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A Journal of Foreign Policy Issues



Treaty of Amsterdam Marks Another Step on the Way to a European Constitution

By S. I. H. Gosses, Director-General for European Co-Operation, Ministry of Foreign Affairs of the Netherlands

As everyone knows, the Netherlands held the Presidency of the European Union in the first half of 1997. Not many people know, however, that the impact of this on the Ministry of Foreign Affairs and various other government departments in The Hague -and on the city of Amsterdam in June- also sent ripples through many of the Netherlands' diplomatic missions abroad. The Dutch Permanent Representation to the EU in Brussels was one of the first to feel the pinch.

Few can imagine the sheer number of meetings that were held during the Dutch Presidency. In addition to two European Councils, there were 44 formal and 13 informal meetings of the Council. The Netherlands chaired more than 1,700 meetings of working groups in Brussels, and over 40 more events at home. There were also summits with the United States, Russia, Canada and Japan. During the 180 days of the Dutch Presidency, Foreign Minister Hans van Mierlo spent 90 days abroad, visiting 60 cities.

The question now is, what was actually achieved during this Presidency? Did the Netherlands' efforts help to strengthen the European Union? Are there any lessons to be drawn? Given the constraints of time and space, I will examine these questions in relation to the conclusion of the Treaty, Amsterdam's crowning glory to the Hague's endeavours.

Holding the Presidency of the EU is never an easy task, but it would be on exaggeration to say that this was a particularly arduous time mainly because, in the context of the Intergovernmental Conference (IGC), the Netherlands were as the successor to Ireland and Italy, at the helm for the final, decisive step to 'Amsterdam'. Secondly, the attempt to achieve agreement before the deadline -in itself an extraordinary feat in a Union of 15 Member States- was hampered by the surprising last minute decision to hold parliamentary elections not only in the United Kingdom but in France and Ireland as well. The unexpected election in France and its startling outcome for President Chirac set up an extra obstacle on the way to 'Amsterdam'. After all, the results of the European summit had to reflect at least some of the election promises of the equally astonished victors.

It is important that the Stability and Growth Pact, endangered by the results of the French election, was salvaged at the eleventh hour by the adoption of a resolution on growth and employment, a useful supplement to the Stability Pact. Finance Minister Gerrit Zalm received well-earned praise for his success in safeguarding EMU from impending calamity. A failure in this regard could have spelt doom for 'Amsterdam' and would certainly have marred the conference.

Background to the IGC
A few words must be said about the Intergovernmental Conference and its aims, if we are to place what was accomplished this summer at the Amsterdam summit in its proper perspective. Former Prime Minister Ruud Lubbers observed in an interview that the Maastricht negotiations six years ago made no provision for a new IGC. This, however, is not strictly true, because the Treaty on European Union announced a conference in 1996 "to examine those provisions of this Treaty for which revision is provided". In fact this was essentially an agreement to take stock of the second pillar of Maastricht in 1996, i.e. the Common Foreign and Security Policy (CFSP) in general and the role of the Western Europe Union (WEU) in particular, a subject on which the parties had agreed to disagree in 1991. The co-decision procedure was another of the issues that was scheduled for review. Hence the plans made in Maastricht did not necessarily imply a new treaty.

Only in the following years, with the further enlargement of the Union on the horizon, were there renewed calls for a revision of the treaty. The exercise was also intended to equip the institutions to cope with a larger Union. In December 1993, the European Council in Brussels agreed that the IGC was to expand its agenda to include such issues as the size of the Commission, the weighting of votes in the Council and the effectiveness of the institutions. Six months later, the Corfu European Council added another question to the list, namely the threshold for decisions by qualified majority.

At the end of August 1994, the Netherlands' new Foreign Affairs Minister Hans van Mierlo commissioned four exploratory policy documents for the benefit of parliament relating to the IGC. The main themes were to cover widening and deepening, the CFSP, co-operation in the fields of Justice and Home Affairs (JHA), and institutional questions. His aim was to stimulate public debate on 'Europe' in the Netherlands before rather than after the IGC, as had been the case with the Treaty of Maastricht. In the event, the debate got off to a faltering start, although the policy documents -particularly the first and the third- had a significant impact on the final outcome of the IGC.

The Conference started in March 1996, under the Presidency first of Italy and subsequently of Ireland. Van Mierlo judiciously appointed State Secretary Michiel Patijn to act as his personal representative. The European Council's objectives for the Conference may be summarised as follows:
to bring the Union closer to its citizens
to enable the Union to act more effectively vis-a-vis the rest of the world
to reform the Union's institutions in preparation for enlargement.

In my view, most of these aims were achieved. It is mainly in respect of the third objective that the Treaty texts as agreed do not correspond entirely with earlier ambitions, although they faithfully reflect the extent to which the Member States are prepared to accept reforms at present. I will discuss this issue in greater detail below, as it calls for the fullest response.

Institutional reforms
It was doubtful from the start whether the IGC could achieve the institutional reforms it envisaged by 1997. The fourth IGC policy memorandum of July 1995 reflected the Dutch government's reservations on this score, pointing out that the Maastricht Treaty had only come into force in 1994, and that the actual accession of new Member States, even in 1997, would still be a long way off. Although the debate on institutional reform was put on the agenda soon after the Netherlands took over the Presidency, the Member States steered clear of this political powder keg until the conference was nearing its end. The elections I mentioned earlier meant that the debate was postponed for even longer. For a while it seemed as if the negotiations of institutional reform had ground to a complete stop. A few weeks before the summit, Chancellor Kohl presented his views at an informal meeting in Noordwijk. For the time being, he suggested, the institutional status quo should be maintained. President Chirac voiced no objection.

Kohl's viewpoint reflects the growing influence of the Lander on Germany's European policy. It seems that familiar surroundings -whether Land or region- provide a psychological refuge in the face of increasing European co-operation. The upshot is a shift in political influence away from central government. A similar trend has occurred in Belgium and Spain. Van Mierlo once said, in this connection, that the crisis in Europe is the sum of the constitutional crises in the Member States. In these circumstances, the ability to give and take, on which broader-based structures in Europe depend, is likely to dwindle away. Only strong states can allow themselves to make the concessions which form an intrinsic part of this process.

Kohl's proposal in Noordwijk received a fair amount of support, although the Dutch Presidency observed that it would leave a great many issues unresolved for a very long time. In the course of a tour of European capitals at the beginning of June, Prime Minister Wim Kok and Foreign Minister Hans van Mierlo found that many of the Member States agreed with the Netherlands' view that simply maintaining the status quo would undermine the IGC's credibility; it would also send a negative signal to the candidate states and possibly make the accession negotiations even more difficult. The Presidency left no stone unturned in its efforts to make at least some progress in this respect, and though we failed to accomplish all we had hoped for, it was more than many had expected we could achieve. Increasing the potential for decision making by qualified majority vote represented no more than a modest gain. A far greater accomplishment, however, is that, at the first enlargement of the Union -by no more than five new members- the larger countries have stood by their commitment to relinquish their second Commissioner. Once EU membership exceeds the 20 mark, all the institutions will come up for a thorough review. There is still ample time for the debate on the weighting of votes in the Council, a matter which is related to the surrender of the second Commissioner. The moment had obviously not yet come to decide on the future balance of power between small and large countries in the EU. In any event, it would be incorrect to infer that enlargement of the Union is now blocked. On the contrary: the wheels have been set in motion. With Agenda 2000 the Commission presented proposals for opening negotiations. Opinions may differ as to whether its approach is the right one as seen from all angles, but if the European Council manages to make up its mind at the end of this year, there is nothing to stand in the way of the negotiations.

Closer co-operation
With a view to enlargement, and for other reasons as well, the decision on 'closer co-operation' -as flexibility has come to be known- is of major importance. The first IGC memorandum, which appeared a few months after Van Mierlo came to office, lays down the criteria for what was called at the time variable geometry, all of which are reflected in the Treaty of Amsterdam. The provisions of the Treaty do justice to the legitimate interests of countries that favour closer co-operation within the framework of the EU as well as to the considerations of those that do not wish to be involved in such co-operation right from the start. It is of major importance that the latter cannot prevent a majority of Member States from moving towards closer co-operation on the 'first pillar' of the EU (the EC Treaty). Yet we will obviously need to be on our guard to ensure that this does not undermine the 'acquis communautaire'.

It is clear, however, that subsequent enlargements may create a Union too large and too heterogeneous for its members to be able to take every following step in unison. It is quite conceivable that future participants in EMU in particular will be in a position to proceed further in certain related areas than Member States which do not yet quality for EMU or do not wish to join it.

Free movement of persons and the safety and security of Europe's citizens
One of the areas in which good progress was made is that of the free movement of persons and public safety. The combination of free movement of persons and police and judicial co-operation was one of the most complex subjects on the IGC agenda. The majority of Member States supported the Dutch Presidency's wish to transfer 'free movement of persons' to the first pillar of the EU (the EC Treaty), and to keep police and judicial co-operation in the third pillar (intergovernmental co-operation). Other countries, notably France, considered this insufficient and advocated a closer link between the abolition of internal frontiers and co-operation in combating crime. They also favoured the introduction of majority voting in some third-pillar matters. However, some Member States, including the Netherlands, objected to this. The government takes the view that judicial co-operation in criminal matters should remain within the realm of the domestic legal order.

Our approach ultimately won favour, once the text of the Treaty include an explicit link between the first and third pillars. The essence of this approach is that the EU Treaty defines an "area of freedom, security and justice" as an overriding objective. This creates a direct link between provisions to give citizens greater freedom of movement and those designed for their protection and safety.

After a five-year transitional period, the free movement of persons -that is to say policy on visas, asylum and immigration as well as controls at the EU's external frontiers- will gradually be brought within the scope of Community regulations and procedures. However, co-operation between the police and judicial authorities in criminal matters will remain within the third pillar and thus continue to be a question of co-operation between national governments. During the transitional period, decisions will be taken by the Council on the basis of unanimity, after consultation with the European Parliament (EP). Had it been up to the Netherlands, the change to majority decision-making would have been a matter of course after the five-year transition. At the last minute, however, Germany considered this unacceptable. This, once again, attests to the new-found influence of the Lander.

Given that the aims of the Schengen Agreement, by which 13 Member States had already created a zone for the free movement of persons, correspond to those of the new Treaty, all that has been achieved within the framework of Schengen will be incorporated in the Union. However, an exception was made for the United Kingdom and Ireland. These two countries may share in the Schengen acquis on a more or less a la carte basis. By acceding to the Social Protocol, the new British government has ended the country's anomalous position in an entirely different field. This in itself is reason for satisfaction.

I firmly believe that the new arrangements in the fields of Justice and Home Affairs will yield a vast improvement in the quality of policy and increase the efficiency of the decision-making process. This would, to a large extent, represent the attainment of the objectives set out in the third IGC policy memorandum. An important gain, in my view, is that the role of the European institutions (Parliament and the Court of Justice) and accordingly judicial and democratic scrunity of decisions in this field will be strengthened to a substantial degree.

Sanctions mechanism
At the suggestion of the Dutch Presidency, the Treaty of Amsterdam now incorporates a sanctions mechanism which can be applied against any Member State guilty of serious and persistent violations of democratic principles or human rights. In such circumstances, the rights of a Member State may be suspended. In my view, this important new move has failed to receive the publicity it merits. It is an extremely severe measure which is unlikely to be used much in practice, but which should serve as a powerful deterrent.

The Treaty makes provision for additional new instruments to combat discrimination, and it also devotes particular attention to the position of women. The promotion of equality between men and women will be incorporated in the objective of the European Union.

It should be said, moreover, that the EP's legislative role has been strengthened to a considerable degree. The co-operation procedure, which was unsatisfactory from a democratic point of view, has been almost entirely abolished and -except within EMU- replaced by a co-decision procedure. This means that the EP and the Council are now on an equal footing as true co-legislators in EC matters. An article by Jean Penders in a previous issue of the International Spectator gives a good idea of the implications of the Treaty of Amsterdam as regards the strengthening of democratic controls.

Employment
Although the subject of employment was not initially on the IGC agenda, a number of Member States urged that new provisions on employment be incorporated as part of a larger social dimension in the Treaty. However, other Member States argued that employment was and should continue to be a national issue. The Netherlands took this view, but voted in favour of a section on employment, providing that its main object was to improve co-ordination between the Member States. The problem was thus resolved. The Treaty of Amsterdam raises the status of the employment issue by making it one of the Union's objectives. This is a welcome expression of the EU's concern. High unemployment is one of the most urgent problems facing Europe at present.

Foreign and security policy
In conclusion, I would like to say a few words about the Common Foreign and Security Policy. More has been achieved in the 'second pillar' than most people seem to realise. A High Representative is to be appointed to strengthen policy implementation. The same person will act as Secretary-General of the Council and assist the rotating presidency. He will not be accountable to the European Council of heads of state and government -like the French model (Monsieur PESC)- but to the 'ordinary' General Affairs Council. On this subject, too, we managed to reconcile major differences of opinion.

A policy-planning and early-warning unit involving the Commission and the WEU is to be established as part of the Council Secretariat. Since it was first conceived, the Common Foreign and Security Policy has suffered from the fact that in specific situations the Union has failed to define the notion of 'essential common interests'. This is partly to be blamed on differing national perceptions, but it is also due to a shortage of capacity for policy analysis. The new unit will be expected to fill this gap. Another of its tasks will be to provide an early warning in the event of a potential crisis.

Another flaw in the Common Foreign and Security Policy was the requirement that decisions be taken by unanimous vote. This meant that the Union's ability to act in a given set of circumstances depended on what the most cautious Member State was willing to do. Although 'Amsterdam' has not done away with the veto, it has taken modest steps in the right direction by allowing constructive abstention and, under certain conditions, decisions to be taken by qualified majority vote in the General Affairs Council. In future, majority voting will be the norm in the CFSP in relation to decisions based on a common strategy, provided the latter has been adopted by unanimity in the European Council. Any Member State with cogent national interests at stake may sound the alarm and block the decision-making process. This should obviously not happen too often. It will therefore be more difficult to employ the veto.

It is clear that procedural improvements alone will not suffice to resolve the most persistent CFSP problem of all, namely, the absence of the consensus the Union needs in order to take resolute action. However, I am not dissatisfied with the progress that has been made in the field of Common Foreign and Security Policy. The majority of Member States are gradually starting to realise that they will not get very far by going it alone. And though in this sensitive area old habits die hard, I am nevertheless confident that further progress will be made.

The EU and the WEU
This IGC also served to draw the EU and the WEU closer together, in spite of the fact that member states hold different views on their ultimate goals. As a first step towards a common defence policy, the WEU's Petersberg tasks (peacekeeping etc.) have been incorporated in the Treaty: the EU can make use of the WEU to develop and implement activities of this kind. The European Council's competence to lay down general guidelines on the EU's Common Foreign and Security Policy now extends to the WEU as well, at least in respect of activities the WEU has agreed to undertake at the Union's request. In other words, a direct link has now been established between the European Council and the WEU.

Historical imperative
The object of the present article is to show that the Treaty of Amsterdam is yet one more in a series of steps towards a kind of constitution for Europe. The European Union is a unique form of co-operation between states, a sui generis phenomenon for which no model exists by which to measure progress. In my opinion, however, the Treaty has served to improve the quality of European governance, both substantively and institutionally.

This 'overhaul' has also paved the way for negotiations to open on the enlargement of the Union -a step which became an historical imperative with the collapse of the Berlin Wall, the downfall of communism as a tolalitarian state ideology in Central and Eastern Europe, the disintegration of the Soviet Union and the decision to enlarge NATO in an easterly direction. It goes without saying that the EU will have to reform its institutions in good time, but the relationship between deepening and enlarging has shifted.

Enlargement can no longer be depended on deepening. Enlargement has been forced upon us by history. And it is therefore the most powerful lever by which to engineer the reform of the European Union.