While the debate on the agenda of the 1996 Intergovernmental Conference (IGC) continues, while conflicting proposals from one to the other extremes are being circulated, a clear indication, if not a definite answer, to what will be on the agenda of the IGC may be found in the Treaty itself.
1. As already qualified by the European Court of Justice, the Treaty of the European Economic Community formed the constitutional charter of the European Economic Community (see Case 294/83 Parti écologiste 'Les Verts' v European Parliament, ECR [1986] 1339, para. 23; Opinion 1/91 (EEA Agreement), ECR [1991] 6079, para. 21).
The same qualification could be applied mutatis mutandis to the Treaty on European Union. As all constitutions, the Treaty on European Union stipulates the conditions for its amendment.
Article N(1) defines the following procedure for amending the Treaty.
a) Submission of a proposal to the Council by a government of any Member State, or the Commission;
b) Consultation by the Council with the European Parliament and, where appropriate, the European Commission as well as the European Central Bank in the case of institutional changes in the monetary area;
c) Favourable opinion of the Council for calling a conference of representatives of the governments of the Member States;
d) Invitation to convene the Conference by the President of the Council;
e) Adoption of the amendments by common accord;
f) Ratification by all Member States in accordance with their constitutional requirements.
It is certainly a quite cumbersome procedure and based on a provision of the Treaty which by its very nature has to be interpreted narrowly (stricto sensu).
The possibility of amendment remains thus an open option each time a Member State or the Commission considers it opportune.
2. The 1996 IGC, however, was already foreseen in the Treaty on European Union itself. According to Article N(2):
'A conference of representatives of the governments of the Member States shall be convened in 1996 to examine those provisions of this Treaty for which revision is provided, in accordance with the objectives set out in Articles A and B.'
The fact that the constitutional legislators of the Treaty on European Union felt the need to foresee a particular conference on a precise date, a few years after the ratification of the new Treaty, automatically puts this IGC into a different context than an ordinary amendment according to Article N(1), in both legal and factual terms.
The reason for this special revision lies in the character of the Treaty of Maastricht - it contains compromises relating to several issues such as the Common Foreign and Security Policy (CFSP) and the Social Policy.
The constitutional legislators of the Treaty, aware of its shortcomings, reasoned that it would be appropriate to revise the Treaty after some years of experience with it.
It was never the intention to review the Treaty in its entirety. That is the reason why the Heads of State and Government in Article N(2) have been precise about the time of the IGC and, most important, they have delineated the extent (those provisions of this Treaty for which revision is provided) and the depth of the amendments by explicitly calling upon the objectives set out in Articles A and B.
Consequently, there is an obligation to convene a IGC in 1996, irrespective of the time its work concludes. There is a prefixed agenda and objectives to be respected. In this latter context, of the provisions of the Treaty, Articles A and B are supraconstitutional (along these lines, see Opinion 1/91 supra).
3. In the light of the abovementioned interpretation, the agenda of the 1996 IGC should be as follows:
a) Revision of policies and forms of cooperation: only those policies and forms of cooperation introduced by the Treaty on European Union may be reviewed. Those revisions should aim, in the first place, to ensure the effectiveness of the mechanisms and the institutions of the Community (see Article B(5) TEU).
This is of course a quite broad definition, providing the possibility of dealing with numerous policy areas such as European citizenship, visa policy, education, culture, public health, consumer protection, trans-European networks, industry, development cooperation, etc.
However, the main concern is obviously to improve and increase the effectiveness of the institutional set-up of the European Union, particularly in view of its expected enlargement. Conscious of the possible diluting effects of further enlargement on the process of European integration, Article B(5) refers to the need to maintain in full the acquis communautaire.
Consequently, items on the agenda could include questions such as the composition of European institutions, the role of the Presidency of the Union and the question of the number of official languages.
b) Extension of the scope of the co-decision procedure:
Article 189b(8) stipulates that:
'The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.'
c) Common Foreign and Security Policy (CFSP)
According to Article J.4(6): 'With a view to furthering the objective of this Treaty, and having in view the date of 1998 in the context of Article XII of the Brussels Treaty, the provisions of this Article may be revised as provided for in Article N(2) on the basis of a report to be presented in 1996 by the Council to the European Council, which shall include an evaluation of the progress made and the experience gained until then.'
In addition Article J.10 states that: 'On the occasion of any review of the security provisions under Article J.4, the Conference which is convened to that effect shall also examine whether any other amendments need to be made to provisions relating to the common foreign and security policy.' Both provisions open the possibility of re-examining relations between the CFSP and the European Union, in other words the relationship between the first and the second pillar, the gradual communitarization of the second pillar by the introduction of qualified majority voting, the relationship between the EU and the WEU, as well as the question of the development of the European defence identity.
d) Declaration on civil protection, energy and tourism (Declaration No. 1):
This declaration foresees the possibility of the {1}996 IGC introducing new provisions into the Treaty, with regard to civil protection, energy and tourism.
e) Declaration on the hierarchy of Community acts (Declaration No. 16):
This declaration asks the IGC to examine the extent to which it might be possible to review the classification of Community acts.
CONCLUSION
It is obvious that the above points already form a very heavy agenda. Theoretically, the position could be maintained that more items may be included in the agenda regardless of whether their inclusion is realistic. In such a case:
a) the procedure of Article N(1) should be followed;
b) the items originally foreseen in the Treaty have to be discussed first and concluded before entering into other areas for amendment;
c) as regards the issues originally foreseen by the Treaty, respect for Articles A and B has to be compulsory.
That means that when debating Articles foreseen for amendment in the Treaty, such as the institutional set-up, CFSP, or co-decision, the Member States should aim at an ever closer union, organizing the Union in a way which demonstrates consistency and solidarity. They should set as objectives economic and social progress, Economic and Monetary Union, the assertion of the Union's identity on the international scene, the strengthening of European citizenship, the further development of cooperation in the field of justice and home affairs, maintenance of the acquis communautaire, all of them in accordance with the principle of subsidiarity.
Certainly, the laying down of the IGC's agenda and the amendments to the Treaties are questions of purely political character. However, the Treaty itself is a legal instrument reflecting political agreements and, therefore, respect for the Treaty not only means respect for its constitutional legality, but also its political consistency.