WRITTEN QUESTION No. 3008/97 by Gerhard HAGER to the Commission. Legal status of protocols and declarations
Date: 1997-10-01
Institutions: European Parliament, HAGER
Subjects: EAEC Treaty, ECSC Treaty, EU law, Protocol (EU), drafting of EU law, international law, legal status, revision of the Treaty (EU), secondary legislation

C 134/56

EN

Official Journal of the European Communities

30. 4. 98

(98/C 134/68)

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 (cid:145)declaration adopted by the Conference(cid:146), and on what criteria is this decided?

3. What does the Commission consider to be the legal status of a (cid:145)declaration noted(cid:146) in the Final Act of a
primary-legislation Treaty?

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

To what extent must, or can, protocols and declarations to primary legislation be taken into account by the

5.
Court of Justice in its rulings?

Specifically, what legal weight is carried by the declaration to the Amsterdam Treaty on credit institutions

6.
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 (cid:145)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(cid:146)
(Cases 7 and 9/54 Groupement des Industries Side·rurgiques 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.