The Treaty of Amsterdam: Towards a New Institutional Balance

The Treaty of Amsterdam: Towards a New Institutional Balance
Michael Nentwich and Gerda Falkner
European Integration online Papers (EIoP) Vol. 1 (1997) N° 015;
http://eiop.or.at/eiop/texte/1997-015a.htm
Date of publication in the : 25.8.1997
Full text
Keywords
IGC 1996, institutions, transparency, Treaty on European Union, European Parliament,
Commission, Council of Ministers, democracy, law, political science
Abstract
This paper analyses the so-called 'Draft Treaty of Amsterdam' of 19 June 1997, focusing on the
changes concerning the institutions and the decision-making procedures. It is argued that the sum of
envisaged changes will considerably alter the institutional balance between the three main actors,
i.e. the Commission, the Council and the European Parliament. The latter, in particular, will have
an increased influence vis-à-vis the Commission (via the investiture procedure) and a greater say
vis-à-vis the Council (in the codecision procedure). With regard to the internal organisation of the
three institutions, too, remarkable changes are on the horizon. The roles of the Committee of the
Regions and of the national parliaments in EC policy-making have been consolidated and clarified
respectively. We conclude with an overall assessment of the results of the IGC 1996/97. The paper
includes a synopsis of all Treaty changes in the procedural field, and a graph presenting the new
codecision procedure.
Kurzfassung
Dieser Artikel analysiert den sogenannten Vertragsentwurf von Amsterdam vom 19. Juni 1997,
wobei die Neuerungen im institutionellen und Verfahrensbereich im Mittelpunkt stehen. Wir
argumentieren, daß die Gesamtheit der geplanten Veränderungen das institutionelle Gleichgewicht
zwischen den drei Hauptakteuren, also der Kommission, dem Rat und dem Parlament, wesentlich
verändert. Insbesondere das Parlament wird größeren Einfluß auf die Kommission ausüben können
(und zwar über das Bestellungsverfahren) und wird an Einfluß gegenüber dem Rat gewinnen (über
das Mitentscheidungsverfahren). Auch hinsichtlich der internen Organisation der drei Organe
stehen Veränderungen an. Die Rolle des Regionalausschusses und der nationalen Parlamente in der
EG-Entscheidungsfindung wurde konsolidiert bzw. geklärt. Wir schließen mit einer Bewertung der
Ergebnisse der Regierungekonferenz 1996/97. Teil des Papiers ist eine Synopse aller
Vertragsänderungen im Verfahrensbereich und ein Schaubild des neuen
Mitentscheidungsverfahrens.
The authors
Dr. Michael Nentwich is researcher at the Austrian Academy of Sciences; email:
mnent@oeaw.ac.at, WWW: http://fgr.wu-wien.ac.at/nentwich/mn.htm; Dr. Gerda Falkner is
lecturer and researcher at the Institute for State and Political Science, University of Vienna; email:
Gerda.Falkner@univie.ac.at.
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The Treaty of Amsterdam: Towards a New Institutional Balance(*)
Michael Nentwich and Gerda Falkner
European Integration online Papers (EIoP) Vol. 1 (1997) N° 015;
http://eiop.or.at/eiop/texte/1997-015a.htm
Date of Publication in : 25.8.1997
Abstract
Contents:
I. Introduction
II. The New Codecision Procedure: Towards an Equal Footing
III. The EP's New Competences: Towards Parliamentary Democracy
IV. The Future of the Commission: Towards a European Government?
A. The New Internal Structure: Towards Personalisation?
B. The Nomination of the Commission: Towards Party Politics?
V. The EP and Future Enlargement: Towards Representativeness
VI. National Parliaments: No Co-Decision-Powers
VII. The Regional Committee: No Europe of the Regions
VIII. Decision-Making in the Council: Towards More Efficient Policy-Making
A. More Qualified Majority Voting
B. The 'Amsterdam Compromise'
IX. The New Rules on 'Transparency': Towards More 'Open' EU Politics
A. Less Secrecy in the Council of Ministers
B. The Related Issue of the Accessibility of the Treaty framework
X. An Overall Assessment
A. Was the Official Mandate Fulfilled?
B. A New Institutional Balance Is in Sight
C. Outlook: Towards Democracy?
1
I. Introduction
In this paper, we shall analyse the so-called 'Draft Treaty of Amsterdam' of 19 June 1997(1), focusing
on the changes concerning the institutions and the decision-making procedures. It will be argued that
the sum of envisaged changes will considerably alter the institutional balance between the three main
actors, i.e. the Commission, the Council and the European Parliament. The latter, in particular, will
have an increased influence vis-à-vis the Commission (via the investiture procedure) and a greater
say vis-à-vis the Council (in the codecision procedure). With regard to the internal organisation of
the three institutions, too, remarkable changes are on the horizon. The roles of the Committee of the
Regions and of the national parliaments in EC policy-making have been consolidated and clarified
respectively. We conclude with an overall assessment of the results of the IGC 1996/97.
II. The New Codecision Procedure: Towards an Equal Footing
The reform of the codecision procedure is to be considered as one of the major results of the IGC.
The following changes were agreed on (see also the Figure 1):
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If the Council agrees to the EP's amendments in the 1st reading already, it may adopt the act at
this very early stage. Given the fact that carrying the procedure on to the (cumbersome and
time-consuming) conciliation procedure stage is rather unpopular among the MEPs as well as
the ministers, officials from the EP consider this a major change in so far as the MEPs will be
inclined to draft their amendments carefully, trying to anticipate the Council's views on the
issue in order to get its approval already at this early stage(2).
If, in turn, the EP approves the Council's common position in the 2nd reading, the act is
deemed to be adopted without being referred back to the Council.
If, in the 2nd reading, the EP does not take a position within three months, the act is also
deemed to be adopted in the version of the Council's common position; this is the last
remaining imbalance between the two 'chambers' since the decision finally taken would in this
case not necessarily reflect a jointly agreed text.
The EP can reject the common position right away during the 2nd reading, i.e. it has not to
notify to the Council its intention to reject in advance.
If, in the 2nd reading, the Council agrees to the EP's amendments, the act is also deemed to be
adopted without any further formal decision.
There is still a 3rd reading, but it was changed in such a way that the Council may no longer
resume its original common position after the failure of the conciliation committee; this was
one of the main criticisms to the original codecision procedure.
Various new time limits were introduced to assure that the period between the EP's 2nd
reading and the outcome of the whole procedure may not take longer than 9 ½ months; only
the 1st reading will be without time limits(3). Nevertheless, the experience of codecision tells
us that due to the existing time limits it is already the shortest procedure available, despite the
possibility of three readings in both chambers(4).
These changes show that the EP came very close to what it had asked for in the IGC. In fact, the
changes eliminate the procedural imbalances between the two major players, i.e. the Council and
Parliament, to a very large extent. Remaining differences can be assimilated to a useful distribution
of roles, while the overall political weight of the two institutions within the codecision procedure
may now be considered equal. Furthermore it can be argued that the last formal inequality, i.e. the
need for Parliament to pronounce itself on the Council's common position within a reasonable period,
is only a 'whip in the window' with a view to an effective internal organisation.(5) It is however
noteworthy that the new wording of Article 189b [= 251 new](6) TEC still lacks a similar provision
in the case of the Council not acting within the time limit of three months in the second reading: if
the Council fails to reach a decision on the EP's amendments in time, the procedure simply comes to
an illegal halt(7), but the legislative act is not deemed to be adopted in the EP's version. One has to
admit, however, that at this stage of the legislative procedure the Commission's opinion has a role to
play. Therefore, it would not be obvious what the latest version of the text would be, either that of the
EP or possibly an amended version by the Commission. In this perspective, strict equality between
the two legislative chambers would not offer an adequate solution to the peculiarity of the triangular
institutional balance.
Against this background, we conclude that the reform of codecision finally puts the Euro-Parliament
on an essentially equal footing with the Council (as far as this procedure is concerned). Considering
that this procedure will be applied in many more cases than before, the 1996/97 IGC is indeed a
major step towards a system based on bicameral parliamentary democracy at the EC level. It is
interesting to note that the Treaty language did not take into account this gradual change from a
Council centred to a bi-cameral system: While in the Single European Act the formula „the Council
shall ... in cooperation with the European Parliament adopt" was used, the Maastricht Treaty does not
mention the EP in most cases: „the Council shall, acting in accordance with the procedure referred to
in Article 189b ..., adopt...."(8). The Amsterdam Treaty is thus not going to change the remaining
imbalance in the Treaty language although the titles of the legislative acts on the basis of Article
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189b [= 251 new] TEC already include the EP (e.g. „Directive ... of the European Parliament and the
Council of Ministers on ....").
2
III. The EP's New Competences: Towards Parliamentary
Democracy
The EP started out as a purely consultative body composed of representatives delegated from the
national parliaments. Over the last decades, it saw its powers extended with each major Treaty
reform. In the aftermath of the first direct election in 1979, the EP itself gave an important impetus
for the 1986 Single European Act which introduced both the cooperation and the assent procedures
with its 'Draft Treaty on European Union' (although the latter was not as such accepted by the
governments). Nevertheless, pure consultation was kept as an alternative modus of EP involvement
for many areas of European policy-making. The Maastricht Treaty continued along these lines by
adding yet another procedure. 'Codecision' under Art 189b [= 251 new] TEC gave further-reaching
(although not yet: equal) powers to the parliamentary EC chamber, but was far from representing the
one and only standard procedure. Resulting from this incremental reform process was a patch-work
style landscape of EC decision-making: for each and every single case, one out of approx. 20
variants(9) of the four main procedures would apply. Neither of them, however, fulfilled the criteria
of putting the EP on an equal footing with the governments represented in the Council. Therefore, the
EP's demands for the 1996/97 IGC focused not only on improving codecision (see above II.) but also
on making it the single standard procedure in all EC law-making.
Table 1
With a view to the extension of EP competences (and other procedural changes), our synopsis in
Table 1 presents an overall picture of the IGC output as agreed in Amsterdam. In short, no uniform
decision procedure was established, yet again. Among the numerous specific changes, we would like
to highlight the following points:
In the TEU, the new Article Fa gives the EP an additional right to assent, i.e. when the Council
determines a breach of the Union's principles by a member state. By contrast, there is still mostly no
involvement, or only consultation, in the 2nd and 3rd pillars of the Union: With regard to some areas
of the 3rd pillar(10) a special consultation procedure will apply that is already known from one case
in the 1st pillar, namely the conclusion of international agreements(11): the Council may lay down a
time limit (which shall be no less than three months) for the delivery of the EP opinion; in contrast to
the ordinary consultation procedure, the Council may act without this opinion if not delivered in
time(12). In those areas which will be 'communautarized', i.e. transferred from the 3rd to the 1st
pillar(13), the EP will not be involved at all or only on a consultative basis during the five years after
the entry into force of the new Treaty. After five years, the competence to harmonise the rules and
procedures concerning visa will automatically be transferred to codecision, whereas for the rest of the
decisions taken under the new title on free movement of persons this transfer has to be decided
unanimously by the Council after consultation of the EP(14).
In those areas which are already covered by the TEC, the reform did not bring about a single
legislative procedure, either. The state of affairs after Amsterdam can be summarised in the
following five points:
(1) In some central issues where the Amsterdam Treaty introduces new provisions or amends existing
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ones, there is still only consultation of the EP: this concerns e.g. the authorisation to closer
cooperation(15); measures against discrimination(16); most decisions on asylum/immigration(17);
also parts of the social and R&D policies.
3
With regard to such articles which remained unchanged by the Amsterdam Treaty, three provisions
should be pointed out: (i) The main legal basis for action in the field of agricultural policy, Article 43
[= 37 new] TEC, will also in the future provide for EP consultation only. However, the provision on
public health(18) was changed to encompass areas which were previously ruled under Article 43
TEC, i.e. veterinary medicine and phytosanitary measures. Since those decisions are already being
taken according to the codecision procedure, we may conclude that the EP has now at least 'a foot in
the door' to become a decisive co-legislator in the agricultural field. Still, in the important area of the
common agricultural market organisations, the Council acts after having consulted the Parliament
only(19). This is particularly deplorable since in this area, neither the EP nor the national
parliaments(20) have a say with regard to the content or the budget of the policy. (ii) Another
important area where the EP is still involved on a consultative basis only is the harmonisation of
legislation concerning indirect taxes, such as turnover taxes and excise duties(21). (iii) Finally,
Article 235 [= 308 new] TEC remains unchanged. It allows the Council to adopt legislation that
cannot be based on more specific competences but nevertheless is „necessary to attain, in the course
of the operation of the common market, [if] one of the objectives of the Community and this Treaty
has not provided the necessary powers". This is the so-called 'subsidiary competence' provision
which has been the legal basis for many important legislative acts, such as the 1976 Equal Treatment
Directive(22).
(2) The cooperation procedure has been replaced by codecision in most cases, but not for EMU. It
should be reminded here that 'cooperation' gives the EP no veto power.
(3) Although codecision applies to only 8 out of 36 new competences attributed to the EC by the
Amsterdam Treaty (see Table 1), there are 22 (23)(23) new issues under codecision which come in
addition to the 15(24) set out in the Maastricht Treaty. In future, the EP will thus be a co-legislator
under 37 provisions altogether; among those areas are central legislative powers of the Union such as
most common market related provisions and at least some types of decisions within the majority of
all other policy areas [see however pt. (1) and (2) above as well as (4) and (5) below].
(4) There are, however, also new cases of non-involvement of the EP: e.g. when decisions are taken
on further member states joining a 'closer cooperation' among others(25); on emergency measures
related to immigration(26); on recommendations on employment policy(27); on the implementation
of social partner agreements in social affairs(28); on adaptation or supplementing of R&D
programmes(29); on the suspension of rights deriving from TEC for a Member state which is in
breach of fundamental principles of the Union(30). In particular, international agreements are an area
where the EP has only a limited role to play in the day-to-day decision-making: except for association
agreements under Article 238 [= 310 new] TEC, the EP's consultation is not formally based on the
Treaty when the Council concludes (Article 228 [= 300 new] para. 2 TEC) or suspends(31) an
agreement(32), but on a voluntary basis (the so-called Luns/Westerterp procedure). Also in the field
of economic policy, Parliament is often only informed of decisions taken by the Council(33).
(5) It is noteworthy that no changes were agreed on the EP participation in the budgetary procedure,
although this issue had been explicitly put on the IGC agenda by the Interinstitutional Agreement of
1993.(34) Thus, in financial matters, the EC system remains quite sui generis.
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