CELEX: 51973PC1521
Language: en
Date: 1973-09-17
Title: Regulation of the Council establishing a procedure of consolidation (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (73) 1521
Vol. 1973/0266
 ---pagebreak--- Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983
concernant l'ouverture au public des archives historiques de la Communauté économique
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983,
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003
(JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas échéant, les documents
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
concerning the opening to the public of the historical archives of the European Economic
Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as
amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243,
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file have been declassified in conformity with Article 5 of the aforementioned regulation.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
Februar 1983 über die Freigabe der historischen Archive der Europäischen
Wirtschaftsgemeinschaft und der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983,
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                        COM(73 ) 1521 final
                                                        Brussels , 17 September 1973
                           Regulation of the Council
                   establishing a procedure of consolidation
                 ( submitted to the Council "by the Commission)
   CCM(73 ) 1521 final
 ---pagebreak---                                   Ixplanatory Mémorandum
 1.1 .   The conplaint is often heard that the law laid down by Community
         Institutions lacks clarity and is not easily accessible , despite
         its publication in the Official Journal of the European Communities .
     2.  The reasons for this are well known . One of the most important is
         that Community legal instruments must frequently be amended to take
         account of economic developments . After a few years , therefore , the
         original text of a regulation , directive or decision consequently
         no longer reflects the law in force at a given time ; it has to be
         read in connection with a large number of amendments , spread over
         several issues or even volumes of the Official Journal .
     3.  The present situation makes it more difficult for Community insti­
         tutions , Member States and individuals to apply Comnunity law. It
         is also damaging to the reputation of the Community as a legal
         Community .                 ■"'"
II . 4 * Accordingly , it is very necessary to improve this situation . Above
         all a procedure must be developed to enable instruments which have
         been amended several times and have thus become unclear to be re­
         drafted in such a way that :
                  ' - the needs of all persons affected to have a uniform ,
                         comprehensible and reliable text - can be met ;
                     - a maximum degree of certainty      in the law can be
                         ensured;
                     -- .technical problems which have already been solved
                         should not , however , be the subject of fresh dis­
                         cussions in the consolidation procedure .
         The attached proposal serves this purpose . It draws on the accumu­
         lated experiences of all the Member States in this matter . However ,
         SJ/293/73-E
 ---pagebreak---                                   - 2 -
     it does not simply carry then over into Community law, bat prefers
     a solution which corresponds to the special needs of the Connunity
     decision-making process .         -  ......
5.   The proposal concerns only Council legal instruments . In the opinion
     of the Commission a special proceduro is in practice only necessary
     for Council instruments . ' There is hardly any problem as regards the
     consolidation of Commission instruments which have "been frequently
     amended : the Commission is in a position to carry this out without
         ι
     creating a special procedure .
     Obviously the Commission will apply the same energy and care in the
     consolidation of frequently amended texts which it itself has
     adopted in connection with the consolidation of Council instruments .
6.   The proposal lays down a basic procedure for all Council instruments .
     The need for uniform ,, .comprehensible and reliable texts exists in
     all spheres of the Community 's activities . Consequently, Article 235
     is to provide the legal basis for this Regulation , since the Treaty
     does not elsewhere confer the requisite powers for the creation of
     a procedure of such a scope .
     The need for uniform texts cannot be satisfied in all fields at
     oncej it will be necessary to give certain subjects priority . This
     is why Article 1 of the proposal empowers the Council , acting on a
     proposal from the Commission , to determine which instruments are
   _ to be consolidated# Thus only individual specified instruments can
     be dealt withj on the other hand it nay be found desirable to
     consolidate instruments dealing with an entire field of policy
     (e . g . the common organization of a market ).
7.   There are two prima facie solutions to the problem , put upon
     further consideration     they both lose their appeal .
     SJ/293/73-E
 ---pagebreak---                                     - 3 -
a)  The first solution would consist of re-adopting in the form of a
    new instrument , an instrument which "by reason of the amendments
    made to it has "become unclear ! the old instrument would be repealed .
    This method offers the greatest degree of certainty in the law ,
    since it removes any possibility of conflict "between the old and
    the new instrument in favour of the new instrument . It has , however ,
    one          disadvantage : It would be necessary for ;fche new instrument
    to be adopted by the sane procedure as the old instrument ( i . e .
   Council Decision on a proposal from the Commission , frequently after
    consultation with the European Parliament and the Economic and
   Social Committee)       * A procedure of this kind ia tine consuming
    and could also jeopardise compromises reached in the past with such
    jreat difficulty . ■              .*
   The procedure is , moreover , not necessary in most eases . .         -
   This does not mean that it should never be applied . There may well
   be occasions when it would be useful . This is indeed qvtite possible
   since under the Treaty it can be done at any time . . .
b) Under the second method an instrument which had been amended many
   times would be published as a notice in the C keries of the Official
   Journal . This would obviate the disadvantages of- the first- method .
   On the other hand there is another objection to the procedures This
   method does not ensure legal certainty . Basically there is no
   distinction between this method and publication elsewhere than in
   the Official Journal , whether by the office for official publications
   of the European Communities or by a private printer          .
   1 ) e . g ." Council Regulation EEC No 1035/72 of 18 May 1972 on the
       common organization of the market in fruit and vegetables :
       OJ No L 118/1/1972 .
   2) e . g. publication of the Staff Regulations in OJ No C 100/4/1972 ,
       where it is stated "This Consolidated text is of no legal force ".
   SJ/293/73-E
 ---pagebreak---                                   -■4 -•
     Consequently , this method of publication by way of Notice does .,
     not seen to offer a general solution .
8.   The present proposal therefore opts for a third method , which makes
     for clarity of the law and provides maximum certainty in the law
     without creating the dangers of the first two solutions .
     The proposed measure does not in fact involve creating a new
     instrument , i . e . does not entirely replace and repeal the old
     instrument . Theoretically and legally the old instrument continues
     in force : in case of conflict between the old and the new instru­
     ment , the old instrument would prevail .
     The proposed measure , however , involves adopting a new instrument
     which in practice renders the old instrument inapplicable . Prom
     the date of adoption of the new instrument all subsequent actions
     by Community institutions ( e . g . amendments , rules of application ,
     judgments ) would relate to the new instrument ! in practice it
     replaoes the old instrument . The old instrument would only need
     to be referred to in case of doubt as to the conformity between
     the old and the new instrument ,                                        ^
     Since the now instrument ..'is presumed to have been regularly made ,
     it should in praciioe" take the place of the old# . Clearly, all legal
   , possibilities , .are still available . to nako. the old instrument prevail
     if occasion sxiscs .
9.   Under the proposed procedure conflict between old and new instru­
     ments is practically excluded .
     Firstly the Commission is made responsible for drafting the con­
     solidated text , - In practice it does not seem appropriate to burden
     the Council with a purely technical and administrative task of this
     kind which has no political interest whatsoever .
     The procedure further provides that the Council , which is in any
     case the authority adopting the consolidated instrument , may make
     SJ/293/7 3-E
 ---pagebreak---                                         - 5 -
          known its views on any such text drawn up by the Commission , In this
          way1 the Council can malic aura that ' the .new text accords with the old *
          Systematic pcforencc to tho Council and the . supervision which this
          makes possible will ensure that the new texts will in practice never
           deviate from the old texts .
     10 . The new text must ill all cases incorporate all amendments to the
          old text . Moreover , it will frequently be desirable to make new
          adjustment ( e . g . numbering of Articles and paragraphs , drafting
          of preamble and title) . It may even be found appropriate to combine
          several parallel texts into a single text        .
          The scope of the adjustments which may be desired cannot be deter­
          mined once and for all in advance , but must be determined in each
          case as a result of the experience gained . Detailed rules as re­
          gards the consolidation procedure is therefore subject to sub­
          sequent action by the Council .
          The application of the proposed method will - at least initially -
          throw up a number of practical problems . It is the Commission 's
          intention to solve these problems in close cooperation with the
          representatives of other Community institutions concerned in parti­
          cular the Council .
     11 . There is no common term in the Member States which would cover the
          proposed method . It is therefore necessary to choose a word from the
          abundance of existing words , none of which is really appropriate .
          The Commission feels that the word "consolidation" is the best name
          for the procedure , and that the resulting instruments can best be
          termed "consolidated".
HI . 12 . It is obvious that endeavours to make the law clearer crust not be
          restricted to Council instruments . As we have already said the
          Commission for its part will do all that it can in order to apply
          this principle to its own instruments in the best possible way .
          l ) For instance Regulation EEC 1035/72 mentioned above .
          SJ/ 293/73-E
 ---pagebreak---                                 - 6 -
IV . As the suggested regulation is to be based on Article 235 » con­
     sultation of the European Parliament is necessary . Consultation
     of the Economic and Social Committee is to be recommended as the
     consolidation may relate to legal acts on which the Committee has
     been heard .
     SJ/293/7 3-E
 ---pagebreak--- THE COUNCIL OP THE EUROPEAN COMtlUNITIES
Having regard, to the Treaty establishing the European Economic Community ,
and in particular Article 235 thereof ;
Having regard to the proposal from the Commission;
Having regard to the Opinion of the European Parliament ;
Having regard to the Opinion of the Economic and Social Committee ;
Whereas , since it is necessary that the law should he both clear and
certain , a procedure should be introduced by which any Council legal
instrument which has been amended several tines can be consolidated
in a single text ;
Whereas this procedure must make it possible to act flexibly and quickly ,
while ensuring that the content of the new text does not differ , as to
substance , from that of the original texts ;
Whereas such a procedure nuut not change the existing legal situation *
Whereas the Treaty does not confer the necessary powers for establishing
a consolidation procedure extending to all Council legal instruments ;
                         HAS ADOPTED THIS REGULATION :
                                 Article 1
The Council , acting on a proposal from the Commission , may specify the
legal instruments or categories of legal instruments among those adopted
by it which are to be consolidated .
SJ/2S3/73-E
 ---pagebreak---                             Article 2
                                          •     •    . k
Consolidation shall consist of incorporating into the original text
 of an instrument the amendments which have been made to it or of
combining in one single text several instruments concerning the same
subject . This may involve , inter alia;
             - adaptation of the numbering of the Artioles and
               paragraphs }
             - modification of the title , citations and recitals .
The Council may , in accordance with the procedure specified in
                                                                      /
Article 1 , lay down detailed rules for the codification procedure .
Consolidation shall be carried out by the Commission , which shall
forward the codified text to the Council . The Commission shall adopt
the instrument if within two months no member of the Council has
objected thereto . Where objections are raised during that period, the
Council shall decide on the points which are the subject of the
objection . The Commission shall thereafter adopt the whole text .
                            Article 4
Consolidation shall not involve the repeal of the instruments
affected .
Should it be necessary , in subsequent Community instruments , to
refer to provisions which have been the subject of a codification ,
references shall be to the codified text .
SJ/ 293/73-®
 ---pagebreak--- This Regulation shall enter into force on 1 January 1974.'
This Regulation shall be "binding in its entirety and directly
applicable in all Member States .
Done at Brussels , 17 September 1973                 For the Council
                                                     The President
SJ/ 293/7 3-E