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.

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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:

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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.

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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.

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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.

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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.

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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.

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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: Operational CFSP decisions

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

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

“Article 14

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

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

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

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A few remarks by your glossator:

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

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

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

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

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

“Article 14

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

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

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

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

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

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

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


Ralf Grahn