A safe Europe a priority Denmark has opted out of

The government of Denmark offers four wide headings as its priorities for the first six months of Council life in the European Union 2012:

A responsible Europe (see Grahnblawg in Swedish and Eurooppaoikeus in Finnish)

A dynamic Europe (see Grahnlaw in English and Eurooppaoikeus in Finnish)

A green Europe (see Grahnblawg in Swedish)

A safe Europe

As we see, A safe Europe is one of the four priorities of the Danish presidency of the Council of the European Union, and the one we have not looked at yet. The programme:

Europe at work: Programme of the Danish Presidency of the European Union 2012, 1 January to 30 June 2012 (61 pages)

The programme is available in Danish, French and German as well, through the presidency web pages.


A safe Europe

The presidency programme dedicates the pages 19-22 to the security theme. Many of the concrete issues are within three of the Danish opt-outs, namely defence policy, justice and home affairs and EU citizenship.

With only slight exaggeration we can say that a safe Europe is a Danish priority Denmark has opted out of.

Here are the questions covered by the safety priority:

Both wide and complex are the issues related to area of freedom, security and justice (AFSJ), or often justice and home affairs (JHA) in British parlance, including cross-border crime, external security threats (terrorism), criminal proceedings, support for victims of crime, migration policy (integration), asylum (EASO), external borders (Frontex) and free movement across internal borders.

This section deals with food safety and cross-border health threats as well.

The risk of natural and man-made disasters requires both prevention and civil protection responses.

At the macro level EU enlargement (Copenhagen criteria plus absorption capacity mentioned) and the implementation of the neighbourhood policy of the union both in the east and the south are recalled in this respect.

Denmark wants to strengthen common representation of the EU internationally by the president of the European Council (Herman Van Rompuy) and the high representative (Catherine Ashton).

The programme wants to improve the link between the EU's humanitarian aid and long-term development programmes, striving to move towards a more global sustainable economy.

If there was anything about the need for a European defence, I must have missed it.

***

After the general part with the priorities, the presidency programme becomes more detailed when it turns to the main tasks of the different Council configurations (from page 23). Recommended reading for those who want to dig deeper in a specific area.



Ralf Grahn

Military: Yankees go while European leaders sleep

And it came to pass in those days, that there went out a decree from president Barack Obama that private Ryan and his comrades should redeploy to Asia, where the action is going to be.

The strategy document Sustaining U.S. Global Leadership: Priorities for 21st Century Defense tells us that in keeping with this evolving strategic landscape, our (US) posture in Europe must also evolve (meaning far less men and weapons in Europe). This can hardly come as a surprise to even the most casual of news followers.

While both sides want to maintain the NATO alliance, this long expected move leaves European leaders naked with regard to the state of EU foreign, security and defence policy, especially their inability to even begin the construction of a common European defence.

Since a press statements on every mishap in the world seems to be the extent of EU foreign policy, perhaps the high representative Catherine Ashton could crank out a few lines to let the heads of state or government continue sleeping on the job(?)


Update 11 January 2012: Analysis from Reuters on the state of European thinking and action on common defence.



Ralf Grahn

Sweden in Europe: EU defence cooperation?

The Swedish prime minister Fredrik Reinfeldt read the Statement of Government Policy at the opening of the parliament (Riksdag) 15 September 2011.

It left me wondering if the government's short descriptions of its EU policies were accurate, or if consumers of public information should be offered some additional facts and viewpoints.

Three paragraphs positioned Sweden in the European Union. The first one is relevant to security and defence.


Solidarity clause

Prime minister Reinfeldt alluded to the solidarity clause, Article 222 TFEU, which entered into force with the Lisbon Treaty. Sweden is ready to help its Nordic partners as well, if struck by a disaster or attacked. Sweden expects reciprocity:

It is clear that our country will not remain passive should another EU Member State or another Nordic country be struck by disaster or attacked. By the same token, there is an expectation that these countries take similar action should Sweden be so affected.

Defence policy

However, who would wait until an armed attack has taken place? Military cooperation and preparation are better done well in advance (Si vis pacem, para bellum), hopefully preventing military aggression from taking place.

Thursday to Friday (22-23 September 2011) the defence ministers of the EU member states meet informally in Wroclaw, Poland, to discuss the priorities of the Polish Council presidency in terms of the military aspect of common security and defence policy, CSDP issues in general and the working schedule for the next six months.

In addition to military engagements elsewhere, the ministers of defence are expected to discuss issues having a bearing on the progressive framing of a common defence policy, ultimately leading to a common defence (Article 42 TEU):

* Work progress related to the development of the EU military potential
* Weimar Triangle initiative
* the “pooling and sharing” mechanism
* relations of the EU and its international partners as part of the CSDP
* relations with other organisations (NATO, UN, and the African Union)

France, Germany and Poland (the Weimar Triangle) have been joined by Italy and Spain to propose the establishment of an operational military headquarters (OHQ), through permanent structured cooperation following the veto by the United Kingdom.

A new EU defence core seems to be in the making, but I found no government information about how Sweden and Finland are going to act, nor how the Swedish minister of defence Sven Tolgfors or the Finnish minister Stefan Wallin are going to contribute to the discussion and the initiative.

Leaving the public in the dark seems a wee bit negligent.



Ralf Grahn

EU permanent structured cooperation: operational military headquarters OHQ

After the UK veto against a permanent military headquarters for the European Union, is a new EU core taking shape through the establishment of permanent structured cooperation in the context of the common security and defence policy (CSDP)?

The British veto resulted in a letter from France, Germany, Italy, Poland and Spain to the EU high representative Catherine Ashton to explore ways to make progress.


Group of five

Bruxelles2 noted that the foreign ministers of Italy and Spain publicly confirmed that they adhere to the proposal by France, Germany and Poland to establish a military HQ for Europe. Following the UK veto, the new letter demands action from the high representative Catherine Ashton. According to Nicolas Gros-Verheyde, everyone knows that the counter-argument about duplicating NATO structures is rubbish: Le club des 5. Espagne et Italie rejoignent le trio de Weimar sur le QG européen (3 September 2011).

Interestingly, the Polish press release about the informal (Gymnich) meeting of the foreign ministers does nothing to enlighten us about the development of defence policy or the initiative by the group of five countries: Informal meeting of the Ministers of Foreign Affairs of the EU Member States (undated).

On EUobserver, Andrew Rettman reported on the call for action: Group of five calls for EU military headquarters (9 September 2011)

The Spanish Europa451 website published an article with some details about the letter from the five countries – France, Germany, Italy, Poland and Spain – to the high representative Catherine Ashton: España y cuatro países piden crear un ejército europeo (9 September 2011).


Public Service Europe

Yesterday on Public Service Europe, Hylke Dijkstra argued that Europe needs permanent military capabilities to respond quickly to international events, while creating efficiencies for member states; in the blog post: Why the EU needs a military headquarters (12 September 2011).


Egmont

The ideas about an operational HQ have been around before the letter from France, Germany, Italy, Poland and Spain.

Sven Biscop and Jo Coelmont (Editors): Europe deploys towards a civil-military strategy for CSDP (Egmont paper 49, June 2011) suggested:

The EU could be the first to create a permanent civilian-military Operational Headquarters (OHQ), in Brussels, which could plan for and conduct both civilian and military operations and, allowing for close interaction with all relevant EU actors, could implement a truly comprehensive approach to crisis management.

SWP

Here is a description (in German) of permanent structured cooperation in the Treaty of Lisbon.

Christian Mölling described the only concrete security and defence policy reform of the Lisbon Treaty, in: Ständige Strukturierte Zusammenarbeit in der EU-Sicherheitspolitik (SWP-Aktuell 2010/A 13, Februar 2010, 4 Seiten).


Need for European action

With or without the help of the EU institutions and the national governments, there is the need for a truly European debate about the strategic defence choices concerning all citizens. Here are a few of my blog posts about the issues and the need for action.

Grahnlaw: EU military headquarters – CSDP permanent structured cooperation (9 September 2011)

Grahnlaw Suomi Finland: Finland and non-aligned in EU: With UK or Europe on defence? (9 September 2011)

Grahnlaw Suomi Finland: EU common defence: Military HQ first choice (10 September 2011)

Grahnlaw: Common European defence: some questions (10 September 2011)

Grahnlaw Suomi Finland: Rejoice! EU CSDP transparency & European Year of Citizens (11 September 2011)

Grahnblawg (in Swedish): EU: JA eller NEJ till permanent strukturerat militärt samarbete? (12 September 2011)



Ralf Grahn

Common European defence: some questions

In the blog post EU common defence: Military HQ first choice we continued to look at the main groups of European Union members with regard to military cooperation.

Few political developments are as self-evident as a common European defence, until European politicians get involved.


Coulisses de Bruxelles

Last spring, Jean Quatremer on the Coulisses de Bruxelles blog painted a woeful background picture of how the EU governments lack the military resources and the political will to achieve results in the military field: Quelle défense pour l'Europe et pour la France ? (18 April 2011)


European Geostrategy

On the European Geostrategy blog, Sarwar Kahmeri argued that the answer to NATO’s woes is to bridge the alliance with the European Union’s common security and defence policy, and shift the responsibility for the defence of Europe and its periphery to the European Union: CSDP – the Atlantic Alliance's Saviour? (27 April 2011)


Bruxelles2

Nicolas Gros-Verheyde on the Bruxelles2 blog, dedicated to EU foreign, security and defence policy, noted the Europe day speech of commissioner Michel Barnier at the Humboldt University in Berlin: Barnier rallume la flamme de la Communauté de la Défense ! (9 May 2011)

There is an English version of the speech 'Towards a New Europe' (SPEECH/11/317), where Barnier discussed many common challenges. He pleaded for a truly European defence policy:

60 years on, work on a European defence community needs to be restarted, if necessary through the “structured cooperation” which is now possible under the Lisbon Treaty. A true military staff structure, systematically bringing together research efforts and resources, and favouring European products when purchasing equipment. All of this goes far beyond the necessary, but insufficient, cooperation between France and the United Kingdom, or between Germany and Sweden.

***

If there are good reasons for a common European defence, why are we still so far from achieving it?



Ralf Grahn

My Europe Tweets for even better Europe Days

In #MyEurope we don’t have to be dragged closer to the #EU – we are the union


In #MyEurope the right issues are solved at the right level - #EU or national


In #MyEurope #EU citizens have full political rights


In #MyEurope #EuropeDay is an #EU wide public holiday


#MyEurope acts as one #EU internationally


In #MyEurope we defend our currency and territory together


In #MyEurope we have the most modern Bill of Rights (Charter) plus empowerment of #EU citizens


In #MyEurope the internal market becomes a reality


In #MyEurope netizens’ rights are respected


In #MyEurope net censorship proposals are thrown on the scrap heap


In #MyEurope language rights are protected, multilingualism is promoted and everyone learns #English




Ralf Grahn

EU Lisbon Treaty “threatens the transatlantic relationship”

Ahead of the European elections Sally McNamara’s views on the Lisbon Treaty and the transatlantic relationship are worth reading. From the Heritage Foundation’s blog The Foundry: A Lisbon Treaty Retrospective? (Posted May 13th, 2009 at 11.41am)


After discussing legitimacy and support, we turn to the effects of the Treaty of Lisbon on the transatlantic relationship, according to McNamara:

“The Lisbon Treaty ... It also threatens the transatlantic relationship, and underscores the EU’s ambitions to become a global power and challenge American leadership on the world stage.”

***

Transatlantic relationship

The transatlantic relationship includes Canada and the United States on the one shore of the Atlantic, and Europe on the eastern shore. Despite economic competition and occasional spats, they form a community of values with broadly similar interests in the world, including international organisations.

In terms of trade and investment, they are firmly linked. The European Union is central in developing transatlantic and global commercial relations.

The financial and economic crisis highlights the need for coordinated solutions, through international institutions and bilaterally. Challenges like energy security become increasingly important, and global warming threatens the whole planet.

The European Union and its North American partners have shared interests in hosts of other policy areas, ranging from global challenges and organisations to daily contacts between citizens.

Common responses to internal and external security challenges are of fundamental importance. The European Union needs to enhance its capability in the fields of foreign, security and defence policy in order to act more coherently in its neighbourhood and to act more decisively in world affairs alongside the USA.

Most of the European Union’s member states are NATO members and the transatlantic defence alliance continues to be important, for the defence of Europe as well as in the wider world.

In its later days, the previous American administration started to mend some of the fences it had broken. The new US administration under President Barack Obama has sought to find common ground and forge stronger ties with the European Union and its member states, including at the April EU─US summit in Prague.

If anything, I reckon that the US government would be relieved to be able to deal with one Europe. In this respect, the Treaty of Lisbon would bring about minor improvements.

McNamara, on the other hand, has learned nothing. She does not see the European Union as a valuable ally, but as a danger. The Lisbon Treaty threatens her exceedingly narrow view of the transatlantic relationship. Hence, a somewhat more coherent Europe would not be a boon for US interests, but the bane of its domination of the world stage, as she sees it.

Still adversarial to the hilt and exaggerating the importance of the Lisbon Treaty beyond belief, the Heritage Foundation seems set on its course to drive a wedge between the United States of America and the European Union.

***

There are, of course, opponents to the Lisbon Treaty on both sides of the Atlantic. Their motives are seldom expressed as openly as by the Heritage Foundation, but are they less misdirected for that?


Ralf Grahn

NATO & EU: Rewarding freeloading?

Since 1 April 2009 the North Atlantic Treaty Organization (NATO) has the following 28 members: Albania, Belgium, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United Kingdom and the United States.

In part, NATO is larger than the European Union. There are seven non-EU NATO members: Albania, Canada, Croatia, Iceland, Norway, Turkey and the United States.

The remaining 21 are members of both NATO and the European Union. Double membership clearly represents the European mainstream.

Out of a total of 27 current EU member states, only six have left themselves outside NATO: Austria, Cyprus, Finland, Ireland, Malta and Sweden.

These countries represent a fringe within the EU in four respects:

1. Their total population is about 28.2 million, or 5.7 per cent of a total EU population of 495.1 million.
2. Geographically they are more or less on the outer rim of the EU (although Austria has been overtaken and embedded by later entrants).
3. Their definitions of (military) non-alignment or neutrality have kept them outside NATO.
4. Their status with regard to the security and defence aspects of the common foreign and security policy can be described as an opt-out (The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States … ; Article 17 TEU).

To continue the discussion from my post Tony Blair new “EU President?” I ask: How could such a freeloading country (or a representative from one of them) be expected to drive forward a common defence policy and a common European defence?



This is, after all, one of the crucial areas for the European Council, and as such of its coming President.

Do the arguments look different, if we look at the double-hatted High Representative?

Am I being unreasonable or have these countries disqualified themselves from the top jobs under the Lisbon Treaty?

In my humble opinion, responsibilities and rewards should go hand in hand.


Ralf Grahn

EUISS: European Defence Markets

In Towards a European Defence Market (Chaillot Paper No 113, November 2008, 126 pages), published by the European Union Institute for Security Studies (EUISS), four researchers describe the current state of affairs and the prospects for progress.

The publication is available at www.iss.europa.eu and the individual contributions are:

Daniel Keohane: Introduction – Towards a European Defence Market
Erkki Aalto: Interpretations of Article 296
Christian Mölling: Options for an EU regime on intra-Community transfers of defence goods
Sophie de Vaucorbeil: The changing transatlantic defence market

***

Defence transfers

The publication of the EUISS report roughly coincided with the adoption of the new Defence Transfers Directive by the European Parliament.

Christian Mölling’s article, Options for an EU regime on intra-Community transfers of defence goods (page 51 to 88), is a researcher’s assessment of the coming Directive.

Mölling explores the dilemma of national governments caught between economic-industrial challenges and security concerns. He sets out to show the relevance of an intra-EU transfer regime for the European Defence Equipment Market (EDEM), to offer criteria for the viability and efficiency of a potential regime and to evaluate the main options for an intra-European transfer regime for defence goods.

Against the background of fragmented defence markets and national procurement policies, Mölling concludes that the current situation serves neither economic interests nor the security interests of the European defence sector.

The article evaluates the components necessary for a functioning intra-Community transfer system, and it concludes that it is time for the member states to start offering solutions.

Mölling’s analysis is well worth reading.


Ralf Grahn

Is there a European defence market?

Is there a European defence market, or are there 27 national defence markets?
The European Parliament adopted a new Defence Transfers Directive in December 2008 to harmonise the intra-Community licensing systems and a new Defence Procurement Directive in January 2009 to create a “third pillar” for public procurement alongside the general Procurement Directive 2004/18/EC and the special sectors Utilities Directive 2004/17/EC.

The intergovernmental European Defence Agency (EDA) was established by Council Joint Action
2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (published OJEU 17.7.2004 l 245/17) to:

· Develop defence capabilities in the field of crisis management
· Promote European armaments cooperation
· Strengthen the European defence industrial and technological base (DTIB)
· Work for the creation of an internationally competitive European defence equipment market (EDEM)

The Commission’s Defence package included a Communication on the European defence industry COM(2007) 764 final.

***

Depressing results

Despite some progress, the overall assessment is that NATO, the WEU and more recently the European Union have tried for decades to improve multinational armaments cooperation with depressingly little success.

In Towards a European Defence Market (Chaillot Paper No 113, November 2008, 126 pages), published by the European Union Institute for Security Studies (EUISS), four researchers describe the current state of affairs and the prospects for progress.

The publication is available at www.iss.europa.eu and the individual contributions are:

Daniel Keohane: Introduction – Towards a European Defence Market

Erkki Aalto: Interpretations of Article 296

Christian Mölling: Options for an EU regime on intra-Community transfers of defence goods

Sophie de Vaucorbeil: The changing transatlantic defence market


***

Article 296 TEC

In Interpretations of Article 296 (page 13 to 49), Erkki Aalto deals with the unclarity of the derogations offered by Article 296 of the Treaty establishing the European Community (TEC).

The Commission’s Interpretative Communication has tried to put in place some restraints on the member states’ blanket application of the derogations on essential security grounds offered by paragraphs one and two of Article 296, but even the interpretation leaves many crucial issues hanging in the air.

The provision has been left substantially unchanged since 1957 (and the Council Decision of 15 April 1958 listing the arms, munitions and war material is still officially unpublished!), but the world has changed dramatically since then.

Aalto hopes that the ECJ would use the pending customs cases brought against member states to clarify the scope of Article 296 TEC.

In my view, Aalto’s cautious interpretation is a valuable contribution to the discussion, although only his ‘internal market option’ even begins to answer the challenges posed by the rationale behind the European defence industrial and technological base (DTIB) and an internationally competitive European defence equipment market (EDEM).


***

In a wider perspective, Europe is going to continue as a ‘hobbled giant’ as long as it does not create effective EU level powers and democracy in foreign and security policy and defence.



Ralf Grahn

EU Defence Procurement Directive text

The Defence Procurement Directive text P6_TA(2009)0016 approved by the European Parliament 14 January 2009 is available on the EP web site in the official languages of the European Union.

The English version of what officially is going to be known as the Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security, is available here:

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0016&language=EN&ring=A6-2008-0415


The EP amendments have been agreed with the Council, so the contents should be the final ones. While we wait for formal adoption by the Council and publication in the Official Journal of the European Union, with date, number and OJEU number, this is the best text publicly available.


Ralf Grahn

EU defence transfer licenses

The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, creates a common license framework for the member states of the European Union.


In principle, the transfer of defence-related products requires prior authorisation, even between the EU member states.

The member states can exempt certain transfers from the licensing requirement, for instance when the recipient is a government or its armed forces, the EU, NATO and another intergovernmental organisation (Article 4).

When authorisation is needed, the Defence Transfers Directive offers the member states two options aimed at reducing the bureaucracy of individual transfer licenses: general and global transfer licenses.


The following presentation is only a rough sketch. For detail, you have to read the Directive.


***


General transfer licences

Member States shall publish general transfer licences directly granting authorisation to suppliers, established on their respective territories, who fulfil the terms and conditions attached to the licence, to perform transfers of defence-related products to be specified in the licence to a category or categories of recipients located in another member state.

The main aim of the general transfer license is to cover procurement by the armed forces of an EU member state or a contracting authority buying exclusively for the armed forces, but there are other grounds too (Article 5).

***

Global transfer licenses

Global transfer licences are granted for three years, and they can be renewed. The global transfer license covers an individual supplier of products to recipients in one or more EU member states.

The licensing member state determines in each global transfer licence the defence-related products or categories of products covered by the global transfer licence, as well as the authorised recipients or category of recipients (Article 6).

***

Individual transfer licences

If neither a general nor a global transfer license applies, the last resort is an individual transfer license (if any).

The member state grants an individual transfer licence to an individual supplier authorising one transfer of a specified quantity of specified defence-related products to be transmitted in one or several shipments to one recipient in one or more of the following cases:

a) where the request for a licence is limited to one transfer;

b) where it is necessary for the protection of its essential security interests, or for the protection of public policy;

c) where it is necessary for compliance with international obligations and commitments of Member States;

d) where a Member State has serious reasons to believe that the supplier will not be able to comply with all the terms and conditions necessary to grant it a global licence (Article 7).




***


The text of the Defence Transfers Directive, adopted by the European Parliament, is available here:

http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29



Ralf Grahn

EU Law: Defence equipment transfers

Is the European Union causing all the red tape, or could there be other culprits?


***

Defence equipment transfers

The internal market and the emergence of a European Defence Equipment Market (EDEM) is hampered by 27 different national licensing regimes, even between member states of the European Union.

One of the Commission’s cautious steps to improve the prospects for the EU defence industry and to promote a functioning internal market in defence equipment, was to single out intra-EU transfers for a proposed Directive.

In the words of the commission, the objective of the proposal was to reduce the obstacles to the circulation of defence-related goods and services (products) within the internal market, and to diminish the resulting distortions of competition, by simplifying and harmonizing licensing conditions and procedures. In view of the specific features of the defence market and the need to protect national security, the Commission did not propose to abolish licensing requirements but rather to replace them by a streamlined system of general or global licenses, to which individual licensing would remain the exception. Such system would provide guarantees as to the reliability of the recipient to respect restrictions prescribed by the member state of origin.



The proposed Directive on simplifying terms and conditions of transfers of defence-related products within the Community (Brussels, 5.12.2007 COM(2007) 765 final), is available here:

http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf


***

Quick overview


For a quick view of the Commission’s efforts to promote cross-border procurement of member states’ armed forces, there is a four page press release, Commission proposes cutting red tape in EU defence industry (MEMO/07/546, Brussels 5th December 2007):

http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-546_EN.pdf

National red tape is said to cost EU companies and administrations € 433 million directly per year and € 2.73 billion indirectly, although not one of 11500 annual requests for intra-EU transfer licences has been formally denied since 2003.


***

Impact assessment

The proposed Directive on intra-EU transfers was accompanied by two Commission Staff Working Documents. The impact assessment summary SEC(2007) 1574 is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1594:EN:HTML


The longer impact assessment SEC(2007) 1593 is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1593:EN:HTML


The impact assessment and summary lay out the reasons for the proposal and the chosen options.


***

European Parliament

At its first reading on 16 December 2008, the European Parliament approved the proposed Directive with amendments:

http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN


***

Future posts will look at the contents of the proposed Directive on defence-related products.


Ralf Grahn

EU defence industry and market: Is there a future?

A year ago the Commission assessed the prospects of the defence technological and industrial base (DTIB), a prerequisite for the European Security and Defence Policy (ESDP). Little bang for the buck (or euro), was the finding.

While the defence budget of the United States is “only” twice as large as that of the European Union member states combined, the qualitative differences are much greater. Most of the European defence budgets are swallowed by upkeep of national armies. The USA devotes some 35% of its total budget to investment compared to only about 20% in Europe. The US outspends Europe by six to one in defence research and development (R&D).

Moreover, R&D investment in Europe is fragmented along national lines, leading to duplication and waste of scarce resources.

The common European security interests are fulfilled poorly, but in addition fragmented defence industries and markets face a bleak future.


***

European defence industry

Since defence spending and defence industries are largely in the domain of the member states, the Commission in its Defence package chose a cautious approach to improving the situation.


The main findings as well as the reasons for and policy measures for improvement were laid out in the Communication A strategy for a stronger and more competitive European defence industry (Brussels, 5.12.2007 COM(2007) 764 final) and in two accompanying Staff Working Documents, an impact assessment (SEC(2007) 1596) and an impact assessment summary (SEC(2007) 1597).

The documents are available through the Commission’s DG Industry and Enterprise web page Towards an EU Defence Equipment Policy:

http://ec.europa.eu/enterprise/defence/eu_defence_policy.htm

They form the basis for two proposed Directives and a number of issues seen as maturing only in the middle or the long term.

***

Why Europe?

The security and prosperity of EU citizens is the short answer to why we need the European Union (a better EU, for sure). But most people need concrete examples of policies where the nation states are increasingly ill equipped to deliver the public goods on their own and where the European Union can (or could) offer more.

Climate change, energy, financial supervision and the euro have been in the headlines lately. They all show the need for more Europe, not less. Defence and related industries are among the long line of other policy areas, where the needs for improved European policies are compelling.

The Communication on the European defence industry is worth reading, and it will serve as the starting point for a couple of blog posts on the proposed legislative measures, including defence procurement.


Ralf Grahn

EU law: Defence procurement

Military procurement in the internal market can be divided into two groups of materials: 1) arms, munitions and war material, and 2) products not intended for specifically military purposes.

We look at how the EC (EU) Procurement Directive 2004/18/EC deals with military procurement and at the treaty level security derogations. After a look at the (historical) scope of military material and interpretation of member states’ security prerogatives, we summarise some of the latest proposals in the field of defence procurement in the internal market.

The European economic and security interests at stake are huge.



***

Procurement Directive Article 10

The Procurement Directive 2004/18/EC mentions defence procurement under Specific situations. In principle, procurement in the field of defence falls within the scope of the Directive, but subject to Article 296 TEC:

S e c t i o n 2
Specific situations

Article 10
Defence procurement

This Directive shall apply to public contracts awarded by contracting authorities in the field of defence, subject to Article 296 of the Treaty.


***

Article 296 TEC

Article 296 of The Treaty establishing the European Community (TEC) is problematic from a legal point of view. It constitutes a wide derogation from the treaty provisions on grounds of essential national security interests.

Each member state can refuse to supply the European Community (European Union) and the other member states information on grounds of essential security interests, but the refusal requires proper justification.

Article 296(1)(b) deals specifically with defence procurement. The provision distinguishes between the production of and trade in arms, munitions and war material on the one hand, and products not intended for specifically military purposes on the other hand. The latter would seem to be subject to normal competition rules in the internal market.

The second paragraph refers to an initial agreement on the materials covered, but for a long time the list of 15 April 1958 was not even published. In other words, the scope of a vast derogation was not even in the public domain, although it concerned the interests of private enterprises.

The Council can alter the scope of paragraph 1(b) by changing the list by unanimous decision.

Here is Article 296 TEC (ex Article 223) as it was published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/173:

Article 296 TEC

1. The provisions of this Treaty shall not preclude the application of the following rules:

(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.

2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.


***

Lisbon Treaty

If the Lisbon Treaty enters into force, Article 296 TEC would remain intact as Article 346 of the consolidated Treaty on the Functioning of the European Union. The provision would extend the blanket derogation to ‘the Treaties’ and the ‘internal market’ would replace the ‘common market’ according to the horizontal (general) amendments (OJEU 9.5.2008 C 115/194).

Even if shifting global security challenges would tend to emphasise the common security interests of the EU member states, the Lisbon Treaty takes a step in the opposite direction. Article 4(2) of the Treaty on European Union sets out that in particular, national security remains the sole responsibility of each member state.


***


Arms, munitions and war materials

The list of 15 April 1958 was published when the Council replied to a written question in 2001 (OJEC 20.12.2001 C 364 E/85–86). This unorthodox procedure to publish acts with legal implications merits republication of the question and the reply:


(2001/C 364 E/091) WRITTEN QUESTION E-1324/01
by Bart Staes (Verts/ALE) to the Council

(4 May 2001)

Subject: Article 296(1)(b) of the EC Treaty

Pursuant to Article 296(1)(b), Member States are permitted to waive the general principle of competition (Title VI of the EC Treaty) in the case of military procurement. The Council adopted the list of products to which this applies on 15 April 1958.

What products appear on the list of 15 April 1958 to which Article 296(1)(b) refers?

Reply

(27 September 2001)

The list of the arms, munition and war materiel, including nuclear arms, to which the provisions of Article 296 paragraph 1(b) of the Treaty of Rome are applicable is given below.

1. Portable and automatic firearms, such as rifles, carbines, revolvers, pistols, sub-machine guns and machine guns, except for hunting weapons, pistols and other low calibre weapons of the calibre less than 7 mm.

2. Artillery, and smoke, gas and flame throwing weapons such as:

(a) cannon, howitzers, mortars, artillery, anti-tank guns, rocket launchers, flame throwers, recoilless guns;

(b) military smoke and gas guns.

3. Ammunition for the weapons at 1 and 2 above.

4. Bombs, torpedoes, rockets and guided missiles:

(a) bombs, torpedoes, grenades, including smoke grenades, smoke bombs, rockets, mines, guided missiles, underwater grenades, incendiary bombs;

(b) military apparatus and components specially designed for the handling, assembly, dismantling, firing or detection of the articles at (a) above.

5. Military fire control equipment:

(a) firing computers and guidance systems in infra-red and other night guidance devices;

(b) telemeters, position indicators, altimeters;

(c) electronic tracking components, gyroscopic, optical and acoustic;

(d) bomb sights and gun sights, periscopes for the equipment specified in this list.

6. Tanks and specialist fighting vehicles:

(a) tanks;

(b) military type vehicles, armed or armoured, including amphibious vehicles;

(c) armoured cars;

(d) half-tracked military vehicles;

(e) military vehicles with tank bodies;

(f) trailers specially designed for the transportation of the ammunition specified at paragraphs 3 and 4.

7. Toxic or radioactive agents:

(a) toxic, biological or chemical agents and radioactive agents adapted for destructive use in war against persons, animals or crops;

(b) military apparatus for the propagation, detection and identification of substances at paragraph (a) above;

(c) counter-measures material related to paragraph (a) above.

8. Powders, explosives and liquid or solid propellants:

(a) powders and liquid or solid propellants specially designed and constructed for use with the material at paragraphs 3, 4 and 7 above;

(b) military explosives;

(c) incendiary and freezing agents for military use.

9. Warships and their specialist equipment:

(a) warships of all kinds;

(b) equipment specially designed for laying, detecting and sweeping mines;

(c) underwater cables.

10. Aircraft and equipment for military use.

11. Military electronic equipment.

12. Cameras specially designed for military use.

13. Other equipment and material.

14. Specialised parts and items of material included in this list insofar as they are of a military nature.

15. Machines, equipment and items exclusively designed for the study, manufacture, testing and control of arms, munitions and apparatus of an exclusively military nature included in this list.


***

Interpretative Communication


The Commission’s Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement, Brussels, 7.12.2006 COM(2006) 779 final, referred to an annual defence procurement market of € 80 billion, fragmented into national markets.

The Commission recalled two proposals from 2005, saying:

(1) Adoption of an "Interpretative Communication on the application of Article 296 TEC in the field of defence procurement". This Communication will not modify, but clarify the existing legal framework;

(2) Preparation of a possible new directive on the procurement of defence equipment to which the derogation in Article 296 TEC does not apply. This directive could offer new, more flexible rules adapted to the specificities of the defence sector.

The Communication summarises the discussion and ECJ case law on how the member states can exercise their prerogative to interpret their essential security interests, and it sets out guidelines on balancing these essential security interests with fundamental principles of the internal market.


***

Defence package


One of the latest developments is the Commission’s defence procurement package constisting of a Communication on strategy and two legislative proposals.


Strategy proposal


Communication A strategy for a stronger and more competitive European defence industry, Brussels, 5.12.2007 COM(2007) 764 final.

The aim of the Communication is to promote a strong defence technological and industrial base (DTIB) in Europe, as a fundamental underpinning of the European Security and Defence Policy (ESDP). In the Commission’s view, only a competitive DTIB can provide Europe with autonomy, affordability and the ability to cooperate internationally in the development and production of defence equipment.




The Communicatio was accompanied by two proposed Directives:


Intra-EU transfers

The Proposal for a Directive of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, Brussels, 5.12.2007 COM(2007) 765 final.

The aim of proposal is to contribute to the emergence of a European Defence Equipment Market (EDEM) as well as the functioning of the internal market by replacing current national licensing requirements by a streamlined system of general or global licenses, to which individual licensing would remain the exception. The Directive would not affect the arms exports of member states to third countries.

On 16 December 2008 the European Parliament voted in favour of the proposed Directive, with amendments.


Defence procurement


The aim of the proposed directive on defence procurement is to enhance openness and competitiveness of defence markets in the EU taking into account specific features, such as security of supply and security of information. According to the Commission, it will reduce the regulatory patchwork in this field. It will increase competition and transparency and so aid SMEs to find, and bid for, sub-contracts. By providing new rules applicable to the procurement of arms, munitions and war material and to certain sensitive non-military security items, this initiative should further limit the use of Article 296 to exceptional cases as stipulated by the Court of Justice and build upon earlier steps taken by the Commission and the EDA to encourage greater openness of defence markets, says the Commission.


The Proposal for a Directive on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security,Brussels, 5.12.2007 COM(2007) 766 final.

The Commission aims to introduce a new legal instrument tailored to the specific nature of "sensitive" purchases for which specific requirements and precautions govern the award of contracts, in these fields. The Commission argues that the Member States will then have at their disposal a common framework of procurement rules that not only ensure the application of the principles of the EC Treaty but also take into account the particular requirements of these purchases, such as security of information, security of supply and the necessary flexibility of the procedures.

The plenary of the European Parliament is expected to vote in about ten days on the Committee on the Internal Market and Consumer Protection report A6-0415/2008, generally supportive of the Commission’s aims.





Ralf Grahn

European Union: Danish opt-outs

The Danish Institute for International Studies (DIIS) recently published a report ’De danske forbehold over den Europæiske Union: Udviklingen siden 2000’ (The Danish Opt Outs from the European Union: developments since 2000). Today the downloadable report has been published in book form, but for most international readers there is a handy four page executive summary in English:

http://www.diis.dk/graphics/Publications/Books2008/EU_udredningen_08/Preversion/EU08_Executive_Summary%28en%29.pdf

As an appetizer I quote from the summary:

“Since 1993, Denmark has had four opt-outs covering defence policy, the Economic and Monetary Union (EMU), Union citizenship, and Justice and Home Affairs (JHA). The opt-out for Union citizenship has no practical significance today, but in the three other areas the consequences now are considerably greater than they were in 2000. The Lisbon Treaty will further increase the significance of the Danish opt-outs, especially in relation to JHA.”

***

The report, commissioned by the Danish Parliament (Folketinget), has the following background:

Prime minister Anders Fogh Rasmussen’s government has planned to let the Danes vote on the abolishment of at least some of the opt-outs, seen as more of an obstacle than a help to Denmark.

But the Irish rejection of the Lisbon Treaty has lead to the postponement of these plans.

See, for instance Information.dk ‘Irsk nej truer afskaffelse af danske forbehold’ (Irish no delays abolishing Danish opt-outs), 14 June 2008:

http://www.information.dk/160827


Ralf Grahn

EU Treaty of Lisbon: Permanent structured cooperation

Permanent structured cooperation gives a core group of European Union (EU) member states a possibility to cooperate more closely within the common security and defence policy (CSDP).

A main objective of this enhanced defence cooperation is for the EU to be able to assist the United Nations through international peace missions involving military forces.

The member states participating in permanent structured cooperation form a self-governing advance group, meant to shoulder responsibilities from the day the Treaty of Lisbon enters into force. Hence the need for advance preparation. Laggards may be allowed to join later.

Participating member states have to be both willing and able, with the needed capabilities outlined in a Protocol annexed to the Lisbon Treaty.

***

In the Treaty of Lisbon the intergovernmental conference (IGC 2007) agreed on new provisions on the common security and defence policy (CSDP) to form part of the Treaty on European Union (TEU)(OJ 17.12.2007 C 306/36 and 37):

50) The following new Articles 28 B to 28 E shall be inserted:

-----

Article 28e

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 28 A(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.

The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.

A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.

5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.

6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

***

Since Article 28e TEU is already consolidated and readable, we go to the Protocol on permanent structured cooperation (OJ 17.12.2007 C 306/151 to 153) :

Protocol on permanent structured cooperation established by Article 28a of the Treaty on European Union

THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article 28 A(6) and Article 28 E of the Treaty on European Union,

RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 28 B of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not prejudice the specific character of thesecurity and defence policy of certain Member States;

RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;

CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;

RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

The permanent structured cooperation referred to in Article 28 A(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;

(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;

(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;

(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;

(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3

The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 28 E of the Treaty on European Union.

***

There is no antecedent to the new Article 28e in the existing Treaty on European Union (latest consolidated version OJ 29.12.2006 C 321 E/1), so we turn to the draft Treaty establishing a Constitution for Europe, where Articles III-213 and partly III-214 seem relevant (OJ 18.7.2003 C 169/69 and 70):

Article III-213

1. The Member States listed in the Protocol [title], which fulfil higher military capability criteria and wish to enter into more binding commitments in this matter with a view to the most demanding tasks, hereby establish structured cooperation between themselves within the meaning of Article I-40(6). The military capability criteria and commitments which those Member States have defined are set out in that Protocol.

2. If a Member State wishes to participate in such cooperation at a later stage, and thus subscribe to the obligations it imposes, it shall inform the European Council of its intention. The Council of Ministers shall deliberate at the request of that Member State. Only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the vote.

3. When the Council of Ministers adopts European decisions relating to matters covered by structured cooperation, only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the deliberations and the adoption of such decisions. The Union Minister for Foreign Affairs shall attend the deliberations. The representatives of the other Member States shall be duly and regularly informed by the Union Minister for Foreign Affairs of developments in structured cooperation.

4. The Council of Ministers may ask the Member States participating in such cooperation to carry out at Union level a task referred to in Article III-210.

5. Notwithstanding the previous paragraphs, the appropriate provisions relating to enhanced cooperation shall apply to the structured cooperation governed by this Article.

Article III-214

1. The closer cooperation on mutual defence provided for in Article I-40(7) shall be open to all Member States of the Union. A list of Member States participating in closer cooperation shall be set out in the declaration [title]. If a Member State wishes to take part in such cooperation at a later stage, and thus accept the obligations it imposes, it shall inform the European Council of its intention and shall subscribe to that declaration.

2. A Member State participating in such cooperation which is the victim of armed aggression on its territory shall inform the other participating States of the situation and may request aid and assistance from them. Participating Member States shall meet at ministerial level, assisted by their representatives on the Political and Security Committee and the Military Committee.

3. The United Nations Security Council shall be informed immediately of any armed aggression and the measures taken as a result.

4. This Article shall not affect the rights and obligations resulting, for the Member States concerned, from the North Atlantic Treaty.

***

The IGC 2004 modified the draft of the Convention in the Treaty establishing a Constitution for Europe, where Article III-312 was drafted like this (OJ 16.12.2004 C 310/140 and 141):

Article III-312

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article I-41(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation shall notify their intention to the Council and to the Union Minister for Foreign Affairs.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a European decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the Union Minister for Foreign Affairs.

The Council shall adopt a European decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.

A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.

4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a European decision suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.

A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.

A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.

5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.

6. The European decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

***

The IGC 2004 agreed on a Protocol (number 23) on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution (OJ 16.12.2004 C 310/364):

23. Protocol on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution

THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article I‑41(6) and Article III‑312 of the Constitution,

RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article III‑309 of the Constitution outside the Union for peace‑keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;

RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States, which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;

CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;

RECALLING the importance of the Minister for Foreign Affairs being fully involved in proceedings relating to permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution:

Article 1

The permanent structured cooperation referred to in Article I‑41(6) of the Constitution shall be open to any Member State which undertakes, from the date of entry into force of the Treaty establishing a Constitution for Europe, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2007 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article III‑309, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty establishing a Constitution for Europe, with a iew to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;

(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;

(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision‑making procedures;

(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;

(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3

The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and European decisions adopted in accordance with Article III‑312 of the Constitution.

***

Some remarks on the drafting history:

Permanent structured cooperation was a novelty in the draft Constitution.

The IGC 2004 modified the proposals of the Convention. Originally, the member states outside the permanent structured cooperation were meant only to be ‘duly informed’, but the Constitutional Treaty abolished this restriction concerning the outsiders as to deliberations. Still, only the participating members were to make the decisions.

A weak and non-binding clause on mutual assistance restricted to the participating states was inserted in the Convention’s Article III-214(2), but the Constitution introduceded a general mutual defence clause in Article I-41(7), although with customary references to the ‘specific character of some member states’ policies and NATO membership of others.

The Constitution added the Protocol envisioned by the Convention.

The IGC 2007 adopted the substance of the Constitutional Treaty, with technical adaptations like ‘decision’, the ‘High Representative’ and a referral to the voting rules in the Treaty on the Functioning of the European Union (TFEU) Article 205(a)(3).

The Protocol on permanent structured cooperation in the Lisbon Treaty version undergoes only technical adjustments compared to the Protocol annexed to the Constitution, as you can see for yourself.

***

A few general comments:

Permanent structured cooperation is a form of flexible integration, specific to the common security and defence policy (CSDP).

Jean-Luc Sauron makes the comparison with Schengen: “Cette cooperation structurée, sorte de « Schengen de la défense », sera ouverte aux États qui...” (p. 122).

Each state has to state its wish if it wants to participate. In addition it must fulfil the criteria and must have taken on the commitments set out in the Protocol on permanent structured cooperation.

Permanent structured cooperation is one of many of the institutional arrangements in the Lisbon Treaty requiring implementing decisions. This form of progressive cooperation is instituted by the Reform Treaty and the first decision establishing permanent structured cooperation is to be taken within three months of the Treaty’s entry into force. This decision to determine the original advance group of member states will clearly need advance preparation, since the participating states undertake the obligations from the date of entry into force of the Treaty of Lisbon (Protocol Article 1).

The laggards are being offered the option to join later.

On the other hand, a state unwilling or unable may drop out of the permanent structured cooperation, or its participation can be suspended.

With the exceptions expressly mentioned, the Council decisions and recommendations within the structured cooperation require unanimity (for instance the launch of operations), but this unanimity is constituted by the participants only. In other words, this defence lead group is self-governing and it is able to advance without being hindered by the outsiders.

The Protocol gives general guidance on the membership criteria of this core group: contributing forces to the EU, participation in main equipment programmes and European Defence Agency activities, participation in battle groups, investing in defence equipment, converging defence forces, improving interoperability and enhancing military capabilities.

The Protocol, which respects both the specific nature of the security and defence policy of certain member states (neutral, non-aligned, Denmark) and the obligations of NATO members, expresses the determination that the EU is capable of fully assuming its responsibilities within the international community. United Nations Organisation missions are mentioned especially.


Ralf Grahn


Source:

Jean-Luc Sauron: Comprendre le Traité de Lisbonne, Texte consolidé intégral des traités, Explications et commentaires ; Gualino éditeur, 2008

EU Treaty of Lisbon: European Defence Agency

Reform Treaty or codifying exercise? The Lisbon Treaty provisions on the European Defence Agency (EDA) are unquestionably new, but the Agency has already been established and it is operational. Thus, the amended Treaty on European Union (TEU) clarifies existing practice at the Treaty level (and gives the EDA a firmer legal base than a somewhat atypical joint action).

The fragmented nature of European defence and military capabilities offers huge potential benefits through concerted action, if the opportunities are seized. These are early days; only time will tell how successfully the member states of the European Union (EU) will manage to streamline their operations and enhance their capabilities in the military field.

The EDA is a strategic corner stone of the common security and defence policy (CSDP), with its efforts to bring more value for money: improved security at a reasonable cost.

***

The intergovernmental conference (IGC 2007) agreed on new and readable CSDP Articles, like the one on the European Defence Agency, Article 28d TEU of the Treaty of Lisbon (OJ 17.12.2007 C 306/35 and 36).

50) The following new Articles 28 B to 28 E shall be inserted:

-----

Article 28d

1. The European Defence Agency referred to in Article 28 A(3), subject to the authority of the Council, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

***

Because Article 28d TEU is new and therefore already consolidated and lacks antecedents in the existing Treaties, we go to the draft Treaty establishing a Constitution for Europe, where the Convention proposed the following Article III-212 (OJ 18.7.2003 C 169/69):

Article III-212

1. The European Armaments, Research and Military Capabilities Agency, subject to the authority of the Council of Ministers, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The Agency shall be open to all Member States wishing to be part of it. The Council of Ministers, acting by qualified majority, shall adopt a European decision defining the Agency's
statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

***

The IGC 2004 agreed on the following text in Article III-311 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/139 and 140):

Article III-311

1. The Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), established by Article I-41(3) and subject to the authority of the Council, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a European decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

***

We can see that the IGC 2004 gave the Agency a snappier name, the European Defence Agency, but left the rest of the Convention’s text untouched.

The IGC 2007 streamlined the language of the initial phrase by deleting ‘in the field of defence capabilities development, research, acquisition and armaments’ already covered by the reference to Article 28a(3) TEU.

A few basic remarks on the European Defence Agency (EDA) in the Lisbon Treaty:

The EDA is intergovernmental: the member states participate and the Agency is subject to the authority of the Council.

The EDA carries out its tasks in liaison with the Commission, (only) where it is necessary, for instance in questions concerning industrial policy or (general) public procurement.

Participation is voluntary for the member states (‘wishing to be part of it’).

Qualified majority voting is used for the Council decision on the statute, seat and operational rules of the EDA.

Concrete projects are forged between restricted groups of member states.

Potentially, the tasks entrusted to the EDA could bring the member states considerably more value for money in the military field.

Although Articles 28a(3) and 28d TEU are new, they actually represent a codifying exercise, which creates a Treaty base for an Agency already created and operating.

***

After the Convention and before the signing of the Constitutional Treaty, the member states agreed on a joint action pursuant to Article 14 TEU:


Council joint action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (OJ 17.7.2004 L 245/17).

The EDA is based in Brussels and the initial provisions on its establishment (Article 1) are in conformity with the comments above. The mission of the EDA is presented in Article 2:

Article 2
Mission

1. The mission of the Agency is to support the Council and the Member States in their effort to improve the EU’s defence capabilities in the field of crisis management and to sustain the ESDP as it stands now and develops in the future.

2. The Agency’s mission shall be without prejudice to the competences of Member States in defence matters.

***


The EDA has legal personality (Article 6). The Agency’s main revenue comes from member states’ contributions based on the applicable gross national income (GNI) scale, according to Article 8(1)(b).

Information about EDA and its activities, including the EDA Work Programme 2008, is available at the Agency’s web site.


Ralf Grahn


Source:

European Defence Agency: EDA Work Programme 2008 (and other information);
http://www.eda.europa.eu/

EU Treaty of Lisbon: Security and defence

The Treaty of Lisbon would take the European Union one step closer to a meaningful common security and defence policy (CSDP) and the prospect of a common defence, compatible with NATO.

The Lisbon Treaty marks a stage in development, when the strictures of intergovernmental cooperation and unanimous decisions are the norm.

Still, a developing common foreign and security policy (CSDP), civilian and military operations, a future common defence, improved military capabilities, the European Defence Agency, coalitions of the able and willing, permanent structured cooperation and a mutual defence clause are given new or beefed-up Treaty provisions.


***

The intergovernmental conference (IGC 2007) gave the Treaty on European Union (TEU) Chapter 2 on the common foreign and security policy (CFSP) a new clarifying section 2 on the specific provisions concerning the common security and defence policy (CSDP). First, we look at the text of Article 28a TEU as amended by the Treaty of Lisbon (OJ 17.12.2007 C 306/33 and 34):

48) The following new section 2 shall be inserted:


"SECTION 2 PROVISIONS ON THE COMMON SECURITY AND DEFENCE POLICY"

49) An Article 28 A shall be inserted, taking over the wording of Article 17, with the following amendments:

(a) the following new paragraph 1 shall be inserted and the next paragraph shall be renumbered 2:

"1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.";

(b) paragraph 1, renumbered 2, shall be amended as follows:

(i) the first subparagraph shall be replaced by the following:

"2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.";

(ii) in the second subparagraph, the words "in accordance with this Article" shall be replaced by "in accordance with this Section";

(iii) the third subparagraph shall be deleted.

(c) the present paragraphs 2, 3, 4 and 5 shall be replaced by the following paragraphs 3 to 7:

"3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.

4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C.

6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E. It shall not affect the provisions of Article 28 B.

7. If a Member State is the victim of armed aggression on its territory, the other
Member States shall have towards it an obligation of aid and assistance by all the means in
their power, in accordance with Article 51 of the United Nations Charter. This shall not
prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.’.

***

Since Article 28a TEU takes over most of the wording of Article 17 TEU in the existing Treaty, we go to the latest consolidated version of Article 17 TEU (OJ 29.12.2006 C 321 E/17):

Article 17

1. The common foreign and security policy shall include all questions relating to the security of
the Union, including the progressive framing of a common defence policy, which might lead to
a common defence, should the European Council so decide. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.

The progressive framing of a common defence policy will be supported, as Member States consider appropriate, by cooperation between them in the field of armaments.

2. Questions referred to in this Article shall include humanitarian and rescue tasks, peacekeeping
tasks and tasks of combat forces in crisis management, including peacemaking.

3. Decisions having defence implications dealt with under this Article shall be taken without
prejudice to the policies and obligations referred to in paragraph 1, second subparagraph.

4. The provisions of this Article shall not prevent the development of closer cooperation
between two or more Member States on a bilateral level, in the framework of the Western
European Union (WEU) and NATO, provided such cooperation does not run counter to or impede that provided for in this title.

5. With a view to furthering the objectives of this Article, the provisions of this Article will be
reviewed in accordance with Article 48.

***

Desiring to fill the communication gap willed by the Council, we now proceed to construct one consolidated language version out of the 23 that the Council should have published of the Lisbon Treaty Article 28a TEU, by combining Article 17 TEU with the amendments:

Article 28a

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.

3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.

4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C.

6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E. It shall not affect the provisions of Article 28 B.

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.’.

***

The main corresponding Article in the draft Treaty establishing a Constitution for Europe was Article I-40 (OJ 18.7.2003 C 169/18):

Article 40
Specific provisions for implementing the common security and defence policy

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on assets civil and military. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.

3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council of Ministers. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. A European Armaments, Research and Military Capabilities Agency shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council of Ministers in evaluating the improvement of military capabilities.

4. European decisions on the implementation of the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council of Ministers acting unanimously on a proposal from the Union Minister for Foreign Affairs or from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council of Ministers may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article III- 211.

6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish structured cooperation within the Union framework. Such cooperation shall be governed by the provisions of Article III-213.

7. Until such time as the European Council has acted in accordance with paragraph 2 of this Article, closer cooperation shall be established, in the Union framework, as regards mutual defence. Under this cooperation, if one of the Member States participating in such cooperation is the victim of armed aggression on its territory, the other participating States shall give it aid and assistance by all the means in their power, military or other, in accordance with Article 51 of the United Nations Charter. In the execution of closer cooperation on mutual defence, the participating Member States shall work in close cooperation with the North Atlantic Treaty Organisation. The detailed arrangements for participation in this cooperation and its operation, and the relevant decision-making procedures, are set out in Article III-214.

8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy, and shall be kept informed of how it evolves.

***

The proposal by the Convention was taken over, with modifications, in the Treaty establishing a Constitution for Europe Article I-41 (OJ 16.12.2004 C 310/30 and 31):

Article I-41
Specific provisions relating to the common security and defence policy

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civil and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States, it shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.

3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. An Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency) shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities.

4. European decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the Union Minister for Foreign Affairs or an initiative from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article III-310.

6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article III-312. It shall not affect the provisions of Article III-309.

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy. It shall be kept informed of how it evolves.

***

A Section with the CSDP provisions clarifies the Treaty.

The Reform Treaty Article 28a TEU is, in keeping with the IGC 2007 Mandate (Council document 11218/07), an almost word for word rendering of Article I-41, paragraphs 1 to 7, of the Constitutional Treaty. Here, as elsewhere, the ‘Union Minister for Foreign Affairs’ has become the ‘High Representative of the Union for Foreign Affairs and Security Policy’.

The text of Article I-41(8) on specific CSDP consulting of the European Parliament has been deleted.

The CSDP encompasses both civilian and military means.

The CSDP is firmly planted in intergovernmental cooperation, although civilian tasks may require action by the Commission.

The objective of the Lisbon Treaty is progressively to frame a common Union defence policy and to establish a common defence. But the common defence requires a unanimous decision by the European Council and adoption (ratification) in the member states.

The heterogeneous nature of the European Union as a security and defence community at its present stage of development is ambiguously transmitted by the words ‘certain Member States’.

In fact, there are at least three categories of ‘certain Member States’.

First, we have certain Member States, with a security and defence policy with a ‘specific character’, not to be prejudiced. These are the six (former) neutral or non-aligned countries, which remain outside NATO: Austria, Cyprus, Finland, Ireland, Malta and Sweden. The Lisbon Treaty does not define the scope of their exemptions.

Second, there is the opt-out of Denmark (a member of NATO), set out in the Protocol on the position of Denmark, amended to take the Danish opt-outs into consideration. Article 5 (ex 6) of the Protocol defines Denmark’s opt-out from matters with defence implications, Article 13(1), Article 28 A and Articles 28 B to 28 E of the TEU. On the other hand, ‘Denmark will not prevent the other Member States from further developing their cooperation in this area’ (OJ 17.12.2007 C 306/186).

Third, there is the European mainstream, ‘certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty’. For them, EU CSDP obligations and NATO policies have to be compatible.

Some of the CSDP commitments of the member states are: to make civilian and military capabilities available to the EU, to establish multinational forces, to improve their military capabilities.

There are new provisions for existing European Defence Agency, which shall contribute to enhancing military capabilities.

CSDP decisions, including decisions to launch missions, are taken unanimously.

Missions or other tasks may be entrusted to coalitions of willing member states.

Permanent structured cooperation between member states with higher military capabilities are envisioned in Article 28a(6) and in the detailed Protocol on permanent structured cooperation established by Article 28a of the Treaty on European Union:

“PROTOCOL
ON PERMANENT STRUCTURED COOPERATION ESTABLISHED
BY ARTICLE 28 A OF THE TREATY ON EUROPEAN UNION

THE HIGH CONTRACTING PARTIES,
HAVING REGARD TO Article 28 A(6) and Article 28 E of the Treaty on European Union,
RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;
RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 28 B of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;
RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;
RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;
CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;
DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;
RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;
RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;
CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;
RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1
The permanent structured cooperation referred to in Article 28 A(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and
(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2
To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to

(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;
(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;
(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;
(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;
(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3
The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 28 E of the Treaty on European Union.”

***

Last but not least, we have the upgraded mutual assistance clause in Article 28a(7), the obligation to give aid and assistance if a member state is the victim of armed aggression on its territory. This obligation is unclear concerning ‘certain Member States’, i.e. the neutral or non-aligned ones.

NATO remains the foundation of the collective defence of the EU members which belong to NATO.

The European Parliament is marginalised. There is only the general clause on consulting the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy (Article 21 TEU) and the existing Parliamentary Assembly of the Western European Union (WEU).


***

Next time we look at the legal basis for CSDP operations.


Ralf Grahn