Guide to the Amsterdam Treaty - Part 6

6. Looking to the future:  the next intergovernmental conference

To a certain extent, the proposals for a revised Treaty will depend on how the new Treaty actually works in practice. Some provisions of the Amsterdam Treaty may prove more effective and useful than expected and will need few additions or amendments, whilst others will be less valuable than anticipated, and will require improvement.

However, even at this early stage it is possible to identify a number of areas where amendments may well be desirable.

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A. The general non-discrimination article

From an NGO point of view it would be useful for the next intergovernmental conference to address the following points concerning the non-discrimination article:

• Ensuring the general non-discrimination article has direct effect – meaning that it is capable of conferring a right not to be discriminated against in areas covered by the Treaty. Individuals could rely on this right before their national courts. This would put the general non-discrimination article on a par with the provisions prohibiting discrimination on grounds of nationality and providing for equal pay and equal treatment for men and women.
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• Amending the general non-discrimination article so that it gives a positive right to equal treatment. At present the general non-discrimination article is framed in a re-active rather than a pro-active way. It allows the Community to take action to "combat" discrimination, but does not give a positive right to equal treatment.
• Allowing the adoption of Community legislation to implement the non-discrimination article by qualified majority vote in the Council, and giving the European Parliament a greater say through the codecision procedure.

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B. Integration of the declaration on the internal market (Article 95) into the main body of the Treaty

It has been noted that this declaration, which requires the Community to take account of the needs of disabled people when adopting internal market legislation, is non-binding, and measures which fail to consider the disability perspective cannot yet be challenged before the European Court of Justice.

It remains to be seen how seriously the Community institutions will take the declaration, and whether a consultative body involving representatives of disabled people will be established. However, even if this is the case, the status of the declaration would be further strengthened by its incorporation in the main body of the Treaty. This would place a legal obligation on the Community institutions and mean that internal market legislation which did not take account of the needs of disabled people could be declared invalid by the Court of Justice.

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C. A clear legal base for a disability social action programme in the Treaty

It was noted above that the new Article 137 allows the Community to adopt action programmes to "combat social exclusion". Once the Amsterdam Treaty has been ratified it will become clearer how the term "social exclusion" will be interpreted; up until now, however, the Commission has not generally viewed this term as encompassing disabled people.

If this provision is not seen as providing a suitable legal basis for action programmes targeted at disabled people, or if other problems arise, NGOs will want to see this issue returned to at the next intergovernmental conference. The addition of a specific reference to disability action programmes in Article 137, or elsewhere, will then be desirable

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D. Reference to NGO civil dialogue

One of the general demands made by social NGOs prior to the Amsterdam intergovernmental conference was that the Treaty should provide for a greater consultative role for social NGOs. The Maastricht Agreement on Social Policy, which will be incorporated in the main body of the Treaty by virtue of the Amsterdam text, already gives a significant role to the social partners (European level representatives of workers and employers). These social partners must be consulted when the Commission is considering proposing certain kinds of social legislation, they must be given the opportunity to submit an opinion on the proposals made, and they are allowed to propose Community social legislation. Two such proposals from the social partners have already become Community law (the directives on parental leave and the rights of part-time workers.)

It was never likely that such an elevated status would be given to the social NGOs under the Amsterdam Treaty – however it was hoped that the role of social NGOs would be recognised, and that some reference to the need for, or desirability of, consultation would be made.

In fact the only reference to NGOs is found in a non-binding declaration which reads:

"The Conference recognises the important contribution made by voluntary service activities to developing social solidarity.

The Community will encourage the European dimension of voluntary organisations with particular emphasis on the exchange of information and experiences as well as on the participation of the young and the elderly in voluntary work." (Declaration 38)

This falls far short of giving (social) NGOs a formal consultative status.

A further priority for the next intergovernmental conference must therefore be an express reference to the role of (social) NGOs, and specifically the requirement that they be consulted when social legislation and policy is adopted. Their position would then be more akin to that of the social partners.

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