The Amsterdam Treaty and The European Union
The Amsterdam Treaty and The European Union
The creation of the European Community (EC) and the European Union (EU) involved the establishment of a new legal order promoting the process of European integration within member states; economically, monetarily, politically and legally the EU strives through the treaties to evolve a unitary state1. Changes in EU institutional and legal system are normally realised as a result of amendments in the constitution of the EU, its very basic treaties. The EU does not have a formal document as its constitution, presently it is developed 'primarily through processes of international negotiation which produce treaties, supplemented by the interpretative role of the Court of Justice'.2
In terms of the Single European Act (SEA) there were 5 basic provisions3. The first was to amend the EEC treaty to achieve the objectives of a European Parliament (EP) white paper; to define the Internal Market under Article 7a EC treaty and to set in place procedures for the free movement of persons, goods etc by 1993; to set up the new law-making powers of the Council acting by a qualified majority vote (QMV) in co-operation with the European Council necessary to attain the goals set out in Article 7a; to introduce the new legislative co-operation procedure in the European Parliament which would force a second reading of any legislation.(Article 189 EC treaty).
The second provision of the SEA was to consolidate de jure some of the extensions of competence that had taken place de facto since the 1970's within the EC4. For example, an amendment of Article 6(2) EC Treaty allowed the Council acting by a QMV to, in co-operation with the EP, introduce rules to prevent discrimination on the grounds of nationality, this constituted an evolution in the principle of the free movement of persons.
Specific competence's such as policies' in relation to regional development, research in technology development and the environment evolved in the 1970's although these were also further amended in the Maastricht Treaty Articles 13 A-T.
Institutionally, the Court Structure of the EC was developed as a result of the SEA- the ever increasing workload of the ECJ lead to the creation of the Court of First Instance (CFI) which began its work in 1989. This amendment was attached to Article 168 EC Treaty (which created the ECJ) as sub-section (a). Article 3 of Decision 88/591 set out the specific caseload of the CFI which comprised complete jurisdiction of all cases brought by 'natural and legal persons'.
The SEA developed the role of the EC on the international stage; Title 1 of the SEA consolidated and institutionalised the activities of the European Council, until then a relatively 'informal gathering'5. The Council was now required to meet at least twice a year and foreign ministers and a member of the Commission assisted the representatives from each member state.
Politically, Title 2 of the SEA put Europe's Political Co-operation policy (EPC) on a 'much firmer footing'6; although this system was essentially intergovernmental in nature where it involved the European Council there were links with the Community's institutional structure; - for example, the EPC was chaired by whichever Minister of Foreign Affairs of the country who held the presidency of the Council. The Commission was fully associated with the work of the EPC under Article 30(3)(b) of the SEA; the Presidency had to inform the EP of foreign policy issues arising within the EPC.
However, the SEA was criticised due to the clauses 'submerged in a flood of verbuse vagueness' of its wording, the derogation it allowed member states' and its assertions that completing the internal market by 1993 was a new goal for the EC7. Pescatore8 remarked that, the SEA was 'fundamentally deceptive', it ignored the progress already made towards an internal market and set no legal obligation for it to be achieved before 1993. Pescatore argued that the SEA conjured 'elusive notions' on the 'unilateral protective measures by member states' on subjects like safety and protection of the environment under ...
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However, the SEA was criticised due to the clauses 'submerged in a flood of verbuse vagueness' of its wording, the derogation it allowed member states' and its assertions that completing the internal market by 1993 was a new goal for the EC7. Pescatore8 remarked that, the SEA was 'fundamentally deceptive', it ignored the progress already made towards an internal market and set no legal obligation for it to be achieved before 1993. Pescatore argued that the SEA conjured 'elusive notions' on the 'unilateral protective measures by member states' on subjects like safety and protection of the environment under Article 36. He argued that the SEA would disturb free trade relations with other states.
Contrary to this, Shaw argued that the SEA 'revitalised the fortunes of the community'9, which before 1985 had been in a 'crisis of legitimacy'10, it could never 'deliver on its grandiose aims'11. Further progress towards the internal market in 1993 was impressive.
This was a result of streamlining the council's 'decision-making machinery'12, to allow that only member of the European Council had to call for a vote on any measure. There was also a new willingness not to rely on the Luxembourg Accords that brought on an acceleration in the EC legislative evolution. During 1986-1992, the EP made full use of the limited powers it had been conceded by the SEA maintaining its 'fruitful alliance'13 with the Commission; the EP increasingly exercised more influence over the whole EC legislative procedure.
Progress towards the TEU was rapid; President Mitterand called for a 'European Social Space' in 198914. The Community Charter of Fundamental Social Rights for Workers represented member states' (except the UK) intentions to take full account of the social dimension of the EC in implementing the SEA.15
Although the SEA provided for progressive realisation of the European Monetary Union (EMU), the Intergovernmental Conference (IGC) led to Chancellor Kohl declaring in 1990 the need for a 'political union where significant competence of economic and democratic decision-making was lost to an increasingly democratic input at community level'.16
The objectives of the TEU included 'establishing the EU, and amending and further expanding the scope of the EEC Treaty, renaming the EEC the EC'17; this was done through creating a three pillar structure within Europe giving a 'single legal framework for the three European Communities' to achieve further integration18 and adding two other pillars to the EU. The first pillar comprised the EC, EURATOM and ECSC now known as the EU, a supranational body under Article A of the TEU. The other pillars were concentrated on the Common Foreign and Security Policy (CFSP) and co-operation in the field of Justice and Home Affairs (JHA), these new competences were legislated under Title VI TEU and are intergovernmental in nature, they,
"Covered areas which are sensitive to national sovereignty, where the member states have wished a lower degree of political integration"19
The TEU brought the concept of an 'ever closer union among the peoples of Europe',the principle of subsidiarity and legislative 'simplification'20 The other pre-cursors of the TEU included citizenship within the union and the non-justiciable guarantee of the protection of fundamental rights ,to respect the national identities of the constituent states21, trans-European networks, visa policy for the crossing of external frontiers of member states by third country nationals and the powers of the council22,EMU, sustainable environmetal growth, a high level of employment and a raised standard of living.23
However, very soon after the signature of the TEU, its achievements were overshadowed by ratification problems in countries such as Denmark and the UK. Up until 1996, many of the provisions in the TEU had still not been implemented for example, the third pillar where increased political co-operation in the field of Justice and Home Affairs is unpopular with some Member States. The types of 'joint action' foreseen by the Communities in 1992 has been 'disappointing' in terms of the fact that many far reaching proposals (for example on xenophobism) have been vetoed by the United Kingdom.24
Nevertheless, contrary to many expectations25 the EMU was established at the beginning of January 1999 although, it will not appear as hard currency until 2002: all the economic contingencies set out in the TEU have been met and indicate a greater co-operation between the 12 member states. But, to an extent, 'elements of diversity and fragmentation are penetrating into the EU legal order'26: the abstention of the UK, Ireland and Denmark from the EMU raises the possibility of a dual-speed Europe where some Member States surrender more of their political sovereignty to the EU and where others remain only as awkward neighbours.
Therefore, it was clear at the Intergovernmental Conference in 1996, which was provided for in the TEU, that there was a need for further amendment to the treaties: an agenda was set for Amsterdam in 1997 to bring the 'EU closer to its citizens',to co-ordinate employment policies, to have more democratic and effective institutions (especially in the light of possible future enlargement)and to strengthen the Union's capacity for external action through its common foreign and security policy. 27 The main functions,therefore of the Amsterdam Treaty was to remedy the inadequacies of the TEU and ensure that the EU could function with considerably more than 15 states.28
In light of this agenda, the Treaty of Amsterdam although not yet ratified has achieved considerable 'modernisation' in some areas of EU policy; politically, the three pillars structure of the European Communities has been simplified- Common visa, Immigration and Asylum Policy have been moved from the intergovernmental 3rd pillar of Maastricht to the supranational 1st pillar of the EU; politically, this extends the democratic procedures of the Commission, Council and Parliament and legally this extends the jurisdiction of the ECJ.
Politically, there are strengths to the Amsterdam Treaty, such as the development of the role of the EP so it has equal legislative power with the Council; in areas relating to the EMU the co-decision procedure will apply. Secondly, the advances made in the field of Justice and Home Affairs introduce new legal instruments to replace conventions of limited value under Article K.6(2), called the 'Framework decision' which significantly develops the effectiveness of the European Legal System. The incorporation of the Schengen Agreement into the community legal order provides for unification of two parallel legal systems and some repatriation of powers to the national governments.
In terms of citizenship within the EU, the Treaty of Amsterdam has focused on the right of the individual for example, banning the discrimination of people on the grounds of nationality and gender etc. The Treaty has introduced specific criteria whereby respect for human rights is an explicit pre-requisite of membership of the EU.
However, the Treaty has shortcomings; politically, it has failed to deal with the unavoidable issue of the Accession of other member states- the question of the size of the Commission pending enlargement has been ignored.29 Also, the derogation of the UK, Ireland and Denmark over free movement weakens the integrity of the EU and confuses the citizen.30 Thirdly, the retention of the unanimity vote for too many decisions hampers the interinstitutional effectiveness brought by the Qualified Majority Vote. Politically, the endless debate concerning the reweighting of votes and the number of Commissioners restricted any developments in this area.31
The issues and content of the Amsterdam Treaty were overshadowed by simultaneous debates on the EMU, the mass media coverage of some issues playing down the achievements of this Treaty.
Therefore, can the enlargement of the EU be anticipated without apprehension? It is true to say that the third large scale revision of the treaties has significantly amended the institutions, in an effort to prepare for the accession of other countries. However, perhaps what is significant about this treaty is the impetus on respect for human rights and serious implications if a member state breaches the ECHR. It is unfeasible to expect the accession of states such as Turkey, Cyprus and Yugoslavia with their abuse of these fundamental rights into the 21st century.
Once the Amsterdam Treaty comes into force the significant legislative, political and social resolutions made will truly bring the 'citizen closer to Europe', simplify the legislative procedures of the EU through a wider adoption of the QMV and the co-decision procedure, perhaps it will also promote the integration of member states sovereignty to a further extent within the EU.
Bibliography
Law of the European Union, Jo Shaw, Second Edition, Macmillan.
Unions of States, Murray Forsyth,
Basic Community Laws, Rudden and Wyatt, Sixth Edition, Oxford University Press.
European Community Law: Texts and Materials, Chris Harding and Anne Sherlock, 1995, Longman,
Amsterdam: What the Treaty means, Edited by Ben Tonra, 1997, Institute of European Affairs.
The Treaty of Amsterdam: Text and Commentary, Edited by Andrew Duff, 1997, Sweet and Maxwell.
Booklets:
The Court of Justice of the European Communities.
How does the EU relate to the world?
How does the EU work?
The European Parliament.
The Amsterdam Treaty and the European Parliament.
Promoting a Social Europe.
All available from the official publications unit/ the Office for Official Publications of the European Communities, Luxembourg.
Lecture Notes, October- December, Chris Harding and Stephen Skinner.
Cases cited
41/74 Van Duyn v Home Office [1974] ECR 1337
Internet Addresses
http://www.law.harvard.edu/Programs/Jean
Law of the European Union, Shaw, p3
2 ibid,p102
3 Law of the European Union, Shaw, p42
4 ibid,, p43
5 Law of the European Union, Shaw, p44
6 ibid
7 ibid
8 Pescatore, 1987, 'Some critical remarks on the Single European Act', 24 CMLRev 9
9 Law of the European Union, Shaw, p46
0 ibid
1 ibid
2 ibid
3 ibid
4 ibid
5 "Promoting a Social Europe", 1996, Question and Answer series, Official Publications of the EC, Luxembourg.
6 Law of the European Union, Shaw,p47
7 Lecture handouts, p4
8 "How does the EU work?" 3rd edition. Question and Answer Series, Official Publications of the EC, Luxembourg, p7
9 ibid
20 Law of the European Union, Shaw, p9
21 ibid, p50
22 "After Maastricht, are the Community Institutions more efficacious, more democratic and more transparent?" Piris, Jean-Claude, 1994, 19 ELRev 447.
23Law lecture notes p3/4
24 Law of the European Union, Shaw,p52
25 Shaw remarks in the Law of the EU, P60, how "EMU in particular seems unlikely to be achieved within the timetable foreseen".
26 Law of the EU, Shaw,p102
27 The Treaty of Amsterdam: Text and Commentary, Andrew Duff,1997, p30
28 Treaty of Amsterdam, Michel Petite, Harvard Law School Working Papers (internet)
29 The Treaty of Amsterdam: Text and Commentary, Edited by Andrew Duff, 1997,p36
30 ibid
31 Treaty of Amsterdam, Michel Petite, Harvard Law School Working Papers.
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