The Maastricht Treaty 2:

1
Wolfgang RenzschEuropean Integration 9

• The Maastricht Treaty 2
• Common Foreign and Security Policy (CFSP) gt 2nd
  pillar
• Justice and Home Affairs (JHA) gt 3rd pillar
• Institutional Amendments
• Other issues of the Maastricht Treaty

2

• 2nd pillar of TEU gt Common Foreign and Security
  Policy
• Challenges after the collapse of Communism gt EPC
  was not considered as sufficient gt coordination
  of policies was less than common policy
• EPC did not meet the expectations gt problems
  became obvious on the Balkans gt German untimely
  diplomatic recognition of Croatia and Slovenia,
• French close connection to Serbia gt not
  convincing
• CFSP as an alternative

3

• Background
• European integration based from its start on
  common security/defence interests gt ECSC gt EDC
  WEU gt NATO
• Shift of interest from immediate security
  interest because of Soviet threat towards
  cohesion of Community and a common representation
  of interest against no-MS
• Transatlantic Alliance of crucial importance,
  however alliance reflected often primarily
  American approaches, not European (but US carried
  larger part of burden Europe depended on US, not
  vice versa.)
• IGC 1991 gt Political Union (Rome)

4

• General framework
• No threat from Soviet Union any longer gt no enemy
• Change in COE countries opened new policy options
  for WE countries gt key for further development
  more in WE, nor superpowers gt end of Cold War
• Opportunity for a redefinition of foreign and
  security policies of EC MS gt however, chances
  could be used jointly only, nor independently

5

• Mixed motives for change in foreign and security
  policies
• Avoiding the risks of competing priorities and
  orientations after the end of communism in
  Eastern Europe gt loss of influence (gt
  Germany/France former YU)
• Interest in preserving and developing an
  integrated framework for the new opportunities/
  responsibilities of WE powers in FSP
• Acceptance of necessity of new instruments for
  enhancing the politic, economic and social
  stability in MOE (and WE)

6

• Chapter CFSP (Art. 11ff. TEU, formerly J.1
  J.28) developed according known pattern of
  integration it started at the given regulations
  (EPC at the level of SEA 1986), in addition it
  declared the objective of a security union gt
  common, possible integrated defence policy.
• Objectives remained within the existing alliance,
  no encroachment on NATO gt obligations were not
  changed or replaced but supplemented
• Two directions
• CFSP implied that EU in the long run would be
  able to deliver its (military) security on its
  own
• EU /WEU would be the future European pillar in
  a Atlantic defence community

7

• Key question division of tasks, burden sharing
  between NATO and EU had still to be solved.
• Two problems
• Europeans have defined what they want to
  integrate, however there is no consensus about
  ways and means in conflict situations (YU) gt
  Competing interests, lack of cooperation
• Still decisive role of NATO gt EU hardly able to
  act jointly (YU, Iraq) gt partly because EU can
  rely on US (and NATO)
• gt Generally despite different interests and
  approaches readiness to common/integrated FSP,
  however in actual conflict situations hardly
  successful.

8

• Objectives of CFSP (Art. 11 TEU)
• Safeguard common values, fundamental interests,
  independence and integrity of the Union
  principles of UN Charter
• Strengthen security of the Union
• Preserve peace and strengthen international
  security
• Promote international cooperation
• Develop and consolidate democracy and the rule of
  law, and respect for human rights and fundamental
  freedoms
• MS shall support Unions external and security
  policy .
• MS shall work together

9

• Instruments (Art. 12)
• The Union shall pursue the objectives
• Defining principles and general guidelines for
  CFSP
• Deciding on common strategies
• Adopting joint action
• Adopting common position
• Strengthening systematic cooperation between MS

10

• Principle and guidelines of CFSP (Art. 13 TEU)
• European Council defines the principles and
  decides on general guidelines, including matters
  with defence implications
• European Council decides on common actions
• Council takes decisions necessary for defining
  and implementing the CFSP
• Council shall recommend common strategies
• Common actions (Art. 14 TEU)
• Council shall adopt common action
• Common position (Art. 15 TEU)
• Council shall adopt common positions
• ..

11

• Security and Defence Policy (Art. 17 TEU, amended
  by the Treaty of Nice)
• CFSP shall include all questions relating to the
  security of the Union, including the progressive
  framing of a common defence policy gt common
  defence gt respect for different alliances (NATO)
• Humanitarian and rescue tasks, peacekeeping,
  combat forces in crisis management
• shall not prevent the development of closer
  cooperation between two or more MS , in the
  framework of WEU and NATO .

12

• Implementation (Art. 18 TEU)
• Presidency shall .
• Commission shall be fully associated
• EP (Art. 21 TEU)
• The Presidency shall consult
• Decision making (Art. 23 TEU)
• Council acting unanimously abstentions shall
  not prevent the adoption of such decisions
  constructive abstention gt unanimity not
  violated!
• QMV gt adopting joint actions, common positions
  on the base of a common strategy
• Veto possible, issue referred to European Council
  (unanimous decision)
• High Representative for CFSP . (Art. 26 TEU)

13

• To summarize
• CFSP remained primarily intergovernmental gt
  important decision by unanimity, hardly any
  restriction for MS (see Iraq gt EU split)
• Objective (in the long run) common defence gt West
  European Union (WEU) became integral part of
  further development of EU
• NATO remained the important institution for
  defence
• Problems due to different defence policies.

14

• 3rd pillar of Maastricht Treaty Cooperation in
  Justice and Home Affairs (C/JHA ZIJP)
• problem four liberties not only for the good
  guys, also for the bad ones gt abolition
  especially of border controls due to Schengen
  Convention
• Cooperation in JHA was not new, dated back tom
  1970s gt voluntary, limited and unstructured
  dialogue of justice and interior ministers gt
  exchange of information on organize crime and
  terrorism gt informal grouping gt TREVI group gt
  police cooperation, also illegal immigration,
  asylum-seeker, refugees gt hardly publicly
  observed

15

• JHA in the light of Schengen Convention (1985 and
  1990)
• 1985 core MS gt F, D, Benelux decided to remove
  internal frontiers through extra-EC/EU means,
  follow up of SEA/internal market, later (1990)
  other MS except GB and IRL (pass union) and
  members of Nordic pass union (DK) gt Nordic pass
  union joint later (after accession of Sweden and
  Finland) including Norway
• Schengen gt visas and borders control, asylum
  request, Schengen Information System gt border
  control at external, not internal borders of
  Schengen

16

• Objectives of JHA (Art. 29 TEU) Strengthening and
  institutionalization of present cooperation
• to provide citizens with a high level of safety
  within an area of freedom, security and justice
  by developing common action among MS in the
  fields of police and judicial cooperation
• preventing and combating crime , terrorism,
  trafficking , illicit drug trafficking
• closer cooperation between police forces,
  custom authorities . Europol
• closer cooperation between judicial and other
  authorities
• approximation rules on criminal matters

17

• Police cooperation (Art. 30 TEU)
• operational cooperation
• exchange of information
• training, the exchange of liaison officers
• EUROPOL (five years after Amsterdam gt from 2002
  onwards) gt organizes the mentioned cooperation
• Judicial cooperation (Art. 31 TEU)
• facilitation and accelerating cooperation
• extradition between MS (Art. 16 GG changed,
  allows extraditions to MS and International
  Courts of Justice)
• Eurojust

18

• Art. 34 TEU Information, consultation,
  approximation of law by directives
• Art. 35 TEU Judicial control by ECJ
• .
• EP shall be consulted (Art. 39 TEU)
• .
• Enhanced cooperation of MS possible (Art. 40a
  TEU)
• Evolution clause (Art. 42 TEU) gt Council may
  unanimously transfer matters of JHA in
  competencies of EG (gt 1st pillar, EC), EP must be
  heard, recommended decision accepted by MS
  according to constitutional rules

19

• Procedures (summarized)
• Unanimity,
• Initiated by MS and Commission (no right to
  initiative for Commission in judicial and police
  cooperation)
• JHA remained legally and de-facto outside of the
  EC-treaty (1st pillar), not controlled by EP
• Exception common visa policy (formerly art. 100c
  EC, meanwhile deleted) gt until 1996 decision by
  unanimous Council vote, since 1996 by QMV

20

• Institutional amendments
• European Council gt Summit of heads of (states
  and) governments and president of Commission,
  meets (at least) twice a year
• Not (totally) new gt institutionalization and
  transfer in the treaties
• Art. 4 TEU defines leading role of European
  Council, however European Council is not an
  institution in the meaning of Maastricht Treaty
  (art. 189-265 ECgt not mentioned gt somehow above
  the institutional structure gt role in the
  realization of EMU

21

• Council of Ministers is in charge of all
  affairs of the EU including CFSP, EMU and JHA gt
  legally fixed, however ratification of current
  procedures.
• Council meets in technical (departmental)
  Councils, legally however one body (gt no cabinet
  system, no cabinet responsibility)
• Little changes for Commission
• New surveillance of Union citizenship and of
  rights of EU-citizens gt reports for Council and
  EP
• Right to initiative also at CFSP, support of
  presidency

22

• Commission gained importance because of
  integration of president in European Council gt
  continuity! Important when smaller MS preside.
• Commission remained in principle unchanged
• New care for Union citizenship and observations
  of European citizens rights gt report for Council
  and EP
• right to initiative in CFSP obliged to support
  presidency

23

• European Parliament gt most changes but less than
  demanded by EP before IGCs started
• No say in matters of treaty amendments
• Not on same footing with Council in matters of
  legislation
• However, EP can reject regulations and directives
  gt dominant role of Council remained unchanged
• But EP has gained influence when the Commission
  and its president are selected gt consent of EP
  necessary, nomination however by unanimous vote
  of European Council
• Right of citizens to petition to the EP improved,
  EP may install an Obudsman and not permanent
  investigation committees

24

• Influence of EP increased because of 2nd reading
• Approval of EP in certain matters necessary, in
  other matters, EP can reject decision by a
  majority vote
• Decision making has become more complex and
  difficult, less transparent gt more negotiations
  behind closed doors
• No real reduction of democratic deficit, no
  clear and transparent democratic decision making
  structures
• Goal two chamber system EP and Council gt not
  achieved yet
• Real strengthening of the EP remained a neglected
  objective of IGC gt national parliaments not
  involved in IGCs

25

• Committee of Regions (CoR AdR)
• Representation of territorial entities below the
  national level, summarizing called regions/ 3rd
  level of EU
• CoR has to be consulted in matters of importance
  for the sub national level, but no veto
• Members (originally 189, now 350 plus same number
  of substitutes) are nominated by MS their
  discretion, however unwritten rule to nominate
  political representatives, not civil servants.
• Germany 16 representatives of Länder , 8 of the
  organizations of the municipalities and counties
  (Deutscher Städtetag, Deutscher Landkreistag )

26

• Usefulness is controversially debated
• Prime problem heterogeneity gt members could be
  (and were) the German Länder Prime Ministers (NRW
  18 m inhabitants!), the Scottish First Minister,
  the heads of English or Danish counties, of Greek
  towns (mayor of Athens) what common base do they
  have?
• Different political styles In the beginning,
  German PM applied Bundesrat-style preparation
  of meetings by civil servants not accepted by
  other members
• Danger comedy of regions.

27

• Procedural rules
• Principle of subsidiarity (Art. 5 EC)
• In areas which do not fall within its exclusive
  competence, the Community shall take action, in
  accordance with the principle of subsidiarity,
  only if and in so far as the objectives of the
  proposed action cannot be sufficiently achieved
  by the Member States and can therefore, by reason
  of the scale or effects of the proposed action,
  be better achieved by the Community.
• Attempt to safeguard the balance between the
  Community and MS. Subsidiarity as a barrier
  against undesired activities of EC, and for
  protection of decentralized structures.

28

• However not sufficient and better are
  necessarily unclear, undefined legal terms
  (unbestimmte Rechtsbegriffe) which need and allow
  interpretations
• Problems of capability
• Interpretation will depend on political
  judgement, and the allocations of tasks according
  to political opportunities will remain.
• Doubts about subsidiarity has remained, gt
  debate about who is in charge of what was an
  important issue at the European Convention
• Constitution Treaty does not provide clear
  definitions of powers, but which federal
  constitution does?

29

• Cooperation of European Institutions (art. 249ff
  EC Provisions Common to Several Institutions)
• Council, Commission, EP gt cooperation and
  co-decision
• Rules of Maastricht treaty, amended in Amsterdam
  treaty gt important because the first step of EP
  to get teeth, to become a serious legislator
  gt accountability of Council to EP, despite
• Highly complex and hardly transparent structures
  (originally SEA, here Maastricht historical
  version, amended in Amsterdam, since then
  restricted to EMU, to be eliminated)
• Art. 250 para 1 the Council acts on a proposal
  from the Commission, unanimity shall be required
  for an act constituting an amendment to that
  proposal .

30

• Art. 252 EC (formerly 189c) gt cooperation
• a Council (QM), on proposal from Commission and
  after obtaining the opinion of EP, shall adopt a
  common position.
• b Council communicate this position to EP.
  Council and Commission inform EP fully If EP
  approves or takes no decision (2nd reading), the
  Council shall definitely adopt the act
• c EP may within 3 months by Absolute Majority
  (AM) propose amendments, may also reject
  position. In case of rejection, unanimity shall
  be required for the Council to act on a second
  reading

31

• d Commission shall, within one month, re-examine
  its proposal, and express its opinion on position
  of EP. Council my adopt amendments of EP
  unanimously.
• e Council (QM) shall adopt re-examined position
  of Commission. Unanimity for amendments
• f If no decision within three months, Commission
  proposal not adopted
• g periods may be extended by one month .

32

• Council-Parliament Co-decision (Art 251 EC,
  actual version, formerly 189b) gt enhanced
  parliamentary input, co-responsibility of Council
  and EP procedures of co-decision)
• Art 251 para 2
• Commission shall submit a proposal to EP and
  Council (simultaneously).
• Council (QMV), after obtaining the opinion of the
  EP,
• may adopt the proposed act if it approves all
  amendments proposed by EP
• may adopt the proposed act if the EP does not
  propose any amendments

33

• shall otherwise define a common position to be
  communicated to EP. The Council shall inform the
  EP fully of the reasons , also the Commission
• If the EP within 3 months (2nd reading)
• a approves the common position or takes no
  decision, act deemed adopted
• b rejects the common position by AM, act deemed
  not adopted
• c amendments (AM) proposed, amended proposition
  shall be transmitted to Council and Commission
  Commission feed in its opinion.

34

• 251 para 3 If Council (QM) approves all
  amendments by EP, act deemed adopted in cases of
  negative opinion of Commission unanimity
  necessary. If Council does not approve all
  amendments by EP, presidents of Council and EP
  convene Conciliation Committee with 6 weeks
• 251 para 4 Conciliation Committee Council, EP gt
  equal numbers gt QM Council, AM EP gt solution
  Commission participates and mediates gt common
  position on the base of the amendments proposed
  by EP

35

• 251 para 5 if within 6 weeks the Conciliation
  Committee proposes a joint text, and Council (QM)
  and EP (AM) approve joint text within 6 weeks
  (3rd reading), act deemed approved. Does either
  Council or EP fail to achieve the necessary
  majorities, act deemed not approved.
• 251 para 6 no necessary majorities in CC, no
  joint text gt act deemed not adopted
• 251 para 7 gt extension of periods
• Compared to SEA/Maastricht version gt reduced
  complexity of procedure, stronger position of EP.
  Council (QMV)) no longer in the position to
  provide a common position which can be rejected
  by EP (AM old para 6) gt take it or leave it

36

• Generally EP has become stronger due to the
  recent amendments of the treaties Maastricht and
  after.
• New areas of parliamentary (co-) decision f.i.
• Enlargement/ accession of new member
• Approval of new Commission and its president
  (periods of office of EP and Commission/President
  are identical)
• Vote of non-confidence against the Commission
  (2/3 majority of casted votes, AM of members)
• Budget
• Structural funds
• EMU/single market
• Technology and Research, Environment
• Parliamentary committees (not complete)

37

• No co-decision however on CAP!!
• Institutional structure is on its way towards a
  bicameral system
• However, in principle EC remains a consensus
  oriented (not competitive) polity due to the
  majority requirements (QM, AM for rejection,
  approval in case of joint texts of Conciliation
  Committee), but there is a clear shift of powers
  from the Council to the EP.

38

• Problem of representation gt basic principle of
  democracy gt one (wo)man, one vote
• EP gt Germany 99 MEP F, I, GB each 78 MEP PL, E
  54 Latvia 9 Slovenia 7 Estonia, Cyprus.
  Luxembourg 6 Malta 5 gt overrepresentation of
  small MS gt the voter in a small MS has got
  considerably more influence that the voter in a
  large MS. Germany 1 MEP per 800.000 inhabitants,
  Malta 1 MEP per 60.000.
• Question Does EC/EU fulfil the requirements for
  a democratic structure? gt majoritarian or
  competitive democracy?