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.

With hindsight, the Maastricht Treaty introduced two different forms of flexibility or differentiated integration. The Social Protocol took the form of a permission by all the Member States to a group of Member States to use Community institutions and legislation, which can be seen as the precursor of the general provisions on “closer cooperation” in the Amsterdam Treaty. On the other hand, the provisions on Economic and Monetary Union provide for some Member States to receive opt-outs or derogations from binding Treaty obligations and thus provide the model for the new Title of the EC Treaty on visa, asylum and immigration introduced by the Amsterdam Treaty.

The greater part of the EU budget comes from money paid directly by citizens of the Member States, or by those who do business with them, in the form of customs dues and VAT. Dishonest people therefore have the opportunity to enrich themselves at the EU’s expense by conducting their business affairs so as to evade payment of these taxes which their fellow citizens dutifully pay. Contrary to popular belief as fostered by the tabloid newspapers, very little of the 82 billion or so ECUs that the EU budget represents is swallowed up in fattening the wallets of MEPs and eurocrats, and nearly all of what comes in goes out again in the form of grants and subsidies. This gives dishonest people a further and even more tempting opportunity to enrich themselves at the EU’s expense by obtaining grants and subsidies to which they are not entitled. The most ingenious dishonest people find ways of cheating on both sides of the equation at once, and manage to evade taxes and fraudulently claim benefits simultaneously.

The opt-ins and opt-outs, which appear at different places in the Amsterdam Treaty where the policy related to movement of persons is concerned, are the result of difficult negotiations concerning the future of the Third Pillar, which was introduced by the Treaty on European Union. More particularly, these arrangements are the result of the discussions on “communautarisation” and the integration of Schengen co-operation in the framework of the European Union. “Communautarisation” concerns the process of transferring substantive matters from the Third Pillar area to the First Pillar area. This process implies, as a result, that proper Community procedures become applicable in these new policy fields.

The Labour government has quickly acted on its election promise to introduce a bill of rights into domestic law. The Human Rights Act 1998 partially incorporates the European Convention on Human Rights (ECHR) into United Kingdom law. This legislation is part of a wider constitutional package including devolved government for Scotland and Wales and reform of the House of Lords. The government’s programme is intended to modernise and indeed transform the British constitutional structure. According to the government, the Human Rights Act will bring rights home. Individuals will be able to argue for their Convention rights in the United Kingdom’s own courts and tribunals and judges will be able to adjudicate directly on Convention issues. All new laws will be carefully scrutinised to ensure compatibility with Convention rights.

In P v. S the Court of Justice sent out a strong message that it was keen to protect the rights of minorities. Ruling that the Equal Treatment Directive 76/207 applies to the gender reassignment of the person concerned, the Court gave protection to P, a male to female transsexual. To justify its decision the Court said “[to] tolerate such discrimination [against transsexuals] would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard”. Its genuine commitment to safeguarding such rights was put to the test in Grant, when faced by the claim of a lesbian for concessionary rail travel for her partner under Article 141 (Article 119) EC on equal pay.

Since the signing of the Treaty on European Union in Maastricht in 1992, calls have gradually been increasing for a greater recognition of, and firmer foundation for, fundamental (social) rights within the European Union. These calls naturally became louder following the Opinion of the European Court of Justice excluding the possibility of EC accession to the European Convention of Human Rights and during the lead up to the Amsterdam Intergovernmental Conference. Academics, independent EU Advisory Committees, groups representing the interests of EU citizens and residents and the European Parliament lamented the almost complete absence of fundamental social rights in the Treaty, and called for an ambitious revision of the Treaty. To a large extent these calls went unheard in Amsterdam, and the new Treaty does not incorporate a comprehensive list of social fundamental rights.

Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

While the Community Treaties provided the institutional framework for the European Community, much of what now makes up the constitution of the European Union was not provided for in those Treaties, but evolved within that framework. This is certainly true of the role of national parliaments. There is nothing about the role of national parliaments in any of the Treaties concluded prior to the Maastricht Treaty, and even then the references appear not in the body of the Treaty, but only in two Declarations annexed to it, one on the role of national parliaments in the European Union and the other on the Conference of the Parliaments. While the former states that it is important to encourage greater involvement of national parliaments in the activities of the European Union, it gives no indication of what that involvement should be. The Treaty of Amsterdam goes a step further. It includes a protocol on the role of national parliaments. This is important in that, for the first time, it gives substantive treaty recognition to their involvement in European Union activities. But, while it is markedly more supportive than the Maastricht Declarations, it does not confer any specific powers on national parliaments, nor does it attempt to define their functions.

The development of a “Community remedial competence” has become the subject of increasing academic analysis, and a burgeoning source of litigation by traders dissatisfied with the levels of judicial protection offered by domestic rules of the Member States. Such litigants are anxious to invoke principles of Community law to support their claims as these principles can, in theory, prescribe more effective means of redress.

On April 2,1998, three years after the ruling of the Court of First Instance, the European Court of Justice issued its appeal decision in the Stichting Greenpeace case. The Court of First Instance had denied locus standi under Article 230(4) (Article 173(4)) of the EC Treaty to Greenpeace, two local environmental groups and a series of individual applicants to challenge the decision of the European Commission to continue providing Community structural funds under the European Regional Development Fund (ERDF) to Spain to build two power stations in the Canary Islands.