1.Introduction

Each legal order has its own conceptual system and consequently its own terminology. Even if the drafting of laws in various legal systems (e.g. in the UK and in the USA) is based on the same general language (e.g. English), legal languages of these systems and their legal terminologies are not the same. The differences can be of various kinds. For example, the same term in two legal systems usually does not refer to exactly the same concepts; a term may describe the legal concept of only one system (e.g. a barrister – a well-defined legal profession in the UK that does not exist in the USA); intralingual false friends can be observed (e.g. the terms note in British English and bill in US English (but not otherwise) mean a piece of paper money); some terms might be preferred over others (shares in the UK and stock in the USA).11.For further details on British and US legal English, see Haigh (2021Haigh, Rupert 2021 International Legal English. A Practical Introduction for Students and Professionals. Abingdon: Routledge., 85–89).

The European Union and its Member States use the same, twenty-four, languages to draft the supranational law of the EU22.EU law has an international character in the case of the Treaties which are negotiated and approved directly by Member States (hence, inter (between) Member States). The binding legal acts of the Union (i.e. regulations, directives and decisions) are forms of EU supranational law because they are enacted by the EU institutions (hence, supra (above) Member States) in areas where a competence is conferred on the Union by the Treaties. See Articles 2 and 288 of the Treaty on the Functioning of the European Union, OJ C 83, 30.3.2010, p. 47–403. and the national laws of Member States. However, comparing the EU linguistic regime to national legal systems which use the same language (e.g. English in the UK and in the USA), the challenge of EU legislative drafting is intensified because EU law is applied in the same territory as the national laws of Member States.

To understand terminological choices made when EU law is drawn up and to know how EU law should be interpreted by the courts, the relation between EU law and the national laws of Member States must be explained. According to the Court of Justice of the European Union, the Treaty founding the European Economic Community (which developed into the European Union) created its own legal system.33.The autonomy of EU law (then EC law) has been stated by the Court of Justice of the European Union in its seminal case Costa v ENEL in 1964, ECJ Case 6/64 Costa v ENEL [1964] ECR 585. Hence, EU law is autonomous.44.For more information on the autonomy of the EU legal system see Barents (2004)Barents, René 2004 The Autonomy of Community Law. The Hague: Kluwer Law International. and Eckes (2020)Eckes, Christina 2020 “The autonomy of the EU legal order.” Europe and the World: A Law Review 4(1):1–19. . This autonomy is reflected in law-making and in legal interpretation. The European Union develops its own autonomous concepts (law-making) which should be given its own specific meaning different from the national one (autonomous interpretation).55.Case C-283/81 CILFIT [1982] ECR 3415.

However, in the same judgement, the Court stated that the EU legal order “became an integral part of the legal systems of the Member States”.66.Case 6/64 Costa v ENEL [1964] ECR 585. Therefore, according to legal theorists, there are two legal subsystems in each Member State: a national subsystem of a Member State’s law and the supranational subsystem of EU law (Zirk-Sadowski, Golecki, and Wojciechowski 2009Zirk-Sadowski, Marek, Mariusz Jerzy Golecki, and Bartosz Wojciechowski eds. 2009 Multicentrism as an Emerging Paradigm in Legal Theory. Frankfurt am Main: Peter Lang., 7–8). If we accept this statement and the observation made at the beginning of this chapter that every legal system has its own legal language along with its specific legal terminology, we can agree with Šarčević, according to whom:

The legal language of each of the Member States consists of two sub-languages, one with signs designating concepts and institutions of national law, and the other with signs representing concepts and institutions of EU law.(2015Šarčević, Susan ed. 2015 Language and Culture in EU Law: Multidisciplinary Perspectives. Farnham: Ashgate., 184)

This linguistic and legal phenomenon is also described as a double layer of legal language created in each Member State, i.e. as the language of domestic law and the language of European law (Taylor 2011Taylor, S. 2011 “The European Union and National Legal Languages: an Awkward Partnership?” Revue Française de Linguistique Appliquée 1(16):105–118. , 108). Such linguistic and conceptual dualism in legal language makes both the drafting and interpretation of EU law challenging. The EU legal order, although recognized by the Court of Justice of the European Union “as self-contained, self-referential and self-sufficient” (Eckes 2020Eckes, Christina 2020 “The autonomy of the EU legal order.” Europe and the World: A Law Review 4(1):1–19. , 3), is influenced by the legal systems of Member States and sometimes directly refers to national legal concepts of Member States.77.For example, Recital 17 of Council Regulation (EU) 2016/1103 provides explicitly that marriage is not defined by this Regulation but by the Member States’ national laws; see Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183, 8.7.2016, p. 1–29. The general rule of interpretation requires EU law to be interpreted uniformly in all Member States. However, there are exceptions to this rule. Moreover, it is not always clear whether a term used in EU legal act renders a national or EU supranational concept, especially if the term is also known in national law. As observed by van Dorp and Phoa, “every jurist working with EU law has to accommodate both their own national legal cultural background, and the autonomous, sui generis nature of EU law” (2018van Dorp, Jacobien and Pauline Phoa 2018 “How to Continue a Meaningful Judicial Dialogue About EU Law? From the Conditions in the CILFIT Judgment to the Creation of a New European Legal Culture.” Utrecht Journal of International and European Law 34(1):73–87. , 73).

There are legislative drafting techniques which can facilitate drafting and interpretation processes by clarifying the concepts applied in legal acts. One of them is a definition and this technique is used not only in the EU but also by national drafters in Member States. Definitions are applied in various types of EU legal instruments. An example of definitions can be found in the Treaties (e.g. a definition of service in Article 57 of the Treaty on the Functioning of the European Union) and also in instruments of EU supranational law, especially in regulations and directives.

This chapter focuses on definitions used in EU directives which, according to Article 288 of the Treaty on the Functioning of the European Union, are binding Member States as to the result to be achieved. However, Member States can choose the form and methods of achieving the directives’ objectives. Hence, directives should be implemented in the national legal systems of Member States. The implementation usually encompasses transposition which means the enactment of a new legal act or amendment of national law. Directives have been selected for the analysis because they are legal instruments particular to the European Union. They reflect the motto of the EU: “United in the diversity”; i.e. the same result (unity) is to be achieved by Member States by different means, and adjusted to the particularities of national legal systems (diversity). Moreover, the need for transposition illustrates very well the interdependence of autonomous systems, i.e. that of EU supranational law and Member State national law.

Countless legal publications focus on drafting challenges (e.g. Voermans 2019Voermans, Wim 2019 “Transposition of EU Legislation into domestic law: Challenges faced by National Parliaments.” In Lawmaking in Multi-level Settings – Legislative Challenges in Federal Systems and the European Union, edited by Patricia Popelier, Helen Xanthaki, William Robinson, João Tiago Silveira and Felix Uhlmann, 243–260. Baden-Baden: Nomos. ) and techniques (e.g. Kurcz 2004Kurcz, Bartłomiej 2004 Dyrektywy Wspólnoty Europejskiej i ich implementacja do prawa krajowego. Kraków: Zakamycze.) of directive transposition, on the implementation of the directive in a specific field of law (e.g. Stelkens, Weiß, and Mirschberger 2012Stelkens, Ulrich, Wolfgang Weiß and Michael Mirschberger 2012 The Implementation of the EU Services Directive: Transposition, Problems and Strategies. The Hague: Springer. ). The focus directly on definitions is limited to works on the differences between EU and national drafting rules (see e.g. Lanceiro 2019Lanceiro, Rui 2019 “How to reconcile the drafting rules and practices of the Member-States with the rules and practices of the EU?” In Lawmaking in Multi-level Settings – Legislative Challenges in Federal Systems and the European Union, edited by Patricia Popelier, Helen Xanthaki, William Robinson, João Tiago Silveira and Felix Uhlmann, 261–271. Baden-Baden: Nomos. ). The definitions used in EU directives are taken into consideration in legal research but usually not to investigate the concept-term relation. Some legal scholars even underline that the distinction between a term and a concept is not needed for their research purpose (Koronkiewicz 2015Koronkiewicz, Joanna 2015 Terminologia podatkowa a prawidłowość implementacji dyrektyw unijnych w Polsce. Warszawa: Wolters Kluwer., 16).

Furthermore, challenges in drafting and transposition of directives into national law are also analysed from the terminological standpoint among others by Robertson (2015)Robertson, Colin 2015 “EU Multilingual Law: Interfaces of Law, Language and Culture.” In Language and Culture in EU Law: Multidisciplinary Perspectives, edited by Susan Šarčević, 33–52. Farnham: Ashgate. and Bajčić (2017)Bajčić, Martina 2017 New Insights into the Semantics of Legal Concepts and the Legal Dictionary, Amsterdam: John Benjamins. . In linguistically-oriented studies which apply corpus linguistics tools, directives and their transposition are a very good material for the investigation and description of Eurolect development and its influence on Member States’ legal languages (Biel 2014Biel, Łucja 2014 Lost in the Eurofog: The Textual Fit of Translated Law. Frankfurt am Main: Peter Lang. ; Biel and Doczekalska 2020Biel, Łucja and Agnieszka Doczekalska 2020 “How do supranational terms transfer into national legal systems?” Terminology 26(2):184–212. ; Doczekalska 2021Doczekalska, Agnieszka 2021 Hybrydyzacja języka prawnego podczas tworzenia i transpozycji prawa Unii Europejskiej. Warszawa: Wolters Kluwer.; Mori 2018Mori, Laura ed. 2018 Observing Eurolects. Corpus analysis of linguistic variation in EU law. Amsterdam: John Benjamins. ). In all the above examples the definitions are taken into account as a component of legal texts; however, they are not the focal point of such studies.

This chapter analyses the transposition of EU directives into Polish law in the following domains: free movement of workers and social policy, and industrial policy and internal market. The study centres on terms which are defined in the directives and on their transfer into national law. This analysis aims at identifying transposition techniques, explaining the choice of the techniques and describing transposition patterns of the defined terms.

Before the findings are presented, the following aspects are explained. First of all, the relations between terms and concepts are clarified to prepare the background for explaining how EU terms and concepts are transferred into Member States’ national legal systems. Secondly, a short comparative overview is given of the role definitions play in EU and Polish legislation. Finally, the chapter examines the role definitions provided in EU directives play in the transposition process. A special focus is given to how much definitions in EU directives influence the terminological and conceptual transfer from EU law into national law and the legal languages of Member States.

2.Term and concept relations

Legal regulations cover so many areas of life that legislative drafters use not only legal concepts and legal terms but also technical terms or expressions of ordinary language. The main challenge in drafting is to find the right words to express the meaning of a legal act or, more concretely, to find the right terms to denote legal concepts of a given act. Therefore, legislative drafting literature (Bajčić 2017Bajčić, Martina 2017 New Insights into the Semantics of Legal Concepts and the Legal Dictionary, Amsterdam: John Benjamins. , 18–22; Dickerson 1986Dickerson, Reed 1986 The Fundamentals of Legal Drafting, 2nd ed. Boston: Little, Brown., 5) underlines the need to distinguish terms from concepts. In the General Theory of Terminology, the concept is a unit of thought or a mental construct whereas the term is a linguistic representation of a concept (Wüster 1979Wüster, Eugen 1979 Introduction à la théorie générale de la terminologie et à la lexicographie terminologique. Quebec: E. Brent., 33). The term can have the form of a word or expression, including more than one word. However, not so much the form of the term but the correct understanding of the relations between a term and a concept is significant in the drafting process (e.g. in making a decision whether definitions should be used in a legal act). The following relations between terms and concepts are observed: (1) one term designates one concept; (2) one term designates a few concepts; (3) one concept is designated by a few terms; (4) a concept exists without a term.88.For further details see Doczekalska (2021Doczekalska, Agnieszka 2021 Hybrydyzacja języka prawnego podczas tworzenia i transpozycji prawa Unii Europejskiej. Warszawa: Wolters Kluwer., 55–69).

In a perfect legislative world, one term refers to one concept (1). Legislative drafting rules require that, at least in a single legal act, the same term always designates the same concept (similarly to the rule: “same word, same meaning; different word, different meaning”). The same applies to the process of legal interpretation when one term should be recognized as denoting the same concept throughout the whole legal act. However, in both general language and legal language, the relations between words and meaning, and terms and concepts, respectively, are more complex.

Even in legal terminology, one term may refer to different concepts (2). As long as this phenomenon does not occur in one legal act, such relation is acceptable. However, when a term is used within one legal act, it should denote the same concept. It can be illustrated with the term dobra wiara (good faith), which designates different concepts in some legislations: a subjective one (you act in good faith when you are convinced that the act is lawful even if it is actually not true; e.g. buying a stolen car when you do not know that it was stolen) and objective one (you act in good faith when you follow the required standards of behavior). The Polish Civil Code99.Journal of Laws – Dz. U. 1964 No 16, item 93. follows the former subjective approach. The transposition of EU consumer directives into the Code required the change of the term used in the directives (from dobra wiara used in the Polish version of EU directives to dobre obyczaje used in Polish acts transposing the directives) because the directives use the term good faith with an objective meaning (Doczekalska 2021Doczekalska, Agnieszka 2021 Hybrydyzacja języka prawnego podczas tworzenia i transpozycji prawa Unii Europejskiej. Warszawa: Wolters Kluwer., 275).

EU law also provides examples for the third relation between terms and concepts (3). In this case terms in 24 languages denote a single autonomous EU concept, which should be given a uniform interpretation in all official EU languages and in all Member States. However, such relation can appear in legal terminology also in a single language. For example, in English, EU legal acts sometimes use the terms worker and employee interchangeably when referring to the same concept.

The forth relation (4) is observed, for instance, in texts on foreign legal systems. For example, in Polish language, the terms common law and equity do not have equivalents although the concepts are known as ones belonging to English law. This relation can evolve into the first relation between a concept and a term, when a new term is created to denote a new concept in a language. This situation takes place in EU legal acts when EU translators search for terms to render new concepts. When a new concept and a new term are introduced, the use of definitions is often required.

3.The role of definitions in EU and Polish legislation

Definitions are applied both in EU and Polish legal acts. Rules on their use in Poland are provided in the binding regulation laying down the Principles of Legislative Drafting1010.The Annex to the Regulation of the Prime Minister of 20 June 2002 on the Principles of Legislative Drafting, Journal of Laws – Dz. U. No. 100, item 908. whereas European Union rules are scattered across various non-binding drafting guidelines, manuals and instructions.1111.See, for instance, the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation (European Union 2015European Union 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation. Luxembourg: Publications Office of the European Union. https://​op​.europa​.eu​/en​/publication​-detail​/-​/publication​/3879747d​-7a3c​-411b​-a3a0​-55c14e2ba732) (referred to in this chapter as Joint Practical Guide); Interinstitutional Style Guide (European Union 2022European Union 2022 Interinstitutional Style Guide. Luxembourg: Publications Office of the European Union. Online at: https://​publications​.europa​.eu​/code​/en​/en​-000100​.htm); for the Polish language see Vademecum tłumacza. Wskazówki redakcyjne dla tłumaczy (Departament Języka Polskiego 2022Departament Języka Polskiego, Dyrekcja Generalna ds. Tłumaczeń Pisemnych, Komisja Europejska 2022 Vademecum tłumacza. Wskazówki redakcyjne dla tłumaczy, https://​ec​.europa​.eu​/info​/sites​/default​/files​/about​_the​_european​_commission​/service​_standards​_and​_principles​/documents​/styleguide​_polish​_dgt​_pl​.pdf).

In Poland, the definition inserted in the legal act is called “a legal definition” (definicja prawna). The name underlines the significant role this drafting technique plays in making and interpreting legal acts. In English, the expression “legal definition” does not necessarily refer to a definition in a legal act. It is rather a definition that turns an ordinary word into a term that describes a legal concept. Thus, legal definitions can be found not only in legal acts but also in legal dictionaries or dictionaries of legal English (Yelin and Samborn 2018Yelin, Andrea B. and Hope Viner Samborn 2018 The Legal Research and Writing Handbook: A Basic Approach for Paralegals. New York: Wolters Kluwer., 123).

Indeed, definitions in legal acts both in Poland and in the EU are often applied to depart from the ordinary meaning of the word. However, the general rule in Polish1212.§ 8 of the Annex to the Regulation of the Prime Minister of 20 June 2002 on the Principles of Legislative Drafting. and EU legislation1313.See guideline 6 of the Joint Practical Guide (European Union 2015European Union 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation. Luxembourg: Publications Office of the European Union. https://​op​.europa​.eu​/en​/publication​-detail​/-​/publication​/3879747d​-7a3c​-411b​-a3a0​-55c14e2ba732). requires the use of words in their ordinary meaning as much as possible. Moreover, not only legal terms but also technical terms are defined in legal acts. Therefore, the reasons for using definitions go beyond departures from ordinary meaning into legal ones. The Polish principles of legislative drafting explicitly indicate the following conditions under which a term should be defined in a legal act:

1. The term is ambiguous;

2. The term is vague, and it is desirable to limit its vagueness;

3. The meaning of the term is not universally comprehensible;

4. Due to the area of regulated matters, the term needs to be given a new meaning (§ 146(1)).1414.Translation into English by Jakub Karczewski, forthcoming.

EU legislative rules also explain when terms should be defined in a legal act. For instance, rule 14.1 of the Joint Practical Guide emphasizes that the definition is necessary when “a term has several meanings but must be understood in only one of them or if, for the purposes of the act, the meaning is to be limited or extended with respect to the normal meaning given to that term” (European Union 2015European Union 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation. Luxembourg: Publications Office of the European Union. https://​op​.europa​.eu​/en​/publication​-detail​/-​/publication​/3879747d​-7a3c​-411b​-a3a0​-55c14e2ba732).

Nevertheless, definitions should not be overused. The first step is to use words which do not need to be defined. Referring to legal drafting in Minnesota, Kennedy observes that “definitions are dangerous and should be sparingly used” (1946Kennedy, Duncan 1946 “Legislative Bill Drafting.” Minnesota Law Review 31:103–120., 104). Actually, placing the list of definitions at the beginning of a legal act, as it is practiced in Polish and EU legal acts, is not common in all Member States. For instance, the technique of defining words was not used by Portuguese legal drafters. However, definitions used in directives were transferred into Portuguese legal acts and nowadays lists of definitions appear in Portuguese acts even if they are not related to EU law (Lanceiro 2019Lanceiro, Rui 2019 “How to reconcile the drafting rules and practices of the Member-States with the rules and practices of the EU?” In Lawmaking in Multi-level Settings – Legislative Challenges in Federal Systems and the European Union, edited by Patricia Popelier, Helen Xanthaki, William Robinson, João Tiago Silveira and Felix Uhlmann, 261–271. Baden-Baden: Nomos. , 268).

Hence, EU legislative techniques have influenced the methods of legal drafting in Portugal. In Poland, however, the definition as a tool of legislative drafting had been known long before Poland joined the European Union and even before the European Communities were founded. The Polish Legislative Drafting Principles of 1939 required the word to be explained in the legal act when its meaning was ambiguous (Wierczyński 2016Wierczyński, Grzegorz 2016 „Komentarz do rozporządzenia w sprawie ‘Zasad techniki prawodawczej’.” In Redagowanie i ogłaszanie aktów normatywnych. Komentarz, 2nd ed., edited by Grzegorz Wierczyński, 19–36. Warszawa: Wolters Kluwer., 813). The analysis how definitions are used in EU and Polish legislation explained in the following subchapter (4) shows that legislative requirements influence the use of definitions, even if rules do not refer directly to them.

4.The role of definitions in the transposition of EU directives into national systems

The analysis focuses on terms defined in EU directives in the areas of free movement of workers and social policy, along with industrial policy and internal market. It aimed at finding out whether defined terms are transferred into national legal acts during transposition and whether the transfer also encompasses definitions. The study reveals a few scenarios of transfer. The following table demonstrates possible models of term transfer during transposition. It covers not only terms defined in the directives as the analysis interestingly shows that national drafters tend to define terms used in the directive also when the directive does not define them.

The first model (M1) in which a term defined in the directive is transferred into the national legal system along with its definition is a common practice. In this model both the EU concept and the term are applied in a national legal act. Three types of definition transfer are observed. Firstly, the EU definition can be repeated verbatim (1) in a national legal act. Secondly, the transferred definition is modified (2). Thirdly, the definition in a national legal act refers to another EU or national legal act (3) which includes an adequate definition of the term in question.

The verbatim technique (1) can be applied to transfer legal concepts but it is especially chosen, in a deliberate way, in the case of technical terms. Technical terms tend to designate the same concept in all languages. Therefore, it is not necessary to modify the concept and the wording of a definition. For instance, the Polish legal act1515.Regulation of the Minister of Development of 2 June 2016 on the requirements for recreational watercraft and scooters, Journal of Laws – Dz.U. 2016, item 807. transposing Directive 2013/53/EU1616.Directive 2013/53/EU of the European Parliament and of the Council of 20 November 2013 on recreational craft and personal watercraft and repealing Directive 94/25/EC, OJ L 354, 28.12.2013, p. 90–131. copied the exact wording of ten definitions of technical terms from the Directive. The defined terms include such expressions as: watercraft, recreational craft, personal watercraft, watercraft built for own use, propulsion engine, major engine modification, major craft conversion, means of propulsion, engine family, and hull length. Table 2 demonstrates an example of the verbatim transfer of the term, concept and wording of the definition of propulsion engine.

The modification technique (2) changes the wording of definitions. Modifications can be minor or major. However, such adjustments do not radically change the meaning. Changes stem from national legislative drafting requirements, legislative tradition or style which is typical of national legislation. Table 3 provides an example of modifications in the definition of ‘CE marking’ made in the Polish legal act transposing Directive 2014/30/EU.1717.Directive 2014/30/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility (recast), OJ L 96, 29.3.2014, p. 79–106. Although the definition of CE marking is not exactly the same as the definition used in the Directive, the meaning has not been changed. Hence, not only the term but also the concept are transferred to the Polish legal system. Definitions in the national act transposing the Directive used expressions, such as essential requirements and conformity assessment, which are applied in the Directive or even as in the case of conformity assessment defined in this Directive. This confirms that national drafters intended to transfer the EU concept of the term, hence to transpose the EU concept as well.

The reference technique (3) appears when legal acts which transpose EU directives define terms by referring to the definition used in the EU legal instrument or to another national act which was enacted or amended to transpose the EU directive. For instance, Article 3(22) of the Act of 12 December 2013 on foreigners defines the term Schengen visa by referring to Article 2(2)–(5) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code). Another act, the Act of 16 of September 2011, on timeshare, which transposes Timeshare Directive 2008/122/EC into Polish law, does not transfer the definitions of consumer and trader from this Directive but provides (in Article 6(2) and 6(4)) that for its purposes, the following definitions should apply:

• consumer – consumer within the meaning of the Act of 23 April 1964 – Civil Code

• trader – trader within the meaning of the Act of 23 April 1964 – Civil Code.

In fact, the definitions of consumer and trader in the Civil Code result from the transposition of EU consumer directives. They were amended a few times to adjust Polish law to the changes of these concepts in EU law.1818.For more details on the evolution of the concept of consumer in Polish law see Szuma (2016Szuma, Krzysztof 2016 “Ewolucja pojęcia „konsument” w polskim prawie i orzecznictwie sądowym.” In Współczesne wyzwania prawa konsumenckiego, edited by Bogusław Gnela and Kinga Michałowska, 55–63. Warszawa: C.H. Beck., 55–63) and Doczekalska (2021Doczekalska, Agnieszka 2021 Hybrydyzacja języka prawnego podczas tworzenia i transpozycji prawa Unii Europejskiej. Warszawa: Wolters Kluwer., 176–178).

The reference technique reflects the differences in drafting methods applied in Polish and EU legislations. EU legal instruments include definitions of terms already defined in EU law although the concept does not change. For instance, three directives (Directive 2011/98/EU,1919.Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23.12.2011, p. 1–9. Directive 2014/36/EU,2020.Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94, 28.3.2014, p. 375–390. and Directive 2014/66/EU)2121.Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157, 27.5.2014, p. 1–22. repeat the same definition of the term third-country national. Similarly, the term consumer is defined in several EU legal acts. The differences between the wording of these definitions are not significant.2222.See the comparison of the definitions consumer in six directives, one proposal for directive and in the Draft Common Framework of Reference in Várnai, Bérczi, and Somssich (2010, 98–99). Such a repetition of definitions (or any other provisions) is not allowed by the Polish legislative drafting rules. According to the Regulation of the Prime Minister of 20 June 2002 on the Principles of Legislative Drafting, a legal act should not repeat the provisions of other legal acts, including EU regulations (§ 4).2323.Repetitions from EU directives during the transposition are not forbidden by Polish legislative drafting rules. Therefore, instead of repeating definitions, Polish drafters refer to an act where such definitions are explicitly provided.

The second model (M2) of concept/term transfer is also very common because terms which are defined are crucial for the regulation provided in a directive. Therefore, these terms are usually used in a national act. The lack of definitions in a national act transposing the directive does not mean that such concepts have not been transferred. In this case, the national drafter decides to omit the definition because the term is clear or the concept is clarified in the provisions providing rules of behavior. For example, two Polish legal acts transposing Directive 2014/36/EU2424.Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94, 28.3.2014, p. 375–390. – the Act of 20 April 2004 on employment promotion and labor market institutions2525.Journal of Laws – Dz.U. 2004 No. 99, item 1001. and the Act on foreigners2626.Act of 12 December 2013 on foreigners, Journal of Laws – Dz. U. 2013, item 1650. – use the term seasonal work. However, they do not transfer the definition of “activity dependent on the passing of the seasons” from the Directive, because the concept seasonal work is explained in the provisions providing for the procedure to apply for the seasonal work permit.

The third model (M3) transfers the definition verbatim or with wording modification but changes the term. The term from the directive can be replaced by another one or a modified one. The latter is illustrated in Table 4 with the example of modification that changed the term immunity from the Directive into the term immunity to electromagnetic disturbances in the Polish act transposing this Directive.

The change of a legal term is caused by the need to adjust legal terminology to national requirements. For instance, the term transaction cannot be used in the Polish act transposing the directive because the Polish Civil Code uses the term umowa (contract) to which the concept of transaction actually refers to. Table 5 illustrates the change of the term defined both in the EU directive and the Polish act transposing the directive. The change was necessary to guarantee terminological coherence among the legal acts of Polish civil law.

The fourth model (M4) describes the situation when neither term nor its definition is transferred into national law during transposition. The lack of such transfer is due to various reasons. The most common reason is the fact that the objectives provided in the directive can be obtained by other means. For instance, a (sometimes just slightly) different concept has been used before the transposition. This concept often rendered by the term different from the one used in the directive can very well be applied to obtain the results required in the directive. A good example that illustrates the situation when the transfer of the defined concept and term is not needed is the transposition of three directives in the area of free movement of workers and social policy into Polish law. The directives defined the concept of third-country national (Article 2(a) of Directive 2011/98/EU, Article 3(a) of Directive 2014/36/EU, and Article 3(a) of Directive 2014/66/EU) in exactly the same way. The Polish Act of 12 December 2013 on foreigners which transposes these directives does not use the term third-country national. As we can already learn from the title of the national legal Act, it is addressed to foreigners. Therefore, the Act defines the concept of foreigner instead of a third-country national. The comparison of the definitions reveals that the concept of foreigner as defined in the Polish Act is narrower than the concept of third-country national; a foreigner is a person who is not a Polish citizen while third-country national is a person who is not a citizen of the Union (see Table 6). However, Article 3(2) of the Act on foreigners, where the concept of foreigner is defined, must be read together with other provisions of this Act, which explain that the Act applies to foreigners (Article 1) but not to the nationals of the European Union (Article 2(2)). Hence, the concept of third-country national is reflected in the Polish Act although neither the term nor its definition have been transferred during the transposition.

In the fourth model, although neither term nor its definition are transferred into national law, the concept behind the term defined in the EU directive is transposed into the law of a Member State. For example, the Act on foreigners transposing Directive 2011/98/EU2727.Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23.12.2011, p. 1–9. which among others, aims at guaranteeing non-EU citizens a simple application process to obtain a residence and work permit, does not define or use the terms single permit and single application procedure. However, the Polish Act provides a detailed procedure for foreigners to get the residence and work permit, which fulfils the requirement of the procedure outlined in the Directive. Hence, the use of EU terminology was not necessary to transfer EU legal concepts and fulfil the objective required by the Directive.

The fifth model (M5) refers to the term which is not defined in the directive but is used and defined in a national act. This model appears relatively rarely. However, sometimes national drafters decide to define the term used in the directive but not defined by EU drafters. For instance, the Act of 22 July 2016 amending the act on health protection against the consequences of using tobacco and tobacco products, which implements Directive 2014/40/EU,2828.Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, OJ L 127, 29.4.2014, p. 1–38. clarifies the concept of trade secret, which is used but not defined in the transposed Directive.

Another type of definition applied in national legal acts during transposition is a definition which allows for the use of the short name of EU legal acts (regulations and directives) in a national legal act. For example, the Polish Act of 29 June 2007 on the international shipment of waste explains (in Article 2(1)) that whenever the Act mentions Regulation (EC) No 1013/2006, it is understood as Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste. Article 2 provides the list of definitions of terms used in the Polish Act of 29 June 2007. The expressions used in Article 2(1) and its structure are typical for the wording of a definition. However, this provision does not explain the meaning of the defined term. Article 2(1) does not play the role of a definition but rather of the expression “hereinafter referred to as” by introducing a short name of EU legal act which is to be used throughout the Polish legal act.

The two last models (M6 and M7) are scenarios where terms are not defined in the directives. Therefore, they were not covered by the analysis. As in the case of defined terms, terms which are not defined can be transferred into national legislation or can be replaced by another term or not used at all in the national act transposing the directive.

5.Conclusions

Definitions in legislative acts are used by both Polish and EU drafters. This legislative technique is applied carefully. The use of definition is justified only when the clarification of the concept or change of the ordinary meaning are needed. The analysis of preparatory drafting materials produced during the transposition of EU directives into Polish law (i.e. explanatory memoranda to a bill or compatibility tables which compare results expected by a directive with a proposal of national provisions transposing them) reveals that definitions in EU directives are important legislative tools for Polish drafters. Definitions are always taken into consideration when a national act transposing a directive is being drafted. National drafters not only explain why a given definition is transferred into national law or why the EU definition has been modified in the national legal act but they also provide reasons why (and if) some of the definitions are not transferred.

Although the EU and Polish drafting rules on definitions are similar, differences in drafting methods result in divergence when using definitions in practice. In particular, as a result of the requirement not to repeat binding provisions, Polish drafters do not define terms which have already been defined in a national legal act. Instead, the article which includes definitions refers to a provision of another legal act (EU legal act or Polish legal act) where the term in question has already been defined.

Defining a term in an EU directive does not guarantee that it will be used in a national act transposing this directive. The comparison of EU directives with their Polish transposing instruments reveals that four models are possible: a term can be transferred together with the definition (M1); only a term is transferred (M2); only a definition without the term is transferred and the term from the EU directive is modified or replaced by another (M3); and finally, neither term nor definition are transferred into national law (M4). Moreover, a number of examples have been observed where the term used but not defined in the EU directive has been defined in a national legal act as a result of transposition (M5).

Obviously, the transfer of a definition results in the transfer of the EU concept (M1 and M3). However, the transfer of a term without the definition usually entails that the concept denoted by this term is also transposed into national law (M2). The lack of transfer of a term and its definition from EU directive into national law during transposition (M4) does not necessarily mean that the EU concept is rejected by national drafters. The lack of the transfer can result from the fact that equivalent of the EU concept already exist in national law.

The proposed model framework of the transfer of terms, concepts and definitions from EU law to Member States’ national law is based on the transposition of EU directives in selected domains only (i.e., a free movement of workers and social policy, industrial policy and internal market) in a single legal order. The framework should be tested on other areas of law, different language versions and transposition to other Member States. Further research may also focus on the role of definitions in EU directives not only in the process of national law-making (transposition) but also on the judicial interpretation of both directives and national acts transposing them.