What it is
Two families of wording sit close enough together to be confused and do different work. A reference points at an act or a provision and leaves it as it was. An amendment names a provision and replaces, inserts or deletes text in it. An amending act is almost nothing but the second family: a chain of instructions, each one a formula, with the text to be carried into the amended act sitting between them.
Both families are frames rather than free wording, with the identification of the provision slotted in. The amendment formula carries one element beyond that, a word or phrase announcing that what follows is the text to be inserted, and that element is the part that behaves least predictably from language to language.
The neighbour to hold apart is citation-formulae. A citation introduces an instrument and identifies it well enough for a reader to find it, and that wording belongs there. This record keeps the wording that points inside an instrument at one of its provisions, and the wording that changes one. Where the reference carries the name of the unit it points at, the term record keeps that name and this record keeps the formula around it.
Where the fixity comes from
The guide fixes requirements and the versions fix words, and the gap between the two is wider here than the density of the formulae suggests.
Guideline 16 of the Joint Practical Guide requires a reference to indicate precisely the act or provision referred to, and rules out both circular references and serial references. Guideline 18 fixes the form an amendment takes: it is expressed as a text to be inserted in the act to be amended, and replacing a whole provision is preferred to inserting or deleting individual sentences, phrases or words. Between them the two guidelines settle what an amendment has to be. Neither supplies the sentence that introduces one.
That sentence is in the language versions of the amending act, and it moves only when the act is amended in turn. Two wordings often assumed to belong to this family, mutatis mutandis and as amended, were not found as fixed formulae in anything opened for this record and are not presented as ones here.
Consequences for translation
These formulae look mechanical, which is why defects in them survive review.
- Formulae that are parallel in the source need not be parallel in the target. English introduces both a replacement and an addition with a forward-pointing element; Dutch drops it in the replacement formula and keeps it in the addition formula. The asymmetry runs in that direction, and a statement of it without the direction attached is wrong rather than incomplete.
- A varied amendment formula changes the operation. Text introduced as an addition where the act replaces, or the reverse, does something different to the amended act, and nothing in the amending act reveals the error.
- A reference carries the name of a unit, and that name is resolved against the target version of the act referred to rather than carried across. The number alone does not travel where the units are named differently.
- Where an amending instruction has no counterpart in the receiving system, what replaces it describes the operation instead of imitating a formula, and it should be visible as a description.
Examples
EN>NL
- Source: point (a) is replaced by the following: / the following points are added:
- Target: punt a) wordt vervangen door: / de volgende punten worden toegevoegd:
- Comment: Directive (EU) 2018/843, Article 1, points (1)(a) and (1)(c), English and Dutch versions. Two English formulae built alike come out unlike. The replacement formula loses its forward-pointing element in Dutch while the addition formula keeps it, so a translator carrying the following into both writes wordt vervangen door het volgende, which no Dutch version prints. This is EU Dutch. National Dutch drafting cites subdivisions by other conventions again, which the conventions section sets out, so the observation should not be carried across to a ministerial draft.
EN>FR
- Source: point (a) is replaced by the following: / the following points are added:
- Target: le point a) est remplacé par le texte suivant: / les points suivants sont ajoutés:
- Comment: Same act, same points. French keeps the forward-pointing element on both sides and names what follows outright, le texte suivant. That settles the direction of the finding above: the drop belongs to the Dutch version, not to amendment formulae in general, and a rule written from the Dutch case alone would be wrong about French.
References
- Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2015 edition. Luxembourg: Publications Office of the European Union. Guidelines 16 and 18, at pp. 48 and 58.
- Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU, Article 1, points (1)(a) and (1)(c), English, Dutch and French language versions.