EXPLANATORY REPORT FROM THE GENERAL SECRETARIAT OF THE COUNCIL ON THE SIMPLIFICATION OF THE COMMUNITY TREATIES (1) (97/C 353/01)

1. This report seeks to explain the results (as contained in the second part of the Amsterdam Treaty (2), Articles 6 to 8) of the exercise carried out by the Inter-Governmental Conference to simplify the Community Treaties. It contains a number of general remarks and a brief article-by-article commentary on the amendments made to the Treaties. It also contains a commentary on Articles 9, 10 and 11 of the Amsterdam Treaty.

I. GENERAL REMARKS

2. The aim of the exercise was to improve the readability of the Community Treaties by repealing and deleting obsolete provisions. It was therefore necessary to proceed 'on the basis of established law`, making no changes to the existing legal situation. The Conference did not seek to produce a redraft of the Treaties - which would no doubt have made them more readable but might have undermined the acquis communautaire and reopened the debate on provisions that had been the subject of detailed negotiations in the past. The drafting changes that were made are therefore very restricted and were prompted by the need in some cases to adjust the wording used by the Treaties because of the deletion of obsolete provisions. Only in exceptional cases, which are indicated in this report, did the Conference see fit to amend certain formulations in the Treaties in order to improve the drafting.

3. The simplification exercise was concerned with the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, and also the Annexes and Protocols thereto. It was carried out by amending these Treaties, not by replacing them with new ones. Owing to their nature, the declarations contained in the various Final Acts, drawn up when the Treaties or the various revisions were established, were not examined. The existence of these declarations is a historical fact and they frequently draw their significance from the Treaty provisions to which they refer. Where one of these provisions has become obsolete and is deleted, the declaration loses its significance. Thus the Conference saw no need to address this point. Similarly, the Accession Treaties were not affected by the exercise and maintain their own existence. Nor would the readability of the Treaties have been improved by inserting provisions of the Accession Treaties which are frequently of a transitional or extremely specific nature.

4. Furthermore, to clarify and simplify the existing texts relating to the single Community institutions, the Convention of 25 March 1957 on certain institutions common to the European Communities and the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (Merger Treaty) have been repealed. Their content has for the most part been incorporated in Article 9 of the Amsterdam Treaty. The Protocol of 8 April 1965 on the privileges and immunities of the European Communities, as amended by Protocol 7 to the Treaty establishing the European Community (which adds the European Central Bank and the European Monetary Institute to the list of institutions and bodies concerned) has been maintained, despite the repeal of the Merger Treaty to which it is annexed.

5. The effects of simplification across the board had to be made clear. The aim of simplification was clearly not to amend the acquis. In addition, it had to be ensured that the deletion of obsolete provisions stipulating time limits for the implementation of certain Community measures would not result - where the stipulated obligations had not all been fulfilled - in a situation where an argument based on non-compliance with a time limit could not be put to the Court of Justice. This risk was particularly great in that, for political reasons, references to certain time limits, such as the one provided for in Article 7a and those applying to economic and monetary union, were being maintained in the EC Treaty. Finally, it was important to obviate the possibility of the deletion of obsolete provisions giving rise to doubts concerning the retention of acts of secondary law based on such provisions. Thus Article 10 of the Amsterdam Treaty provides that the repeal or deletion of obsolete provisions or the adjustment of certain provisions will not affect:

- the legal effect of such provisions,

- the time limits laid down in such provisions,

- the Accession Treaties,

- the legal effect of acts adopted on the basis of such provisions.

Accordingly, the results of the simplification cannot be interpreted as calling these effects into question. Article 10 excludes any interpretation that might ascribe to the simplification a scope which it did not have. Moreover, the Declaration on Article 10 of the Amsterdam Treaty specifies the exact scope of the simplification and explicitly rules out any calling into question of the acquis communautaire.

II. ARTICLE-BY-ARTICLE COMMENTARY ON THE SIMPLIFIED PROVISIONS

A. Treaty establishing the European Community (Article 6 of the Amsterdam Treaty)

When it came into force on 1 January 1958, this Treaty stipulated, for the establishment of the common market, a transitional period of 12 years, divided into three stages of four years each (expiring respectively on 31 December 1961, 31 December 1965 and 31 December 1969). The major part of the simplification exercise with regard to this Treaty involved the deletion of the provisions relating to that initial transitional period. The general approach was to delete any reference to time limits which had expired or provisions which had become obsolete.

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B. Treaty establishing the European Coal and Steel Community (Article 7 of the Amsterdam Treaty)

This Treaty included various transitional measures for setting up the common market in coal and steel. These measures were grouped together in a Convention annexed to the Treaty. The use of this legislative method meant that the Treaty establishing the ECSC contained far fewer transitional provisions that have become obsolete than the EC Treaty did. The transitional period specified for setting up the common market was five years from the Treaty's entry into force, which meant it expired on 23 July 1957. As with the EC Treaty, the general approach regarding the ECSC Treaty was to delete any reference to time limits that had expired or provisions that had become obsolete. This simplification exercise was of a purely technical nature. It does not affect any measures that might be taken in the context of the ECSC Treaty's expiry on 23 July 2002, i.e. 50 years after it came into force.

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C. Treaty establishing the European Atomic Energy Community (Article 8 of the Amsterdam Treaty)

Like the other Treaties, this Treaty laid down a number of transitional provisions for the introduction of various measures. These transitional provisions were grouped mainly in a single title (Title VI) at the end of the Treaty. The use of this legislative method meant that the Euratom Treaty contained far fewer transitional provisions that eventually became obsolete than the EC Treaty did. As with the EC Treaty, the general approach regarding the Euratom Treaty involved deleting any reference to time limits which had expired or to provisions which had become obsolete.

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III. COMMENTARY ON THE OTHER PROVISIONS OF THE AMSTERDAM TREATY RESULTING FROM THE SIMPLIFICATION OF THE TREATIES

A. Article 9 of the Amsterdam Treaty (single institutions)

As indicated above, in point 4 of the General Remarks, in order to clarify and simplify the existing texts relating to the single Community institutions, the Convention of 25 March 1957 on certain institutions common to the European Communities and the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (Merger Treaty) have been repealed. Their essential elements are contained in Article 9 of the Amsterdam Treaty. The Protocol of 8 April 1965 on the privileges and immunities of the European Communities, as amended by Protocol 7 to the Treaty establishing the European Community (which adds the European Central Bank and the European Monetary Institute to the list of institutions and bodies concerned) has been maintained, despite the repeal of the Merger Treaty to which it was annexed. A commentary on each paragraph of this Article is given below:

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The remaining provisions of the Convention of 25 March 1957 and the Merger Treaty of 1965 were regarded as being obsolete and have not been included in Article 9 of the Amsterdam Treaty.

B. Article 10 of the Amsterdam Treaty (maintenance of the legal effects of deleted or adjusted provisions)

As indicated above, in point 5 of the General Remarks, Article 10 of the Amsterdam Treaty seeks to clarify the horizontal effects of the simplification exercise, i.e. it does not aim to amend the acquis, the deletion of obsolete provisions laying down time limits for the completion of certain measures by the Community will not prevent an argument being put to the Court of Justice on the basis of non-compliance with a deadline, and it does not have any effect as to the maintenance of acts of secondary law based on such provisions. Article 10 of the Amsterdam Treaty thus provides that the repeal or deletion of obsolete provisions or the adjustment of certain provisions will not affect:

- the legal effect of such provisions,

- the time limits laid down in them,

- the Accession Treaties,

- the legal effect of acts adopted on the basis of such provisions.

Thus the results of the simplification exercise cannot be interpreted as calling such effects into question. Article 10 excludes any interpretation that might ascribe to the simplification a scope which it did not have. Moreover, the declaration on Article 10 of the Amsterdam Treaty specifies the exact scope of the simplification and explicitly rules out any calling into question of the acquis communautaire.

This Article also applies with regard to the repeal of the Convention of 25 March 1957 on certain institutions common to the European Communities and of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (Merger Treaty).

C. Article 11 of the Amsterdam Treaty (jurisdiction of the Court of Justice)

This Article is drawn from Article 30 of the Merger Treaty which provides that the provisions of the Treaties relating to the jurisdiction of the Court of Justice shall also apply to the provisions of the Merger Treaty and to the Protocol on the privileges and immunities of the European Communities. It was decided that such jurisdiction should extend not only to Article 9, which incorporates the substance of the provisions relating to the single institutions, but also to the provisions on the simplification of the Treaties (Articles 6 to 8), to Article 10 which specifies the scope and the effects of the simplification exercise, and to Article 11 itself which concerns the jurisdiction of the Court of Justice.

IV. INSERTION OF THE CONSOLIDATED TEXT OF THE EC TREATY AND OF THE TREATY ON EUROPEAN UNION IN AN ANNEX TO THE FINAL ACT OF THE AMSTERDAM TREATY

To enable the reader to obtain a precise idea of the result of the various amendments stemming from the Amsterdam Treaty, both the substantive amendments and those occasioned by the simplification exercise, it has been decided that a consolidated version of the EC Treaty should be attached for illustrative purposes to the Final Act of the Amsterdam Treaty.

A consolidated version of the Treaty on European Union also appears, for illustrative purposes, in an Annex to the Final Act.

Provision for the insertion has been made in the Final Act.

(1) This report has been drawn up under the responsibility of the General Secretariat of the Council of the European Union.

(2) OJ C 340, 10. 11. 1997.