APPENDIX 4: "SHALL": THE DRAFTING
OF ARTICLE 12 TEU
In the case of all versions of the Lisbon Treaty
the original is in practice drafted in French, from which all
other texts are translated. The Lisbon Treaty inserts in the Treaty
on European Union a new Article 12. In the English text considered
by the Committee in its report The EU Reform Treaty: work in
progress this read: "National Parliaments shall contribute
actively to the good functioning of the Union ..." The original
French text read: "Les parlements nationaux contribuent
activement au bon fonctionnement de l'Union …"
These remained the English and French texts in version
CIG 1/1/07 REV 1 of 5 October 2007. In that version the German,
Italian and Spanish texts read:
"Die nationalen Parlamente tragen aktiv
zur reibungslosen Funktionsweise der Union bei, indem sie …"
"I parlamenti nazionali contribuiscono
attivamente al buon funzionamento dell'Unione: …"
"Los Parlamentos nacionales contribuirán
activamente al buen funcionamiento de la Unión, para lo
cual: …"
In the texts of 3 December 2007, CIG 14/07, which
in all five languages were (in the case of this provision) unchanged
before signature, the English text had been amended to read: "National
Parliaments contribute actively to the good functioning of the
Union …" i.e. "shall" had been omitted.
The French, Italian and Spanish were unchanged. The
German had been amended to read: "Die nationalen Parlamente
tragen aktiv zur guten Arbeitsweise der Union bei, indem sie …"
The change from "reibungslosen Funktionsweise"
to "guten Arbeitsweise" is irrelevant for present
purposes.
There is no equivalent in French to the English mandatory
"shall". In legal texts the present tense is used in
French to convey that meaning. The same is true of the German
and Italian, which are in the present tense. The Spanish is in
the mandatory future.
There are of course cases where the present tense
is used in the original French in a descriptive sense, and the
English is also in the present, e.g. Article 2 TEU: "The
Union is founded on the values of …"
However, whenever the French present is used in a
mandatory sense, the word "shall" is used in English,
e.g. "L'article premier est modifié comme suit"
is translated as "Article 1 shall be amended as follows",
even though in this particular case the present would suffice
in English, and would be used in English domestic legislation.
Articles 14-19 TEU impose duties on the institutions
of the Union. Each begins in French with the mandatory present
which is translated into English using "shall", e.g.
Article 16, where the original French reads: "Le Conseil
exerce, conjointement avec le Parlement européen, les fonctions
législative et budgétaire. Il exerce des fonctions
de définition des politiques et de coordination conformément
aux conditions prévues par les traités",
which is translated as: "The Council shall, jointly with
the European Parliament, exercise legislative and budgetary functions.
It shall carry out policy-making and coordinating functions as
laid down in the Treaties."
It is very unlikely that the Court of Justice would
ever have to interpret Article 12 of the amended TEU. If it did,
while an argument could be made that Article 12 imposes duties
on national Parliaments, it is highly unlikely that such an argument
would succeed, having regard to the context and the understanding
of the Member States as to its interpretation (mentioned in Chapter
11 of this report).
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