The Copy Out Technique: More of a ‘Cop Out' than a Solution?’

Abstract

Article 5 EC Treaty obliges Member States to ‘ensure fulfilment of the obligations arising out of this Treaty or resulting from actions taken by institutions of the Community’. This positive obligation to ‘take all appropriate measures’ is coupled, in the second paragraph, by a negative obligation to ‘abstain from any measure which could jeopardize the attainment of the objectives of this Treaty’. Effective implementation of directives is one of the most fundamental obligations of European Union membership. It is also, for the reasons discussed below, one of the most onerous obligations. Some commentators believe that use of ‘copy out’, a drafting technique which replicates the language used in the directive, may reduce the burden of implementation. ¹ Will copy out produce legislation which ‘brings about in practice the results which its sponsors … intended or may be supposed to have intended’? ² This article seeks to question whether copy out can be an effective drafting technique through a consideration of the problems which the technique may cause. ³ In particular,