Jean Monnet Center at NYU School of Law

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C. The strategy of the Commission on some issues of substance.

Other speakers in this conference cover some of them in depth. This allows to only touch briefly on three of them:

* foreign affairs,

* justice and home affairs,

* flexibility.

1.On the Common Foreign and Security Policy, the Commission felt uneasy.

The subject did not seem ready for any radical changes. It would remain a separate, intergovernmental pillar, and unanimity would remain the name of the game, even if the solution called for in vain by the Commission at Maastricht was finally endorsed: implementation would be decided at qualified majority.

Eventually, many other improvements result from Amsterdam. But mainly administrative improvements.

The one case which the Commission recurently made, was the need of consistency between the economic side of the foreign policy, and its diplomatic side. Treated out of two separate pillars, the risk is indeed constant that the right hand ignores what the left hand is doing. But this obvious case did not go very far, as a few countries saw this as an attempt to blurr the limit between the pillars, and to weaken the diplomatic, intergovernmental, one. The main discernable result of this campaign is the new version of the "troïka", now consisting of the Presidency, the Secretariat General and the Commission, (instead of the Presidency, the past and the future ones). This new "troïka" is an interesting combination. Remains to be seen how much it will be used.

2.In contrast, the Commission thought from the outset that a major action could be developed on the Justice and Home Affairs.

Despite the very sensitive nature of the area, and the traditionally rather conservative administrations involved, there seemed to be a set of favourable circumstances:

- there was above all the priority given in all European States, to internal security: international crime, immigration, asylum policy, were everywhere on the top of the agendas;

- there was in this context, the prospect of the enlargement, which would be a sensitive one on all the aspects related to the movement of people; and the perceived necessity to improve the "acquis" before the negotiations were started;

- there was also a consensus on the fact that the Maastricht "3rd pillar" had been a failure. Many, and the Commission, insisted that it had not only been a failure, but a total failure. And more interestingly, offered to demonstrate that one of the main reasons lied in the Maastricht treaty, which had retained a far too weak legal tool: the old classical international convention, so painfully signed and so rarely ratified;

- possibly, and this is the entirely personal and unkind shadow of a thought, there certainly was the wish of the negotiators, who were the Ministers of Foreign Affairs, for presentable results in Amsterdam; now, they might have been ready to consider more easily transfers of competencies, in particular in the portofolios of their colleagues Ministers of interior, rather than in their own;

- finally, there was the need to do something about "Schengen", which had been developed outside the Treaty, initially at 6, but which was soon to become at 13. The risk to let two different and parallel legal orders develop, that of Schengen and that of the Treaty, was easy to point at.

So that at the right time, that is to say when confusion reached a peak, a few simple ideas seemed to clarify a very complex issue:

* first, it was useful to stress that most of what should be co-ordinated between Member States, was already under work or preparatory work either in the Council or in the Schengen context; it would not be a revolution on brand new issues or new untried grounds;

* second, where this work in progress was conducted under the "Schengen agreement", it was performed under a great degree of opacity, without the involvement of any democratic control, through sometimes highly disputable administrative agreements. The same was almost just as true for the "third pillar". If the attempt was made to improve them, and introduce parliamentary and court controls, then it would be simpler and cleaner to look for solutions in the proper and classical Community order, rather than in an ersatz of it;

Put these together, and the best solution would be

- to "communautarize" the whole area, Schengen included, which would be integrated in the Treaty (that would involve precise elements of asylum, immigration, judicial civil law, and visas)

- Leave the strictly criminal law and police issues in an improved intergovernmental framework

- As for UK and Ireland, who were not part of "Schengen", they could experience the first case of "flexibility".

Such is, broadly, the framework which was ultimately retained.

3.- Finally, the much debated subject of "flexibility" deserves a few observations. The concept was immediately divisive: some saw in it a fragmentation bomb, in particular those who had reasons to believe that they might be left out on some issues; others saw it as essential to the progress of a cohesive Europe. Within the Commission, it was difficult to decide one way or the other; but clearly, caution was felt highly necessary.

A further twist was that, the more "flexibility" was discussed and the more it appeared that it was in sensitive Community matters such as taxation, industrial or social policy, that it made any sense. Not in Foreign Affairs, where other devices were more relevant.

At that point, it was felt that as a matter of caution and to prevent any abuse or uncontrolled use of "flexibility", one of the key points was for the Commission to retain its triggering in any case having to do with Community matters. And indeed, this "flexibility" or "closer co-operation" will be governed by very strict, but not unattainable, conditions. But it will only be decided by the Council on a Commission's proposal, which will or will not be made depending on whether the latter believes that these conditions are met.

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