Section I of the Amsterdam Treaty (on 'Freedom security and justice') begins with essentially symbolic statements of the Union's commitment to "general principles" such as "liberty, democracy, respect for human rights and fundamental freedoms". However, the idea of EU accession to the European Convention on Human Rights (ECHR) has not been realised. Instead the Treaty merely says: "The Union shall respect fundamental rights, as guaranteed by the [ECHR]". This creates the odd situation that the legal protection of individuals against breaches of fundamental rights by the Union is inferior to protection against breaches by its member states, all of whom are signatories of the ECHR.
A procedure is introduced, both in the TEU (Treaty on European Union) and the TEC (Treaty establishing the European Community), which - at least in theory - provides that the Council may exclude a member state until further notice from certain rights under the treaties, including the right of voting in the Council, where a "serious and persistent" breach of the aforementioned general principles has been established. The proposal to initiate a procedure aiming merely to determine the existence of a breach by a member state, must be made by one third of the member states and approved unanimously by the EU Council (meeting of the Heads of State or Government). The decision to suspend the rights of the member state concerned is taken by the Council, acting by a qualified majority.
A "Declaration to the Final Act on the abolition of the death penalty" merely "recalls" the protocol to the ECHR providing for the abolition of the death penalty, and notes that since the signature of this Protocol in 1983, "the death penalty has been abolished in most of the Member States of the Union and has not been applied in any of them".
From 1999, the EC Data Protection Directive will apply to processing of personal data by EU institutions and an independent supervisory body shall monitor the correct application of data protection rules. However, bodies within the Justice and Home Affairs framework are not covered. This means, for example, that Europol's handling of personal data will remain outside the scope of the new supervisory body.
A Protocol attached to the TEC provides for the abolition - at least in practice - of the right for citizens of an EU member state to seek asylum in another member state (We will cover this item in the next cl).
A new Title on "Free movement of persons, asylum and immigration" is introduced in the TEC. Thus, formally, the above items are now dealt with within the Community Law framework of the "first pillar". However, during a "transitional period" of 5 years after the entry into force of the Amsterdam Treaty, the Council shall act unanimously and the right of proposal is shared by the Commission and the member states. The Council shall "consult" the European Parliament EP). Jurisdiction of the European Court of Justice (ECJ) is limited to preliminary rulings upon request of a national Court, against whose decisions there is no legal remedy under national law, the Council, the Commission or a member state.
After the 5 year transitional period, aspects of immigration and asylum policy will be subjected to the qualified majority rule, if and only if the Council decides so by unanimous vote and after consulting the EP. In this event, the areas or parts of areas concerned would be governed by the procedure referred to in Article 189b of the TEC, which provides for a stronger say for the EP. The right to propose legislation would be limited to the Commission and the scope of ECJ jurisdiction would be extended.
However, Article H(2) of the revised TEC unequivocally states: "In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision (...) relating to the maintenance of law and order and the safeguarding of internal security".
Finally, rulings of the ECJ on a question of interpretation of the new Title or of acts of the Community institutions based on this Title shall not apply to judgements of national courts against which there is no national legal remedy.
The Council shall adopt, within the first five years, a number of "measures" with direct legal effect in the member states in the fields covered by the new Title. But due to the requirement of unanimity, this is unlikely to lead to any major changes. Exceptions to the requirement of unanimity are made only for certain measures in respect of visa policies.
The UK, Ireland and Denmark are not bound by the provisions of the new Title and the so-called Schengen acquis, which covers, inter alia, the same areas as the new Title, is incorporated into the framework of the European Union. All this only adds to the extraordinary complexity of decision-making procedures established by the new Title.
Judicial cooperation (in criminal matters) and police cooperation will continue within the prevailing intergovernmental framework of the "third pillar" (Title VI of the TEU). This means that all decisions, except measures implementing Conventions, require unanimity. The amended Title VI significantly extends police cooperation. Europol is given quasi-operational powers. Among others, it shall be enabled to "facilitate and support", and to "encourage the coordination and carrying out" of specific investigations by the "competent authorities" of the member states. Europol shall take part "in a support capacity" in joint teams of the member states carrying out operational actions. Moreover, Europol shall be allowed to "ask" the competent authorities of the member states to "conduct and coordinate" their investigations in specific cases.
Items of judicial cooperation in criminal matters, named in the revised Title VI, include:
- improved cooperation in relation to proceedings and enforcement of decisions;
- facilitating extradition (already very much facilitated by the Convention on Extradition);
- measures establishing minimum criteria for the approximation of the member states' legislation with respect to offences in the fields of "organised crime, terrorism and drug trafficking".
New instruments of decision-making are introduced. They are:
- "Common positions" defining the approach of the Union to a particular matter, i.e. non-binding general policy statements.
- "Framework decisions". They have no direct legal effect in the member states, but shall be binding upon them as to the result to be achieved (this format is likely to be used, for example, for the approximation of criminal law).
- "Decisions" for any other purpose within the scope of Title VI, excluding, however, any approximation of legislation of the member states. They are "binding and shall not entail direct effect".
In addition to this, the Council may continue to establish Conventions. Member states shall begin the ratification procedures within a time limit set by the Council.
Early suggestions at the IGC for the removal of the K.4 Coordinating Committee of senior officials with a view to smoothen the prevailing cumbersome process of preparing JHA decisions have not been heeded. Thus, it will probably be up to the Council to decide possible changes regarding the lavish bureaucratic structures under the K.4 Committee.
The EP shall be "consulted" before the adoption of "framework decisions", "decisions" and Conventions. No consultation is provided for with regard to "common positions".
By making a declaration to this effect any member state can accept preliminary jurisdiction by the ECJ with respect to the validity and interpretation of framework decisions and decisions, as well as on the interpretation of conventions. Provided such a declaration is made by a member state, the ECJ will give a preliminary ruling upon request of a Court of that state (This provision has been taken from the Protocol to the Europol Convention on the role of the ECJ).
The ECJ shall also rule on disputes between the member states regarding the interpretation or application of measures decided by the Council. However, another provision crucially restricts the competencies of the ECJ: it shall have no jurisdiction to review "the validity or proportionality" of operations carried out by the police or other law enforcement agencies of a Member State" or of measures with regard to "the maintenance of law and order and the safeguarding of public security".
General clauses inserted in the common provisions of the TEU provides the possibility for member states to establish "closer cooperation" between them, within the institutional and legal framework of the Treaties. Such closer cooperation is authorised provided it comprises "at least a majority" of member states. When the Council addresses measures implementing "closer cooperation", all 15 members of the Council take part in the deliberations, but only member states participating in "close cooperation" are allowed to vote.
Conditions for closer cooperation are specified in Title VI of the TEU (Article K.12). "closer cooperation" of a group of member states must be authorized by the Council, acting by a qualified majority. An exception to this rule is made only if a member state objects to a request for "closer cooperation" for "important and stated reasons of national policy". In this event, the matter is referred to the European Council for decision by unanimity.
Other member states can at any time join an existing agreement on closer cooperation, provided the Council (here consisting only of the member states party to the "closer cooperation"!) decides by qualified majority to "hold [the application of the member state concerned] in abeyance". In this case, a new deadline shall be set for reconsideration of the application.
Significantly the above rules do not apply to the "closer cooperation" of 13 member states within the Schengen framework. Article K.12 (5) states: "This Article is without prejudice to the provisions integrating the Schengen acquis into the framework of the Union. This indicates that the incorporation of Schengen actually entails the creation of an additional institutional and normative framework of decision-making in the area of Justice and Home Affairs - along side the frameworks established by the new Title on asylum and immigration, the Title on Police and Justice cooperation, and "closer cooperation". (The implications of Schengen incorporation will be addressed in a later cl).
Sources: Draft Treaty of Amsterdam, Brussels, 19.6.97, CONF/4001/97 CAB, limite; Migration News Sheet, No. 172/97-07; Statewatch, May-June 97; 'Justice in Europe', Issue 2/97, by JUSTICE, UK; Paris: Le Traité d'Amsterdam: un pétard mouillé, FIDH, Paris, June 1997; 'The Treaty of Amsterdam: a mixed result', Amnesty International, EU Association, Brussels, 26.6.97.