The Amsterdam Treaty addressed much of the criticism of the Commission and the Parliament on EU decision-making mechanism during the 1996 IGC. But the desire to make the work of the European Union more effective ran against the desire of Member States to achieve a more democratic system responsive to the preferences of the citizens of the individual Member States. Member States were reluctant to transfer all matters
428 Thomas Fischer and Nicole Schley (1999), “Innen- und Justizpolitik” in: Werner Weidenfeld (ed.), Europa föderal organisieren. Ein neues Kompetenz- und Vertragsgefüge für die Europäische Union, Europa Union Verlag, pp. 186-187.
429 Kris Pollet (2000), “The Amsterdam Treaty and Immigration and Asylum Policies: A legal Analysis“, Revue des affaires européennes, April, p. 68.
regarding justice and home affairs to the first pillar. While this reluctance is particularly obvious in the fields of judicial and police cooperation, which remained under the third pillar framework, even decisions on asylum and migration policy, though transferred to the first (community) pillar, were not, in practice, totally under the jurisdiction of this pillar (which usually grants considerable freedom to EU institutions), but rather were subject to several constraints dictated by Member States. Apart from this, some Member States received special status, e.g. Britain, Ireland and Denmark were not compelled to participate in the policy making of the first pillar and thus were free of the consequences of the planned 2004 EU Common Immigration and Asylum policy.
5.1. The new status of the European Commission: a stronger engagement in shaping asylum policy
Under the Maastricht Treaty the Commission shared the Right of Initiative with Member States only in areas associated with cooperation in K1 (1) to (6) i.e. issues covering asylum policy, entrance and residence conditions for migrants, efforts to combat illegal migration, drug trafficking and fraud and judicial cooperation in civil matters. Thus, the Council could act on a proposal either from the Commission or a Member State. However, on issues related to judicial cooperation in criminal matters as well as customs and police cooperation, only Member States could initiate proposals for consideration by the Council. The Amsterdam Treaty transferred most of the issues originally covered by the third pillar to the Community (first) pillar. But unlike other policy areas covered under the first pillar, where the Commission enjoyed the exclusive Right of Initiative, this exclusive right was to be granted only after a period of five years for asylum issues. During this waiting period the Commission was required to share the Right of Initiative with Member States in the field of asylum. After this transition period, however, the Council would only act on proposals coming directly from the Commission, and while Member States could still submit proposals, these first had to be examined by the Commission before being sent to the Council430. Since asylum was now subject to the
430 However, as Cornelis D. Jong rightly observed, the Commission’s power is hampered by the fact that the Council can choose not to accept a Commission proposal or to “water it down”. In these situations the
first pillar the Commission was also entitled to propose a new set of measures such as regulations, directives, decisions, recommendations and opinions, for example431. These to some extent made it easier for Member States to cooperate in the field of asylum, as they felt that their concerns could be presented to the Council, albeit through the medium of the Commission. Moreover, in contrast to third pillar measures, which were often non- binding, the new measures had legal ramifications. Nonetheless, the decision making process required the approval of all Member States as it was still subject to unanimous vote.
5.2. The limited role of the European Parliament
The role of the Parliament in the decision making process of the third pillar was insignificant. This position remained weak even after the signing of Amsterdam. Its major activity remained consultation432, which, since the Council is not obliged to take its opinions into account, had little impact on the decision making process. Moreover, as Commission does not have the power to act against the Council, but does retain the right to withdraw its proposal. However, as long as Member States retain the Right of Initiative, the Council can act on the basis of proposals from one or more Member States. See Cornelis D. Jong (2000),”Harmonization of Asylum and Immigration Policies: The Long and Widening Road from Amsterdam via Vienna to Tampere, in: Peter J. van Krieken (ed.), The Asylum Acquis Handbook. The Foundation for a Common European Asylum Policy, T.M.C. Asser Press, The Hauge, p. 23.
431The legal instruments provided under the first pillar are different than those provided in the third pillar. Whereas in the third pillar the Council was limited in its ability to adopt legally binding measures on asylum, under the first pillar it was possible for the Council to impose legally binding measures. Regulations are the most important legal measures under EC law, and can be compared with a national law. They are directly applicable to all Member States and cannot be overruled by national law (that is, community law has primacy over national law.) Regulations must also be applied uniformly. Since a regulation impinges on state sovereignty, it can be imposed only where a treaty specifically authorizes it. Before the transfer of asylum matters to the first pillar, regulations were imposed in competition and trade policy. Another set of legally binding instruments is directives that, in contrast to regulation, are more general in nature. Also, whereas regulations apply to individuals and private sectors as well as the Member States themselves, directives are addressed to Member States only. Finally, in contrast to regulations, directives allow Member States considerable freedom concerning implementation. In other words, directives are used to set the objectives while allowing Member States to decide how to achieve them in practice. Directives are often use to harmonize or approximate national legislation. Decisions are also binding instruments but are usually addressed to) Member States. However, in certain areas decisions can be addressed to individuals. For example, in the area of economic competition policy the community can bring a firm to court for alleged violations. Directives are also used to create minimum standards applicable to all Member States, aiming to bring Member States closer, while decisions usually address more specific concerns.
432 “During the transitional period after the entry into force of the treaty of Amsterdam the Council shall act unanimously after consulting the European Parliament”. See Article 73o Amsterdam Treaty.
Fernhout noted, it was left to the discretion of the Presidency and the Commission to decide how much information the Parliament receives, and when. In general it would seem that the Council, “has a very restrictive attitude in this respect and devotes a great deal of time to discussing whether a certain document can be sent to the European Parliament for information purposes”433.
Article 73o of the Amsterdam Treaty contained the possibility of including the Parliament in co-decision procedures to strengthen its position. Thus, “The Council acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this title to be governed by the procedure refereed in Article 189b”. Article 189b referred to co-decision procedures, which granted veto power to both the Parliament and the Council. But this option requires unanimity among Member States434. Moreover, this was only available during the first five years after the Treaty entered into force435. The reluctance of Member States to give the Parliament more responsibility in policymaking, indicates how little trust Member States have in this institution. The individual Member States clearly prefer to rely on their national parliaments for the development of asylum policy. From their perspective, a significant increase in the power of Parliament will ultimately limit the freedom of action of the national parliament436. This shift may occur in the future but for the moment Member States have no desire to grant more power to the Parliament.
433 See R. Fernhout (1996), “Justice and Home Affairs: Immigration and Asylum Policy. From JHA co- operation to Communitarisation” in: Reforming the Treaty on European Union. The Legal Debate, Jan A. Winter, Deirdre M. Curtin, Alfred E. Kellermann and Bruno de Witte (eds.), Kluwer Law International, The Hague, p. 388.
434 Michael Shackleton and Tapio Raunio (2003), Co-decision since Amsterdam: a laboratory for institutional innovation and change”, Journal of European Public Policy, Vol. 10, No. 2, April, pp. 172- 173.
435 Stefan Griller, Dimitri P. Droutsas, Gerda Falkner, Kartin Forgó and Micahel Nantwich (2000) (eds.), The Treaty of Amsterdam. Facts, Analysis, Prospects, Springer, New York, pp. 474-475.
436 The European Parliament has only the right to be consulted. At the same time, the rights of the national parliaments had increased, as after Amsterdam they were permitted to, “give comments on draft text before their decision in the Council. This change coincides with the fundamental tasks of the 1996 IGC, to make a treaty with the aim of making decision making more democratic and transparent”. See Laurent Jan Brinkhorst (1997). “Pillar III” in Making Sense of Amsterdam, The European Policy Centre, Brussels, p. 49.
5.3. Council of Ministers: still the main actor
One of the surprises of the Amsterdam Treaty was related to the fact that decisions in the field of asylum were still to be taken with unanimity. Though Member States originally intended to simplify the process by establishing qualified majority voting, in the end they appeared to favor unanimity rule. This attitude had much to do with the position of one of the most important EU Member State, i.e. Germany, which was concerned about the consequences of qualified majority voting and refused to relinquish its veto437. As some scholars noted, making a decision on the basis of unanimity is most likely to affect the substance of decisions, “given the fact that a considerable number of compromises might be necessary in order to achieve the required consensus”438. On a number of issues, however, such as visa policy, Member States had the possibility, as already anticipated in the Treaty of Maastricht439, to act by a qualified majority. Article 100c stated that after a period of five years from the entry of the Treaty into force, Member States could act by a qualified majority and adopt a list of third countries whose nationals must be in possession of visas when crossing the external borders440.
5.4. The increasing authority of the European Court of Justice
Under the Treaty of Maastricht, the Court of Justice (ECJ) had no jurisdiction in the field of justice and home affairs, though the treaty suggested that Member States allow the
437 Germany had altered its policy by resisting the extended application of qualified majority voting. Some scholars argue “it was the price that Helmut Kohl had to pay to his Länder representative in order to secure safe passage through the Bundesrat and not to add further burdens on an already difficult struggle for the EMU”.
438 Griller, op.cit., p. 474. As Gudrun Hentges comments, “the step by step transfer of the third pillar into the first does not have as a consequence a change in the exclusive competence of the European Council (that is, the interior and justice ministers of the EU States) in questions of migration and refugee policy. In spite of the transfer of internal justice policy to the first pillar, the European Council will still remain the deciding committee that takes decisions about migration and refugee policy”. Gudrun Hentges (2002), “Refugee and Asylum Policy Influenced by Europeanisation” in: Evans Foundation (ed.) Europe’s New Racism? Causes, Manifestations and Solutions, Berghahn Books, New York, p. 115. One of the main criticism directed against the Amsterdam Treaty was the limited number of changes made to voting rules within the Council: only 5 out of a possible 48 articles were changed from unanimity to qualified majority voting. Philippa Sherrington (2000), The Council of Ministers. Political Authority in the European Union, Pinter, London, p. 175.
439 Article 100c provided for a transitional period until the Council could shift to qualified majority mechanism. “From 1 January 1996, the Council shall adopt the decisions referred to in paragraph 1 by a qualified majority”. Maastricht Treaty.
Court to extend its jurisdiction to Convention matters (Article K.3 para. 2). In general, Member States failed to agree about the power of the Court. While some members favored greater involvement of the Court of Justice others were against. It was even suggested that the debate about the competence of the Court contributed to the delay on the draft convention on the crossing of external borders441. The Amsterdam Treaty improved the position of the Court, allowing it to participate in asylum policy making. But in contrast to most pillar one issues where any national court can ask for a preliminary ruling from the Court of Justice, in the transfer of justice and home affairs to the first pillar, the national courts can ask for preliminary rulings through the supreme court only442. There is a good reason to believe that this restriction was designed to prevent the frequent use of the court and thus abuse of procedures. In other words, EU Member States feared that if a lower court retained the ability to ask the opinion of the Court of Justice this might delay the stay of asylum seekers in a Member State443. As the general opinion was that one must look for a remedy at the national level, the Court was given jurisdiction only where there is no judicial remedy under national law. In many ways, this limitation is an exception to the rule since, for example, in the field of goods any national court can go to the ECJ and ask for its opinion444.