The Amsterdam Treaty formally introduces the new principle of closer co-operation, or flexibility, to the European Union's decisionmaking arrangements. It extends qualified majority voting to limited new areas.
Flexibility is defined in the White Paper as "a series of general provisions which will permit a number of member-states less than the full membership to avail of the institutions of the Union to organise" such co-operation among themselves.
The White Paper says this must involve at least a majority of the whole membership and that the provisions are general "in the sense that the area or subject matter where they may be used is not specified, although certain areas have been explicitly excluded".
Flexibility may be applied in areas as yet unseen, as the consequence of greater diversity within an enlarging EU become apparent in coming years.
While there are many examples of flexibility within the existing decision-making regimes, whether in the form of opt-outs, derogations or long periods of transition, what is new is that the rules are spelled out explicitly for the first time.
It is striking, reading the White Paper, how much the principle of flexibility pervades the existing and emergent structures of the EU.
Thus it is built into EMU; into the elaborate and ambitious "area of freedom, security and justice" which this treaty will help to construct - insofar as Ireland and the United Kingdom have comprehensive rights to opt in or out of its provisions; and enlargement itself will add to the differentiation by opening up the possibility of inner and outer circles of membership.
The majority felt it better, in recognition of these realities, to agree a set of rules to govern the phenomenon, rather than see it develop unregulated outside the treaty framework.
The Government was among the most anxious to avoid this outcome, for fear it could threaten the EU's unity, or marginalise states not participating in all its structures. Although Ireland will be in EMU, it is not involved in the Schengen agreement or the emerging security and defence core group.
Three sets of rules are spelled out in the treaty and detailed in this White Paper. Eight general provisions are laid down. The closer co-operation must be aimed at furthering the objectives of the EU, must respect the principles of its treaties and be used only as a last resort. It should not affect the EU's accumulated body of decisions and legislation, should be open to all member-states and should not affect the competences, rights, obligations and interests of non-participating member-states.
Within the supranational or Community section of decisionmaking, the so-called "First Pillar", the White Paper explains that the flexibility must not concern or affect areas of exclusive Community competence, EU citizenship or discriminate between nationals of member-states. Nor can it go beyond the limits of Community powers or constitute a restriction of trade.
In the field of justice and home affairs, the "Third Pillar", there is also provision for flexible decisionmaking.
Rules for closer co-operation are not laid down in the Common Foreign and Security Policy (CFSP) or defence areas, the "Second Pillar", since, as the White Paper puts it: "The new `constructive abstention' procedure makes it unnecessary".
Although this term is not itself used in the treaty, it would allow a member-state to declare formally when a foreign policy proposal is being adopted that it will permit it to go ahead "as a decision committing the Union, but that it will not itself be bound to apply it".
Qualified majority voting is allowed at the level of implementing common strategies or actions within CFSP. But there is provision for an emergency brake principle, according to which any member-state may declare that "for important and stated reasons of national policy" it refuses to allow such majority voting to go ahead, unless it is affirmed unanimously at the levels of head of state or government.
The White Paper observes: "The net effect of this provision is that a member-state which is strongly opposed to a decision which would otherwise be taken by qualified majority may block it in the last analysis but in order to do so may need to maintain its opposition at summit level".
This procedure was regarded as such an important protection for dissident states that it is also built into the flexibility provisions in the other two pillars.
