FECL 33 (April 1995):


The Dutch "Standing Committee of Experts on International Immigration, Refugee and Criminal Law" has published a list of proposals to amend the Maastricht Treaty. Most of the proposals refer to Title VI of the treaty (on Justice and Home Affairs). The proposals are made in advance of the 1996 EU summit. They focus on ensuring that Union law as it develops, reinforces democratic principles, or, at least, "prevents those democratic principles being detrimentally affected". In particular, the Standing Committee wishes to achieve more transparency and improved parliamentary and judicial control. The following is a synopsis of the document.


Open government

Citizens of the Union should be entitled to access to information held by the institutions and to receive this information so that they may both follow and participate in the development of Union law. Such an important principle should not be relegated to the realm of internal rule-making by the institutions, as it is currently the case with the Rules of Procedure of the Council and the Commission. The Standing Committee therefore proposes the insertion of a new provision in Title II of the treaty stating the general rule of citizens' right of access. The provision should precisely specify the categories of information and the grounds upon which exceptions to this rule may apply.

This amendment relates only to public access in areas under Community legislation (first pillar). The Standing Committee therefore proposes a second amendment relating to Title VI (third pillar) that reads as follows:

"Proposals for the adoption of a joint position or joint action as well as measures in pursuance thereof and the draft of a convention as well as measures implementing it . . . shall be published in the Official Journal, three months before the Council adopts a decision thereon. Upon adoption by the Council, the decision shall be published in the Official Journal".

It is further stressed that the European Ombudsman should also play a role in promoting administrative openness within the Union through decisions taken regarding to the complaints of interested citizens.


The jurisdiction of the Court of Justice

The Standing Committee aims at making the jurisdiction of the Court mandatory in Conventions (e.g. Dublin Convention, Europol Convention) set up under Article K.3 (2)c of Title VI.

A dispute arising between member States with respect to the interpretation or application of an agreement could thus be resolved by the Court of Justice. Individual citizens could also call on the Court in order to ensure that the interpretation of important rules in the agreements is definitive.

The Standing Committee sees such a role for the Court as crucial for preventing differing interpretation of agreements in the various member states, and thus for guaranteeing a minimum standard of legal security and justice.

Well aware of certain Member States' deep-rooted reluctance to accept such a role for the European Court, the Standing Committee also proposes an alternative amendment under which the jurisdiction of the Court of Justice would be limited to those Member States which have declared to the Secretary-General of the Council that they accept such jurisdiction.

Such an expedient could be used to break deadlocks where the issue of whether the Court of Justice is competent to decide something in itself prevents progress. Such a deadlock might arise thanks to the intransigence of one or a small number of Member States. Thereby the Standing Committee wishes to ensure that no single Member State should be deprived of the right to accept the jurisdiction of the Court solely because one or more other Member States refuse to do so. In the Standing Committee's view, it is unacceptable that those states which desire proper judicial supervision are denied the opportunity of having it, merely because one Member State's obstruction.

"In order that the democratic character of a law making institution may properly be termed democratic, the existence of a judicial authority charged with interpreting its decisions is fundamental", the Dutch experts emphasise. "Where the institution is supranational or international, it is vital that the judicial authority is also supranational or international in the interest of uniformity". The Standing Committee rejects the idea of giving jurisdiction to the International Court of Justice or the European Court of Human Rights, mainly on the grounds that conferring jurisdiction on such "extraneous" courts over disputes arising in the context of the third pillar (Title VI of the Maastricht Treaty) "would add considerably to the complexity of the Union structure as a whole".


Parliamentary control under Title VI

A new paragraph should be inserted into article K.4 (establishing the K4-Committee of Coordinators and its competencies):

"A decision of the Council as referred to in this Title shall not be adopted until the European parliament has been afforded the opportunity to formulate and notify the Council of its opinion on the draft decision of the Council, within a period of three months of its receipt."

The amendment is intended to guarantee that no decision will be taken by the Council without the European Parliament being consulted.

An additional amendment aims at providing each national parliament with the possibility of scrutinising any draft decisions pending before the Council, insofar as the draft decision purports to establishing binding rules. This amendment, however, does not specify the purported legal effect of the opinion given by a national parliament, this being a matter for the national law and practice of each Member State.

The purpose of this important proposal is to involve national parliaments, should they so wish, in law making by the Union in the highly sensitive areas of immigration, criminal law, and policing.


Combatting racial discrimination

A number of amendments under Title II of the Maastricht Treaty are proposed with an aim to provide a legal basis for the adoption of binding rules for common action towards the prevention of racial discrimination and ethnic conflict within the Union. The Standing Committee notes that current provisions of the Maastricht Treaty emphasise the differences in legal status between the citizens of the Member States and immigrants from third States legally residing in the Union. "That distinction serves as a justification for xenophobia and unequal treatment of immigrants from third countries", the Committee claims. "If the Council wishes to take its declarations on the prevention of racial discrimination seriously, priority deserves to be given to improving the legal position of citizens of third countries legally residing in the territory of each of the Member States".

Among the measures named by the Standing Committee, its proposal for a radical re-definition of citizenship of the Union deserves particular mention. A new Article 8 (1) of Title II would read as follows:

"Citizenship of the Union is hereby established.A person holding the nationality of a Member State or who has been lawfully residing in the territory of a Member State for five years shall be a citizen of the Union".

This amendment extends Union citizenship established in 1993 to include immigrants from third states who have legally resided in the territory of a Member State for a determined period. The Standing Committee asserts that, without an express equality provision such as this, many Union measures against racism, xenophobia, and racial discrimination will remain "hollow rhetoric".

Finally, the Dutch experts propose the insertion of a new paragraph into article 100C of the EC Treaty:

"The Council shall . . . determine the conditions under which free movement within the Union shall be exercised by citizens of third States lawfully in the territory of a Member State".

The Standing Committee is of the opinion that free movement of persons in the Community cannot be fully developed when a section of the population is excluded from the enjoyment of this right. Pursuant to the above amendment, the Council can determine the extent to which free movement of persons can be extended to citizens of third States lawfully staying in the Community. Conditions may be specified as regards duration, financial requirements, extension of stay after the original ground ceased to exist, social security entitlements and responsibility in event of expulsion.

The Standing Committee's very moderate proposal aims at creating the preconditions for gradually extending the right of free movement to ever larger sections of the population, in order to achieve progress in a field where discussions for the time being are marked by "all or nothing" attitudes.


Source: Proposals for the amendment of the Treaty of the Union at the IGC in 1966, Standing Committee of Experts on International Immigration, Refugee and Criminal Law, Utrecht, March 1995, 13 p. Available at: Standing Committee of experts, p.o.box 638, NL-3500 AP Utrecht, Tel: +31/30 963900; Fax: +31/30 944410.