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Published online by Cambridge University Press: 27 October 2017
When it enters into force on 1 May 1999, the Treaty of Amsterdam will bring amendments to, among other things, the legislative process of the European Community. There will be no change as far-reaching as the introduction of the so-called “co-decision procedure” by the Treaty on European Union (TEU), but a genuine attempt is made to streamline the process, to render it more transparent and to enhance democratic accountability. Inevitably, though, not all the changes will be for the better. Two steps forwards and one back is, as ever, the favoured locomotive style of the Union’s constitution-makers.
1 That designation was avoided by the authors of the TEU. The procedure is clumsily described in Treaty provisions as “the procedure referred to in Article 251” (Article 189b).
2 See Dashwood, A. “Community Legislative Procedures in the Era of the TEU” 19 (1994) ELRev. 343 Google Scholar.
3 See the critique of the legislative process pre-Amsterdam in Dashwood, A. (ed.) Reviewing Maastricht: Issues for the 1996 IGC (London, Sweet & Maxwell, 1996)Google Scholar, Part II (hereinafter, “Reviewing Maastricht”). For other views on relevant aspects of the Amsterdam Treaty, see Langrish, S. “The Treaty of Amsterdam: Selected Highlights” 23 (1998) ELRev 3 Google Scholar. Favret, J-M. “Le Traité d’Amsterdam: une révision à minima de la ‘charte constitutionelle’ de l’Union européenne” 33 (1997) CDE 555 Google Scholar.
4 See Dashwood, A. “The Role of the Council of the European Union” in Curtin, D. and Heukels, T. (eds) Institutional Dynamics of European Integration, Vol. II,. (Nijhoff, 1994) 117 Google Scholar; Reviewing Maastricht 75 et seq.
5 See also Dashwood, A. “States in the European Union” 23 (1998) ELRev. 201 Google Scholar.
6 This definition was provided for the purposes of Article 7 (5) of the Rules of Procedure which mentions in its first indent the case “When the Council is acting as legislator” as one of those in which the record of votes is made public: OJ 1993 L304/1, 7.
7 See the discussion in Reviewing Maastricht above n 3 at 79–80.
8 Rules of Procedure, Article 5 (1)
9 See the analysis of the co-decision procedure as provided for by the TEU, in Dashwood, above n 2. On the relatively smooth running of the procedure, see Boyron, S. “Maastricht and the Co-decision Procedure: a Success Story” 45 (1996) ICLQ 293 CrossRefGoogle Scholar.
10 The relevant changes have been briefly considered by the writer in his contribution, on “The Council of the European Union in the Era of the Amsterdam Treaty”, to Heukels, T., Bloklcer, N. and Brus, M. (eds.) The European Union After Amsterdam (Kluwer, 1998) 117 Google Scholar.
11 See Article 251(2), third sub para, at (c) (Article 189b(2), third sub para, at (c)).
12 See Article 251, para. (2), third sub para, para. (3) and para. (5).
13 See Article 249 EC (Aricle 189), Article 253 EC (Article 190), Article 254 (1) EC (Article 191 (1)).
14 On the only occasion when the Council attempted to exercise its third reading power, in respect of a proposal for a directive on open network provision (ONP) to voice telephony, the European Parliament exercised its veto.
15 Article 250 (Article 189a). On the Council/Commission interplay, see Dashwood, above n 4.
16 The designation “cooperation” was dropped by the TEU. The Treaty, as amended by Amsterdam, speaks of “the procedure referred to in Article 252”. Co-decision is substituted for cooperation in the following provisions: Article 12, second para. EC (Article 6) on discrimination on grounds of nationality; Article 71 (1) EC (Article 75(1)) on the common transport policy; Article 80 EC (Article 84) on sea and air transport; Article 137 (2) EC (Article 2 (2) of the Agreement annexed to the Social Protocol) on conditions of employment; Article 148 EC (Article 125) on implementation of the European Social Fund; Article 150 (4) EC (Article 127 (4)) on vocational training; Article 156, first para. EC (Article 129 d) on “guidelines and other measures” for the purposes of TENS; Article 162, first para. EC (Article 130e) on implementing decisions for the purposes of the ERDF; Article 172, second para. EC (Article 130 o) on the implementation of the research framework programme; Article 175 (1) EC (Article 130 s) on the environment; Article 179 EC (Article 130 n) on development cooperation.
17 Provisions in which cooperation will, for the time being, survive are: Article 102 (2) EC (Article 104a (2); Article 103 (2) EC (Article 104 b (2)); and Article 106 (2) EC (Article 105a (2)).
18 Unanimity is required in two situations: where the Parliament has formally rejected the common position (Article 252 (c), second para.); or where the Commission, having re-examined its proposal by taking into account the Parliament’s amendments, forwards to the Council a text which the latter is unwilling to adopt without amendment ((Article 252 (d) and (e)). For a more detailed analysis of the co-operation procedure, see Dashwood, above n 2.
19 See Article 129 EC, on incentive measures in the field of employment; Article 141 (3) EC, on equal opportunities and equal treatment for men and women in matters of employment and occupation; Article 152 (4) EC, on various public health measures; Article 255 EC, on access to documents; Article 280 (4) EC, on countering fraud against the financial interests of the Community; Article 285 (1) EC, on the production of Community statistics; Article 285 (2) EC, on data protection. The glaring exception is legislation for the purposes of the new Treaty Title on “Visas, Asylum, Immigration and other Policies Related to Free Movement of Persons”, as to which see below.
20 It is, on the other hand, perfectly suitable for deciding on matters requiring a “yes” or “no” answer from the Parliament, viz accessions to the EU or the conclusion of certain important international agreements; see, respectively, Article 49 TEU (Article 0) and Article. 300 (3) EC, second subpara. ((Article 228 (3)).
21 See Article 42 (2) EC (Article 51) and Article 47 (2) EC (Article 52 (2)). The legal basis for action by the Community in the field of culture, Article 151 (5) EC (Article 128 (5)), which was introduced by the TEU, also requires unanimity in the context of the co-decision procedure. A similar requirement in Article 166 (1) (Article 130 i (1)), on the adoption of the multiannual framework programme for research, has been dropped by the Treaty of Amsterdam.
22 See Article 161 EC (Article 130d)
23 Article 100c EC was repealed by the Amsterdam Treaty, since its subject matter falls within the new Title IV.
24 On the history and significance of the Luxembourg Compromise, see Dewost, J.-L. “Le vote majoritaire: simple modalité de gestion ou enjeu politique essentiel”, in Capotorti, F. et al (eds.), Liber Atnicorum Pierre Pescatore (Nomos, 1988) 167 Google Scholar.
25 See Article 23 (2) ((Article J. 13 (2)), on qualified majority decisions for the purposes of the common foreign and security policy, and Article 40 (2) ((Article K. 12 (2)) on closer co-operation under the Third Pillar.
26 See references appearing above nn 4 and 9. See also Dashwood, A. “External Relations Provisions of the Amsterdam Treaty” 35 (1998) CMLRev. 1019 Google Scholar.