Estonian Lisbon ratification bill

Today the Estonian Government has introduced the bill on ratification of the EU Treaty of Lisbon to the Parliament, Riigikogu.


Ralf Grahn

Source:

Estonian Government’s press briefing, 31 January 2008 (Valitsuse kommunikatsioonibüroo briifingruum);
http://www.valitsus.ee/brf/?id=1222

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/

Two new Lisbon Treaty ratifications

The Slovenian Presidency of the EU Council has informed us that the Parliament of Slovenia has ratified the Treaty of Lisbon. In the words of Prime Minister Janez Janša:

“By a vast majority of 74 votes out of a total of 90, the Republic of Slovenia has become the second Member State to confirm the new institutional structure for more effective functioning of the enlarged European Union.”

The Times of Malta reports that the House of Representatives has unanimously ratified the EU Lisbon reform treaty.

Hungary was the first member state to ratify, so the number of ratifications is now three.


Ralf Grahn


Sources:

Prime Minister Janez Janša welcomes ratification of the Lisbon Treaty; 29 January 2008;
http://www.eu2008.si

Times of Malta: House ratifies Lisbon treaty; 29 January 2008;
http://www.timesofmalta.com

EU Treaty of Lisbon: CSDP mission coalitions

On Monday, the Council of the European Union decided to launch an international military mission in support of UN peace-keeping missions in Darfur, Sudan. The Council conclusions stated i.a.:

“8. The Council launched the military bridging operation EUFOR Tchad/RCA. It authorised the
EU operation commander, with immediate effect, to release the activation order in order to execute the deployment of the forces and start the execution of the mission. The Council reaffirms its full commitment to contribute to the implementation of the UNSC-Resolution 1778 (2007) which authorises the deployment in Chad and Central African Republic of a multidimensional presence, including the EU providing the military element of it. In accordance with this resolution, the EU conducts this military bridging operation for a period of 12 months from the declaration of Initial Operational Capability which is planned to be reached in March 2008. A mid mandate review after 6 months, conducted in conjunction with the UN, will assess the need for a possible UN follow-on capability.”

According to the Council factsheet 14 EU member states will be present in the field and 22 at Operations Headquarters.

***

As we see, international missions – military and civilian – are not new to the common security and defence policy (CSDP) of the EU.

This operation, too, is a coalition of willing and able member state, even a broad one, with at least a token representation of more than two thirds of them.

The Lisbon Treaty clarifies the basic Treaty provisions on CSDP operations, but more than creating new rules it is a codification of existing (and evolving) practice, where the European Union acts to enhance peace and stability in troubled regions.

***

In the Treaty of Lisbon the intergovernmental conference (IGC 2007) offers us one of its new and unmaimed Articles in the Treaty on European Union (TEU) Article 28c (OJ 17.12.2007 C 306/35).

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

-----

Article 28c

1. Within the framework of the decisions adopted in accordance with Article 28 B, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.

***

In the existing TEU the CSDP missions mentioned in Article 17(2) TEU (latest consolidated version OJ 29.12.2006 C 321 E/17), the Petersberg tasks, form the basis for the evolved CSDP Section in the Lisbon Treaty.

Article 17(2)

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.

***

The Convention fathered the rules on tasks entrusted to a group of member states in Article III-211 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/69):

Article III-211

1. Within the framework of the European decisions adopted in accordance with Article III-210, the Council of Ministers may entrust the implementation of a task to a group of Member States having the necessary capability and the desire to undertake the task. Those Member States in association with the Union Minister for Foreign Affairs shall agree between themselves on the management of the task.

2. The Council of Ministers shall be regularly informed by the Member States participating in the task of its progress. Should the completion of the task involve major new consequences or require amendment of the objective, scope and conditions for implementation adopted by the Council of Ministers under Article III-210, the Member States participating shall refer the matter to the Council of Ministers forthwith. In such cases, the Council of Ministers shall adopt the necessary European decisions.

***

The IGC 2004 was the mother of the modified Article III-310 of the Treaty establishing a Constitution for Europe:

Article III-310

1. Within the framework of the European decisions adopted in accordance with Article III-309, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the Union Minister for Foreign Affairs, shall agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the European decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary European decisions.

***

The child, Reform Treaty Article 28c TEU, is almost a clone of its mother.

The CSDP provisions have to be read in conjunction. Article 28a TEU forms the background, with 28a(4) requiring a unanimous Council decision to launch a mission, and 28a(5) offering the option to entrust a task to a group of member states. Article 28b TEU describes the various missions – the expanded Petersberg tasks – and the contents to be settled in the Council decision. (Read the two previous posts.)

Article 28c TEU tries to strike a balance between the European Union as a whole and the group of member states which actually implements the task.

The operation is launched in the name of the EU, with the Council defining the objectives, the scope and the general conditions of the mission.

Based on this authorisation, the coalition then agrees on the management of the task, in association with the High Representative.

Basically, the ‘coalition of the willing and able’ runs the operation, and the rest of the member states (Council) only have a right to be informed.

If the mission runs into trouble, or if other major changes are needed, the Council takes on the role of decision maker.


Ralf Grahn


Sources:


Council of the European Union: Council conclusions, General Affairs and External Relations, 28 January 2008, 5624/08, Provisional version (p. 12-15)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/98460.pdf

European Union Council Secretariat: Background: EU Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR Tchad/RCA), January 2008 (p. 2)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/misc/98416.pdf

EU Treaty of Lisbon: Civilian and military missions

In the Petersberg Declaration, the Western European Union (WEU) Council of Ministers decided to strengthen WEU’s operational role by taking on tasks in addition to the mutual defence obligations of the member states. These are known as the Petersberg tasks (Bonn, 19 June 1992; Declaration II.4):

“4. Apart from contributing to the common defence in accordance with Article 5 of the Washington Treaty and Article V of the modified Brussels Treaty respectively, military units of WEU member States, acting under the authority of WEU, could be employed for:
- humanitarian and rescue tasks;
- peacekeeping tasks;
- tasks of combat forces in crisis management, including peacemaking.”

From a British point of view, the European Security and Defence Policy (ESDP) grew from a UK-French initiative at St Malo in 1998, where the Heads of State and Government of France and the United Kingdom are agreed i.a. that the European Union needs to be in a position to play its full role on the international stage, including the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP. The Council must be able to take decisions on an intergovernmental basis, covering the whole range of activity set out in Title V of the Treaty of European Union.

To this end, the leaders concluded, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises.

The St Malo agreement is still presented as one of the highlights of relations between the UK and France, as by the British Embassy in France:

“Current cooperation with France on European Security and Defence Policy evolved from the St Malo proposal to give the EU the capacity to respond to international crises through military and civilian, such as police, operations. In late 2003 this led to Trilateral proposals on the issue of the planning of EU operations, finally agreed in October 2004 at trilateral level, and on the defence aspects of the draft Constitutional Treaty.
The UK and France have recently developed a joint proposal to create EU rapid response forces for urgent crises where the UN needs assistance (battlegroups). The UK and French governments are both buying new aircraft carriers and are looking at the scope for co-operation on this, and on other major procurement projects such as air refuelling tankers.”

This view is attested by the UK House of Commons Foreign Affairs Committee, which notes that President Sarkozy of France has already made it clear that, ten years after St Malo, the development of EU defence will be a priority of France’s EU Presidency in the second half of 2008 (p. 71)


***

Since the following Articles on the common security and defence policy are new at the Treaty level, the intergovernmental conference (IGC 2007) had to render them in a readable way. Thus, the IGC 2007 version is the consolidated version (bar later renumbering; I follow the original Lisbon Treaty numbers). Unmutilated Article 28b TEU is next (OJ 17.12.2007 C 306/34 and 35):

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


Article 28b

1. The tasks referred to in Article 28 A(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.

***

CSDP missions are not new as such. In CSDP Article 17 TEU different tasks are mentioned (latest consolidated version OJ 29.12.2006 C 321 E/17):

Article 17(2) TEU

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

***

In this, as in many instances, the Treaty of Lisbon is indebted to the Convention, which drafted Article III-210 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68 and 69):

SECTION 1
The common security and defence policy

Article III-210

1. The tasks referred to in Article I-40(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peacemaking and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council of Ministers, acting unanimously, shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council of Ministers and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.

***

In the Treaty establishing a Constitution for Europe the member states’ governments signed up to the proposal of the Convention in Article III-309 (OJ 16.12.2004 C 310/138 and 139):

SECTION 2
THE COMMON SECURITY AND DEFENCE POLICY

Article III-309

1. The tasks referred to in Article I-41(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.

***

We see that humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking, already have their basis in the existing TEU, exactly as presented in the Petersberg Declaration.

The Convention, the Constitutional Treaty and the Reform Treaty, almost ‘verbatim’, codify and exemplify existing and expanding practice, where not only military units, but civilian components can be deployed as well, and the fight against terrorism is mentioned explicitly. This is the expansion in the list of “Petersberg tasks” the UK House of Commons Foreign Affairs Committee refers to in its report (p. 73).

The Swedish government refers to the framework for the European Union’s crisis management operations in the Reform Treaty Article 28a TEU and mentions the further development of the Petersberg tasks in Article 28b TEU to encompass missions before, during and after a conflict. The government offers some examples of civilian missions – police tasks, support for the rule of law and rescue services – as well as mentioning military tasks (p. 365-366).

While the Council adopts the necessary basic decisions, unanimously pursuant to Article 28a(4), we take note of the importance of the High Representative and the Political and Security Committee in the day to day coordination of the CSDP operations.


Ralf Grahn


Sources:

Western European Union Council of Ministers: Petersberg Declaration; Bonn, 19 June 1992

Joint declaration: British-French summit St Malo, 3-4 December 1998

British Embassy, France: The Franco-British relationship today

UK House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty; Third Report of Session 2007-08; 20 January 2008

Government of Sweden: Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds) 2007:48; 20 december 2007

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

EU Treaty of Lisbon: CFSP financial provisions

Why do the unsettled times between Royal prerogatives and Parliamentary appropriations described in the Diary of Samuel Pepys (1633 – 1703) come to my mind, when I look at the financial provisions for the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) of the European Union (EU)?

If nothing more is sought than soothing foreign policy statements, if there is unanimity, the costs are negligible. But since the early days of European Political Cooperation (EPC) the member states have gradually started to think that they could actually have an impact in world affairs, given the means.

The Lisbon Treaty is a step in that direction, with enhanced coordination and more flexible allocation of resources. The governments and the Council remain key players, with only a light touch of democratic scrutiny by the European Parliament concerning both contents and finances.

When the Union budget is used for CFSP ends the European Parliament is only consulted. If the member states use their own resources, the EP can be side-stepped.

***

The intergovernmental conference (IGC 2007) deemed it opportune to present its reforms like this (OJ 17.12.2007 C 306/31 and 32):

46) Articles 27 A to 27 E, on enhanced cooperation, shall be replaced by Article 10 in accordance with point 22 above.

47) Article 28 shall be amended as follows:

(a) paragraph 1 shall be deleted and the remaining paragraphs shall be renumbered accordingly; throughout the Article the words "budget of the European Communities" shall be replaced by "Union budget";

(b) in paragraph 2, renumbered 1, the words "which the provisions relating to the areas referred to in this Title entail" shall be replaced by "to which the implementation of this Chapter gives rise";

(c) in paragraph 3, renumbered 2, the words "the implementation of those provisions" in the first subparagraph shall be replaced by "the implementation of this Chapter";

(d) the following new paragraph 3 shall be added and paragraph 4 deleted:

"3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B. It shall act after consulting the European Parliament.

Preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.

The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:

(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;

(b) the procedures for administering the start-up fund;

(c) the financial control procedures.

When the task planned in accordance with Article 28 A(1) and Article 28 B cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.".

***

We start our work by going to the existing Article 28 of the Treaty on European Union (TEU), which we find in the latest consolidated version of the Treaty (OJ 29.12.2006 C 321 E/23):

Article 28

1. Articles 189, 190, 196 to 199, 203, 204, 206 to 209, 213 to 219, 255 and 290 of the
Treaty establishing the European Community shall apply to the provisions relating to the areas
referred to in this title.

2. Administrative expenditure which the provisions relating to the areas referred to in this title
entail for the institutions shall be charged to the budget of the European Communities.

3. Operating expenditure to which the implementation of those provisions gives rise shall also
be charged to the budget of the European Communities, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.

In cases where expenditure is not charged to the budget of the European Communities, it shall be charged to the Member States in accordance with the gross national product scale, unless the
Council acting unanimously decides otherwise. As for expenditure arising from operations having
military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1), second subparagraph, shall not be obliged to contribute to the financing thereof.

4. The budgetary procedure laid down in the Treaty establishing the European Community shall
apply to the expenditure charged to the budget of the European Communities.

***

What is Article 28 TEU going to look like, if the Lisbon Treaty enters into force? Merging the existing text with the amendments drafted by the IGC 2007 should lead us to a new, consolidated Article 28 TEU:

Article 28

1. Administrative expenditure to which the implementation of this Chapter gives rise for the institutions shall be charged to the Union budget.

2. Operating expenditure to which the implementation of this Chapter gives rise shall also
be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.

In cases where expenditure is not charged to the Union budget, it shall be charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1), second subparagraph, shall not be obliged to contribute to the financing thereof.

3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B. It shall act after consulting the European Parliament.

Preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.

The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:

(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;

(b) the procedures for administering the start-up fund;

(c) the financial control procedures.

When the task planned in accordance with Article 28 A(1) and Article 28 B cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.

***

The Convention, led by Valéry Giscard d’Estaing, looked for more flexibility and rapidity by proposing the following Article III-215 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/70):

SECTION 2

Financial provisions

Article III-215

1. Administrative expenditure which the provisions referred to in this Chapter entail for the institutions shall be charged to the Union budget.

2. Operating expenditure to which the implementation of those provisions gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council of Ministers decides otherwise.

In cases where expenditure is not charged to the Union's budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council of Ministers decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council of Ministers have made a formal declaration under Article III-201(1), second subparagraph, shall not be obliged to contribute to the financing thereof.

3. The Council of Ministers shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for tasks as referred to in Article I-40(1). It shall act after consulting the European Parliament.

Preparatory activities for tasks as referred to in Article I-40(1) which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.

The Council of Ministers shall adopt by a qualified majority on a proposal from the Union Minister for Foreign Affairs European decisions establishing:

(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund and the procedures for reimbursement;

(b) the procedures for administering the start-up fund;

(c) the financial control procedures.

When it is planning a task as referred to in Article I-40(1) which cannot be charged to the Union's budget, the Council of Ministers shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall report to the Council of Ministers on the implementation of this remit.

***

In the Treaty establishing a Constitution for Europe the member states took on board the proposal of the Convention with minor changes in Article III-313 (OJ 16.12.2004 C 310/141 and 142):

SECTION 3

FINANCIAL PROVISIONS

Article III-313

1. Administrative expenditure which the implementation of this Chapter entails for the institutions shall be charged to the Union budget.

2. Operating expenditure to which the implementation of this Chapter gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council decides otherwise.

In cases where expenditure is not charged to the Union budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article III-300(1), second subparagraph, shall not be obliged to contribute to the financing thereof.

3. The Council shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article I-41(1) and Article III-309. It shall act after consulting the European Parliament.

Preparatory activities for the tasks referred to in Article I-41(1) and Article III-309 which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.

The Council shall adopt by a qualified majority, on a proposal from the Union Minister for Foreign Affairs, European decisions establishing:

(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;

(b) the procedures for administering the start-up fund;

(c) the financial control procedures.

When the task planned in accordance with Article I-41(1) and Article III-309 cannot be charged to the Union budget, the Council shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall report to the Council on the implementation of this remit.

***

The similarities between the draft Constitutional Treaty, the Constitutional Treaty and the Lisbon Treaty are obvious in this Article.

The financial provisions in Article 28 TEU concern ‘this Chapter’, i.e. the common foreign and security policy (CFSP), including the common security and defence policy (CSDP).

Administrative expenditure is charged to the Union budget.

Non-military operating expenses are charged to the Union budget, if the Council does not unanimously decide otherwise.

Expenditure with military or defence implications is charged to the member states, if the Council does not unanimously decide otherwise. As a rule, a gross national product scale is used for the contributions of the member states, but the Council can unanimously decide otherwise.

The reference to the formal declaration in Article 23(1), second subparagraph, points to the existing TEU. Following the original numbering of the Reform Treaty TEU (as I have done throughout), the corresponding provision is Article 15b(1) TEU, second subparagraph:

“Article 15b(1)

Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.

When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.”

In other words, an abstaining member state makes a formal declaration, lets the other members proceed, but is not bound by the decision with military or defence implications, including the operating expenditure.

Rapid access to CFSP resources is the novelty in the Lisbon Treaty, as proposed by the Convention and incorporated into the Constitutional Treaty, especially preparatory activities for CSDP operations referred to in Article 28a(1) and Article 28b.

The Council decides on the procedures for rapid access to funds from the Union budget for urgent needs. The European Parliament is only consulted.

If the preparatory activities can not be charged to the Union budget, they shall be covered by a start-up fund made up of member states’ contribution. The Council makes the decisions needed by qualified majority, on a proposal from the High Representative. The Council authorises the use of the fund and monitors its use. – There is no mention of scrutiny by the European Parliament.

***

The provisions on the common security and defence policy (CSDP) are next in line.


Ralf Grahn

EU Treaty of Lisbon: Separate powers and rules

The European Community (EC) is merged into the European Union (EU), but the separate powers and procedures remain for the ‘Community’ areas and the intergovernmental common foreign and security policy (CFSP).

We look at how these areas are kept separate in the Lisbon Treaty, and glimpse at the different categories of competence and at the role of the Court of Justice in upholding these separate competences and procedures.

***

In the Treaty of Lisbon the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following way (OJ 17.12.2007 C 306/31):

45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:

---

Article 25b

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 2 B to 2 E of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

***

Article 25b TEU reminds us of Article 46(f) TEU and it replaces Article 47 TEU. We turn to the existing Treaty on European Union (latest consolidated version of the Treaty on European Union and of the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/33 and 34):

Article 46(f)

The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:

---

(f) Articles 46 to 53.

Article 47

Subject to the provisions amending the Treaty establishing the European Economic Community
with a view to establishing the European Community, the Treaty establishing the European Coal
and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.

***

We look at the powers referred to in the Treaty on the Functioning of the European Union (TFEU) Articles 2 B to 2 E (OJ 17.12.2007 C 306/45 to 47) in Title 1 Categories and areas of Union competence, where Article 2 A has first presented the different forms of competence: exclusive competence, shared competence, coordination, CFSP etc.

The following Articles then indicate in which areas the different competences (powers) apply:

Article 2 B TFEU

1. The Union shall have exclusive competence in the following areas:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning of the internal
market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common fisheries policy;

(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.


Article 2 C TFEU

1. The Union shall share competence with the Member States where the Treaties confer on
it a competence which does not relate to the areas referred to in Articles 2 B and 2 E.

2. Shared competence between the Union and the Member States applies in the following
principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being prevented
from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise of that
competence shall not result in Member States being prevented from exercising theirs.


Article 2 D TFEU

1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.


Article 2 E TFEU

The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health;

(b) industry;

(c) culture;

(d) tourism;

(e) education, vocational training, youth and sport;

(f) civil protection;

(g) administrative cooperation.

***

We take a look at the preceding drafting exercises. First, the Convention proposed an Article III-209 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):

Article III-209

The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 and I-16. Likewise, the implementation of the policies listed in
those articles shall not affect the competence referred to in Article I-15.

The Court of Justice shall have jurisdiction to monitor compliance with this Article.

***

Second, we compare with the Treaty establishing a Constitution for Europe, where the corresponding provision is Article III-308 (OJ 16.12.2004 C 310/138):

Article III-308

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter.

***

The existing Article 47 TEU says, in effect, that the establishment of the European Union (EU) would not encroach upon the Community powers and procedures (TEC).

The Convention and the Constitutional Treaty drafted their corresponding Articles to point both ways: to ‘Community’ and CFSP powers and procedures, respectively. The proposed Article 25b TEU of the Lisbon Treaty and Article III-308 of the Constitutional Treaty are highly similar.

The present pillar structure of the European Union consists of the first or Community pillar (TEC), and the two intergovernmental pillars (TEU), the second or foreign and security policy (CFSP) and the third, originally justice and home affairs, now the remaining intergovernmental provisions on police and judicial cooperation in criminal matters.

The Lisbon Treaty abolishes the pillar structure and the European Community (EC) by uniting everything under the European Union (EU), but the ‘Community’ powers and procedures and the intergovernmental character of the CFSP and the CSDP remain separate.

This can be seen in the new Article 240a TFEU of the Reform Treaty, where the Court of Justice lacks jurisdiction in CFSP issues, but has jurisdiction concerning the boundaries between ‘Community’ and CFSP competence:

Article 240a TFEU

The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 25b of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

***

Financial provisions for the CFSP are next in line.


Ralf Grahn

EU Treaty of Lisbon: Personal data protection

Internationally, the protection of personal data can be seen as a particular European sensitivity, where balance is sought between concerns for privacy and security. The different approaches between the European Union and the United States of America have led to protracted negotiations on both commercial use and security measures.

Internally, the European Community (EC) introduced common norms on the protection of personal data, binding the member states, generally in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and concerning telecommunications in Directive 97/66/EC, repealed and replaced by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).

The Treaty of Maastricht filled a gap concerning protection of personal data held by the EC itself. On the basis of Article 286 TEC a Regulation has been enacted: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

The scope of Regulation 45/2001 is restricted to European Community legislation; the intergovernmental pillars, the common foreign and security policy (CFSP) and police and judicial cooperation in criminal matters, remain outside the scope of the Regulation.

***

On the other hand, Article 8 of the Charter of Fundamental Rights of the European Union (OJ 14.12.2007 C 303/4) lays down a general right to protection of personal data:

Article 8
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

***

The Explanations relating to the Charter of Fundamental Rights give the following background to Article 8 (OJ 14.12.2007 C 303/20):

Explanation on Article 8 — Protection of personal data

This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.

***

The Treaty of Lisbon introduces a new Article 25a in the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/31):

45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:

Article 25a

In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

***

Since the proposed new Article 25a refers to Article 16b of the Treaty on the Functioning of the European Union (TFEU), we have to look up Article 16b TFEU, as amended:

29) An Article 16 B shall be inserted, replacing Article 286:

Article 16b TFEU

1. Everyone has the right to the protection of personal data concerning them.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.

***

Since Article 16b TFEU replaces Article 286 of the Treaty establishing the European Community (TEC), we have to take a look at that:

Article 286 TEC

1. From 1 January 1999, Community acts on the protection of individuals with regard to the
processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.

2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.

***

The Convention proposed a unitary legal basis for protection of personal data in the draft Treaty establishing a Constitution for Europe Article I-50 (OJ 18.7.2003 C 169/20):

Article 50
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.

***

The Treaty establishing a Constitution for Europe took over the Convention’s proposal almost ‘verbatim’ in Article I-51 (OJ 16.12.2004 C 310/36):

Article I-51
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. European laws or framework laws shall lay down the rules relating to the protection of
individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

***

Annexed to the Constitutional Treaty was joint Declaration (number 10) on Article I-51, which gave an indication of the sensitivities of the member state governments (OJ 16.12.2004 C 310/423):

10. Declaration on Article I-51

The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.

***

If the Convention and the Constitutional Treaty had a unitary approach, taking into consideration the restrictions implied by Declaration 10, the Lisbon Treaty hollowed out the general provision in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15): There will also be a specific legal basis on personal data protection in the CFSP area. – Footnote 7 added: With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.

The specific legal basis for Chapter 2 Specific provisions on the common foreign and security policy, Article 25a TEU in the Reform Treaty follows from the mandate of the intergovernmental conference. The purpose of the new Article seems to be to offer leeway to the Union and member states’ governments in questions related to security.

***

Next time we look at Article 25b TEU.


Ralf Grahn

EP looks forward to Lisbon Treaty

The Committee on Constitutional Affairs of the European Parliament has voted on a draft report by Richard Corbett and Iñigo Méndez de Vigo on the Treaty of Lisbon. The Committee, at last, looks forward to the rapid publication of the consolidated Treaties as revised by the Treaty of Lisbon, in order to inform European citizens clearly and objectively about the content of the Treaty.

Knowing well that the Council has refused publication before the Treaties are in force, it would be better if the European Parliament rapidly published the consolidated Treaties in all the official languages of the EU (especially the 15 missing language versions), instead of ‘looking forward’ to the unlikely event.

The draft report approved by 20 votes to 6 contained the following conclusions, to be voted on by a plenary session in February, where the European Parliament:


“7. Believes that this Treaty will provide a stable and lasting framework for the future
development of the Union;

8. Endorses the Treaty and hopes that all Member States of the Union will be in a position to
achieve its ratification by 1 January 2009;

9. Is aware that an amending treaty is inevitably less clear and readable than a codified
treaty, but looks forward to the rapid publication of the consolidated Treaties as revised by
the Treaty of Lisbon, which will provide citizens with a clearer basic text of the Union;

10. Reiterates its request that all possible efforts be deployed, both by EU institutions and
national authorities in accordance with the principle of sincere cooperation, in order to
inform European citizens clearly and objectively about the content of the Treaty;

11. Instructs its committee responsible to prepare the necessary changes to its Rules of
Procedure and to assess the needs for further implementing measures;

12. Instructs its President to forward this resolution and the report of the Committee on
Constitutional Affairs to the national parliaments of the Member States, to the Council, to
the European Commission and to the former Members of the Convention on the Future of
Europe, and to ensure that Parliament's services, including its external offices, provide
ample information about Parliament's position on the Treaty.”


Ralf Grahn


Sources:

European Parliament, Committee on Constitutional Affairs: Draft Report on the Treaty of Lisbon (2007/0000(INI); Rapporteurs: Richard Corbett and Iñigo Méndez de Vigo

European Parliament, Press service: Reasons to ratify the Lisbon Treaty this year; 23-01-2008

EU Treaty of Lisbon: Political and Security Committee

Foreign policy coordination between the member states of the European Economic Community (EEC), known as European Political Cooperation, started in 1970. Informal meetings of the Ministers of Foreign Affairs, known as Gymnich meetings, have been held since 1974. Gradually, the contacts between the European capitals and their representatives in Brussels have evolved, leading to the intergovernmental common foreign and security policy (CFSP), including the common security and defence policy (CSDP).

The Lisbon Treaty merges the European Community (EC) into the European Union (EU), abolishes the pillar structure and aims to strengthen CFSP coordination, i.a. by the enhanced role of the High Representative/Vice-President , but the basic intergovernmental character of the CFSP remains.

Preparations for the meetings of ministers have developed as well, from meetings of the political directors of the Foreign Ministries into the present structures with a Political and Security Committee preparing the work of the Permanent Representatives and the Council. Since the Treaty of Nice, the Committee may be entrusted by the Council to manage crisis operations.

The relevant Article on the Political and Security Committee is adapted to these general changes.


***

The Treaty of Lisbon amends the Treaty on European Union (TEU) Article 25 (OJ 17.12.2007 C 306/31) according to the intergovernmental conference (IGC 2007).

44) Article 25 shall be amended as follows:

(a) in the first paragraph, first sentence, the reference to the Treaty establishing the European Community shall be replaced by a reference to the Treaty on the functioning of the European Union and the words "or of the High Representative of the Union for Foreign Affairs and Security Policy" shall be inserted after "at the request of the Council"; in the second sentence, the words "without prejudice to the responsibility of the Presidency and the Commission" shall be replaced by "without prejudice to the powers of the High Representative";

(b) the text of the second paragraph shall be replaced by the following: "Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of the crisis management operations referred to in Article 28 B.";

(c) in the third paragraph, the words ", without prejudice to Article 47" shall be deleted.

***

The existing Treaty on European Union (TEU) Article 25 has the following wording (latest consolidated version OJ 29.12.2006 C 321 E/21):

Article 25

Without prejudice to Article 207 of the Treaty establishing the European Community, a Political
and Security Committee shall monitor the international situation in the areas covered by the
common foreign and security policy and contribute to the definition of policies by delivering
opinions to the Council at the request of the Council or on its own initiative. It shall also monitor
the implementation of agreed policies, without prejudice to the responsibility of the Presidency and the Commission.

Within the scope of this title, this Committee shall exercise, under the responsibility of the Council, political control and strategic direction of crisis management operations.

The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation, without prejudice to Article 47.

***

The new consolidated version of Article 25 TEU should read like this:

Article 25

Without prejudice to Article 207 of the Treaty on the functioning of the European Union, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or of the High Representative of the Union for Foreign Affairs and Security Policy or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the High Representative.

Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of crisis management operations referred to in Article 28 B.

The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation.

***

The reference to the existing Article 207 TEC, Article III-247 in the draft Constitutional Treaty and Article III-344 in the Constitutional Treaty leads to Article 207 in the Treaty on the Functioning of the European Union (TFEU) points out the responsibilities of the Committee of the permanent representatives of the governments of the member states, known by the French acronym Coreper. In the Lisbon Treaty it has the following wording:

Article 207

1. A committee consisting of the Permanent Representatives of the Governments of the
Member States shall be responsible for preparing the work of the Council and for carrying out
the tasks assigned to it by the latter. The Committee may adopt procedural decisions in cases
provided for in the Council's Rules of Procedure.

2. The Council shall be assisted by a General Secretariat, under the responsibility of a
Secretary-General appointed by the Council.

The Council shall decide on the organisation of the General Secretariat by a simple majority.

3. The Council shall act by a simple majority regarding procedural matters and for the
adoption of its Rules of Procedure.

***

The Convention proposed the following Article III-208 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):

Article III-208

Without prejudice to Article III-247, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council of Ministers at the request of the latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the Union Minister for Foreign Affairs.

Within the scope of this Chapter, this Committee shall exercise, under the responsibility of the Council of Ministers and of the Union Minister for Foreign Affairs, political control and strategic
direction of crisis management operations, as defined in Article III-210.

The Council of Ministers may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council of Ministers, to take the relevant
measures concerning the political control and strategic direction of the operation.

***

The Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/138) Article III-307 looked like this:

Article III-307

1. Without prejudice to Article III-344, a Political and Security Committee shall monitor the
international situation in the areas covered by the common foreign and security policy and
contribute to the definition of policies by delivering opinions to the Council at the request of the
latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the Union Minister for
Foreign Affairs.

2. Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the Union Minister for Foreign Affairs, the political control and strategic direction of the crisis management operations referred to in Article III-309.

The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant measures concerning the political control and strategic direction of the operation.

***

The amended Article 25 is one of many examples where the existing Treaties are adapted technically as a consequence of the position of the High Representative and following the renaming of the TEC, which becomes the TFEU. These changes in the Lisbon Treaty are, of course, quite similar to the wording of the Constitutional Treaty, but more profoundly they express the essential continuity between much of the existing Treaties with the Reform Treaty.

The Political and Security Committee (French acronym COPS) does not encroach upon the responsibilities of Coreper to prepare the work of the Council, unless expressly mandated by the Council to manage a crisis situation.


Ralf Grahn