Jean Monnet Center at NYU School of Law

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Reforming the Union's institutions in preparation for enlargement was a matter the Conference simply had to address, and in many respects, its main purpose.

There was a dual objective: to improve the democratic legitimacy of the institutions and to strengthen the effectiveness of the institutional set-up with a view to enlargement.

A simple conclusion would be that the first part of the objective seems to have been largely realised whereas the second has not.

1. The European Parliament

The European Parliament made two major gains at the Conference to become a genuine co-legislator and a full arm of the European legislature alongside the Council:

a)Firstly, the co-decision procedure has been considerably extended. The list of new areas to which it applies speaks for itself:

non-discrimination on the grounds of nationality (Article 6),

freedom of movement and residence (Article 8a(2)),

social security for migrant workers (Article 51),

right of establishment for foreign nationals (Article 56(2)),

rules governing professions (Article 57(2)),

implementation of transport policy (Articles 75 and 84),

certain provisions arising from the social protocol, now reintegrated into the Treaty,

decisions implementing the Social Fund (Article 125),

vocational training (Article 127(4)),

public health (Article 129),

certain provisions relating to trans-European networks (Article 129d),

decisions implementing the European Regional Development Fund (Article 130e),

research (Article 130o),

the environment (Article 130s(1)),

development cooperation (Article 130w),

equal opportunities and equal treatment (Article 119),

openness (Article 191a),

measures to counter fraud (Article 209a),

statistics (Article 213a),

creation of an advisory body on data protection (Article 213b),

incentive measures for employment (Article 109r),

customs cooperation (Article 116),

incentive measures for combating social exclusion (Article 118(2)).

This considerable extension of the co-decision procedure essentially follows the Commission's reasoning in its report of July 1996, to the effect that any instrument of a legislative nature should be adopted by the co-decision procedure between the European Parliament and the Council. The outcome is to bring us nearer the Community "hierarchy of norms", albeit by an empirical process.

It is also the virtual disappearance of the cooperation procedure (except for a few cases under the EMU chapter), which is a good thing from the point of view of simplifying legislative procedures.

b)Secondly, the co-decision procedure of Article 189b has itself been simplified with the dropping of the third reading. The removal of this rather one-sided reading puts Parliament on an equal footing with the Council. This means that where conciliation is unsuccessful, the proposed instrument will be dropped.

c)There are five other important points:

-the number of MEPs is to be limited to a maximum of 700, even after enlargement (Article 137);

-the European Parliament is to draw up a proposal for elections by direct universal suffrage in accordance with "principles common to all Member States" (Article 138); given the new attitude in the United Kingdom, the Parliament now has a chance of securing an electoral system that will bring its members closer to the electorate;

-the European Parliament is to lay down regulations and general conditions governing the performance of the duties of its Members (with the approval of the Council acting unanimously);

-Parliament is to approve the appointment of the Commission President (bringing the legal situation into line with reality);

-the main point on which the European Parliament did not get its way was the amendment of the Treaties (Article N), for which its assent is still not required.

2. The Council

Although there was some criticism at the Conference of the way the Council operates, and it was stressed that enlargement would have a considerable impact on the Council's decision-making procedures, few changes were made to them:

a)Limited extension of the use of qualified majority voting

Qualified majority voting will apply to most of the new Treaty provisions: incentive measures for employment and social matters; equal opportunities for men and women; social exclusion; public health, anti-fraud measures; openness; outermost regions.

However, the only major existing provisions to go over to qualified majority voting are those concerning the research framework programme. It should also be remembered that implementing decisions under the common foreign and security policy may also be taken by qualified majority.

This falls far short of the original objective and may legitimately be regarded as the main failing of the Amsterdam Treaty. The Commission, which envisaged qualified majority voting becoming the rule, had certainly set its sights much higher.

Significantly, a tacit agreement was reached by the ministers of finance, including those with objectively the least to gain from it, to retain the unanimity requirement for all tax matters. This made it impossible to tackle even those tax questions with obvious Community implications, such as double taxation of companies operating in several Member States, the system for collecting indirect taxes or environmental taxes.

It is also disappointing, given what seemed to be feasible up until the eve of the Amsterdam Summit: the admittedly restrictive Treaty provisions on culture, industry and the professions, together with substantial parts of the new Treaty on freedom of movement, all seemed to be plausible candidates for qualified majority voting. However, at the last moment Germany was unable to agree to any of them.

b)Several of the large Member States made the reweighting of votes in the Council a top priority. Their approach was sometimes confrontational, although there is certainly a case for reviewing the weightings in the context of an enlargement which would automatically dilute them. As a result, reweighting became, rightly or wrongly, a political issue for the Conference.

Two types of formula were developed during the Conference, one simply involving a relative increase in the votes allocated to the large states, the other providing for a system of dual majority by adding a second, demographic criterion to the current system. To sum up what became a highly complex discussion in Amsterdam in simple - probably simplistic - terms, the first formula was rejected by a majority of states (small and medium-sized), while the second might have been acceptable, but not to France or the United Kingdom at the late stage in the negotiation when the question became linked to other issues. A further point is that the dual majority solution puts a certain distance between Germany and the other large states because of the size of its population.

Because reweighting is linked to the question of the number of Commission members, a Protocol was drawn up deferring consideration of the whole matter until after the next enlargement. This is now a pre-condition for any amendment of the composition of the Commission. It was stated that any new weighting would take account of the situation of Member States that have to give up their second Commission member.

3. The Commission

Strangely enough, and in marked contrast to the Maastricht negotiations, the role of the Commission was scarcely questioned at all in the Amsterdam discussions. There are probably many reasons for this, two of which might be singled out. Firstly, the wave of legislation accompanying the single market programme and the abolition of internal frontiers, which had often alarmed the national governments and was at its peak at the time of Maastricht, has now passed. Secondly, the positions taken by some Member States in the Council or at the Conference probably convinced others that the Commission represented some sort of guarantee against their being marginalised or European affairs falling into the hands of a "Directory".

Whatever the explanation, while discussion raged about the number of Commission members, various useful changes were introduced in other areas.

a)Composition and operation

Agreement was quickly reached in the Conference on strengthening the role of the Commission President. This was seen as necessary whatever the scenario, i.e. regardless of whether the number of Commission Members was altered. It was generally felt that this would be conducive to the unity and effectiveness of the Commission. The role of the President has been upgraded in several respects:

-the members of the Commission are to be appointed by the governments of the Member States "by common accord" with the nominee for President, who therefore acquires a right to object that does not exist under the current wording of Article 158 (2) ("in consultation with...");

-the Commission is to work "under the political guidance of its President" (Article 163);

-a Conference declaration states that the President should have the power to allocate and reshuffle Commission portfolios and notes the Commission's intention to reorganise its departments, a move it has been considering for some time.

The issue of the number of Commission members, however, was deferred for consideration at the time of enlargement (together with the reweighting of votes in the Council. See above.) in the form of a Protocol that specifies two stages:

-at the time of the first wave of enlargement the Commission is to have one national from each of the Member States, provided that agreement has been reached on the reweighting of votes;

-at least one year before the Union exceeds 20 Member States, a new IGC is to be convened to review the composition and operation of the institutions.

A number of conclusions may be drawn from the in-depth discussions on the number of Commission members at the current stage of a debate that is by no means over yet.

Firstly, the tempting idea put forward by France for a "managerial" Commission with fewer members than the number of Member States, proved unacceptable on three counts:

-to the new Member States, because they had only just emerged from ratification debates where the fact of appointing their own Commissioner played an important role which they could not go back on;

-to the small and medium-sized states who see the presence of one of their nationals in the Commission as a way of ensuring that their specific case will be made when Community policies are being formulated. They also suspect that if there are fewer Commissioners than Member States theirs will be the ones that are sacrificed;

-to the large states once it became clear that only France (and possibly Italy) were prepared to pursue matters to their logical conclusion and contemplate the possibility of not having a Commissioner of their own nationality. The position adopted by the other large states amounted to pleading for a Commission containing permanent members of their nationality plus rotating members of other nationalities. At this point there was nothing more to be said on the matter.

Secondly, the idea of having Commissioners with a different status, either juniors, assistants or deputies, never really took off. On the other hand, the idea of reorganising the portfolios within the Commission (for example to avoid the overlap in the external relations portfolios) did win support. This is, however, a matter of internal organisation for the Commission.

b)The Commission's right of initiative was strengthened in three ways:

-     through the creation of new policies or areas of action (employment, health);

-     through a large-scale transfer of power to the Community over matters relating to the free movement of persons; there is to be a joint right of initiative with the Member States for the first five years, after which the Commission will have its standard exclusive right;

-     through a general extension of joint Member State/Commission initiative on matters under the third pillar, which is now confined to police cooperation and criminal matters; hitherto the Commission had no right of initiative in these areas.

Conversely, various moves during the Conference to weaken the Commission's institutional position (concerning Articles 152, 189a and 212 in particular) were not taken up in the new Treaty.

4. The Court of Justice

There are two significant reforms to be noted:

a)Under the new title in the Community Treaty concerning freedom and security (asylum, immigration, borders, judicial cooperation in civil matters), the Court has its traditional jurisdiction, with the following restrictions (Article 73p):

-     preliminary rulings may be sought only by last-instance courts. These courts must refer such cases, as stipulated in the third paragraph of the existing Article 177;

-     in addition to jurisdiction to give preliminary rulings, there is also a type of action "in the interests of the law", which may be brought by the Council, the Commission or a Member State;

-     the Court has no jurisdiction to review operations relating to the maintenance of law and order and the safeguarding of internal security.

b)The Court's jurisdiction was extended to cover areas under the third pillar with the following arrangements (Article K.7):

-     jurisdiction to give preliminary rulings is restricted to cases before courts in Member States which have made a declaration stating that they accept this jurisdiction. The courts then have the right but no obligation to request a preliminary ruling;

-     actions for the review of the legality of decisions may be brought only by the Member States or the Commission;

-the Court also has jurisdiction to rule on any dispute between Member States or between the Member States and the Commission regarding the interpretation or application of acts adopted under the third pillar.

5. Other institutional matters

a)The Court of Auditors

-The Court of Auditors now has the right to bring actions before the Court of Justice to protect its prerogatives. Its powers have also been extended to cover auditing Community funds managed by outside bodies, including the European Investment Bank.

b)Several changes have been made to the Economic and Social Committee and the Committee of the Regions with a view to strengthening them:

-The two bodies are to be administratively separate.

-The range of subjects on which they have to be consulted has been broadened (employment, social affairs and public health in the case of the Economic and Social Committee; the environment, the Social Fund, vocational training, cross-border cooperation and transport in the case of the Committee of the Regions).

-They may now be consulted by the European Parliament.

6. Role of the national parliaments

Much was said at the Conference about the national parliaments. France, in particular, felt it was essential to involve national parliaments ahead of Community initiatives, in order to avoid the danger of measures being rejected when the time came for transposal. This was particularly important in the sensitive area of justice and home affairs, where the Community would be dealing with questions traditionally left to the national authorities, and for questions relating to subsidiarity.

All agreed on the need to inform national parliaments rapidly. Many argued that this was simply a matter of organisation for the national parliaments, which they had already dealt with. Nobody was in favour of creating anything resembling a new body representing national parliaments, which would be in danger of blurring the distinction between the national and Community levels of legislation.

The Protocol on the role of national parliaments in the European Union, annexed to the Treaty, formalises their entitlement to be regularly notified of what the Union is doing. It introduces the requirement that six weeks must elapse between a legislative proposal under the third pillar being submitted by the Commission and the matter being debated by the Council. The role of the Conference of European Affairs Committees (COSAC), which already meets regularly, has been acknowledged and it is now entitled to make contributions to the European Parliament, the Council and the Commission.

7. Closer cooperation - "Flexibility"

This concept was introduced very early on in the Conference proceedings (letter from Kohl and Chirac in December 1995) and provoked immediate controversy: viewed by some as a fragmentation bomb, by others as essential to the survival of a cohesive Europe, it was discussed on numerous occasions. For a long time it looked as if the profound hostility which it aroused would prevent it ever getting off the ground; it would either be hedged around with so many conditions that it would be stripped of any real content or a majority would insist that it would require unanimity to be triggered. Moreover - and this was perhaps one of its attractions - its supporters had never specified exactly what they intended to use it for. In the event, however, the concept of closer cooperation emerged from Amsterdam in a more satisfactory form than expected, particularly as regards implementation by qualified majority.

The main features of the arrangement are as follows:

a)It applies to the first and third pillars. In the case of the common foreign and security policy, the "constructive abstention" facility was thought adequate to meet requirements. In the case of CFSP decisions, flexibility is required not as regards policy but for specific measures dictated by the constantly moving target of international events. The possibility of acting with the abstention of some Member States is a response to this.

b)The arrangement consists of certain provisions common to both pillars (set out in a new title of the Treaty of European Union, comprising articles K.15 and K.16) and provisions specific to each of the pillars concerned (Article 5a for the Community framework and Article K.12 for the third pillar).

c)Closer cooperation is governed by strict, but workable conditions. The Treaty does not list areas where closer cooperation is authorised or ruled out, but lays down a number of principles, some of which are subjective (closer cooperation must be aimed at furthering the objectives of the Union and must only be used if these objectives cannot be attained by applying the normal procedures), others objective (at least a majority of Member States must be involved, closer cooperation must not affect areas of exclusive Community competence or citizenship, nor may it result in discrimination or affect Community policies, actions or programmes).

d)In Community matters, the Commission ensures compliance with these criteria, which are subject to review by the Court. When presented with a request for closer cooperation, the Commission will submit a proposal only if it believes all the conditions - including those requiring a subjective opinion - are met (Article 5a(2)).

In matters relating to the third pillar, the Commission must present an opinion to the Council (Article K.12(2)).

In both cases Parliament is consulted.

e)The decision to trigger the process is taken in the Council by qualified majority. This is essential to the credibility of the arrangement. However, the price of securing agreement on this was the introduction of the same veto system as applies to the common foreign and security policy (i.e. with the possibility of referral to the European Council).

f)Access for non-participating countries. A basic principle underlying the system is that enhanced cooperation arrangements are open to any Member State wishing to participate. The details are as follows:

-in the case of Community matters, a Member State wishing to participate in an existing closer cooperation arrangement must notify its intention to the Council and the Commission, which must issue an opinion within three months. A month later the Commission must reach its decision, including any additional measures it deems necessary (Article 5a(3));

-the procedure for the third pillar is the same up to the point where the Commission issues its opinion. One month later, the Council is deemed to have authorised the participation request unless it decides by qualified majority to hold it in abeyance, in which case it must give the grounds for its decision and set a date for the request to be reexamined (Article K.12(3)).

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