Introduction
The Treaty of Amsterdam, agreed in June last year by a summit of the 15 EU heads of government, builds on the Maastricht Treaty, the Single European Act, and the Treaty of Rome, as a series of detailed amendments to the provisions of two specific treaties, the Treaty on European Union and the Treaty Establishing the European Community.
It also brings the treaties establishing the European Coal and Steel Community, European Atomic Energy Community, and the Schengen Treaty on passport-free travel, under its wing, consolidating them as integral parts of the Union.
By itself the treaty is pretty unreadable, a largely incomprehensible series of amendments. I have attempted to provide a narrative description of its effects and raisons d'etre, incorporating important treaty text into the narrative, but omitting, as much as possible, the drafting technicalities and repetitions that are inevitably part of any treaty.
For the sake of simplicity the treaty is referred to throughout as "Amsterdam" and the text of the new treaty is highlighted in bold to allow easier reference
Common Provisions
Why a treaty?
There is an enigmatic quality to the opening article of Amsterdam. It is a phrase borrowed from its precursors in their affirmation of the member states' ambition, and gives the treaty a unique, dynamic quality that sets it apart from most other international treaties.
"This treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe . . ."
"Ever closer" - a moving constitutional stream. But, from where to where? And where does Amsterdam stand in this project? Are we near the beginning or the end?
If we take the short perspective, we can see the immediate challenges to which its drafters responded with greater and lesser success. The treaty is very much the product of Maastricht's confident response to the specific challenges posed by the collapse of communism.
While Maastricht gave new impetus to the process of internal consolidation, launching the member states on the path to monetary union, it also explicitly charged a 1996 Inter-Governmental Conference with completing the preparation of the Union for the 21st Century.
Amsterdam, the later-born twin of Maastricht, opens the door to the European Union's most ambitious and qualitatively different enlargement. But, in addressing the institutional challenges, particularly the problem of decision-making in even larger numbers, the treaty, many feel, falls short of its ambition.
While an important new mechanism has been created within the treaty to bypass states reluctant or unable to pursue particular projects - so-called "flexibility", or "differentiated integration" - this is very complex to use. Leaders failed, however, to grasp the nettle of significantly more majority decision-making.
The treaty also attempts to match the Union's economic weight on the world stage with a new political weight - a cohesive foreign policy voice and a military capability, although confined to peacekeeping.
Amsterdam is also very much the product of Maastricht's crisis of legitimacy - complacent politicians had been brought up short by a wave of anger against what was seen as an elite project far removed from their concerns. Horror of horrors, the Danes said "no". And the French nearly did too. Then the Danes were cajoled into the "right" decision. Complacency died.
So the treaty mix is packed with populist, and, it is hoped, popular, ingredients: action on jobs, the environment, social rights, crime, public health, new fundamental rights, and the creation of passport-free travel in the EU, although not in the latter case for Ireland and Britain.
It includes a fundamental commitment "to promote a high level of employment" - though not the "full employment" sought by the Swedes and others - and to "achieve balanced and sustainable development", where Maastricht only promised to "promote" the latter.
And in Article 1 they added to the Maastricht "subsidiarity" commitment, under which decisions should be taken as close to the citizen as possible, a pledge that they will also be taken "as openly as possible" - the Council of Ministers is still, however, the only democratic legislature in the world where decisions are taken after debate behind closed doors.
If we take the longer view of history, the process of ever closer union has a beginning but no end.
Out of the ashes of the second World War came a determination to create new types of international institutions that would make war impossible (see panel): The European Steel and Coal Communities, Euratom, the EEC, the EC . . .
The new forms of co-operation involved not only closer co-ordination of policies by sovereign, separate governments, but a genuine pooling of sovereignty in institutions with their own executive powers, qualified majority voting, and built-in safeguards to protect small countries or countries in minority positions.
"We are not forming coalitions between states, but union among peoples," Jean Monnet said in 1952 in explaining the fundamental difference between the "intergovernmental" method of traditional diplomacy and the emerging "community" method.
The history of post-war European integration is the history of the evolving co-existence of these two approaches within the same constitutional framework.
Growing trust and the requirements of efficient management of complex common enterprises like the single market created a dynamic which has gradually expanded the remit of the "community" method.
Amsterdam takes it another few small steps forward, most notably in the field of common foreign policy, most extensively in the intensified co-operation in such fields as visa and immigration policy, most disappointingly, the enthusiasts for European integration say, in the sphere of economic relations where the timidity of Germany blocked progress.
How far the process should or will ultimately go is not a question cautious Irish politicians or Amsterdam answer.
Fundamental rights
Amsterdam strengthens the Union's commitment to human rights by strengthening the Maastricht treaty's reference to commitment to the European Convention on Human Rights and adding the following declaration:
"The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states."
The clause is largely seen as a means of toughening the Union's ability to demand of applicant states that they comply with democratic norms and is complemented for the first time with provisions allowing the suspension of membership rights of states which do not comply. If, in the unanimous opinion of all the other member states, meeting at heads of government level and in the majority view of MEPs, there is a "serious and persistent breach by a member state of the principles mentioned in Article F(1)" (above) a qualified majority may decide to suspend some of the rights of membership, including the right to vote in the Council of Ministers.
Closer Co-operation or `Flexibility'
The main constitutional innovation of Amsterdam is the framework agreed on how groups of states can co-operate on projects without the involvement of a few unwilling or unable partners - this came to be known in the media as "flexibility".
Traditionally such differentiation was ad hoc, with specific rules for a specific project, or it took place outside the treaty, like the Schengen agreement on passport-free travel. The single currency is an example of the former, with its clear rules over how initial and later participation is determined, as are the individually negotiated transition periods for new member states.
The new procedure allows groups of member states to use the Union's institutions and legal framework and thus makes it unnecessary for them to create separate organisations as they did with Schengen.
Flexibility, it was argued, would allow the pace of integration of a Union of 26 to be determined otherwise than by that of the slowest member of the convoy. But the danger is that such a system could lead to the fragmentation of the Union and the development of two tiers of membership, an A Team and a B Team, with some permanently relegated to second class status.
The result was pressure from some member states, Ireland included, to set very strict rules about when flexible provisions could be used, making them a mechanism of last resort.
That led to agreement on a general framework and different rules for different spheres of activity and decision-making pillars (see panel on The Acquis) of the Union. But the treaty also sets out general principles.
Use of the flexibility provisions is only allowed if it:
is aimed at furthering the objectives of the Union and at protecting and serving its interests;
respects the principles of the said treaties and the single institutional framework;
is only used as a last resort , where the objectives of the said treaties could not be obtained by applying the relevant procedures laid down therein;
concerns at least a majority of member states;
does not affect the `acquis communautaire' (see panel above on The Acquis) and the measures adopted under the other provisions of the said treaties;
does not affect the competences, rights, obligations, and interests of those member states which do not participate therein;
is open to all member states and allows them to become parties to the co-operation at any time provided that they comply with the basic decision and the decisions taken within that framework"
In the traditional area of collective, community decision-making, the First Pillar, the preconditions are even stricter. Use of the provisions must not be applied in areas of exclusive Community competence (e.g. agricultural markets), must not affect Community programmes or policies, must not affect citizenship rights or discriminate between nationals of member states, must not go beyond the limits of the treaties, and must not distort the single market.
The initiative to propose the use of such flexibility is controlled by the Commission exclusively.
The result is that although Irish voters are being asked to allow the Government to avail of the "options" provided for in the treaty, this option in the First Pillar seems unlikely ever to be used - certainly no-one in Brussels is able to come up with a specific project, however theoretical. Normally permission for such enhanced co-operation will only require a qualified majority (see panel on Qualified Majority Voting) of ministers, but individual member states have an "emergency brake". "For important and stated reasons of national policy", they may require that the decision be taken by unanimity at a summit.
In the Third Pillar the Commission does not initiate the process, but must be asked for its opinion.
During the treaty negotiations Ireland and Britain expressed particular concern that those who do not join projects initially should have an automatic right to do so once they are willing and can show they are able (e.g. that they have a compatible computer system which meets security requirements). The outcome is not exactly what they wanted, although most believe that in practise there will not be a problem - a qualified majority of participants is needed to block participation by a late entrant.