Recital

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A recital (abbreviation: EC or ERWG, engl. Recital ; fr. Considérant)'s law a part of the preceding one legal text explaining certain facts that certain written acts (eg. International treaties or EU legislation is preceded by and) this is intended to show the considerations that led to the adoption of the legal act.

Recitals can, but do not have to be, placed in front of a legal act or contract.

If a legal act or contract is preceded by several structured recitals, these together form a preamble . In contrast to the contractual clauses or legal norms , which they precede, no direct legal consequences can be derived from the recitals , but they are declarative (see: Soft Law ). However, in this function they can be of importance for the interpretation of the clauses or standards in the legal act and thus significantly influence their legal effects.

history

Recitals (formerly also called motives) can be found in the oldest legal texts and usually also refer to a god to whom a certain legal norm was issued in honor of or in order to obey his will. This reference serves, among other things, to legitimize the person who issued the standard. So were z. B. In the Golden Bull (1356), the most important "basic law" of the Holy Roman Empire , the following (and other) considerations are preceded: " Eternal almighty God, you only hope of the universe, creator of the vault of heaven, founder of the round of the earth, Be remember your people and watch down from heaven, That they do not direct their steps to where vengeance calls for (...). We want to counter the future dangers of discord and discord among the electors, to whose number we as King of Bohemia, as is well known, belong, for two reasons, namely because of our empire as well as because of the voting rights we exercise. We want to promote unity among the electors, bring about unanimity in the election, and prevent the cursed discord and the multiple dangers that arise from it from entering. Therefore, through the dignity of our imperial office, we have adorned the following laws at our solemn Reichstag in Nuremberg in the presence of all clerical and secular electors and numerous other princes, counts, barons, nobles, nobles and [ambassadors of the] cities, seated on the imperial throne with the imperial infuln, the insignia and the crown, issued, drawn up and affirmed by the power of imperial authority after detailed consultation . "

The Corpus iuris civilis (528-534) was also partially or partially preceded by a recital. Example (First Constitution): "The Emperor Justinian to the Senate of the city of Constantinople."

“We have decided to undertake an improvement, which had already been recognized by many earlier emperors as necessary, but which none of them had undertaken to carry out, with the help of Almighty God and for the general good, and to shorten the procedural disputes by shortening the imperial Laws which are contained in the three legal books, the Gregorian, the Hermogenian and the Theodosian, as well as those which were promulgated in the succession of these legal books by Theodosius, blessed memory, and other later emperors, likewise also by Our Highness, reduced and a legal collection will be drawn up, which will bear Our High Name and in which both laws from the three legal books mentioned, as well as the more recent constitutions, which were issued later than those, are to be compiled. "

Recitals in supranational law

The reasons for consideration in supranational law (e.g. international law , European Union law , statutes of international organizations, etc.) are often of particular importance. The recitals serve on the one hand to interpret the legal act or contract, but also, if implemented in national law, to interpret the corresponding national laws.

Recitals in international law

In international law , treaties (especially multilateral ones ) traditionally contain a preamble with the treaty's recitals. These can be recognized in the German translations by introductory wording such as “in the consideration that”, “in the wish”, “in recognition”, “in consideration that” etc., all of the recitals together as well as individual recitals can initiate.

Recitals in EU law

Recitals can be found in the preambles to the European Treaties and regularly also in the legal acts of the European Union derived from them .

Recitals in primary law

The recitals in primary law (the treaties of the European Union ) not only serve for the legal interpretation of the treaties, but also contain political principles and declarations of intent. Recitals in the preamble to the Treaties on European Union are also subject to change.

One of the best-known recitals is that of the ever advancing European integration in the TEU and TFEU , which expresses that the existing treaties are only intermediate stages in creating an ever closer union of the European peoples. These recitals are in turn a further development of the fifth recital, which was found in the Treaty on the European Coal and Steel Community : “Determined to replace the centuries-old rivalries with a union of their essential interests through the establishment of an economic community, the first To lay the foundation stone for a wider and deeper community among peoples who were divided for a long time by bloody conflicts, and to create the institutional foundations that can now point the direction of a common fate. "

Recitals in secondary law

In terms of content, the recitals in secondary law are primarily based on the purpose of the regulation and, with regard to form, on the uniform "interinstitutional rules for publications" of the Office for Publications of the European Union . The introductory formula in the German editions of the legal acts is “in consideration of the following reasons”. The individual recitals follow, numbered.

Recitals in national law

Belgium

In Belgium , certain legal acts are preceded by recitals, e.g. B. Enactment by the governments of the regions.

Germany

The use of recitals is handled differently at the level of national law. The German law does not know them in the form described above, but their designs together with detailed reasons in the official publications of the state parliaments or the will for example in laws Bundestag (see Bundestag printed ) published.

Liechtenstein

In Liechtenstein, it is not customary to prefix detailed recitals. Only the approval of the resolution of the Liechtenstein Landtag for a certain legal norm by the Prince is prefixed to the legal text, usually in one sentence (example): "I give my consent to the following resolution adopted by the Landtag:" This is a consequence of the Liechtenstein Constitution (theoretically) split state power into prince and people, who exercise them in accordance with the provisions of the constitution (Art 2 state constitution).

Austria

In the older Austrian legislation, especially before 1918 in the imperial era, it was customary to place recitals in front of them and in some cases to be inseparable from the actual legal text.

In the more recent legislation, from around 1918, the use of recitals is very rare. Instead, the motivation for the legal norm has recently often been included as part of the legal text itself (so-called "purpose").

Recitals in private law

Recitals and sometimes entire preambles are also included in private contracts. This is not mandatory and, as in state and supranational law, only serves to explain and interpret the following standards.

literature

Individual evidence

  1. ↑ Quoted from: THE NUREMBERGESETZBUCH OF JANUARY 10, 1356 , modern translation by Wolfgang D. Fritz, Berlin-Brandenburg Academy of Sciences .
  2. ^ German translation of the 1st book of the Codex Justinianus ( Memento of March 5, 2014 in the Internet Archive ), web archive.
  3. ↑ a b c Cf. for example the agreement on the legal status of refugees of July 28, 1951 (Geneva Refugee Convention) ( PDF ( Memento of the original of August 27, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this note. , 212 kB). @1@ 2Template: Webachiv / IABot / www.unhcr.de
  4. ↑ a b c Cf. for example the Peace Treaty of Versailles ( HTML ).
  5. ↑ See for example Council Directive 2000/43 / EC of June 29, 2000 on the application of the principle of equal treatment regardless of race or ethnic origin (Equal Treatment Directive) ( PDF (PDF) , 117kB).
  6. ↑ See a synoptic comparison of the treaty texts on EUV and EGV / AEUV in Antonius Opilio , EUV / EGV / AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , Dornbirn 2008, Edition Europa Verlag, pp. A2 ff and B1 ff.
  7. ↑ The first recital in each case.
  8. ↑ See Manfred Zuleeg in Hans von der Groeben , Jürgen Schwarze : Treaty on European Union and Treaty establishing the European Community. Volume 1, Nomos Verlag, Baden-Baden 2003, p. 42, margin no. 4 and 5.
  9. ↑ The contract on the European Coal and Steel Community ended on July 23, 2002.
  10. ↑ Publications Office of the European Union: Interinstitutional Rules for Publications ( HTML )
  11. ↑ Cf. for example the decree of the Walloon Government on the partial payment by the Walloon Region of the capital of the Walloon Society for the additional financing of the infrastructures ("Société wallonne de Financement complémentaire des Infrastructures") through contribution in kind and the creation of a leasehold on hydropower plants ( HTML ).
  12. ↑ Cf. for example the draft of a law for the fundamental reform of the Renewable Energy Sources Act and for the amendment of further provisions of the energy industry law of the federal government , BT-Drucksache 18/1304 ( PDF , 1.3 MB).