The Treaty of Amsterdam
Michel Petite
Introduction
1
The Amsterdam Treaty, agreed by the political leaders on 17 June and signed on 2 October 1997, is the culmination of two full years of study and negotiation: nobody can say it has been thrown together or inadequately prepared.
Certain aspects of its predecessor, the Maastricht Treaty, were criticised on this score: its section on economic and monetary union, which had been meticulously prepared in advance (the Guigou Report and Delors Committee), was often contrasted with political union, which was directly negotiated with little groundwork, under the pressure of political developments in the East.
To a large extent the negotiation of the Amsterdam Treaty has proceeded systematically, as provided for at the Corfu Summit (June 1994): in the first half of 1995 each Institution was required to produce a detailed report on the working of the Treaty on European Union. This exercise produced remarkably similar conclusions by the Council, Parliament and the Commission about the Treaty signed in Maastricht: the Treaty was ambitious and innovative but the means were not equal to these ambitions, particularly in the intergovernmental provisions. Either because of structural weaknesses (for example the third pillar), or because it was not applied as it might have been (e.g. the second pillar), the Treaty left plenty of scope for improvement; the second half of 1995 was devoted to an in-depth analysis of the avenues to be explored and the options available, conducted by a Reflection Group chaired by the Spanish State Secretary for European Affairs at the time, Carlos Westendorp. The group’s report, presented at the Madrid Summit (December 1995), provided a valuable basis for analysis, and indeed it did a very thorough job. Its membership was not restricted to a handful of “wise men”; each foreign ministry appointed a representative who was supposed to be independent. In practice the Group consisted largely of those people who would ultimately negotiate the new Treaty, plus two representatives of the European Parliament. As a result, the Group’s report cast its net wide: all of the opinions voiced by one or other of its members are included, with no way of ranking them in order of priority or ruling out the most improbable; once the Italian presidency of the first half of 1996 had formally proposed the convening of an Intergovernmental Conference, the Commission adopted an opinion on the IGC (February 1996), marking a formal stage in the procedure for convening such a conference laid down in Article N of the Treaty. In it the Commission outlined its expectations of the conference, setting its sights on the upper range of what it considered realistic. It hoped thereby to give an ambitious cast to the negotiations, focusing on the principal themes that would come up: the citizen’s Europe, Europe’s identity on the international stage and the state of the institutions in a Europe scheduled to undergo significant enlargement.
	It is hard to assess the importance of this formal statement of position by the Commission. A systematic comparison between its opinion of February 1996 and the final text of the Treaty reveals broad similarities in major areas: on employment, social policy, justice and home affairs, decision-making in foreign policy, the role of Parliament, the Union and its citizens the results more or less live up to the Commission’s expectations. The same cannot be said of the extension of qualified majority voting in the Council, the number of Commissioners in an enlarged Union, or the reweighting of votes in the Council (see table in Annex); finally, the Turin Summit, which formally inaugurated the IGC, produced conclusions that, broadly speaking, were meant to serve as its terms of reference.
2
Since the Maastricht Treaty provided for a new Intergovernmental Conference to be convened in 1996 the objectives of such a conference changed: in a clear allusion to the need to review the structure of the intergovernmental pillars, Article B of the Maastricht Treaty called for the policies and forms of cooperation to be revised “with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community”.
	The Treaty also mentioned a number of specific areas for revision: the co-decision procedure, security and defence, energy, tourism and civil protection and the hierarchy of Community norms.
Various European Councils since Maastricht have added other points to the agenda: the number of Commissioners, the weighting of votes in the Council, measures to ensure the efficient working of the institutions and the institutional arrangements to allow for enlargement to include Cyprus, Malta and the countries of Central and Eastern Europe.
Finally, Parliament, the Council and the Commission agreed to submit two other controversial questions to the Conference: the budget procedure, with special reference to the classification of expenditure, and the case of implementing measures delegated to the Commission by instruments adopted under the co‑decision procedure (one of the examples of committee procedure).
By the time the Conference opened, therefore, it was clear that its purpose was both to remedy the inadequacies of the Maastricht Treaty and to ensure that the Union could continue to function with considerably more than 15 Member States.

3
Given these objectives, it is hardly surprising that the various delegations reacted differently. A number of elements stand out quite clearly at first glance, starting with the substance:
Once the principle of enlargement had been accepted, the date for concluding the Conference in Amsterdam in June was solemnly reaffirmed by all the summits from Turin onwards and was never called into question. However, some delegations considered that a satisfactory outcome was a necessary pre-condition for enlargement, while others were more concerned that the Conference should not upset an already wary public or jeopardise a delicate domestic political situation;
In this climate it was relatively easy throughout the Conference to identify a sort of mainstream that coalesced sooner or later around the main themes, backed by successive presidencies (Spain, Italy, Ireland, the Netherlands). The Commission’s strategy was to try to make this mainstream set its sights as high as possible;
One of the difficulties of the Conference was that the traditional Franco-German partnership of which so much had been expected never really materialised. The German and French foreign ministers did hold regular meetings, but these apparently served only to confirm the lack of common ground (with the notable exceptions of security and defence and flexibility). This is hardly surprising: whenever European institutions are under discussion, Germany and France traditionally and naturally start from different perspectives, Germany taking a more federalist position than France. It had been equally difficult to find common ground on institutional matters during the Maastricht negotiations.
	However, it would be over simplistic to put all of the difficulties of the Franco-German partnership down to philosophical differences; other factors certainly played a part. On the German side it was clear throughout the Conference that the negotiators were having great difficulty brokering the demands from the Länder and the other ministries, even when these seemed to be incompatible with Germany’s fundamental positions. The French, for their part, seemed to have problems reconciling a firm commitment to certain issues with their wariness of institutional reforms. The result was sometimes paradoxical, as illustrated by the French position on justice and home affairs. It was puzzling to find France supporting ambitious goals, including the maximum extension of qualified majority voting, yet at the same time reluctant to place these questions squarely under Community control. For most other delegations, bringing these areas into the Community’s sphere of influence was a corollary to qualified majority voting because of the democratic and judicial controls that this entails;
A major factor in the Amsterdam negotiations was obviously the British position prior to the general election of 1 May 1997. The United Kingdom was totally opposed to any institutional change of substance for what everyone understood to be essentially domestic policy reasons. Sympathy for this position waned considerably when the United Kingdom embarked on a policy of systematic vetoes in all Council discussions, in an added twist to the mad cow disease crisis. The inevitable result of this stonewalling was that most of the negotiations were conducted by the other 14 Member States, in the hope that the election would break the deadlock.
	In fact, events moved very fast after the election: the United Kingdom maintained very firm positions on certain aspects of the debate (such as defence, justice and home affairs), but accepted, or actively encouraged, progress on others;
Finally, there was the special case of Denmark, which based its position on the interpretations of the Maastricht Treaty expounded in the conclusions to the Edinburgh Council in December 1992, between the two Danish referendums on ratification, which it regarded as politically inviolable. Denmark thus found itself on delicate ground as soon as the Conference turned to matters of defence, citizenship, foreign policy and justice and home affairs. On the latter, for example, Denmark indicated that it could envisage any reform except two: the transfer to the Community framework and qualified majority voting - the only two reforms which the vast majority of Member States regarded as of any relevance.

A few general remarks should also be made about the method:
The Maastricht Treaty was negotiated in the traditional way, on the basis of an original text which appeared early on in the negotiations (produced by the Luxembourg presidency) and was then the subject of numerous reservations, square brackets, counter-proposals and footnotes. The function of the negotiations was then to reduce the number of reservations and square brackets by textual compromises, to achieve a final uniform version that was acceptable to all.
	This was not at all the case for the Amsterdam Treaty: most of the working documents were position papers which were not drafted as legal texts. Proposals from different delegations were also circulated. Meetings took the form of repeated discussions at which each delegation expressed its views and positions evolved gradually.
	It was as if each delegation came to Brussels not so much to negotiate a text as to try to bring all the forces roughly into equilibrium and to judge whether the end product would be acceptable. At the same time, the two presidencies involved (the Irish then the Dutch) refrained from producing a text until the very last moment before each European Council (Dublin and Amsterdam) so that it might as nearly as possible approximate an acceptable equation and, more traditionally, so that it could not be examined too closely by the experts before being entrusted to the Heads of State and Government.
Although the Conference was formally in the hands of the Ministers of Foreign Affairs and was prepared by their representatives, in practice the ministers played a predominantly supervisory role. They met infrequently, usually on the fringes of the General Affairs Councils, with their chaotic agenda. The result was that the bulk of the work was done by the Group of Representatives that met regularly for two days a week. Its composition was similar to that of the Reflection Group, on whose expertise it was thus able to draw, and its members included several deputy ministers or secretaries of state (France, Germany, Portugal and Sweden).
The role of the European Parliament was significant and far exceeded anything that had been seen in previous Intergovernmental Conferences. It had been represented as a full partner in the Reflection Group by Ms Guigou (F/Soc) and Mr Brok (D/PPE), and the question of its participation in the Conference was raised at the Turin Summit. Opposition to the formal participation of the European Parliament, led by the French and British, was strengthened by the fact that the Treaty makes no provision for such participation, specifying that such conferences, as their name implies, should be intergovernmental, allowing an exception only for the participation of the Commission.
	However, the majority felt that it was politically neither possible nor desirable to exclude the European Parliament from the Conference and that its participation in the Reflection Group set a powerful precedent. A compromise was therefore worked out involving numerous exchanges of view between the Conference and Parliament, represented at ministerial sessions by its President (first Mr Hänsch, then Mr Gil-Robles) and at meetings of the Group of Representatives by Ms Guigou and Mr Brok. The result was that although Parliament was not formally a party to the Conference it was engaged in a bilateral dialogue with it which allowed it an important opportunity to air its views and, like the Commission, raise the aspirations of the Conference.
	Finally, the question of the transparency of the Conference working methods was raised at the very start. In an effort to pre-empt any criticism on this score, it was agreed that the presidency would hold a press conference after each meeting, and each delegation would be free to comment on its own position. Each national parliament summoned its national participants at the Conference, and sometimes representatives of the Commission or the presidency, to attend hearings or present reports, according to its own procedures.
4
The Amsterdam Treaty is presented in the standard format used for each of the previous amendments to the Treaty of Rome: a series of amending articles following the sequence of the Treaty (preamble, articles, protocols, followed by declarations). While legally correct, this presentation is difficult to follow, so an approach by subject matter has been adopted here instead. This is also the way the Treaty was negotiated.
The main innovations of the Amsterdam Treaty may be presented under four principal headings:
freedom, security and justice
the Union and the citizen
common foreign and security policy
the Union’s institutions.

I.	Freedom, security and justice
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.

II.	The Union and the citizen
The Conference’s terms of reference included steps to bring the Union closer to its citizens, and a great deal of effort was expended on this goal. The first point to note is that the gains have not been in the area of European Citizenship, it having proved impossible to find new attributes beyond those of the current texts resulting from Maastricht. The only change to the definition of European Citizenship was to clarify what was already self-evident: “Citizenship of the Union shall complement and not replace national citizenship” (Article 8). It is through other policies and to some extent indirectly that the Amsterdam Treaty seeks to satisfy certain expectations on the part of its citizens. Forums organised by the European Parliament and many valuable contributions by non-governmental organisations have shown how varied the public’s expectations are and how priorities differ from one state to the next.
This no doubt explains why the Treaty covers more areas than originally planned, at the risk of seeming to spread itself too thinly on the ground. Underpinning the subjects discussed below is the common concern that citizens should not be faced with a European venture that they neither understand nor support.

1.	Employment
Although the initial understanding was that the Conference would not deal with Community policies and areas of responsibility, employment was very quickly identified as a priority by many delegations that maintained that they could not present a Treaty that ignored the principal concern of Europe’s citizens. Several delegations (Germany, Netherlands, United Kingdom), on the other hand, warned of the risk of raising short-term expectations that were bound to be disappointed and refused to commit financial support to tackling employment problems. 
Under these conditions a compromise quickly emerged based on proposals that came largely from Sweden. It consists of a macroeconomic approach to employment aimed essentially at ensuring that the parameters relating to employment are taken into account in every economic decision or guideline. The text avoids anything that might smack of a social approach to employment and includes a number of prescriptions on which all parties agree: maintaining the primacy of national policies and avoiding costly large-scale programmes. Significantly, the new title on employment has been inserted next to economic and monetary union, not social policy.
The promotion of employment thus becomes a matter of common interest for the Member States and is added to the objectives of the Community. The Community therefore acquires a new power, supplementing that of the Member States, to draw up a coordinated employment strategy.
A new title on employment is inserted into the Treaty directly after Title VI on EMU, setting out the objectives (Articles 109n to 109p) and the ways and means of achieving them (Articles 109q to 109s), based on the following:
the objective of a “high level of employment”. Some delegations would have preferred a reference to “full employment”, but this was rejected as utopian;
the integration of employment in other Community policies;
introduction of Community-level coordination mechanisms. These largely reflect the Essen process and are modelled on the coordination arrangements for economic policies.
	The key element in this coordination will be the employment guidelines which are to be adopted by the Council and must be compatible with the broad economic policy guidelines referred to in Article 103(2). This explicit reference to provisions of the Chapter on Economic and Monetary Union was highly contentious, given the extreme reluctance to risk reopening any aspect of that debate.
	The Commission will play its conventional role here, since the guidelines are to be adopted on a proposal from the Commission. 
	The coordination arrangements are backed by a loose form of surveillance (with Commission input), similar to the surveillance of economic policies but not so far-reaching (no publication of the recommendation to the Member States; no penalties).
	An advisory committee on employment is to be set up to support coordination (like the Economic and Financial Committee). It will replace the Employment Committee set up in December 1996.
Finally, provision is made for the Council, acting by qualified majority and under the co-decision procedure, to adopt incentive measures, in particular pilot projects (to be covered by heading 3 of the financial perspective, i.e. outside the Structural Funds). This provision was agreed only at the Amsterdam Summit when the British and Germans withdrew their outstanding objections.

2.	Social policy
The incorporation into the Treaty of the 14-signatory Maastricht Social Protocol restores the unity and coherence of the Community’s social policy. This should put an end to the current inhibitions about using the social policy provisions of the Treaty.
Useful discussion of this question could only begin after the general election and change of government in the United Kingdom, when it focused on the form incorporation would take. In accordance with the wishes of the British, the Protocol is incorporated essentially as it stands, i.e. maintaining the unanimity requirement even in areas such as protection of workers in the event of termination of their employment contract and representation and collective defence of workers’ and employers’ interests, where many other delegations would have preferred decision-making by qualified majority. The procedure for concluding and extending collective agreements (Article 118b) also remains unchanged.
Some of the provisions of the Protocol have, however, been strengthened:
equal opportunities and equal treatment for men and women in the workplace, for which a new legal basis has been created, with qualified majority voting and the co-decision procedure;
the fight against social exclusion is now enshrined in the Treaty, together with the possibility of adopting incentive measures by qualified majority (also to be covered by heading 3 of the financial perspective).
Finally, the explicit reference in the Treaty to fundamental social rights enhances the objectives of social policy.

3.	Environment
The new Treaty will be a greener one. “Sustainable development” now appears as one of the Union’s objectives, the principles which the Community intends to apply are made more explicit, and more emphasis is placed on incorporating environmental aspects into other Community policies, such as the single market.
The most hotly disputed issue in the run-up to the Amsterdam Summit was whether a Member State was free to apply stricter standards than the harmonised measures. This reopened the whole debate about Article 100a(4) as formulated in the Single Act, with heavy pressure from the Danes supported by a large majority of Member States.
Frequent reference was made to the failure of the Commission to respond constructively to several requests for derogation by Member States under Article 100a(4). In particular, it was widely felt that the Commission’s interpretation of this article was too restrictive. It was hard to understand, for example, why new scientific knowledge which postdated the adoption of a Community regulation did not justify a request to apply a stricter standard. On the other hand delegations appreciated the need to defend the internal market and the risk that if the provision were relaxed too much it would provoke too many requests or require too many decisions to be taken in a climate of scientific uncertainty.
The new version of Article 100a(4) retains the original principles, particularly the primacy of the single market, and the system of prior authorisation by the Commission. But by significantly altering the authorisation procedure it simplifies the procedure for dealing with the inevitable conflicts between the environment and the internal market. The main features of the new procedure are as follows:
a Member State can now request authorisation to take new measures to deal with an environmental problem specific to it. The request must be based on new scientific evidence and must cite the reasons;
the Commission must approve or reject the request within six months of receiving the complete application. The time limit may be extended by six months in certain circumstances. In the absence of a decision by the Commission within the time limit, the request will be deemed to have been approved.
The one thing that can be said with certainty is that the new Article 100a(4) will force the Commission to establish internal procedures to systematically administer the applications which will undoubtedly be made, some of which may raise serious social or ethical questions that cannot be reduced to a simple scientific analysis. Perhaps this is a sign of maturity in the demarcation dispute between the single market and the environment.
4.	Public health (Article 129)
The Treaty provisions on public health are significantly reinforced in the wake of BSE. The main new features are the call for high standards of quality and safety to be set at European level for human organs, blood and blood derivatives (without interfering with national systems for the organisation and delivery of health services) and the transfer to the co-decision procedure of veterinary and plant health measures for the direct purpose of public health protection. In the case of the latter the practical effect is to remove these measures from their former legal basis in Article 43, which is left unchanged.
5.	Consumer protection (Article 129a)
Provisions concerning consumers have been improved without any change to the essential features, by clarifying and extending the objectives of Community action in this field and incorporating them more effectively into other Union policies. A long discussion developed about whether promotion and protection should be confined to consumers’ interest or should cover their rights as well. In the end explicit mention was made only of consumers’ rights to information and education and to organise themselves. 
6.	Other policies
Many issues were brought up at the Conference regarding specific areas of concern (sport, savings banks, animal welfare, etc.). Following the deplorable precedent set during the Maastricht negotiations with regard to the retroactive effect of judgments (Barber case), attempts were made to regularise the “constitutional position” on a number of questions currently before the Court, where the outcome was deemed uncertain. Fortunately few of these went further than a declaration annexed to the Treaty, but these reached the record figure of fifty.
However, three main sets of provisions emerged from discussions that assumed a particular importance at the Conference:
a)	Combating fraud (Article 209a)
The Treaty has been strengthened by the inclusion of a legal basis for adopting anti-fraud measures by qualified majority and the co-decision procedure and the clarification of Member States’ obligations. This will provide for the necessary improvement in the protection of the Community’s financial interests at both national and Community level.
It proved difficult to finalise this provision because most of the Member States wanted to confine it as far as possible to fraud at the expense of the Community budget only, while some also wanted to prevent any interference in national criminal law, which would have made a mockery of any measure. The final version is carefully worded so as not to exclude the harmonisation of offences and penalties while leaving the application of criminal law and the administration of justice to national legislation alone. 
b)	Outermost regions (Article 227(2))
Seven outlying regions (the four French overseas departments and territories, the Azores, Madeira and the Canary Islands) have been given a legal guarantee that account will be taken of their special characteristics.
The Council, acting by qualified majority, will be able to adopt special measures for these regions, provided they are consistent with existing Community legislation, including the single market. The main policies concerned are customs and trade policies, tax policy, agriculture and fisheries policies as well as free zones and supply conditions for raw materials.
c)	Public services (Article 7d)
A new article in the Treaty refers to the role of services of general economic interest in promoting social and territorial cohesion in the Member States of the Union. “The Community and the Member States ... shall take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions”.
The article has its origins in the Commission proposal to refer to services of general interest in an article near the beginning of the Treaty, in order to give it general application (the Commission proposed an Article 3a), and in a number of more specific proposals (e.g. French) to amend Article 90.
It reaffirms the equilibrium of the Treaty (“without prejudice to Articles 77, 90 and 92”), while clarifying and emphasising the current logic of European case law whereby liberalisation measures must be compatible with maintaining high quality services of general interest.
An interpretative protocol on the funding of public service broadcasting was added at the suggestion of Belgium. This proved difficult to formulate because of the shadow cast by concerns about several cases pending before the Court of Justice. It stresses the special sensitivity of public service broadcasting connected with its democratic, social and cultural role and the need to preserve media pluralism, and draws a number of helpful conclusions: it defends the right of Member States to fund and define the role of the public broadcasting system, while reiterating that these powers must be exercised without prejudice to the rules of competition and that funding must be proportional to the tasks conferred on the broadcasting service.
7.	Subsidiarity
Predictably enough, there were long debates about subsidiarity at the Conference.
A deal was struck between those who wanted to strengthen the principle (led by Germany and Austria) and those who felt the question had been exhausted in Maastricht and during the difficult debates that followed at the Birmingham and Edinburgh summits (led by Spain and Belgium): on the one hand, Article 3b as formulated in Maastricht would remain unchanged, while on the other the Birmingham conclusions (October 1992) and the principles adopted in Edinburgh (December 1992) would be grouped together in a protocol, thus conferring on them a legal status which they did not previously enjoy.
The Protocol on the application of the principles of subsidiarity and proportionality broadly restates the conclusions of the Edinburgh Council. However, the conclusions themselves were long and discursive, so the sticking point became how to transpose them into a legally-binding protocol. Paragraph 5 of the Protocol, for example, lists three guidelines for applying the subsidiarity principle, but raises the awkward question of whether these were to be cumulative or enumerative (“and” or “or”). True to tradition, the solution adopted was not to specify, which should result in the enumerative interpretation being used.
Nevertheless, the subsidiarity Protocol clarifies the role of each actor, Member States and institutions alike. Subsidiarity is now a legal concept, and the Protocol will undoubtedly give rise to case law. Moreover, laying to rest any last doubts on this score, it confirms the dynamic view of subsidiarity, i.e. that the level at which it is appropriate to act can vary according to the circumstances (Community action can thus be extended or reduced depending on the particular case), and confounds the view of subsidiarity as the repatriation of powers to the national capitals.
8.	Openness
The need for the public to be more involved with the Union and supplied with better information is reflected in the Treaty’s new right of access to Council, Parliament and Commission documents. This right is to be governed by principles and limits to be jointly determined by the three institutions within two years. Each institution will then have to lay down specific provisions in its own rules of procedure governing access to its documents.
A new clause in Article 8d also enshrines the right of every citizen writing to one of the institutions or bodies of the Union to receive a reply in the same language.
9.	Quality of Community legislation
A declaration calls on the institutions to speed up the codification of legislation and to adopt guidelines by common accord on improving the quality of legislative drafting.
10.	Simplification and consolidation of the Treaties
The Conference was the occasion for a major simplification and consolidation effort. This was widely regarded as essential to make the basic texts of European law understandable, as the many additions of successive treaties had rendered them virtually unreadable. Work was therefore begun, but has proved extremely difficult. 
At this stage a simple declaration states that the simplification process begun during the Conference will be completed as soon as possible with the aim of consolidating all the treaties, including the Treaty on European Union: “the final results of this technical work, which shall be made public for illustrative purposes under the responsibility of the Secretary-General of the Council, shall have no legal value”.
This represents a retreat from the goal of consolidating all of the treaties, announced at the Dublin Summit. This is mainly because of the fear voiced by certain delegations that a new consolidated treaty would have to be ratified in order to have legal validity and this might mean national ratification debates reopening all of the provisions, not just the amendments introduced by the Amsterdam Treaty.

III.An effective and coherent external policy
The Maastricht Treaty stated that the Union should “assert its identity on the international scene”. To this end it created the ambitious concept of a common foreign and security policy.
If there was one area where it was difficult to assess the effectiveness of a policy when the Conference opened, it was undoubtedly the CFSP. It could have evolved gradually, growing out of mutual confidence, but was instead plunged immediately into the worst possible situation - the conflict in Yugoslavia - and was judged in the light of how it handled this crisis. Even on this question opinion was divided: had the CFSP failed, or had it prevented matters getting even worse?
Most commentators, however, agreed that political success had all too often eluded the European Union, even though it had created the necessary economic conditions. Many stressed the need for a global and coherent external policy, which inevitably aroused the suspicions of others who interpreted this as an attempt to undermine the pillars.
In the end, the Treaty of Amsterdam conducted a general review of the ways and means of external action by the European Union. Without fundamentally altering the approach that resulted from Maastricht, it probably endows the common foreign policy with much-needed new powers. Oddly enough, many of these are the very powers denied it during the Maastricht negotiations, prompting the President of the Commission at the time to compare the CFSP to a Cadillac with the engine of a lawnmower. It is to be hoped that the introduction of qualified majority voting in foreign policy matters, however tentative, will lead to a corresponding increase in power.
1.	Common foreign and security policy
The operational aspects of the CFSP have been improved. Scope for major qualitative advances now exists, but there is no guarantee that they will actually be made. Everything will still depend on the will of the parties concerned to use the instruments of the CFSP.
a)	The common foreign and security policy has been given more coherent instruments and a more effective decision-making procedure.
	- 	Articles J.3 to J.5 provide a clearer definition of the instruments. These definitions already existed in the Treaty but had become blurred through careless use. It is now clear that “joint actions” are specifically for operational purposes, whereas “common positions” relate to more general geographical or subject-based approaches.
		The use of a single decision-making procedure for these instruments should eliminate the source of the current confusion.
	-	The key development is the creation of “common strategies”, for which the procedure is described in Article J.3(2). They are agreed by the European Council by consensus, “in areas where the Member States have important interests in common”. The European Council also decides on the objectives and duration of common strategies and the means to be made available by the Union and the Member States.
		The crucial provision is Article J.13(2) which states that, when adopting actions or positions implementing common strategies decided by the European Council, the Council shall act by qualified majority. (The same applies to decisions implementing its own joint actions or common positions.)
		There is now a genuine possibility, therefore, that qualified majority voting will become a reality for the CFSP. The instrument exists; how it operates in practice will depend on the ability of the European Council to take strategic decisions.
	-	This move to embrace the possibility of qualified majority voting in the CFSP, which is in some ways surprising, only emerged gradually in the course of the Conference. Regarded as a remote hypothesis in the Reflection Group’s report, it first appeared in the Irish draft of December 1996. It only became possible once the Conference succeeded in providing a double safeguard for the Member States:
		*	“constructive abstention” (Article J.13(1), second subparagraph), whereby Member States may opt not to participate in certain cases. This is an ad hoc flexibility arrangement, making it easier to adopt initiatives which have a broad measure of support (at least 2/3 of the weighted majority) and which are undertaken in the name of the Union. Member States that do not actively take part in the action must not impede it;
		*	the possibility of blocking decisions on the grounds of “important reasons of national policy” (Article J.13(2), second subparagraph). In such cases, the Council, acting by qualified majority, may request that the matter be referred to the European Council for unanimous decision. The aim of this appeal to the European Council is to ensure that the veto is reserved for exceptional circumstances. It should ensure that the veto is not over-used.
	-	More emphasis has been given in Article C to the need for consistency between the different pillars, while keeping them separate and on an equal footing. However, the Treaty still lacks a systematic mechanism for ensuring synergy between the diplomatic and economic sides of foreign policy.
b)	The Treaty may also prove innovative when it comes to the administration of foreign policy:
	-	A common foreign and security policy function is introduced, to be performed by the Secretary-General of the Council, who assumes the role of High Representative for the common foreign and security policy, delegating the traditional administrative responsibilities to a deputy.
		The new function was discussed at length. It had its origins in an idea strongly backed by the French for a “Mr or Ms CFSP” - a high-ranking and prominent political appointment. However, the idea gained little support, largely because most other delegations saw it as complicating rather than simplifying matters: it would add yet another institution, making the system even more difficult to understand. It is also quite possible that the foreign ministers were unwilling to create a new figure of major political standing in their midst.
		The compromise agreed upon was to create the function but not the political personage, by using the existing figure of the Secretary-General of the Council. Although the Secretary-General of the Council will continue to be appointed, as in the past, by the governments rather than the European Council, he or she will assume a much more prominent role in foreign policy, the exact nature of which will be determined by practical experience.
		The Treaty defines the role of the Secretary-General as primarily to assist the Presidency (Article J.8(3)) or the Council (Article J.16), for example in a representative role and as the person in charge of the planning unit.
	-	The new “policy planning and early warning unit” is another innovation, responding to a clear need for forward planning. Agreement was reached at a very early stage in the Conference that this should provide a common basis for the preparatory work on the common foreign and security policy that has to date been decentralised. The hope is that this will make decision-making easier.
		A declaration annexed to the Treaty sets out the conditions under which the new unit will operate, within the Council and under the responsibility of its Secretary-General. Its staff will be drawn from the Member States, the Commission, the Council General Secretariat and the WEU. Significantly, the declaration requires the Member States and the Commission to provide the fullest possible information, including confidential information.
	-	The Commission acquires a greater role in the common foreign and security policy as a whole. It is particularly involved in representation and implementation and is explicitly included in the new Troika (Presidency, Secretary-General and Commission).
c)	Security and defence
	The debate on security and defence was bound to be frustrating. While it was universally agreed that a genuine foreign policy was inconceivable without a credible external enforcement capability, much of this debate understandably took place within NATO, where future membership was under discussion. Moreover a number of countries, of which the United Kingdom was the most outspoken, both before and after the general election, argued that any debate about defence between members of the European Union automatically undermined NATO and was to be avoided. Finally, matters were as always complicated by the fact that there is no exact match between membership of the European Union, the WEU and NATO.
	In these difficult circumstances the real innovations were dictated by changes in the militarily non-aligned countries which, taking up a text drafted by Finland and Sweden, suggested applying some of the lessons learned from the geopolitical events of recent years to the concept of neutrality itself.
	The Amsterdam Treaty therefore contains two important innovations in the area of security:
-	the possibility for the Council to take political decisions for the European Union in relation to the “Petersberg tasks” (“humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacekeeping”);
-	provisions for the Union to “avail itself” of the Western European Union to implement these political decisions with the ad hoc participation of the militarily non-aligned countries (Article J.7(3)).
This is undoubtedly a step forward given the importance of peacekeeping and crisis management operations in the current international context.
However, the scope of the provisions relating to the overall future defence structure is rather less clear.  For one thing, there are direct and more explicit references to joint defence and institutional relations with the Western European Union; for another, the European Council has to explicitly trigger proceedings for certain other developments, which could make matters more difficult. A Declaration by the Western European Union concerning its relations with the European Union and the Atlantic Alliance is annexed to the Final Act and should finally smooth the way to improving administrative cooperation between the EU and the WEU, something we have been waiting for since Maastricht.
In the absence of any clear long-term outlook, there is to be a new IGC, although the date has not been set (Article J.7(5)).

2.	External economic relations 
From the start of the Conference the Commission, with the backing of the vast majority of Member States, argued that Article 113 in its restrictive interpretation, and as applied in practice by the Council, was in need of modernisation. Given the globalisation of trade negotiations, services, intellectual property and investments should be clearly included in the Article 113 regime and administered under a system of qualified majority voting. Without this, Europe would find itself at a disadvantage compared with its competitors, in that if one single part of an agreement still had to be approved unanimously the effect would be to make the entire agreement subject to unanimity. This made it all too easy for a non-member state to put pressure on a single Member State to weaken the position of the Union. There was also a significant risk that a Member State would make its agreement conditional on certain, possibly onerous, demands being met, and this has indeed happened on occasion. The restrictive interpretation of Article 113 was thus anachronistic and disadvantageous.
However, a minority of Member States (United Kingdom, France, Denmark, Portugal and Spain) felt that the inclusion of services and intellectual property in Article 113 would amount to a transfer of sovereignty to the Community for which they were not yet ready.
Despite long discussions and endless attempts it proved impossible to substantially modernise the provisions of Article 113, which was therefore left as it stands. A modest new provision was, however, included at the last minute, with the aim of introducing a “fast track”: the Council, acting unanimously, may at a future date extend the application of Article 113 to international negotiations and agreements concerning services and intellectual property not already covered by the article.

IV.The Union’s institutions
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)).

CONCLUSION

Predicting the future role of the Treaty is a hazardous business. The Single Act,  adopted in a climate of indifference, proved a powerful tool for federalisation. The Maastricht Treaty, on the other hand, was ratified with the greatest of difficulty but probably did not radically transform existing practice, with the exception of the single currency, yet still managed to divide opinion into pro- and anti-Maastricht camps and coin a whole new vocabulary to go with it.
The issues and content of the Amsterdam Treaty were partly overshadowed at the Amsterdam Summit by the simultaneous debate on the Stability Pact to accompany EMU. It was greeted with scepticism for failing to reach agreement on some of the aspects exposed to the most intense media coverage because they supposedly pitted the large states against the smaller ones.
The ratification stage will begin this autumn, and there is a real danger that the national debates will be complicated by the many issues where Europe is playing for high stakes: the single currency, enlargement, EU finances.
The Amsterdam Treaty is by no means the last word on European integration. Like its predecessors it marks a further stage in the process. However one views it, it probably represents the most that the Member States were prepared to agree among themselves at a given moment. And like any treaty, everything will depend on what is made of it in practice. 
It does, however, have some potential strengths (the role of the European Parliament; the change in the status of justice and home affairs; perhaps a new landmark in the creation of a European foreign policy; the chapter on employment) and several likely weaknesses (institutional questions, particularly the retention of the unanimity requirement for too many decisions). These will certainly give rise to further conferences, some of which have already been scheduled. 
Commentators who were hoping for some great institutional overhaul before enlargement have been disappointed and have consequently written Amsterdam off as a fiasco or farce. But it has to be said that after two years of reflection the great institutional debate has proved to be curiously vacuous and misguided.
If the debate boils down to the measures proposed but not agreed in Amsterdam, these hardly amounted to the major reform for which such rash claims were sometimes made:
-	the reweighting of votes in the Council, which was justified to some extent to offset the impact of enlargement, was couched in political terms and thus became a political problem. But if we look more closely at the issue and add up the numbers involved, a reweighting of the majority according to any of the formulas envisaged in Amsterdam would have produced no change whatever in any of the decisions adopted by the Council over the past three years;
-	the question of the number of Commissioners is more fundamental, and the case for slimming down the Commission is a strong one. But if it is simply a matter of whether there should be 20 or 26 Commissioners it is hard to see this as the tremendous reform that would transform the workings of the Union.
Two simple remarks suggest cause for both humility and perseverance:
-	firstly, all of the delegations asserted their commitment to maintaining the institutional balance (yet this balance is constantly shifting, as exemplified by the increased role of the European Parliament); this commitment means that everyone wants to build on the foundations of the achievements of forty years of European integration - and will continue to do so for the foreseeable future. There will be no tabula rasa on which radically new institutional formulas will be rebuilt;
-	secondly, there is no magic formula that can confound the mathematics: the organisation will inevitably be more difficult for a group of 21, 26 or 30 than one of 6 or even 15. Enlargement has certain inherent consequences.
What this amounts to is that the reforms to be undertaken in response to the demands of enlargement cannot be achieved by new constitutional formulas so much as by a less headline-grabbing series of changes to the way our institutions operate. Most of these reforms are a question of fine-tuning, and many rightfully belong in the internal rules of procedure rather than in the Treaty itself.
The Commission, for example, is currently reexamining the way its departments operate and experimenting with working methods involving groups of Commissioners. The most urgent measures should probably relate to the Council, as the institution most affected by the increase in its membership. Problems with conducting meetings and discussions and administering implementing measures all increase exponentially as the number of members grows. Written procedures need to be invented, authority has to be delegated more systematically, and a rationalisation of the General Affairs Council is essential. None of these points requires an amendment to the Treaty. The same cannot be said of a reweighting of votes in the Council, but freed of the political baggage with which it has been encumbered it can join the ranks of those adjustments that should not be insurmountable.
Apart from these much needed operational improvements, does this mean there is no such thing as a single, important, easily identifiable institutional reform which would enable us to look ahead to enlargement without apprehension?
Not exactly. In fact we have known for some time that what is required is an end to unanimous decision-making and the general use of qualified majority voting. It is on this score that the Treaty still has far to go: in the short term for justice and home affairs, progressively for foreign policy decisions, and ultimately, when everyone is mentally ready for it, for amending the Treaty itself.

								Michel Petite

Assessing the achievement of the Commission’s objectives for the IGC (Comparative table)

EUROPEAN PARLIAMENT

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
Procedures	Limited to three: consultation, assent and co-decision.	Limited to three: consultation, assent and co-decision (but co-operation procedure maintained for the four cases under EMU).	
Wider application of co-decision

	The Commission considers that all acts of a legislative nature should be adopted by means of the co-decision procedure. Articles concerned:
- Art. 6, paragraph 2 (prohibition of any discrimination on grounds of nationality)
- Art. 8a(2) (freedom of movement and residence)
- Art. 8b(1) (right to vote and stand for election)
- Art. 43 (common agricultural policy and fisheries policy: acts of general political scope)
- Art. 51 (social security for Community migrant workers)
- Art. 55 (exception to the right of establishment)

- Art. 57(2) (provisions governing professions)
- Art. 59 (freedom to provide services)
- Art. 73c (movement of capital to or from third countries)
- Art. 75 and Art. 84 (implementation of a common transport policy)
- Art. 99 (harmonisation of legislation on indirect taxation)
- Art. 100 (approximation of laws)

- Art. 113 (basic provisions governing anti-dumping and anti-subsidy measures; provisions on trade protection measures; rules on general import and export schemes)
- Art. 118a (minimum requirements on harmonisation in the area of welfare)
- Art. 125 (implementing decisions relating to the European Social Fund)
- Art. 127(4) (vocational training)

- Art. 130b (special cohesion measures)
- Art. 130d, first and second paragraphs (Structural Funds)
- Art. 130e, first paragraph (Cohesion Fund)

- Art. 130s(1), (2) and second paragraph of (3) (environment: measures to be taken in pursuit of the general objectives)
- Art. 130w(1) (development co-operation: measures required to further the general objectives)
- Art. 145 (co-decision procedure arrangements)
- Art. 209 (Financial Regulation)
- Art. 212 (Staff Regulations)
.	Co-decision extended to the following articles (subjects):

- Prohibition of any discrimination on grounds of nationality (Art. 6)
- Freedom of movement and residence (Art. 8a(2))

- Social security for Community migrant workers (Art. 51)

- Right of establishment for foreign nationals ( Art. 56(2))
- Provisions governing professions (Art. 57(2))

- Transport policy: implementing measures (Art. 75 and Art. 84)

- Articles resulting from incorporation into the Treaty of the Agreement on Social Policy, with the exception of the areas of the Agreement that currently require unanimity

- Implementing decisions relating to the European Social Fund (Art. 125)
- Vocational training (Art. 127(4))
- Public health (Art. 129)
- Other measures (Trans-European Networks) (Art. 129(d), third paragraph)

- Implementing decisions relating to the European Regional Development Fund (Art. 130e)
- Research (Art. 130o, second paragraph)
- Environment (Art. 130s(1))

- Development co-operation (Art. 130w)

New provisions:
- Equal opportunities and equal treatment (Art. 119)
- Openness (Art. 191a)
- Combating fraud (Art. 209a)
- Statistics (Art. 213a)
- Establishment of an independent advisory authority on data protection (Art. 213b)
- Employment incentive measures (new Title)
- Customs co-operation (new article)
- Social policy: incentive measures to counter social exclusion (Art. 118(2))	
Simplification of co-decision procedure	To drop the third reading	Second reading simplified.
Third reading dropped.	
Membership of EP	Limited to 700.	Limited to 700: appropriate representation of all the peoples of the Member States must be ensured	
Common electoral procedure	Establishment of a common electoral procedure to ensure that members are as representative as possible (as already laid down in the Treaty).	New Article 138(3) “The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedures in all Member States or in accordance with principles common to all Member States..	

COMMISSION

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
Role of the Commission	The Commission’s right of initiative, its executive powers, and its role as guardian of the Treaties must be preserved.	Not called into question.	
Appointment of Commission	President should be approved by Parliament.

Greater role in choice of the Commission Members, who should be appointed by common accord between the President and the respective governments of the Member States 	Approval by EP of designated President.

Commission members  to be appointed by “common accord” with the governments. Article 163: “The Commission shall work under the political guidance of its President”	
Membership of the Commission	The number of Commission Members should be reduced to one per Member State. To be re-examined above a certain number of Member States; the IGC should agree an appropriate procedure for doing this.	Protocol deferring the matter until the time of enlargement:
- at the date of the first enlargement one Member of the Commission per Member State, provided that the weighting of votes in the Council has been modified;
- one year before membership of the Union exceeds twenty a new IGC to be convened “to carry out a comprehensive review of the provisions of the Treaties on the composition and functioning of the institutions”.	

COUNCIL

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
Greater use of qualified‑majority voting

	Majority voting should be the general rule.

“Super-qualified” majority voting could be used in particularly sensitive fields.

The procedures for amending the Treaty, except as regards constitutional-type provisions, should be less unwieldy than at present.	Qualified majority voting extended to cover:

- Employment guidelines and incentive measures (Art. 4 and 5 of the new Title)
- Social exclusion (Art. 118(2))
- Equal opportunities and treatment of men and women (Art. 119(3))
- Public health (Art. 129(4))
- Openness (Art. 191a)
- Countering fraud (Art. 209a)
- Statistics (Art. 213a)
- Establishment of an independent advisory authority on data protection (Art. 213b)
- Outermost regions (Art. 227(2))
- Customs co-operation (new article)
- Compensatory aid for imports of raw materials (Art. 45(3))
- Co-ordination of provisions on the right of establishment (Art. 56(2))
- Adoption of the research framework programme and provisions adapting or supplementing it (Art. 130i(1) and (2))
- Setting up of joint undertakings in RTD (Art. 130o)

Qualified majority voting was not extended to the following:
- Free movement and residence (Art. 8a)
- Social security (Art. 51)
- Amendment of legal principles governing professions (Art. 57(2))
- Indirect taxation (Art. 99)
- Culture (Art. 128)
- Industry (Art. 130)
- Environment (Art. 130s)
- Financial Regulation (Art. 209)
- Provisions of the Social Protocol (existing)

- Employment incentive measures (new Title)
	
Weighting of votes	To preserve the existing balance it will be necessary, come enlargement, to either adapt the weighting of votes or introduce a new system which makes reference both to a majority of the Member States and a majority of the Union’s population.

The normal threshold for a qualified majority, set at around 71% since the early days of the Community, should therefore not be raised in any circumstances.	The Protocol on the institutions states that:

- the system will be changed at the time of the first enlargement to take account of the larger States losing their second Commission Member, either by straightforward re-weighting or by a system of dual majority;

- one year before membership of the Union exceeds twenty a new IGC is to be convened “to carry out a comprehensive review of the provisions of the Treaties on the composition and functioning of the institutions”.	
	The General Affairs Council should again perform an effective role of co-ordination and arbitration in the various areas covered by the Treaty.	COREPER may adopt procedural decisions in cases provided for in the Council’s Rules of Procedure.	

 COURT OF JUSTICE

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
.		
The Commission agrees with the Court that judges’ terms of office could be extended and made non-renewable, reinforcing still further the judges’ independence.	Nothing.	

COMMITTEE OF THE REGIONS
Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
Nothing (but note Commission decision at its 1282nd meeting and subsequent concrete proposals):

- administrative autonomy
- consultation on a wider range of topics
- members to be elected	

- Administratively separate from Economic and Social Committee autonomy.

- Consultation on a wider range of topics (e.g. employment, social policy, public health, environment, the Social Fund, vocational training and transport).

- May be consulted by the European Parliament.

- Its members may not at the same time be Members of the European Parliament.	

ECONOMIC AND SOCIAL COMMITTEE

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
.		
Nothing.	- Administratively separate from Committee of the Regions.

- Consultation on a wider range of topics (e.g. employment, social policy, public health).

- May be consulted by the European Parliament.

COURT OF AUDITORS

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
Nothing.	Powers extended under Art. 188c to cover auditing expenditure by external bodies, including the European Investment Bank.

“The Court shall have jurisdiction under the same conditions in actions brought by the European Parliament, by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives” (Art. 173, third paragraph)	

NATIONAL PARLIAMENTS

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
.		
National parliaments should be more involved in Union affairs and be given all necessary information in good time.	Protocol on national parliaments concerning:

- the transmission of documents to national parliaments in good time: six weeks between the forwarding of a proposal to the Council and the European Parliament and the date on which it is placed on a Council agenda for decision;

- the Conference of European Affairs Committees entitled to make contributions for the attention of the EU institutions on certain matters, such as fundamental rights, justice and home affairs and subsidiarity.

COMMITTEE PROCEDURE

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
The Commission suggests that there should be just three types of committee and procedure - the advisory committee, the management committee and the regulatory committee - and that all variants be dropped.	Declaration on reviewing the 1987 decision.	

FLEXIBILITY

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
.		
The European Union must not be for ever bound to advance at the speed of its slowest members.

The European Union must make it possible to have forms of co-operation or integration between those of its members wishing to progress faster in the attainment of the Treaty’s objectives, where the possibility of other forms of action involving all the Member States have been exhausted.

This flexibility will have to be guided by the following principles so as to guarantee the unity of the Union:

- compatibility with the objectives of the Union;
- consistency with the institutional framework of the Union;
- only to be used as a last resort;
- opportunity for other States which are willing and able to join at any time;
- safeguarding of the single market and the policies accompanying it.

The Commission, subject to review by the Court, will have to ensure that the principles set out above are respected.
	1.  System introduced to allow for closer co-operation under the first and third pillars.
For common foreign and security policy, “constructive abstention” deemed to meet requirements.

2.  The arrangements largely reflect the Commission opinion and the NON‑PAPER of 23 January 1997 (CONF/3805/97):
-    no positive or negative list of areas authorised or ruled out
-    strict, but workable criteria: closer co-operation may not concern areas which fall within the exclusive competence of the Community or affect Community policies, actions or programmes;
-    Commission to submit a proposal only where it deems the closer co-operation to meet the criteria; in the case of the third pillar it is to issue only an opinion;
-    Parliament consulted in the case of the first pillar and informed in the case of the third pillar;
-    flexibility initiated by qualified majority, unless a Member State uses it veto on grounds of “essential interests” in which case the matter is referred to the European Council for decision by unanimity.

3.   The arrangements for the first pillar give the Commission full responsibility for deciding on any request to join from non-participating States, after notifying the Council of its opinion.
   For the third pillar it is the Council which decides after receiving the Commission’s opinion.

COMMON FOREIGN AND SECURITY POLICE AND DEFENCE

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
	Prime objectives:
- enhance consistency and continuity;
- improve the common foreign and security policy at all stages of its operation;
- establish a proper European identity for security and defence.		

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
CONSISTENCY	

Greater co-ordination and co-operation between institutions involved.

An effective partnership between the Presidency and the Commission.  Internal reorganisation of the Commission, greater support for the Presidency from the Council Secretariat.	Framework more clearly defined by a greater role for the European Council (particularly its adoption of “common strategies”).

Art. C strengthened.

Support for Presidency from new Secretary‑General, plus analysis unit. 

A Vice-President of the Commission responsible for foreign affairs as announced by the Commission, but amendment of the Treaty unnecessary.  The new Troika (Presidency/Sec.Gen./Commission) will provide co-ordination at least for the representation stage.

COMMON FOREIGN AND SECURITY POLICY

Preparation of decisions	

A “joint analysis unit”, composed of experts from the Member States and the Commission, should be set up.  It would be a joint department and might receive some funding from the Western European Union.  Its location is a matter of less significance.

Incorporation of a Brussels-based standing Political Committee into the Council's existing machinery for preparing decisions.	

Appointment of a Secretary-General with responsibility for common foreign and security policy.

Unit to be set up under the responsibility of the Secretariat of the Secretary General of the Council and staffed by personnel from the Council, the Member States, the Commission and the WEU.

The Member States and the Commission must forward all relevant information. 

The unit may present options. 

More flexible arrangements allowing the political committee to meet more often in Brussels (and at different levels).
	
Adoption of decisions	Clarification regarding the use of instruments.	Introduction of “common strategies” (adopted by the European Council).

More detailed definition of joint actions and common positions, with co-ordination within the common strategies.
	
	Qualified-majority voting should be the norm for the common foreign and security policy.  Specific rules should apply for decisions involving military matters.
	Presented in the form of a derogation, qualified-majority voting is used for joint actions and common positions within the scope of a common strategy.	
		Unanimity is the norm for basic decisions (common strategies) and for all decisions on military matters.
	
		Constructive abstention is specifically provided for, as is the possibility, for important reasons of national policy, of referring a proposal to the European Council for a decision.
	
	Possibility for some, but not all, Member States to act  (on behalf of the Union).	Partly covered by constructive abstention.

Implementation	Primary responsibility for implementation should lie with the Presidency and the Commission.	The Presidency will be assisted by the new Secretary-General (see above) and the Commission will be closely involved.

		These three also constitute the “new Troika” dealing with representation; the presence of the next Presidency is optional if required.

Financing

	This approach should not prevent certain tasks being allocated to specific personalities designated on an ad hoc basis.

The Commission proposes that common foreign and security policy expenditure be included in the Community budget, unless an express decision to the contrary is taken.
	The Council may appoint special envoys for specific tasks or topics.

Operating expenditure financed as a rule from the Community budget. Interinstitutional agreement, maintaining this expenditure as non-compulsory but allowing for the Council to adopt a decision quickly in the case of specific spending.	
		
DEFENCE
			
A European identity for security and defence

Specific measures

Armaments	The CFSP suffers from its inability to project credible military support.

A genuine foreign and security policy must have common defence.

Inclusion of the “Petersberg tasks”.

Appropriate role for Defence Ministers in the Council.

Review of the role of the WEU with a view to incorporating it into the Union in accordance with a fixed timetable.

Better integration of the armaments industry into the general Treaty rules, greater solidarity and co-operation, including the establishment of an armaments agency, and a consistent approach to foreign trade are required.	Inclusion of the “Petersberg tasks” in the Treaty (see below), with mechanisms for co-ordination between WEU members and non-members as regards implementation.

The CFSP will include the gradual definition of a common defence policy., which may lead to common defence if so decided by the European Council

Included (peacekeeping and peacemaking)

Gradual integration referred to as a possibility.  Interinstitutional co-operation will be extended.

The common defence policy will be reinforced by appropriate co-operation between the Member States in this area.

COMMERCIAL POLICY

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
To take account of the radical changes in the structure of the world economy, services, intellectual property and direct foreign investment must be explicitly covered by Article 113.	1. Existing arrangements under Article 113 maintained.

2.  But new provision added: Art. 113(5) “The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on services and intellectual property insofar as they are not covered by these paragraphs.”	

LEGAL PERSONALITY OF THE UNION

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
Union to exist as a single legal person (merger between those of the Community, ECSC and Euratom).	Union still has no legal personality; the Community, ECSC and Euratom therefore continue to exist.

But the Union now has the power to conclude agreements for the implementation of the common foreign and security policy and the third pillar, giving it some legal personality. These agreements are negotiated by the Presidency, with the possible assistance of the Commission, and concluded by the Council by unanimity.	

FUNDAMENTAL RIGHTS
Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
The Conference should look at the following issues:

- the possibility of the European Union signing the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- listing fundamental rights;
- making explicit reference to fundamental rights in the Treaty.	1. Article F amended to make clearer reference to the Union’s fundamental principles;
2. The EU will not sign the Convention (idea dropped following opinion 2/94 of the Court of Justice about whether signing the Convention is compatible with the Treaties);
3. New reference in the preamble to the Treaty and in the Treaty itself (social provisions) confirming respect for fundamental social rights, as defined in the European Social Charter;
4. Judicial control: confirming that the jurisdiction of the Court of Justice extends to guaranteeing respect for fundamental rights by the Community institutions (except as regards the common foreign and security policy) (Art. L);
5. Amendment of Article 0 stating that applicant countries must comply with the principles set out in Article F(1);
6. System of penalties for States that fail to comply with fundamental rights;
- After this state of affairs has been determined by the Heads of State or Government, the Council, acting by a qualified majority, may decide to suspend certain rights, including voting rights in the Council, for the Member State concerned (Art. Fa and Art. 236)
7. Two declarations, stating that:
- the death penalty is no longer applied in the Union
- the status of religious and non-confessional communities will be respected.
8. New article guaranteeing protection of personal data held on individuals by the institutions.	

NON-DISCRIMINATION
Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
.		
To be incorporated into the Treaty:

- a  ban on discrimination of any kind, particularly on the basis of sex, extending the provisions on equal pay.
	Introduction of a general anti-discrimination clause that goes beyond nationality, with explicit reference to sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Art. 6a).

Adding a new paragraph to Article 3 of the Treaty enshrining sexual equality as a general principle (Article 119).	

JUSTICE AND HOME AFFAIRS

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
New title in the EC Treaty
- Structure

- Decision-making	Justice and home affairs objectives would be better served by effective decision-making, more powerful legal instruments and democratic and judicial safeguards.

Justice and home affairs should be brought under the Community umbrella, with the exception of co-operation on criminal justice and police co-operation. This is particularly important in areas most directly linked to the movement of persons, such as rules governing the crossing of the Union’s external borders, combating drugs, immigration policy, policy towards nationals of non-member countries and asylum.

Qualified majority voting should become the rule, replacing unanimity.

The Commission should have the right to initiate legislation in all the areas concerned.

Greater involvement of the European Parliament.
	1. Border controls, asylum, visas, immigration and co-operation on civil justice brought into the Community framework.

2. Five-year programme to guarantee the free movement of persons in accordance with Article 7a 

1. For a transitional period of five years, the Council will, after consulting the European Parliament, act unanimously on proposals from the Commission or any Member State.

2. After the five years:
- the Commission will have the exclusive right to initiate legislation
- the Council will act unanimously on a total or partial move over to qualified majority or co-decision. Exception for visas which are or will be automatically subject to qualified majority.

3. Role of the Court : Referral for a preliminary ruling (obligatory for national last-instance courts) and action in the interests of the law. Exception for controls at internal borders.

4. Protocols: one on the special situation of the UK and Ireland, and one on the special situation of Denmark	

Upgrading Title VI (the “3rd pillar”)

- Decision-making	Title VI is limited to co-operation on criminal justice and police co-operation, for which the arrangements need to be improved.

- generalised right of initiative for the Commission
- more effective legal instruments
- review by the Court to ensure uniform interpretation
- Council working methods to be simplified	Title VI restricted to provisions on police co-operation and co-operation on criminal justice.
Objectives:
- to combat racism and xenophobia, terrorism, trafficking in human beings and crimes against children, drug trafficking, arms trafficking, corruption and fraud.

Means:
- Co-operation between police forces, customs authorities and other executive authorities in the Member States, either directly or via Europol.
- Co-operation between national authorities and the courts.
- Approximation of criminal law provisions.

-  Decisions taken by unanimity.
- Joint Member State/Commission right of initiative (extended for the Commission to cover all matters under Title VI).
- New legal instrument : the framework decision (similar to a directive, since it has to be transposed and is not subject to ratification, but without direct effect).
- European Parliament consulted.
- Role of the Court subject to acceptance of its jurisdiction by each Member State (declaration to this effect at signing of Treaty or subsequently)
Jurisdiction to give preliminary rulings with no referral obligation for national last-instance courts.
Jurisdiction over interpretation in the event of:
* disputes between Member States concerning the interpretation and implementation of any act under the third pillar, where the Council has not managed to settle the dispute within six months of its being referred to the Council;
* disputes between Member States and Commission concerning the interpretation of conventions
Review of legality in actions brought by Member States or the Commission. No jurisdiction to review the legality or proportionality of operations to safeguard law and order.	
Schengen	Incorporation of the content of the Schengen Agreement into the Treaty.	Incorporation of the Schengen acquis into the Union legal order, from when the Treaty comes into force, broken down between the first and third pillars. Special opt-in arrangement for Ireland and the UK and a reservation for Denmark concerning the breakdown in the first pillar.	
Asylum	Nothing.	Protocol on asylum
- restriction on cases where asylum or refugee applications from other Member States’ nationals are admissible;
- presumption that asylum applications from other Member States’ nationals are inadmissible	

FRAUD AGAINST THE COMMUNITY’S FINANCIAL INTERESTS

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
To strengthen the legal basis.	To make Article 209a on protecting financial interests more effective with the introduction of a legal basis for adopting Community measures using, the co-decision procedure (Art. 189b).

EMPLOYMENT

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
General objectives:
- high level of employment
- growth, employment and competitiveness are closely linked and mutually reinforcing in a co-ordinated strategy.

Working on the principle that employment should be seen as a matter of common interest, to include special provisions on employment in the Treaty to:
- set the stage for a joint employment strategy;
- stimulate co-operation between the various parties involved;
- consolidate provisions on multilateral monitoring of Member States’ multi-annual programmes;
- take account of employment in all Community policies.	General objectives:
- high level of employment
- competitiveness
- drawing up a co-ordinated employment strategy

Addition of a new Title on employment:

Specific objectives:
- to promote employment as a matter of common interest between the Member States and to co-ordinate national employment policies in the Council to produce a co-ordinated strategy, based on adaptability of the work-force and labour markets.

Instruments:
- Drawing up annual Community-level guidelines on employment on a proposal from the Commission in line with the broad economic policy guidelines adopted pursuant to Art. 103(2).
- Union-level monitoring of Member States’ implementation of the employment guidelines;
- Adoption by qualified majority of incentive measures, in particular pilot projects.
- Taking account of employment in other Community policies.
- Creating an advisory committee on employment.	

SOCIAL POLICY

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
To incorporate the Social Protocol into the Treaty and improve it with reference to:
- equal treatment of men and women
- measures to combat social exclusion and poverty
- more involvement of people active in the civil society
- wider use of qualified majority and co-decision	Incorporation of the Social Protocol. Three improvements:
- equal treatment of men and women
- action against social exclusion by adopting incentive measures
- co-operation procedure replaced by co-decision procedure
No extended use of qualified majority for the existing provisions (either in the Social Protocol or the Treaty), but qualified majority and co-decision for the new legal bases: equal treatment of men and women and incentive measures to combat social exclusion	

ENVIRONMENT

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
Two additions to the Treaty :
- the right to a healthy environment and the duty to ensure it;

- environmental considerations should be explicitly incorporated into other Union policies.

Extension of qualified majority to cases covered by Article 130s(2) (environmental taxes, energy and land planning)	Sustainable development added as one of the objectives of the Union. Incorporating environment into other policies in (Article 3d)
Amendment of Art. 100(3) (high level of protection) to extend its application to the European Parliament and the Council.
Amendment of Article 100a(4) as follows:
-  extension of national derogations from measures adopted by the Commission;
-  deadline within which the Commission must confirm or reject derogation requests (six months);
- the article applies to new measures subsequent to harmonisation under strict conditions (new scientific facts making it possible to resolve a specific problem in a Member States.
Unanimity maintained for Art. 130s(2) (environmental taxes etc.)	

PUBLIC HEALTH

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
Proposal to amend Article 129 to allow for Community harmonisation, by co-decision and qualified majority, in the area of public health protection and particularly in the veterinary and plant health fields .	Article 129 amended along the lines proposed by the Commission. The objectives have been reordered and the scope of Community action clarified and broadened, although still as a supplement to national policies and measures.

New legal basis for:

- the adoption of minimum standards in certain areas (quality and safety of organs and substances of human origin, blood and blood products);

- the adoption of measures in the veterinary and plant health fields for the direct purpose of public health protection, by way of derogation from Article 43.

In both cases the procedure is qualified  majority and co-decision.	

CONSUMER PROTECTION

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
Nothing.	Clarification of consumer protection objects and explicit reference to consumer education and representation

Consumer interests incorporated into other Community policies.	

OPENNESS

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
.		
Information on what the Union is doing should be more accessible and more reader-friendly so that the public can find out what they want to know.	Right of access to European Parliament, Council and Commission documents for Union nationals and people residing or having their business based in the Union.

This right to be governed by principles and limits to be determined within two years (qualified majority and co-decision).

Each institution subsequently to lay down specific provisions in it own rules of procedure regarding access to its documents.

Publication of the results of Council votes on legislation with explanations of votes and of declarations recorded in its minutes.	

SUBSIDIARITY

Commission Opinion (February 1996)	Text of the Dutch Presidency (16 May 1997)	
		
Nothing.	 Protocol incorporating the main points of the Edinburgh conclusions	

OUTERMOST AND ISLAND REGIONS

	Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
			
Outermost regions	Nothing.	New legal base (qualified majority) for adopting special measures “taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies”	
Islands	Nothing.	Reference in the second indent of Article 130 to boost Community initiatives specifically targeted at islands, with a declaration on their special characteristics	

PUBLIC SERVICES

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
To promote public access to universal or general interest services.	Provision on public services in a new Article 7d 

Interpretational protocol on public service broadcasting (without prejudice to Articles 90 or 92 ff.)

Declaration on public credit institutions in Germany (without prejudice to Article 90).	

SIMPLIFICATION OF THE TREATIES

Commission Opinion (February 1996)	Amsterdam Treaty (20 June 1997)	
		
The Treaties should be simplified and consolidated as far as possible.	Declaration stating that this work should be finalised as promptly as possible so that all the Treaties, including the Treaty on European Union, can be consolidated.

“...the final results of this technical work, which shall be made public for illustrative purposes under the responsibility of the Secretary-General of the Council, shall have no legal value”.	
TF CIG 96
25.06.97