We couldn’t care less…?
International Agreements concluded by the
Member States in EU Law
Summer School: Foundations of European Law II, University
of Helsinki, 27 August 2009
Judge Allan Rosas
1

AGREEMENTS CONCLUDED BY THE EUROPEAN
COMMUNITY (EC) ALONE

MIXED AGREEMENTS

AGREEMENTS CONCLUDED BY ONE OR
MORE EU MEMBER STATES
2
EXAMPLES OF AGREEMENTS CONCLUDED BY
MEMBER STATES, WITHOUT THE EU (EC) BEING A
CONTRACTING PARTY:

UN CHARTER OF 1945

MOST CONVENTIONS CONCLUDED IN THE
FRAMEWORK OF UN SPECIALIZED AGENCIES (ILO,
IMO, UNESCO ETC.) – ALTHOUGH SITUATION SEEMS
TO BE CHANGING

HUMAN RIGHTS CONVENTIONS (EXCEPTION: UN
CONVENTION ON THE RIGHTS OF PERSONS WITH
DISABILITIES OF 2006)

BILATERAL INVESTMENT AGREEMENTS WITH THIRD
STATES

BILATERAL AGREEMENTS BETWEEN MEMBER
STATES ON DOUBLE TAXATION
3
POSSIBLE REASONS FOR AGREEMENTS NOT TO BE
CONCLUDED
BY THE EU (EC):

LACK OF COMPETENCE

LACK OF POLITICAL WILL OF THE COMMISSION AND/OR
THE EU COUNCIL

MULTILATERAL AGREEMENT NOT OPEN TO EC
ADHERENCE (LACK OF REGIONAL INTEGRATION
ORGANISATION OR ”RIO” CLAUSE)
4
IN PRINCIPLE, AGREEMENTS CONCLUDED BY THE
MEMBER STATES BUT NOT BY THE EC ARE NOT PART
OF THE COMMUNITY LEGAL ORDER BUT ARE, FROM
THE POINT OF VIEW OF COMMUNITY LAW, SEEN AS
PART OF THE NATIONAL LEGAL ORDER OF THE
MEMBER STATE CONCERNED
SEE, E.G., CASE 812/79 BURGOA [1980] ECR 2787, PARA.
9: WHILE IN THE CASE OF AGREEMENTS CONCLUDED
BEFORE ACCESSION TO THE EC, THERE MAY BE AN
OBLIGATION OF THE COMMUNITY INSTITUTIONS NOT TO
IMPEDE THE PERFORMANCE OF THE OBLIGATIONS OF
MEMBER STATES (SEE BELOW), EVEN THESE
AGREEMENTS DO NOT BIND THE COMMUNITY AS
REGARDS THE THIRD STATE IN QUESTION
5
THIS MEANS, INTER ALIA, THAT SUCH AGREEMENTS,
UNLIKE AGREEMENTS BINDING ON THE COMMUNITY,
ARE, BY WAY OF THE PRINCIPLE OF THE PRIMACY OF
COMMUNITY LAW, SUBORDINATE TO EC SECONDARY
LAW AND, A FORTIORI, EC PRIMARY LAW; THIS IS
WITHOUT PREJUDICE TO THE RIGHT OF A MEMBER STATE
TO DEROGATE FROM A SO-CALLED PRIOR AGREEMENT
BY VIRTUE OF ARTICLE 307, PARAGRAPH 1, EC (SEE
BELOW) OR TO THE VARIOUS QUALIFICATIONS AND
RESERVATIONS PRESENTED BELOW
IF THE AGREEMENT CONSTITUTES PART OF THE
NATIONAL LAW OF THE MEMBER STATE AND IS NOT PART
OF COMMUNITY LAW, THE ECJ LACKS JURISDICTION TO
INTERPRET IT. (although the court may take note of the
agreement as a fact, and may also, in certain circumstances,
draw conclusions from it, see below)
6
FOR THE NORMAL SITUATION THAT THE
AGREEMENT CONCLUDED BY A MEMBER
STATE IS PART OF ITS NATIONAL LAW ONLY,
ONE HAS TO DISTINGUISH BETWEEN
AGREEMENTS CONCLUDED BEFORE ("PRIOR
AGREEMENTS") AND AFTER 1 JANUARY 1958,
OR FOR ACCEDING STATES, BEFORE AND
AFTER THE DATE OF ACCESSION
FOR PRIOR AGREEMENTS, ONE ALSO HAS TO
DISTINGUISH
BETWEEN
AGREEMENTS
CONCLUDED BY THE MEMBER STATE WITH
THIRD
STATES
AND
AGREEMENTS
CONCLUDED BETWEEN TWO OR MORE
MEMBER STATES.
7
WITH THIRD
STATES


BETWEEN TWO
OR MORE
MEMBER STATES
PRIOR AGREEMENTS
CONCLUDED BY THE
MEMBER STATE BEFORE
JOINING THE EU
1
2
AGREEMENTS
CONCLUDED DURING EU
MEMBERSHIP
3
4
8
IN THE CASE OF PRIOR AGREEMENTS CONCLUDED WITH
THIRD STATES (CATEGORY 1 ABOVE), ARTICLE 307,
PARAGRAPH 1, EC PROVIDES THAT "THE RIGHTS AND
OBLIGATIONS" ARISING FROM SUCH AGREEMENTS
"SHALL NOT BE AFFECTED BY THE PROVISIONS OF THIS
TREATY"; WITH RESPECT TO SUCH AGREEMENTS, THE
COMMUNITY INSTITUTIONS, AS A GENERAL RULE, HAVE
AN OBLIGATION NOT TO IMPEDE THE PERFORMANCE OF
THE OBLIGATIONS OF MEMBER STATES VIS-À-VIS THIRD
COUNTRIES
ON THE OTHER HAND, IF SUCH PRIOR AGREEMENTS
CONCLUDED
BY
MEMBER
STATES
ARE
NOT
COMPATIBLE WITH COMMUNITY LAW, THE MEMBER
STATE OR STATES CONCERNED SHALL ACCORDING TO
ARTICLE 307, PARAGRAPH 2, EC "TAKE ALL
APPROPRIATE
STEPS
TO
ELIMINATE
THE
INCOMPATIBILITIES ESTABLISHED"; UNDER CERTAIN
CIRCUMSTANCES THIS MAY EVEN IMPLY AN OBLIGATION
TO WITHDRAW FROM THE AGREEMENT IN QUESTION
(CASE C-62/98 COMMISSION V. PORTUGAL [2000] ECR I5171, PARA. 50; CASE C-203/03 COMMISSION V. AUSTRIA
[2005] ECR I-935, PARA. 61)
9
AN OBLIGATION, FOR THE MEMBER STATE,
TO RESORT TO ARTICLE 307, PARAGRAPH
2, AND THUS TAKE «ALL APPROPRIATE
STEPS
TO
ELIMINATE
THE
INCOMPATIBILITIES ESTABLISHED», MAY
ARISE ALSO IN SITUATIONS WHERE THERE
IS A CLEAR RISK OF A CONFLICT BETWEEN
A FUTURE NORM OF COMMUNITY LAW AND
AN AGREEMENT PREVIOUSLY CONCLUDED
BY THE MEMBER STATE: CASE C-205/06
COMMISSION V AUSTRIA AND CASE C249/06
COMMISSION
V
SWEDEN,
JUDGMENTS OF 3 MARCH 2009
10
ARTICLE 307, PARAGRAPH 1, EC MAY ALLOW A MEMBER
STATE TO DEROGATE FROM NOT ONLY SECONDARY BUT
ALSO PRIMARY LAW, INCLUDING PROVISIONS OF THE EC
TREATY (CASE C-124/95 CENTRO-COM [1997] ECR I-81,
PARAS 56-61);
HOWEVER, DEROGATIONS ARE NOT POSSIBLE WITH
RESPECT TO "THE PRINCIPLES THAT FORM PART OF THE
VERY FOUNDATIONS OF THE COMMUNITY LEGAL ORDER,
ONE OF WHICH IS THE PROTECTION OF FUNDAMENTAL
RIGHTS, INCLUDING THE REVIEW BY THE COMMUNITY
JUDICATURE OF THE LAWFULNESS OF COMMUNITY
MEASURES AS REGARDS THEIR CONSISTENCY WITH
THOSE FUNDAMENTAL RIGHTS" (JOINED CASES C-402/05
P AND C-415/05 P, KADI AND AL BARAKAAT
INTERNATIONAL FOUNDATION, PARA. 304); OBLIGATIONS
IMPOSED
BY
AN
INTERNATIONAL
AGREEMENT,
INCLUDING THE UN CHARTER, "CANNOT HAVE THE
EFFECT OF PREJUDICING THE CONSTITUTIONAL
PRINCIPLES OF THE EC TREATY" (IBID., PARA. 285)
11
AMENDMENTS TO PRIOR AGREEMENTS MADE AFTER EU
ACCESSION ARE NOT "SAVED" BY ARTICLE 307,
PARAGRAPH 1, EC; SUCH AMENDMENTS MAY EVEN
PROVIDE PROOF OF A REASSESSMENT OF THE PRIOR
AGREEMENT IN ITS ENTIRETY, IN WHICH CASE MEMBER
STATES MAY BE PREVENTED FROM INVOKING NOT ONLY
THE AMENDED PROVISIONS BUT ALSO THE PROVISIONS
OF THE ORIGINAL AGREEMENT WHICH HAVE BEEN
MAINTAINED AND CONFIRMED IN THE RENEGOTIATION
PROCESS ("OPEN SKIES" JUDGMENTS OF 5 NOVEMBER
2002, E.G. CASE C-468/98 COMMISSION V SWEDEN [2002]
ECR I-9575, PARA. 37)
12
THUS, EVEN IF A MEMBER STATE HAS CONCLUDED AN
INTERNATIONAL AGREEMENT BEFORE BECOMING AN EU
MEMBER, IT CANNOT RELY ON ARTICLE 307, PARAGRAPH
1, EC TO ASSERT A RIGHT TO INVOKE AMENDMENTS TO
THE TREATY ADOPTED AFTER THE MEMBERSHIP
ENTERED INTO FORCE (UNLESS, UNDER THE PRIOR
AGREEMENT, IT IS OBLIGED TO ACCEPT THE
SUBSEQUENT AMENDMENTS) CASE C-45/07 COMMISSION
V GREECE, JUDGMENT OF 12 FEBRUARY 2009
13
ARTICLE 307, PARAGRAPH 1, EC DOES NOT GIVE A
MEMBER STATE THE RIGHT TO DEROGATE FROM A
PRIOR AGREEMENT WHICH ONLY CONCERNS THE
RELATIONS BETWEEN MEMBER STATES UND THUS DOES
NOT CREATE RIGHTS FOR THIRD STATES (CATEGORY 2
ABOVE)
CASE C-235/87 MATTEUCCI [1988] ECR 5589, PARA 21:
ARTICLE 307 IS NOT CONCERNED WITH AGREEMENTS
CONCLUDED SOLELY BETWEEN MEMBER STATES
SEE ALSO CASE C-3/91 EXPORTUR [1992] ECR I-5529,
PARA 8
14
AGREEMENTS CONCLUDED BY MEMBER STATES, WHETHER OR
NOT THEY HAVE BEEN CONCLUDED BEFORE (CATEGORIES 1 AND 2
ABOVE) OR AFTER MEMBERSHIP (CATEGORIES 3 AND 4 ABOVE)
AND WHETHER OR NOT THEY ARE CONCLUDED WITH THIRD
STATES (CATEGORIES 1 AND 3 ABOVE) OR SOLELY BETWEEN
MEMBER STATES (CATEGORIES 2 AND 4 ABOVE), MAY, IN SOME
CASES, BECOME BINDING ON THE EU OR ACQUIRE A SPECIAL
STATUS SO THAT THEY SHOULD BE TAKEN INTO ACCOUNT IN THE
APPLICATION OR INTERPRETATION OF COMMUNITY LAW
1. EU BECOMES BOUND BY AN AGREEMENT BY WAY OF
SUCCESSION
2. THE AGREEMENT SIMPLY CODIFIES GENERAL (CUSTOMARY)
INTERNATIONAL LAW
3. THE EU AUTORISES MEMBER STATES TO CONCLUDE AN
AGREEMENT IN THE INTEREST AND ON BEHALF OF THE
COMMUNITY
4. COMMUNITY PRIMARY OR SECONDARY LAW
REFERENCES TO AN INTERNATIONAL AGREEMENT
CONTAINS
5. CONVENTIONS OF FUNDAMENTAL IMPORTANCE FOR THE
INTERNATIONAL COMMUNITY AS A WHOLE
* UN CHARTER
* HUMAN RIGHTS CONVENTIONS
15
1.
THE EC MAY IN EXCEPTIONAL CIRCUMSTANCES, BY
ASSUMING THE POWERS PREVIOUSLY EXERCISED BY THE
MEMBER STATES, BECOME BOUND BY THE OBLIGATIONS
FLOWING FROM AN AGREEMENT CONCLUDED BY THE
MEMBER STATES (JOINED CASES 21/72 TO 24/72
INTERNATIONAL FRUIT COMPANY [1972] ECR 1219).
THE ECJ HAS RECENTLY HELD (CASES C-308/06
INTERTANKO, PARA. 48, AND C-188/07 COMMUNE DE
MESQUER, JUDGMENT OF 24 JUNE 2008, PARA. 85) THAT
THIS CASE-LAW RELATING TO GATT 1947 CANNOT BE
APPLIED TO THE INTERNATIONAL CONVENTION FOR THE
PREVENTION OF POLLUTION FROM SHIPS ("MARPOL
73/78") OR TO THE INTERNATIONAL CONVENTION ON CIVIL
LIABILITY FOR OIL POLLUTION DAMAGE ("LIABILITY
CONVENTION"), AND THE INTERNATIONAL CONVENTION
ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND
FOR COMPENSATION FOR OIL POLLUTION DAMAGE
("FUND CONVENTION")
16
2.
THE EC IS ALSO BOUND BY GENERAL (CUSTOMARY)
INTERNATIONAL LAW WHICH MAY BE CODIFIED IN AN
AGREEMENT CONCLUDED BY THE MEMBER STATES (SEE, E.G.,
CASE C-286/90 POULSEN [1992] ECR I-6019, PARAS 9-10)
3.
MOREOVER, THE EC MAY AUTHORISE MEMBER STATES TO
CONCLUDE AN AGREEMENT IN THE INTEREST AND ON BEHALF
OF THE COMMUNITY:


SUCH A SITUATION MAY ARISE, INTER ALIA, IF A CONSIDERABLE
PART OF NEGOCIATIONS ON AN AGREEMENT TAKE PLACE
BEFORE POWERS TO CONCLUDE THE AGREEMENT IN QUESTION
HAVE BEEN CONFERRED ON THE EC (CASE 22/70 COMMISSION V
COUNCIL – "AETR" [1971] ECR 263, PARAS 81-91)
IN CASE C-439/01 CIPRA AND KVASNICKA [2003] ECR I-745, PARAS
23-24, THE ECJ HELD THAT THE AETR AGREEMENT (WORK OF
CREWS OF VEHICLES ENGAGED IN INTERNATIONAL ROAD
TRANSPORT), WHICH HAD BEEN CONCLUDED BY THE MEMBER
STATES ”IN THE INTEREST AND ON BEHALF OF THE COMMUNITY”
AND TO WHICH REFERENCES WERE MADE IN COMMUNITY
REGULATIONS, HAD BECOME ”PART OF COMMUNITY LAW” AND
THAT THE COURT THUS HAD JURISDICTION TO INTERPRET IT.
17

SUCH A SITUATION MAY ALSO ARISE IN A SITUATION WHERE
THE EC IS PREVENTED FROM BECOMING A CONTRACTING
PARTY, NOTABLY IF ADHERENCE TO A MULTILATERAL
CONVENTION IS RESERVED FOR STATES MEMBERS OF AN
INTERNATIONAL ORGANIZATION (SEE, E.G., CASE C-188/07
COMMUNE DE MESQUER, PARA. 20, WHERE REFERENCE IS
MADE TO COUNCIL DECISION 2004/246/EC AUTHORISING THE
MEMBER STATES TO SIGN, RATIFY OR ACCEDE TO, IN THE
INTEREST OF THE EUROPEAN COMMUNITY, THE PROTOCOL OF
2003 TO THE FUND CONVENTION (OJ 2004 L 78, P. 22); IN THAT
CASE, THE COURT ON THE OTHER HAND OBSERVED THAT THE
COMMUNITY DID NOT BECOME BOUND BY THE FUND
CONVENTION BY VIRTUE OF THE SAID COUNCIL DECISION
ALREADY BECAUSE THAT DECISION DID NOT APPLY,
RATIONAE TEMPORIS, TO THE FACTS AT ISSUE IN THE MAIN
PROCEEDINGS
OTHER EXAMPLE OF SUCH AUTHORISATION: 2003/882 EC,
COUNCIL DECISION OF 27 NOVEMBER 2003 AUTHORISING THE
MEMBER STATES WHICH ARE CONTRACTING PARTIES TO THE
PARIS CONVENTION OF 29 JULY 1960 ON THIRD PARTY
LIABILITY IN THE FIELD OF NUCLEAR ENERGY TO SIGN, IN THE
INTEREST OF THE EUROPEAN COMMUNITY, THE PROTOCOL
AMENDING THAT CONVENTION (OJ L 338, 23.12.2003, P. 30).
18
4.
COMMUNITY PRIMARY AND SECONDARY LAW MAY CONTAIN
REFERENCES TO AGREEMENTS CONCLUDED BY THE MEMBER
STATES; IN PRIMARY LAW, SUCH REFERENCES ARE TO BE FOUND
IN ARTICLE 6, PARAGRAPH 2, EU (EUROPEAN CONVENTION ON
HUMAN RIGHTS), ARTICLE 63, PARAGRAPH 1, EC (GENEVA
CONVENTION OF 1951 AND PROTOCOL OF 1967 RELATING TO THE
STATUS OF REFUGEES) AND ARTICLE 136 EC (EUROPEAN SOCIAL
CHARTER OF 1961).
IN ADDITION, ARTICLE 293 EC EXHORT MEMBER STATES TO
CONCLUDE WITH EACH OTHER (CATEGORY 4 ABOVE)
AGREEMENTS ON, INTER ALIA, THE ABOLITION OF DOUBLE
TAXATION.
SUCH REFERENCES MAY EXIST ALSO IN EU SECONDARY LAW. AS
TO REFERENCES TO INTERNATIONAL AGREEMENTS WHICH BIND
THIRD STATES AS WELL (CATEGORY 3 ABOVE),
THE ECJ HELD IN CASES C-510/99 TRIDON [2001] ECR I-7777, PARA
25, AND CASE C-154/02 NILSSON [2003] ECR I-12733, PARA 39, THAT
COMMUNITY REGULATIONS HAD TO BE INTERPRETED TAKING
INTO ACCOUNT THE OBJECTIVES, PRINCIPLES AND PROVISIONS
OF
THE
CONVENTION
ON INTERNATIONAL
TRADE
IN
ENDANGERED SPECIES OF WILD FLORA AND FAUNA OF 1973
(CITES), AS THE REGULATIONS WERE TO APPLY ”IN COMPLIANCE
WITH” THOSE ELEMENTS, AND DESPITE THE FACT THAT THE
COMMUNITY WAS NOT A PARTY TO CITES. ON THE CITES
CONVENTION SEE ALSO CASE C-370/07 COMMISSION V COUNCIL,
PENDING, OPINION OF ADVOCATE GENERAL KOKOTT OF 23 APRIL
2009.
19
IN CASE C-308/06 INTERTANKO, PARA. 50, THE ECJ HELD
THAT THE MERE FACT THAT A DIRECTIVE (DIRECTIVE
2005/35 ON SHIP-SOURCE POLLUTION AND ON THE
INTRODUCTION OF PENALTIES FOR INFRINGEMENTS) HAS
THE OBJECTIVE OF INCORPORATING CERTAIN RULES SET
OUT IN AN AGREEMENT (MARPOL CONVENTION 73/78)
BINDING ON THE MEMBER STATES IS NOT SUFFICIENT TO
ENABLE THE COURT TO REVIEW THE LEGALITY OF THE
DIRECTIVE IN THE LIGHT OF THE AGREEMENT; ON THE
OTHER HAND, THE COURT IN THAT CASE, AS IN TRIDON
AND NILSSON MENTIONED ABOVE,
HELD THAT IT IS
INCUMBENT ON IT TO INTERPRET THE PROVISIONS OF THE
DIRECTIVE "TAKING ACCOUNT OF MARPOL" (PARA. 52);
THIS "TAKING ACCOUNT" IS ARGUABLY LESS THAN THE
OBLIGATION TO INTERPRET COMMUNITY SECONDARY
LEGISLATION IN CONFORMITY WITH INTERNATIONAL
AGREEMENTS AND CUSTOMARY LAW BINDING ON THE
COMMUNITY (ON THE LATTER OBLIGATION SEE, E.G., CASE
C-61/94 COMMISSION V GERMANY [1996] ECR I-3989, PARA.
52)
20
IT WILL BE NOTED THAT IN INTERTANKO, THE
FOLLOWING CIRCUMSTANCES MARKED THE RELATION
BETWEEN THE COMMUNITY LEGISLATION AND THE
INTERNATIONAL AGREEMENT BINDING ON THE MEMBER
STATES:
* THE COMMUNITY DIRECTIVE 2005/35 CONTAINED
SEVERAL REFERENCES TO MARPOL 73/78 AND, IN THE
WORDS OF THE ECJ, HAD THE OBJECTIVE OF
INCORPORATING CERTAIN RULES SET OUT IN THAT
CONVENTION INTO COMMUNITY LAW
* ALL THE EU MEMBER STATES WERE CONTRACTING
PARTIES TO MARPOL 73/78
21
IN CASE C-188/07 COMMUNE DE MESQUER, PARAS 8589, THE COURT DID NOT FORMULATE A SIMILAR
REQUIREMENT TO "TAKE ACCOUNT" OF THE LIABILITY
CONVENTION OR THE FUND CONVENTION IN THE
INTERPRETATION OF A COMMUNITY DIRECTIVE,
DESPITE THE FACT THAT THESE CONVENTIONS WERE
RELEVANT RATIONAE MATERIAE; IN THIS CASE, THE
RELEVANT COMMUNITY DIRECTIVE (DIRECTIVE 74/442
ON WASTE) DID NOT CONTAIN ANY REFERENCE TO THE
LIABILITY CONVENTION OR THE FUND CONVENTION,
NOR WERE ALL EU MEMBER STATES CONTRACTING
PARTIES TO THEM
22
5.
WHILE THE EU IS NOT A MEMBER OF THE UNITED
NATIONS, THE ECJ HAS REFERRED TO THE "OBSERVANCE
OF THE UNDERTAKINGS GIVEN IN THE CONTEXT OF THE
UNITED NATIONS" WHICH IS "REQUIRED ... IN THE SPHERE
OF THE MAINTENANCE OF INTERNATIONAL PEACE AND
SECURITY WHEN THE COMMUNITY GIVES EFFECT, BY
MEANS OF THE ADOPTION OF COMMUNITY MEASURES
TAKEN ON THE BASIS OF ARTICLE 60 AND 301 EC, TO
RESOLUTIONS ADOPTED BY THE SECURITY COUNCIL
UNDER CHAPTER VII OF THE CHARTER OF THE UNITED
NATIONS"; IN DRAWING UP SUCH MEASURES, THE
COMMUNITY "IS TO TAKE DUE ACCOUNT OF THE TERMS
AND OBJECTIVES OF THE RESOLUTION CONCERNED AND
OF THE RELEVANT OBLIGATIONS UNDER THE CHARTER OF
THE
UNITED
NATIONS
RELATING
TO
SUCH
IMPLEMENTATION" (JOINED CASES C-402/05 P AND C-415/05
P KADI AND AL BARAKAAT INTERNATIONAL FOUNDATION,
JUDGMENT OF 3 SEPTEMBER 2008, PARAS 293 AND 296)
23
APART FROM MEMBER STATES' AGREEMENTS WHICH IN
SOME WAY OR ANOTHER HAVE BECOME BINDING ALSO ON
THE COMMUNITY, AND THE SPECIAL STATUS OF THE UN
CHARTER, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
OCCUPY A PARTICULAR PLACE IN THE COMMUNITY LEGAL
ORDER; WHILE THE COMMUNITY HAS NOT BEEN ALLOWED
TO BECOME A CONTRACTING PARTY TO SUCH
CONVENTIONS (EXCEPTION: THE 2006 UN CONVENTION ON
THE RIGHTS OF PERSONS WITH DISABILITIES), THE ECJ,
SINCE NOLD (CASE 4/73 [1974] ECR 491) HAS HELD THAT IN
SAFEGUARDING FUNDAMENTAL RIGHTS AS GENERAL
PRINCIPLES OF COMMUNITY LAW, THE COURT "DRAWS
INSPIRATION FORM THE CONSTITUTIONAL TRADITIONS
COMMON TO THE MEMBER STATES AND FROM THE
GUIDELINES SUPPLIED BY INTERNATIONAL INSTRUMENTS
FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH THE
MEMBER STATES HAVE COLLABORATED OR TO WHICH THEY
ARE SIGNATORIES. IN THAT REGARD, THE [EUROPEAN
CONVENTION
ON
HUMAN
RIGHTS]
HAS
SPECIAL
SIGNIFICANCE" (QUOTATION FROM JOINED CASES C-402/05
P AND C-415/05 P KADI AND AL BARAKAAT FOUNDATION,
PARA 283)
24
APART FROM THE EUROPEAN CONVENTION, THE ECJ HAS
REFERRED, INTER ALIA TO THE FOLLOWING INTERNATIONAL
HUMAN RIGHTS INSTRUMENTS AS GUIDELINES FOR THE
DETERMINATION OF THE FUNDAMENTAL RIGHTS WHICH ARE
CONSIDERED AS GENERAL PRINCIPLES OF COMMUNITY LAW:





THE EUROPEAN SOCIAL CHARTER ADOPTED BY THE COUNCIL OF
EUROPE MENTIONED IN ARTICLE 136 EC AND IN THE PREAMBULE
OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU (see e.g.,
Case C-540/03 Parliament v Council [2006] ECR I-5769, paras 38, 39
and 107)
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
(Case Parliament v Council, para 37)
THE CONVENTION ON THE RIGHTS OF THE CHILD OF 1989 (see e.g.,
Case C-244/06 Dynamic Medien [2008] ECR I-505, para 39)
ILO CONVENTIONS (see, e.g., Case C-438/05 International Transport
Workers’ Federation (« Viking Line ») [2007] ECR I-10779, para 43)
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (see e.g. Case
C-76/93 Scaramuzza / Commission [1994] ECR I-5173, paras 14,18 and
29 to 31; Case T-306/01 Yusuf [2005] ECR II-3533 paras 292 to 293 and
T-315/04 Kadi [2005] ECR II-3649, paras 241 and 242)
25
CONSEQUENCES IF THE LISBON TREATY ENTERS
INTO FORCE?
•
SOMEWHAT EXTENDED EXCLUSIVE COMMUNITY COMPETENCE,
ESPECIALLY IN THE TRADE AREA (ARTICLE 133 EC)
•
SOMEWHAT EXTENDED POTENTIAL COMMUNITY COMPETENCE
(E.G. CURRENT « THIRD PILLAR » OR POLICE AND CRIMINAL
MATTERS)
•
ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS
AND PROBABLY OTHER HUMAN RIGHTS CONVENTIONS
= REDUCED SCOPE FOR AGREEMENTS CONCLUDED BY
MEMBER STATES
26