Judge Allan Rosas

1. We couldn’t care less…? International Agreements concluded by the Member States in EU LawSummer School: Foundations of European Law II, University of Helsinki, 27 August 2009 Judge Allan Rosas

2. AGREEMENTS CONCLUDED BY THE EUROPEAN COMMUNITY (EC) ALONE • MIXED AGREEMENTS • AGREEMENTS CONCLUDED BY ONE OR MORE EU MEMBER STATES

3. 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

4. POSSIBLE REASONS FOR AGREEMENTS NOT TO BE CONCLUDEDBY 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)

5. 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

6. 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, AFORTIORI, 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)

7. 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.

8. WITH THIRD BETWEEN TWO STATES OR MORE MEMBER STATES • PRIOR AGREEMENTS CONCLUDED BY THE MEMBER STATE BEFORE JOINING THE EU • AGREEMENTS CONCLUDED DURING EU MEMBERSHIP

9. 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 I-5171, PARA. 50; CASE C-203/03 COMMISSION V. AUSTRIA [2005] ECR I-935, PARA. 61)

10. 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 C-249/06 COMMISSION V SWEDEN, JUDGMENTS OF 3 MARCH 2009

11. 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)

12. 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)

13. 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

14. 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

15. 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 CONTAINS REFERENCES TO AN INTERNATIONAL AGREEMENT 5. CONVENTIONS OF FUNDAMENTAL IMPORTANCE FOR THE INTERNATIONAL COMMUNITY AS A WHOLE * UN CHARTER * HUMAN RIGHTS CONVENTIONS

16. 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")

17. 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.

18. 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).

19. 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.

20. 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)

21. 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

22. IN CASE C-188/07 COMMUNE DE MESQUER, PARAS 85-89, 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

23. 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)

24. 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)

25. 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)

26. 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