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The following chapter aims to put a
spotlight on the provisions of the Amsterdam Treaty which are of
relevance to disabled people and their allies. A number of areas
in which the Treaty has been amended or where new articles have
been added are discussed in detail with comments on their
relevance to the disability field.
It should be noted that due to the complex numbering system
of articles in the previous Treaty, a new numbering system has
been adopted in the Treaty of Amsterdam. In the analysis below,
reference will be made mainly to the new renumbered Treaty
articles, but also to the existing articles or the new Amsterdam
Treaty articles. In addition, a cross-reference table on changed
article numbers is provided in section H. It should be noted
that old Treaty articles refer to the Treaty establishing the
European Community (TEC) unless otherwise specified.
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From the disability point of view, probably the most
significant change brought about by the Amsterdam Treaty is the
inclusion of a general non-discrimination article which
specifically mentions disability. The new provision was included
in Article 6a of the Amsterdam Treaty, and will become Article
13 in the renumbered Treaty. It reads:
"Without prejudice to the other provisions of this
Treaty and within the limits of the powers conferred by it
upon the Community, the Council, acting unanimously on a
proposal from the Commission and after consulting the
European Parliament, may take appropriate action to combat
discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual
orientation".
This amendment is significant in that it will expressly give
the Community competence in the disability field for the first
time and, moreover, recognises the problem of disability
discrimination. However, the new article will not have any
direct impact and will not confer any extra rights on disabled
European citizens. This is because Article 13 will merely give
the Community "permission" to take action to combat
disability discrimination if it so wishes it does not amount
to any such action itself.
If the Community does wish to take action, including possibly
legislative action, there are a number of procedural barriers to
be overcome. Firstly, any measure must be approved unanimously
by the Council. If only one Member State actively opposes such
action then the proposed measure will be blocked, and remain
unadopted. Since there is currently no consensus amongst the
Member States on the desirability of binding Community action to
combat disability discrimination, it is very unlikely that
action or legislation will be adopted in the short term.
Secondly the European Parliament, which has often actively
supported disabled people's rights, is given only a relatively
weak role in the adoption of legislation based on Article 13.
Parliament must be consulted, but any opinion or recommendation
which it offers can be overruled by the Council.
It should also be noted that Article 13 does not allow the
Community to adopt measures in all areas related to (disability)
discrimination the article covers only those areas where the
Community has competence, as defined in the Treaty. Therefore,
whilst the Community has some competence in important areas,
such as employment and safety standards for goods, many other
areas, such as children's education and housing are (almost)
completely excluded.
Since Article 13 requires that further action be taken by the
Community to implement the measures needed to combat disability
discrimination, it cannot have direct effect and will not confer
rights directly on individuals. As noted, this is in contrast to
the Treaty provisions dealing with discrimination on grounds of
nationality and equal pay for men and women, which are not
dependent on further action being taken, and which do have
direct effect.
In these significant respects, concerning the procedure used
when adopting action and the absence of direct effect, Article
13 falls short of what was demanded by disabled campaigners.
However, these problems do not mean that Article 13 will have
no practical effect. In the longer term, the article may provide
the legal basis for new legislation and action. Furthermore, the
broad reference to non-discrimination in the Treaty may result
in the European Court of Justice recognising that the right not
to be discriminated against applies to disabled people, as it
has already recognised with regard to men and women (see chapter
on general principles of Community law). Finally, the reference
to disability in Article 13 may encourage the Community to take
more notice of the needs of disabled people when producing
legislation in other fields, such as social policy or human
rights issues.
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It was noted earlier that a number of problems have arisen
with regard to Article 95, which provides for the adoption of
Community legislation to complete the internal market. On
occasion, product standardisation legislation adopted on the
basis of this article has failed to take account of the needs of
disabled people, and so created difficulties. Article 100a has
been renumbered Article 95 under the Amsterdam Treaty, and
although there is still no reference to disability in the
article itself, a declaration annexed to the Treaty does address
the issue. The declaration reads:
"The Conference agrees that, in drawing up measures
under Article 95 of the Treaty establishing the European
Community, the institutions of the Community shall take
account of the needs of persons with a disability."
The declaration is not legally binding, in that it cannot be
enforced by the European Court of Justice, and internal market
legislation adopted on the basis of Article 95 which does not
take account of the needs of disabled people will nevertheless
be valid. Individuals or organisations which feel that internal
market legislation is discriminatory cannot, therefore, bring
any legal challenge before their national court or the Court of
Justice in Luxembourg.
However, if a directive adopted on the basis of Article 95
does need to be interpreted by national courts or the European
Court of Justice, the declaration could be referred to, to
assist in that interpretation.
The declaration furthermore imposes a moral obligation on the
Community institutions to consider the needs of disabled people.
This should make the adoption of internal market legislation
which discriminates against disabled people much more unlikely
in the future, and should make it much easier to force change to
legislative proposals which do, as a result of an oversight,
discriminate in some way.
It could now be argued, on the basis of the declaration, that
the Commission, as the body which proposes Community
legislation, should establish some mechanism to ensure that its
proposals do not discriminate against disabled people. This
point will be considered in more detail in Chapter E,
where we discuss the immediate significance of the Amsterdam
Treaty prior to ratification.
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C.1. Background
The European institutions have been involved in social policy
ever since the Treaty of Rome came into force. However, it was
not until the Single European Act (1986), that the Community was
given a specific legal base for legislation and then only in the
field of health and safety at work (Article 118a). Under this
article, the Community is able to adopt, by means of directives,
minimum requirements for gradual implementation of measures to
improve and harmonise legislation in order to protect the health
and safety of workers.
Since the incorporation of this article in the Treaty, the
Community has adopted numerous legislative acts in this field.
These include the working time directive, which set minimum
requirements for daily rest, weekly rest, and annual leave as
well a maximum weekly working time. The directive is of
particular interest, since the UK challenged the suitability of
Article 118a as a legal basis for the measures, thus allowing
the European Court of Justice to interpret Article 118a.
In its judgement, the Court of Justice gave a wide
interpretation to Article 118a. This included giving a broad
interpretation to the meaning of the terms "health and
safety" and "working environment". When examining
the scope of Article 118a, the Court concluded that directives
could have objectives other than merely improving the health and
safety of workers, though improving health and safety must be
the main or essential objective of any directive based on this
article. The Court of Justice also ruled that the term
"minimum requirements" does no more than emphasise
that Member States are free to adopt more stringent measures
than those included in directives based on this article.
The wide interpretation that the Court gave to Article 118a
may encourage the European Commission to propose further
directives under this article. Because of the similarity of
wording between Article 118a, in the unamended Treaty, and the
new provisions in the chapter on social provisions, the Court of
Justice is likely to continue to interpret the provisions on
health and safety widely.
C.2. The chapter on social provisions
In the run-up to the Maastricht Treaty, many Member States
wanted to see the European Community take on a greater role in
social policy. However, at the time the UK government objected
to any increase in Community powers in this field. It is for
this reason that the social provisions agreed at Maastricht did
not become part of the main body of the Treaty but were
incorporated as a protocol and an annexed agreement which
applied to all Member States except the UK. Because the new UK
government decided to end the British opt-out from the Agreement
on Social Policy, it became possible to incorporate the
agreement into the main text of the Amsterdam Treaty.
According to Article 136, the objectives of the Community
include::
"the promotion of employment, improved living and
working conditions, so as to make possible their
harmonisation while the improvement is being maintained,
proper social protection, dialogue between management and
labour, the development of human resources with a view to
lasting high employment and the combating of
exclusion".
Article 136 sets out the objectives which will underpin
Community social policy. The most important objective for
disabled people is undoubtedly "the combating of
exclusion", since there is strong evidence that disabled
people are excluded from the employment market. However, other
objectives set down in this article will also be important for
disabled people.
The chapter on social provisions not only defines Community
social policy but also sets out the powers that the Community
has been given to act in this field. In general terms, the
Community is empowered to support and complement the activities
of the Member States. This can include the adoption of
directives, as well as the obligation to encourage cooperation
between Member States and between the social partners.
According to Article 137, the Community shall support and
complement the activities of Member States in the following
fields:
- improvement in particular of the working environment to
protect workers' health and safety;
- working conditions;
- the information and consultation of workers;
- the integration of persons excluded from the labour
market;
- equality between men and women with regard to labour
market;
- opportunities and treatment at work.
To help and complement the activities of the Member States
the European Council may adopt "minimum requirements for
gradual implementation having regard to the conditions and
technical rules" existing in the Member States (NB: the
term "minimum requirements" has a specific meaning
according to the European Court of Justice). This will be done
by means of directives, which must avoid imposing
administrative, financial and legal restraints in a way which
would curb the establishment and development of small and
medium-sized undertakings. If the Community uses this right to
create legislation with energy and sensitivity then it is quite
possible that disabled people could benefit, especially since
areas such as health and safety are in some ways more important
to the disabled worker.
It is also good to note that in adopting directives based on
this chapter the Council will be able to use qualified majority
voting and the decision-making process will be based on
codecision. However, in the following limited areas of social
policy the Council will have to use the unanimity voting
procedure (Article 137(3)):
- social security and social protection of workers;
- protection of workers where their employment contract is
terminated;
- representation and collective defence of the interests of
workers and employers;
- conditions of employment for third country nationals
legally residing in
Community territory;
- financial contributions for promotion of employment and
job creation.
Not only can the Community now adopt legislation in the field
of social policy but when the Commission proposes new
legislation, both management and labour must be consulted
(Article 136(2)). It is at this point that disability
organisations must ensure that their voice is heard on any
legislation which will directly or indirectly affect disabled
people. It should also be noted that Member States have the
right to maintain legislation which is more stringent than
Community provisions as long as the national legislation is
compatible with the Treaty. European legislation should thus not
be an excuse for reducing protection.
As previously mentioned, the new chapter also imposes an
obligation on the Community to increase dialogue between
management and labour and between Member States. Under Article
139, if management and labour agree, dialogue between them at
Community level may lead to legally enforceable collective
agreements. In addition, Member States may entrust
representatives of management and labour, at their joint
request, with the implementation of directives (Article 137(4)).
Most significantly, management and labour can request that the
Commission forward the European-level collective agreements to
the Council, where the agreements can be transformed into
binding Community legislation (directives) under Articles
137-139.
Regarding the promotion of cooperation between Member States,
the role
of the Community is set out in Article 140. According to this
article the
Commission must encourage cooperation between the Member States
and facilitate coordination of their action in all social policy
fields under this chapter, particularly in matters relating to:
- employment;
- labour law and working conditions;
- basic and advanced vocational training;
- social security;
- prevention of occupational accidents and diseases;
- occupational hygiene;
- the right of association and collective bargaining between
employers and workers.
The Commission must act in close contact with Member States
by making studies, delivering opinions and arranging
consultations both on problems arising at national level and on
those of concern to international organisations.
It would seem that the chapter on social provisions provides
a good opportunity to improve conditions for disabled people.
However, although the Community is obliged to encourage
cooperation, it has been given only the right, not the
obligation, to enact legislation in this field. For this reason,
it is important that organisations that work on behalf of
disabled people lobby the Commission to propose legislation in
this field.
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D.1. Introduction
The Amsterdam Treaty contains a new title on employment,
which gives the Community significant additional competences in
this field, although the main responsibility for employment
policy remains with the Member States. In adopting this title,
the Heads of State or Government agreed that they should work to
coordinate their employment policies, so as to create an
environment conducive to job creation. In recognition of the
concern over unemployment, the governments of the European
Union, acting unanimously, also agreed that this title should
come into force immediately and not have to await ratification
of the whole Treaty.
The main objective of the Employment title is set out in
Article 125 which states:
"Member States and the Community shall, according to
this Title, work towards developing a coordinated strategy
for employment and particularly for promoting a skilled,
trained and adaptable workforce and labour markets
responsive to economic change..."
To achieve this goal, the Community has been given new
competences and Member States have agreed to coordinate their
employment policies.
D.2. New European competences
The new competences of the Community are set out in Article
127 and 129. According to Article 127(1):
"the Community shall contribute to a high level of
employment by encouraging cooperation between Member States
and by supporting and, if necessary, complementing their
action..."
Henceforth, the European Community shall have a role to play
which is not limited to the coordination of Member States'
policies in this area, but which may also include support for
national measures. However, in accordance with the subsidiarity
principle, the Community, in doing so, will have to respect the
competences of the Member States.
In addition, the Community must from now on take account of
the objective of high employment when formulating other
policies, as stated in Article 127(2):
"the objective of a high level of employment shall
be taken into consideration in the formulation and
implementation of Community policies and activities".
Finally, Article 129 authorises the Council to adopt:
"incentive measures designed to encourage
cooperation between Member States and to support their
action in the field of employment through initiatives aimed
at developing exchanges of information and best practices,
providing comparative analysis and advice as well as
promoting innovative approaches and evaluating experiences,
in particular by recourse to pilot projects".
This is an additional competence granted to the European
Union authorities to enable them to propose innovative
initiatives in the field of employment. The Treaty, under the
chapter on social provisions, sets as the objective for both the
Member States and the Community the promotion of employment,
improved living and working conditions, the development of human
resources with a view to lasting high employment and the
combating of exclusion. The Community will support and
complement the activities of the Member States. It could be
argued that the Council, under Article 129, should propose
innovative initiatives to encourage disabled people to enter the
labour market. However, it should be understood that measures
under this article cannot include harmonisation of the laws and
regulations of the Member States, and this may limit the scope
of any possible action.
D.3. Coordination of employment
policies
To achieve a better coordination of employment policies
across Europe, the employment chapter on the one hand obliges
the Community to set up an Employment Committee, and on the
other sets out the procedure whereby the Member States will,
with the help of the Community, coordinate their activities.
The Employment Committee will be composed of two
members from each Member State and two members from the
Commission. Its tasks will be to monitor the employment
situation and employment policies in the Member States and the
Community, as well as to formulate opinions at the request of
either the Council or the Commission, or on its own initiative,
and to contribute to the Council's task of coordinating
employment policy. It should also be noted that in the
accomplishment of its mandate, the Employment Committee will be
expected to consult the social partners. The term "social
partners" has been given a narrow scope, however, including
only Community-level representatives of workers (ETUC) and
employers' organisations (UNICE and CEEP). An area for action by
organisations which represent disabled people is to ensure that
this new committee will extend its consultations and take
account of their views.
The obligations created for Member States in terms of coordination
are set out in Article 126(1):
"Member States through their employment policies,
shall contribute to the achievement of the objectives
referred to in Article 125 in a way consistent
with the broad guidelines of the economic policies of the
Member States
and of the Community..."
Consequently, Member States must now elaborate a coordinated
strategy in their action relating to employment. They are also
now obliged to work with the Council to create a coordinated
approach. The procedure for this cooperation between Member
States and the Council is set out in Article 128.
Article 128 details a complex procedure to achieve this
coordination, which has now been complemented by agreements
reached during the special European Employment Summit in
Luxembourg on 20 and 21 November 1997. In general terms the
procedure is as follows. Each year, the Council must consider
the employment situation and, in the light of its findings,
adopt guidelines which Member States will have to incorporate
into national action plans on employment. To monitor the
implementation of these guidelines, Member States must provide
the Commission and the Council with a report on the measures
taken to implement the guidelines. Following this, the Council,
acting on a recommendation from the Commission, can make
specific recommendations to some or all Member States. Finally,
the Council and the Commission will report to the European
Council (all 15 Heads of State and/or Government meeting
together), which will annually adopt new guidelines to further
improve the coordination of employment policy.
The title on employment is the result of a strong political
will to provide a common response aimed at improving the
employment situation in the Community. The establishment of an
Employment Committee, the new competences of the Council and of
the Commission, as well as the new role to be played by the
European Council in this field, should at least constitute a
renewed opportunity to depart from the current critical
situation affecting millions of unemployed European citizens.
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E.1. Background
Until the Treaty on European Union signed in Maastricht
(1992), the Community did not have any explicit competence in
the field of health. In fact, apart from the Article 118a
incorporated by the Single European Act (1986), which gave the
Community competence to approximate legislation in the field of
working conditions and adopt directives to improve the health
and safety of workers, scant reference had been made to health
at all. However, Article 129 TEC did establish a base for
European action on health, stating that:
"1. The Community shall contribute towards ensuring
a high level of human health protection by encouraging
cooperation between the Member States and, if necessary,
lending support to their action.
Community action shall be directed towards the prevention
of diseases, in particular the major health scourges,
including drug dependence, by promoting research into their
causes and their transmission, as well as health information
and education
Health protection requirements shall form a constituent
part of the Communitys other policies."
In addition, Article 129 also encouraged Member States to
cooperate and coordinate their activities in this field.
However, as becomes clear from the wording of this provision,
the competences transferred to the Community are rather limited
in nature and scope. The article is exclusively focused on
health promotion, significantly leaving out the issue of
healthcare. With respect to the issue of health promotion, the
Community must respect the principle of subsidiarity.
Over the course of the last few years, the Community has,
despite its confined spheres of competence, taken a number of
noteworthy initiatives in the field of health, including the
adoption of directives on the mutual recognition of diplomas of
medical doctors, health and safety at work and blood products.
The Community has, in addition, started a number of
health-related action programmes, including programmes on
cancer, AIDS, communicable diseases, drug dependence, and health
promotion and disease prevention.
Reference should also be made to the formulation of an EC
code of good clinical practice (1990), which was recently
amended to allow, under exceptional circumstances,
non-therapeutic medical research with "legally
incapacitated persons, such as minors and people with severe
mental disabilities".
E.2. The new health provisions
Under the Amsterdam Treaty, Article 129 (new Article 152)
underwent a number of changes. The new provisions of Article 152
state that:
"1. A high level of human health protection shall be
ensured in the definition and implementation of all
Community policies and activities.
Community action, which shall complement national
policies, shall be directed towards improving public health,
preventing human illness and diseases, and obviating sources
of danger to human health. Such action shall cover the fight
against major health scourges, by promoting research into
their causes, their transmission and their prevention, as
well as health information and education.
The Community shall complement the Member States' action
in reducing drug related health damage, including
information and prevention."
In addition, to this the Community continues to have a role
in coordinating Member States policies in this area.
Furthermore, due to the problems encountered with BSE (mad cow
disease), the Community is given new competence in the field of
veterinary health.
Comparing Article 129 with the new Article 152 shows that
certain important changes have been made. The sphere of
Community competence has been expanded to include not only
"prevention of disease" but also "improving
public health, preventing human illness, and diseases, and
obviating sources of danger to human health." In addition,
the new Article 152 explicitly states that health concerns need
to be taken care of in the definition and implementation of all
Community policies and activities.
In spite of all these changes, it should be noted that the
Community competences remain complementary in nature
(principle of subsidiarity) and focused on health prevention
and not on healthcare. Article 152 does not have direct effect,
meaning that it does not confer enforceable rights on
individuals. Despite these limitations, Article 152 does provide
disability rights groups with a tool to build up a dialogue with
national government and EU representatives to ensure its full
implementation. In this respect, it is of particular importance
that this provision explicitly states that all Community
programmes and activities should uphold a high level of human
health protection. Programmes and activities that contribute to
the segregate, instead of include disabled people are unlikely
to meet this self-imposed standard.
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One of the objectives of the intergovernmental conference was
to make the Community more open and accessible to the citizens
of the European Union. For this reason the issue of
"transparency", meaning open decision-making and
access to Community documents, was addressed, and a number of
reforms were introduced to this end.
With regard to open-decision making, the new Article 1 TEU
reads:
"This Treaty marks a new stage in the process of
creating an ever closer Union among the peoples of Europe,
in which decisions are taken as openly and as closely as
possible to the citizen".
With regard to access to information, the new Article 255 TEC
(formerly Article 191a in the Maastricht Treaty) reads:
"1. Any citizen of the Union, and any natural or
legal person residing or having its registered office in a
Member State, shall have a right of access to European
Parliament, Council and Commission documents, subject to the
principles and conditions to be defined in accordance with
paragraphs 2 and 3.
2. General principles and limits on the grounds of public
or private interest governing the right of access to
documents shall be determined by the Council, acting in
accordance with the procedure referred to in Article 251
within two years of the entry into force of this Treaty.
- Each institution referred to above shall elaborate in its
own rules of procedure specific provisions regarding access
to documents".
In addition Point 9 of the Protocol on the Application of the
Principles of Subsidiarity and Proportionality (see chapter B
and D7 for more information on subsidiarity) states that:
"... the Commission should, except in cases of
particular urgency or confidentiality, consult widely before
proposing legislation and, wherever appropriate, publish
consultation documents".
These amendments mark a move towards allowing citizens
greater information about how decisions are taken, and the
actual content of those decisions. Furthermore, the amendments
seem to require that the Community institutions allow access to
their documents unless there is a good reason for not doing so.
Once the Amsterdam Treaty comes into force the Community shall
be obliged to adopt legislation establishing general principles
on access and determine limits on the right to access on grounds
of public or private interest (new Article 255(2)). Furthermore,
the European Parliament, the Council and the Commission must
develop internal rules of procedure regarding access to
documents (new Article 255(3)).
These Treaty amendments do not refer to the need to
provide documents in forms which are accessible to all disabled
people, e.g., in Braille, in large print or on diskette for
people with a visual impairment, and on tape or in an
easy-to-read format for people with a learning disability. The
assumption seems to be that citizens have a right to obtain
access to documents, but this right extends only to obtaining
documents in a conventional form. However, the access needs of
disabled people could be elaborated on in the Community
legislation and the internal rules of procedure which must be
adopted under Article 255. The new Treaty has therefore opened
up possibilities; the follow-up measures which need to be taken
by the institutions will determine whether disabled people are
able to gain equal access to the documentation, or whether they
will be excluded.
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The Treaty article which specifies that the Community shall
act in accordance with the principle of subsidiarity will remain
unchanged as a result of the Amsterdam Treaty. It will now be
contained in Article 5 (previously Article 3b).
However the Member States have clarified the concept of
subsidiarity and adopted a protocol (which is binding and part
of the Treaty) "with a view to defining more precisely the
criteria for applying [the principle of subsidiarity] and to
ensure ... strict observance and consistent implementation by
all institutions." (Protocol on the Application of the
Principles of Subsidiarity and Proportionality, preamble)
This protocol specifies that:
"... the Commission should: except in cases of
particular urgency or confidentiality, consult widely before
proposing legislation and, wherever appropriate, publish
consultation documents." (Point 9)
The protocol does not specify with whom the Commission should
consult; however, it could be argued that where measures
directly concern disabled people, consultation should occur with
their representatives. Furthermore, it could be argued that such
consultation should also occur where measures indirectly concern
disabled people. If interpreted in this way, the protocol will
reinforce the declaration concerning Article 95 on the internal
market and the requirement that the needs of disabled people be
taken into account when legislating in this field, by requiring
consultation.
The consultation requirement applies only in areas covered by
the subsidiarity principle, i.e. areas where competence is
shared between the Community and the Member States. In a few
fields, such as monetary union, the Community has exclusive
competence and the protocol shall not apply (although the
Commission may still wish to consult).
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Historically the European Union has not paid much attention
to the human rights and fundamental rights of its citizens. This
oversight was mostly due to the economic objectives underpinning
the establishment of the European Communities. Moreover, the
protection of human rights in Europe was guaranteed by the
European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) and the European Court of Human
Rights in Strasbourg.
Over the years, the European Union has become increasingly
concerned with the issue of fundamental rights. This is
demonstrated by the fact that currently in the European Union
there is no doubt that the Community legal order should
guarantee an adequate protection of fundamental human rights,
which are at the core of Europe's democratic society. Initially,
fundamental human rights gained recognition in Community law in
the case law of the European Court of Justice which stressed
that these rights were part of the general principles of law
which the Court is bound to apply pursuant to the then Article
164 (now Article 220) of the Treaty of Rome.
However, with the advent of the Single European Act (1987),
protection of human rights found its way into Community
legislation. Article F of the Maastricht Treaty contains a
reference to fundamental rights in its second paragraph. This is
left unchanged in the Amsterdam Treaty and states:
"2. The Union shall respect fundamental rights, as
guaranteed by the European Convention for the Protection of
Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member
States as general principles of Community law."
The first paragraph of this article, now renumbered Article
6, was amended in the Amsterdam Treaty as follows:
"1. The Union is founded on the principles of
liberty, democracy, respect for human rights and fundamental
freedoms, and the rule of law, principles which are common
to the Member States."
Previously the first paragraph only stated:
"1. The Union shall respect the national identities
of the Member States, whose systems of government are
founded on the principle of democracy."
Nevertheless, it is clear that in the Amsterdam Treaty the
fundamental rights of EU citizens are more firmly reasserted. It
reaffirms the fundamental principles on which the Union is
founded and strengthens the Union's commitment to fundamental
rights.
More importantly and significantly, the new Article 7 TEU
enables the Council to take action in the event of serious and
persistent breaches of fundamental rights occurring in any
Member State:
"2. Where such a determination has been made, the
Council, acting by a qualified majority, may decide to
suspend certain of the rights deriving from the application
of this Treaty to the Member State in question, including
the voting rights of the representative of the government of
that Member State in the Council. In doing so, the Council
shall take into account the possible consequences of such a
suspension on the rights and obligations of natural and
legal persons.
The obligations of the Member State in question under
this Treaty shall in any case continue to be binding on that
State."
However, Article 7(1) contains some procedural barriers which
may make it (politically) difficult for the Council to determine
the existence of a serious and persistent breach of the
principles mentioned in Article 6(1). Firstly, a proposal must
be submitted by one third of the Member States or by the
Commission. It is unlikely that Member States will want to
accuse each other of breaches of human rights. Furthermore, the
Member State(s) behind the proposal need to find the support of
one-third of the Member States to be able to submit it to the
Council. In effect, this may mean that most proposals for the
Council to determine a breach of fundamental or human rights
will come from the Commission. European and national disability
NGOs should therefore focus on lobbying the European Commission
if they want to obtain a condemnation of a Member State's breach
of fundamental principles.
Secondly, the proposal must be approved unanimously by the
Council, excluding the vote of the representative of the Member
State involved. Thus if only one Member State, other than the
Member State in which the breach is alleged, actively opposes
the proposal, then it will be blocked and remain unadopted. Add
to this the psychological and political fact that the Members of
the Council i.e. the Member States themselves would be
judge and party to such a decision. This will cause most Member
States to be cautious. Moreover, prior to taking any decision,
the Council must obtain the assent of a two-thirds majority
within the European Parliament, with a majority of the MEPs
present. In addition, the government of the Member State in
question must be invited to submit its observations.
It should be noted that this article does not have direct
effect and will not confer any new or extra rights on citizens.
Like Article 13, this article merely gives the Union power to
take action to stop breaches of fundamental rights by suspending
some of the rights deriving from the application of the
Amsterdam Treaty to the Member State involved, including the
voting rights of the representative of the government of that
Member State in the Council. It should be noted that if the
Council succeeds in determining a breach under Article 7(1),
this does not automatically lead to a suspension of the rights
of the Member State against which finding was made. In order to
suspend any rights, the Council will need to take a new
decision, acting by a qualified majority.
To conclude, the question remains as to how Article 6(1)
should be interpreted, as it is of a general nature. Does the
concept of human rights and fundamental freedoms also include
non-discrimination on the basis of disability? This question is
significant, since the European Convention for the Protection of
Human Rights and Fundamental Freedoms currently contains no
reference to disability. Also, could it be read together with
Article 13, which encourages the Council to combat
discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation?
H.1. Human rights benchmarks entry requirements for new
Member States
A new opening clause was added to Article 6 TEU (formerly
Article F)
by the Amsterdam Treaty. It states:
"The Union is founded on the principles of liberty,
democracy, respect for human rights and fundamental
freedoms, and the rule of law, principles which are common
to the Member States".
States wishing to join the European Union must respect these
principles. This is specified in an amended Article 49 TEU
(formerly Article O). Similar criteria are required for entry
into the Council of Europe.
These changes are a natural follow-up to the political
criteria for membership of the Union set by the European Council
meeting in Copenhagen in 1993 (the so-called "Copenhagen
criteria"). To be eligible under the Copenhagen criteria an
applicant State must have
"achieved stability of institutions guaranteeing
democracy, the rule of law, human rights and respect for and
protection of minorities".
The new Article 6 TEU reflects the Copenhagen criteria, with
the exception that the protection of minorities is omitted and
an extra reference to liberty is included.
It is one thing to require compliance with human rights
standards to qualify for entry, it is quite another to specify
which standards apply and how they are to be interpreted.
Doubtless the Universal Declaration of Human Rights (1948)
and the UN Bill of Rights (composed of the International
Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights) are
authoritative at a general level. In this regard, it should be
borne in mind that UN General Assembly Resolution 3447 (1975)
stressed that people with disabilities enjoy exactly the same
civil and political rights as all others. It should also be
stressed that General Comment No.4 under the Covenant on
Economic, Social and Cultural Rights deals specifically with the
meaning of these rights in the context of disability. Economic
and social rights can be said to be authoritative because of the
indivisibility of both sets of rights, as enunciated repeatedly
at international level.
Closer to home, the European Convention on Human Rights is an
obviously authoritative source of relevant human rights
standards. Some disability test cases are beginning to reach the
European Commission on Human Rights under the convention but
have met with little success so far.
It is significant that the new fourth paragraph in the
preamble to the Treaty on European Union makes explicit
reference to the Council of Europe Social Charter of 1961 and
the 1989 Community Charter of the Fundamental Social Rights of
Workers. The 1961 Social Charter has recently been revised
substantially and is quite explicit on the rights of people with
disabilities. It has yet to come to force and, strictly
speaking, the reference in the preamble to the 1961 Charter
probably does not encompass the revised version.
A strong case might also be made that minority rights should
be respected by the applicant States. Member States have stated
their commitment to minority rights in various international and
regional declarations.
The actual procedure for admission is the same under new
Article 49 that is, unanimous approval is needed from the
Council and the European Parliament must support the measure by
an absolute majority.
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The European Court of Justice, which has the task of
interpreting Community law, has developed a number of general
principles to assist it in its interpretative task. These
general principles are not listed in the Treaty, Rather, they
are based on constitutional principles shared by the Member
States and on the nature, structure and objectives of the
Community. Respect for fundamental rights is explicitly stated
by the European Court of Justice to "form an integral part
of the general principles of Community law" .
The Court of Justice developed these principles partly in
order to make the idea of supremacy of Community law acceptable
to national (constitutional) courts. Since Community law is of a
higher legal order than all sources of national law, including
provisions on human rights in national Constitutions, it was
feared that it might develop to the point of eroding such
rights. In order to reassure national courts, the European Court
of Justice stressed that Community law is not boundless, and is
subject to the limitations imposed by general principles.
Evidence of these principles is to be found in the international
treaties including those on human rights to which the
Member States are parties.
Most of the general principles actually recognised by the
Court of Justice have to do with the functioning of the internal
market. This is not surprising given the (initially) economic
dimension of the European Community. Hence, the general
principles "recognise" property rights, and, with
regard to economic rights, the requirement of proportionality
and the principle of equality or non-discrimination. The general
principle of equality, as developed by the Court of Justice in
this "economic" context sits apart from but
overlaps with the concept of equality as a fundamental
right.
From the perspective of market rationality it is clear that
some notion of non-discrimination is needed to produce
rationality as well as fairness. While the Treaty articles
addressing non-discrimination on grounds of nationality and
equal pay for men and women reflect this fact, they are not
necessarily exhaustive.
With the steady expansion of Community powers into
non-economic areas it might be expected that a broader notion of
fundamental rights could be built into the Court of Justice's
general principles. This expansion has been reinforced by the
Amsterdam Treaty. There are in fact recent signs that the Court
of Justice may be willing to expand the scope of the general
principle of equality or non-discrimination, and to move towards
the notion of equality as a fundamental right. In a case before
the Court, Advocate-General Elmer stated:
"There is nothing in either the EU Treaty or the EC
Treaty to indicate that the rights and duties which result
from the EC Treaty, including the right not to be
discriminated against on the basis of gender, should not
apply to homosexuals, to the handicapped ... . Equality
before the law is a fundamental principle in every community
governed by the rule of law and accordingly in the Community
as well. The rights and duties which result from Community
law apply to all without discrimination ... ."
This opinion by the Advocate-General reveals the possibility
of arguing for a general principle of non-discrimination one
that includes people with disabilities. This line of argument is
becoming more difficult to resist since, for example, the new
general non-discrimination article (Article 13) amounts to a
concession that discrimination does exist with respect to people
with disabilities, and concepts of discrimination are beginning
to expand to include disability.
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Institutional reform, and the simplification of the
procedures for adopting Community legislation, were key
objectives for the Amsterdam intergovernmental conference. There
was a need to reform the Council's unanimity voting procedure
and to reallocate the votes with regard to qualified majority
voting in order to prepare the Union for expansion into eastern
Europe. With five or more additional Member States, it would
become even more difficult to reach unanimous agreement on
legislation, and the disproportionate number of votes given to
smaller Member States under the qualified majority voting
procedure would become more problematic. In addition, there was
a need to impose a limit on the number of Commissioners.
A further challenge which needed to be addressed at the
intergovernmental conference was the lack of democratic control
within the Union. The European Parliament is the only European
body elected directly by the citizens, and the complicated
decision-making and legislative procedure can mean that at times
it has only a limited say. This is particularly so with regard
to the cooperation procedure and, to a lesser extent, in
relation to the codecision procedure (see chapter B).
J.1. Reform of the unanimity voting procedures and voting
rights/qualified majority voting in the Council
No agreement proved possible in this area. Although all
Member States recognised the need for reform, some (larger)
States were reluctant to move away from the unanimous voting
procedure, as this would have opened up the possibility of their
being overruled, and some smaller Member States did not wish to
see their position weakened under the qualified majority voting
procedure by a reduction in their number of votes.
J.2. The European Commission
It is generally agreed that the Commission, with its present
membership of 20, is too large. As a result, problems of
coordination arise and portfolios are divided up amongst a
number of Commissioners. However, the Member States could not
agree on how to resolve this situation. Many of the smaller
Member States were unwilling to give up their Commissioner, and
the larger Member States responded by refusing to sacrifice one
of their two Commissioners.
Instead a protocol has been prepared whereby the Commission,
as from the date of the first enlargement, may not contain more
than one Commissioner having the nationality of a particular
Member State. However, this is conditional upon a future
agreement on the redistribution of voting rights in the Council
in favour of the larger Member States, which would give up one
of their two Commissioners in return.
J.3. Decision-making and the involvement of the European
Parliament
In a number of cases the cooperation procedure has been
replaced by the codecision procedure, under which the Parliament
has a much greater say. This applies to exceptions to the free
movement of persons, employment, research and development,
public health, sex equality, discrimination on grounds of
nationality, establishment, social security, education, various
elements of social policy and transparency. In addition, the
codecision procedure will apply to environmental policy,
transport, infrastructure, expenditure on social and regional
policy and the combating of fraud. It is interesting to note
that these are areas which are of direct interest for the
citizen. The codecision procedure has also been simplified.
Furthermore, a number of Council decisions require the assent
of the European Parliament, including the determination of a
serious and persistent breach of human rights and certain
international agreements. This procedure continues to apply with
regard to the accession of new Member States.
The position of the European Parliament will therefore be
considerably strengthened by the Amsterdam Treaty.
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