アムステルダム条約の概要と評価

抄録

(1) On the one hand, the aspect of free movement of persons in the 3rd pillar has been moved into the 1st pillar (EC), though it is incomplete and includes certain opt-outs. On the other hand, the external aspect (TEU Articles K. 9 and K. 10) of the 3rd pillar (Police and Judicial Cooperation in Criminal Matters: PJCC) has been made subject to the provisions (TEU Articles J. 8, J. 9 and J. 14) of the 2nd pillar (CFSP). This means the “2nd pillarization” of the 3rd pillar in respect of external relations, while the 3rd pillar (PJCC) will not be completely “communitarized” even in the long term.
(2) The legal personality of EU as such has not been expressly provided for in Treaty of Amsterdam. However, there are some arguments, among the Member States, for the existence of the so-called objective legal personality of EU, and the Council has become able to conclude international agreements by unanimity, which competence the Commission calls a “mini-personnalité”. In addition, the Protocols (on TEU Article J. 7 and the Schengen acquis) in Treaty of Amsterdam provide that certain specific agreements will be concluded in the 2nd and 3rd pillars. EU could have a full-fledged legal personality in the fields of CFSP and PJCC in the near future, which will require adaptation in relation with the legal personalities of the 3 Communities, particularly that of EC.
(3) Apart from TEC Article 113 (5), Title III a of TEC on free movement of persons could be interpreted as being capable of giving EC certain exclusive competence to conclude international agreements on services in the light of ECJ's Opinion 1/94 re WTO, irrespective of Protocol No. 8 on Article 73j (2) (a) and Declaration No. 18 on Article 73k (3) (a).
(4) There may be some criticism that, in the fields of Title III a of TEC and PJCC, ECJ has not been given the normal jurisdictions like those in the existing EC matters, because it might affect the uniform interpretation by ECJ of EC Law as a whole. However, despite that deficit, there is considerable progress in terms of increasing judicial control, compared with the present provisions of TEU. And one can even say that a preliminary ruling of ECJ in PJCC could be some guideline on similar questions for interpretation by the national courts of the Member States who will not accept that jurisdiction of ECJ.
(5) On the “Closer Cooperation” clauses, ECJ should have been conferred a competence like that in TEC Article 228 (6) to give a legally binding opinion on the compatibility of the introduction of such a cooperation with the Treaty provisions prior to a decision to adopt it.