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The discussion which follows picks out just four aspects of the constitutional settlement agreed at Amsterdam and discusses them in the light of the five assumptions exposed above. It makes no claim to be comprehensive, or to represent a rational choice of issues. It does not discuss, for example, the shift towards a greater degree of bicameralism in the legislative process which lies behind the widespread removal of the cooperation procedure from the Treaty, and its substitution with co-decision.
The relevance of the flexibility debate and the provisions allowing for `closer cooperation' to the constitution of the citizen in the EU might not seem immediately apparent. It lies, in fact, in the close link between the constitution of the citizen and the rule-of-law bargain based on the authority of the legal order that sustains much of the EU's claim to legitimacy at the present time, and thus feeds upon the assumptions about the hard legal core of the EU. The Doomesday scenario highlighted by those who oppose the introduction of the `canker' of flexibility into the constitutional framework of the EU suggests that it will destroy the unity of the Community legal order. Philip Allott - with a different agenda - opposes the complexity and impenetrability of the new Treaty with a rather apocalyptic vision:
`The Amsterdam Treaty will mean the co-existence of dozens of different legal and economic sub-systems over the next ten years, a sort of nightmare resurrection of the Holy Roman empire...'
This vision can be contrasted to one based on the core of the rule-of-law bargain positing a unitary and authoritative Community legal order, based upon a single organising principle for the legal domain under which state legal orders have become subsidiary, notwithstanding their claim to be authoritative according to the conventional rubric of the international system of states and the dictates of (national) sovereignty. Of course, the problems exist here as well (Walker, 1998), since it was always in reality a two-dimensional, not a one-dimensional system (there remain Community and national legal orders). There are extensive boundary problems and many of the mechanisms for resolving these or bridging the gaps - supremacy, pre-emption doctrine, doctrine of effective remedies - tend all in one direction, namely that of reinforcing the authority of EC law. Yet in systemic terms, the Community and national legal orders may simply irreconcilable, each claiming supreme authority according to paradigms of legal theory which recognise one-dimensional orders alone (Eleftheriadis, 1998), although versions of legal pluralism suggest that the problem may be more about the nature of law than about the implications of a systemic conflict (MacCormick, 1995). Consequently, there is no simple answer when a national constitutional court claims, as the German Federal Constitutional Court has done since its decision on the Maastricht Treaty,[7] that notwithstanding the way that the Court of Justice has constituted itself in relation to national courts and national legal orders, as well as the Community legal order, it has in fact no `Kompetenz-Kompetenz' to declare authoritatively the limits of its own jurisdiction. The resolution of difficulties has previously lain largely in a willingness, mainly on the part of national courts, to pull back before taking the final step which might destroy the convention of national court acceptance of the Court of Justice itself together with its dictates on the nature of EC law.
It is an interesting move in legal scholarship to link the development of a `flexible Europe' in terms of `circles of integration' to the vertical reach of EC law and its relationship to national law. But as Walker has shown, the problems arising from boundary disputes in the event of multi-dimensional orders arising in the context of differentiated integration and multiple systems of closer cooperation under the Treaty of Amsterdam[8] are potentially much greater (Walker, 1998). Referring to the threat of `fearsome legal complexity' in the management of the Social Policy Agreement incorporating the UK opt-out from post-Maastricht social policy-making, a threat which never in fact materialised, Walker argues that
`The development of adequate bridging mechanisms presupposes forward regulatory planning and a willingness to devise and apply these mechanisms in a spirit of mutual accommodation.....these qualities are likely to be in less plentiful supply than they have been in two-dimensional Europe. In suggesting that the day-to-day mutual articulation of legal orders would be less manageable, these considerations also imply that fundamental boundary disputes would be more likely to break out under a three-dimensional configuration of authority.'
I would suggest, therefore, that it is no more theoretically difficult to imagine the citizenship of such multiple polities than it is to envision the dual arrangements between nation state and EU currently emerging in relation to citizenship and national sovereignty. But the practical problems, as these comments show, are likely to be immense.
In assessing the measures adopted at Amsterdam, it seems important to draw a clear distinction between the organising principles governing the idea of future closer cooperation under the first pillar and the arrangements for free movement and Schengen, which are both legally more complex and politically more expedient. Under the first pillar, the combination of Articles 43-45 [K.15-17] TEU and Article 11 [5a] EC seems not only to restrict the practical utility of the enabling provisions but also to impose a strong and disciplining central core of constitutional principles which must be observed. One of the so-called commandments governing such future flexibility is that it should not `concern citizenship of the Union' (Article 11(1)(c) [5a(1)(c)] EC).[9] The unity of the order is preserved by making differentiated integration legally possible, but constitutionally limited and practically virtually unimaginable. However, the constitutional debate on flexibility may also be about opening up new political agendas (Shaw, 1998b). In deciding upon the preemptive early application of the new Amsterdam employment provisions, the Member States also opened the agenda for new claims for flexibility, in relation to `targets' on reducing unemployment. While the guidelines eventually adopted by the Council[10] ascribe flexibility to all of the Member States, in terms of using their respective starting points as the basis for calculating a reduction in unemployment, press reports ahead of and after the Employment Summit of November 1997 itself were dominated by claims especially by Germany and Spain, facing particularly high levels of employment, for flexible treatment.[11]
In contrast to the pillar one enabling provisions, the arrangements agreed for the United Kingdom, Ireland and Denmark in relation to the partial communitarisation of the third pillar and the incorporation of the Schengen acquis into the Union and Community systems are quite different, and in themselves do not appear to satisfy the requirements laid down for future flexibility. These arrangements, based on a combination of political expediency and some geographical rationality applying very differently to the two cases of the UK/Ireland on the one hand, and Denmark on the other, come close to a system of pick-and-choose. Coupled with the incomplete structures for both democratic scrutiny and accountability of executives, insufficient provision for transparency and restricted possibilities for independent and accessible judicial review at the instance of citizens, non-citizens and even institutions and states, the constitution of a complex set of overlapping legal orders seems inimical to the development of even a `thin' constitutional framework for civil liberties for citizens with adequate protection against the arbitrary exercise of power. In that context, a `thick' conception of active citizenship in relation to the crucial issue of borders seems thus far a chimera. It also leaves as yet untouched one crucial political challenge for Union citizenship, namely the resolution of the legal position of lawfully resident third country nationals, who are implicated in the economic project of European integration, but appear to be largely excluded from the political and socio-cultural projects.
The Treaty of Amsterdam introduces a small textual amendment to Article 17(1) [8(1)] EC. A new sentence is added:
`Citizenship of the Union shall complement and not replace national citizenship.'
It would be possible to dismiss this change as simply codifying or consolidating the previous legal position. This very point was made explicitly for the Danes in the aftermath of the first Danish referendum in the Edinburgh communiqué, and on that reading the formal change in the Treaty of Amsterdam is no more than the continuation of the time-honoured practice of legal formality catching up to political reality. It is also possible to interpret the insertion of a new sentence as the Member States recalling a vision of the EU as (only) a union of nations, and as a reassertion of national sovereignty in relation to the citizenship question by claiming a crucial power of definition.
It has not been seriously suggested in academic or popular literatures that EU citizenship indeed replaces national citizenship. The issue of `complementarity' is, however, more complex. The constitutional settlement of the EU does not take place in isolation. Provisions once inserted in the Treaties elude the tight control of the Member States, and can take on their own institutionally-defined logic and meaning. At the conclusion of the IGC, the doors open to a much wider interpretative community comprising the EU institutions, national governments and other public bodies, judicial institutions at a variety of levels, social movements and interest groups, and even the wider `European' electorate and public opinion. The interventions of members of that community validate a more contextual approach to EU citizenship which steps outside the constraints of the formal Treaty-based figure. The Treaty of Amsterdam has also been agreed in a broader context of the transformation of the nation state, for reasons which are not solely related to the European integration process, but have to do with internal and external pressures of a socio-economic and cultural nature as well. It must be correct to assume that national citizenship is transforming as well, although that is not to say that as a cypher or signifer of national identity it is necessarily diminished. But that still begs the question: if Union citizenship is indeed complementing national citizenships, then precisely what job(s) is it doing? Complementarity does not assume unchanged national citizenships.
To this end, what we do need still is a fuller political theory of Union citizenship as a form of postnational membership, and to construct such a theory we must, look elsewhere in the Treaties and at other contextualising materials. Other innovations within and around the new Treaty suggest that such a theory must contain both `thin' and `thick' elements to provide the glue for a political community of `Europeans'. But by confirming its complementary nature the Member States are also reinforcing the quality of Union citizenship as an open-textured concept and precisely the transformatory capacity which they may have thought they were closing off. That might then open the door to creative interpretation or application by the Court of Justice or even the Commission. The discussion which follows of the area of freedom, justice and security, and the notion of the European social model is intended precisely to put some flesh upon these bare bones by building schematic models for understanding a thicker form of EU citizenship.
I have already suggested that Amsterdam signals a gradual shift towards a more content oriented model of the EU as a transnational political entity. The nature of that content remains, I would argue, highly ambiguous and substantially unsettled. Some argue that this Treaty reveals a general social democratic tendency.[12] The provisions on employment also seem to suggest an embryonic engagement with the contrasts between Rhineland or regulated capitalism and Anglo-American market capitalism in relation to the key issue of flexibility and labour market management. In relation to citizenship, two clear models are evident in the Treaty and in materials submitted during the antecedent negotiations. I shall briefly examine these models and consider the extent to which they are competing alternatives, or complementary elements of an emergent thicker form of EU citizenship.
The models I shall examine in this section concern the shaping of citizenship along `social' or `civil' lines: the so-called `European Social Model' or `European model of society', details of which can be drawn from the Commission's policy initiatives in the citizenship and social policy spheres, as well as its Opinions on the issue of possible amendments to the Union Treaties put before the IGC (Commission, 1995a, 1996a); and the concept of an `area of freedom, justice and security' which underpinned the draft amendments to the current treaties put forward by the Irish Presidency in December 1996 [13] and which finds clear expression in the revised treaties. As an idea it too originates in the Commission, specifically in the IGC Task Force.
The `area of freedom, security and justice' encapsulates provisions on fundamental rights and non-discrimination, free movement of persons, asylum and immigration, and the safety and security of persons. The use of the word `area' is notable: this is not a `community', with the important historical associations which that term now has within the EC/EU (Weiler, 1994). It is an inadequate rendering into English of the more evocative French term `espace', which has previously been used informally in contexts such as `l'espace sociale européenne'. It is also to be an `area' for the reason that the issues addressed cut across the existing first and third pillars of the Union, and are thus subject partly to the Community method, and partly to a variant of the intergovernmental method. This will remain the case even after the partial `communitarization' of the third pillar, as the field of police cooperation and judicial cooperation in criminal matters remains outside the first pillar. On ratification of the Treaty of Amsterdam, the `area' becomes a Union objective, under Article 2 [B] TEU.
The idea of organising this Title and the other elements of the area, especially the provisions on non-discrimination and fundamental rights and liberal democracy (the latter as a general principle, not in itself bringing about any fundamental change in the interinstitutional balance or enhancement of the formal or social legitimacy of the Union's institutional structure), is perhaps to lend some intellectual and political coherence to a number of highly controversial aspects of the development of the outer limits of the Union's competence. Amongst the new provisions are procedures allowing for action to be taken against Member States for persistent breaches of fundamental rights - seen as essential in the light of the projected arrival of new members from Central and Eastern Europe - and measures to ensure that individuals have adequate protection of personal data in relation to the institutions. In other words, it is a diverse pot pourri of issues.
It is worth reflecting in more detail about what this area means, since as a political initiative it displays a sure grasp of craft, providing just a margin of ambiguity about the issue of `whose freedom?', `whose security?' and `justice for whom?'. Lying behind the proposal for a new Title III [Title IIIa] of Part Three of the EC Treaty on `visa, asylum, immigration and other policies related to free movement of persons' was dissatisfaction with the operation of the provisions of the third pillar on Cooperation in Justice and Home Affairs, and the issue of border disputes between the scope of the first and third pillars especially in relation to issues of free movement. The new title should, in the medium term, offer a greater degree of consistency of approach. The successful completion of a single travel area may substantially improve the status of third country nationals.
Another reading of the area of freedom, justice and security evokes a vision of a liberal `freedom-from' polity. It links closely to the negative freedom-oriented dimension of the market ideology of the Union, under which Union citizenship is a minimal framework of protections against Member State interference in private economic activities, and so derives force from the limited market citizen of the Union's market-building vocation. This seems to suggest a minimally `thin' conception of self-interest holding together the political community of EU citizens (freedom and the rule of law). That is not the only message it delivers, however; the identity of the citizen is also constructed through the `Other', the foreigner who needs to be excluded or at least controlled to make the citizen `secure.' This is a different type of exclusionary `thickness'. The `security-oriented' vision of the area of freedom, justice and security inevitably feeds the profound disquiet on civil liberties grounds which has long been held in some quarters about the implications of the secretive third pillar and Schengen operations. Chalmers suggests, for example, that the project of securitising the Union comprises a strong element of population control (Chalmers, 1998). It is not a project of empowerment - regardless of the rhetoric of freedom, security and justice. It is at best a project for greater institutional efficiency. Moreover, bringing of the Schengen acquis within the Community framework has not suddenly wiped out its deep rooted undemocratic heritage. Overall, much of what constitutes the `area' will remain primarily under Member State control, with intergovernmental methods and limited democratic control at EU or national level, and limited possibilities of judicial review (den Boer, 1997).
The area of freedom, justice and security, it must be concluded, delivers a mixed message about developing a `thicker' form of Union citizenship and political community. The notion of a European Social Model provides a sharp contrast. In its Work Programme for 1997 the Commission summarised how it views the general outlines of the `citizen dimension' of the Union:
`The single currency and the single market are by no means objectives in their own right but instruments intended to serve the needs of the population as a whole and the overriding goal of employment in particular. However, the Commission wants to go further still and build a Europe of solidarity with a human face faithful to its own model of society and closer to each individual's concerns' (Commission, 1996b).
The notion of a European social model also emerged as a powerful part of Commission IGC rhetoric and it can be traced back through a number of generations of Commission documents. A good starting point for this analysis is the 1994 (Flynn) White Paper on social policy (Commission, 1994; see also Commission, 1993a), although a longer term perspective on this aspect of Commission policy-making would undoubtedly stretch back to the Community Charter on Fundamental Social Rights for Workers, adopted in December 1989 at Strasbourg, and beyond to the debates on the emergent social dimension of the internal market held during the late 1980s. The general frame now used by the Commission for its discussion of social policy is this notion of a `European social model', which is intended to suggest the essential elements of the `sort of society' which Europeans `want'. The Commission's model is shaped around certain shared values which it claims to have identified:
`These include democracy and individual rights, free collective bargaining, the market economy, equality of opportunity for all and social welfare and solidarity. These values....are held together by the conviction that economic and social progress must go hand in hand. Competitiveness and solidarity have both to be taken into account in building a successful Europe for the future' (Commission, 1994: para. 3).
A clear echo of this statement is to be found in the Commission's Opinion to the IGC (Commission, 1996a: para. 8). It asserts that
`Europe is built on a set of values shared by all its societies, and combines the characteristics of democracy - human rights and institutions based on the rule of law - with those of an open economy underpinned by market forces, internal solidarity and cohesion. These values include the access for all members of society to universal services or to services of general benefit, thus contributing to solidarity and equal benefit.'
The point is reiterated in the conclusion (Commission, 1996a: para. 47):
`The Conference should be the occasion ... to demonstrate that the Union has clear objectives and the instruments to achieve them: that Europe - united in its diversity - is prepared to uphold and develop its model of society and to make growth and competitiveness work for a social and cultural ideal....'
Caitríona Carter has shown that the European Social Model is an attempt to appeal - as a slogan - to elements of commonality, and that this appeal to commonality comprises three key facets (Carter, 1997): a system of industrial relations based on collective bargaining, the framework of a welfare state system of social protection, and principles of social partnership and consensus underlying decision-making about the allocation of resources and public goods, and the creation of employment. It might also be a defensive turn: failure to maintain precisely this model at national level in the face of global competitiveness and a disintegrating taxation base with which to fund an ever growingset of public welfare payments to an ageing population has led to this `appeal to Europe'. That which is no longer capable of maintenance in practice at a national level can still be asserted in abstract terms at the level of the EU.
It follows that the extent to which the principles of a European social model are in reality in the process of being achieved either through a European social policy outside the Treaty, or in the Treaty itself is very doubtful. Furthermore, even though all such statements are articulated at a level of considerable generality, the notion of a `social model' for Europe is likely always to be controversial, given the extent to which social policy has been used as a arena for national politics and the use which many Member States have often made in this context of discourses of sovereignty rather than those of solidarity (Whiteford, 1995; Lange, 1992). The controversy of the model becomes clearer the closer it moves towards sensitive issues such as the role of collective bargaining, redistribution and the provision of public goods such as welfare. As Carter has shown, it is the crisis in the `social bargain' which underlay the original treaties (market integration at EC level, market-correcting welfare at national level) which raises the stakes for a European social policy responding to the ever increasing inability of nation states under pressure from globalisation and economic integration to deliver such welfare policies (Carter, 1997; Leibfried and Pierson, 1996). It is not the case, as some critics of European social policy progress have argued, that the `failures' of this policy are failures to follow a preordained path towards a more federalist type social policy, with the transfer of market-correcting welfare policies to the supranational level an inevitable consequence.
Despite such necessary scepticism, it is still possible to see a number of echoes of the `European social model' in those parts of the Treaty of Amsterdam dealing with social and related policies. Important initiatives or events outside the conference meeting rooms provided crucial triggers for many of the changes. The British General Election of May 1997 and the consequential change of government led directly to the UK agreeing, outside the Treaty framework, to the non-binding Community Social Charter of 1989. Following naturally from this was agreement on re-incorporating the so-called Social Chapter back into the mainstream of the Treaty, and the consequential amendments to the EU social provisions Articles 136-145 [117-122] EC. A similar analysis applies to the emerging Employment Policy, a field where progress towards European social policy goals has taken place to a large extent outside the framework provided by intergovernmental conferences. Commission President Jacques Santer chose to make employment his `grand projet mobilisateur', and pressed for concrete responses to the 1993 (Delors) White Paper on Growth, Competitiveness, Employment: the Challenges and Ways Forward into the 21st Century (Commission, 1993b) and the Essen European Council declarations of 1994 on employment. Notably, the Commission persuaded the Social Affairs Ministers to adopt its proposal for a Committee on Employment and the Labour Market, without waiting for the conclusion of the Amsterdam negotiations where such a committee was already on the agenda. From the time of the Dublin draft Treaties onwards there seemed to have been reasonably widespread agreement across the Member States on the desirability of including some sort of new title on Employment in the Treaties - even if not its contents (Pochet, 1997).
All of these initiatives and more appeared in a section of the draft treaties headed the `Union and the citizen',[14] although as with the area of freedom, justice and security, the process of `tidying up' the drafts by lawyers and linguists prior to signature has undermined much of the conceptual simplicity of the original political texts. Provisions are then scattered as amendments or amplifications across the original Treaties, and it is only in non-legal binding explanatory instruments such as the `Descriptive Summary' appearing on the Council web site that we can still see the traces of the original organising conceptions.[15]
The European Social Model offers at one level, therefore, a different vision of `thick' Union citizenship, based perhaps on the possibilities however tenuous of solidarity in the face of the challenges of globalisation, competitiveness, and the dissipation of the solidity of the welfare state. Unlike the area of freedom, justice and security, it evokes the `freedom to' polity, as well as securing the role of the supranational method against intergovernmental interests. But it is perhaps more than just a different vision imposed or proposed from `above', and indeed more than just a defensive manoeuvre. This is apparent if one draws in other contextualising material, especially the report of the (independent) Comité des Sages, established under the Commission's 1995 Social Action Programme (Commission, 1995b) to examine what might become of the 1989 Community Social Charter, in the context of the review of the Treaty of Maastricht in 1996-97. This material suggests also a link between the thicker substantive conception and the means or process whereby it might be attained, through a form of bottom-up constitutionalism.
The Committee's Report of early 1996 (Comité, 1996) put a number of options of varying degrees of originality onto the negotiating table. It links social policy and identity through `a renewed, original social model' along very similar lines to the Commission's own proposals, and makes a number of proposals on the incorporation of fundamental civic and social rights into the Treaties. Some rights should be incorporated immediately, including a general right to non-discrimination, and the right to a minimum income for those who cannot find paid work and have no other source of income. Other rights might be included of an essentially aspirational nature, in the form of objectives to be achieved (e.g. right to education, right to work, right to health and safety at work). The Committee also called for the initiation of an important constitutional process involving a bottom-up constitutional debate. It called for the inclusion of an article in the new Treaty
`to set in motion a wide-ranging, democratic process of compiling, at Union level, a full list of civic and social rights and duties. Initiated by the European Parliament, on a proposal from the Commission, this process, which must closely involve the national parliaments and which would require input both from the traditional social partners and from non-governmental organizations, should culminate in a new IGC within five years' time' (Comité, 1996: 10).
These are proposals - yet to be adopted in a formal sense - for the future of constitution-building in the Union. In certain small ways they have already been set in motion, as a result, largely, of informal bottom-up pressure. As was already noted, more than ever before, a wide range of national and Union-level organizations operating in the very broad social policy sphere did seek to influence the IGC agenda, often by sending in `shopping lists' of the `more-rights-for-citizens' nature. The Commission has brought together many NGOs, for example, by holding meetings at national level to allow them to discuss the Comité des Sages proposals.[16] Such events have opened up a new and more important partnership role for a range of new collective players, from the voluntary sector and out of the public services, alongside the more `traditional' social partners (the so-called third sector).
These developments are of particular interest from the perspective of the evolution of Union citizenship, beyond the possibility that the substantive (and procedural) agendas of the IGC may have been changed by these inputs. This is an important and dynamic example of active social citizenship exercised through collective representation processes, which could be taken much further if the Comité des Sages proposals were taken up - in other words, the structural conditions for the emergence of a thicker bond between citizens would be created, although what that bond might be would have to be negotiated. Indeed, it becomes clearer in the light of contextualising materials such as the Comité des Sages report that the Commission's adoption of the `European social model' as an organising principle probably has as much to do with developing notions of identity and citizenship, as with attempts to widen the scope of Community competence for social policy.
The Union after Amsterdam contains elements of both models sketched here. The contrasts between them are strong, but for an embryonic political community of EU citizens it is perhaps important that no avenues of future development are at this stage closed off. I have sketched the two models schematically, in order to emphasise the contrasts between them, rather than any possible middle grounds based, for example, on a liberal commitment to the utility of rights. In general, the evidence to be derived from Amsterdam indicates a gradually strengthening of the concern for content over procedure and formal legal status. That shift in itself is probably more important at this stage than the difficult challenge of fixing the boundaries of what it is which binds the community of Union citizens.
Closely related to the question of the vision of citizenship delivered by the Treaty of Amsterdam, is the continuing rights agenda within the EU. It is in fact wrong to suggest that the legitimacy or democracy deficits in the EU can be simply cured by confronting a perceived rights deficit. Most citizens in the European Union (as opposed to third country nationals) are not noticeably short on rights as such, pace calls for greater protection of the fundamental rights interests of ethnic/racial minority, gay and lesbian, transgendered, and disabled citizens. What are more frequently absent are the mechanisms to ensure that rights which exist in principle are in fact effectively enforced and in the specific EU context a general lack of awareness about what rights actually exist (Weiler, 1997b). The deficit, therefore, is an effectiveness deficit.
Rights in themselves are unlikely to contribute to the construction of a political community. Their liberal heritage makes them fundamentally individualistic - both in inspiration and in respect of normal methods of enforcement, through individual litigation (for a recent discussion, see Fredman, 1997). However, rights struggles as opposed to rights themselves can be formative in relation to communities, as the examples of sex discrimination in relation to the European Union and gay rights campaigns in many parts of the world have shown. Historically, struggles over rights have been one of the core processes helping to establish a link between citizens and governmental institutions in the process of modern state-making (Tilly, 1975). But rights struggles can be a double-edged sword: in conceptualising a claim for recognition in terms of a pre-determined legal framework (e.g. trying to push sexual orientation based claims into a framework designed for sex discrimination), control over issues of definition pass from those bringing the claim to the legal institutions within which it is to be decided (Armstrong, 1998, Herman, 1994, 1996).
In any event, the advocate of `more rights' for EU citizens who turned to the Treaty of Amsterdam for support would be largely disappointed by what she would find, whether in the domain of civil, social, or political rights. The new Treaty makes few concrete changes in the rights status of the subjects of EC law. A guarantee of fundamental rights protection, incorporating also the provisions of the European Convention of Human Rights and Fundamental Freedoms, is formally rendered justiciable before the Court of Justice, at least so far as pertains to the acts of the institutions.[17] This partially restates, but also significantly understates, the scope of existing Court of Justice case law on fundamental rights which requires the Member States, when implementing EC law, also to act according to the Community doctrine of fundamental rights (Shaw, 1996, p.188-195). Provisions concerned with sanctions against delinquent Member States for persistent breaches of fundamental rights are enshrined in the Treaty on European Union (Article 7 [F.1] TEU) and they will operate - if they are ever used - essentially at the intergovernmental and inter-institutional level, without reference to the claims or legal status of individual citizens.
Great anticipation preceded the proposal for a non-discrimination provision, but it is in fact a law-making power which was very carefully drafted to exclude any possibility of direct effect - although ultimately the choice was made not to state this point specifically in the actual text. The task is left to the institutions to craft a non-discrimination instrument, assuming the political choice is made to make use of the new power. In fact, the final version of this provision escaped a number of attempts during the course of early 1997 to water down its content and scope. The original proposal provided for a law-making power allowing the Council to act unanimously, on a proposal from the Commission and after consulting the European Parliament, to adopt appropriate measures `to prohibit discrimination based on sex, racial, ethnic or social origin, religious belief, disability, age or sexual orientation.' By February 1997 a retreat appeared to be beginning. In the first drafts of its `Non-Papers' the Dutch Presidency removed any mention of disability, age, social origin and sexual orientation from the clause. The Presidency commented on ongoing opposition from certain delegations and asked whether the Conference could consider, instead of a non-discrimination clause for those social categories, addressing their concerns `in the context of the existing substantive policy provisions (e.g. social policy, education, vocational training and youth (sic), public health)'.[18] While many would be sceptical about the practical utility of more rights for citizens in the Union Treaties, there can be little doubting their symbolic importance as setting benchmarks for the treatment of individuals, as well as for the development of state and society. Removing certain categories of discriminatory treatment from the status of `rights-bearing' would have sent a clear, and unfortunate, message. Consequently, it is of considerable significance that these elements of the original proposal reappeared in later drafts and the consolidated proposed amendments gathered together by the Dutch Presidency,[19] as well as in Article 6a [13] EC when it was finally agreed at the Amsterdam summit. The final text refers to discrimination on grounds of `sex, racial and ethnic origin, religion or belief, disability, age or sexual orientation.'
In fact, closer inspection of the Treaty reveals that the only field in which individual civil/social rights were actually strengthened was in relation to the already highly developed field of sex discrimination. A second paragraph has been added to Article 3 [3] EC (the activities of the Community), requiring that `in all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.' In this way the policy objective of sex equality has been mainstreamed. A Treaty-based exception to the principle of equal treatment is carved out in a new provision (Article 141(4) [119(4)] EC) allowing Member States to maintain or adopt measures `providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.' This provision has the dual purpose of both reversing an `unpopular' line of case law heavily restricting national use of positive action measures which the Court appeared, after the Kalanke case,[20] to be developing and also to reinforce the discretion of the Member States in formulating local, regional or national responses to problems of systemic sex-based inequalities, often after lengthy and fraught political battles (Barnard and Hervey, 1998). It might be argued that the additional developments in relation to sex equality are simply a natural consequence of the existence of legal provisions and interpretative case law, which themselves demanded a response at intergovernmental level. They might also signal, however, the strength of the specific lobby on these issues within a number of national governments, the Commission and the European Parliament.
In the field of political rights, there was some anticipation that the status of the citizen would be enhanced by some sort of `right' to open government, or at least right to information. Transparency was a debate fanned by the post-Maastricht crisis of legitimacy. In fact, a more specific right of access to Council, Parliament and Commission documents was established by Article 255 [191a] EC, although subject to both general principles and public and private interest limitation to be laid down by the Council-Parliament co-decision, and specific procedures elaborated by each institution in its Rules of Procedure. This is hardly a charter for freedom of information, or for casting greater light upon what have hitherto been largely secretive negotiating procedures in the Council. `Openness' as a general idea is consigned to Article 1 [A] TEU, which enshrines a political commitment to take decisions `as openly as possible.' This seems to signal little change from the pre-Amsterdam position. This had been elaborated by the Court of Justice and the Court of First Instance in a number of cases,[21] building on Declaration 17 annexed to the Final Act of the Treaty of Maastricht, a Commission/Council inter-institutional agreement of December 1993, taking the form of a code of conduct for those institutions, and, for the Council, amendments to its Rules of Procedures and a Decision setting out a procedure for scrutiny of requests and for the taking of decisions. There seems to be a tension between treating transparency as an issue of the institutional economy and as a question of fundamental rights. As Deidre Curtin puts it (1996, p.103), there is an ongoing dispute about:
`the legal nature of the principle of freedom of information in the Union context: the Dutch emphasise the fundamental (at least from the perspective of democratic philosophy) nature of the principle and maintain that the primary purpose of the [Council] Decision was to regulate the openness of the administration for third parties. On the other hand, the other members of the Council (with the probable exception of the Danes) are convinced that the Code of Conduct and the Council Decision constitute a simple policy orientation adopted by the Council in the interests of its own good administration, subject as a matter of course to the other rules of its Rules of Procedure as well as the stringent and discretionary exceptions outlined in the Decision itself.'
Kenneth Armstrong (1996: 588) relates this conclusion directly back to the construction of the citizen within the EU political system:
`There is ... a paradox at the heart of the concept of Union citizenship. The concept of citizenship has been invoked as a counterbalance to the seemingly remote institutions of the EU in order to attach political legitimacy to EU governance. However, the essential inter-institutional nature of EU governance has not changed leaving the Union citizen as a rather ambiguous identity within the Union's political and legal systems... At no point does John Carvel as a Union citizen ever become constructed in the Court's mind.'
Transparency becomes, on this reading, an issue of the institutional economy, not the construction of the citizen.
This chapter has sought to contribute both to the general literature on Union citizenship by offering more evidence of its constructive and contextual nature, and to the more specific task of understanding and explaining the Treaty of Amsterdam. It has employed methods which take seriously both the legal framework and the political opportunity structure of the EU. It has used a constructive approach to citizenship which goes beyond the identity/rights dichotomy to envision the tensions negotiated through the practice and experience of citizenship, which operate as one of the crucial elements in polity formation. It has suggested that the best way to understand the Treaty of Amsterdam is as the next step in an ongoing process of constitutional settlement which is gradually moving towards a more substantive conception of the `European constitution' in which thicker conceptions of citizenship are crucial. It gives a mixed evaluation of the Amsterdam acquis suggesting paradoxically that the major impact of this new Treaty in the citizenship domain may lie in the future, as the broader interpretative community of European integration continues to interact on a day-to-day basis with the new provisions.
This reminds us that in studying the EU, the focus should always be more on the process than on the end product - since the ulterior objectives of European integration are not to do with creating particular types of state forms or non-state entities but to do with more fundamental goals about human sociality and organisation, even idealism and decency. Union citizenship is and will continue to be an essential part of the process of what the EU is becoming, whatever that might be.
[7] Brunner [1994] 1 CMLR 57. See also the decision of the Danish Supreme Court on the constitutionality of Denmark's transfer of powers to the European Community, April 6 1998.
[8] Insert cross-reference to the detailed discussion of the possibilities for flexibility in Stubb's paper.
[9] It is probably correct to assume that this means `citizenship' in the narrow legalistic sense defined by the scope of the Article 17 [8] et seq EC.
[10] Resolution of the Council on the 1998 Employment Guidelines, OJ 1998 C30/1.
[11] See B. James, `Ahead of Jobs summit, Europe is hardly united; Spain hopes leaders will target flexibility', International Herald Tribune, November 20 1997, p20; C. Bremner and A. Pierce, `Jobs Summit soured by Spanish opt-out', The Times, November 22 1997; Europe Report, No. 2269, November 19 1997; Europe Report, No. 2270, November 22 1997.
[12] E.g. Pollack in this volume.
[13] The European Union Today and Tomorrow. Adapting the European Union for the benefit of its peoples and preparing it for the future, Dublin II, Conf. 2500/96, December 5 1996.
[14] The focus of this paper precludes the discussion here of provisions on the environment, public health and subsidiarity - part of the `pot pourri' of changes under the heading: the Union and the Citizen.
[15] See http://ue.eu.int/Amsterdam/en/treaty/main.htm [ `this summary is for information purposes only in order to provide an easily understandable overview of the content of the new Treaty;...[it] does not form part of the outcome of the conference, is not relevant to the process of ratification, and does not commit the Presidency or any Member State government or have any legal relevance.'
[16] See for example a meeting on Basic Needs, Basic Rights held in Birmingham, March 3 1997.
[17] Article 46(d) [L(d)] TEU, extending the jurisdiction of the Court of Justice to Article 6(2) [F(2)] TEU.
[18] Non-Paper Nr. 6 Fundamental Rights and Non-Discrimination, Conference of the Representatives of the Governments of Member States, Secretariat, Brussels February 26 1997, Conf/3827/97 (these were made available on the internet on the Dutch Green Party site under the auspices of the Dutch MEP Nel van Dijk: http://www.xs4all.nl/~nelvdijk/nonpaper6.html).
[19] Consolidated Draft Treaty Texts, May 30 1997, SN 600/97.
[20] Case C-450/93 Kalanke v. Freie Hansestadt Bremen [1995] ECR I-3051; but see now Case C-409/95 Marschall v. Land Nordrhein-Westfalen [1997] All ER(EC) 865 where the Court itself appears to give greater freedom to Member States to design their own responses to these societal problems.
[21] Case T-194/94 Carvel and The Guardian v. Council [1995] ECR II-2765; Case C-59/94 Netherlands v. Council [1996] ECR I-2169; Case T-105/97 WWF (UK) v. Commission [1997] ECR I-313; Case T-124/96 Interporc Im- und Export GmbH v. Commission (February 6 1998); Case T-83/96 Van der Wal v. Commission (March 19 1998).