Handbook of Legal Formality

Part B General recommendations for the formulation of legislation4With reference to other texts4.1General on the reference technique

Laws and regulations do not always have to describe the facts and legal consequences in full. Legislators and legislators may fall back on existing texts and refer to them. References may refer to other regulations or parts thereof.

The reference makes the texts referred to (reference standards and other reference texts) an integral part of the referring rule (source standard).

A distinction is made between

• declaratory references merely indicating that further texts must be observed (paragraph 230),
• constitutive references by which the reference text becomes part of the original standard (paragraph 231),
• References by analogy which do not adopt the reference text literally, but only mutatis mutandis (paragraph 232),
• internal references referring to provisions within the same law or regulation (paragraph 233(f)),
• external references involving other texts, mostly other legislation (paragraph 235 f.),
• references to specific standards (paragraph 237);
• content-related references relating to norms conceptually grouped together under a substantive description (paragraph 238),
• rigid references relating to a very specific version of the reference text (paragraph 239 et seq.), and
• sliding references meaning the reference text, including any subsequent amendments (paragraph 243 et seq.).

In order to be able to grasp the character of a reference with certain certainity, the same standard formulations should always be used within a law or ordinance for references of the same kind.

In the case of a reference, it is important that the reference text is suitable for supplementing the regulatory content of the initial standard, i.e. that it is suitable for referral. Anyone who formulates a regulation and adopts other texts by referral is responsible for the connection created by this and for the resulting content of the regulation.

References must be clear and unambiguous – there must be no doubt as to which regulations are referred to and to what extent (requirement of certainty). Therefore, on the one hand, the references in the original standard must be as specific as possible.

Example:
If § 5 paragraph 2 of a law (reference standard) contains provisions on the administrative procedure in sentence 1 and rules of jurisdiction in sentence 2 and if reference is to be made to the rule of jurisdiction in the original provision, it is not sufficient to refer to § 5 paragraph 2, but § 5 paragraph 2 sentence 2 must be indicated.

On the other hand, the requirement of certainty also requires that the reference text itself be determined so precisely that it is suitable for incorporation into the original standard. It would be inadmissible, for example, to refer to a highly confusing set of rules.

A further basic prerequisite for the suitability for referral is that the reference text is published and permanently accessible to the general public. Since the reference text becomes part of the original standard and legal provisions are only issued in German, reference may only be made to texts in German. Foreign-language texts must be translated into German, published and permanently accessible to the general public in order to be referred to.

An essential step in the creation of new standards and the amendment of existing legal norms is to clarify references to other legislation. Any amendment to a piece of legislation must therefore be subject to a review of whether and to what extent it affects other provisions that refer to it (referral control). If a piece of legislation contains sliding references (paragraph 243 et seq.), the relevant initial standard is at the mercy of the legal development of the reference rules. Whoever is responsible for the initial standard should therefore not rely solely on the referral control of those responsible for changes to the reference standards, but should also monitor the legal development of the reference standards themselves to determine whether it requires amendments to the original standard.

4.2Presens and disadvantages of the referral technique

The referral technique has advantages. References are suitable for keeping texts short and simple, as they save full-text repetitions. Unnecessary deviations in individual pieces of legislation can be avoided. In addition, it is ensured that the same conditions apply to comparable situations or that the same legal consequences occur. In this way, references can contribute to system formation by showing the relationships between different regulatory matters.

In some cases, referrals are even inevitable. Certain regulatory contents can in practice only be included by reference to the provision. This includes above all maps, tables and patterns, which can not only be displayed as text.

These advantages are offset by disadvantages. References tear apart the context of the text and impair the flow of reading. The overall control content is not only clear from the original standard, but only results together with the reference standard. These disadvantages can be mitigated if the initial standard indicates the content of the reference standard.

Example:
§ 55 of the Administrative Court Code:
Sections 169, 171a to 198 of the Judicial Constitution Act on the Public, Session Police, Court Language, Deliberation and Voting shall apply accordingly.

In the case of internal service references (paragraph 233(f)), the disadvantages of the referral technique are not so significant because the information missing in the original standard can be taken relatively easily from the reference standard in the same law or in the same regulation. However, in the case of external references (paragraph 235f.), the comprehensibility of the legislation may suffer considerably, since the original standard and its context do not show the entire content of the legislation.

The advantages and disadvantages of referrals must always be carefully weighed.

If the reference standard itself contains references, other provisions must be used in addition to the source and reference standards in order to determine what is actually regulated. Therefore, references to provisions which in turn refer to other provisions (no chains of reference) should be avoided.

False example:
§ 98 paragraph 1 sentence 1 of the Fifth Book of the Social Code – Statutory Health Insurance –:
The admission regulations regulate the details of the participation in the contractual medical care ... and the restriction of authorisations.

§ 33 paragraph 2 sentence 4 of the Admission Ordinance for Statutory Health Insurance Physicians:
Authorisation may be refused only if ... state law provisions on the exercise of the medical profession.

§ 31 paragraph 1 sentence 1 and paragraph 2 of the Heilberufsgesetz des Landes Nordrhein-Westfalen:
The more ... regulates the professional code. The Code of Professional Procedure shall be issued by the competent Chamber ...

4.3Types of referrals and citation

Declaratory references are merely references to other regulations, which must be observed anyway according to the applicable legal situation. They do not add anything to the current law, but only inform about the already existing regulations and make them easier to find.

Declaratory references are generally dispensable. Legislation should, in accordance with its function, be limited to genuine regulations. Additional information includes guides, brochures and comments.

If a declaratory reference is justified in an individual case, the wording should make it clear that it is additional information and not a validity order; Wording with 'apply' should be avoided (see paragraph 85).