Monday, 14 January 2008

EU Treaty of Lisbon: Operational CFSP decisions

Well-meaning declarations are not enough, if the European Union wants to make this world a safer place. Concrete, operational action is needed. These decisions are presently known as joint actions. If the Lisbon Treaty enters into force, these decisions will be known as decisions.

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The existing Article 14 Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006 C 321 E) says:

“Article 14

1. The Council shall adopt joint actions. Joint actions shall address specific situations where operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
2. If there is a change in circumstances having a substantial effect on a question subject to joint action, the Council shall review the principles and objectives of that action an take the necessary decisions. As long as the Council has not acted, the joint action shall stand.
3. Joint actions shall commit the Member States in the positions they adopt and in the conduct of their activity.
4. The Council may request the Commission to submit to it any appropriate proposals relating to the common foreign and security policy to ensure the implementation of a joint action.
5. Whenever there is any plan to adopt a national position or take national action pursuant to a joint action, information shall be provided in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of Council decisions.
6. In cases of imperative need arising from changes in the situation and failing a Council decision, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of the joint action. The Member State concerned shall inform the Council immediately of any such measures.
7. Should there be any major difficulties in implementing a joint action, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the joint action or impair its effectiveness.”

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In Article III-198 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169) the Convention used the term ‘European decision’ instead of ‘joint action’, but there was little substantive change. This was taken over in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-297.

In the Reform Treaty there are no ‘European decisions’, nor are there ‘joint actions’, just ‘decisions referred to in paragraph 1'.

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A few remarks by your glossator:

Formally, there may be reasons to have just ‘decisions’, but in practice there is a need for descriptive terms. If there are no ‘joint actions’ or ‘common positions’, these have to be described in another manner.

Well, what are these ‘joint actions’ or operational decisions?

Some examples: The Council has lately repealed its joint action on the EU civilian-military supporting action to the African Union missions in the Darfur region of Sudan and in Somalia, published an annual report on the joint action to combat the spread of small arms and light weapons, amended the joint action extending the mandate for the EU Special Representative for Sudan and amended its joint action on establishing an EU Border Assistance Mission for the Rafah Crossing Point.

Concrete action, on the ground; these terms give an indication of what is meant by operational decisions.

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The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 14 TEU. The consolidated version of Article 14 TEU should read like this:

“Article 14

1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.

If there is a change in circumstances having a substantial effect on a question subject to such a decision, the Council shall review the principles and objectives of that decision and take the necessary decisions.

2. Decisions referred to in paragraph 1 shall commit the Member States in the positions they adopt and in the conduct of their activity.

3. Whenever there is any plan to adopt a national position or take national action pursuant to a decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of Council decisions.

4. In cases of imperative need arising from changes in the situation and failing a review of the Council decision as referred to in paragraph 1, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of that decision. The Member State concerned shall inform the Council immediately of any such measures.

5. Should there be any major difficulties in implementing a decision as referred to in this Article, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the decision referred to in paragraph 1 or impair its effectiveness.

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Our next stop will be decisions of the kind until now called common positions.


Ralf Grahn