the official codification of legislative acts.

— ‘earlier act’ shall mean a legal act which is in force, and
which may have been amended by one or more amending
acts,

7.
To ensure clarity and legal certainty, all recasting acts
shall comply inter alia (1) with the following rules of legislative
drafting:

— ‘substantive amendment’ shall mean any amendment which
affects the substance of the earlier act as opposed to purely
formal or editorial changes,

— ‘unchanged provision’ shall mean any provision of

the
earlier act which, although it may be affected by purely
formal or editorial changes, has not undergone any
substantive amendment.

A new legal act shall not constitute a recast act if, with the
exception of standardised provisions or wordings,
it makes
substantive amendments to all the provisions of the earlier
act, which it replaces and repeals.

The Community's normal

5.
complied with in full.

legislative process shall be

A proposal

6.
criteria:

for

recasting shall

satisfy the following

(a) The explanatory memorandum accompanying the proposal

shall:

(a) The first

recital shall

indicate that

the new legal act

constitutes a recasting of the earlier act.

(b) The article repealing the earlier act shall provide that
references to that act shall be regarded as references to
the recasting act and should be read in accordance with
a correlation table annexed to the recasting act.

(c) Moreover, in an act recasting a Directive:

(i) the repealing article shall provide that Member States'
obligations arising from the transposition period (2)
and, where appropriate, the implementation period as
set out in the Directive repealed by the recasting act
shall not be affected by such repeal;

(ii) the periods referred to in point (i) shall be set out in an

annex in the form of a table;

(iii) the article relating to the obligation to transpose (3)
into national law a recast Directive shall refer only to
those provisions which have undergone substantive
amendment and which have been precisely identified
as such. Those provisions which remain unchanged in
the recast Directive shall be transposed in accordance
with the earlier Directives.

(i) state expressly that it relates to a proposal for recasting
adopting such an

reasons

for

and explain the
approach;

(ii) state

the

reasons

for

each proposed substantive

amendment;

(1) See, in particular, the Interinstitutional Agreement of 22 December
the quality of drafting of

1998 on common guidelines
Community legislation (OJ C 73, 17.3.1999, p. 1).

for

(2) That is, the period laid down for implementing the laws, regulations
and administrative provisions necessary for complying with the
provisions of the Directive.

(3) That

is,

the obligation to implement

administrative provisions necessary
provisions of the Directive.

the laws, regulations and
complying with the
for

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recasting

in the course of

the legislative procedure,

it
8. Where,
appears necessary to introduce substantive amendments in
the
remain
unchanged in the Commission's proposal, such amendments
shall be made to that act in compliance with the procedure
laid down by the Treaty according to the applicable legal basis.

provisions which

those

act

to

9.
A Consultative Working Party consisting of the respective
legal services of the European Parliament, the Council and the
Commission shall examine the proposal for recasting. It shall
deliver an opinion as soon as possible for submission to the
European Parliament, the Council and the Commission to the
effect that the proposal does not comprise any substantive
amendments other than those identified as such.

This agreement

into force on the day
shall enter
10.
following that of its publication in the Official Journal of the
European Communities.

It shall apply to any proposal for recasting submitted from the
date of its entry into force.

An assessment of the application of this Agreement shall take
place three years after its entry into force. For this purpose the
Legal Services of the institutions signatory to the Agreement
shall submit an assessment report and propose, where appro-
priate, any changes required.

Done at Brussels on the twenty-eighth day of the year two thousand and one.

For the European Parliament

The President

For the Council

The President

For the Commission

The President

Joint Declaration on point 2

DECLARATIONS

The European Parliament, the Council and the Commission note that recasting may be either ‘vertical’
(whereby the new legal act replaces a single earlier act) or ‘horizontal’ (whereby the new legal act replaces
several parallel earlier acts relating to the same subject).

Joint Declaration on point 4

The European Parliament, the Council and the Commission agree that, where an isolated amendment
within a provision in fact amends the substance of that provision, such a provision shall be identified as
having been amended in its entirety.

Declaration of the European Parliament and the Council on point 6(b)

The European Parliament and the Council take note of the fact that the Commission provides for
substantive amendments and any new recital to be identified by the use of ‘shaded’ type in any COM
document which it submits.

Joint Declaration on point 9

The European Parliament, the Council and the Commission note that, for the purpose of giving proper
effect to this Agreement, their Legal Services should have access to the appropriate human resources so
that they have a sufficient number of representatives within the Consultative Working Party to enable the
proposals for recastings submitted by the Commission to be considered rapidly with a view to delivery of
an opinion to the institutions as soon as possible.