CYIL 2011

… BUT HAVEN’T WE MET BEFORE? VI. Legal effects of certain agreements concluded prior to the Treaty of Lisbon With regard to the legal effects of the international agreements concluded under Art. 24 and 38 TEU (in the pre-Lisbon version), it follows from our concept of continuity between the pre-Lisbon and post-Lisbon Union that the legal effects of those agreements are fully safeguarded, since the Union which concluded them as one of the contracting parties continues to exist. Therefore we do not find any explicit and direct stipulation to this effect in the Treaty of Lisbon, because it would be simply redundant and stating the obvious. However, the legal effects of those agreements are confirmed indirectly. In this respect, it should be stressed that those agreements were concluded by Council decisions, i.e. by acts of one of the Union’s institutions. 32 Such acts of the Council must be held for valid and applicable, since they are no doubt covered by Art. 9 of the Protocol (No 36) on Transitional Provisions, attached to the Treaty of Lisbon, which stipulates: “ The legal effects of the acts of the institutions , bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union. ” (emphasis added) It clearly follows that the “post-Lisbon” acquis communautaire encompasses all acts of the Union’s institutions, including the acts on conclusion of international agreements, which have full legal effects until the point in time when such acts have been repealed, annulled or amended. The issue of legal effects of certain Union’s agreements is certainly not only a theoretical problem, but naturally has practical consequences. Most recently it was discussed in the context of drafting the Treaty on Accession of Croatia to the European Union, regarding the provision of the draft Treaty on Accession stipulating that Croatia is to be bound by “ agreements concluded or provisionally applied by the Union (…) ”. The problem arose whether a specific reference to the agreements based on Art. 24 and 38 TEU (pre-Lisbon) is required, whereas the term “Union” in the draft Treaty on Accession might possibly refer to the post-Lisbon Union only, thus excluding Art. 24 and 38 TEU agreements. The issue was clarified, with assistance of the Council’s Legal Service, precisely by reliance on the concept of continuity of the Union, and no specific reference to Art. 24 and 38 TEU was deemed to be necessary.

32 It is useful to recall in this context that according to the settled case-law of the European Court of Justice, the international agreements concluded by the European Community (or by analogy the Union) became integral part of the Community legal order because they were concluded by acts of Community’s institutions , thus having a legal status similar to other acts of Community law. See judgements of the European Court of Justice in cases 181/73 Haegeman [1974] ECR 449, 270/80 Polydor [1982] ECR 329 and 104/81 Kupferberg [1982] ECR 3641.

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