11

We couldn’t care less…? We couldn’t care less…? International Agreements concluded by the International Agreements concluded by the

Member States in EU LawMember States in EU Law

Summer School: Foundations of European Law II, University Summer School: Foundations of European Law II, University of Helsinki, 27 August 2009of Helsinki, 27 August 2009

JudgeJudge Allan Rosas Allan Rosas

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AGREEMENTS CONCLUDED BY THE EUROPEAN AGREEMENTS CONCLUDED BY THE EUROPEAN COMMUNITY (EC) ALONECOMMUNITY (EC) ALONE

MIXED AGREEMENTSMIXED AGREEMENTS

AGREEMENTS CONCLUDED BY ONE OR AGREEMENTS CONCLUDED BY ONE OR MORE EU MEMBER STATESMORE EU MEMBER STATES

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EXAMPLES OF AGREEMENTS CONCLUDED BY EXAMPLES OF AGREEMENTS CONCLUDED BY MEMBER STATES, WITHOUT THE EU (EC) BEING A MEMBER STATES, WITHOUT THE EU (EC) BEING A

CONTRACTING PARTYCONTRACTING PARTY:: UN CHARTER OF 1945UN CHARTER OF 1945

MOST CONVENTIONS CONCLUDED IN THE MOST CONVENTIONS CONCLUDED IN THE FRAMEWORK OF UN SPECIALIZED AGENCIES (ILO, FRAMEWORK OF UN SPECIALIZED AGENCIES (ILO, IMO, UNESCO ETC.) – ALTHOUGH SITUATION SEEMS IMO, UNESCO ETC.) – ALTHOUGH SITUATION SEEMS TO BE CHANGINGTO BE CHANGING

HUMAN RIGHTS CONVENTIONS (EXCEPTION: UN HUMAN RIGHTS CONVENTIONS (EXCEPTION: UN CONVENTION ON THE RIGHTS OF PERSONS WITH CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES OF 2006)DISABILITIES OF 2006)

BILATERAL INVESTMENT AGREEMENTS WITH THIRD BILATERAL INVESTMENT AGREEMENTS WITH THIRD STATESSTATES

BILATERAL AGREEMENTS BETWEEN MEMBER BILATERAL AGREEMENTS BETWEEN MEMBER STATES ON DOUBLE TAXATIONSTATES ON DOUBLE TAXATION

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POSSIBLE REASONS FOR AGREEMENTS NOT TO BE POSSIBLE REASONS FOR AGREEMENTS NOT TO BE CONCLUDEDCONCLUDED

BY THE EU (EC):BY THE EU (EC):

LACK OF COMPETENCELACK OF COMPETENCE

LACK OF POLITICAL WILL OF THE COMMISSION AND/OR LACK OF POLITICAL WILL OF THE COMMISSION AND/OR THE EU COUNCILTHE EU COUNCIL

MULTILATERAL AGREEMENT NOT OPEN TO EC MULTILATERAL AGREEMENT NOT OPEN TO EC ADHERENCE (LACK OF REGIONAL INTEGRATION ADHERENCE (LACK OF REGIONAL INTEGRATION ORGANISATION OR ”RIO” CLAUSE)ORGANISATION OR ”RIO” CLAUSE)

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IN PRINCIPLE, AGREEMENTS CONCLUDED BY THE IN PRINCIPLE, AGREEMENTS CONCLUDED BY THE MEMBER STATES BUT NOT BY THE EC ARE NOT PART MEMBER STATES BUT NOT BY THE EC ARE NOT PART OF THE COMMUNITY LEGAL ORDER BUT ARE, FROM OF THE COMMUNITY LEGAL ORDER BUT ARE, FROM THE POINT OF VIEW OF COMMUNITY LAW, SEEN AS THE POINT OF VIEW OF COMMUNITY LAW, SEEN AS PART OF THE NATIONAL LEGAL ORDER OF THE PART OF THE NATIONAL LEGAL ORDER OF THE MEMBER STATE CONCERNEDMEMBER STATE CONCERNED

SEE, E.G., CASE 812/79 SEE, E.G., CASE 812/79 BURGOABURGOA [1980] ECR 2787, PARA. [1980] ECR 2787, PARA. 9: WHILE IN THE CASE OF AGREEMENTS CONCLUDED 9: WHILE IN THE CASE OF AGREEMENTS CONCLUDED BEFOREBEFORE ACCESSION TO THE EC, THERE MAY BE AN ACCESSION TO THE EC, THERE MAY BE AN OBLIGATION OF THE COMMUNITY INSTITUTIONS NOT TO OBLIGATION OF THE COMMUNITY INSTITUTIONS NOT TO IMPEDE THE PERFORMANCE OF THE OBLIGATIONS OF IMPEDE THE PERFORMANCE OF THE OBLIGATIONS OF MEMBER STATES (SEE BELOW), MEMBER STATES (SEE BELOW), EVEN THESE EVEN THESE AGREEMENTS DO NOT BIND THE COMMUNITY AS AGREEMENTS DO NOT BIND THE COMMUNITY AS REGARDS THE THIRD STATE IN QUESTIONREGARDS THE THIRD STATE IN QUESTION

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THIS MEANS, INTER ALIA, THAT SUCH AGREEMENTS, THIS MEANS, INTER ALIA, THAT SUCH AGREEMENTS, UNLIKE AGREEMENTS BINDING ON THE COMMUNITY, UNLIKE AGREEMENTS BINDING ON THE COMMUNITY, ARE, BY WAY OF THE PRINCIPLE OF THE PRIMACY OF ARE, BY WAY OF THE PRINCIPLE OF THE PRIMACY OF COMMUNITY LAW, SUBORDINATE TO EC SECONDARY COMMUNITY LAW, SUBORDINATE TO EC SECONDARY LAW AND, LAW AND, AA FORTIORIFORTIORI, EC PRIMARY LAW; THIS IS , EC PRIMARY LAW; THIS IS WITHOUT PREJUDICE TO THE RIGHT OF A MEMBER WITHOUT PREJUDICE TO THE RIGHT OF A MEMBER STATE TO DEROGATE FROM A SO-CALLED PRIOR STATE TO DEROGATE FROM A SO-CALLED PRIOR AGREEMENT BY VIRTUE OF ARTICLE 307, PARAGRAPH 1, AGREEMENT BY VIRTUE OF ARTICLE 307, PARAGRAPH 1, EC (SEE BELOW) OR TO THE VARIOUS QUALIFICATIONS EC (SEE BELOW) OR TO THE VARIOUS QUALIFICATIONS AND RESERVATIONS PRESENTED BELOWAND RESERVATIONS PRESENTED BELOW

IF THE AGREEMENT CONSTITUTES PART OF THE IF THE AGREEMENT CONSTITUTES PART OF THE NATIONAL LAW OF THE MEMBER STATE AND IS NOT NATIONAL LAW OF THE MEMBER STATE AND IS NOT PART OF COMMUNITY LAW, THE ECJ LACKS PART OF COMMUNITY LAW, THE ECJ LACKS JURISDICTION TO INTERPRET IT. (JURISDICTION TO INTERPRET IT. (although the court may although the court may take note of the agreement as a fact, and may also, in take note of the agreement as a fact, and may also, in certain circumstances, draw conclusions from it, see below)certain circumstances, draw conclusions from it, see below)

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FOR THE NORMAL SITUATION THAT THE FOR THE NORMAL SITUATION THAT THE AGREEMENT CONCLUDED BY A MEMBER AGREEMENT CONCLUDED BY A MEMBER STATE IS PART OF ITS NATIONAL LAW ONLY, STATE IS PART OF ITS NATIONAL LAW ONLY, ONE HAS TO DISTINGUISH BETWEEN ONE HAS TO DISTINGUISH BETWEEN AGREEMENTS CONCLUDED AGREEMENTS CONCLUDED BEFOREBEFORE ("PRIOR ("PRIOR AGREEMENTS") AND AGREEMENTS") AND AFTERAFTER 1 JANUARY 1958, 1 JANUARY 1958, OR FOR ACCEDING STATES, BEFORE AND OR FOR ACCEDING STATES, BEFORE AND AFTER THE DATE OF ACCESSIONAFTER THE DATE OF ACCESSION

FOR PRIOR AGREEMENTS, ONE ALSO HAS TO FOR PRIOR AGREEMENTS, ONE ALSO HAS TO DISTINGUISH BETWEEN AGREEMENTS DISTINGUISH BETWEEN AGREEMENTS CONCLUDED BY THE MEMBER STATE WITH CONCLUDED BY THE MEMBER STATE WITH THIRD STATES AND AGREEMENTS THIRD STATES AND AGREEMENTS CONCLUDED BETWEEN TWO OR MORE CONCLUDED BETWEEN TWO OR MORE MEMBER STATES. MEMBER STATES.

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WITH THIRD BETWEEN TWO WITH THIRD BETWEEN TWO STATESSTATES OR MORE OR MORE

MEMBER STATES MEMBER STATES

PRIOR AGREEMENTS PRIOR AGREEMENTS CONCLUDED BY THE CONCLUDED BY THE MEMBER STATE BEFORE MEMBER STATE BEFORE JOINING THE EUJOINING THE EU

AGREEMENTS AGREEMENTS CONCLUDED DURING EU CONCLUDED DURING EU MEMBERSHIPMEMBERSHIP

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IN THE CASE OF IN THE CASE OF PRIOR AGREEMENTS CONCLUDED PRIOR AGREEMENTS CONCLUDED WITH THIRD STATES (CATEGORY 1 ABOVE)WITH THIRD STATES (CATEGORY 1 ABOVE), ARTICLE , ARTICLE 307, PARAGRAPH 1, EC PROVIDES THAT "THE RIGHTS 307, PARAGRAPH 1, EC PROVIDES THAT "THE RIGHTS AND OBLIGATIONS" ARISING FROM SUCH AGREEMENTS AND OBLIGATIONS" ARISING FROM SUCH AGREEMENTS "SHALL NOT BE AFFECTED BY THE PROVISIONS OF THIS "SHALL NOT BE AFFECTED BY THE PROVISIONS OF THIS TREATY"; WITH RESPECT TO SUCH AGREEMENTS, THE TREATY"; WITH RESPECT TO SUCH AGREEMENTS, THE COMMUNITY INSTITUTIONS, AS A GENERAL RULE, HAVE COMMUNITY INSTITUTIONS, AS A GENERAL RULE, HAVE AN OBLIGATION NOT TO IMPEDE THE PERFORMANCE OF AN OBLIGATION NOT TO IMPEDE THE PERFORMANCE OF THE OBLIGATIONS OF MEMBER STATES VIS-À-VIS THIRD THE OBLIGATIONS OF MEMBER STATES VIS-À-VIS THIRD COUNTRIESCOUNTRIES

ON THE OTHER HAND, IF SUCH PRIOR AGREEMENTS ON THE OTHER HAND, IF SUCH PRIOR AGREEMENTS CONCLUDED BY CONCLUDED BY MEMBER STATES ARE NOT COMPATIBLE WITH MEMBER STATES ARE NOT COMPATIBLE WITH COMMUNITY LAW, THE MEMBER STATE OR STATES COMMUNITY LAW, THE MEMBER STATE OR STATES CONCERNED SHALL ACCORDING TO ARTICLE 307, CONCERNED SHALL ACCORDING TO ARTICLE 307, PARAGRAPH 2, EC "TAKE ALL APPROPRIATE STEPS TO PARAGRAPH 2, EC "TAKE ALL APPROPRIATE STEPS TO ELIMINATE THE INCOMPATIBILITIES ESTABLISHED"; ELIMINATE THE INCOMPATIBILITIES ESTABLISHED"; UNDER CERTAIN CIRCUMSTANCES THIS MAY EVEN UNDER CERTAIN CIRCUMSTANCES THIS MAY EVEN IMPLY AN OBLIGATION TO WITHDRAW FROM THE IMPLY AN OBLIGATION TO WITHDRAW FROM THE AGREEMENT IN QUESTION (CASE C-62/98 AGREEMENT IN QUESTION (CASE C-62/98 COMMISSION COMMISSION V. PORTUGALV. PORTUGAL [2000] ECR I-5171, PARA. 50; CASE C- [2000] ECR I-5171, PARA. 50; CASE C-203/03 203/03 COMMISSION V. AUSTRIACOMMISSION V. AUSTRIA [2005] ECR I-935, PARA. [2005] ECR I-935, PARA. 61)61)

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AN OBLIGATION, FOR THE MEMBER STATE, AN OBLIGATION, FOR THE MEMBER STATE, TO RESORT TO ARTICLE 307, PARAGRAPH TO RESORT TO ARTICLE 307, PARAGRAPH 2, AND THUS TAKE «ALL APPROPRIATE 2, AND THUS TAKE «ALL APPROPRIATE STEPS TO ELIMINATE THE STEPS TO ELIMINATE THE INCOMPATIBILITIES ESTABLISHED», MAY INCOMPATIBILITIES ESTABLISHED», MAY ARISE ALSO IN SITUATIONS WHERE THERE ARISE ALSO IN SITUATIONS WHERE THERE IS A CLEAR IS A CLEAR RISKRISK OF A CONFLICT BETWEEN OF A CONFLICT BETWEEN A FUTURE NORM OF COMMUNITY LAW AND A FUTURE NORM OF COMMUNITY LAW AND AN AGREEMENT PREVIOUSLY CONCLUDED AN AGREEMENT PREVIOUSLY CONCLUDED BY THE MEMBER STATE: CASE C-205/06 BY THE MEMBER STATE: CASE C-205/06 COMMISSION V AUSTRIACOMMISSION V AUSTRIA AND CASE C- AND CASE C-249/06 249/06 COMMISSION V SWEDENCOMMISSION V SWEDEN, , JUDGMENTS OF 3 MARCH 2009 JUDGMENTS OF 3 MARCH 2009

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ARTICLE 307, PARAGRAPH 1, EC MAY ALLOW A MEMBER ARTICLE 307, PARAGRAPH 1, EC MAY ALLOW A MEMBER STATE TO DEROGATE FROM NOT ONLY SECONDARY BUT STATE TO DEROGATE FROM NOT ONLY SECONDARY BUT ALSO PRIMARY LAW, INCLUDING PROVISIONS OF THE EC ALSO PRIMARY LAW, INCLUDING PROVISIONS OF THE EC TREATY (CASE C-124/95 TREATY (CASE C-124/95 CENTRO-COMCENTRO-COM [1997] ECR I-81, [1997] ECR I-81, PARAS 56-61); PARAS 56-61);

HOWEVER, DEROGATIONS ARE NOT POSSIBLE WITH HOWEVER, DEROGATIONS ARE NOT POSSIBLE WITH RESPECT TO "THE PRINCIPLES THAT FORM PART OF THE RESPECT TO "THE PRINCIPLES THAT FORM PART OF THE VERY FOUNDATIONS OF THE COMMUNITY LEGAL ORDER, VERY FOUNDATIONS OF THE COMMUNITY LEGAL ORDER, ONE OF WHICH IS THE PROTECTION OF FUNDAMENTAL ONE OF WHICH IS THE PROTECTION OF FUNDAMENTAL RIGHTS, INCLUDING THE REVIEW BY THE COMMUNITY RIGHTS, INCLUDING THE REVIEW BY THE COMMUNITY JUDICATURE OF THE LAWFULNESS OF COMMUNITY JUDICATURE OF THE LAWFULNESS OF COMMUNITY MEASURES AS REGARDS THEIR CONSISTENCY WITH MEASURES AS REGARDS THEIR CONSISTENCY WITH THOSE FUNDAMENTAL RIGHTS" (JOINED CASES C-402/05 THOSE FUNDAMENTAL RIGHTS" (JOINED CASES C-402/05 P AND C-415/05 P, P AND C-415/05 P, KADI AND AL BARAKAAT KADI AND AL BARAKAAT INTERNATIONAL FOUNDATIONINTERNATIONAL FOUNDATION, PARA. 304); OBLIGATIONS , PARA. 304); OBLIGATIONS IMPOSED BY AN INTERNATIONAL AGREEMENT, IMPOSED BY AN INTERNATIONAL AGREEMENT, INCLUDING THE UN CHARTER, "CANNOT HAVE THE INCLUDING THE UN CHARTER, "CANNOT HAVE THE EFFECT OF PREJUDICING THE CONSTITUTIONAL EFFECT OF PREJUDICING THE CONSTITUTIONAL PRINCIPLES OF THE EC TREATY" (IBID., PARA. 285)PRINCIPLES OF THE EC TREATY" (IBID., PARA. 285)

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AMENDMENTSAMENDMENTS TO PRIOR AGREEMENTS MADE TO PRIOR AGREEMENTS MADE AFTERAFTER EU EU ACCESSION ARE ACCESSION ARE NOTNOT "SAVED" BY ARTICLE 307, "SAVED" BY ARTICLE 307, PARAGRAPH 1, EC; SUCH AMENDMENTS MAY EVEN PARAGRAPH 1, EC; SUCH AMENDMENTS MAY EVEN PROVIDE PROOF OF A REASSESSMENT OF THE PRIOR PROVIDE PROOF OF A REASSESSMENT OF THE PRIOR AGREEMENT IN ITS ENTIRETY, IN WHICH CASE MEMBER AGREEMENT IN ITS ENTIRETY, IN WHICH CASE MEMBER STATES MAY BE PREVENTED FROM INVOKING NOT ONLY STATES MAY BE PREVENTED FROM INVOKING NOT ONLY THE AMENDED PROVISIONS BUT ALSO THE PROVISIONS THE AMENDED PROVISIONS BUT ALSO THE PROVISIONS OF THE ORIGINAL AGREEMENT WHICH HAVE BEEN OF THE ORIGINAL AGREEMENT WHICH HAVE BEEN MAINTAINED AND CONFIRMED IN THE RENEGOTIATION MAINTAINED AND CONFIRMED IN THE RENEGOTIATION PROCESS ("OPEN SKIES" JUDGMENTS OF 5 NOVEMBER PROCESS ("OPEN SKIES" JUDGMENTS OF 5 NOVEMBER 2002, E.G. CASE C-468/98 2002, E.G. CASE C-468/98 COMMISSION V SWEDENCOMMISSION V SWEDEN [2002] [2002] ECR I-9575, PARA. 37)ECR I-9575, PARA. 37)

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THUS, EVEN IF A MEMBER STATE HAS CONCLUDED AN THUS, EVEN IF A MEMBER STATE HAS CONCLUDED AN INTERNATIONAL AGREEMENT BEFORE BECOMING AN EU INTERNATIONAL AGREEMENT BEFORE BECOMING AN EU MEMBER, IT CANNOT RELY ON ARTICLE 307, PARAGRAPH MEMBER, IT CANNOT RELY ON ARTICLE 307, PARAGRAPH 1, EC TO ASSERT A RIGHT TO INVOKE AMENDMENTS TO 1, EC TO ASSERT A RIGHT TO INVOKE AMENDMENTS TO THE TREATY ADOPTED AFTER THE MEMBERSHIP THE TREATY ADOPTED AFTER THE MEMBERSHIP ENTERED INTO FORCE (UNLESS, UNDER THE PRIOR ENTERED INTO FORCE (UNLESS, UNDER THE PRIOR AGREEMENT, IT IS OBLIGED TO ACCEPT THE AGREEMENT, IT IS OBLIGED TO ACCEPT THE SUBSEQUENT AMENDMENTS) CASE C-45/07 SUBSEQUENT AMENDMENTS) CASE C-45/07 COMMISSION COMMISSION V GREECEV GREECE, JUDGMENT OF 12 FEBRUARY 2009, JUDGMENT OF 12 FEBRUARY 2009

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ARTICLE 307, PARAGRAPH 1, EC DOES ARTICLE 307, PARAGRAPH 1, EC DOES NOTNOT GIVE A GIVE A MEMBER STATE THE RIGHT TO DEROGATE FROM A MEMBER STATE THE RIGHT TO DEROGATE FROM A PRIOR AGREEMENT WHICH ONLY CONCERNS THE PRIOR AGREEMENT WHICH ONLY CONCERNS THE RELATIONS BETWEEN MEMBER STATES UND THUS RELATIONS BETWEEN MEMBER STATES UND THUS DOES NOT CREATE RIGHTS FOR THIRD STATES DOES NOT CREATE RIGHTS FOR THIRD STATES ((CATEGORY 2 ABOVECATEGORY 2 ABOVE))CASE C-235/87 CASE C-235/87 MATTEUCCIMATTEUCCI [1988] ECR 5589, PARA 21: [1988] ECR 5589, PARA 21: ARTICLE 307 IS NOT CONCERNED WITH AGREEMENTS ARTICLE 307 IS NOT CONCERNED WITH AGREEMENTS CONCLUDED SOLELY BETWEEN MEMBER STATESCONCLUDED SOLELY BETWEEN MEMBER STATESSEE ALSO CASE C-3/91 SEE ALSO CASE C-3/91 EXPORTUR EXPORTUR [1992] ECR I-5529, [1992] ECR I-5529, PARA 8PARA 8

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AGREEMENTS CONCLUDED BY MEMBER STATES, WHETHER OR AGREEMENTS CONCLUDED BY MEMBER STATES, WHETHER OR NOT THEY HAVE BEEN CONCLUDED BEFORE (CATEGORIES 1 AND 2 NOT THEY HAVE BEEN CONCLUDED BEFORE (CATEGORIES 1 AND 2 ABOVE) OR AFTER MEMBERSHIP (CATEGORIES 3 AND 4 ABOVE) ABOVE) OR AFTER MEMBERSHIP (CATEGORIES 3 AND 4 ABOVE) AND WHETHER OR NOT THEY ARE CONCLUDED WITH THIRD AND WHETHER OR NOT THEY ARE CONCLUDED WITH THIRD STATES (CATEGORIES 1 AND 3 ABOVE) OR SOLELY BETWEEN STATES (CATEGORIES 1 AND 3 ABOVE) OR SOLELY BETWEEN MEMBER STATES (CATEGORIES 2 AND 4 ABOVE), MAY, IN SOME MEMBER STATES (CATEGORIES 2 AND 4 ABOVE), MAY, IN SOME CASES, BECOME BINDING ON THE EU OR ACQUIRE A SPECIAL CASES, BECOME BINDING ON THE EU OR ACQUIRE A SPECIAL STATUS SO THAT THEY SHOULD BE TAKEN INTO ACCOUNT IN THE STATUS SO THAT THEY SHOULD BE TAKEN INTO ACCOUNT IN THE APPLICATION OR INTERPRETATION OF COMMUNITY LAWAPPLICATION OR INTERPRETATION OF COMMUNITY LAW

1. EU BECOMES BOUND BY AN AGREEMENT BY WAY OF 1. EU BECOMES BOUND BY AN AGREEMENT BY WAY OF SUCCESSIONSUCCESSION

2. THE AGREEMENT SIMPLY CODIFIES GENERAL (CUSTOMARY) 2. THE AGREEMENT SIMPLY CODIFIES GENERAL (CUSTOMARY) INTERNATIONAL LAWINTERNATIONAL LAW

3. THE EU AUTORISES MEMBER STATES TO CONCLUDE AN 3. THE EU AUTORISES MEMBER STATES TO CONCLUDE AN AGREEMENT IN THE INTEREST AND ON BEHALF OF THE AGREEMENT IN THE INTEREST AND ON BEHALF OF THE COMMUNITYCOMMUNITY

4. COMMUNITY PRIMARY OR SECONDARY LAW CONTAINS 4. COMMUNITY PRIMARY OR SECONDARY LAW CONTAINS REFERENCES TO AN INTERNATIONAL AGREEMENTREFERENCES TO AN INTERNATIONAL AGREEMENT

5. CONVENTIONS OF FUNDAMENTAL IMPORTANCE FOR THE 5. CONVENTIONS OF FUNDAMENTAL IMPORTANCE FOR THE INTERNATIONAL COMMUNITY AS A WHOLEINTERNATIONAL COMMUNITY AS A WHOLE

* UN CHARTER* UN CHARTER* HUMAN RIGHTS CONVENTIONS* HUMAN RIGHTS CONVENTIONS

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1.1. THE EC MAY IN EXCEPTIONAL CIRCUMSTANCES, THE EC MAY IN EXCEPTIONAL CIRCUMSTANCES, BY ASSUMING THE POWERS PREVIOUSLY EXERCISED BY BY ASSUMING THE POWERS PREVIOUSLY EXERCISED BY THE MEMBER STATES, BECOME BOUND BY THE THE MEMBER STATES, BECOME BOUND BY THE OBLIGATIONS FLOWING FROM AN AGREEMENT OBLIGATIONS FLOWING FROM AN AGREEMENT CONCLUDED BY THE MEMBER STATES (JOINED CASES CONCLUDED BY THE MEMBER STATES (JOINED CASES 21/72 TO 24/72 21/72 TO 24/72 INTERNATIONAL FRUIT COMPANYINTERNATIONAL FRUIT COMPANY [1972] [1972] ECR 1219). ECR 1219).

THE ECJ HAS RECENTLY HELD (CASES C-308/06 THE ECJ HAS RECENTLY HELD (CASES C-308/06 INTERTANKOINTERTANKO, PARA. 48, AND C-188/07 , PARA. 48, AND C-188/07 COMMUNE DE COMMUNE DE MESQUERMESQUER, JUDGMENT OF 24 JUNE 2008, PARA. 85) THAT , JUDGMENT OF 24 JUNE 2008, PARA. 85) THAT THIS CASE-LAW RELATING TO GATT 1947 THIS CASE-LAW RELATING TO GATT 1947 CANNOTCANNOT BE BE APPLIED TO THE INTERNATIONAL CONVENTION FOR THE APPLIED TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS ("MARPOL PREVENTION OF POLLUTION FROM SHIPS ("MARPOL 73/78") OR TO THE INTERNATIONAL CONVENTION ON CIVIL 73/78") OR TO THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE ("LIABILITY LIABILITY FOR OIL POLLUTION DAMAGE ("LIABILITY CONVENTION"), AND THE INTERNATIONAL CONVENTION CONVENTION"), AND THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE FOR COMPENSATION FOR OIL POLLUTION DAMAGE ("FUND CONVENTION")("FUND CONVENTION")

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2. 2. THE EC IS ALSO BOUND BY THE EC IS ALSO BOUND BY GENERAL (CUSTOMARY) GENERAL (CUSTOMARY) INTERNATIONAL LAW INTERNATIONAL LAW WHICH MAY BE CODIFIED IN AN WHICH MAY BE CODIFIED IN AN AGREEMENT CONCLUDED BY THE MEMBER STATES (SEE, E.G., AGREEMENT CONCLUDED BY THE MEMBER STATES (SEE, E.G., CASE C-286/90 CASE C-286/90 POULSENPOULSEN [1992] ECR I-6019, PARAS 9-10) [1992] ECR I-6019, PARAS 9-10)

3. 3. MOREOVER, THE EC MAY MOREOVER, THE EC MAY AUTHORISEAUTHORISE MEMBER STATES MEMBER STATES TO CONCLUDE AN AGREEMENT IN THE INTEREST AND ON TO CONCLUDE AN AGREEMENT IN THE INTEREST AND ON BEHALF OF THE COMMUNITY:BEHALF OF THE COMMUNITY:

SUCH A SITUATION MAY ARISE, INTER ALIA, IF A CONSIDERABLE SUCH A SITUATION MAY ARISE, INTER ALIA, IF A CONSIDERABLE PART OF NEGOCIATIONS ON AN AGREEMENT TAKE PLACE PART OF NEGOCIATIONS ON AN AGREEMENT TAKE PLACE BEFORE POWERS TO CONCLUDE THE AGREEMENT IN QUESTION BEFORE POWERS TO CONCLUDE THE AGREEMENT IN QUESTION HAVE BEEN CONFERRED ON THE EC (CASE 22/70 HAVE BEEN CONFERRED ON THE EC (CASE 22/70 COMMISSION V COMMISSION V COUNCIL – "AETR"COUNCIL – "AETR" [1971] ECR 263, PARAS 81-91) [1971] ECR 263, PARAS 81-91)

IN CASE C-439/01 IN CASE C-439/01 CIPRA AND KVASNICKACIPRA AND KVASNICKA [2003] ECR I-745, PARAS [2003] ECR I-745, PARAS 23-24, THE ECJ HELD THAT THE AETR AGREEMENT (WORK OF 23-24, THE ECJ HELD THAT THE AETR AGREEMENT (WORK OF CREWS OF VEHICLES ENGAGED IN INTERNATIONAL ROAD CREWS OF VEHICLES ENGAGED IN INTERNATIONAL ROAD TRANSPORT), WHICH HAD BEEN CONCLUDED BY THE MEMBER TRANSPORT), WHICH HAD BEEN CONCLUDED BY THE MEMBER STATES ”IN THE INTEREST AND ON BEHALF OF THE COMMUNITY” STATES ”IN THE INTEREST AND ON BEHALF OF THE COMMUNITY” AND TO WHICH REFERENCES WERE MADE IN COMMUNITY AND TO WHICH REFERENCES WERE MADE IN COMMUNITY REGULATIONS, HAD BECOME ”PART OF COMMUNITY LAW” AND REGULATIONS, HAD BECOME ”PART OF COMMUNITY LAW” AND THAT THE COURT THUS HAD JURISDICTION TO INTERPRET IT. THAT THE COURT THUS HAD JURISDICTION TO INTERPRET IT.

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SUCH A SITUATION MAY ALSO ARISE IN A SITUATION WHERE SUCH A SITUATION MAY ALSO ARISE IN A SITUATION WHERE THE EC IS PREVENTED FROM BECOMING A CONTRACTING THE EC IS PREVENTED FROM BECOMING A CONTRACTING PARTY, NOTABLY IF ADHERENCE TO A MULTILATERAL PARTY, NOTABLY IF ADHERENCE TO A MULTILATERAL CONVENTION IS RESERVED FOR STATES MEMBERS OF AN CONVENTION IS RESERVED FOR STATES MEMBERS OF AN INTERNATIONAL ORGANIZATION (SEE, E.G., CASE C-188/07 INTERNATIONAL ORGANIZATION (SEE, E.G., CASE C-188/07 COMMUNE DE MESQUERCOMMUNE DE MESQUER, PARA. 20, WHERE REFERENCE IS , PARA. 20, WHERE REFERENCE IS MADE TO COUNCIL DECISION 2004/246/EC AUTHORISING THE MADE TO COUNCIL DECISION 2004/246/EC AUTHORISING THE MEMBER STATES TO SIGN, RATIFY OR ACCEDE TO, IN THE MEMBER STATES TO SIGN, RATIFY OR ACCEDE TO, IN THE INTEREST OF THE EUROPEAN COMMUNITY, THE PROTOCOL INTEREST OF THE EUROPEAN COMMUNITY, THE PROTOCOL OF 2003 TO THE FUND CONVENTION (OJ 2004 L 78, P. 22); IN OF 2003 TO THE FUND CONVENTION (OJ 2004 L 78, P. 22); IN THAT CASE, THE COURT ON THE OTHER HAND OBSERVED THAT CASE, THE COURT ON THE OTHER HAND OBSERVED THAT THE COMMUNITY DID NOT BECOME BOUND BY THE FUND THAT THE COMMUNITY DID NOT BECOME BOUND BY THE FUND CONVENTION BY VIRTUE OF THE SAID COUNCIL DECISION CONVENTION BY VIRTUE OF THE SAID COUNCIL DECISION ALREADY BECAUSE THAT DECISION DID NOT APPLY, ALREADY BECAUSE THAT DECISION DID NOT APPLY, RATIONAE TEMPORISRATIONAE TEMPORIS, TO THE FACTS AT ISSUE IN THE MAIN , TO THE FACTS AT ISSUE IN THE MAIN PROCEEDINGSPROCEEDINGS

OTHER EXAMPLE OF SUCH AUTHORISATION: 2003/882 EC, OTHER EXAMPLE OF SUCH AUTHORISATION: 2003/882 EC, COUNCIL DECISION OF 27 NOVEMBER 2003 AUTHORISING THE COUNCIL DECISION OF 27 NOVEMBER 2003 AUTHORISING THE MEMBER STATES WHICH ARE CONTRACTING PARTIES TO THE MEMBER STATES WHICH ARE CONTRACTING PARTIES TO THE PARIS CONVENTION OF 29 JULY 1960 ON THIRD PARTY PARIS CONVENTION OF 29 JULY 1960 ON THIRD PARTY LIABILITY IN THE FIELD OF NUCLEAR ENERGY TO SIGN, IN THE LIABILITY IN THE FIELD OF NUCLEAR ENERGY TO SIGN, IN THE INTEREST OF THE EUROPEAN COMMUNITY, THE PROTOCOL INTEREST OF THE EUROPEAN COMMUNITY, THE PROTOCOL AMENDING THAT CONVENTION (OJ L 338, 23.12.2003, P. 30).AMENDING THAT CONVENTION (OJ L 338, 23.12.2003, P. 30).

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4.4. COMMUNITY PRIMARY AND SECONDARY LAW MAY COMMUNITY PRIMARY AND SECONDARY LAW MAY CONTAIN REFERENCES TO AGREEMENTS CONCLUDED BY THE CONTAIN REFERENCES TO AGREEMENTS CONCLUDED BY THE MEMBER STATES; IN PRIMARY LAW, SUCH REFERENCES ARE TO MEMBER STATES; IN PRIMARY LAW, SUCH REFERENCES ARE TO BE FOUND IN ARTICLE 6, PARAGRAPH 2, EU (EUROPEAN BE FOUND IN ARTICLE 6, PARAGRAPH 2, EU (EUROPEAN CONVENTION ON HUMAN RIGHTS), ARTICLE 63, PARAGRAPH 1, EC CONVENTION ON HUMAN RIGHTS), ARTICLE 63, PARAGRAPH 1, EC (GENEVA CONVENTION OF 1951 AND PROTOCOL OF 1967 (GENEVA CONVENTION OF 1951 AND PROTOCOL OF 1967 RELATING TO THE STATUS OF REFUGEES) AND ARTICLE 136 EC RELATING TO THE STATUS OF REFUGEES) AND ARTICLE 136 EC (EUROPEAN SOCIAL CHARTER OF 1961). (EUROPEAN SOCIAL CHARTER OF 1961). IN ADDITION, ARTICLE 293 EC EXHORT MEMBER STATES TO IN ADDITION, ARTICLE 293 EC EXHORT MEMBER STATES TO CONCLUDE WITH EACH OTHER (CONCLUDE WITH EACH OTHER (CATEGORY 4 ABOVECATEGORY 4 ABOVE) ) AGREEMENTS ON, INTER ALIA, THE ABOLITION OF DOUBLE AGREEMENTS ON, INTER ALIA, THE ABOLITION OF DOUBLE TAXATION. TAXATION.

SUCH REFERENCES MAY EXIST ALSO IN EU SECONDARY LAW. AS SUCH REFERENCES MAY EXIST ALSO IN EU SECONDARY LAW. AS TO REFERENCES TO INTERNATIONAL AGREEMENTS WHICH BIND TO REFERENCES TO INTERNATIONAL AGREEMENTS WHICH BIND THIRD STATES AS WELL (THIRD STATES AS WELL (CATEGORY 3 ABOVECATEGORY 3 ABOVE),),THE ECJ HELD IN CASES C-510/99 THE ECJ HELD IN CASES C-510/99 TRIDONTRIDON [2001] ECR I-7777, PARA [2001] ECR I-7777, PARA 25, AND CASE C-154/02 25, AND CASE C-154/02 NILSSONNILSSON [2003] ECR I-12733, PARA 39, [2003] ECR I-12733, PARA 39, THAT COMMUNITY REGULATIONS HAD TO BE INTERPRETED THAT COMMUNITY REGULATIONS HAD TO BE INTERPRETED TAKING INTO ACCOUNT THE OBJECTIVES, PRINCIPLES AND TAKING INTO ACCOUNT THE OBJECTIVES, PRINCIPLES AND PROVISIONS OF THE CONVENTION ON INTERNATIONAL TRADE IN PROVISIONS OF THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FLORA AND FAUNA OF 1973 ENDANGERED SPECIES OF WILD FLORA AND FAUNA OF 1973 (CITES), AS THE REGULATIONS WERE TO APPLY ”IN COMPLIANCE (CITES), AS THE REGULATIONS WERE TO APPLY ”IN COMPLIANCE WITH” THOSE ELEMENTS, AND DESPITE THE FACT THAT THE WITH” THOSE ELEMENTS, AND DESPITE THE FACT THAT THE COMMUNITY WAS NOT A PARTY TO CITES. ON THE CITES COMMUNITY WAS NOT A PARTY TO CITES. ON THE CITES CONVENTION SEE ALSO CASE C-370/07 CONVENTION SEE ALSO CASE C-370/07 COMMISSION V COUNCILCOMMISSION V COUNCIL, , PENDING, OPINION OF ADVOCATE GENERAL KOKOTT OF 23 APRIL PENDING, OPINION OF ADVOCATE GENERAL KOKOTT OF 23 APRIL 2009.2009.

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IN CASE C-308/06 IN CASE C-308/06 INTERTANKOINTERTANKO, PARA. 50, THE ECJ HELD , PARA. 50, THE ECJ HELD THAT THE MERE FACT THAT A DIRECTIVE (DIRECTIVE THAT THE MERE FACT THAT A DIRECTIVE (DIRECTIVE 2005/35 ON SHIP-SOURCE POLLUTION AND ON THE 2005/35 ON SHIP-SOURCE POLLUTION AND ON THE INTRODUCTION OF PENALTIES FOR INFRINGEMENTS) HAS INTRODUCTION OF PENALTIES FOR INFRINGEMENTS) HAS THE OBJECTIVE OF INCORPORATING CERTAIN RULES SET THE OBJECTIVE OF INCORPORATING CERTAIN RULES SET OUT IN AN AGREEMENT (MARPOL CONVENTION 73/78) OUT IN AN AGREEMENT (MARPOL CONVENTION 73/78) BINDING ON THE MEMBER STATES IS NOT SUFFICIENT TO BINDING ON THE MEMBER STATES IS NOT SUFFICIENT TO ENABLE THE COURT TO REVIEW THE LEGALITY OF THE ENABLE THE COURT TO REVIEW THE LEGALITY OF THE DIRECTIVE IN THE LIGHT OF THE AGREEMENT; ON THE DIRECTIVE IN THE LIGHT OF THE AGREEMENT; ON THE OTHER HAND, THE COURT IN THAT CASE, AS IN OTHER HAND, THE COURT IN THAT CASE, AS IN TRIDONTRIDON AND AND NILSSON NILSSON MENTIONED ABOVE, HELD THAT IT IS MENTIONED ABOVE, HELD THAT IT IS INCUMBENT ON IT TO INTERPRET THE PROVISIONS OF THE INCUMBENT ON IT TO INTERPRET THE PROVISIONS OF THE DIRECTIVE "TAKING ACCOUNT OF MARPOL" (PARA. 52); DIRECTIVE "TAKING ACCOUNT OF MARPOL" (PARA. 52); THIS "TAKING ACCOUNT" IS ARGUABLY LESS THAN THE THIS "TAKING ACCOUNT" IS ARGUABLY LESS THAN THE OBLIGATION TO INTERPRET COMMUNITY SECONDARY OBLIGATION TO INTERPRET COMMUNITY SECONDARY LEGISLATION IN CONFORMITY WITH INTERNATIONAL LEGISLATION IN CONFORMITY WITH INTERNATIONAL AGREEMENTS AND CUSTOMARY LAW BINDING ON THE AGREEMENTS AND CUSTOMARY LAW BINDING ON THE COMMUNITY (ON THE LATTER OBLIGATION SEE, E.G., CASE COMMUNITY (ON THE LATTER OBLIGATION SEE, E.G., CASE C-61/94 C-61/94 COMMISSION V GERMANYCOMMISSION V GERMANY [1996] ECR I-3989, PARA. [1996] ECR I-3989, PARA. 52)52)

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IT WILL BE NOTED THAT IN IT WILL BE NOTED THAT IN INTERTANKOINTERTANKO, THE , THE FOLLOWING CIRCUMSTANCES MARKED THE RELATION FOLLOWING CIRCUMSTANCES MARKED THE RELATION BETWEEN THE COMMUNITY LEGISLATION AND THE BETWEEN THE COMMUNITY LEGISLATION AND THE INTERNATIONAL AGREEMENT BINDING ON THE MEMBER INTERNATIONAL AGREEMENT BINDING ON THE MEMBER STATES:STATES:

* THE COMMUNITY DIRECTIVE 2005/35 CONTAINED * THE COMMUNITY DIRECTIVE 2005/35 CONTAINED SEVERAL REFERENCES TO MARPOL 73/78 AND, IN THE SEVERAL REFERENCES TO MARPOL 73/78 AND, IN THE WORDS OF THE ECJ, HAD THE OBJECTIVE OF WORDS OF THE ECJ, HAD THE OBJECTIVE OF INCORPORATING CERTAIN RULES SET OUT IN THAT INCORPORATING CERTAIN RULES SET OUT IN THAT CONVENTION INTO COMMUNITY LAWCONVENTION INTO COMMUNITY LAW

* ALL THE EU MEMBER STATES WERE CONTRACTING * ALL THE EU MEMBER STATES WERE CONTRACTING PARTIES TO MARPOL 73/78PARTIES TO MARPOL 73/78

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IN CASE C-188/07 IN CASE C-188/07 COMMUNE DE MESQUERCOMMUNE DE MESQUER, PARAS 85-, PARAS 85-89, THE COURT DID 89, THE COURT DID NOTNOT FORMULATE A SIMILAR FORMULATE A SIMILAR REQUIREMENT TO "TAKE ACCOUNT" OF THE LIABILITY REQUIREMENT TO "TAKE ACCOUNT" OF THE LIABILITY CONVENTION OR THE FUND CONVENTION IN THE CONVENTION OR THE FUND CONVENTION IN THE INTERPRETATION OF A COMMUNITY DIRECTIVE, INTERPRETATION OF A COMMUNITY DIRECTIVE, DESPITE THE FACT THAT THESE CONVENTIONS WERE DESPITE THE FACT THAT THESE CONVENTIONS WERE RELEVANT RELEVANT RATIONAE MATERIAERATIONAE MATERIAE; IN THIS CASE, THE ; IN THIS CASE, THE RELEVANT COMMUNITY DIRECTIVE (DIRECTIVE 74/442 RELEVANT COMMUNITY DIRECTIVE (DIRECTIVE 74/442 ON WASTE) DID NOT CONTAIN ANY REFERENCE TO ON WASTE) DID NOT CONTAIN ANY REFERENCE TO THE LIABILITY CONVENTION OR THE FUND THE LIABILITY CONVENTION OR THE FUND CONVENTION, NOR WERE ALL EU MEMBER STATES CONVENTION, NOR WERE ALL EU MEMBER STATES CONTRACTING PARTIES TO THEMCONTRACTING PARTIES TO THEM

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5.5. WHILE THE EU IS NOT A MEMBER OF THE WHILE THE EU IS NOT A MEMBER OF THE UNITED UNITED NATIONSNATIONS, THE ECJ HAS REFERRED TO THE "OBSERVANCE , THE ECJ HAS REFERRED TO THE "OBSERVANCE OF THE UNDERTAKINGS GIVEN IN THE CONTEXT OF THE OF THE UNDERTAKINGS GIVEN IN THE CONTEXT OF THE UNITED NATIONS" WHICH IS "REQUIRED ... IN THE SPHERE UNITED NATIONS" WHICH IS "REQUIRED ... IN THE SPHERE OF THE MAINTENANCE OF INTERNATIONAL PEACE AND OF THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY WHEN THE COMMUNITY GIVES EFFECT, BY SECURITY WHEN THE COMMUNITY GIVES EFFECT, BY MEANS OF THE ADOPTION OF COMMUNITY MEASURES MEANS OF THE ADOPTION OF COMMUNITY MEASURES TAKEN ON THE BASIS OF ARTICLE 60 AND 301 EC, TO TAKEN ON THE BASIS OF ARTICLE 60 AND 301 EC, TO RESOLUTIONS ADOPTED BY THE SECURITY COUNCIL RESOLUTIONS ADOPTED BY THE SECURITY COUNCIL UNDER CHAPTER VII OF THE CHARTER OF THE UNITED UNDER CHAPTER VII OF THE CHARTER OF THE UNITED NATIONS"; IN DRAWING UP SUCH MEASURES, THE NATIONS"; IN DRAWING UP SUCH MEASURES, THE COMMUNITY "IS TO TAKE DUE ACCOUNT OF THE TERMS COMMUNITY "IS TO TAKE DUE ACCOUNT OF THE TERMS AND OBJECTIVES OF THE RESOLUTION CONCERNED AND AND OBJECTIVES OF THE RESOLUTION CONCERNED AND OF THE RELEVANT OBLIGATIONS UNDER THE CHARTER OF OF THE RELEVANT OBLIGATIONS UNDER THE CHARTER OF THE UNITED NATIONS RELATING TO SUCH THE UNITED NATIONS RELATING TO SUCH IMPLEMENTATION" (JOINED CASES C-402/05 P AND C-415/05 IMPLEMENTATION" (JOINED CASES C-402/05 P AND C-415/05 P P KADI AND AL BARAKAAT INTERNATIONAL FOUNDATIONKADI AND AL BARAKAAT INTERNATIONAL FOUNDATION, , JUDGMENT OF 3 SEPTEMBER 2008, PARAS 293 AND 296)JUDGMENT OF 3 SEPTEMBER 2008, PARAS 293 AND 296)

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APART FROM MEMBER STATES' AGREEMENTS WHICH IN APART FROM MEMBER STATES' AGREEMENTS WHICH IN SOME WAY OR ANOTHER HAVE BECOME BINDING ALSO ON SOME WAY OR ANOTHER HAVE BECOME BINDING ALSO ON THE COMMUNITY, AND THE SPECIAL STATUS OF THE UN THE COMMUNITY, AND THE SPECIAL STATUS OF THE UN CHARTER, CHARTER, INTERNATIONAL HUMAN RIGHTS INSTRUMENTSINTERNATIONAL HUMAN RIGHTS INSTRUMENTS OCCUPY A PARTICULAR PLACE IN THE COMMUNITY LEGAL OCCUPY A PARTICULAR PLACE IN THE COMMUNITY LEGAL ORDER; WHILE THE COMMUNITY HAS NOT BEEN ALLOWED ORDER; WHILE THE COMMUNITY HAS NOT BEEN ALLOWED TO BECOME A CONTRACTING PARTY TO SUCH TO BECOME A CONTRACTING PARTY TO SUCH CONVENTIONS (EXCEPTION: THE 2006 UN CONVENTION ON CONVENTIONS (EXCEPTION: THE 2006 UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES), THE ECJ, THE RIGHTS OF PERSONS WITH DISABILITIES), THE ECJ, SINCE SINCE NOLDNOLD (CASE 4/73 [1974] ECR 491) HAS HELD THAT IN (CASE 4/73 [1974] ECR 491) HAS HELD THAT IN SAFEGUARDING FUNDAMENTAL RIGHTS AS GENERAL SAFEGUARDING FUNDAMENTAL RIGHTS AS GENERAL PRINCIPLES OF COMMUNITY LAW, THE COURT "DRAWS PRINCIPLES OF COMMUNITY LAW, THE COURT "DRAWS INSPIRATION FORM THE CONSTITUTIONAL TRADITIONS INSPIRATION FORM THE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES AND FROM THE COMMON TO THE MEMBER STATES AND FROM THE GUIDELINES SUPPLIED BY INTERNATIONAL INSTRUMENTS GUIDELINES SUPPLIED BY INTERNATIONAL INSTRUMENTS FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH THE FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH THE MEMBER STATES HAVE COLLABORATED OR TO WHICH MEMBER STATES HAVE COLLABORATED OR TO WHICH THEY ARE SIGNATORIES. IN THAT REGARD, THE [EUROPEAN THEY ARE SIGNATORIES. IN THAT REGARD, THE [EUROPEAN CONVENTION ON HUMAN RIGHTS] HAS SPECIAL CONVENTION ON HUMAN RIGHTS] HAS SPECIAL SIGNIFICANCE" (QUOTATION FROM JOINED CASES C-402/05 SIGNIFICANCE" (QUOTATION FROM JOINED CASES C-402/05 P AND C-415/05 P P AND C-415/05 P KADI AND AL BARAKAAT FOUNDATIONKADI AND AL BARAKAAT FOUNDATION, , PARA 283)PARA 283)

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APART FROM THE EUROPEAN CONVENTION, THE ECJ HAS APART FROM THE EUROPEAN CONVENTION, THE ECJ HAS REFERRED, INTER ALIA TO THE FOLLOWING INTERNATIONAL REFERRED, INTER ALIA TO THE FOLLOWING INTERNATIONAL HUMAN RIGHTS INSTRUMENTS AS GUIDELINES FOR THE HUMAN RIGHTS INSTRUMENTS AS GUIDELINES FOR THE DETERMINATION OF THE FUNDAMENTAL RIGHTS WHICH ARE DETERMINATION OF THE FUNDAMENTAL RIGHTS WHICH ARE CONSIDERED AS GENERAL PRINCIPLES OF COMMUNITY LAW: CONSIDERED AS GENERAL PRINCIPLES OF COMMUNITY LAW:

THE EUROPEAN SOCIAL CHARTER ADOPTED BY THE COUNCIL OF THE EUROPEAN SOCIAL CHARTER ADOPTED BY THE COUNCIL OF EUROPE MENTIONED IN ARTICLE 136 EC AND IN THE PREAMBULE EUROPE MENTIONED IN ARTICLE 136 EC AND IN THE PREAMBULE OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU (see e.g., OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU (see e.g., Case C-540/03 Case C-540/03 Parliament v CouncilParliament v Council [2006] ECR I-5769, paras 38, 39 [2006] ECR I-5769, paras 38, 39 and 107) and 107)

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (Case (Case Parliament v CouncilParliament v Council, para 37), para 37)

THE CONVENTION ON THE RIGHTS OF THE CHILD OF 1989 (see e.g., THE CONVENTION ON THE RIGHTS OF THE CHILD OF 1989 (see e.g., Case C-244/06 Case C-244/06 Dynamic MedienDynamic Medien [2008] ECR I-505, para 39) [2008] ECR I-505, para 39)

ILO CONVENTIONS (see, e.g., Case C-438/05 ILO CONVENTIONS (see, e.g., Case C-438/05 International Transport International Transport Workers’ Federation (« Viking Line »)Workers’ Federation (« Viking Line ») [2007] ECR I-10779, para 43) [2007] ECR I-10779, para 43)

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (see e.g. Case THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (see e.g. Case C-76/93 C-76/93 Scaramuzza / CommissionScaramuzza / Commission [1994] ECR I-5173, paras 14,18 and [1994] ECR I-5173, paras 14,18 and 29 to 31; Case T-306/01 29 to 31; Case T-306/01 YusufYusuf [2005] ECR II-3533 paras 292 to 293 and [2005] ECR II-3533 paras 292 to 293 and T-315/04 T-315/04 KadiKadi [2005] ECR II-3649, paras 241 and 242) [2005] ECR II-3649, paras 241 and 242)

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CONSEQUENCES IF THE LISBON TREATY ENTERS CONSEQUENCES IF THE LISBON TREATY ENTERS INTO FORCE?INTO FORCE?

• SOMEWHAT EXTENDED EXCLUSIVE COMMUNITY COMPETENCE, SOMEWHAT EXTENDED EXCLUSIVE COMMUNITY COMPETENCE, ESPECIALLY IN THE TRADE AREA (ARTICLE 133 EC)ESPECIALLY IN THE TRADE AREA (ARTICLE 133 EC)

• SOMEWHAT EXTENDED POTENTIAL COMMUNITY COMPETENCE SOMEWHAT EXTENDED POTENTIAL COMMUNITY COMPETENCE (E.G. CURRENT « THIRD PILLAR » OR POLICE AND CRIMINAL (E.G. CURRENT « THIRD PILLAR » OR POLICE AND CRIMINAL MATTERS)MATTERS)

• ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND PROBABLY OTHER HUMAN RIGHTS CONVENTIONS AND PROBABLY OTHER HUMAN RIGHTS CONVENTIONS

= REDUCED SCOPE FOR AGREEMENTS CONCLUDED BY = REDUCED SCOPE FOR AGREEMENTS CONCLUDED BY MEMBER STATESMEMBER STATES