The Law of Recitals in European Community Legislation

Abstract

Recitals, those 'whereas' clauses, appear in contracts as well as legislation, although not all legislation contains recitals; indeed, recitals are 'against' the precepts of certain styles of legislation. When, however, there are recitals, parties will argue over the way they should be interpreted in view of the operative provisions, or that they have, or don't have, other legal repercussions. The courts must then choose among a number of interpretive variants: they may choose to view recitals as subordinate to, dominant over, or even equal to operative provisions.

Recitals are also a feature of European Community (EC) legislation, so that the same variants exist.

But the matter is complicated by a feature of EC legislation which is fairly unique: recitals in EC legislation must specify the reasons the operative provisions were adopted, and if they do not, the legislation is void. This is puzzling. Why would this be so? It does not seem to emanate from the nature of recitals themselves, nor does it seem to be reflected in the general law of recitals (principally contract law).

At the same time it is claimed that while EC recitals have no legal value and cannot be the cause of derogation from an operative provision, they nevertheless create legitimate expectations (such as would defeat an operative provision). This is also strange. Recitals are supposed to be general statements. General statements are not something which ordinarily are recognized as giving rise to legitimate expectations. But also recitals in general (for instance, in contract law) are, well, recitals, not operative provisions and it is hard to fathom how they could give rise to positive obligations or defeat operative clauses.

Thus, the doctrine surrounding recitals in EC law is mystifying. It is either irrational or so complicated as to amount to the same thing.

The aim of the paper is to explain the mystery regarding EC recitals. Why is legislation void if recitals are lacking? Why are the purported rules concerning legitimate expectations so strange?

Our findings can be summarized thusly:

We began research for this paper thinking that an exposition on this general topic might be of some worth, as it might clear up what we felt were some contradictions in what was purported to be the EC law of recitals. Specifically, we felt something might be amiss with the received wisdom that recitals could justify legitimate expectations such as would give rise to positive rights. Something about it didn't jibe with what we knew of legitimate expectations in this regard: only sufficiently specific statements or acts could give rise to them. Recitals, at least in EC law, are supposed to be rather general expressions of purpose; such cannot readily justify reliance. We were gratified when we found that the received wisdom was incorrect, and that recitals in EC law do not create legitimate expectations.

We certainly did feel, at the onset of our research, that the ECJ's case-law invalidating EC legal acts on the basis that the recitals in question were insufficient was curious and therefore worthy of comment; at the very least the provision seemed unusual. The ECJ's statements that recitals are necessary for the court to exercise its supervision seemed somewhat coy.

We were, however, surprised when our research and analysis found that the imperative nature of the requirement to state reasons in recitals in EC law was due to the need for political reassurance.

We then realized that it is only in supranational legislation where the justification assumes such importance, inasmuch as EU legislation which requires unanimity in order to be adopted does not require recitals at all.

Thus de-mystified, the law of recitals in EC legislation falls within the realm of normality. Recitals in EC law are not considered to have independent legal value, but they can expand an ambiguous provision's scope. They cannot, however, restrict an unambiguous provision's scope, but they can be used to determine the nature of a provision, and this can have a restrictive effect. And the voidness of an EC legal act is traceable and due to political considerations, not legal ones. Alles ist klar.

Keywords: Recitals, Legislation, European Union, European Community, Legitimate Expectations

JEL Classification: K33, K12, K10, K59