On the Use and Misuse of Recitals in European Union Law

The primary function of recitals in EU law is to explain the essential objective pursued by the legislative act. Our quantitative and qualitative analysis of recitals in EU directives shows that the use of recitals has changed substantially over time. Preambles are growing and many recitals contain normative exhortations. In addition, a substantial proportion of recitals in currently adopted acts merely paraphrases the enacting terms. Such drafting practices are in violation of the EU’s guidelines on legislative drafting. They may jeopardize the legislative principles of accessibility and legal certainty. We submit that the EU’s questionable use of recitals is the product of a legislative culture where policy-experts and politicians dominate lawmaking and where political results are structurally prioritized over legal quality. Manuals cannot address this. We invite the EU to rethink where the balance should lie between political effectiveness and the quality of its laws.

Keywords: recitals, lawmaking, legislative drafting, quality of law, better lawmaking agenda

JEL Classification: K33, K4

Suggested Citation: Suggested Citation

den Heijer, Maarten and Abeelen, Teun van Os van den and Maslyka, Antanina, On the Use and Misuse of Recitals in European Union Law (August 30, 2019). Amsterdam Law School Research Paper No. 2019-31, Amsterdam Center for International Law No. 2019-15, Available at SSRN: https://ssrn.com/abstract=3445372 or http://dx.doi.org/10.2139/ssrn.3445372