The Dangling 'Provided That' in a Draft Decision
You are revising an English translation of a draft Commission decision. The source sentence, originally in French, reads: 'L’autorité peut accorder une exemption sous réserve que l’entreprise ait déposé les documents visés à l’article 4, paragraphe 2, et que les conditions de l’article 5 soient remplies, sans préjudice de l’article 6.' The translator rendered it: 'The authority may grant an exemption provided that the undertaking has submitted the documents referred to in Article 4(2) and that the conditions laid down in Article 5 are met, without prejudice to Article 6.' The reviser flags two problems: 'provided that' may read as a condition on 'may grant' or on 'submitted', and 'without prejudice to Article 6' is ambiguous because it could attach to the exemption or to the conditions. The decision will be binding and may be cited in litigation. You have the French source, a style guide requiring 'shall' for obligations, and no possibility of contacting the drafter before the 17:00 deadline.
1. Redraft the sentence to remove the ambiguity, using punctuation and/or reordering. Explain what each change does.
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A defensible redraft is: 'Without prejudice to Article 6, the authority may grant an exemption only if (i) the undertaking has submitted the documents referred to in Article 4(2), and (ii) the conditions laid down in Article 5 are met.' Fronting 'Without prejudice to Article 6' makes clear that it qualifies the authority’s power to grant the exemption, not the Article 5 conditions. Replacing 'provided that' with 'only if' removes the possible reading that the condition attaches to 'submitted'. Using (i) and (ii) separates the two cumulative conditions and prevents the second 'that' from being read as part of the first clause. 'Undertaking' is retained because it is the defined term in the source, not a generic 'company'. The result is still one sentence, so it preserves the drafting style of the decision while fixing the scope ambiguity.
2. The style guide requires 'shall' for obligations. Does that require changing 'may grant'? Justify.
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No. May grant confers a discretion; shall grant would impose an obligation to grant and would change the legal effect of the provision. The style guide’s rule is about obligations, not about every verb in a decision. 'Shall' should be reserved for mandatory duties, such as a duty to notify or to publish. If the French 'peut' were intended as a power coupled with a duty in certain circumstances, the source would need different wording. As reviser, you should not convert a permission into a duty merely to satisfy a superficial 'shall' rule. Check whether the decision uses 'may' elsewhere for the same authority; if it does, keep 'may' for consistency and record the point in the style sheet.
3. Draft a short query note to the drafter recording your assumption, even though no answer can arrive before the deadline.
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Query note: 'Assumption: “sans préjudice de l’article 6” qualifies the authority’s power to grant the exemption, not the conditions in Article 5. The English has therefore been drafted as “Without prejudice to Article 6, the authority may grant an exemption only if …”. Please confirm whether Article 6 is intended to preserve a separate requirement that operates regardless of the exemption, or whether it merely qualifies the exemption. If the latter, the fronted position is correct; if the former, the sentence may need to be split into two provisions.' The note should be short, identify the exact assumption, and state the consequence of the alternative reading. That is more useful than a general request to 'check the sentence'.