Corrigenda of EU acts

‘A corrigendum of a legislative text is conventionally thought of as a mere rectification of obvious typing mistakes’ (Bobek 2009:950). In the EU, however, corrigenda go from mere corrections to substantial rewriting (Bobek 2009:951).

Corrigenda adopted by the institution(s) concerned are published accordingly in the Official Journal of the European Union in the same OJ series as that in which the initial document was previously published. The corrigenda do not contain any provisions on the validity or entry into force, and their authority derives from the text they rectify (European Commission 2010:141–142).

In the case of EU acts, errors can appear in the language version in which the document is drafted (‘the drafting language version’), for example, because the act is not in line with the will of the legislators, or errors can appear during the translation phase and concern different language versions.

Bobek distinguishes two types of corrigenda: (i) purely formal corrigenda; and (ii) meaning-changing corrigenda:

(i) ‘Purely formal corrigenda’ are what one could call genuine corrigenda. They correct typographic mistakes and omissions, obvious flaws in writing and type-setting.

For example: omitted letters,¹⁰⁹ small instead of capital letters at the beginning of a sentence, incorrect internal references caused by a typing mistake, wrongly type-set sentences or paragraphs, and so on. They typically occur in the publication process itself, i.e. after the adoption of the measure but before its publication (Ibid.).

(ii) ‘Meaning-changing corrigenda’ are those that introduce substantial changes to the content of the legal norm. Their scope is very broad. They might include the narrowing or broadening of notions in a legal text, changing the nature of a list of conditions to be fulfilled (from enumerative to exhaustive), turning positive sentences into negative ones, or even plainly rewriting substantive parts of a piece of EC legislation. Meaning-changing corrigenda are typically caused by incorrect translations

109 EC instead of EEC.

75 of EU legislation in the legislative process prior to the adoption of the legal act; unlike purely formal corrigenda, they are not the consequence of a typing or type-setting mistake (Bobek 2009:952).

The procedures for corrigenda vary depending on the institution that initiates the corrigenda.

At the Commission, for example, the procedure will be different depending on whether the error is purely formal (obvious) or meaning changing (substantial). The study published by the European Commission (2010:144) Lawmaking in the EU multilingual environment summarises the procedures as follows:

Errors in the original language version

Obvious errors: correction procedure of 1977 (Secretariat General)¹¹⁰

Substantial error: corrected in a procedure similar to that followed for the adoption of the initial act.

Errors in a language version other than the original

Minor translation error: Corrigendum procedure of 2008 (DGT)¹¹¹

Substantial translation error: corrected in a procedure similar to that followed for the adoption of the act (rectifying act).

At the Council and at the European Parliament

The Manual of precedents for acts established within the Council of the European Union describes the mechanism of adopting corrigenda and the standard forms used for such purposes. It distinguishes between corrigenda issued before adoption (in French corrigenda) and corrigenda issued after adoption (in French rectificatifs).

The procedures can be summarised as follows (European Commission 2010:145):

Obvious error in the text introduced after signature: corrigendum Obvious error in one or two language versions: corrigendum Non-obvious error: corrigendum or adoption of a new act

In cases where the error is not obvious, the General Secretariat makes suggestions to the

110 COM(77) PV 438.

111 SEC(2008) 2397, Memorandum to the Commission from the President in Agreement with Mr. Orban:

Empowerment to correct errors, including minor errors, in translation of acts adopted by the Commission. See point 3 ‘Framework for the empowerment’ of the Memorandum (SEC(2008)2397).

76 delegations as to the procedure followed in each case. The General Secretariat might suggest (i) that the correction be done by way of a corrigendum or the adoption of a new act; (ii) that the corrigendum has retroactive effect (Annex II, (2) (c) Manual of Precedents).

According to the Comments of the Manual, a corrigendum is necessary if the legal act in question is so faulty regarding its format as to be incomprehensible or when the errors are liable to produce undesired legal effects. However, obvious typing or language errors that are unimportant should not be corrected by a corrigendum.

In cases of acts adopted under the ordinary legislative procedure, the European Parliament conducts its own procedure simultaneously to the Council’s General Secretariat and the publication of a corrigendum is always subject to agreement by the European Parliament (European Commission 2010:146).

Legal consequences of corrigenda

Meaning changing corrigenda can lead to a complete alteration of the act. They can involve narrowing or broadening the scope of the application of a rule, sometimes generating something quite different and sometimes even the opposite (Bobek 2009:952). Bobek mentions the example of the corrigendum of the Czech version of Regulation 865/2006. The corrigendum contains no fewer than 122 correction points which include, inter alia, changing singular forms into plural, turning positive statements into negative ones, and changing the nature of a list of conditions to be fulfilled (Bobek 2009:953). One of the changes concerned the conditions under which a specimen of an animal species shall be considered to be born and bred in captivity. This particular article contains four conditions. The introductory part of the article reads in English (emphasis added):

specimen of an animal species shall be considered to be born and bred in captivity only if a competent management authority, in consultation with a competent scientific authority of the Member State concerned, is satisfied that the following criteria are met.

The Czech version of the same provision read for more than a year that (emphasis added):

specimen of an animal species shall be considered to be born and bred in captivity only if a competent management authority, in consultation with a competent scientific authority of the Member State concerned, is satisfied that at least one of the following criteria are met.

77 One of the many changes carried out by the corrigendum of the Czech version of this Regulation thus changed the nature of the list of criteria: from at least one condition to be fulfilled to all conditions to be fulfilled. Bobek poses the question: ‘What should now happen with the tens or perhaps even hundreds of administrative decisions that the Czech authorities had issued before the corrigendum was published?’ (Bobek 2009:958).

The legal consequences of meaning changing corrigenda can be very significant.¹¹² As Bobek contends, when the corrigenda change the meaning of the published act, they can no longer be treated as mere rectifications. They should be viewed as amendments and their application should only be prospective (Bobek 2009:951).