Year XL, 1998, Number 1 - Page 8
The Institutional Reforms of the Amsterdam Treaty
ANTONIO PADOA-SCHIOPPA
1. Introduction.*
The aim of this paper is to set out and evaluate the main institutional changes agreed by the governments of the European Union at the end of the work of the 1996-97 Intergovernmental Conference (IGC).[1] The making of these changes was in fact the most important task faced by the Conference, which was convened in accordance with Article N of the Maastricht Treaty.
Important as they are, let us leave aside, therefore, Treaty changes relating to the extension and specification of the Union’s competence and policies in the sectors of the first pillar (economic and monetary union — employment policies first and foremost), the second pillar (foreign and security policy), and the third pillar (justice and home affairs), as well as the important innovations introduced in the area of fundamental rights and citizenship.
2. Nomination of the Commission.
Major changes have been made to the procedure for nominating the President of the Commission and the Commissioners.[2] The President must, as before, be elected by the “common accord” of the governments of the member states, although provision is no longer made for the prior consultation of the European Parliament. However, the Parliament must, by a vote, formally approve the governments’ nomination (whereas under the terms of the current Art. 158.2, the European Parliament is simply required to give its approval of the whole Commission, at the end of the selection procedure).
The Commissioners, meanwhile, must “by common accord” be selected by the states and by the President of the Commission (CT, Art. 214.2 = 158.2); until now, the President only had to be consulted. With governments forced to take into account the greater powers given to the President in the selection of the Commissioners, the President therefore assumes a more significant role. In turn, the European Parliament, voting at the start of the procedure, will be given a much bigger say in the choice of President; indeed, in order to avoid rejection by the European Parliament of their candidate for the presidency, governments., when deciding who to put forward, will quite probably have no choice but to take into account the Parliament’s political majorities and political leanings.
The requisite of “common accord” among the governments still holds, in other words, the Commissioners must still be selected by unanimity. Likewise, the President must be elected unanimously, despite the difficulties that this procedure (in which each individual government is assigned the right of veto) has generated in the past.
There does perhaps exist a way of overcoming this obstacle: if the European parties forming the two biggest alignments were each to nominate a candidate for the presidency during the run-up to a European election, the outcome of the election itself would determine which candidate should be called to the leadership of the European Commission and, from a political point of view, it would be difficult for governments to object to the instatement of an individual who, through the European election, has been shown to have the support of the electorate.
3. The Number of Commissioners.
Formerly, one of the problems most frequently encountered in the preparation of an IGC concerned the number of Commissioners. There was (and still is) considerable concern over the possible negative effects of increasing the number of Commissioners to reflect the enlargement of the Union (one new Commissioner per new member state). It was felt that, in order to function with the necessary efficiency, a collegial organ of government should not comprise too many members.
On this point, the IGC concluded that, upon the next enlargement of the Union, member states with two Commissioners will have to give up one of these Commissioners.[3] Before this reform can come into force, however, there will need to be a reorganisation of the weighting of votes within the Council to compensate adequately those states (France, Germany, Italy, the UK and Spain) which stand to lose one of the two Commissioners to which they are currently entitled. And this could come about through a new procedure providing either for a reweighting of the votes (so as to reduce the current over-representation of the small states in the Council) or, in relation to decisions in areas where qualified majority voting is to be applied, for the need to reach a dual majority: in other words, both the prescribed majority of the weighted votes[4] and the majority of the peoples represented (or, perhaps, of the number of member states).
The solution adopted by the IGC is far from perfect. Indeed, while we are faced with the prospect of the number of Commissioners rising in excess of 20, the governments have so far conspicuously failed agree on what is the ideal number (which implies, in principle, their rejection of the idea of one Commission member per member state) and on the establishment of new criteria for the weighting of votes within the Council (even though, with the prospect of enlargement of the Union, this is something which they all consider necessary). By being prepared to give up the possibility of nominating a second Commissioner, the larger states have demonstrated a degree of flexibility so far not matched by the smaller states (or at least by some of them).
In this area, the IGC therefore had to settle for a dual deferment: the deferment of the decision over the new voting procedure and the deferment of the more general question of a reform of the institutions of the EU, although with reference to the latter, it has been agreed that, at least one year before the membership of the Union exceeds twenty, a new IGC will be convened to start work on a review of the composition and functioning of the Union’s institutions.[5]
This second deferment can be likened to what happened at Maastricht. It must be pointed out, however, that the Commission has lost no time in approving the proposal to start immediately the negotiations which will lead to the entry to the Union of six new member states; thus, the number of 20 states provided for in connection with the convening of the new IGC may easily be reached sooner than the governments expected. It is clear that it was precisely in order to hurry along this review of the Community institutions (which has been put off for too long) that the Commission formulated its proposal in this way. However, let us not forget that, according to the terms of the Treaty (CT Art. 49 = Art. 0), the unanimous agreement of the Council will be needed in order implement any reforms, and this will be the difficult part.
The first deferment — which as we have seen links agreement over the number of Commissioners with agreement over the reform of the voting system and fixes as a limit the date of the next enlargement of the Union — cannot be considered a short-term deferment, given the considerable time needed for the negotiation and entry into force of future enlargements of the Union.
In this case, as in the case mentioned earlier, the European Parliament could play a decisive role: since the support of the Parliament is required for enlargement of the Union (CT Art. 49 = Art. 0) of which a number of governments, including Germany, are particularly in favour, the Parliament could make the prior reform of the Community institutions (starting with reform of the voting procedures within the Council) a condition for guaranteeing such support.
4. The European Parliament: Size and Electoral Procedure.
In its institutional capacity, the European Parliament (EP) will be partially strengthened by the work of the IGC.
Reference has already been made to its powers in the procedure for selecting the President of the Commission. Meanwhile, as regards the size and composition of the EP, the number of Euro MPs is to be capped at 700;[6] furthermore, as the smaller states are currently over-represented, an undertaking has been made (once again, given the failure of the governments to reach an agreement, a deferment had to suffice) to redetermine how many representatives each member state should have in order to ensure appropriate representation.[7]
The Parliament itself may, with the agreement of the Commission, establish the duties of the members of the EP and the rules governing the exercising of their functions: however, these must be unanimously approved by the Council of Ministers.[8] Thus, not even in the sphere of its own mode of operation does the EP rule supreme.
As regards the objective of a single electoral procedure for European elections, the EP retains its power to develop proposals. Indeed, the new Treaty assigns the Parliament the task of developing a single proposal which may take the form either of a common procedure or of a set of principles shared by all the member states:[9] the latter is the less ambitious option and, furthermore, is not particularly realistic given that it is precisely the lack of common principles (over the alternatives of proportional, semi-proportional and majority systems) which underlies the failure to establish a common electoral procedure. In any case, the EP has no decision-making power in this regard: it can only issue proposals.
5. The Co-decision Procedure.
Two important innovations must be underlined in relation to the legislative role of the EP; these concern: first the co-decision procedure itself, and second, the legislative areas where this procedure applies.
With reference to the first, the co-decision procedure is, in part, modified by the Treaty. The Treaty of Maastricht (Art. 189b) provided for an extremely tortuous procedure for the approval of decisions over which the Council and the EP failed to agree, a procedure which allowed the matter to be passed back and forth as many as 11 times before the EP pronounced a definitive ‘yes’ or ‘no’. The new procedure worked out by the IGC, which provides for a maximum of seven phases, therefore represents a considerable simplification.
Furthermore, the EP is undoubtedly given a more prominent role in the legislative process: 1) the Commission’s initial proposal must immediately be submitted to the EP; 2) passing judgement on the proposal, the EP may introduce amendments, which must then, by qualified majority voting, be approved by the Council. 3) If the Council passes the amendment (or if the EP has not in fact proposed any amendments), the act is adopted; 4) otherwise, the position of the Council (established by qualified majority voting) is put before the EP which can accept it expressly or tacitly (in which case, the act is adopted) or, with an absolute majority, throw it out (in which case, the act is definitively rejected), or, with an absolute majority, propose further amendments. 5) If, with a qualified majority, the Council approves these further amendments, the act is adopted. 6) However, if these further amendments proposed by the EP are not all approved by the Council, a conciliation procedure is initiated which brings together the members of the Council and an equal number of Euro MPs in an effort to reach an agreement. 7) This may lead to the adoption of a single text approved by both organs (the EP by a qualified majority, and the Council by an absolute majority) or to the definitive abandonment of the project.[10]
This new procedure is doubtless an improvement on the previous one, not only due to the elimination of certain phases, but also because it is likely that, in the majority of cases, the procedure will reach its conclusion in the third, fourth or fifth phase. Furthermore, the consensus of the absolute majority of the Parliament is no longer required in order to make amendments to the Commission’s initial proposal and this is another important innovation as it sees the EP operating more like a national parliament. However, the requisite of an absolute majority — notwithstanding the difficulties that can be generated within the EP by political fragmentation and by the very character of the Parliament — still applies in the subsequent phases of the procedure outlined.
The scope of application of the co-decision procedure is extended considerably to embrace sectors in which, under previous Treaties, the cooperation procedure (Art. 189 C) was applied. With respect to the cooperation procedure, the legislative procedure known as co-decision grants the EP more extensive powers (placing it on an equal footing with the Council): this movement from cooperation to co-decision covers 11 areas of legislation.[11] In addition, in four cases, co-decision replaces the simple consultation of the EP which has been the requirement until now.[12] In a further case, it replaces the assent procedure,[13] and in another seven cases, the application of co-decision stems from provisions introduced ex novo by the Treaty of Amsterdam.[14] Altogether, as indicated in the notes, it covers a significant body of legislative areas.
On the other hand, it must be pointed out that, with a few exceptions,[15] all the most important matters on which the EP is, through the consultation procedure,[16] called upon simply to express an opinion, remain the competence of the Council — decisions which, as a rule, can only be made upon the unanimous vote of the Council.[17] Thus, since this long series of fundamental areas remain the sphere of the Council, the EP, the organ which is the direct expression of the will of the people at European level, has failed to acquire new legislative powers, and the basic contradiction usually termed the “democratic deficit” remains unresolved.
6. The Powers of the Council of Ministers.
There is no doubt that the Council is the organ most favoured by the IGC. It is also true to say that, being extended to 13 states (which do not include the United Kingdom and Ireland), the Schengen Agreement[18] becomes a “Community” agreement. However, as far as both the second and the third pillars are concerned, the new Treaty endorses the virtually exclusive powers assigned to the Council by the Maastricht Treaty, and the corresponding limitation on the powers of the Commission (to say nothing of the EP which, at best, has merely to be kept informed).
Requiring only the prior consultation of the EP, even the various new policies decided at Amsterdam (relating to the free movement of people, immigration, right of asylum,[19] social policy[20] and employment[21] to give just a few examples) provide for decision-making power only at Council level. The rule that the most important Council decisions must be reached unanimously is consistently applied and, with the exception of the employment strategies to be delineated by the Council, applies to all the cases cited here (including the Schengen Agreement).[22] As far as the former is concerned, the EP is merely consulted and, unusually, the qualified majority voting system is applied within the Council.[23]
In a number of provisions, the IGC establishes the principle of majority decisions within the Council. In several cases, the unanimity rule provided for by the previous Treaties is replaced by the qualified majority voting system,[24] and in a further dozen cases, policies brought in by the new Treaty can also be adopted if they are supported by a qualified majority: this applies to the question of sanctions for violation of fundamental rights,[25] to certain categories of joint action within the sphere of foreign and security policy,[26] and to issues connected with the single market and monetary union[27] which are generally (although not always) the areas in which the EP is conceded the power of co-decision.[28]
In addition to all this, the Treaty of Amsterdam introduces, in the context of the Council’s decision-making process, a new and vastly important institutional measure: termed an “abstention” procedure, it allows one or more member states to abstain from applying certain decisions relating to foreign or security policy, without however preventing the other states of the Union from committing themselves to such decisions.[29] The procedures involved will be examined in more depth further on, in the section dealing with flexibility.
The importance of this new measure lies in the fact that, in certain conditions, it provides a means of overcoming the deadlock which can be generated by the unanimity rule, removing from the dissenting state or states the power of veto which they would otherwise be in a position to exercise. This does not mean that the right of veto is abolished, however, as each state retains the right to decide to vote against a motion, rather than simply abstaining from it.
In reference to the second pillar, certain decisions which implement common strategies or positions are, as illustrated, subject to qualified majority voting.[30] However, in this case too, a let-out clause is provided for which allows any member state to oppose such decisions on the basis of “important and stated reasons of national policy”: when this happens, the decision is referred to the European Council, its adoption depending on a unanimous vote by the same.[31]
7. The Court of Justice.
The Court of Justice is to assume a significantly larger role, with its competence extended, within limits established by the new Treaty,[32] to judicial cooperation in criminal and police matters. The Court also acquires judicial power in matters of immigration, even though certain limits again apply,[33] and in matters relating to the action of the Union’s institutions in the areas of human and fundamental rights.[34]
8. Flexibility and Closer Cooperation.
The so-called “flexibility” hypothesis constitutes a new area which merits particular attention and which involves a procedure allowing a number of states not representing the full membership (but which must number at least eight of the fifteen) to cooperate more closely on certain matters within the framework of the Union. Actions decided as a result of this procedure will apply only to those states which legitimately undertook this cooperation at the outset, and the other states will have no grounds for impeding the implementation of the relative decisions.[35]
It is important to consider carefully two clearly distinct aspects of this new concept of flexibility: first, the preliminary conditions laid down for setting the procedure in motion and second, the rules determining the validity of the decisions reached.
The new Treaty in fact lays down certain conditions which must be fulfilled before this procedure for closer cooperation can be set in train: as well as establishing eight as the minimum number of states which must be in favour, the objectives of the cooperation arrangement must coincide with the objectives of the Union, preserve the basic principles of the Treaties and respect the framework of the Community’s institutions; cooperation can only come about if it represents the last option open, once the lack of support on the part of the other states has been ascertained. Finally, the initiative, which must remain open to the other states, must not by its nature undermine the acquis communautaire.[36]
The rules determining whether or not the new procedure of flexibility may be adopted differ in different areas of EU competence.
In the sphere of the European Community (the first pillar), the decision to authorise recourse to the flexibility procedure must, upon proposal by the Commission, and following consultation of the EP, be reached by the Council through the application of qualified majority voting.[37] But provision is made for a “let-out” clause: should any state choosing not to participate in the cooperation arrangement consider it necessary, for important and stated reasons of national policy, to oppose the request for authorisation presented, by a qualified majority of states which are in favour of it, the authorisation of the cooperation arrangement will not be put to the vote,[38] and thus the procedure will not be adopted.
As regards the competence of the Union in matters of police and judicial cooperation (third pillar), the Treaty establishes that moves for closer cooperation should start at Council level; in this case, the Commission is required merely to express an opinion and the European Parliament simply has to be kept informed.[39] Here again, any member state can, on the basis of important and stated reasons of national policy, block this procedure.[40]
A similar procedure is adopted in reference to the Union’s competences in the area of foreign and security policy (second pillar): as outlined earlier, dissenting states can abstain rather than oppose. When the Treaties demand a unanimous vote (second pillar decisions usually have to be reached unanimously), the vote or votes of the abstaining state or states — providing that, in accordance with Art. 148.2, they represent overall a number of votes not in excess of one third of the total: thus no more than 25 out of 76 — are not counted.[41] Moreover, the provisions of this article indicate clearly that dissenting states are free to decide whether to exercise their right to abstain (thus allowing the other states to proceed), or whether instead to oppose the proposal, thus blocking the decision. If a dissenting state opts for abstention, the decision reached by the other states would, in accordance with the conditions and limits already mentioned, commit the Union even though the abstaining states would be under no obligation to apply it.[42] However, also in cases where provision is made for a possible decision by majority, it is equally possible (as illustrated above) that states may oppose the decision on the basis of stated reasons of national policy.[43]
Thus, as far as all three pillars are concerned, the flexibility arrangement can be adopted only if no state opposes it in the preliminary stages. However, the power of the right of veto has, in that it can only be exercised on the basis of “important and stated reasons of national policy”, been reduced. It is therefore foreseeable that, at least in some of those cases in which a state would previously have exercised its right of veto without being under any particular obligation to explain its motives, states will in future find it more difficult to exercise this right, especially when they can produce no real or explicable “important and stated reasons” for doing so.
Turning to the second aspect, the procedural rules governing the implementation of flexibility arrangements, the Treaty determines, first of all, that while all member states can be present and take part in the discussions, only the states in favour of the closer cooperation arrangement can actually vote on the decisions relating to it: in those cases in which the Treaties demand unanimity, this will be taken to mean unanimity of the states actually joining in the initiative. On the other hand, in cases where action can be decided by a qualified majority, the said majority will be calculated on a proportional basis in accordance with the provisions of Art. 205.2 = 148.2.[44] Thus, the authors of the Treaty appear to intend that the number of votes corresponding to the states choosing not to support the cooperation initiative should first be subtracted from the overall total of 76 weighted votes, and that the qualified majority should be worked out on the basis of a proportion between the total number of votes corresponding to the participating states and the number of votes in favour of the action (which in turn corresponds to the proportion between the overall total of 76 votes and the 54 votes required in accordance with Art. 148.2).[45] From this, it emerges clearly that the new procedure is applicable not only in areas where the Treaties make provision for decisions by majority, but also in areas where they demand unanimity. Having said that, there are in fact specific rules which regulate the different areas.
If the closer cooperation initiative is undertaken within the framework of the European Community, (that is, within the sphere of the first pillar), it cannot, as laid down in the new Treaty, be extended to areas in which the Community has exclusive competence.[46] This limitation reduces enormously the impact of the new procedure since central areas like the free movement of goods, services, persons and capital are excluded from it.[47] Likewise, the area of citizenship is expressly excluded.[48] It is furthermore stressed that cooperation must neither alter the policies, actions and programmes established by the Community, nor create discrimination among member states.[49]
With regard to cooperation in the areas of policing and justice (third pillar), where qualified majority voting applies, at least 62 favourable votes (cast by a minimum of 10 states) are necessary in order for a decision to be taken.[50] This implies that decisions requiring unanimity must also require the participation, and unanimous consensus, of 10 states or more (representing no fewer than 62 votes in favour).[51]
The same criteria (at least 10 states voting, at least 62 votes in favour) apply for the adoption of decisions in the sphere of foreign and security policy wherever the new abstention procedure is applied.[52]
In principle, the scope of the new flexibility provisions is remarkable. The procedure introduced by the new Treaty allows important decisions to be taken, within the framework of the Community, by a proportion of its membership. However, two major limitations remain, reducing considerably the positive potential of new procedure: the possibility for all states to exercise their right of veto in the preliminary stages, and the failure to extend the provisions to areas in which the Community has exclusive competence.
9. Subsidiarity.
The Treaty devotes a special protocol to the principles of subsidiarity and proportionality[53] — the latter limits the actions of the Community to that which is strictly necessary to achieve the objectives of the Treaties.
In reference to subsidiarity, precise criteria are introduced. The Commission is called upon to render explicit the coherence of its proposals with the principle of subsidiarity, with the restriction of legislative activity to the minimum, with the margins of freedom which states should be allowed in the application of the directives, and so on.
The protocol also establishes that the principle of subsidiarity, as expressed in the Treaty, is not applicable in areas where the Community has exclusive competence, only in areas of joint competence.[54] This distinction appears questionable as subsidiarity seems to be equally applicable to decisions and laws in sectors which are the exclusive competence of the Community, especially in view of the mechanism of the directives and the optimum relationship between common principles and national specifications; the excess of regulation at European level could, in part, be corrected through recourse to the principle of subsidiarity.
What is important, however, is that the protocol stresses one of the fundamental features of subsidiarity which was not brought out in the Maastricht Treaty, i.e., its capacity to work in two directions. Indeed, depending on the circumstances, the principle can represent the basis for weakening the role of the higher level within a political system when effective action is possible at a lower one, and vice versa, can strengthen the role of the higher level when the lower one is found to be insufficient for the pursuit of given ends.[55]
10. Conclusions.
Several aspects of the new Treaty, positive and negative, which, in reference to the institutional reform of the European Union, have been dealt with by the present author on a number of occasions in recent years,[56] can by way of a conclusion be underlined here.
Despite being heralded by the Treaty of Maastricht, there has still been no definition of a hierarchy of rules enabling a distinction to be drawn between those of a fully legislative nature and those which have a regulatory function (the aim being to restrict intervention of the EP to the first of these). The greater involvement of the national parliaments in the development and approval of the Commission’s proposals,[57] decided by the Conference, may help to render deeper and more effective the contribution of the individual governments to the construction of common but not necessarily uniform policies-providing, however, that no further level of decision-making is added to what is already a complex process at Community level.
The failure to identify a new system of weighting the votes, one which does not favour so overtly the smaller states, and the failure to determine the ideal number of Commissioners are, in turn, due to the failure to reach unanimous agreements, even though all the governments agree on the need to do just this; hence the deferment of these matters to a new Conference. It will not, however, given the existing rules on reform of the Treaties, be easy to overcome this state of impasse.
There are different and deeper rooted reasons for the failure to achieve other objectives. While it is true that, with regard to co-decision and the nomination of the Commission, the role of the European Parliament has been strengthened considerably, the co-decision procedure, despite being much improved in the new Treaty (and this is extremely important), is still not extended to the most significant areas which, on a decision-making level, are still the exclusive province of the Council. In other words, the gap known as the democratic deficit still remains to be filled. The connotations of this are more serious if we recall that most of the new economic legislation applied by the states of the European Union stems from Community legislation. Furthermore, the fast-approaching launch of monetary union will, being a fundamental step towards economic union, render ever more pressing the need for decisions relating to the EU’s economic policy to be joint decisions, taken democratically. It is absurd to think that countries can, in the long term, remain linked to an order in which monetary policy is managed at supranational level, but in which there is no possibility of dealing with questions relating to economic policy at the same level. Even though the Community is, by the Treaties, granted the necessary competence, it is obstacled by the decision-making process at European level which is, in too many areas, handicapped by a lack of democratic control over decisions, (which only the European parliament is able, through co-decision, to overcome), and by the blocking of controversial decisions through the exercising of the right of veto at Council level.
The decision-making processes operational within the Council of Ministers have undergone only minor alterations. Unanimity is still required for decisions relating to the most important areas within the first pillar, and this even more markedly the case with reference to the second and third pillars. It hardly needs to be underlined that this procedure has the effect of blocking any decision to which even just one state is decisively opposed, thus producing deadlock in many situations in which it would be preferable to reach decisions; and enlargement of the Union can only render this situation more acute. And yet, as envisaged intelligently by the EEC Treaties of the 1950s, provision could easily have been made for a process of gradual transition from unanimity to majority voting in a series of first, second and third pillar areas.[58] Equally serious is the perpetuation of the requisite of the unanimous consensus of the Council and the unanimous ratification by the member states within the process of the revision of Community treaties: the provision contained in Art. N (ex Art. 236) of the Treaty represents a real obstacle to all future reforms, an obstacle which sooner or later must be acknowledged and removed.
Certainly, the new procedures of abstention (in foreign and security policy) and flexibility, or closer cooperation (in the areas of the first and third pillar) will allow measures to be taken by a number of states not representing the full membership, and without the need for unanimous agreement among the states. This measure, which was already introduced by the Maastricht Treaty in relation to the areas of the single currency and social policy and which is widely extended here, represents an important step in the right direction. Even in this regard, however, the governments, wary of moving forward too fast, introduced a so-called “emergency brake” clause which allows any member state, on the basis of “important and stated reasons of national policy” to oppose, and thus block the implementation of the new procedures. Furthermore, no real innovations are introduced in relation to the need for unanimity: decisions taken by states involved in a closer cooperation arrangement must be reached by all the states participating in such an arrangement. Thus, the right of veto raises its head once again, or in other words, continues to prevail on all levels.
In conclusion, we are still faced with two major problems: the democratic deficit resulting from failure to extend the EP’s power of codecision and the inability to reach decisions due to the maintenance of the national governments’ right of veto. These problems can be considered the obstacles in the way of the establishment of an adequate institutional and constitutional order for the European Union, and likewise as obstacles preventing us from reaching the threshold of irreversibility in the process towards the unification of our continent along federal lines: a process begun almost hal fa century ago and which has already produced astonishing results in the economy and in the economic wellbeing of the people of Europe.
When faced with the question of how these limits can be overcome, it is clear, from the experiences of recent years, that asking governments to renounce their right of veto and their exclusive legislative powers is asking too much.
Unless exceptional circumstances prevail, such as those of the immediate post war period, which are no longer present today, a power will never, by the very “nature of things”, be prepared spontaneously to impose limits on itself. The drive needed for this to come about can originate only from a well informed and mobilised public opinion, from pressure exerted by local and regional communities, and from the intervention of the only organ which can, legitimately, represent the people of Europe: the European Parliament. The Parliament could establish the launch of a new constituent phase, one in which it assumes an active role in the process of institutional reform, a condition for guaranteeing its support for enlargement of the Union.
In the light of the diffident innovations introduced by the Treaty of Amsterdam, the European Union still lacks a proper constitutional structure. And with the prospect, undoubtedly positive, of enlargement of the Union to embrace the countries of central-eastern Europe, the Community appears from an institutional point of view, to be running the serious risk of regressing rather than evolving.
*Abbreviations: TA = Treaty of Amsterdam; CT/ED = the consolidated text of the Treaty on European Union; CT/EEC = the consolidated text of the European Economic Community Treaty (see Note 1); IGC = Intergovernmental Conference; EP = European Parliament.
[1]This presentation of the results of the summit of the European Council in Amsterdam (16-17 June, 1997) is based, where necessary, on the French version (edited by the European Communities) of the text of the new Treaty (Treaty of Amsterdam, Luxembourg 1997, pp. 144; hereinafter, TA), although reference will, for the most part, be made to the consolidated text of the Community Treaties, edited by the European Communities (Consolidated Treaties, Luxembourg 1997, pp. 168: hereinafter, CT/EU and CT/EEC, in which the new regulations passed in Amsterdam are inserted in their appropriate positions within the systematic order of Treaties on European Union and on the European Economic Communities and numbered according to a new system for numbering the articles of each of the two Treaties. Original reference numbers are given alongside the new ones.
[2]CT/EEC, art. 214.2/158.2.
[3]Protocol on enlargement, art. 1 (TA, p.lll).
[4]Protocol on enlargement, art. 1 (TA, p.lll).
[5]Protocol on enlargement, art. 2 (TA, p.lll).
[6]CT/EEC, art. 189/137.
[7]CT/EEC, art. 190.2/138.2.
[8]CT/EEC, art. 190.5/138.5.
[9]CT/EEC, art. 190.4/138.4.
[10]CT/EEC, art. 251.2-6 (replaces art. 189 B).
[11]More precisely (here again we refer, using both the new and the old reference numbers, to the text of the articles of the CT/EEC): prohibition of discrimination on the basis of nationality (CT/EEC, art. 2/6); transport policies (CT/EEC, art. 71.1/75.1); sea and air transport (CT/EEC, art. 80.2/84.2); aspects of social policy (art. 2.2 of the relative protocol); European Social Fund (CT/EEC, art. 148/125); job training (CT/EEC, art. 150.4/ 127.4); trans-European networks (CT/EEC, art. 156/129d); European Fund for regional development (CT/EEC, art. 162/130e); technological research and development (CT/EEC, art. 172/1300); the environment (CT/EEC, art. 175.1/130s.1); development cooperation (CT/EEC, art. 179.1/130w.l). It is to be remarked that not all the sectors mentioned come under the procedure of co-decision, only those parts of each which were, until now, subject to the procedure of cooperation, according to the indications contained in the articles and paragraphs of the Maastricht Treaty specified above.
[12]Public health, organ transplants and veterinary and phytosanitary measures (CT/EEC, art. 152.4/129.4 already art. 43); social security regulations for application to immigrant workers from other member states (CT/EEC, art. 42/51); right of establishment of overseas citizens (CT/EEC, art. 46/56.2); regulations on professional work and self-employment (CT/EEC art. 47/57.2).
[13]The right of citizens to move freely within the European Union (CT/EEC, art. 18/8a.2).
[14]Employment incentives (CT/EEC, art. 129/109R); social policy, equal opportunities (CT/EEC, art. 141.3/119.3); transparency (CT/EEC, art. 255.2/191a.2) fraud damaging to the financial interests of the Community (CT/EEC, art. 280.4/209a.4); customs cooperation (CT/EEC, art. 135/116); statistics (CT/EEC, art. 285.1/213a.l); the protection of personal data (CT/EEC, art. 286.2/213b.2).
[15]Following the innovations listed above, the simple consultation of the Parliament is now required in the following cases (here, for the sake of brevity, we quote the articles giving only the old reference numbers): active and passive electorate for council and European elections (art. 8b); completion of the provisions on citizenship (art. 8e); customs duties (art. 14.7); serious effects on employment in the field of transport (art. 75.2); sea and air transport (art. 84.3); harmonisation of fiscal laws (art. 99); the reconciliation of national legislation (art. 100); the movement of citizens of non Union states until 1995 (art. 100c.1); specific measures to guarantee competitiveness in industry (art. 130.3); actions outside the Funds in the sphere of economic and social cohesion(art. 130b); research and technological development (art. 130n-130o); decisions and measures relating to the environment and to town and country planning (art.130s.2); mode of execution of regulations passed by the Council (art.145); categories of actions brought before the Court of First Instance (art. 168a.2); alterations to the statute of the Court of Justice (art. 188); election of the Court of Auditors (art. 188b); system of own resources which member states are recommended to adopt (art. 201); auditing, control of responsibilities and rules relating to implementation of the Community budget (art.209); international agreements (art. 288§3); implicit powers of action (art. 235); actions relating to the social security and representation of workers and other measures in the sphere of social policy (Encl. I/14 Eleven-member agreement on social policy, art. 2.3); foreign and security policy (art. J.7); justice and home affairs (art. K.6). In the area of monetary union, among the cases which require a unanimous decision on the part of the Council, the consultation procedure is implemented in the following: excessive budget deficits (art. 104c.14); exchange rates for the ECU (art. 109.1); election of the President of the European Monetary Institute (art. 109f.1): other tasks of the EMI (art. 109f.7).
[16]Only in the following cases, which the Council may decide by majority voting, do the Treaties require that judgement be passed by the European Parliament through implementation of the consultation procedure (again only the old article reference numbers are given): suppression of restrictions on the freedom to offer services (art. 63); provisions regulating competition (art. 87); aid given to states (art. 94); the movement of citizens of non EU countries (art. l00c.3); specific technological research and development programmes (art. 130i.4); measures concerning the environment and town and country planning in relation to which it has been (unanimously) agreed to proceed on the basis of majority decisions (art. 130s.2). On the question of monetary union, among the cases which the Council may decide by qualified majority voting, the consultation procedure must be implemented in relation to: adoption of the statute of the European System of Central Banks (art. 106.6), the rules governing consultation, by the Council, of the European Monetary Institute (art. 109f.7); decisions relating to the start of the third phase (art. 109j.2 and 4); and the abrogation of derogations (art. 109.k.2).
[17]See note 12, above.
[18]The protocol on the Schengen Agreement (TA, pp.93-96).
[19]CT/EEC, art. 67/art. 73 O (p. 65).
[20]CT/EEC, art. 137.3/118 (p. 102).
[21]CT/EEC, art. 128.2/109 Q (p. 97).
[22]The protocol on the Schengen Agreement, art. 2.1 (TA, p. 94).
[23]CT/EEC, art. 128.2/109 Q.
[24]Right of establishment of overseas citizens (CT/EEC, art.46.2/56.2); scientific and technological programmes (CT/EEC art. 166/130i.1-2); joint technological research and development programmes (CT/EEC, art. 172/130o).
[25]Suspension of the Treaty conditions for member states which violate the principles of democracy, human rights and fundamental freedom (CT/EU art. 7/F.1).
[26]Implementation of joint strategies or actions in the area of foreign and security policy (CT/EU art. 23.2/J.13.2, p. 20). Procedural questions relating to foreign and security policy are decided on the basis of a simple majority of the members of the Council (CT/EU art. 2J.3/J.13.3).
[27]Guidelines on employment (CT/EEC, art. 128.2/109 Q); incentives for employment (CT/EEC, art. 129/109 R); the workplace and social exclusion (CT/EEC art. 137/118.2); equal opportunities (CT/EEC, art. 141/119.3); health (CT/EEC, art. 152.4/129.4); transparency (CT/EEC, art. 255.2/191a.2); fraud (CT/EEC art. 280.4/209a.4); statistics (CT/EEC, art. 286/213b); overseas countries (CT/EEC art. 300.1/228.1); customs cooperation (CT/EEC, art. 135/116).
[28]See Note 14,above.
[29]CT/EU. art. 23.1/J.13.1.
[30]See Note 26, above.
[31]CT/EU, art. 23.2/J.13.2.
[32]CT/EU, art. 35/K.7; art. 40/K.12; art. 46/L.b.
[33]CT/EEC, art. 68/73 P.
[34]CT/EU, art. 46.c/L.c. It is not clear whether this refers only to Community institutions, or also to national institutions.
[35]CT/EU, art. 43.2/K.15.2.
[36]CT/EU, art. 43.1/K.15.1.
[37]CT/EEC, art. 11.2/5.a.2.
[38]CT/EEC, art. 11.2/5.a.2.
[39]CT/EU, art. 40.2/K.12.2 (1st parag.).
[40]CT/EU, art. 40.2/K.12.2 (2nd parag.).
[41]CT/EU, art. 23.1/J.13.1.
[42]CT/EU, art. 23.1/J.13.1.
[43]CT/EU, art. 23.2/J.13.2.
[44]CT/EU, art. 44/K.16.
[45]For example, the votes of the states participating in the cooperation arrangement amount to 59, a qualified majority of 42 votes would be required (76:54=59:x; therefore, 54*59:76=41.9); if the votes of the participating states totalled 46, a majority of 33 votes would be needed (76:54=46:x; therefore 54*46:76=32.6).
[46]CT/EEC, art. 11.1.c/5A. 1.a.
[47]A specific investigation is required in order to determine where the closer cooperation procedure provided for by the flexibility clause is in any case applicable (i.e. in which areas of the first pillar).
[48] CT/EEC, art. 11.1.c/5A. 1c.
[49]CT/EEC, art. 11.1.b; 1.e (5A. 1.b; 1.e).
[50]CT/EU, art. 40.2/K.12.2; the weighting criterion is that provided for by art. 205.2/148.2 of the CT/EEC.
[51]This conclusion is, in effect, borne out by the referral — art. 43.l.h/K.15.1.h of the CT/EU, new title on flexibility — to the “additional criteria” of art. 40/K.12 of the CT/EU and 11/5A of the CT/EEC.
[52]CT/EU, art. 23/J.13.2.
[53]Protocol on the application of the principles of subsidiarity and proportionality (TA, pp. 105-108).
[54]Protocol cit. Note 53, art. 3.
[55]Protocol cit. Note 53, art. 3 (“[the principle of subsidiarity] allows an intervention on the part of the Community, within the limits on the powers of the same, to be strengthened when circumstances render this necessary, and vice versa, to be limited or suspended when such an intervention can no longer be justified”).
[56]A. Padoa-Schioppa, “Dalla CEE all’Unione europea: una riforma istituzionale necessaria”, in Il Federalista, XXXI (1989), pp. 267-76; Idem, “Notes on the Institutional Reform of the EEC and on Political Union”, in The Federalist, XXXIII (1991), pp. 62-72; Idem, “Sur les institutions politiques de l’Europe nouvelle”, in Commentaire n. 58 (1992), pp. 283-92; Idem, “Verso la costituzione europea, principi e procedure”, in Quale federalismo per quale Europa, Brescia 1996, pp. 425-46.
[57]Protocol on the role of the national parliaments (TA, p. 113).
[58]At least in one case, the new Treaty makes provision for this: in the area of immigration, asylum and the movement of persons. After a transitory five-year period, certain measures may, after consultation of the EP, be decided by the Council by a qualified majority, or through application of the co-decision procedure. (CT/EEC art. 67.3-4/73.o.3-4: with reference to the measures covered by the CT/EEC art 62.2/73 J).
