How should you use 'according to' and 'in accordance with' in legal drafting, especially with reference to the German expressions 'gemäß' and 'in Übereinstimmung mit'?
In a recent seminar, one of the participants asked me what the appropriate usage is in legal drafting of 'according to' as opposed to 'in accordance with,' particularly as the usage relates to the German expressions ‘gemäß‘ and ‘in Übereinstimmung mit.’ This is quite a tricky question, so it's hardly surprising that there are a number of (often conflicting!) views out there. I thought I would share what I wrote in reply to that participant's question, as you might find the information helpful too:
‘in Übereinstimmung mit’ = ‘in accordance with‘. Examples: The Seller’s obligations in this clause 3 are in accordance with EU law (contract) OR ‘Our client acted in accordance with / in line with / in compliance with her contractual obligations’ (correspondence). Strictly speaking, the true meaning of ‘in accordance with’ is ‘in line with’ or ‘in compliance with.’
For use in contract: generally, ‘in accordance with’ / ‘pursuant to’ / ‘under’ / ‘as provided in’ / ‘as set out in’ could be used depending on the context. Note: the last four have a similar function, namely to state what is written in a particular clause or law, for example. In my view, ‘in accordance with’ is different to the others and strictly speaking means ‘in line with’ or ‘in compliance with’ (see above). I would therefore argue that ‘in accordance with’ should only be used if it fits the context precisely i.e. if ‘gemäß’ has a similar meaning to ‘in line with’ or ‘in compliance with’ in the context of the relevant clause or sentence (see examples under ‘in Übereinstimmung mit’ above).
For use in correspondence: when reporting to a client what a clause says (i.e. as plain Legal English for ‘pursuant to’ / ‘under’ / ‘as provided in’ /‘as set out in’), ‘according to’ works, e.g. ‘According to clause 3, you must …’. You could also say: ‘As stated in clause 3, you must …’ or ‘Under clause 3, you must …’. However, if ‘in accordance with’ appears in a clause, use ‘in accordance with’ / ‘in line with’ / in compliance with’ in correspondence (as for ‘in Übereinstimmung mit’ above).