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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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