Committee Reports > List of Committees > Joint > 1998 > Committee on European Affairs > Report - The Treaty of Amsterdam

Appendix III

Treaty of Amsterdam

White Paper - Summary

Introduction

The Treaty of Amsterdam will be the subject of a referendum in Ireland. This booklet summarises and explains the main features of the new Treaty.

The Government are also publishing separately, a White Paper which, in addition to summarising the main features of the Treaty, gives a full and detailed explanation of its provisions. The White Paper will be widely distributed and will be on sale to the public. The Government hope that it will be widely read. However, in order to promote the widest possible public understanding of what the new Treaty is about, it has been decided to publish a summary of the White Paper separately and make it available to the public free on request.

Part 1 of the present booklet explains the background to the new Treaty and how it was negotiated. Part 2, which is the main part of the booklet, is drawn from the White Paper.

I. Background

The Treaty of Amsterdam

1.1 The European Union of today has been created and shaped by a series of treaties negotiated between the Member States over a period of nearly fifty years. The Treaty of Amsterdam is the latest step in that process. Like the Single European Act of 1986 and the Maastricht Treaty of 1992, the new Treaty will make changes to the European Union (EU) by adding to, and amending, the four basic Treaties which constitute its structure.

Negotiation of the Treaty — the Intergovernmental Conference (IGC)

1.2 The Treaty was negotiated at an Intergovernmental Conference of the fifteen Member States of the EU, attended also by a representative of the Commission. The Conference began in March 1996 during the Italian Presidency of the EU and continued under the Irish Presidency in the second half of 1996. At the end of its Presidency in December 1996, Ireland produced a first draft for the new Treaty on the basis of discussions up to that point. The negotiations culminated under the Netherlands Presidency in the first half of 1997 and the Heads of State or Government of the Member States, including the then Taoiseach, Mr. John Bruton T.D. approved a text for the new Treaty when they met in the European Council in Amsterdam on 16/17 June 1997.

Signature

1.3 Following some further technical legal work to prepare the text in Treaty format, the new Treaty’ was signed by the Foreign Ministers of the fifteen Member States at a ceremony in Amsterdam on 2 October 1997. Mr. Ray Burke T.D., who was then Minister for Foreign Affairs, signed on behalf of Ireland.

Ratification

1.4 The new Treaty will come into effect only when it has been ratified by all fifteen Member States of the EU. In most Member States ratification will depend on Parliamentary approval. In a small number of Member States the approval of the electorate will also be sought through a referendum.

Referendum in Ireland

1.5 In Ireland, before ratification, it will be necessary to amend the Constitution by referendum as was done in 1972 in preparation for our entry to the EEC, in 1987 to allow ratification of the Single European Act and in 1992 to allow ratification of the Maastricht Treaty.

1.6 Subject to the passage of the necessary Bill by the Dáil and the Seanad, it is expected that the referendum will be held in Spring of this year. The exact wording has still to be decided. In effect, however, in this referendum a vote to amend the Constitution will be a vote to approve the new Treaty and the changes which it will make to the Treaties on which the European Union is based.

The structure of the EU

1.7 The legal structure of the European Union is quite complex, based as it is on four interlocking basic Treaties. These are described below.

1.8 The European Union (commonly known as the EU) is the over-arching structure which includes the three European Communities. It came into being formally as a result of the Treaty on European Union which was signed at Maastricht in 1992. (Until then the structure was known as the ‘European Community’ or EC, and before that again as ‘the European Economic Community’ or EEC).

Three ‘Pillars’

1.9 The European Union, as structured by the Maastricht Treaty, can be said to rest on three ‘Pillars’ (although this word is not used in the Treaty itself).

1.10 The First Pillar comprises the three existing European Communities, each of which is a legal structure in its own right, based on a separate founding Treaty signed in the 1950s. These are the European Community (EC for short), the European Coal and Steel Community (ECSC), and the European Atomic Energy Community (Euratom).

1.11 Each of these three Communities, which collectively comprise the First Pillar, has a distinct international legal personality (although the Union as such does not). They share common institutions (the European Parliament, the Council, the Commission, the Court of Justice etc.) but there are certain legal differences in the way in which the three Communities operate. The common institutions in their actions on any issue follow the rules set by the Treaty which governs the particular Community for which they are acting at the time.

1.12 Each of the three Communities is supra-national in character. The Treaties under which they operate (which are described as ‘primary legislation’), together with the acts of the institutions adopted in accordance with the provisions of those Treaties and the case law of the European Court of Justice, constitute binding Community law for the institutions, the Member States and their citizens.

1.13 The Maastricht Treaty of 1992. in creating the European Union added two other ‘Pillars’ to the First or Community Pillar. The Second Pillar of the Union is the Common Foreign and Security Policy (known generally as the CFSP). The Third Pillar is Cooperation in the fields of Justice and Home Affairs (sometimes known for short as JHA).

1.14 All three Pillars have common institutions and they are bound together as the European Union. However the Second and the Third Pillars are not supra-national to the same extent as is the First Pillar — they retain much of the character of intergovernmental cooperation. The obligations which they impose bind the Member States, but unlike the provisions of the First Pillar, they do not constitute Community law.

The Treaty of Amsterdam

1.15 The new Treaty will amend, and add to, the provisions of all four of the Treaties on which the European Union is based (the Treaty on European Union and the Treaties which established the three Communities). Most of the changes will however be made either to the EU Treaty or to the EC Treaty.

1.16 All three of the ‘Pillars’ on which the EU rests will be affected: the First Pillar (comprising the three Communities): the Second Pillar (the Common Foreign and Security Policy or CFSP) and the Third Pillar (Cooperation in the fields of Justice and Home Affairs). The Third Pillar will also be re-named. It is described formally in the new Treaty as ‘Provisions on Police and Judicial Cooperation in Criminal Matters.

Terminology

1.17 A Treaty is usually organised in separate numbered Articles. In some cases a number of Articles are brought together as a Chapter, or a Title or a Section (although any of these may sometimes contain no more than a single Article).

1.18 A Treaty may also have one or more Protocols annexed to it. A Protocol is something like a codicil to a will or a PS to a letter: it has exactly the same binding legal effect as the provisions of the Treaty to which it is attached.

1.19 The States negotiating a Treaty may also make one or more Declarations in regard to it. A Declaration is a statement of the political intentions of those who negotiated the Treaty. It can be of importance but it does not have the same legal effect as a Protocol. Sometimes, for example, the States involved will wish to explain what they intended in drafting a particular Article of the Treaty or to indicate how they intend to interpret it. Obviously a Declaration made jointly by all of the Member States carries greater weight than one made by one or two States only.

The Structure of the Treaty of Amsterdam

1.20 A Treaty such as the Treaty of Amsterdam, especially one which amends a series of earlier Treaties, must be expressed in technical, legal language. In consequence, the Treaty text as signed on 2 October 1997, although it remains the only authentic legal text, is not at first sight easy to read: in addition to new material which is relatively accessible, it includes also a large number of additions, deletions and cross-references which are difficult to follow without close study of previous Treaty texts.

1.21 The Treaty as published has fifteen Articles organised in three Parts:

Part 1, comprising the first five Articles, sets out substantive amendments to be made to the four Treaties (EU, EC, Coal and Steel and Euratom) which together, form the structure of the European Union as well as to a 1976 Act on European Parliament elections;

Part 2 sets out in six Articles, the amendments which are required to allow certain lapsed provisions and obsolete Articles to be deleted from the various Treaties:

Part 3 comprising four Articles sets out various General and Final Provisions, including provisions for re-numbering in a simpler form the provisions of two of the Treaties — the EU Treaty and the EC Treaty

What the Treaty will do

1.22 The substantive amendments made in the first five Articles of the new Treaty involve changes of various kinds to all four of the Treaties on which the EU is based. Some of these take the form of amendments to existing Articles in one or other of these Treaties: some take the form of new Articles or even new Titles comprising several Articles. which are to be added to one or other of the existing Treaties and some take the form of Protocols which are to be added to one or more of the existing Treaties.

1.23 Only if the new Treaty is ratified by all fifteen Member States, will these various changes come into effect. They will then be read for the future as part of the basic Treaties which they are designed to amend.

1.24 The ‘Final Act’ (ie the concluding document of the Intergovernmental Conference which negotiated the new Treaty) also contains a considerable number of Declarations made by the Member States in regard to its provisions. While these Declarations do not have full legal force, they are important in that they indicate the intentions of the Member States who negotiated the Treaty.

Consolidated texts of two of the Treaties

1.25 The changes which the Treaty of Amsterdam will make in two of the main Treaties — the EU Treaty and the EC Treaty — including the re-numbering of Articles, have been incorporated in ‘consolidated’ versions of these two Treaties which have now been published in anticipation of ratification. However, these changes will come into effect only when and if the Treaty of Amsterdam is ratified by all fifteen Member States. Furthermore, the “consolidated” texts of these two Treaties, while useful for future reference, will not have legal status. Only the new Treaty of Amsterdam, read together with the four original Treaties and the other Treaties which have amended and added to them over the years, will carry authority as the authentic legal texts.

II. An outline of the main provisions of the new Treaty of Amsterdam

2.1 As explained in Part I of this booklet, the new Treaty of Amsterdam, amending as it does a series of earlier Treaties, is necessarily expressed in technical legal language. This makes it somewhat difficult to read and understand fully without constant reference to those earlier Treaties. At the same time it is important that the changes which it proposes to make to the European Union and to the Treaties on which it is based should be widely understood so that the people in whose name and for whose benefit the Treaty was negotiated should understand what is being done and why. This is particularly important in Ireland, where the new Treaty will shortly be the subject of a referendum in which the electorate will be asked to approve of the new Treaty.

2.2 This section of the present booklet outlines thematically and in summary form the more important of the changes which the new Treaty will make. In doing so it draws substantially on Section 2 of the White Paper. A more detailed explanation of all of the provisions of the new Treaty will be found in Section 3 of the White Paper itself.

Fundamental Rights

2.3 The new Treaty will add provisions to the EU (Maastricht) Treaty which will state explicitly for the first time that the Union is founded on certain principles: liberty, democracy, human rights and fundamental freedoms and the rule of law.

2.4 These are principles held in common by all the Member States and respect for them will now be required of applicants for membership as a condition for admission to the Union. As a corollary, the Treaties will now, for the first time also, contain sanctions provisions which could be invoked if any Member State, old or new, were to turn its back in a fundamental way on these principles.

2.5 The sanctions could involve suspension of voting rights. They would be invoked only in the extreme case of a “serious and persistent breach” of the principles. A determination to this effect would be made unanimously (except for the offending State) by the Council, meeting at the level of Heads of State or Government, with the assent of the European Parliament voting by a two thirds majority. The sanctions could then be imposed, or lifted, by qualified majority vote of the Council of Ministers.

Human Rights jurisdiction of the Court of Justice

2.6 The new Treaty will create an explicit Treaty basis for a principle which the Court of Justice has already applied in its jurisprudence. The Court has said that it regards compliance with human rights standards set by the European Convention on Human Rights (of the Council of Europe) and by the constitutional traditions common to the Member States as a necessary condition for the lawfulness of Community acts. The new Treaty will add a provision to the EU Treaty which will explicitly require the Court, wherever it has jurisdiction, to apply these human rights standards in relation to acts of the institutions of the Union.

Non-discrimination

2.7 The new Treaty will clarify, develop and further extend the provisions of the EC Treaty on equality between men and women and on equal pay for equal work or work of equal value. Positive action to redress existing imbalances between the sexes will be permitted.

2.8 A new provision added to the EC Treaty will allow the Council, within the limits of the powers conferred on it by the Community, to take action against discrimination. The new Article provides that the Council, acting unanimously on a Commission proposal and after consulting the Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Churches

2.9 In a Declaration the Member States commit the Union to respect the status of Churches and philosophical and non-confessional organisations under the national law of Member States.

Progressive establishment of an area of freedom, security and justice

2.10 This is one of the most substantial sections of the new Treaty. It sets the aim of freedom of movement throughout the Union, coupled with appropriate “flanking measures” dealing with external border controls unmigration, asylum as well as closer cooperation in fighting crime, especially international crime and organised crime.

2.11 A new Title (a major section of a Treaty) dealing with free movement of persons, and such related matters as immigration policy, visas, asylum policy and practice and judicial cooperation in civil matters will be added to the EC Treaty. It sets out a five year programme of action and details the measures to be adopted by the Council over that period.

2.12 The effect will be to transfer a large number of these issues from the largely intergovernmental framework of the Third Pillar (the Justice and Home Affairs provisions of the EU Treaty). They will now become a Community responsibility, dealt with supranationally under the EC Treaty (First Pillar). Many of the characteristics of the present intergovernmental cooperation will be retained initially but there will be a greater use of the Community methods and procedures (role of the Commission, voting procedures, role of the Court of Justice etc.) after the five year transition period.

2.13 The UK was unwilling to be bound by these provisions and obtained exemption. Ireland too has obtained special exemptions because of its concern to maintain the Common Travel Area with the UK. Two Protocols to be attached to the EC Treaty will accommodate the positions of both countries and their right to maintain the Common Travel Area between them will be formally recognised. Either country, on certain conditions, will be able to opt in to proposals when they are first brought forward, or to join later in measures which were adopted initially without its participation. A further Protocol will deal with the position of Denmark and grant it certain exemptions.

Schengen cooperation brought into the Treaty

2.14 A separate framework of intergovernmental cooperation known as the Schengen process after the town in Luxembourg where the agreement was signed, has developed outside the EU since 1985. It now involves thirteen Member States of the EU. It deals with border and immigration controls, policing and security issues, including narcotics, firearms and extradition matters. There is also a databank known as the Schengen Information System. The whole of these arrangements will now be brought within the framework of the Treaties. The provisions and decisions already agreed in Schengen cooperation will be allocated either to the EC (First Pillar) or the EU (Third Pillar) Treaties. A Protocol providing for these arrangements will be added to the EC and the EU Treaties.

2.15 For reasons related to UK positions on freedom of movement, and to the Common Travel Area between both countries, neither Ireland nor the UK participate in Schengen. Now that it is to be brought within the EU framework the two countries may, if they wish, continue not to take part. Either or both will, however, also be able to opt in to all or part of Schengen, subject to certain conditions.

2.16 These above-mentioned Protocols which will be added to the EC and EU Treaties and a declaration made by Ireland annexed to the Final Act, taken together, make it clear that Ireland’s concern is to maintain the Common Travel Area between Ireland and the UK in order to maximise freedom of movement of persons into and out of Ireland; and that, subject to this, Ireland would wish to participate to the maximum extent possible.

2.17 New Member States joining the Union from now on, unlike Ireland and the UK, will not be allowed to opt out of the cumulative body of Schengen decisions as it will stand at the time they enter. During their negotiations for membership they will be obliged to commit themselves to accept these decisions in full.

Police and judicial cooperation in criminal matters

2.18 In response to widespread concern about terrorism, drugs and the activities of criminals across borders, the “Third Pillar” (Cooperation in Justice and Home Affairs) of the EU will be substantially re-structured so as to make cooperation between the police and the Courts of Member States in combating crime more effective. This area of cooperation will also be re-named — it is now to be described as “Police and Judicial cooperation in criminal matters”.

2.19 A range of the issues previously dealt with in the Third Pillar will be transferred to the Community framework (see above). The list of crimes which are to be the subject of police and judicial cooperation under the re-structured Third Pillar will be clarified and expanded. It will now include, for example, trafficking in persons and offences against children as well as illicit arms trafficking.

2.20 There are extensive new provisions on police cooperation, both direct and through Europol. Europol itself is to be strengthened and developed so that it will be able to play a greater supportive role in the investigative process between Member States. There are new provisions also for judicial and customs cooperation in the right against cross-border crime, organised or otherwise.

2.21 The decision-making procedures of the Third Pillar are also to be clarified and improved. The Court of Justice will have a more substantial role in this area and there will be a limited increase in the role of the European Parliament. There will also be a role for the Ombudsman. There are also new provisions which will give to the Union as such the capacity to conclude international agreements on matters dealt with under the Third Pillar Operational expenditure incurred in implementing Third Pillar provisions will now be charged to the Community budget unless the Council, by unanimity, decides otherwise.

2.22 There will also be new Treaty provisions allowing “closer cooperation”(“flexibility”). This means that a number of Member States, provided they are at least a majority, may be authorised by a Council decision to use the institutions of the Union to develop “closer cooperation” between themselves in a particular area of Third Pillar activity. The authorizing decision is to be taken by qualified majority in the Council but it will be possible, in the last resort, for a Member State which is opposed, to block a decision.

Asylum

2.23 A Protocol on asylum to be attached to the EC Treaty will set out the conditions under which an application for asylum by a citizen of a Member State may be considered by any other Member State. However, it will not affect the legal obligation on Member States under the 1951 Convention on the Status of Refugees, and the 1967 Protocol, to consider each asylum application individually.

Employment

2.24 During the negotiations, Member States recognised that much needs to be done at national or at business level to stimulate employment but that there is considerable scope for coordination by Member States on employment issues and for supporting action by the Community. To help to achieve this, a set of new procedures will be added to the EC Treaty as a separate Title. These will aim at producing a coordinated Community strategy on employment, which will take account also of the coordination of economic policy which already takes place within the Community.

2.25 Under these procedures, the European Council will adopt conclusions each year on the basis of a joint report from the Council and the Commission. The Council, drawing on these conclusions, will then set guidelines for the employment policies of Member States. Each Member State is to report annually. The Council will monitor compliance with the guidelines; it may make recommendations to Member States and adopt incentive measures. There will also be a new Employment Committee (with two members from each Member State and from the Commission) which could help to provide greater coherence between economic and employment policies in the Community.

Social Policy

2.26 The “schism” which developed in the Community over Social Policy in the early 1990s, when the UK refused to accept the Social Chapter, has been healed. The terms of the Social Agreement, which, in accordance with the provisions of the Maastricht Social Protocol, were applied by 14 Member States only (including Ireland) but not by the UK, will be brought into the EC Treaty and strengthened to some extent. They will now be applied by all fifteen Member States as part of the EC Treaty.

Social exclusion

2.27 A legal basis for action by the Council to deal with social exclusion through incentive measures will now be included in the EC Treaty. The agreement to do this arose from a proposal made and pressed by Ireland during the negotiation of the new Treaty.

Environment

2.28 The environment provisions of the EC Treaty will be strengthened in certain ways and the concept of “balanced and sustainable development” approved at the World Environment and Development Summit in Rio in 1992 will be highlighted. The “integration principle” which requires that environmental considerations be taken into account in all other policies, has been brought up to the front of the Treaty.

2.29 Under the present EC Treaty, a Member State subject to Commission approval, may retain its own stricter environmental measures even after a Community harmonisation measure has been adopted by the Council. This provision will be retained and extended to measures adopted by the Commission. In addition, a new provision will be added which will permit a Member State, subject to Commission approval, to introduce new stricter national measures if it can produce scientific evidence of a problem which arose for it after the Community harmonisation measure was adopted. If the Commission allows a national measure to be introduced in such a case, then it will be required to consider whether similar measures should be applied throughout the Union.

Public Health

2.30 The new Treaty will add provisions to the EC Treaty which will allow the Community to set safety standards for human organs and blood and blood derivatives and also permit it to take public health measures to protect against animal and plant diseases. But fundamental responsibility for health services and medical care will remain at Member State level and the Treaty will recognise this.

Consumer protection

2.31 The provisions in the EC Treaty on consumer protection issues are to be strengthened through a greater focus on consumer rights including the right to information. There will now be a specific requirement to take consumer protection concerns into account in implementing all other Community policies and activities.

Subsidiarity

2.32 Subsidiarity means essentially doing things at the lowest level at which they can be done effectively. So in areas where it shares competence with Member States (that is in areas not within its exclusive competence) the Community should act only if there is real “added value” by comparison with action by Member States only. But subsidiarity is a dynamic concept — it allows action by the Community to be expanded where it is justified and, conversely, to be restricted where this is no longer the case.

2.33 The Maastricht Treaty of 1992 wrote the principle of subsidiarity into the EC Treaty (Article 3b) and this formulation will not be changed. However, there is a detailed new Protocol which draws largely, with some adaptations, on the rules about implementation of the principle which all Member States agreed to in 1992 in the conclusions of the European Councils of Edinburgh and Birmingham. These provisions, accepted by all since 1992 as a political commitment, will now have full legal force as a Protocol to the EC Treaty.

Transparency and access to EC documents

2.34 New provisions are to be added to the EC Treaty to ensure greater openness and a right of access to EC documents, subject to general rules to be set by the Council and detailed rules for implementation by each institution.

Right to correspond in Irish

2.35 A new provision added to the EC Treaty will mean that any Union citizen may write to any of the Community institutions or bodies in one of the twelve Treaty languages and expect that any reply received will be in the same language. Irish is a Treaty language (although not an official or a working language). Thus, an Irish person, or any other EU citizen, who wishes to correspond in Irish with the EC institutions and bodies may do so.

Common Foreign and Security Policy (CFSP)

2.36 The CFSP (Second Pillar) provisions of the EU (Maastricht) Treaty of 1992 will be re-structured and developed with a view to making the foreign and security policy role of the Union more effective and more coherent.

2.37 The decision-making procedures in particular are to be recast in a way intended to make them work to better effect. An innovation is that the European Council may adopt “common strategies” in particular areas or aspects of foreign policy on the recommendation of the Council. Such decisions, like all decisions of the European Council, would be taken by unanimity. Once this is done, and for as long as the common strategy applies, voting in the Council on subsequent measures in those areas will in principle be by qualified majority. However, an “emergency brake” procedure will allow any Member State to block a decision “for important and stated reasons of national policy” — although if a sufficient number of other Member States insist, the issue may be submitted to the European Council for decision by unanimity. Thus, if the Member State which is opposed maintains its position it can block a decision.

2.38 There will also be a new provision for “constructive abstention” which will allow a Member State to let a decision be adopted as a decision committing the Union while itself “opting out” of any obligation to apply it.

2.39 The new Treaty will provide that operational expenditure will be charged to the Community budget except for expenditure arising from operations having security and defence implications and cases where the Council unanimously decides otherwise.

2.40 The Secretary General of the Council will now be “High Representative for the Common Foreign and Security Policy”. In that capacity he/she will assist the Council by contributing to the formulation and implementation of policy. At the request of the Presidency, the Secretary General as “High Representative” will also be able to conduct political dialogue on behalf of the Council with other countries and organisations.

Security/Defence aspect of the CFSP

2.41 The new Treaty will also make changes to the Article of the Maastricht Treaty (Article J.4) which extended the CFSP to all questions related to the security of the Union. These changes are explained further in the following paragraphs.

Scope of the CFSP in the defence area

2.42 The Maastricht Treaty of 1992 already says that the Common Foreign and Security Policy (CFSP) “shall include all questions related to the security of the Union, including the eventual framing of a common defence policy which might in time lead to a common defence”. The new text will provide that the CFSP “shall include all questions relating to the security of the Union, including the progressive framing of a common defence policy in accordance with the second sub-paragraph, which might lead to a common defence should the European Council so decide. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements”

2.43 The “second sub-paragraph” referred to deals with the role of the WEU (Western European Union). It provides in particular that the WEU “supports the Union in framing the defence aspects of the Common Foreign and Security Policy as set out in this Article.”

2.44 In the new formulation, the concept of a future common defence continues to be referred to in the language of possibility (“might”). Any decision about it would be taken by the European Council, that is to say at Summit level where all decisions are by unanimity; and it would then be referred as a recommendation to each of the Member States for adoption in accordance with its respective constitutional requirements. The Irish Government, like the two previous Governments, have stated that, whether or not such a decision would require an amendment of the Constitution, it would be put to the people for decision in a referendum.

EU/WEU relations and Petersberg Tasks

2.45 The Maastricht Treaty already refers to the WEU as “an integral part of the development of the Union”, and it provides that the EU is to request the WEU to carry out EU decisions which have defence implications. The new Treaty repeats that the WEU is “an integral part of the development of the Union”. It adds that the WEU provides the Union “with access to an operational capability notably in the context of paragraph 2”. This is a reference to the Petersberg tasks — see below. As in the earlier Treaty the EU will continue to use the WEU to “elaborate and implement” any of its decisions which have defence implications. The Treaty will provide, however, that decisions of this kind are to be taken “without prejudice to the policies and obligations referred to in paragraph 1, third sub-paragraph”. (This is a reference to the safeguard provision in relation to Ireland’s position, which is explained in paragraphs 2.49 and 2.50 below).

2.46 For these reasons, the Union is to “foster closer institutional relations with the WEU with a view to the possibility of the integration of the WEU into the Union, should the European Council so decide.” If the European Council were to take such a decision, then it would recommend it for adoption to the Member States “in accordance with their respective constitutional requirements”.

2.47 The language here is similar to that used above about the possibility of a common defence. In either case the decision would first have to be adopted by unanimity at Summit level in the European Council and then recommended to the Member States for adoption in accordance with their respective constitutional requirements (see also paragraph 2.44 above.)

Petersberg Tasks

2.48 The new Treaty text provides that questions under the Article are to include humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management including peacemaking. These are commonly called “the Petersberg tasks”. If, in a particular case, the Union were to decide on one of these tasks. It would avail itself of the WEU to carry it out. All Member States of the Union would be entitled to take part, but there would be no obligation on any Member State to do so. Any Member State which participated in the tasks in question would be able to play a full and equal part in planning and decision-taking in the WEU.

Other provisions

2.49 The new Treaty will retain the provision which was inserted in the Maastricht Treaty to take account of Ireland’s particular policy of military neutrality on the one hand, and the position of the NATO members of the Union on the other. The Treaty will thus continue to provide, in an implied reference to Ireland (and now also to other European Union Member States who are militarily neutral) that “the policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States ..”

2.50 The new Treaty will also add a provision which will allow any Member States which so wish to cooperate in the matter of armaments.

2.51 The Treaty will also add to the EU Treaty a clause providing for a future review of the provision of this Article dealing with security aspects of the CFSP. This would make it necessary to call another Intergovernmental Conference to discuss possible revisions to the Treaty. Any changes would require unanimity of all Member States for adoption and amendments to the Treaty would come into effect only if ratified by each Member State. However, no date or time frame has been set for such a review.

External Economic Relations

2.52 The EC Treaty at present prescribes the procedure to be followed when the Community engages in international trade negotiations. The Commission, acting within a mandate from the Council, conducts the negotiations, with help and advice from a committee comprising representatives of the Member States. The Council concludes the negotiations, which means that individual ratification of the outcome by each Member State is not necessary. Decisions of the Council are to be taken in many cases by qualified majority vote.

2.53 However, these procedures apply in the main only to negotiations about trade in goods. They do not, by and large, cover negotiations on services and on intellectual property rights, areas which have become of great importance internationally in recent years

2.54 At the conclusion of the negotiations on the new Treaty, it was agreed to include a provision in the EC Treaty which will, in effect, allow the Council to decide by unanimity at a future date, to extend these procedures to issues relating to services and to intellectual property.

Protocol on Institutions

2.55 A Protocol is to be attached to the EU Treaty and the three Community Treaties to deal with the linked issues of the future size of the Commission and the possible re-weighting of votes in the Council. It can be summarised as follows:

(a)There will be no change in the size of the Commission or in the weighting of votes in the Council until the next enlargement of the Union;

(b)As from the entry of the first new Member States to the Union, the larger Member States (France, Germany, Italy, Spain and the UK) will give up their second Commissioner and each Member State for the future will nominate just one Commissioner — on condition that, by then, a solution which compensates the larger Member States but which is acceptable to all, has been found for the issue of the weighting of votes in the Council. This could be either a revision of voting weights or a “dual majority” requirement. The Commission would then have fifteen members plus one additional member for each new Member State admitted.

(c)One year before the membership of the EU is due to exceed twenty another Intergovernmental Conference will be called to undertake a comprehensive review of the institutions of the Union.

2.56 Thus, in practice

(i)there is no change in the right of each Member State to nominate a full member of the Commission;

(ii)at some time between now and the date when the first of the new Members join the Union, there will be a further negotiation on the re-weighting of Council votes (with a view to compensating the five largest Member States for giving up their right to nominate a second Commissioner). On the assumption that this is successful the membership of the Commission will be one per Member State;

(iii)there will be a major review of institutions at another IGC which is to be called a year before the sixth new Member is due to join;

(iv)nothing has been done to prejudge the outcome of that review.

(v)there is an assumption in this sequence of events that the first group of new Member States admitted together will number five or less. If it should exceed five, then an IGC would be triggered one year before they are admitted.

Extension of QMV

2.57 The new Treaty will bring about some extension of the areas where decisions in the Council on matters under the First Pillar are to be taken by qualified majority vote. It will also provide for qualified majority voting on certain kinds of decisions under the Second Pillar (CFSP) — subject, however, to the ultimate right of a Member State to apply an “emergency brake” to block a decision. Under the Third Pillar implementation of binding decisions, agreed by unanimity, will be by qualified majority.

2.58 The authorisation to a group of Member States to avail of the institutions of the Union for “closer cooperation” between themselves (“flexibility”) under the First and the Third Pillars, will also be granted by the Council by a qualified majority vote but this too is subject to the ultimate right of a Member State to apply the “emergency brake” to block a decision.

Role of the European Parliament

2.59 The new Treaty will impose an upper limit of 700 on the membership of the Parliament, which is now 626. It will also strengthen the role of the Parliament through a fairly considerable extension of the scope of the “co-decision procedure”. The procedure itself will also be simplified somewhat. The co-decision procedure makes the Parliament in effect a co-legislator with the Council in the adoption of Community legislation. In its final stages the agreement of both institutions is necessary for the adoption of Community legislation.

Role of National Parliaments

2.60 A Protocol to be added to all four Treaties will provide for a better flow of information to National Parliaments and will recognise a certain role for COSAC (the Conference of European Affairs Committees).

Role of the President of the Commission

2.61 The role of the President will be strengthened in certain ways, so that he/she will have greater political authority within the “College” of the Commission. At present the Member States nominate the President of the Commission “by common accord” after consulting the European Parliament and they then nominate the other Members of the Commission “in consultation with” the nominee for President. Under the new Treaty the nomination by the Member States of a person to be President will first be submitted for approval to the Parliament. Once the Parliament has approved the nomination, the Member States will nominate the other Members of the Commission “by common accord” with the nominee for President. In a Declaration the Member States also express the view that the President must enjoy broad discretion in the allocation of tasks within the Commission as well as in any re-shuffling of those tasks during the term of office of a Commission.

Other institutional issues

2.62 There will be some extension of the jurisdiction of the Court of Justice and some strengthening of the position of the Court of Auditors as well as of the positions of the Economic and Social Committee and the Committee of the Regions. There will be stronger provisions on the fight against fraud affecting the financial interests of the Community; and a new legal basis in the EC Treaty for collection and production of statistics. A Protocol to be added to all four Treaties will confirm existing arrangements for the location of the institutions.

“Closer cooperation” (“Flexibility”)

2.63 The new Treaty will add general provisions to the EU and the EC Treaties which will allow a group of Member States less than the full membership but constituting at least a majority to use the EU institutions to develop “closer cooperation” between themselves under the First (Community) and the Third (Police and Judicial Cooperation in Criminal matters) Pillars. These provisions will not, however, apply to the two other Community Treaties (Coal and Steel and Euratom). Authorisation is to be granted by qualified majority vote of the Council but there is an “emergency brake” procedure which will allow a Member State, in the last resort to block a decision. No similar provision for flexibility will apply under the Second Pillar (CFSP), since the new “constructive abstention” procedure makes it unnecessary.

2.64 Certain areas will be excluded completely and, in addition, some detailed conditions to be complied with are set. This could have the effect of limiting the extent to which the new provisions will actually be used in practice.

Simplification and re-numbering of the Treaties

2.65 There are many articles and provisions in the existing Treaties which make up the structure of the Union which have become obsolete over time for one reason or another. Obsolete articles are now being deleted from the Treaties establising the three Communities and the new Treaty will make the necessary legal dispositions for this.

2.66 The opportunity is also being taken to renumber the articles of the EU Treaty and the EC Treaty (but not of the other Community Treaties). What is described as a “consolidated version” of both Treaties has been prepared. This shows the two Treaties as they will be when (a) the various additions, deletions and amendments provided for in the new Treaty of Amsterdam have been made; (b) obsolete articles have been deleted; and (c) all articles in each of the two Treaties have been re-numbered in numerical sequence.

2.67 This “consolidated version” will obviously provide a very useful point of reference for the future in consulting the Treaties. However, from a strictly legal viewpoint, it is not this document but the Treaty as signed, showing all the detail of the amendments, which will have full legal status.