Monday, August 25, 2008
(Tadas is the man here in center of the photo. On the left is Dean John Corkery of The John Marshall Law School in Chicago, and I'm the other guy in the photo.)
Tadas has just posted a new article on SSRN, on the "Law of Recitals in European Community Legislation." Click here to download the article. His co-author is Jurate Vaiciukaie of the General Secretariat of the Council of the European Union. Here is an excerpt from the abstract of the article, stating their surprising conclusions about the use of "whereas" clauses in European Union Legislation:
We were . . . 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.
Congratulations to Tadas Klimas, and to Stetson.