(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.
This paper first analyses the main features of the remodified pillars of the EU according to the Amsterdam Treaty (1997). It identifies the Council as the most powerful policy-making centre of the whole EU. Even in the EC pillar, it is argued, the Council's position in the legislative process has gradually become increasingly favourable, despite the “legal” picture to the contrary under the Maastricht and Amsterdam Treaties, which, for example, resulted in the empowerment of the European Parliament. This is mainly because the most crucial stage in the legislative and policy-making process, i. e. the preparatory stage, is dominated by the “comitology”, which is in essence the Member States officials' network subordinate to the Council, and this preparatory stage is free from the control of the other EC/EU institutions and national parliaments. The paper next points out that the Amsterdam Treaty has brought innovative but worrying institutional features into all pillars of the EU: a) the decrease of rule of law: the limitation of the role of the European Court of Justice in the EC New Title IV (Immigration and Asylum Policy) as well as the second and the third pillars; b) the loss of inter-institutional balance of power, i. e. making the Council (including the European Council) the sole and the most powerful decision-making body; c) the detachment of the Council and its bureaucracy from democratic control at both European and national levels. It is argued that the cumulative effect of these changes, if and when the Amsterdam Treaty is finally ratified, would shift the focus of the EU's governing power from the formal EC institutions to the de facto network of the Member States' officials thriving under the Council; and that unless we explore a new theory of European governance, the Member States in the Council would become the sole beneficiaries of this silent constitutional change, to the detriment of the other EC/EU institutions as well as the peoples of Europe. The paper concludes that we need an alternative analytical approach to EU legitimacy, an approach which relies not so much on the nation-state sovereignty paradigm as on the networks of citizens, firms and other bodies emerging both at national and at European levels.
One of the most important missions of the Intergovernmental Conference (IGC) of 1996 was to find some solutions concerning institutional reform of the European Union to prepare for the future enlargement towards Eastern Europe. But due to serious antagonism among the member states, specially between large and small states, it could not succeed to attain any agreement on this issue. As a result, the Amsterdam Treaty does not contain any substantial institutional reform. Two main issues, voting procedure in the Council and composition of the Commission, were postoponed to the next IGC which will be convened before next enlargement according to the protocole no. 11 annexed to the Treaty. Nonetherless, we can see some progress in the Amsterdam Treaty concerning institutional questions: the European Parliament have gained much more decision-making power particulary by simplified co-decision procedure; the President of the Commision have more authority than before; decision-making process in the Council will be more transparent; and many small reforms on other instituions. But many other issues such as responsibility of Commission, re-classification of community acts, rotation of presidency, etc, which have to also resolved before next enlargement, were not seriously discussed during the 1996 IGC. In that sense, we have to say that the Amsterdam Treaty have failed to prepare for next enlargement. The “enlarged” European Union are now faced with a difficulty to reach a consensus about the objectives of its integration process and this lack of perspectives for the next century was the main reason that 1996 IGC have failed to reform Union's institutions. But as the future development of EU institutions may signify a change of nation-state system in Europe, it seems difficult that all member states agree in a short term about this crucial issue.
One of the major objectives of the IGC was ‘to give Europe a stronger voice in world affairs’. Just how far can the Amsterdam Treaty be seen to have achieved its objectives? With the aim of securing consistency between the first and second pillars of the EU, the IGC looked at ways of giving the EU a legal personality. Mainly owing to the opposition of the UK, no further explicit provisions were added in this direction. In the area of Common Foreign and Security Policy, the following developments deserve attention. Firstly, the new treaty provides for the setting up of a High Representative for the CFSP. This shoud help to make the external policies of the EU more consistent and at the same time contribute to the efficiency, viability, and visibility of the CFSP-though the choice of Mr or Mrs CFSP may not fall exactly where France has wished. In the second place, the setting up of the policy planning and early warning unit will certainly help towards consistent policy making throughout the whole process of analysis, forecasting and planning. This unit was, however, on the ground that it is only a preparatory organ of the CFSP, denied the right to initiate policy. Thirdly, we should take note of some developments concerning the determination of CFSP's policies. The range of questions subject to qualified majority vote will be widened, and a flexible system —termed ‘constructive abstention’— will be introduced for the first time. In principle, consensus remains the rule, but except in the sphere of defence policy, the notion of over all consensus would seem to be on its way out. At the IGC another important task was to establish the concept of ‘European Security and Defence Identity’. In this respect considerable progress would seem to have been made. The Amsterdam Treaty says that ‘safeguarding the integrity of the Union’ should be among the objectives of the CFSP. The EU will strengthen its links with the WEU by providing that the latter supply the former with ‘access to an operational capability’, and that the latter support the former in ‘framing the defence aspects’ of the CFSP. The treaty also goes so far as to include the phrase ‘with a view to the possibility of the integration of WEU into the Union’. In the matter of the ‘Petersburg tasks’, while avoiding the use of the term, the treaty refers to humanitarian and rescue tasks, peacekeeping tasks and the use of combat forces in crisis management, including those of a peacemaking nature. It should be noteworthy that at the IGC all the neutral member states were in favor of including the ‘Petersburg tasks’ in the terms of the treaty.
At Amsterdam they have managed to make a compromise and consequently the Treaty again remains provisional and unsatisfactory to many, especially as to the reforms necessary for a future enlargement of the EU. The reason for such modest results is that the Member States had persisted in their own positions, that is, national interests, which could not easily be converged. Hence of vital importance for the research on the future of Europe to analyse the still existing differences of positions on the unsolved or incompletely settled matters. On the institutional reforms, the point at issue is to adjust the balance between large and small Member States. As regards the composition of the Commission, each Member State would have to in future renounce its own right to nominate a Commissioner and consent to an appointment of all members regardless of nationality, because no other measures could remove the small Member States' anxiety about a possible loss of their influence. In matters such as the Presidency and the reweighting of votes in the Council, one would have difficulty in working out a solution acceptable to all, but come finally to an agreement favourable to large Member States. A common defence policy would be further developed by applying the “closer cooperation” provisions and at the same time the WEU would be gradually integrated into the EU. The ground for this argument is the fact that Germany and France strongly want to do so and get support for their conception from most of the Member States. To sum up: a probability could not be excluded that a differentiated integration would be favoured at least transitionally as a way out of a dilemma whether to hold to a unanimity and not to go ahead or to go ahead for the purpose of deepening.
Observing the latest trends which are developping concerning the accession to the EU in Central and Eastern Europe, “voluntary harmonisation”, which is defined at the European Agreements, is considered as a characteristic approach of the EU from legal and political aspects. Although tight collaboration between the EU Commission and the countries concerned is developped seriously through the Commission's consultation, the political and legal character of it is principally voluntary, and no legal enforcement is expected. There are obviously different stages of preparation for “Acquis Communautaire” among the countries of the association agreement in Central Eastern European Countries. Some countries like Poland, Hungary have started their economic and political reforms earlier, even before 1989, but other countries such as Bulgaria, for example, are still involved in the prematured stages of reform problems. It is, therefore, emphasized that legal culture, which is often proposed by “jus commune” school of legal history as a common core of European civilization should be taken into consideration for that purpose. The countries such as Poland, Czech, Hungary, Estonia, and Slovenia selected as the first hand candidates of the membership on basis of adequate reasons, are going to negociate it with the Commission soon. It is worthy to know that legal and political harmonisation processes to Western law in general are differently shaped in these former socialist countries, depending their relations with the EU and its harmonisation process.
Belgian state has been reformed from a centralized state into a federal state by four constitutional revisions over the last twenty-five years. The purpose of this reform was to settle the serious conflicts between two language groups, French and Dutch. This paper aims to explore the federalization process in relation to the European integration, especially to the developing role of subnational actors in the EU. The most impotant feature of Belgian federal system is the existence of two different entities, that is “Region” and “Community”. “Region” is based on the territory and has its competences concerning economy, such as regional economic development, employment, industrialization, and environment. “Community” is related to language and culture, its competences are linked to personal matters, for example, culture, language policies, education, health care, and welfare. Meanwhile, in the process of European integration, subnational entities, that is, regions or local authorities have got more influence on the EU decision-making. European regional policy has remarkably developed after the reform of the Structual Funds in the late 1980s. The Maastricht Treaty, which established the Committee of the Regions, intensified the debate about whether the principle of subsidiality should be understood to imply more participation for subnational actors in the EU decision-making. Moreover, Belgian subnational authorities have got the privileges to take part in the Council of Ministers concerning issues that relate to the competences of federal entities. These changes have not only economical but also institutional impact on the relation between federal government and subnational authorities, and Belgian federal entities have been more and more reinforced. In general, federal system has a purpose to cope with both unity and diversity. In Belgian case, these two directions existed. Ethnic conflicts between two language groups and empowerment of federal entities in the EU worked as centrifugal force for maintaining the Belgian state, on the other hand, bilingual capital Brussel and lasting importance of Belgian state in the EU decision-making worked as centripetal force. Belgian federalization process has developed in this multi-layer international system; EU, Belgium and federal entitites. Belgian case has an important meaning as example of the complicated relation among three layers in the international society.