In addition to the copperfastening of fundamental rights Amsterdam takes an important step towards a collective EU approach to the movement within and into the EU by citizens and non-citizens alike.
Much of the provisions for internal free movement and for a common approach to external frontiers had been dealt with until now by 13 member states under the ambit of the Schengen Treaty outside the framework of the Union. Amsterdam brings the Treaty into the Union.
This provided for passport-free travel between the Schengen states and a wide range of necessary "flanking measures" such as a computer information system, police co-operation, and strict common rules covering procedures at external frontier posts. Incorporation of the flanking measures has meant translating into the treaty some 1,500 pages of rules and procedures of Schengen "acquis" (see panel).
Amsterdam strengthens the EU commitment to free movement with a new treaty objective "to maintain and develop the Union as an area of freedom security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration, and the prevention and combating of crime".
But the removal of internal borders within the EU was problematic to both the UK and Ireland. Britain insisted that as an island it was more effective and culturally acceptable to maintain border checks at ports and airports than to institute a system of identity cards and random internal checks. Ireland, sharing a common travel area with the UK, and with 70 per cent of those leaving the country going to or through British jurisdiction, was concerned not to see frontier checks re-established on the Newry Road. That would have been inevitable if Ireland but not the UK had signed up to the Schengen provisions.
Both countries' special position are recognised in the treaty which also allows them to opt out of the Schengen provisions. A subsequent opt-in to all or part of the provisions is also provided for and an Irish declaration makes clear that Ireland wishes to participate in as much of the Schnegen co-operation as possible and that its inability to do so fully relates to the desire to preserve the common travel area with Britain.
Visas, immigration, and asylum
While the Union has not succeeded in becoming a single travel area, Amsterdam does bring firmly under collective EU control the question of who should be allowed into the Union and what measures should be applied to control the external frontiers.
In a significant constitutional development, visa, immigration and asylum policies are brought from the realm of intergovernmental matters, "Third Pillar", into the Community sphere, "First Pillar".
Amsterdam provides that the Council of Ministers will have the power to make rules on: which member state is responsible for dealing with asylum requests, rules for short-term visas, lists of countries whose citizens will not require visas, minimum standards for the temporary protection of refugees, the promotion of a kind of burden-sharing on refugees - "a balance of effort" - and the definition of conditions under which non-nationals residing in member states can move or live freely from state to state.
Most of the work on such rules is to be done within five years but "burden sharing" and the rules covering rights of long-term non-national residents are not covered by a time limit. The treaty also allows the streamlining of judicial co-operation, e.g. on the service of legal documents, taking of evidence, recognition of decisions in civil and commercial cases, and resolving problems arising from a conflict of laws.
A dispute over decision-making in this area was resolved by a complex compromise:
certain visa decisions will be taken by qualified majority from day one;
otherwise no basic change in unanimity voting for five years, but an increased role for the Commission and the Parliament;
after five years the Commission is given the sole right of initiative;
all other visa issues will then be resolved by qualified majority;
the Council will decide by then by unanimity which other decisions have to be made by qualified majority and the new scope of the powers of the European Court of Justice.
The UK and Ireland retain the right to opt out of such decisions.
Police and justice co-operation in criminal matters
Amsterdam elaborates in treaty form the extensive existing co-operation between member states on crime, specifically emphasising the fight against terrorism, drugs, organised crime and trafficking in women and children.
But, unlike co-operation in economic policy, there is little pooling of sovereignty here, in the Third Pillar, with each member state retaining control over its own police and judicial processes and its own responsibility for national law and order.
Most of the content of this section of the treaty was already sanctioned in un-elaborated form by Maastricht and was part of a programme of action agreed under the Irish Presidency. This includes strengthening co-ordination and exchanges between police and customs forces and judicial authorities, and the strengthening of the remit of the Union's police intelligence and co-ordination centre, Europol, based in The Hague.
This will allow Europol to support and co-ordinate joint police operations, to co-ordinate requests between member-states for information and help with cross-border investigations, to develop new expertise, and to set up a research database and network on cross-border crime.
Amsterdam also involves "approximation" rather than the harmonisation of laws in different member states to make it easier for courts to recognise and apply the decisions taken in other member states while preserving for each the right to shape their laws as they see fit.
Member states promise to facilitate access to each others' administrations, to make extradition between member states easier by approximating procedures, and to move to set minimum sentences for particular types of crime.
Member states are also given the option of accepting the jurisdiction of the European Court of Justice in disputes over the meaning of this section. But the court will have no jurisdiction over the validity or proportionality of acts carried out by police or other member state authorities (although a challenge on such grounds can be mounted to the European Court of Human Rights in Strasbourg). The treaty allows the Council of Ministers to agree by unanimity the conditions under which police and other law enforcement agencies might be allowed to operate in the territory of another state in liaison with it and with its permission.
In a related provision the Schengen Treaty encourages member states to reach bilateral agreements with each other over the specific extent to which each may allow "hot pursuit" into their territory. Decision-making in the Third Pillar remains by unanimity with two minor exceptions. Unlike the First Pillar, decisions taken in this area do not have "direct effect" - although they may bind member states to enact changes, they do not endow citizens directly with rights or give them the right to sue at European level.
Asylum from another member state
A controversial attempt was made by Spain to insist that, as democracies all enjoying the rule of law, no EU state should give political asylum to a refugee from a fellow member state. Others insisted that they should retain the discretion and that to do otherwise would undermine obligations under the 1951 UN Geneva Convention.
In the end a protocol was agreed which requires member states to regard each other as "safe countries of origin" . Requests for asylum should thus only be considered if the state of origin has derogated from international human rights obligations or been found to be "in serious and persistent breach" of democratic standards.
In the event of a state wishing to consider an application in other circumstances, the state of origin may appeal to the Council of Ministers. The latter shall deal with the application "on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the case may be, the decision-making power of the member state" .
All 15 also sign a declaration that insists the protocol does not undermine UN treaty rights, but international human rights organisations insist that that clause does weaken the right of all applicants for asylum to have their case considered individually.