How to read EU legislation?

 

 

Jasper Krommendijk* & Frederik Zuiderveen Borgesius**

*Law faculty, Radboud University, The Netherlands

** iHub and Institute for Computing and Information Sciences, Radboud University, The Netherlands

jasper.krommendijk[at]ru.nl & frederikzb[at]cs.ru.nl

Art credit: Victor Lagye, Visiting the Lawyer

 

How to read EU legislation, such as Directives and Regulations? We give some tips on how to read such legislation. We both teach such legislation, to law and public administration students (Jasper) and to computer science students (Frederik). We have written this blog post mostly with our students in mind, but hopefully it can also be useful for others who read EU legislation for the first time. The blog post could be seen as a companion piece to an earlier blog post, ‘How to read CJEU judgments’.

We emphasise that we merely give suggestions; not hard rules. For instance, specialised lawyers may have a different approach that works better for them.

I. What types of EU legislation are there?

There are many types of EU legislation. We introduce some of the most important types.

The EU Treaties

Even though treaties are not legislation as such, they are an important source of EU law. Actually, they are the primary source of EU law. That's why the term ‘primary EU law’ is often used, as opposed to ‘secondary EU law’. Most important are the two main Treaties:  The first of the two main treaties of the European Union is called the Treaty on European Union (TEU). It describes the EU’s purpose, and the governance of its central institutions.

The second is called the Treaty on the Functioning of the European Union (TFEU). It organises the functioning of the EU and determines the competences of the EU. The TFEU is much longer and detailed than the TEU (358 provisions versus 55 provisions). Both treaties together function as some sort of constitution for the EU, even though this term is not official and not commonly accepted. There are also other EU Treaties considered part of EU primary law, including the Euratom-Treaty, association agreements, and protocols.

Regulations

An important category of legislation (so-called ‘secondary EU law’) adopted by the EU is called ‘regulations’. The Treaty on the Functioning of the EU provides the definition (in Article 388 TFEU):

‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’

Roughly summarised, a Regulation could be seen as a statute that applies in the whole European Union. A well-known example of such a Regulation is the GDPR, or the General Data Protection Regulation. When a regulation enters into force, the same text is in force in all the EU member states.

Directives

‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’

So says Article 288 of the Treaty on the Functioning of the EU. In contrast to a regulation, member states must implement a directive. Member states have a certain freedom as to how they do so. It is, for example, not necessary that member states create a new statute. They could also integrate the content of a directive in the existing legislative framework or via a (legally binding) governmental decision. Therefore, there can be certain differences between the rules of member states in relation to the issue regulated by the directive.

Practicing lawyers typically read the national law in which a Directive is implemented. To illustrate: the ePrivacy Directive required member states to put certain rules regarding the use of internet cookies in their national law. A practicing lawyer in The Netherlands will typically consult the Dutch implementation of those rules from the ePrivacy Directive, namely Article 11.7A of the Dutch Telecommunications Act.

In some cases, directives can be relied upon by natural or legal persons before a court. Directives can have direct effect against the state when their provisions are unconditional and sufficiently precise. There is also a duty for national courts to interpret national law consistently with directives.

Confusing informal titles

Somewhat confusingly, the EU has recently started to use shorter catchier titles instead of the official name of the legislative act. For instance, the ‘Digital Services Act’ is the short name for the ‘Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act)’. The use of the term ‘Act’ obfuscates whether the underlying legislative act is a regulation or directive (see also the 'Digital Markets Act'). Along similar lines, there is a Directive which the EU often calls a ‘code’: the European Communications Code.

Sometimes scholars come up with a catchier name for a piece of EU legislation which becomes widely-used. For instance, a certain directive is called the ePrivacy Directive in practice, even though official EU documents do not use that phrase.

II. How to find EU legislation?

Let’s say you have heard about a certain piece of EU legislation, and you want to read it. You should go to the website EUR-lex to find the legislation. In its own words, ‘EUR-Lex is your online gateway to EU Law. It provides the official and most comprehensive access to EU legal documents. It is available in all of the EU’s 24 official languages and is updated daily.’

We will use the ‘Digital Services Act’ as an example. You can use the Quick search form on the EUR-lex site. The search should lead you to the Digital Services Act.

Pay attention: the EUR-lex site contains many documents, including, for instance, the original proposals for EU legislation. You want to ensure that you read the final version which is in force. When in doubt, you can check whether you are reading the version that actually applies, because that relevant EUR-lex page will say ‘In force’, and will provide a source in the Official Journal of the EU, something like ‘OJ L 277, 27.10.2022, p. 1–102‘.

NB: be careful when using a general search engine such as Google to find EU legislation. Some websites re-publish PDFs of EU legislation. But such PDFs might not be up to date. EUR-lex is the most trustworthy and up-to-date source.

What language to read?

You can read the legislation in any of the official languages of the EU. All these language versions have the same value. And the translations are precise.

It is not the case that one language, for instance English or French, is more authoritative than other languages. In rare cases, there may be differences in the nuance of a phrase in different languages.  (In exceedingly rare cases, there are mistakes in a translation.)

Which version to read?

Suppose that you have found a piece of legislation on EUR-lex, such as the ePrivacy Directive. If an EUR-lex page says that there is a ‘Consolidated version’ of the EU legislation that you are reading, you typically want to read that consolidated version. For instance, the EUR-lex page of the ePrivacy Directive, says: ‘In force: This act has been changed. Current consolidated version: 19/12/2009’. 

Why is it easier to read the consolidated version? Sometimes, EU legislation is amended by later EU legislation. An example is the ePrivacy Directive from 2002. That Directive has been amended by other subsequent Directives from 2006 and from 2009. A Directive that amends another directive is not reader-friendly. It says things like ‘Article 1(1) shall be replaced by the following (…)’.

Thankfully, the EU publishes consolidated versions, in which the amendments are integrated in the text of the original legislation. To illustrate, the consolidated version of the ePrivacy Directive can be found here. 

III. Where and how to start reading EU legislation?

A preamble with recitals

You might think that it makes sense to start reading EU legislation at the top. After all, that is how you read most documents. However, we advise against that approach when reading EU legislation.

We advise you to start reading the legislation at ‘Article 1’. The articles, or ‘provisions’, of EU legislation are the most important part. Therefore, you should focus on the provisions.   

But first: what is all that text before the provisions? That is the ‘preamble’ with the numbered ‘recitals’ and several introductory sentences referring to the legal basis of the legislative act (important because the EU has no general competence to regulate everything!) and the decision-making procedure followed. The numbered recitals provide context for the legislative act: they explain the objectives of the act or they explain how a particular term should be understood.

The recitals are legally non-binding. However, the recitals can be relevant. Courts often use the recitals to interpret a particular – legally binding – provision of EU legislation, especially if multiple interpretations of a certain provision are possible. You can use the same approach: read the provisions first, and when you have doubt, consult the recitals.

It sometimes happens that the two EU co-legislators (the European Parliament and the Council) fail to reach a consensus and only touch upon a particular controversial issue in the recitals as a compromise.

Warning about recitals in consolidated versions

We have to warn you about consolidated versions of legislation. The consolidated version of a piece of legislation typically contains the preamble (the list of recitals) of the original version; see the consolidated version of the ePrivacy Directive as an example. As mentioned, that 2002 directive was last amended in 2009. That amending directive also has a preamble with recitals. These 2009 recitals are not included in the consolidated version of the ePrivacy Directive. Hence, if you are reading the consolidated version of a piece of EU legislation, and if you want to read the recitals, you should also look at the recitals of the amending legislation.

In sum, when encountering a piece of EU legalisation for the first time, we suggest that you skip the recitals.

How to read?

Now we start reading in earnest. We return to the example of the Digital Services Act. Scroll down, or leaf through your prints, until you arrive at the provisions, ‘Article 1’ etc.

Now start reading at Article 1. That provision typically explains the ‘Subject matter’ of the legislation. One of the next provision often explains the scope of legislation; Article 2 in our example. Hopefully, you have a first idea of the contents of the legislation already.

Next, read the headings in the legislation, such as chapter headings and section headings. We keep using the Digital Services Act as an example. You will see that Chapter 1 is called ‘General provisions’, Chapter 2 is called ‘Liability of providers of intermediary services’, and so on. If you have read these headings, you have an idea of the structure of the Act.

Go back to the provisions. One of the earliest provisions typically provides a list of definitions, in our example that list is in Article 3. This is not the most exciting reading. But we recommend reading the provision anyway, as the definitions are important to understand the later provisions. You should at least skim the provision. Like that, you know which words are defined in this legislation, so you can go back to the list of definitions if a certain phrase is used later in the legislation.

Now continue reading. Pay attention to chapter and section headings because they help you to understand the structure of the legislation.

If you are confused about the meaning of a provision, sometimes the recitals (those in the preamble) give some extra explanation. Unfortunately, EUR-lex does not give an easy way to see which recitals accompany which provisions. You could search the legislation for certain phrases if you use a digital version of the legislation.

Does the legislation apply at the moment?

If you want to know whether a legal act currently applies, read the last provision. In our example, that is Article 93. We quote it below.

‘Entry into force and application

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   This Regulation shall apply from 17 February 2024. (…)’

At the top of the EUR-lex page, you can see that the Regulation (the Digital Services Act) as published in the Official Journal on 27 October 2022: ‘OJ L 277, 27.10.2022’.

If EU legislation is ‘in force’ that means that has legal existence in the EU legal order. If EU legislation ‘applies’, it means that natural and legal persons are bound by the content of it: this means that they can be confronted with obligations and can derive rights from the legislation.

To make that more concrete, let's consider the Digital Services Act. Only when a Regulation applies, fines can be given for non-compliance. In our example, the Digital Services Act will apply roughly thirteen months (February 2024) after it entered into force (November 2022). There is usually such a period, because companies and others need time to adapt their practices to new legislation. After all, it would be unfair to fine a company for breaching a rule that was only published a few days before.

Directives are not (directly) applicable. The reason is that directives need to be implemented by the national authorities first. It is thus the national statute (instead of the related directive) that applies and can be invoked before a court, subject to the possibility of direct effect of Directives as described above.

Some cheats

We also give you some cheats when reading EU legislation. It can be helpful to consult summaries of legislation compiled by the EU itself. Keep in mind, such summaries may read a bit like marketing by the EU.

Also useful are article-by-article commentaries. They can be in the form of books, websites, and legal professional databases. Such sources often point to relevant recitals, relevant case law in which the Court of Justice has clarified particular terms, and important soft law or international developments. Practicing lawyers, judges, and legal scholars often use such commentaries too. An example of an online article-by-article commentary is the GDPRhub, which comments on the GDPR.

For more in-depth legal research, you could also read academic papers and the original proposal and negotiation documents (for more information, see here). And you can check whether there is case law of the Court of Justice of the European Union which helps to interpret certain provisions. You can search CURIA database with the official title of the legislative act. You can put the title of the respective act between parentheses in ‘Text’, e.g. ‘2022/2065’ for the Digital Services Act.

Cliché warning

We give a warning, for completeness’ sake. (And because we are educated as lawyers and suffer from ‘déformation professionnelle’.) Please consult an actual lawyer if you have a legal problem. Like other legislation, EU law can be complicated, and it is often difficult to understand all nuances of a new piece of legislation. We both have doctorates in law, but we also consult specialists if we have to deal with legislation that is outside our own expertise.

Summary

We summarise the most important steps when reading EU legislation.

1) You could start with a cheat, for instance by reading a summary on a specialised and trustworthy blog, or by reading a summary published by the EU.

2) Find the legislation on EUR-lex and ensure that you have the correct version.

3) Choose the language that you’re most comfortable with.

4) Establish what type of legislation you are reading, for instance a Directive or a Regulation.

5) Skip the preamble with recitals.

6) Read the first provisions (Article 1, Article 2, etc.), paying attention to the ‘subject matter’ and the ‘scope’.

7) Read the chapter and section headings.

8) Read the provision with ‘definitions’.

9) Continue reading the provisions, and keep in mind which section a provision is in.

We hope this blog post is useful for some readers, and we hope you have fun while reading legislation.