Jean Monnet Center at NYU School of Law

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This was undoubtedly one of the most extensively discussed chapters of the Conference. The attention it received reflected an acute awareness of the direct relevance of these issues to the public and the fact that it would certainly be a major issue in the subsequent ratification procedures. Moreover, there was almost unanimous agreement that the third pillar of the Maastricht Treaty had failed. At the same time recurrent doubts surfaced about the balance between the security element, for which there was sustained demand, and the difficult questions of freedom and fundamental rights.

1. Fundamental rights and non-discrimination

There was universal support for the goal of a Union governed by the rule of law and upholding the same general principles as its Member States, particularly with the prospect of future enlargement. However, the debates were coloured by several delegations' distrust of the European Court of Justice, reflected in their reluctance to give direct effect to the new provisions, and the fact that the main innovation - a system of penalties against Member States that failed to respect fundamental rights - would essentially be controlled by the European Council and the Council.

Three elements should be noted:

a)Judicial review of respect for fundamental rights

The Treaty formally confirms the power of the European Court of Justice to review respect for fundamental rights by the Community institutions. This power having already been acquired, the main interest lies in what the Treaty fails to do: it does not commit the Community or the Union to full participant status in the European Convention on Human Rights and Fundamental Freedoms. There remains the anomaly that all of the Member States are subject to the full external discipline of the Convention, while the Community is not. There are many reasons for its refusal: the legal complexity, certain reservations about the court in Strasbourg and, above all, the reluctance of the Luxembourg judges to subordinate the Community legal order to that of the Convention.

The solution adopted was to confirm that Community law is subject to the European Convention, but as applied by the Court in Luxembourg.

The Treaty does, however, extend this judicial review to the third pillar, which is a step forward, although the admissibility conditions are limited and the field subject to review is restricted (minimal review).

The idea of extending judicial review to decisions on matters of foreign and security policy ran into stiff opposition from those who argued that this would go well beyond the commitments of the Member States.

b)Penalties for Member States that fail to respect fundamental rights (Article F1)

The principles of liberty, democracy and respect for human rights and fundamental freedoms are now enshrined in the Treaty, together with a system of penalties for Member States that seriously or persistently violate these principles.

Under this new provision, if the Heads of State or Government ascertain the existence of a breach of these principles (acting on a proposal by one third of the Member States or by the Commission, and after obtaining the assent of the European Parliament), the Council may decide by qualified majority to suspend some of the Member State's rights, including its voting rights in the Council.

The principle of this innovation has its origins in the Reflection Group; it is clearly seen as a necessity connected with the accession of new members that do not have a long democratic tradition, where democracy might prove precarious. The mechanisms are clearly those of the political démarche - with the possibility of penalties - and are reserved for highly exceptional circumstances. They stop short of the possibility of expelling a Member State altogether, it being thought - quite rightly - that the possibility of expulsion would undermine one of the most significant premises of the Treaty itself: its irreversibility.

c)General non-discrimination clause (Article 6a)

The clause refers to discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. The provision allows only for secondary legislation, i.e. it will not have direct effect. In addition, the procedure still requires unanimity, with the European Parliament merely being consulted.

This restrictive procedure, which does not bode well for the application of the article, was criticised up until the end of the negotiations, particularly because of the marginal role of the European Parliament. The reason for this is largely the fear of many delegations that their national parliaments would not accept a power of co-decision by the European Parliament in such matters. Because of the weakness of this new general article on non-discrimination, particular care was taken to ensure that it remained separate from the present Article 6 on non-discrimination on the grounds of nationality, so that the latter could continue to have direct effect and the concomitant case law could continue to apply.

2. Creation of an area of freedom, security and justice

From an early stage in the negotiations home affairs and justice were seen as the area where far-reaching changes were most needed (in view of the conspicuous failure of the third pillar) and where demand was strongest (demand for security on the part of the public, need for new means on the part of governments, particularly to counteract the internationalisation of certain types of crime, and concern about future enlargement, with the sensitive issues related to frontiers and the movement of persons).

Despite this, finalising this section proved to be a slow process. The Reflection Group's report was understandably cautious on these issues: while recording a large number of disagreements as to the path to be followed, it confined itself to calling for "better cooperation" and saw the extension of Community competence as only one of the options, leaving the door open to numerous exceptions. The incorporation of Schengen into the Treaty "by means of flexible arrangements" was proposed by "various members of the Group".

The subject was indeed complex and made more ambiguous by the absence of clear objectives in the Maastricht text. This is probably the subject matter to which the Commission devoted the most effort, backed by successive presidencies. Delegates continued to voice numerous objections, understandably enough given the subject matter. These related to both substance (how far should judicial cooperation in civil matters or the definition of certain criminal offences be taken?) and decision-making process (intergovernmental, Community or mixed? at the initiative of the Commission alone, or initiative shared with the Member States? role of the Parliament and Court of Justice; qualified majority or unanimity?). And once it became clear that the Dutch Presidency was determined to incorporate Schengen into the Treaty to prevent the development of two separate systems for the same subject, numerous meetings were required just to understand the scope of the problem.

For all this, the outcome broadly reflects the expenditure of effort by the Conference and is in some respects remarkable. It may be summed up as follows:

a)-Massive transfer of powers to the Community resulting from the creation of a new Title IIIa in Part Three of the EC Treaty (Articles 73i to 73q) dealing with internal and external frontiers, policies on visas, asylum and immigration, and judicial cooperation in civil matters.

This certainly goes further than could have been predicted (for example until the very end of the negotiations there was talk of introducing an intermediate pillar, or putting judicial cooperation on civil matters back in the third pillar, or allowing for a joint Member State/Commission right of initiative).

This transfer of powers to the Community will involve a fundamental change of approach: using directives or regulations instead of conventions; review by the Court (including preliminary rulings, albeit confined to last-instance courts and with an exception concerning the abolition of controls at internal borders); sole right of initiative for the Commission (following a five-year period of joint Member State/Commission initiative); discussion by Council working parties and COREPER instead of the multiple levels leading up to the K.4 Committee.

-A clear formulation of all the Union's objectives in the field of justice and home affairs, accompanied by a five-year plan, instead of the lists of general areas given in the Maastricht text. The approach used successfully in the case of the internal market served as a precedent here: defining exactly what the Community's role should be, because it is recognised that action has to be taken at this level. This formula had the advantage not only of involving a commitment by the Member States, but also of providing reassurance: only essential matters will be harmonised or coordinated and there is no risk of the wholesale transfer of a policy to Community control.

-The result was a very clear structure: all matters relating to the movement of persons have now been placed in the first pillar, while the third pillar is reserved for matters relating to criminal law and the police.

The third pillar itself has been considerably improved: the objectives have been made more explicit, as noted above, the European Parliament is to be consulted, the Commission's right of initiative has been extended to all areas, and the Court has acquired a new, albeit limited, role (it will review the legality and interpretation of acts, although its power to give preliminary rulings must be accepted by each Member State individually).

The most spectacular innovation in the third pillar is probably the introduction of a new legal instrument (Article K.6(2) of the draft), designed to replace the conventions which have been found to be of limited value when applied between Member States of the Union: though signed they are rarely ratified. The new instrument is known as the framework decision and in many respects it resembles the directive: it serves to approximate laws and is binding on the Member States as to the result to be achieved but leaves them free to decide on the means of implementation. Oddly enough, the text adds that "they shall not entail direct effect", which will no doubt puzzle the Court, for whom direct effect depends on whether or not the content of a text is directly applicable rather than its legal status. This formula should perhaps be interpreted as an exhortation to future negotiators of framework decisions, to ensure that they take the form of guidelines that leave scope for national transposal.

-The main risk with this new instrument is that it will not be used and that through force of habit or political insistence on national ratification the convention will remain the preferred option. It is to be hoped, however, that the new, more flexible instrument, which gives a greater role to national parliaments via the transposal procedure required, will replace conventions as soon as the Treaty comes into force, even to the extent of replacing conventions already under negotiation. This could have been ensured by removing the convention from the list of legal acts that can be used for the third pillar, but this solution was too much of a leap in the dark to be seriously contemplated.

-Finally, the Schengen system has been incorporated into the Community legal order by means of a protocol annexed to the Treaty. This provides for the unification of two parallel legal systems and is inevitably a complex operation.

At the heart of this system is the assumption that, subject to a few special rules, Schengen is the first of the "closer cooperation" arrangements made possible by the Treaty (see page ... below). Consequently, the system and the institutions of the Union will in future constitute the framework applicable to the Schengen signatories, which include all the Member States except the United Kingdom and Ireland.

More specifically, the operation will involve first of all identifying the Schengen acquis, which is done in a comprehensive fashion in a brief annex to the Protocol, but which refers to each of the decisions or declarations adopted by the Schengen bodies. Once the acquis has been identified it will have to be divided between the new legal bases of the new first and third pillars, depending whether it relates to freedom of movement or police matters. The work will have to be done before the Treaty enters into force. New proposals will be made on the new legal bases from the start.

Denmark is a special case. It only recently joined Schengen, just as Schengen is poised to disappear and be incorporated into the Treaty, with part of the acquis to be included in the Community field which Denmark wants to be exempted from. A special provision allows it to maintain its former relations with the other Member States. The United Kingdom and Ireland will be able to take part in some or all of the Schengen acquis if the Council unanimously agrees. Finally, Iceland and Norway are to be associated on the basis of their existing agreement with the Schengen members.

b)The transfer of powers to the Community, referred to in point a) above and something of a miraculous achievement for the Conference, was achieved at the cost of the requirement of unanimous decision-making by the Council for all of the areas concerned except visas (which have been partly subject to qualified majority voting since Maastricht). Right up until the Amsterdam Summit the text provided for many of these areas to pass automatically to qualified majority voting after a five-year period, but under sustained pressure by the Länder, which were apparently fearful that all immigration questions would pass into Community control, Chancellor Kohl was unable to agree to the system. This will inevitably be a serious handicap to decision-making in the fields of justice and home affairs and is undoubtedly the single biggest disappointment of the Summit. Two clauses in the final text provide some small consolation:

the Council will decide after five years (unanimously, but without the need for national ratification) whether some or all of these areas should move to qualified majority voting and the co-decision procedure);

in the event of stalemate among the 15, the Schengen Protocol signed by the 13 could be brought into play.

c)Protocols exist for the United Kingdom, Ireland and Denmark so that these countries do not prevent the others from moving forward and are free to join them at any later date. The protocols operate as follows:

The new Community Title on justice and home affairs does not in principle apply to the United Kingdom and Ireland, but both countries may decide on a case by case basis to participate in initiatives. If they wish to do so they must inform the Council accordingly, within three months of the proposal. An anti-filibustering clause allows the Council to adopt the measure without the United Kingdom or Ireland if it has proved impossible to adopt it with them within a reasonable period. Ireland also negotiated a clause allowing it to revoke the Protocol entirely in order to participate fully.

In addition, these two countries have a formal derogation from Article 7a in order to maintain their border controls at internal frontiers, with a reciprocal right for the other Member States in respect of the United Kingdom and Ireland.

Denmark has a general opt-out from the new Community framework, except for some aspects of visas. In the end, Denmark was unable to back down from the positions on justice and home affairs which it had adopted at the time of the Edinburgh Council and which enabled it to ratify the Maastricht Treaty.

However, because Denmark has since become a signatory to Schengen it should be able to decide to implement any measures that build upon the Schengen acquis. The Protocol allows it to decide on implementation of such measures within six months of their adoption.

It is also important to note the importance of the Nordic Union in this context, as Denmark will clearly have to take account of the commitments entered into by Sweden and Finland under the first pillar.

Finally, Denmark is entitled to revoke all or part of the Protocol at any time.

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