Compared with the text proposed in December by the Irish Presidency, the text finally adopted has scarcely been modified except to emphasize the objective of promoting a skilled, trained and adaptable workforce, to stress national responsibilities for employment, to make clear that the employment guidelines must be 'consistent with' (and no longer 'conform to') the broad guidelines adopted pursuant to Article 103(2), and to formulate the aims of incentive measures.
The positive aspects include:
- including among the objectives of the Union (Article B) promotion of a high level of employment, and including among the activities of the Community 'the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment';
- the emphasis placed on the 'horizontal' nature of the object of a high level of employment [Article 3(2) of the new title on employment.];
- the definition of a procedure for coordinating employment policy [Article 4 of the new title on employment] ;
- the adoption by codecision of incentive measures (not including harmonization) on employment [Article 5 of the new title on employment]; it should be noted that a declaration annexed to the Treaty seeks to define the scope of incentive measures in a somewhat restrictive manner;
- the establishment of an advisory Employment Committee to liaise with the social partners and monitor the employment situation and employment policies. The Member States and the Commission each appoint two members of the Committee.
- the relatively weak formulation of the Union's objective (the EP wanted a more mandatory formulation, i.e. included among the guiding principles laid down in Article 3a (3) of the TEC);
- above all, the lack of guiding principles for employment policy (see proposal by Guigou and Brok to the IGC [PE 222.235]: ensuring that demand increases at a rate sufficient to guarantee permanent and non-inflationary growth, strengthening productivity to enable real incomes to increase, developing the capacity of the economy to adapt, eliminating the qualitative disparity between supply and demand on the labour market, preventing long-term unemployment and social exclusion, respecting the provisions governing economic policy and social policy);
- the absence of a provision - as suggested in the proposal by Guigou and Brok - stipulating that 'the broad guidelines of the economic policies ... shall take account of the impact of thosepolicies on employment and shall be devised in such a way as to give due ... priority to the achievement or preservation of a high level of employment'; on the contrary, the text of the Treaty defines the guidelines for employment policy as secondary to the broad guidelines, with which they must be consistent [Article 4(2), final sentence, of the new title on employment];
- relatively weak involvement of the European Parliament in the procedure (if codecision is used for incentive measures, however, the EP is only consulted as part of the coordination of employment policy).
The election of a Labour government in the United Kingdom allowed the IGC to reach agreement on the incorporation of the social protocol [Articles 117 to 120 of the TEC], to which the previous government had been opposed.
This important point is therefore a source of satisfaction to the European Parliament.
However, incorporation involved only very marginal modifications to the text of the agreement on social policy and no advantage was taken of the Commission and Parliament proposals:
- with regard to fundamental social rights, the 1989 Social Charter was referred to only by way of example [Article 117 of the TEC]. Consequently, there is still a long way to go to meet Parliament's demand for the introduction of the essential principles of the Charter into the Treaty;
- in fields where the cooperation procedure used to apply, it is replaced by codecision. However, unanimity is retained where so provided by the agreement on social policy [Article 118(3) of the TEC: social security and social protection of workers; protection of workers where their employment contract is terminated; representation and collective defence of the interests of workers and employers; conditions of employment for third-country nationals; financial contributions for promotion of employment.];
- Article 119 is improved by extending the principle of equal pay for equal work, but that is as far as it goes (the EP wanted a genuine equal opportunities policy).
However, one improvement made would appear to be the addition of a paragraph allowing the adoption by qualified majority of measures designed to combat social exclusion. (This improvement should not be overestimated in so far as measures for old people and the disabled were removed from this new legal base at the last minute [Third subparagraph of Article 118(2) of the TEC]).
In an area which is considered to be related to social policy, services of general economic interest, it is worth mentioning that a new Article D has been added to the Treaty. The new article has the force of a policy declaration and enjoins the Community and the Member States, each within their respective powers, to take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions.
- Most of the changes concerning environmental protection that were put forward in the Irish Draft Treaty have been left intact in the Treaty of Amsterdam. The major change that has been made concerns paragraphs 3-9 of Article 100a, where it is made much more explicit that a Member State may maintain existing national provisions or introduce new ones based on new scientific evidence, subject to subsequent confirmation or rejection by the Commission.
- Article 129 of the TEC on public health has also been subject to a major re-writing. It would now also include "by way of derogation from Article 43, measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health".
- The new version of Article 129a on consumer protection is almost identical to that in the Irish Draft Treaty.
- A protocol has now been added on the issue of animal welfare. This replaces the previous non-binding Declaration 24. The first part of the protocol is similar to the declaration, but there is an additional reference to respect for "the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage".
In general the changes that have been made in the above fields are in line with the requests forwarded by the European Parliament. One disappointment, however, is that Article 130s(2) on the environment, which until the last moment of the negotiations would have been transferred to qualified majority voting, has now been retained under unanimity.
These parts of the Treaty, which treat the question of citizenship in the wider sense, are dealt with in Chapter 1 - Fundamental rights and non-discrimination.
These parts of the Treaty, which come under the third pillar of the present Treaty, are dealt with in Chapter 2 - Progressive establishment of an area of freedom, security and justice.
(i) The draft Treaty would amend Article 227(2) of the Treaty in order to strengthen the position within the Treaty of the outermost regions, which are defined as the French Overseas Departments, the Azores, Madeira and the Canary Islands.
(ii) A reference to 'islands' would be included in Article 130(a) of the Treaty, and there would be an accompanying declaration recognizing the specific problems of island regions.
(iii) There would also be a new declaration on the Overseas Countries and Territories (OCTs), calling for review of the existing association arrangements with the OCTs by February 2000, with a view to improving the position of the OCTs in the future.
The European Parliament has supported reinforcement of the position of the outermost regions both in paragraph 12.3 of the Dury/Maij-Weggen resolution and in specific resolutions (e.g. its recent resolution of 24 April 1997 on development problems in the outermost regions of the European Union) and has also called for an integrated policy for island regions (for example, in its recent resolution of 16 May 1997 on an integrated policy adapted to the special situation of island regions in the European Union). The European Parliament's IGC resolutions have not, on the other hand, expressly mentioned the problems of Overseas Countries and Territories (OCTs).
Finally, it should be noted that, at the last moment, the European Parliament's central request for codecision to apply to Article 130d with QMV on the structural and cohesion funds was struck out, and this article will continue to remain subject to the assent procedure.
These parts of the Treaty, grouped together under the heading of 'public services', are dealt with at the end of Chapter 4 - Social policy.
This part of the Treaty is dealt with in Chapter 5 - Environment. (n) Trans-European networks
In this regard, the present Treaty (third indent of Article 129c(1)) is amended to read '... the Community ... may support projects of common interest supported by Member States, which are identified in the framework of guidelines referred to ...' instead of ' ...may support the financial efforts made by the Member States for projects of common interest, which are identified in the framework of the guidelines referred to ...'. (o) Statistics
A new legal base, governed by the codecision procedure, is added to the Treaty for the production of statistics where necessary for the performance of the activities of the Community.
The purpose of the protocol on the application of the principles of subsidiarity and proportionality is to define more precisely the criteria for applying them, by making them legally binding so as to ensure their strict observance and consistent implementation by all institutions.
The protocol reflects the conclusions of the Birmingham European Council of 16 October 1992, the approach approved by the Edinburgh European Council of 11 and 12 December 1992 and the interinstitutional agreement of 28 October 1993.
A declaration accompanies the protocol and states that neither the implementation of Community law nor the supervisory, monitoring and implementing powers of the institutions are affected thereby.
The general principle of openness is established by means of an amendment to Article A of the TEU. As regards right of access to European Parliament, Council and Commission documents a three-fold approach is adopted in new Article 191a. The principle of such access is established in its paragraph 1, and its paragraph 2 would provide for general principles and limits on this right of access to be determined by means of co-decision (QMV) within two years of the entry into force of the Treaty. Paragraph 3 would provide for each institution to draw-up its own specific provisions regarding access to its own documents. In addition, a new declaration has been included stating that "the Conference agrees that the principles and conditions referred to in Article 191a(1) will allow a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement".
Finally, chapter 15 on the Council refers to specific provisions on access to Council documents. It is the Council which is to define the cases in which it is to be regarded as acting in its legislative capacity. It is specified, however, that the results of votes and explanations of vote as well as statements in the minutes shall be made public when the Council acts in its legislative capacity.
The principles of openness and of access to documents are finally laid down in the Treaty, and should permit the practice of openness to further develop within the EU. Explicit provision of the result of Council votes and explanations of votes as well as statements in the minutes is also a useful change. It also applies to the second and third pillars (Article J.18 and Article K.13).
The principle of access to documents is restricted to European Parliament, Council and Commission documents and not to those from other EU institutions and bodies. The declaration that has been added also weakens the text. Great care will have to be taken that (i) the general principles and limits on grounds of public or private interest that are mentioned in paragraph 2 are defined as precisely as possible so that exceptions are reduced to the minimum; (ii) the European Parliament comes up with satisfactory new rules as regards access to its own documents. Finally, it is to be regretted that it is the Council which is to define the cases in which it is to be regarded as acting in its legislative capacity rather than examining this issue on an inter-institutional basis.
A declaration has been added to the Final Act on the quality of the drafting of Community legislation. It calls for the European Parliament, Council and Commission to get together and establish by common accord guidelines for improving the quality of the drafting of Community legislation. It also calls on the institutions to "make their best efforts to accelerate the codification of legislative texts".
Considering that the Council has previously (on 8 June 1993) adopted a unilateral resolution on the quality of drafting of Community legislation, it is clearly a step forward if further progress is to be made on the basis of an inter-institutional agreement.
European Parliament, 03/07/1997