Research Note
Prepared for the European Committee
99/18 4 August 1999
THE AMSTERDAM TREATY
The Amsterdam Treaty is one of the most important recent developments in the European Union. Amsterdam revises the Treaty on European Union (also known as the Maastricht Treaty), the Treaties establishing the European Communities and other related Acts. The Amsterdam Treaty was signed by the Heads of State or Government of the 15 Member States on 18 June 1997 and came into force on 1 May 1999. This research note1 provides a brief overview of the main provisions of the Treaty2, summarising the most important changes it makes to the Treaty on European Union and the EC Treaty. MAIN CHANGES INTRODUCED BY AMSTERDAM • • • • Increased powers for action at Community level, both in relation to Member States and in a wider range of policy areas Increased powers for the European Parliament New procedures within Community institutions New principles, new tasks and new titles for Community action
Related Research Note 9/99 provides a brief guide to the constitution, institutions and legislation of the EU. 99-9 Legal Basis of European Union 2 See Dodd, T, Ware, R and Weston, A (1997) The Amsterdam Treaty, House of Commons Library Research Paper 97/83, 25 June 1997 for a more comprehensive account of the Treaty provisions.
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These changes increase the importance of the European Union in the lives of its citizens at the same time as the changes provide greater powers for democratic participation, primarily through the enhanced powers of Members of the European Parliament in making legislation. These main changes are outlined in more detail later in this note under the following headings: • • • • • Common provisions of the Treaty on European Union The Community pillar Institutions and Procedures The Common Foreign and Security Policy pillar The revised third pillar on Police and Judicial Co-operation in Criminal Matters
Before detailing these changes, the background to Amsterdam is summarised. BACKGROUND Making the Treaty Under the Treaty on European Union, an Intergovernmental Conference (IGC) of the 15 Member States is the mechanism for revising the Treaties founding the European Union. The IGC which took place between March 1996 and June 1997 was the negotiating forum for the revisions made by the Treaty of Amsterdam. The aim of the negotiations was to address the challenges facing the EU on the brink of the 21st century. These include: • • • • rapidly evolving international developments globalisation of the world economy and its impact on employment terrorism, crime and drug trafficking environmental problems and threats to public health3
In addition, the composition and workings of the EU institutions were addressed, particularly at the behest of the European Council. While preparation for the planned enlargement of the EU was intended to form part of the IGC agenda, consideration of this issue was largely postponed, being addressed only in one of the Protocols and several of the declarations to the Treaty4. What the Treaty does The Treaty of Amsterdam substantially amends the Treaty on European Union and the Treaties establishing the European Community (EC Treaty). Most of the articles of these Treaties have been renumbered by Amsterdam in the process of simplification and consolidation.
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These aims are taken from the European Commission’s Comprehensive Guide to the Amsterdam Treaty on the Commission’s Europa web site at www.europa.eu.int/scadplus/leg/en/lvb/a09000 4 The Amsterdam Treaty consists of three parts, one annex, 13 Protocols and 51 Declarations .
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The Treaty on European Union (the Maastricht Treaty) brought together the three European Communities founded by the original Treaties of Paris and Rome. Maastricht introduced the ‘pillar’ structure5 into the EU. After Maastricht, the EEC became known as the EC and the original communities were taken to constitute the first pillar, or the community pillar of the European Union (EU). Maastricht introduced two further pillars: the second pillar on common foreign and security policy (CFSP) and the third pillar on co-operation in justice and home affairs (JHA). Community action under these new pillars was based on intergovernmental cooperation in contrast to action under the first pillar which was based on community institutions and procedures. The Treaty of Amsterdam amends the three pillar structure of the Treaty on European Union, primarily by bringing part of the Justice and Home Affairs pillar into the Community pillar and redefining the scope of the previous third pillar. In addition, Amsterdam introduces new principles and powers to the common provisions of the Treaty on European Union, introduces several new tasks and titles to the Community pillar, makes some amendments to the second pillar arrangements for a common foreign and security policy, and redefines the scope of community institutions and procedures in some areas. COMMON PROVISIONS OF THE TREATY ON EUROPEAN UNION Amsterdam amends the common provisions of the Treaty on European Union by: • introducing a new principle of openness, with EU decisions to be taken as closely as possible to the citizen (new Article 1), thus emphasising the principle of subsidiarity6 introducing new objectives, including the promotion of high employment levels across the Union and progress towards the Union as an area of freedom, security and justice (new Article 2) stating (in new Article 6) that the Union is founded on respect for human rights, democracy and the rule of law, with adherence to these principles now a condition of application for EU membership (under new Article 49) strengthening (in new Article 46) the previous provision of EU respect for the fundamental rights expressed in the European Convention on Human Rights and in the national constitutions of Member States by making this provision justiciable7
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This is Euro parlance, which uses imagery to invoke an idea. Thus, the idea is that the second and third pillar stand on either side of the main pillar, helping support the prime (first pillar) functions of the Community. Before Amsterdam, this image also represented the different levels of power operating, with Community action in the main pillar and intergovernmental action in the second and third. After Amsterdam, this distinction is much less clear.
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providing (in new Article 7) that Member States found by the Council to be in ‘serious and persistent breach’ of Article 6 principles may have certain membership rights suspended (including voting rights)
THE COMMUNITY PILLAR The Treaty on European Union brought together the Treaty provisions establishing the European communities to constitute the first or community pillar of the EU. The Treaty of Amsterdam makes further changes to the first pillar, primarily by: • • • • • including new tasks for the Community enhancing legislative competence in certain areas promoting the concept of transparency in EU institutions and texts introducing new titles on free movement of persons and on employment incorporating the Social Chapter into the EC Treaty
New tasks for the Community The new tasks for the Community are included in new Article 2. promotion of: • • • • Equality between men and women Quality of the environment High levels of economic competitiveness Sustainable development These are the
Legislative competence Under the Amsterdam Treaty, the Community is given legislative competence to outlaw discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation8. Under new Article 11, the Council may authorize closer co-operation between Member States on the basis of a decision taken by Qualified Majority Voting9 (QMV) on a Commission proposal in this area. A principle of constructive abstention has been introduced to QMV under this article, allowing a Member State to abstain in a vote, yet
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The principle of subsidiarity is one of the general principles of the EU. Broadly, the principle is that action should not be taken at Community level unless that action ‘cannot be sufficiently achieved by the Member States’ (see new Article 5 of the EC Treaty). 7 Thus the European Court of Justice now has jurisdiction over the actions of Community institutions in this area. 8 New Article 13 of the Treaty establishing the European Community. 9 In QMV, Council decisions must be carried by at least 62 votes, cast by at least ten Member States. The votes are distributed among the Member States as follows: France, Germany, Italy and the UK have 10 votes each; Spain has eight votes; Belgium, Greece, the Netherlands and Portugal have six votes each; Austria and Sweden have 4 votes each; Denmark, Finland and Ireland have three votes each; and Luxembourg has 2 votes.
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make a declaration accepting that the decision commits the EU without binding the abstaining Member State. A Protocol on applying principles of subsidiarity and proportionality10 has also been adopted and annexed to the EC Treaty. Transparency The Treaty of Amsterdam also promotes the concept of transparency in an attempt to promote better understanding of the EU among the general European public and improve democracy in EU decision-making. Transparency is addressed partly via the simplification and consolidation process for EU legislation agreed in Declarations adopted by the IGC; however, transparency has also been addressed in several amendments to the EC Treaty. These are: • Introducing rights of access to European Parliament and European Commission documents to EU citizens (new Article 255) Making compulsory the publication of Council documents relating to legislative activities, including the results of votes and explanations of votes (new Article 207) Introducing European citizens’ rights to correspond with the Community institutions in any of the official languages11 and receive replies in that language (new Article 21)
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These new rights extend to all areas in the first and thrd pillars but do not cover the second (common foreign and security) pillar. New title on employment and incorporation of the social chapter Amsterdam introduces a new title on employment into the EC Treaty (new Articles 125130). This includes: • • the establishment of a new Employment Committee with an advisory role new Council powers to provide annual guidelines on employment to be taken into account in Member States’ employment policies
After the 1997 UK general election returned a Labour administration that supported the social chapter, the Social Protocol attached to the Treaty on European Union allowing the UK to opt out of the Social Policy Agreement was no longer needed. Amsterdam repealed the Protocol and amended parts of the Agreement, including enhancing the consultative role of the Committee of the Regions and providing a basis for legislation
The principle of proportionality is a general principle of the EU. Broadly, the principle is that the means used should be both appropriate and necessary to achieve the result sought. 11 These are: Danish, Dutch, English, Finnish, French, German, Greek, Irish Gaelic, Italian, Portuguese, Spanish and Swedish.
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on equality between men and women in the area of employment. The amended Agreement is contained in new Articles 136-143 of the EC Treaty. New title on free movement of persons A new title has been added to the EC Treaty (new Articles 61-69) incorporating areas which were previously part of the third (Justice and Home Affairs) pillar of the Treaty on European Union. The new title12 on the free movement of persons covers: • • • • Visas Asylum Immigration Judicial co-operation in civil matters
The aim of the new title is to establish the EU as an area of freedom, justice and security. However, the UK, Denmark and Ireland have effectively opted out of the new title although these Member States retain certain possibilities for opting in at a later date13. Schengen The 1985 Schengen Treaty, which was previously outwith EU structures, has also been incorporated into the EU framework. The Schengen Agreement concerns progress towards abolishing checks at common borders and is undertaken by 13 Member States (excluding Ireland and the UK14) in co-operation with Norway and Iceland. Amsterdam incorporated the acquis15 of the Schengen Agreement into the EU treaty system via a Protocol annexed to the Treaty on European Union. This means that all the agreements and rules established by Schengen now apply via Community law and Community institutions to the 13 participating Member States and to Norway and Iceland. As for the new title on free movement of persons, the UK and Ireland16 remain outwith the Schengen arrangements, although the Protocol includes an option for them to participate either fully or partly at a later date on agreement of the current members. INSTITUTIONS AND PROCEDURES
The preliminary ruling jurisdiction of the European Court of Justice over the new title is restricted to national courts from which there is no judicial remedy and excludes certain free movement measures relating to law and order and internal security. 13 The position of Denmark is complex, involving a partial opt-out. The provisions relating to the position of the UK and Ireland are contained in a Protocol annexed to the Treaty of Amsterdam. 14 The UK’s opt-out of the Schengen Agreement is based on its special position as an island and on the need for ID cards arising from open border arrangements: the introduction of ID cards is a particularly sensitive issue in the UK. 15 Acquis is an EU term which translates broadly as an accumulated body of law. 16 Denmark’s participation in the Schengen arrangements is qualified by a further Protocol attached to the Treaty of Amsterdam.
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Institutional changes A number of institutional changes have been introduced by the Amsterdam Treaty: • • • • • An upper limit of 700 members has been set for the European Parliament The Parliament’s legislative powers have been strengthened through greater scope of the co-decision procedure The Committee of the Regions’ right to be consulted on certain matters has been extended Consultation rights now extend to the provisions under the new employment chapter and to environmental issues The Committee of the Regions and the Economic and Social Committee (ECOSOC) can now be consulted by the European Parliament as well as the Council and Commission in certain areas the Court of Auditors has been given locus standi along the same lines as the European Parliament and the European Central Bank
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Procedural changes The most important procedural change made by the Amsterdam Treaty is the extension of the scope of the co-decision procedure to a wider range of policies. This greatly enhances the legislative role of the European Parliament. The European Parliament now has equal legislative powers with the Council in the following areas17: • • • • • • • • • • • • • • •
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prohibition of any discrimination on grounds of nationality (Article 12) right to move and reside freely within the territory of the European Union (Article 18(2)) social security for migrant workers (Article 42) right of establishment for foreign nationals (Article 46(2)) arrangements for the professions (Article 47(2)) implementation of the common transport policy (Articles 71 and 80) incentives for employment (Article 129) certain provisions from the "Social Agreement" incorporated into the EC Treaty by the Treaty of Amsterdam customs cooperation (Article 135) measures to combat social exclusion (Article 137(2)) equal opportunities and equal treatment (Article 141) implementing decisions relating to the European Social Fund (Article 148) vocational training (Article 150(4)) public health (Article 152) certain provisions relating to trans-European networks (Article 156)
List taken from The Amsterdam Treaty: A Comprehensive Guide on the Commission’s Europa web site at www.europa.eu.int/scadplus/leg/en/lvb/a21000.htm (All Articles referred to are new Articles of the EC Treaty.)
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implementing decisions relating to the European Regional Development Fund (Article 162) research (Article 172) environment (Article 175(1)) development co-operation (Article 179) transparency (Article 255) measures to combat fraud (Article 280) statistics (Article 285) establishment of an advisory body on data protection (Article 286)
Consultation procedure has also been extended by Amsterdam through the introduction of this procedure into some of the new provisions under the community pillar, including those on closer co-operation, discrimination and citizenship. By contrast, the co-operation procedure has been almost completely abolished by Amsterdam, being retained only for the provisions on Economic and Monetary Union (EMU). THE COMMON, FOREIGN AND SECURITY POLICY PILLAR The Common Foreign and Security Policy (CFSP)18 was established by the Treaty on European Union with action undertaken on an intergovernmental basis. The intergovernmental basis of this pillar has been retained by the Treaty of Amsterdam and no major changes have been made. However, the CSFP remit is extended by new Article 17 to include the use of ‘combat forces in crisis management’ and to cover peacemaking and peacekeeping and humanitarian and rescue services. The instruments to be adopted under this pillar (joint actions and common positions) have now been defined19 and the European Council is now required to determine common strategies in this area. The Council of Ministers is given power to conclude international agreements to implement the CFSP. These agreements are negotiated by the Presidency (on the authority of the Council) assisted by the Commission. In addition, the SecretaryGeneral of the Council now acts as High Representative for the CFSP, assisting the Council Presidency which takes the lead in CFSP matters. A common defence policy remains an objective of the CFSP and Amsterdam gives the European Council decision-making powers on common defence, including the possible integration of the Western European Union (WEU) into the EU. Under Amsterdam, the WEU explicitly supports the CFSP via EU access to its operational capacity and a Protocol for increased co-operation between the WEU and the EU is annexed to the Treaty. A declaration on establishing a policy planning unit for the CFSP within the Council Secretariat has been adopted by the Treaty of Amsterdam. This unit includes early warning on CFSP issues arising.
The Common Foreign and Security Policy comprises the second pillar of the European Union, alongside the first (or European Community) pillar and the third pillar (or the Justice and Home Affairs pillar, now renamed after Amsterdam as Provisions on police and judicial co-operation in criminal matters). 19 Joint actions address ‘specific situations where operational action by the Union is deemed to be required’ (new Article 14(1)) and common positions ‘define the approach of the Union to a particular matter of a geographical or thematic nature’ (new Article 15)
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Most decisions under this pillar continue to be made by unanimous voting but a new principle of constructive abstention has been introduced. This allows a Member State to abstain in a vote, yet make a declaration accepting that the decision commits the EU without binding the abstaining Member State20. Qualified Majority Voting (QMV) may now also be used when the Council of Ministers is deciding joint actions, common positions or other decisions under a previously agreed common strategy, so long as these decisions do not have military or defence implications. All administrative and operational expenditure on the CFSP is to be funded by the Community budget, except operational expenditure with military or defence implications or in cases where the Council unanimously decides that Member States should provide the funding. Funding via Member States is in accordance with Gross Domestic Product (GDP) scales; however, when the funding is for military or defence action no contribution is demanded from those dissenting from the decision. THE REVISED THIRD PILLAR ON POLICE AND JUDICIAL CO-OPERATION IN CRIMINAL MATTERS The third pillar introduced by the Treaty on European Union on Justice and Home Affairs has been redefined and renamed after the Amsterdam Treaty transfer of some provisions under this pillar to the first or community pillar. The third pillar is now known as the Police and Judicial Co-operation in criminal matters (PJCC) and has the overall aim of establishing an area of freedom, security and justice via common action in three main areas: • • • Police co-operation Judicial co-operation in criminal matters Prevention and combating racism and xenophobia
Specific targets identified are: • • • • • Terrorism Drugs and arms trafficking Trafficking in persons Offences against children Corruption and fraud
Three methods are specified by Amsterdam to tackle these areas and targets: • • • Closer co-operation between police, customs and other Member States’ authorities Assistance from Europol Approximation (ie greater harmonization) of areas of criminal law across Member States
In cases where such abstentions total more than one third of the weighted votes available, then the decision cannot be accepted.
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Amsterdam also establishes separate areas of action for police and judicial cooperation. Police co-operation is to focus on: • • • • Prevention and detection Storage and exchange of information Training, research and equipment Investigation of organised crime
The Council is to promote co-operation in these areas via Europol. Five areas for judicial co-operation are identifed: • • • • • Facilitation of proceedings and enforcement of decisions Extradition Compatibility of rules Conflicts of jurisdiction Establishment of minimum rules on substantive criminal laws and penalties in certain areas
While the third pillar retains its intergovernmental basis for action similar to that of the second pillar on a common foreign and security policy, the Council has a number of legal instruments available for use in this pillar. These are: • • Common positions, defining the EU approach to a specific issue Framework decisions on harmonization, which are similar to first pillar Directives but have no direct effect • Decisions on matters other than harmonization, which are similar to first pillar regulations or decisions but have no direct effect • Conventions, to be adopted by Member States in line with their own constitutional requirements Such measures are to be adopted by the Council on the initiative of the Commission or a Member State. The European Parliament has a consultative role in decision-making, except in the case of common positions. The European Court of Justice (ECJ) also has jurisdiction over certain measures under this pillar. A preliminary reference procedure to the ECJ will apply from courts specified by Member States that explicitly accept preliminary reference procedure of the ECJ. The ECJ has further jurisdiction to review the legality of framework decisions and decisions in cases brought by the Commission or a Member State. Financing arrangements under this pillar are the same as those for the second pillar on a common foreign and security policy (CFSP). The Council has the same powers as in the CFSP pillar to conclude international agreements negotiated by the Presidency. Sources Craig, P and de Búrca, Gráinne (1998) EU Law, 2nd edn, Oxford University Press: Oxford, pp 32-48
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Dodd, T, Ware, R and Weston, A (1997) The Amsterdam Treaty, House of Commons Library Research Paper 97/83, 25 June 1997 European Commission’s Comprehensive Guide to the Amsterdam Treaty on the Europa web site at www.europa.eu.int/scadplus/leg/en/lvb/a09000 Kaczorowska, A (1998) European Union Law Recent Developments, Old Bailey Press: London, pp 1-15 Treaty of Amsterdam Treaty on European Union (consolidated version) Treaty establishing the European Community (consolidated version)
Research Notes are compiled for the benefit of Members of the Scottish Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise the general public.
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