Guide to the Amsterdam Treaty - Part 2

2. Setting the scene: the Maastricht Treaty

A. References to disability in the Treaty

The Maastricht Treaty contains no mention of disability and provides no clear legal basis for specific action in this field. It has therefore been difficult for the Community to adopt legislation and policy promoting the interest of disabled Europeans, since all such action must be based on the Treaty (i.e. have an appropriate legal basis). Instead the Community institutions (the Commission, the European Parliament and the Council) have had to work with inadequate legal bases which fail to recognise the disability dimension of the numerous Community policies such as free movement of persons, harmonisation of national legislation to achieve the internal market etc. Examples of the problems that have arisen are amply demonstrated by the "Invisible Citizens" report (in particular Chapter 1, "Disabled People are Invisible in the Treaties"). Furthermore, the absence of a reference to disability in the Treaty means that much of the disability policy developed is non-binding (i.e. of a recommendatory nature), and therefore not legally enforceable. The Commission communication and Council resolution on equality of opportunity for people with disabilities are examples of such non-binding texts, and, irrespective of the undoubted quality of these two instruments, their impact would have been far greater if they had been based on the Treaty and taken the form of legislation. The existence of legal bases clearly providing for action in the field of disability will consequently be one of the criteria against which the Amsterdam Treaty will be judged.

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B. Dealing with discrimination

The existing Treaty addresses discrimination on the grounds of nationality and sex only. With regard to nationality, Article 6 of the Treaty reads:

"Within the scope of the application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."

This measure does have some significance for disabled people. It means, for example, that a disabled person who is seeking work in a Member State other than his or her own is entitled to all the benefits available to a national who has a similar disability. The disabled migrant will be eligible for protection under any quota scheme that may exist in the host State, where a similarly placed national would also be covered. The disabled migrant can also claim equal protection under any national anti-discrimination provision that may be in force. Once in open employment, the disabled migrant has the same rights as a national to claim subsidies to cover the cost of, for example, reasonable accommodation. In addition, migrant workers who are accompanied by a disabled family member are entitled to claim disability benefits, assistance with education and training etc., just as any similarly placed national would be. Where eligible, the disabled family member can also make such claims.

To deny a disabled person such benefits would amount to discrimination; not on grounds of disability, but on grounds of nationality. Thus where an employer can lawfully discriminate against disabled nationals, where disabled children who are nationals are denied access to integrated education, where disabled nationals are denied assistance with personal care, then disabled migrants can also be so treated. Article 6 provides protection only for disabled migrants and that protection is only as good as that which is available in the host country to a disabled national. It provides no scope for obliging Member States to adapt national laws to eliminate discrimination directed at all disabled people.

Article 119 is the only article in the main body of the Treaty which deals with sex discrimination. The article is concerned exclusively with achieving "equal pay for equal work", although some of the legislation which was inspired by this provision covers broader areas, such as equal treatment. These measures are also of some relevance for disabled people, since they should ensure, for example, that disabled women have the same entitlement to social security payments as disabled men, and that female assistants receive the same benefits as male assistants. However, where levels of income support are inadequate for both men and women, and where no provision is made for independent living assistance, then Article 119 and its associated legislation are irrelevant. Like Article 6, there has to be an initial level of protection, which is determined exclusively by Member States, before Article 119 can be relied upon.

Whilst Article 6 and Article 119 will be of use to some disabled people, they fail to give the Community any competence to address the recognised problem of disability discrimination. The adoption of a Treaty amendment giving this power has been the focus of a lengthy campaign by the disability movement, and many disabled people expected the representatives of the Member States to incorporate such a clause in the new Treaty.

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C. Community social policy

Community social policy is in a somewhat confused state under the Maastricht Treaty. At the Maastricht intergovernmental conference, it was proposed that the Treaty be amended so as to give the Community greater powers in the field of social policy. At that time, the UK government vehemently opposed the creation of any additional Community powers in this field. Since Treaty amendments need to be approved by all Member States, it proved impossible to adopt the proposed set of amendments. The remaining Member States (in 1992 there were 11 remaining Member States, there are now 14) still wished to develop a more ambitious social policy. They therefore adopted a Protocol on Social Policy and annexed agreement which allowed them to take further steps to develop a "Community" social policy, which would not apply in the United Kingdom.

The Agreement on Social Policy allowed the 14 Member States to adopt Community legislation in a much broader area, and to make more use of qualified majority voting. The agreement also gave a legislative and formal consultative role to the social partners (European-level representatives of workers and employers or labour and management). Up until now, relatively little use has been made of the agreement. Only three pieces of legislation have been adopted (on consultation of workers in certain European firms, parental leave and part-time work). This may well be because the 14 Member States do not wish to further emphasise differences between the United Kingdom and the rest of the Community with regard to social policy. An additional challenge for the Amsterdam Treaty is therefore to bring about a legal basis for a more ambitious Community social policy, covering all 15 Member States.

It should also be noted that under the Maastricht Treaty, neither the main body of the Treaty, nor the Agreement on Social Policy, provide a clear legal basis for Community action programmes in the field of disability.

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D. The internal market and harmonisation

It has already been noted that the absence of a reference to disability in the Treaty has limited the Community's ability to introduce measures specifically for disabled people, and at times, has resulted in inadequate consideration of the position of disabled people when producing more general legislation and policy. The result has been proposals for legislation, and adopted legislation, which indirectly discriminate against certain groups of disabled people.

One area where this has occurred is the harmonisation of national legislation to complete the internal market. Under Article 100a the Community is empowered to set common design standards for goods and to guarantee free movement throughout the Member States for goods which meet these standards. When such standards are proposed or set, the needs of disabled consumers are sometimes overlooked. For example, the 1991 directive on the mutual recognition of telecommunication terminal equipment sets certain minimum standards which must be met by producers of such equipment in order to achieve free movement within the European Union. These standards do not include the requirement that the equipment be accessible for use by people with a visual impairment, and the result has been to undermine national legislation, such as that in the United Kingdom, which does include this requirement. Numerous other proposals for (single market harmonisation) legislation have also failed to take the (access) needs of disabled people into account. For instance, the lifts directive and the draft buses and coaches directive did not initially require that new lifts and buses be accessible to people who use a wheelchair, or who have certain other disabilities, wherever possible. It was only comprehensive campaigning by disability non-governmental organisations (NGOs) and members of the European Parliament which rectified this situation.

Consequently, there has been a campaign calling for an amendment to the Treaty which specifically requires the Community to take account of the needs of disabled people when adopting internal market legislation under Article 100a.

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E. The adoption of Community legislation

The procedure under which Community legislation is adopted has changed over the years as a result of Treaty amendments. However, the basic pattern remains the same. First, the Commission proposes legislation. This is a power reserved exclusively to the Commission. That proposal is then examined by the European Parliament (usually in two readings). Parliament can approve or reject the proposal, or propose amendments. The Council of the European Union, consisting of government ministers representing the 15 Member States, votes on the amended proposal (also usually in two readings). It can also approve or reject the proposal, or, in some cases, adopt an amended text.

Whilst this is the general framework, there are in fact a number of different adoption procedures, each giving more or less power to the European Parliament, and making it easier or more difficult to achieve the necessary majority within the Council. The Treaty specifies which procedure is to be followed in individual cases. The main adoption procedures are the following.

E.1. Involvement of the European Parliament:

a) The assent procedure

The European Parliament and the Council are truly equal legislators, and the approval of both institutions is needed for a measure to be adopted. This procedure is in fact rarely used, and applies, for example, to decisions to allow new Member States to join the European Union.

b) The codecision procedure

The European Parliament is given an important role in the adoption of legislation. It can cause a proposal which it does not approve of to be rejected outright, force the Council to adopt a Commission proposal which it approves of, and negotiate with the Council in order to secure the incorporation of its amendments. This procedure is used regularly.

c) The cooperation procedure

The European Parliament is given a much weaker role under this procedure. It can still propose amendments and recommend rejection of a proposal, but can be overruled by the Council. This procedure is also used regularly.

E.2. Voting within the Council.

There are two basic voting procedures within the Council:

a) Unanimity

Such a high degree of support is clearly difficult to achieve at times. It should be noted that an abstention by a Member State does not prevent the Council from adopting a proposal unanimously.

b) Qualified majority voting

Under this procedure each Member State is given a number of votes, based loosely on the size of its population. For instance, Luxembourg has two votes whilst Germany, Italy, the United Kingdom and France have 10 each. A qualified majority consists of at least 62 out of a possible 87 votes. It is therefore much easier to adopt legislation under this procedure, particularly when the larger Member States support the proposal.

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F. Additional important terms and concepts

F.1. The concept of direct effect

Certain provisions of the Treaty are capable of having what is called direct effect. This means that they confer rights on individuals which can be relied upon before national courts. Only provisions which are clear, are capable of conferring rights on individuals, and require no further action by the Community or by the Member States, are capable of having direct effect. It is the European Court of Justice which decides whether a specific provision meets these criteria.

When individuals feels that they have been a victim of a breach of a Treaty provision which has direct effect, they can bring the matter before a local court, and rely on Community law in exactly the same way as it is possible to rely on national law. Both Article 6 (discrimination on grounds of nationality) and Article 119 (equal pay for men and women) have direct effect, and many individuals have relied on these provisions before their national courts.

Disabled people who campaigned for the inclusion of a disability non-discrimination clause in the Treaty, also called for it to have direct effect.

F.2. The principle of subsidiarity

Further to the Maastricht Treaty, all Community policies and legislation have to comply with the principle of subsidiarity. This principle is based on the idea that, where competences are shared between the Community and the Member States, decisions should be taken at the lowest level. Thus, wherever possible it is the Member States which should act, and the Community should become involved only when decisions can be better taken at this higher level and the Member States cannot achieve the objectives by acting alone.

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G. Conclusion

There are clearly many ways in which the disability (and social) dimension could be given a higher profile in the Treaty. The inclusion of a disability non-discrimination clause, an amendment to Article 100a (internal market legislation) and the clear power to adopt a disability action programme are obvious examples. However, other areas, such as a greater prominence for human rights, more involvement for NGOs, increased initiatives in the field of employment, improved access to information and a more prominent public health policy are also potentially very significant. The impact of the Amsterdam Treaty in these areas, as well as other areas referred to in this chapter, are therefore examined in more detail in this guide.

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