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Drafting EU law: Who cares for TEU and TFEU anyway?

As an academic working on EU affairs you are sometimes forced to read EU law, even if that is not the most beautiful prose you come across in your life.

On one of these EU law journeys I had to read the “Proposal for a Regulation of the European Parliament and of the Council on the common organisation of the markets in fishery and aquaculture products” (PDF) put forward by the European Commission on 13 July 2011. In there, I stumbled over what I think are drafting mistakes. I could have ignored them, but it’s a nice case  to show that what comes out of the Commission is not always as nice and polished as one may think.

Indent 17 of the proposal reads (my highlight):

“The rules on competition relating to agreements, decisions and practices referred to in Articles 101 of the treaty should apply to the production or marketing of fishery and aquaculture products, in so far as their application does not impede the functioning of the common organisation of the markets or jeopardise the attainment of the objectives of Article 39 of the treaty.”

First, the plural of the first highlighted phrase does not make sense (see below why it may still make sense) because it refers to just one article, but more importantly both phrases only point to “the treaty” where no particular treaty was mentioned before.

It’s no secret that there are two EU treaties and in other parts of the legislative proposal it is clearly indicated whether the Treaty on European Union (TEU) or the Treaty on the Functioning of the European Union (TFEU) is meant (it’s the second in this case).

This drafting mistake is repeated in Articles 17(e) and 29.2(d) of the proposal (one notices the alternation in capital and small letters for “Article” and “Treaty”):

“they may not hold a dominant position on a given market unless necessary in pursuance of the goals of article 39 of the Treaty

“the objectives of Article 39 of the of the treaty are not endangered”

In Article 47, we find the following formulation which indicates why in indent 17 the “Articles” may have been written in plural – probably it was forgotten to add the “to 106” in the indent (?):

 “Articles 101 to 106 of the treaty and their implementing provisions shall apply to agreements, decisions and practices referred to in Articles 101(1) and 102 of the treaty which relate to production or marketing of fishery and aquaculture products.”

We find similar references in Article 48.

And just to close the minor drafting mistakes you recognise when you read too much EU law: Remember that the first EU treaty is called “Treaty on European Union”, but we find in indent 5 of the proposal:

“in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty of the European Union.”

I know these are just minor things and that it is pedantic to point to those, but since I had to read the proposal for my research I just stumbled over them the moment I was actually searching for the articles referenced in the treaties.

This is like a broken link in a blog post: You can still google and find the reference, but why not have a correct link in the first place? My guess would be last minute changes, but to check this one needs access to draft versions of the text – and this may take five months

Now, maybe I’m still mistaken and it is common practice to point to the TFEU as “the treaty” in EU law now. But if not, one wonders why the Commission’s legal service has not cleaned up those imprecision before the draft went into Eur-Lex. Or maybe this is because the drafting guidelines for EU law published on Eur-Lex haven’t been updated since 2009…


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