The Genesis of Protocol 36
| Published date | 01 December 2015 |
| DOI | 10.1177/203228441500600408 |
| Date | 01 December 2015 |
| Subject Matter | Session 2: EU Competences in the AFSJ: Setting the Scene |
434 Intersentia
THE GENESIS OF PROTOCOL 36*
T B **
ABSTRACT
Protocol 36 on transitional provisions was annexed to the EU Treaties at the
Intergovernmental Conference of 2007, which negotiated the Lisbon Treaty, in order to
organise the transition between the previous EU and EC Treaties and the Treaties as
amended by the Lisbon Treaty. is contribution conc entrates on why and how Article9
of Protocol 36 – on keeping the legal e ects of act s adopted under the legal regime of the
previous TEU – and Article10 – on the 5-year transitional period regarding the Court
of Justice powers on the police and criminal ju stice acquis and on the UK block opt-out
from that acquis – were dra ed and negotiated. It also clari es the meaning of these
Articles and what such an arcane neologism a s “lisbonisation” means.
Keywords: Art icle9 of Protocol 36, Article10 of Protocol 36; legal e ects of ex-third
pillar acts; L isbonisation; UK’s block opt-out
1. INTRODUCTION
Protocol 36 on transitional provisions concerned ma inly institutional matters
(transition for the European Pa rliament, quali ed majo rity votin g in the Cou ncil, the
Council con g urations, the Commission, the High Representative for foreign a airs
and the EU advisory b odies) and most of its provisions have lapsed.
What is of interest here are only two Articles in Protocol 36, Ar ticles9 and 10,
both located in the last Title of the Protocol, Title VII, about Tra nsi tiona l p ro vis io ns
concerning acts adopted on the ba sis of Titles V and VI of the Treaty on European Union
* is contribution is to be considered an article, with reference to the traditional NJECL division
between Ar ticles and Opinion.
** Director for Justic e and Home A ai rs at the Legal Serv ice of the Council of the Europe an Union.
Before taki ng her position as Director, the author was for 11 years a ssistant to Jean-Claude Pir is,
Director Genera l of the Council Lega l Service, duri ng which she particip ated in the discussion s on
the Lisbon Treaty. Al l views expressed in t his article are str ictly personal and do not repre sent the
views of the Cou ncil Legal Ser vice or the Council of t he European Union.
e G enesis of Protocol 36
New Journal of Eu ropean Crimina l Law, Vol. 6, Issue 4, 2015 435
prior to the entry into force of the Treaty of Lisbon. Titles V and VI const ituted what is
commonly known as the former s econd and third pillars.
2. ARTICLE9: ITS ORIGINS AND MEANING
2.1. ORIGINS OF ARTICLE9
Article9 nds its origin in t he failed Constitutional Treaty2 (Cst Tr.), which formed
the framework for the later Lisbon Treaty.
ArticleIV-438 Cst Tr., contained in Par t IV on general and na l provisions, dealt
with the issue of succession and legal continuity. As the Cst Tr would repeal t he
previous Treaties, it was necessar y to make sure that the new Union would neatly
succeed the previous Union and the Eu ropean Community without legal gaps.
e present European Union also succeeded the European Community, but the
Lisbon Treaty was only amending previous t reaties, not repealing them, so the Union
was continuing as amended. And with regard to the Eu ropean Community, it was
stating t hat “the Union shall replace and succeed the European Community”.
Paragraph 3 of Ar ticleIV-438 Cst Tr. concerned the legal continu ity of the existing
acquis, the continuity of all t he acts which had been adopted on the basis of the
previous Treatie s.
e rst subparag raph of paragraph 3 contained three s entences. It stated rst that
“the acts of the institutions [and other bodies] adopted on the basis of the [prev ious]
treaties (…) shall remain in force”, secondly that “their legal e ects shall be preserved
until those acts are repealed, annulled or amended in implementation of the [ne w
Constitutional] Trea ty” and, nally, that the same should apply for the agreements
concluded between Member States on the basis of the prev ious Treaties.
Article 9 of Protocol 36 was dra ed very much like the two last sentences of t he
rst subparagraph of Article IV-438(3) Cst Tr. It did not however repeat the rst
sentence under which the previous acts “shall remain in force”, because that was
evident: the Lisbon Treaty did not repeal t he previous treaties, it only amended them,
so there could be no doubt that the former acquis would remain i n force.
Article9 of Protocol 36 lim ited itself to dealing with the ac ts adopted on the basis
of the treaty chapters most a ected by the Lisbon Treaty, namely the acts which had
been adopted under the second pilla r, Title V of the former Treaty on European Union
(ex-TEU) on Common Foreign and Security Policy (CFSP), and the acts adopted
under the third pil lar, Title VI of the ex-TEU, on police and judicial cooperation in
criminal matters. is l imitation is clear from the ver y title of Title VII of the Protocol
which expressly refers only to Titles V and V I of the ex-TEU.
2 See Treaty establishin g a Constitution for Europe (OJ C 310, 16.12.2004, p.1).
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