Eule
S a a r b r ü c k e r   B i b l i o t h e k

(http://www.jura.uni-sb.de/projekte/Bibliothek)




GEORG RESS

THE LEGAL NATURE OF JOINT DECLARATIONS
IN GENERAL AND OF JOINT DECLARATIONS
ANNEXED TO THE EUROPEAN COMMUNITY
TREATIES IN PARTICULAR

MOUNT ATHOS
AND THE EUROPEAN COMMUNITY
THESSALONIKI

1993




To Section:    >I<   >II<   >III<   >IV<   >V<   >VI<   >VII<   >VIII<

I.

Since 1984, the problems raised by the declarations made in connection with the Treaties of the European Communities and especially the treaties of accession, have received growing attention. This phenomenon may be illustrated by the Final Act of the Single European Act, to which many such declarations were added. These declarations contained clauses whose judicial effect could render doubtful the completion of the Internal Market due at the end of 1992. One of these declarations contains a clause concerning the immediate respectively direct application of Art. 8a of the Single European Act and its judicial importance on 31 December, 1992[1]. Twenty—one declarations were added to the Single European Act of which 11 where accepted by the Conference and finally added to the Final Act on 9 September 1985. 9 others of these listed and added declarations were merely taken to the records by the Conference. 8 of these 11 declarations were adopted by the Conference itself, i.e. they are joint declarations of the representatives of the Member States of this Conference. One of these declarations was passed by the Commission[2], another by the High Contracting Parties[3], and a third one was denominated as a general declaration without specifying the author[4]. In the literature, all 11 declarations have been considered not only as adopted by the Conference, but as passed by it[5]. It is true that the Member States united in the Conference may be perceived as the authors of 10 of the declarations, with the exception of the declaration which stems from the Commission[6]. Since this last declaration had equally been adopted by the Conference, it has become an essential part of the will of the 12 States as well[7].

What then is the status of the 9 other declarations? They differ from the 11 declarations in that all of these 11 have a specific author. The declarations can either be attributed to the governments of all Member States, or they are declarations of one specific government or of the Presiding Committee and the Commission. Such individual declarations were made by Greece, Ireland, Portugal, Denmark, the latter having made two such declarations. The joint declarations, the declarations of the Conference as such and the declarations of all governments are multilateral declarations, whereas the declarations of the Presiding Committee of the Conference, of the Commission and of the individual governments are unilateral declarations. They may either possess reserve character or they are a unilateral instrument for interpretation in regard to the Treaty[8].

The declaration concerning the European Political Cooperation (declaration of the High Contracting Parties concerning Title III of the Single European Act) is a rather political one whose judicial content is not evident at first glance. The judicial value of these "identical ideals and identical objectives" of the European nations which are members of the Council of Europe nontheless refers to the basis of the European Community itself and to a future enlargement of the Council of Europe as well as of the European Community by the socialist countries of Europe which are going through a process of profound change of their political systems and which are — hopefully — on the way to becoming democratic countries of Europe in the sense of the Statute of the Council of Europe. Even though this declaration does not yield any rights to these third countries, it is nontheless clear that none of the 12 Member States of the European Community may object to a future enlargement of the European Political Cooperation[9] by these countries. In contrast to this rather political nature stands the declaration of the Danish Government concerning the European Political Cooperation which constitutes a reservation in favour of a "participation of Denmark" in the Nordic Cooperation in the area of foreign policy. Even though the European Political Cooperation does not prohibit participation, it could be referred to if a conflict between the two institutions of foreign policy were indeed to be resolved in favour of the Nordic Cooperation. Denmark which has the right to participate in both institutions, is therefore obliged to harmonize its decisions in the field of foreign policy with this double membership. It is not the objective of the declaration to strictly bind Denmark to all decisions of the European Political Cooperation, but rather to leave her the choice to join into the results of the Nordic Cooperation. Denmark therefore possesses a special status within the European Political Cooperation in regard to the other Member States. However, Denmark is also under the obligation to respect the results of the European Political Cooperation within the framework of the Nordic Cooperation, and to try to harmonize both instruments of political cooperation. The Danish declaration does therefore not allow Denmark to pursue a policy of confrontation between both institutions. She is rather under the obligation to seek compromise. The declarations which refer to Title III of the Single European Act are outside the framework of Community law, i.e. outside the three European Communities, whereas all other unilateral or multilateral declarations refer to Title II (Community law). These declarations, whether unilateral or multilateral, may not be considered as reservations because such reservations are not allowed[10]. It cannot be concluded from the fact that the Member States are still the masters of the Treaties, that they would automatically accept a unilateral reservation of a Member State in regard to positions of Community law. A reservation always constitutes an alteration of the contents of the Treaty (Art. 2d of the Vienna Convention on the Law of Treaties) which is an extreme exception and cannot be presumed. To the contrary, all unilateral declarations must be interpreted as if they were a mere instrument of interpretation (Art. 31 (2) lit. b), under the condition that these declarations are part of the Single European Act. It is this condition which is not very clear and it is questionable whether it has been fulfilled. Art. 33 of the Single European Act provides that only the Single European Act (the present Act) is to be ratified and not the Final Act. It is therefore necessary to analyze the legal categories more precisely. The problem is even more evident because various unilateral declarations which the Conference took notice of, e.g. the declaration of Ireland concerning Art. 57 (2), referred to the Articles of the EEC Treaty itself (in support of special provisions for the protection of insurance policy holders in Ireland) and the declaration of Portugal concerning Art. 59 (2) and Art. 84 EEC Treaty (necessity of special transitional measures) are unlawful as reservations, but do possess judicial value as a confirmation of a possible interpretation of these Articles of the EEC Treaty. The multilateral declarations which express a consensus of all Member States, are certainly not an automatic modification of the EEC Treaties. The question whether these declarations possess any judicial value insofar as they demonstrate a consensus in the interpretation was answered negatively by Toth[11], who favours the opinion that, according to Art. 3 of the Single European Act, the Final Act is not subject. to the jurisdiction of the Court of Justice and that such declaration can therefore not serve as a means of interpretation of the Single European Act itself. Art. 31 provides that the provisions concerning the competence of the Court of Justice and the exercise of this competence are only applicable to the provisions of Title II and to Art. 32. According to Toth, the Final Act, which is not an object of this Article, may therefore not be considered by the Court of Justice. It has already correctly been noticed that the question of interpretation must not be confused with the question of the jurisdiction of the Court. Within this jurisdiction, the Court must interpret all articles of Title II of the Single European Act and of course also all the joint declarations of the Member States in respect of the articles of Title II.[12]

The interpretation of Article 8a of the Single European Act gives occasion to discuss the problem. According to this Article, the Community takes the appropriate measures to complete the Common Market step by step within the course of a period which ends on 31 December 1992, in accordance with the provisions of this article. The same Article defines the Common Market as an area without internal borders where the free movement of goods, persons, services and capital is secured according to the provisions of the existing Treaty. If at the end of this period on 31 December 1992, further to the measures of the Community the Common Market fails to materialize, may the Court then declare that the Common Market as an area without borders does exist and that all legal consequences of art institutional existence follow automatically? What is the legal significance of the declaration concerning Art. 8a that "the determination of the date December 31, 1992, does not create any automatic legal effect"? According to Toth, such declaration does not have any legal value in regard to the Single European Act, because it is part of the Final Act which itself is not an integral part of the Single European Act and which cannot be taken into consideration by the Court of Justice. It remains to be seen whether such an argumentation which is based on the completeness of the Treaty text, will prevail. And if one shares the opinion that the declaration of the Member States as the Conference on the Single European Act does have legal effect in regard to Art. 8a, what exactly is this legal effect? Can the parties preclude a certain interpretation of Art. 8a, maybe even an interpretation which raises doubts whether the date of December 31, 1992, has any significance at all? lt must not be assumed that the total content of Art. 8a may be reversed by interpretation and its legal value profoundly modified[13].

The following conclusions are to be drawn from these preliminary deliberations: The date of December 31, 1992, puts the Member States and the organs of the Community under an obligation. It is a legal obligation and the breach of this obligation may be ascertained by the Court of Justice. If Art. 8a — in dubio pro Communitate — may be interpreted in a way that with December 31, 1992, an automatic (direct) effect follows from the completion of the Common Market, it is consequently impossible for the declaration of the Member States to entirely negate this legal effect because the formula of the "automatic effect" or the "direct effect" is not only a simple expression, but leaves room for various interpretations. It is possible to determine time periods during the course of which legal results must be obtained. This is in accordance with the adjudication of the European Court of Justice which has always held that directives obtain direct effect only after the expiry of a time limit. Art. 8 provides that the European Community takes the necessary measures which also include directives. These directives could provide for a postponement beyond December 31, 1992. The Court of Justice is consequently capable of deferring the direct effect and thus opening the way for an interpretation which takes account of the will of the Member States as it is expressed in the declaration concerning the interpretation[14]. This teleological reduction is based on the hypothesis that the contracting parties intended to complete the Common Market step by step and that it was not their intention to avoid the direct effect of the provisions on the Common Market at all costs.

II.

The legal nature of joint declarations is not explicitly settled in the Treaties of the European Communities. As a consequence, the definition of their legal nature will depend on (a) the application of public international law rules and in particular of the rules of the Vienna Convention on the Law of Treaties[15] to the Treaties of the European Community and to joint declarations and (b) on the specific character of certain joint declarations.

The EEC Member States made joint declarations already in respect of the Treaties of Rome and also in respect of the accession treaties of 1972[16] and 1979[17] In the Final Act of the respective conference these joint declarations are holding a peculiar position. They are neither part of the treaty texts, nor are they annexes, nor protocols. They are separately adopted by the representatives of the Member States[18] and by the EEC Council. In this way they are to be clearly distinguished from unilateral declarations which may be added by the parties to the respective act.

What are the conclusions to be drawn for international public law and for Community law, in particular from the formal character of joint declarations? They do not constitute annexes which by explicit reference have become integral parts of the treaty (cf. Article 19 para. 5, Article 106 para. 3 EEC Treaty). They are also not protocols, which under Article 239 EEC Treaty or by the related articles in the accession treaties (cf. Article 150 of the accession act of 1979) have been declared to form an integral part of the treaties.

In Community law, the question what are the integral parts of Community law may at first glance be important in many respects such as e.g. for the application of Article 236 EEC Treaty settling the treaty

revision. It could also be argued that this problem arises in connection with the competence of the European Court of Justice (Article 164: the Court of Justice will ensure the respect of the law in the interpretation and application of the present Treaty). The question therefore is whether the joint declarations annexed to Community or accession treaties are Community law as defined in Article 164, although they do not form integral part of these treaties.

III.

Before answering these questions, I would like to make some short remarks on the application of public international law to the EEC Treaties. The fact that the application of international public law to the European Communities is closely related to the fundamental concept of the nature and origin of the Communities is a controversial issue in the respective discussion[19]. Qualifying the conclusion of the treaties founding the European Communities as a constituent act and the Community order as a constitution, implies advocating the complete autonomy of Community law in respect of public international law[20].

The continual jurisdiction of the European Court of Justice also stresses the Community‘s autonomous character, from which it follows as a rule that international public law is inapplicable. As a consequence, the reliance on the general rules of international public law is considered as "neither indispensable, nor appropriate", as Community law, considering its given structure, form and density, has its own means to solve any kind of legal problem[21].

Those scholars in whose eyes the treaties of foundation are international law, treaties are referring to the subsidiary character of international public law. In their opinion the Community is but one special manifestation of the international organization of states[22].

It appears reasonable to consider the EEC treaties as having a twofold character, because on the one hand they are establishing interstate links between the Member States, and on the other because they represent a constitution common to these States in parts of their sovereign tasks[23]. As a consequence, the applicability of international public law rules has to be handled in a very differentiated manner depending, as the case may be, on whether we are concerned with internal Community law or with problems which cannot yet or no longer be solved with the means of an autonomous legal order. For the legal relations within the Community, the particularities of Community law imply either the non-applicability or modification of international law rules. Therefore Bernhardt[24] ejects the applicability of the interpretation rules of Article 31 para. 3 (a) and (b) to this area. "In the light of the subsequent practice of the contracting parties, national sovereignty continues to subsist", Bernhardt puts it, because the contracting parties are considered as much as ever to be the masters of the treaties, who are not only entitled to repeal or modify the treaties, but also to interpret them in the only authentic manner[25].

For Community law this interpretation rule does not only mean that the Member States are entitled to further develop the treaties by means of agreements concluded outside the Community organs and to give these agreements authentic interpretation, but also that there is no judicial means to contest unanimous Council decisions. However, this implication is opposed by the peculiarity of Community law. "It is laid down in the Community treaties that Community organs have to cooperate and that none of them can on its own and in a generally binding way take decisions. The Court of Justice responsible for ensuring the respect of the law is entrusted with examining also whether the unanimous decisions of the other Community organs and the general behaviour of Member States are in line with Community law"[26]. This view is shared by Kutscher[27] who emphasizes the controlling competence of the Commission settled in Articles 155 and 169, of the European Parliament in Article 137 and the competence of the European Court of Justice to examine the behaviour of Member States and Community Organs. In addition to the treaty provisions, Community organs — in particular the Commission and the Court of Justice — are held to ensure the respect of the treaties. From this it necessarily follows that the competence to decide on the meaning and scope of the treaties is equally included. Hence, the treaties themselves conferred their interpretation to the organs of the Community which illustrates their constitutional character. Under these circumstances reference to the subsequent behaviour of Member States in order to interpret the treaties is not admissible. The Court as well has refused to recognize that subsequent agreements between Member States may have a modifying effect on the treaties. It has also refused to take account of such subsequent agreements when interpreting the treaties[28].

Nevertheless, the operational parts of the treaty of foundation (e.g. the contracting competence and the procedure[29]) are subject at least to the general rules of public international 1aw[30]. As a consequence, with a view to the problem which we are facing here, we have to find out: (1) How to qualify the declarations made by the contracting parties in respect of the treaty of accession and what is their legal significance? This question is related to the operational part of the treaty of accession and has to be examined in the light of public international law. (2) The second question is: What is the effect of such a joint declaration? This question establishes a link to the internal legal order of the European Communities. The answer therefore will have to take into account the peculiarities of this order.

IV.

In treaty law, joint declarations are a well-known phenomenon. They are declarations made by the contracting parties upon agreement or even in a syllagmatic way and are often signed separately by the parties. Formally, such declarations can be an annex to the treaty or even can be simply added to it. There exists no rule in international treaty law providing that only instruments with a certain label may be considered as being an annex to a treaty[31]. In Article 31 para. 2 the Vienna Convention of the Law of Treaties makes a distinction between annexes and other documents related to the treaty text. This distinction is significant for answering the question whether declarations that have been added to a treaty have to be considered as an integral part of it. From this it would follow that the declarations would also fall under the procedure of treaty revision. Moreover, the importance of such a distinction becomes evident in the case of a court which can develop competence only in respect of a very special treaty. In such incidence, the question arises whether a declaration which has been added to a treaty is an integral part of it, which would mean that the court‘s competence would cover also any questions related to the interpretation and application of such a declaration which forms an integral part of a treaty. This problem played a major role in the Ambatielos Case (ECJ competence, Series 1952, p. 34 ss.)[32]. The legal consequences which it entails are mainly functional, i.e. they concern the treaty revision and the competence of a court to decide also on questions related to a joint declaration. The importance is less evident when the treaty is interpreted in the context, as the annexes and agreements of interpretation between the contracting parties have to be examined in the light of the context.

A distinction has to be made between means of interpretation which have been added to the treaty and which are part of the context, and the interpretation means and declarations which, according to the intention of the parties, are an integral part of the treaty. Declarations and means of interpretation, which in accordance with Article 31 para. 2 of the Vienna Convention on the Law of Treaties are part of the context, are not automatically integral parts of the treaty. Let me quote Elias:

"Even where these two classes of documents (agreement by all the parties of a treaty / instrument of interpretation accepted by the other parties) are deemed to form part of the context, they do not thereby form an integral part of the treaty. They are not to be regarded merely as evidence for the resolution of an ambiguity or obscurity, but as part of the context for the purpose of arriving at the ordinary meaning of the terms of the treaty in question"[33].

The question whether annexes or other documents added to a treaty are integral parts of the treaty is in itself a question of interpretation. Under the Vienna Convention on the Law of Treaties, contracting parties may assign a significance to annexes different from that of an integral part of a treaty[34]. But from the fact that according to the Convention annexes have the same ranking as treaty preambles, it may be concluded that in general annexes to a treaty are integral parts of it. But how to classify joint declarations which are not formally qualified as annexes and are not formally incorporated either into the treaty as provided by Article 239 EEC Treaty in the case of protocols?

One possibility of incorporating such a declaration would be to refer in the treaty itself to the nature of the document added, i.e. in order to define the rights and obligations flowing from the treaty, or to the technical peculiarities of certain provisions. Whenever there is no reference in the treaty itself and no formal incorporation either, indications have to be sought to reveal the will of the contracting parties in regard of the qualification of these documents.

In the Ambatielos Case, the International Court of Justice derived the unity and integrality of the operational treaty and of a declaration added to it from the fact that the treaty text and the declaration were included in one and the same document[35]. Likewise, shortly after the exchange of the ratification documents the United Kingdom published the "Treaty of Commerce and Navigation between the United Kingdom and Greece and the Accompanying Declaration" in one document which it submitted to Parliament. As a consequence, when the British Minister of Foreign Affairs and the Commissioner of the Hellenic Republic in Bern had deposited the official texts at the League of Nations in Geneva for registration, the texts were published in the Series of Treaties of the League of Nations under one and the same number. Finally, from the fact that Greece had deposited one single text as document of ratification, the Court concluded that for Greece the declaration was an integral part of the Treaty. The same conclusion was drawn in the case of the document of ratification of the United Kingdom; for the Court, the terms of "this treaty being word by word so conceived" and the text itself clearly indicated that the United Kingdom also considered the declaration as an integral part of the Treaty.

The second argument referred to by the Court in the Ambatielos Case was the nature of the declaration. The Court held that the parties had reached an agreement before signing the treaty in 1926 which was in no way prejudiced by the treaty. The declaration therefore legally affected the entrance into force of the 1926 treaty in so far as to avoid the entire elimination of the treaty of 1886 and of all its provisions including those concerning judicial remedy. Therefore the Court held that "either expressly (by means of the document of ratification deposited by the United Kingdom) or by necessary implication (i.e. by the very nature of the declaration) the provisions of the declarations are treaty provisions". As a consequence, the Court considered itself competent to decide on any dissent concerning the interpretation or application of the declaration.

Those academics who analysed this decision[36] agreed that the mere fact of having the texts of a treaty and of a declaration pertaining to the treaty deposited in one and the same document, was not sufficient a reason for concluding that the declaration was integral part of the treaty[37]. The legal nature of a declaration is based on its being established for the purpose of interpreting the treaty[38]. Judge Carneiro in his individual opinion declares that declarations to interpet parts of a treaty "adopt the significance of an authentic interpretation which is part of the treaty itself"[39]. This opinion does not appear consistent. Documents which are related to the interpretation or implementation of a treaty do not imply that they are an integral part of this treaty. However, following the interpretation, such a document may have the same effect as an integral treaty part for definitely establishing the will of the parties; distinction should be made however between the function of an integral part of a treaty and the documents which are annexed to it for interpretation purposes.

The five dissenting votes, which by reason of differing formal or material criteria or as a result of a differing assessment of these criteria reach a conclusion which is in clear contrast to that of the majority of Court members, illustrate the ambiguity of the criteria of distinction.

The answer to the question whether or not a declaration is an integral part of a treaty, will also depend on the declaration‘s range rationis personae. Thus Schiedermair[40] — whose argument fails to convince me —denies that Annexes I, II and III of the Four Powers‘ Agreement (on Berlin) are an integral part of the treaty, because these annexes not only affected the contracting parties, but also the Federal Republic of Germany and the GDR and, as a consequence, do not fit into the synallagmatic pattern of the Four Powers‘ Agreement.

Which conclusions are to be drawn from this line of reasoning? One reluctantly shares the formal argument of the Court. All depends on the indications of the will of the parties. Judge Zoricic puts it as follows: "What really matters are the terms of the text that has to be interpreted, the intention of the parties and the objective the text was aimed to serve"[41].

V.

For Community law, the legal character of these declarations could be more easily found out. In the case of certain joint declarations the legal character is even questionable[42] — we will come back to this problem later.

Even if it is agreed that the declarations discussed here are of a legal nature, it is not evident that they are integral parts of the treaties (of accession). Article 239 EEC Treaty allows for a reverse argument. According to Article 239, protocols which "following a joint agreement of the Member States will be annexed to the present Treaty, are integral parts of it". It is beyond any doubt that the protocols referred to in this article are those annexed to the EEC Treaty[43]. These protocols have to be distinguished from other joint or unilateral declarations which are annexed to the Final Act. In the opinion of most academics, Article 239 does not cover these declarations which, therefore, do not have the "same legal significance"[44] as the protocols[45] Smits and Herzog came to the following conclusion: "It could be argued they should on the basis of an interpretation of Article 236 e contrario (or following the analogous role inclusio unius est exlusio alterius) not be considered as part of the treaty”[46].

As Article 239 does not apply to other protocols, these latter as well as other declarations will become integral parts of the treaty only by means of the procedure set out in Article 236 of the Treaty provided that one shares this view. The same conclusion was drawn from the scheme of the Final Act (distinction between text of the treaty, annexes, protocols and declarations annexed only to the Final Act)[47].

The procedure of accession of new members as provided for in Article 237, the second paragraph of which defines the adaptation of the EEC Treaty, allows for extending the nature of documents which form an integral part of the Treaty. Nevertheless, the contracting parties of the 1972 and 1979 treaties of accession chose the same method. The Treaty of the Accession of Greece of 18 May 1979 refers in Article 1 para. 2 to the text concerning the conditions of accession of the Hellenic Republic and to the treaty adaptations. It declares that the provisions of this act are integral parts of the Treaty of Accession. In Article 150 of this Treaty, Annexes I to XII and the Protocols 1 to 7 annexed to the Treaty are declared integral treaty parts.

These legal circumstances suggest the conclusion that, according to the will of the contracting parties, declarations other than annexes and protocols are not integral parts of the treaty. This conclusion is supported by an analysis of Articles 2 and 3 of the 1972 and 1979 accession treaties. These Articles make a distinction between the provisions of the original treaties which are binding have the Hellenic Republic and which upon to be applied there under the conditions of these treaties and of the treaty under consideration, and the other declarations representing the so-called Community "acquis" (Article 3 para. 3). The Hellenic Republic is in the same situation as the other Member States in respect of declarations, decisions and other opinions expressed by the Council and in respect of those concerning the EEC which by a joint agreement were adopted by the Member States. As a consequence, the Hellenic Republic will respect the underlying principles and orientations and will take any measures that may be required to ensure their implementation". It has been argued[48] that as a result of the rigour of Community law the contracting parties refuse to subject joint declarations to Community law, strictly speaking, in order to avoid the consequences, as e.g. the procedure provided for in Article 169 EEC Treaty.

Even if the parties refrain from considering joint declarations as integral parts of the treaty in order to keep a certain flexibility, the terms and the contents of such declarations can turn the argument into the reverse. I believe, however, that such declarations have to be considered as "interpretation agreements" or at least as declarations of political intent.

Does the differentiation between an interpretation agreement, which is part of the context, and an agreement which is an integral part of the treaty, really matter at the legal level?

First, according to the decisions of the Court of Justice (and according to all commentaries)[49], the notion of "treaty" as mentioned in Article 164 EEC Treaty (the competence of the Court) has a very large meaning (equivalent: Community law). Joint declarations which form parts of the Community "acquis" are in this respect "Community law"[50].

Although they are not integral parts of the Treaty — with certain exceptions —‚ the declarations are of great importance for the interpretation of the treaties. They should not be confused with the treaties mentioned in Article 220 EEC Treaty which are concluded between Member States, because joint declarations have a direct and concrete relation to the EEC Treaty and the treaties of accession, whereas treaties referred to in Article 220 EEC Treaty are not necessarily linked to Community Law.

Similarly, the obligation of domestic courts (or their chambers) to seek the European Court‘s opinion on a problem connected with interpreting the EEC Treaty (Article 177), also gives the courts the opportunity to seek the European Court‘s interpretation of an article of the EEC Treaty in relation to a joint declaration. The problem could become a burning issue if the required interpretation concerns a term or a certain formula of a joint declaration. However, as a matter of fact, such a question will be raised only in respect of the treaty text itself, and in that event it is appropriate to raise this question before the European Court, which should decide it.

In one particular case the European Court had considered itself incompetent to decide, i.e. when it had been invoked to interpret a treaty between Belgium and the Federal Republic of Germany. The Court argued that in this particular instance "the provisions of international law are establishing links between Member States outside the field of Community law"[51].

On the other hand, an agreement concerning the treaty that was entered into between all parties upon conclusion of the treaty (Article 31 para. 2 (a)), which is included in the context for treaty interpretation purposes, could imply a modification of the treaty text because the treaty is given its real meaning only when it is interpreted in the light of the interpretation agreement[52]. Unlike an agreement of association (Article 238 para. 3), the ”adaptation” of the original Community treaties to the requirements of an accession treaty does not call for an explicit modification of the original treaties. It is rather possible and common use that these adaptations are incorporated into the treaty of accession and hereby exert a retroactive influence on the original Community treaties. Such a retroactive effect can be reached also by means of a joint declaration of interpretation (i.e. an interpretation agreement as provided for by Article 31 para. 2 (a)).

The only question that arises in this connection is whether such a declaration of interpretation could change the effective meaning of a treaty in contradiction to its original terms. As Article 237 explicitly mentions adaptations, certain provisions or terms of the original treaty may well adopt another meaning for a new Member State following a declaration of interpretation. It is possible as well either territorially or materially to modify the field of application of certain provisions in order to ensure that the provisions take due account of the peculiarities of a certain region of the new Member State. Such an additional and corrective interpretation of the original treaty raises theoretical difficulties of distinguishing between "interpretation" and "treaty modification". In my view, our particular problem does not require such a distinction, because all treaties of accession explicitly allow for the adaptation of the original treaties without formal treaty revision. Therefore the question of formally revising the treaty is not raised. As a consequence, the declaration of interpretation (concerning Mount Athos, but also other declarations) can adopt the significance of an additional agreement modifying the original treaty despite its label of interpretative agreement. It will entirely depend on its contents whether the declaration develops such an effect or not. The fact that formally additional agreements do not form integral parts of the treaty, is no obstacle. Without prejudice to the provisions of Article 237 "adaptations" can be carried out merely by means of the integral text of the accession act:

on the contrary, this article allows for such "adaptations" if necessary even by means of declarations of interpretation in respect of the accession act.

VI.

In Community law, the question arises whether joint declarations are of a legal nature or rather entirely political. The relations between an additional declaration and the treaty itself should be carefully distinguished from the question of its legal significance. As we have seen, joint declarations can develop quite a few effects and functions. In what follows I am going to analyse them from the viewpoint of their binding effect. Such declarations can, firstly, take the shape of declarations of political intent of the governments or States agreeing upon them. Secondly, as interpretative declarations they can form part of the context which according to Article 31 para. 2 of the Vienna Convention is to be considered as an agreement on a "particular meaning" according to para. 4 of Article 31, or at least which is to serve as an additional means of interpretation according to Article 32. Thirdly, and without prejudice to their legal qualification, such declarations can supply the basis of functioning of the treaty itself and, fourth, by modifying the rights and obligations flowing from the treaty they can develop their own legal effect[53].

The distinction between an international law treaty and a declaration of a political intent has often been analysed. In Article 2 para. 1 (a) of the Vienna Convention treaties are defined as "agreements under international public law". By this formula it was intended to make it clear that the "intention to commit oneself by the treaty" is an indispensable element of any treaty[54]. The Vienna Convention fails, however, to supply criteria for making sure whether there is any intention for commitment[55]. But it provides for consequences in case of non-observation of the agreement. A treaty violation entails retaliations or claims for damages, and the violation of a declaration of political intent is qualified as unfriendly behaviour.

In international treaty practice one resorts to declarations of intent when one of the contracting parties for political or constitutional reasons[56] cares much about the fact that the other party binds itself by an agreement, whereas this latter for similar reasons refuses to commit itself by a formal treaty. On the other hand, declarations of intent are also referred to when the parties fail to agree on the exact modalities of a formal treaty, but nevertheless want to establish some kind of agreement[57]. Thus, the respective shape and scope of the agreement depends on the will of the parties. In most cases, the parties’ will to bind themselves legally is not evident, therefore objective criteria have to be found for this purpose. Some criteria are beyond any controversy in the pertaining literature: The term "treaty" is presumed to be exhaustive and almost irrefutable, whereas "joint declaration" is open to a twofold interpretation[58]. Moreover, a declaration and its denomination formally offer little instruction about the nature of the declaration because as public international law ignores form-related regulations. As a general rule, a refusal to enter a legal commitment can be presumed to underlie the explicit declaration that it is not a document which according to the terms of Article 102 of the UN Charter can be registered[59]. However, this does not allow for the adverse conclusion. The declaration to appeal to an international court in case of dissent allows to infer that there exists the intention to enter a legal commitment, whereas the explicit exclusion of the decision of a tribunal does not necessarily imply the contrary, as in international law the competence of courts is restricted to the cases of specific declarations.

The wording of a declaration also reveals the will or intention of the parties. Thus an agreement on the treaty obligations reveals the will of the parties to bind themselves legally whereas by expressing their intentions, convictions or hopes the parties declare their political intent[60]. When the contracting parties in their actual legal relations — primarily Member States of an international organisation — leave aside the treaty revision forms as provided for, it may be presumed that they concluded an act without legal obligations. Finally, the behaviour of the parties and their arguments during the negotiations or internally can reveal a party‘s being prepared to enter a legal commitment or not.

It must not be derived from the fact that a declaration is given the nature of an expression of political intent that non-observance of the declaration will be without consequences. Thus, no contracting party could claim in application of the principle of estoppel (or of venire contra factum proprium) that a situation resulting from an agreement is illegitimate (e.g. a decision agreed upon in deviation from the provisions of the Statute). Human rights which were settled in basket no. 3 of the Final Act of the Conference on Security and Cooperation in Europe, illustrate another aspect: a joint declaration or even an agreement on a certain procedure will have as a consequence that the subject matter of the declaration is no longer a purely internal matter of the respective state[61]. In addition, a declaration which is expressed in respect of a given treaty can reveal the operational basis of the treaty, i.e. it shows up the circumstances which essentially led to the conclusion of the treaty and in the absence of which the parties would not have concluded the treaty.

Another distinction of joint declarations results from their function in relation to the treaty. Although we have to distinguish interpretative declarations from those which as "part of the treaty modify the rights and obligations implied by the treaty", we have seen that such a distinction is a rather relative matter[62] Article 31 para 1 of the Vienna Convention on the Law of Treaties reads: "A treaty has to be interpreted in good faith according to the ordinary meaning to be given to the treaty terms in their context and in the light of the treaty objective and aim". Para. 2 (a) of Article 31 provides for a material agreement of the parties on the contents of interpretation, whereas para. 2 (b) mentions unilateral declarations which, although being accepted as interpretative declarations by the other party, do not necessarily meet with the approval of the other party as to their contents[63]. Declarations which fulfil these requirements have the same ranking as the other means of interpretation enumerated in Article 31 paras. 1 and 2 and have to be taken into account for determining the "ordinary" meaning of a notion. However, instead of interpreting the declarations in their "normal" or "ordinary" meaning the analysis may as well come to an unusual meaning. This will happen when the contracting parties are assigning a particular context to a treaty or a provision which has to be interpreted. What then is the importance of Article 31 para. 4? "A term will be understood in a particular sense if the parties so desire". From this it may be concluded that para. 4 of Article 31 was conceived in such a way as to charge the party that refers to a special meaning of a notion with furnishing the evidence[64].

According to Article 32 of the Vienna Convention on the Law of Treaties it is, finally, possible to refer to declarations that have been made in connection with a treaty as additional means of interpretation within the framework of the circumstances that led to the conclusion of a treaty and this in order to confirm the established meaning or to find out whether the use of the interpretation means enumerated in Article 31 produces a vague, ambiguous or even absurd meaning.

VII.

The joint declaration concerning Mount Athos, which was adopted by government representatives at the government conference, reads as follows[65]. "In recognition of the fact that the special status granted to Mount Athos as guaranteed by Article 105 of the Hellenic Constitution is justified only on spiritual and religious grounds, the Community will take this status in consideration in the subsequent application and elaboration of Community law provisions, in particular as regards customs duty and tax exemptions and the right of settlement".

The declaration is composed of two elements: first, the recognition of the fact that the special status is granted by the Constitution only on religious grounds, and secondly, the commitment to take care of duly considering the application of the special status. According to Article 227 para. 1, the EEC Treaty in principle also applies to Mount Athos. Unlike the relationship between the Vatican and Italy, Mt. Athos is a part of the Hellenic Republic (see Article 105 para. 1 (1) of the Greek Constitution)[66].

As rules of an economic community, the EEC Treaty provisions only apply to matters of the economic sector. This context gives the declaration its significance. The declaration is aimed to apply in favour of the purely religious nature of an activity carried out at Mount Athos. Should there arise doubts or diverging opinions as to whether an activity is of a religious or economic nature, Community law will become applicable.

The second part of the declaration refers to Article 105 para. 5 of the Constitution where it is laid down that customs duty and tax exemption of the Holy Mount are regulated by the law. In some instances, tax exemption might amount to subsidies as defined in Article 92 which are incompatible with the EEC Treaty. However, the guarantee given by the joint declaration to duly consider the special status of Mount Athos in the application of Community law will prevent Community organs from raising objections or accusing Greece for granting subsidies in contrast to Community law. Here the question may be raised whether such a commitment of the Community and of the European Court of Justice is compatible with Community law and the task of the Court, because unlike in the case of Berlin Article 92 does not provide for any special circumstance that might justify tax exemption on religious grounds. In connection with the EEC Treaty provisions concerning the free movement of persons, services and the right of settlement, the declaration embodies an interpretation of the ordre public clause.

Apart from this task to serve as a means of interpretation — a task which in this particular instance has to be considered as an agreement according to Article 31 para. 2 (a) and as an element of confidence in favour of Greece —‚ the declaration implies for the Community an obligation for the future, which, however, is different from that of the declaration concerning Berlin.

In this latter declaration, the Community committed itself to taking all necessary steps to improve the situation of Berlin. In the declaration concerning Mount Athos, the Community commits itself merely to taking account of special Greek regulations in the subsequent application and elaboration of Community law provisions. This does not preclude, however, that the Community takes measures to improve the situation of Mount Athos by referring to its special spiritual and religious status.

VIII.

The Treaty of 12 June 1985 concerning the accession of the Kingdom of Spain and of the Republic of Portugal to the European Economic Community and to the European Atomic Energy Community[67] also consists of annexes, protocols and a Final Act. Added to the Final Act are several joint declarations, along with unilateral declarations on the part of Spain, Portugal and the EEC. But none of these declarations contains a reservation or a means of interpretation aiming at the establishment of a special legal regime for a particular region (with the exception of the declaration of the Government of the Federal Republic of Germany concerning the application of Community law to Berlin). The provisions dealing with the exceptions of the application of certain parts of the Treaty can be found exclusively in the Act of Accession and in the protocols, which, according to Art. 400 of the Act of Accession, are an integral part of the Act. Art. 25 of the Treaty of Accession provides that the treaties as weil as the legal acts of the EC organs are applicable to the Canary Islands, to Ceuta and Melilla, subject only to those derogations spelled out in sections 2 and 3 and those provided for by this Act. The conditions under which the provisions concerning the free movement of goods, the customs law legislation and the economic policy are applicable to these Islands are defined in Protocol no. 2. The acts concerning the agricultural policy of the Community and the common fishery policy are not applied to the Canary Islands, to Ceuta and Melilla. As for Portugal (Arts. 376 and 377), some derogations in regard to the autonomous region of the Azores and the Island of Madeira are provided for. The Final Act contains a joint declaration concerning the economic and social development of the autonomous region of the Azores and of Madeira[68]. Apart from that, declarations concerning the Canary Islands, Ceuta and Melilla can be found in Protocol no. 2[69].

In conclusion it may be said that the application of Community law on the Canary Islands, Ceuta, Melilla, on the Azores and on Madeira is determined in the Treaty of Accession and in the protocols which were made an integral part of the Treaty of Accession. The joint declarations annexed to the final act do not transgress the scope of application of the treaty or of the protocols and have to be qualified as a means of interpretation. The Final Act of 12 June 1985 cannot be considered as a parallel to the joint declaration concerning Mount Athos. In a certain sense, the declaration concerning Mount Athos was of a unique nature because it provided for a particular derogation of the scope of application of the EEC Treaty. It is not this exception in the scope of application — which, by the way, is identical to the settlement found in the case of Greenland[70]—‚ it is rather the judicial technique which is important: it is a joint declaration annexed to the Final Act, but not formally integrated into the Treaty of Accession of Greece. This legal technique causes specific legal problems. It could perhaps be expedient to give the representatives of the Member States and their legal services the advise not to slow down the elaboration of these declarations and to try to incorporate them either into the annexes or into the protocols which are formally integrated into the treaties, or, even better, to integrate the exceptions into the treaties of accession themselves. Any declaration which is simply annexed to the final act causes specific problems, be that in regard to the question whether there really is a legal link between this declaration annexed to the final act and the treaty itself, or be it the question whether the jurisdiction of the Court of Justice of the European Community does indeed extend to these declarations. This last question was raised in regard to the Single European Act and must be answered affirmatively — in contrast to the conclusions drawn by A.G. Toth[71].


[1] Single European Act (OJ L 169/24 (29 June 1987)): "Declaration on Article 8a of the EEC Treaty: The Conference wishes by means of the provisions in Article 8a to express its firm political will to take before 1 January 1993 the decisions necessary to complete the Internal Market defined in those provisions, and more particularly the decisions necessary to implement the Commission‘s programme described in the White Paper on the Internal Market”.

[2] Declaration of the Commission on Art. l00a of the EEC Treaty: ”In its proposals pursuant to Art. l00a (1), the Commission shall give precedence to the use of the instrument of a directive if harmonization involves the amendment of legislative provisions in one or more Member States”. Can this provision be sanctioned and thus make possible a decision by the European Court of Justice declaring illegal a regulation passed in the framework of Art. l00a (1)? The obligation to give precedence to the use of the instrument of a directive leaves a large margin of discretion for the Commission, even if it does possess legal value. Cf. G. Ress, "Löst Artikel l00a EWGV die Probleme der Rechtsangleichung des einheitlichen Binnenmarktes?", in: Rechtsprobleme der Rechtsangleichung, Wissenschaftliches Kolloquium aus Anlaß des 70. Geburtstages von Heinrich Matthies (Hrsg. Georg Ress), Vorträge, Reden und Berichte aus dem Europa-Institut, Nr. 137, 1988, pp. 9 ff.

[3] Declaration by the High Contracting Parties on Title III of the Single European Act (on European Political Cooperation), where the "openess to other European nations which share the same ideals and objectives" is reaffirmed. This is actually not only an interpretation of the text, but an extension of its content. In order to distinguish the members of the European Political Cooperation from their status as members of the EC, the "High Contracting Parties” were chosen to make this declaration.

[4] General Declaration on Articles 13 to 19 of the Single European Act (Internal Market) where the right of the Member States is reserved "to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques". It is evident that the Member States are the authors of this general declaration-general because it contains a legal reservation in regard to all the articles of the Single European Act. The question is not so much whether this declaration is qualified as a reservation or as a rule of interpretation (cf. G. Ress, in: Bieber/Ress, Die Dynamik des europäischen Gemeinschaftsrechts im Lichte nachfolgender Praxis der Mitgliedstaaten und der EG-Organe, 1987, pp. 64 ff.).

[5] Grabitz, Kommentar zum EWG-Vertrag, EEA, note 26.

[6] The declaration of the Commission (supra note 2) does actually not contain a self-obligation of the latter, but a responsibility conferred upon it by the Member States through the adoption of the text of Art. l00a.

[7] Moreover, the declarations quoted in the notes above have judicial value as joint declarations of the Member States on the interpretation (art. 31(2) lit. a of the Vienna Convention on the Law of Treaties). All others among the 11 declarations (authentic interpretation):

-Declaration on the powers of implementation of the Commission (adoption of principles and rules on the basis of which the Commission‘s powers of implementation will be defined in each case).

-Declaration on the Court of Justice: Art. 168a EEC Treaty—jurisdiction of the Court of First Instance—does not prejudice any conferral of judicial competence likely to be provided for in the context of agreements concluded between the Member States. It does not suffice that two or three states want to confer jurisdictional competences onto that new first instance. The declaration is of particular legal importance. It is not necessary to take recourse to the procedure of treaty revision (Art. 236) if the Member States-by utilizing the concluded agreements-want to confer competences onto a first instance jurisdiction outside the scope of the EEC Treaty.

-Declaration on Art. l00b of the EEC Treaty (Application of Art. 8c of the EEC Treaty to the proposals which the Commission is required to make under Art. l00b of that Treaty).

-Declaration on Art. 118a (2) of the EEC Treaty concerning the protection of the safety and health of employees.

[8] Cf. Ivo Schwartz, "Übereinkommen zwischen EG-Staaten: Völker-oder Gemeinschaftsrecht?", in: Festschrift für W. Grewe, 1983, pp. 553 ff. Schwartz distinguishes between reservations for treaties concluded in the framework of Art. 220 EEC Treaty and reservations concerning the treaties which institute the Communities themselves. As to the latter reservations are not possible and precluded ratione materiae - a conclusion which is also derived from Art. 236; also cf. Grabitz, loc. cit.

[9] On reservations in general, cf. R. Kühner, Vorbehalte zu multilateralen völkerrechtlichen Verträgen (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Bd. 91) 1986; G. Ress, "Verfassung und völkerrechtliches Vertragsrecht. Überlegungen anlässlich der Ratifikation der Wiener Vertragsrechtskonvention durch die Bundesrepublik Deutschland", in: Staat und Völkerrechtsordnung, Festschrift für Karl Doehring (Hrsg. K. Hailbronner / G. Ress/T. Stein), 1989, pp. 822 ff.

[10] Cf. the declarations of the governments of Ireland and Portugal, which in a certain sense wanted to alter the conditions of their accession to the EEC Treaty.

[11] A.G. Toth, "The Legal Status of the Declarations Annexed to the Single European Act", in Common Market Law Review 1986, pp. 803 ff., 810.

[12] Cf. Grabitz, loc. cit., note EEA.

[13] A direct effect of the provision of Art. 8a EEC Treaty is considered possible by Jean-Paul Jacqué "L‘Acte Unique Européen", in: Revue trimestrielle de droit européen, 1986, p. 574 ff., 589; H.E. Scharrer, "Die Einheitliche Europäische Akte-Der Binnenmarket", in: Integration 1986, p. 108. Against an eventual direct effect of these provisions cf. H.J. Glaesner, "Die Einheitliche Europäische Akte", in:

Europarecht 1986, pp. 119, 132; C. Gulman, "The Single European Act - Some Remarks from a Danish Perspective", in: Common Market Law Review 1987, pp. 31ff., 36.

[14] A positive interpretation in the sense that a direct effect is possible in principle, but only in the course of a step by step process, is considered by E. Grabitz, "EEA, rechtliche Bewertung", in: Integration 1986, pp. 95, 99.

[15] As the Vienna Convention on the Law of Treaties of 23 May 1969 has not been ratified by all contracting parties to the accession treaty of 1979 (only by Denmark in 1974, by Greece in 1974, by Italy in 1974 and by the United Kingdom in 1971; the Federal Republic of Germany has so far only opened the parliamentary procedure, cf. Bundesrats-Drucksache 551/83), it cannot be directly applied. It is, however, generally agreed that at least the rules concerning the interpretation of treaties (Articles 31 ff.) are an expression of customary law. According to Article 5, the Convention is applicable to any treaty which is the constitutive act of an international organisation and to any treaty which is adopted by an international organisation, provided that there is no contrasting rule within this organisation.

[16] See e.g. the joint declaration concerning the Court of Justice (0.J. 1972 L 73/194): increase of the number of advocates-general to four; joint declaration concerning the fishery sector (ibidem).

[17] 0. J. 1979 L 291/186.

[18] Joint declarations are declarations of Member States made by their representatives at the Conference. From the fact that the declaration concerning Mount Athos begins by "The Community recognizes..." it must not be concluded that we are concerned here with a declaration of the Member States. According to the information given by Mr. Lambers (EEC Council), it has by mere error been omitted to add : "Member States are binding the Community...".

[19] See J. Schwarze, "Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen", in : Europarecht 1983, pp. 1 ff.

[20] H. P. Ipsen, in : J. Schwarze (ed.), Der europäische Gerichtshof als Verfassungsgericht und Rechtsschutzinstanz, 1983, p. 29.

[21] Cf. U. Everling, "Sind die Mitgliedsstaaten der Europäischen Gemeinschaft noch herren der Verträge?, Zum Verhältnis von Europäischem Gemeinschaftsrecht und Völkerrecht", in : Festschrift für H. Mosler, 1983, pp. 173, 176 ff. , Schwartze, loc. cit., p. 33.

[22] Cf. A. Bleckmann, DÖV 1978, p. 397.

[23] Cf. G. Ress, "Wechselwirkungen zwischen Völkerrecht und Verfassung bei der Auslegung völkerrechtlicher Verträge", in : Berichte der Deutschen Gesellschaft für Völkerrecht, Vol. 23, 1983, p. 16.

[24] R. Bernhardt, "Zur Auslegung des europäischen Gemeinschaftsrechts", in : Festschrift H. Kutscher, 1981, pp. 21 ff.

[25] Article 31 of the Vienna Convention on the Law of Treaties reads as follows :

"General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of ist object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise in addition to the text, including its preamble and annexes :

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context :

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended".

[26] Loc cit. (Above, note 24), p. 21.

[27] Hans Kutscher, "Thesen zu den Methoden der Auslegung des Gemeinschaftsrechts aus der Sicht des Richters", in : Gerichtshof der Europäischen Gemeinschaften, Begegnung von Justiz und Hochschule am 27. Und 28. September 1976 (Reports, Part I, pp. 33 ff. ).

[28] ECJ, Defrenne II, Series 1976, 455, 478; Manghera, Series 1976, 91, 102.

[29] On the other hand, the application of the rules relating to the expiry of a treaty and to the suspension of its application (Arts. 54 ff. ) is a very controversial question; see L. J. Constantinesco, Das Recht der Europäischen Gemeinschaft, I, 1977, pp. 180 ff.

[30] Beutler/Bieber/Pipkorn/Streil, Die Europäische Gemeinschaft - Rechtsordnung und Politik, 2nd ed., 1982, p. 66.

[31] Cf. Heidelmeyer, Untersuchungen zu einer Theorie der Beziehungen zwischen Hauptinstrument und Nebenurkunden völkerrechtlicher Verträge, 1961, p. 108; Bittner, Die Lehre von den völkerrechtlichen Vertragsurkunden, 1924, pp. 280 ff.

[32] Cf. Also Heidelmeyer, op. cit., pp. 109 ff.

[33] T. O. Elias, The Modern Law of Treaties, 1974, p. 75.

[34] Cf. Seidl-Hohenfeldern, Völkerrecht, 3rd ed., no. 150 ; for the discussion on the classification of treaty annexes, see H. Schiedermair, Der völkerrechtliche Status Berlins nach dem Viermächte-Abkommen vom 3. September 1971 (1975), pp. 77 f. Against Schiedermair’s interpretation, see J. A. Frowein, Archiv des öffentlichen Rechts, 101, p. 642.

[35] ICJ Report 1952, p. 42.

[36] Cf. Heidelmeyer, op. cit., pp. 117 ff.

[37] Cf. The dissenting opinion of Judge Basdevant, ICJ Report 1952, pp. 66 ff. :

"Form details which would outweigh the legal operation of the conclusion of a treaty cannot be given a determining importance when, in case of doubt, the real meaning of the agreement is sought, the interpretation the parties wanted to give to some agreement concluded between them".

[38] Apart from this significance for the interpretation of the treaty, such joint declaration can imply obligations inherent in or apart from the treaty. Joint declarations have to be distinguished from reservations that have been formulated by one State and accepted by the other States ( Article 20 (2) Vienna Convention on the law of Treaties) and by the competent organ in case of a constituent act of an international organisation (Art. 20 (3) although a joint declaration concerning only the application of a treaty can for a State have the same legal effect as an accepted reservation (see Art. 21 (1a) and (1b)).

[39] ICJ Report 1952, p. 53.

[40] See note 34 above.

[41] ICJ Report 1952, p. 75.

[42] Smits/Herzog, A commentary on the EEC-Treaty, 1982, Art. 230(04) : "...expressions of intent and clearly good will gestures, rather than documents intended to have legal effects".

[43] Cf. Hilf, in: Groeben/Boeckh/Thiesing/Ehlermann, Kommentar zum EWG-Vertrag, 3rd ed., 1983, Art. 239, no. 11.

[44] See Wohlfahrt, in: Wohlfahrt/Everling/Glaesner/Spring, Die Europäische Wirtschaftsgemeinschaft, 1960, Art. 239, no. 1 ; Carstens, ZaöRV, Vol. 18 (1958), p. 238.

[45] Cf. also Bentivoglio/Quadri et al., Article 239 no. 1 : "Non hanno la stessa rilevanza le dei dichiarazioni communi delle Parti Contraendi nel caso specifico le citate dicharazioni communi contengono semplici promesse di concludere ulteriori accordi di cooperazione con Stati terzi, che como tali, non sono vincolandi".

[46] Loc. Cit., Art. 239 (note 0.4).

[47] Cf. Jahn, in : Europarecht, 1972, p. 249.

[48] Schwarze, Europarecht, 1983, p. 34.

[49] Cf. Daig, in : Groeben et al., op. cit., Art. 164, no. 6 ; Pernice, in : Grabbitz, EWG-Vertrag, Article 164, no. 20 : "Alle Streitigkeiten und Fragen, die mit der praktischen Anwendung des Gemeinschaftsrechts in unmittelbarem Zusammenhang stehen".

[50] In respect of the application of the Community "acquis", see ECJ Series 1981, p. 1074; cf. also Schwarze, in : Europarecht, 1982, pp. 143 ff.

[51] ECJ Series 1976, p. 1333.

[52] Cf. W. Karl, "Vertragsauslegung-Vertragsänderung", in : Autorität und internationale Ordnung (C. Schreuer ed.), 1979, pp. 15 ff.

[53] See Bernhardt (supra note 24).

[54] Cf. M. Rotter, "Die Abgrenzung zwischen völkerrechtlichem Vertrag und ausserrechtlicher zwischenstaatlicher Abmachung", in : Internationale Festschrift für A. Verdross, 1971, pp. 426 ff. ; Schachter, AJIL 1977, p. 300 f.

[55] Cf. Blumenwitz, "Das deutsch-polnische Ausreiseprotokoll vom 7. Oktober 1975", in : Festschrift für von der Heydte, p. 53.

[56] See the constitutional reasons of Greece-regarding the precedence of Community law-for a declaration such as that in respect of Mount Athos. For other reasons see U. Everling, in : Gedächnisschrift für L. J. Constantinesco, 1983, p. 146

[57] Cf. The legal weight of simple declarations of the EEC Council : ECJ Series 1981, 1045 (fishery policy) ; Schwarze, in : Europarecht 1982, pp. 133 ff.

[58] W. Wengler, Rechtsvertrag, Konsensus und Absichtserklärung im Völkerrecht, Juristenzeitung 1976, p. 194 ; Blumenwitz, loc. cit. ; p. 54.

[59] Wengler, ibidem.

[60] Blumenwitz, loc. cit. p. 55 note 23 ; G. Ress, Die Rechtslage Deutschlands nach dem Grundlagenvertrag vom 21. Dezember 1972, 1978, p. 19.

[61] Cf. Schachter, "The twilight existence of non-binding international agreements", AJIL 1977, 304; Th. Schweisfurth, "Zur Frage der Rechtsnatur, Verbindlichkeit und völkerrechtlichen Relevanz der KSZE-Schlussakte", in : ZaöRV, Vol. 36 (1976), p. 721.

[62] Cf. Wetzel/Rauschning, Die Wiener Vertragsrechtskonvention, pp. 429 ff.; G. Ress, op. cit., p. 20, note 68.

[63] Cf. Ress, op. cit., p. 123.

[64] See Hummer, "Ordinary versus special meaning", in : Österr. Zeitschrift für öffentliches Recht, Vol. 26 (1976), pp. 85 ff., 109, note 91.

[65] Cf. Bernhard Schloh, "The Accession of Greece to the European Communities (1980)", in : Georgia Journal of International Comparative Law, Vol. 10:2, pp. 385 ff.

[66] Constitution of Greece (1975), Article 105:

Chapter Three-Statute of Mount Athos

1. The Athos peninsula extending beyond Megali Vigla and constituting the district of Mount Athos shall, in accordance with its ancient privileged status, be a self-governed part of the Greek State whose sovereignty thereon shall remain unaffected. Spiritually, Mount Athos shall come under the direct jurisdiction of the Oecomenical Patriarchate. All persons residing thereon shall aquire Greek nationality upon admission as novices or monks without any further formality.

2. Mount Athos shall, in accordance with its regime, be governed by ist twelve holy monasteries, among which the entire peninsula is divided, and ist territory shall be exempt from expropriation. The administration shall be exercised by representatives of his holy monasteries constituting the Holy Community. No change whatsoever shall be permitted in the administrative system or the number of monasteries of Mount Athos, nor in their hierarchy and their position in regard to their dependencies ; and the dwelling there of heterodox or schismatic persons shall be prohibited.

3. The determination in detail of the Mount Athos regimes and the manner of operation thereof is affected by the Constitutional Charter of Mount Athos which, with the cooperation of the State representative, is drawn up and voted by the twenty monasteries and ratified by the Oecomenical Patriarchate and the Parliament of the Hellenes.

4. The correct observance of the Mount Athos regime shall in the spiritual field be under the supreme supervision of the Oeconomical Patriarchate and in the administrative field under the supervision of the State which shall also be exclusively responsible for safeguarding public order and security.

5. The above mentionned powers of the State shall be exercised through a governor whose rights and duties, as well as the judicial power exercised by the monastic authorities and the holy community, and lastly the customs and taxation privilege of Mount Athos, shall be determined by law.

[67] J. O. CE L 302/85.

[68] J. O. CE L 302/85, p. 479.

[69] Ibidem, p. 483.

[70] J. O. CE L 29/85.

[71] Loc. cit.; (supra note 11). A recent problem not discussed in this article concerns the legal significance of declarations to protocol related to acts of the Council. Cf. M. Pechstein, "Die Bedeutung von Protokollerklärungen zu Rechtsakten der EG", in : Europarecht 1990, 249 ff.


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