On the Use and Misuse of Recitals in European Union Law

Amsterdam Law School Research Paper No. 2019-31

Amsterdam Center for International Law No. 2019-15

25 Pages Posted: 3 Sep 2019

See all articles by Maarten den Heijer

Maarten den Heijer

University of Amsterdam, Amsterdam Center for International Law

Teun van Os van den Abeelen

The Hauge Court of Appeal

Antanina Maslyka

University of Amsterdam, Faculty of Law, Students

Date Written: August 30, 2019

Abstract

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

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. Available at SSRN: https://ssrn.com/abstract=3445372 or http://dx.doi.org/10.2139/ssrn.3445372

Maarten Den Heijer (Contact Author)

University of Amsterdam, Amsterdam Center for International Law ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/m.denheijer/

Teun van Os van den Abeelen

The Hauge Court of Appeal

Netherlands

Antanina Maslyka

University of Amsterdam, Faculty of Law, Students ( email )

Amsterdam
Netherlands

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