WRITTEN QUESTION E-3008/97 by Gerhard Hager (NI) to the Commission (1 October 1997)

Subject: Legal status of protocols and declarations

The law of the European Union is divided into primary legislation, which is adopted as international law between the Member States, in each of which it must be submitted to a ratification process, and secondary legislation, which, owing to the supranational character of the Communities, is enacted by the Institutions and has a direct effect on the national legislation of the Member States.

Developments in the most recent phase of integration, however, have with increasing frequency made it necessary, in revising the founding Treaties, not only simply to amend and extend the Treaties (primary legislation), but also to adopt protocols and declarations containing exceptional provisions. Would the Commission answer the following questions concerning the legal status of these:

1. What is the legal status of protocols, and on the basis of what criteria is this decided?

2. What is the legal status of a 'declaration adopted by the Conference', and on what criteria is this decided?

3. What does the Commission consider to be the legal status of a 'declaration noted' in the Final Act of a primary-legislation Treaty?

4. What is the effect of a unilateral declaration by a Member State?

5. To what extent must, or can, protocols and declarations to primary legislation be taken into account by the Court of Justice in its rulings?

6. Specifically, what legal weight is carried by the declaration to the Amsterdam Treaty on credit institutions submitted by Austria and Luxembourg?

Answer given by Mr Santer on behalf of the Commission (1 December 1997)

Article 239 of the EC Treaty and the equivalent provisions of the ECSC and Euratom Treaties state that the protocols annexed to the Treaties form an integral part thereof. The legal value of the protocols is thus identical to that of the Treaties. As early as 1956, the Court of Justice concluded that 'the provisions contained in all the instruments [treaties, annexes and protocols] are equally binding and there is no question of contrasting them with one another but only of considering them in conjunction with one another so as to apply them appropriately' (Cases 7 and 9/54 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority [1956] ECR 194).

Unlike the protocols, the declarations are not an integral part of the EC Treaty. The Court of Justice has not yet given judgment on the legal value of declarations made when a Treaty is signed. However, it does take account of declarations recorded in the Council minutes when a piece of secondary legislation is adopted, where they demonstrate that the Member States have a shared intention, and as long as their content finds expression in the applicable Community law. In other words, a declaration can neither add to the texts nor contradict them, either in spirit or in letter (see Case C-292/89 Antonissen [1991] ECR I-773, paragraphs 17 and 18, on a declaration recorded in the Council minutes at the time of the adoption of Regulation No 1612/68). However, when a declaration helps to clarify the scope of a text, it is taken into consideration (see Case C-322/88 Grimaldi [1989] I-4407; Case C-310/90 Egle [1992] I-177).

In its declaration on credit institutions in Germany, the Intergovernmental Conference took account of the Commission's opinion, according to which the Community law in force allows general interest services provided by these institutions to be taken into account. It also requested the Commission to examine whether there were similar cases in the other Member States and, if so, to apply the same Community rules to them. Austria and Luxembourg's unilateral declaration, of which the Intergovernmental Conference took note, is a prolongation of this request, which the Commission must carry out.