Sweden in Europe: EU defence cooperation?

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

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

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


Solidarity clause

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

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

Defence policy

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

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

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

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

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

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

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



Ralf Grahn

EU permanent structured cooperation: operational military headquarters OHQ

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

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


Group of five

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

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

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

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


Public Service Europe

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


Egmont

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

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

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

SWP

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

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


Need for European action

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

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

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

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

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

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

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



Ralf Grahn

Common European defence: some questions

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

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


Coulisses de Bruxelles

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


European Geostrategy

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


Bruxelles2

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

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

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

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



Ralf Grahn

EU military headquarters – CSDP permanent structured cooperation

The euroblogger Jon Worth - @jonworth on Twitter – made me notice the Telegraph article by Bruno Waterfield: 'Big Five' tell Baroness Ashton to bypass Britain over EU military HQ.

Jon also had the kindness to point out that my old blog post about the legal base for deeper military cooperation between willing member states turned up first on Google search: EU Treaty of Lisbon: Permanent structured cooperation (1 February 2008).


Permanent structured cooperation history

My blog post offers the drafting history of permanent structured cooperation within the EU framework at treaty level, without dramatics.

I can only marvel at the editorial style of The Telegraph, but I think that a few comments are in order after the government of the United Kingdom vetoed the establishment of the military HQ for the European Union. See EUobserver: UK snubs Ashton over EU military headquarters (19 July 2011).


CSDP aims

The common security and defence policy (CSDP) of the European Union is an integral part of its common foreign and security policy (CFSP) (Article 42(1) TEU).

The common security and defence policy shall include the progressive framing of a common EU defence policy. This will lead to a common defence when the European Council, acting unanimously, so decides (Article 42(2) TEU).

There are still a few EU member states which describe themselves as neutral or non-aligned, there is the United Kingdom and perhaps a few other special cases.


CSDP permanent structured cooperation

Thus, the intergovernmental conference leading to the Treaty of Lisbon agreed on a formula to satisfy the countries with shared and higher ambitions in the military field.

If their military capabilities fulfil higher criteria and they have made more binding commitments to one another in the military area with a view to the most demanding missions, they shall establish permanent structured cooperation within the EU framework (Article 42(6) TEU).

Since the UK veto on the EU military headquarters prevents progress for the union as a whole, the advance group of willing countries has set in motion the procedure to establish permanent structured cooperation among themselves, according to the procedures outlined in Article 46 TEU and Protocol (No 10) on permanent structured cooperation established by Article 42 of the Treaty on European Union.

The British nationality of the EU high representative for foreign affairs and security policy, Catherine Ashton, is totally irrelevant. It is her duty to act in accordance with the EU Treaties.


European defence, NATO and the UK

If I have understood correctly, the cash-strapped US administration is experiencing a severe case of imperial overreach, and they have clamoured for the Europeans to take responsibility for their common defence, while preserving the fundamental transatlantic bridge through the NATO alliance.

It is sad that the United Kingdom, with its military know-how and resources, is dead set against participation, so the willing countries have to proceed with what they have. One more EU core is in the making.

The EU military HQ issue is but a small step, but sooner or later it will hopefully lead to a common European defence, the long term aim of the Treaty on European Union.



Ralf Grahn

EU Council tasks: Security & defence policy CSDP

The European Union’s common security and defence policy (CSDP) is an integral part of its common foreign and security policy (CFSP). At this stage of development, it is geared towards humanitarian, peace and crisis management missions drawing on both civilian and military assets (Petersberg tasks).

The Treaty of Lisbon envisions the progressive framing of a common Union defence policy, leading to a common defence.

The intergovernmental CSDP respects a) the ‘specific character’ of the security and defence policy of ‘certain member states’ (non-aligned, neutral) and b) the obligations of the vast majority which are NATO members.

We look at the Council’s CSDP tasks in the light of the Lisbon Treaty, with the relevant provisions located in the amended Treaty on European Union (TEU).


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Defining objectives

The Council of the European Union defines the objectives for the implementation of the CSDP, assisted by the European Defence Agency (EDA)(OJEU 9.5.2008 C 115):


Article 42(3) TEU


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.


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Unanimity

The CSDP decisions are adopted unanimously by the Council:


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.


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Delegation of tasks

The Council can delegate the execution of tasks (a mission) to a group of member states (Article 42(5) TEU), with the willing and able keeping the Council informed. If the decision needs to be changed, it is dealt with by the Council, as provided in Article 44 TEU.


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Implementation and scope

According to the second paragraph of Article 43 TEU, the Council adopts the decisions relating to the extended Petersberg tasks, listed in paragraph 1:


Article 43 TEU

1. The tasks referred to in Article 42(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.


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European Defence Agency

The European Defence Agency (EDA) is intergovernmental, ‘subject to the authority of the Council’ (Article 45 TEU). The EDA’s statute, seat and operational rules are adopted by the Council by a qualified majority.


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Permanent structured cooperation

According to Article 46 TEU, the Council adopts, by qualified majority, the decision establishing permanent structured cooperation (akin to enhanced cooperation in other policy areas) between member states, which fulfil the criteria and made the commitments on military capabilities in accordance with Protocol No. 10.

Decisions concerning later entrants are decided by the participating states.

Permanent structured cooperation is one of the questions in need of preparatory work, public discussion and implementing decisions, if the Treaty of Lisbon enters into force.


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Council configurations

The current Council configuration, the General Affairs and External Relations Council (GAERC), already meets separately for its two main areas of activity. The Lisbon Treaty would separate the configurations, and the Foreign Affairs Council (FAC) would carry on with the whole of the European Union's external action, namely common foreign and security policy, European security and defence policy, foreign trade, development cooperation and humanitarian aid. (Cf. current Council’s Rules of Procedure and Lisbon Article 16(6) TEU.)


The Defence Ministers of the EU member states convene in connection with GAERC meetings and for separate informal meetings. The latest informal meeting was held in Prague on 12 to 13 March 2009.


The Council is assisted by the Political and Security Committee (known as PSC or COPS), which monitors the international situation, delivers opinions and can be authorised to direct crisis management operations (Article 38 TEU).


The European Union Military Committee (EUMC) is the highest military body set up within the Council. It is composed of the Chiefs of Defence of the Member States, who are regularly represented by their permanent military representatives. The EUMC provides the PSC with advice and recommendations on all military matters within the EU.

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European Parliament

Being on the sidelines of the intergovernmental CSDP does not prevent the European Parliament from showing a keen interest in The European Security Strategy and ESDP, as witnessed by the 19 February 2009 EP Resolution P6_TA-PROV(2009)0075, based on an own-initiative report by the Committee on Foreign Affairs:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2009-0075+0+DOC+XML+V0//EN

The European Parliament sees the need for a common defence policy in Europe requiring an integrated European Armed Force which consequently needs to be equipped with common weapon systems so as to guarantee commonality and interoperability.

In addition, the EP Resolution offers an updated overview on the latest proposals and current shortcomings of the EU’s security and defence policy.



Ralf Grahn

European Council: Tasks

The current Article 4 of the Treaty on European Union (TEU) uses a sweeping formula to describe the tasks of the European Council (OJEU 29.12.2006 C 321 E/12):


Article 4 TEU

The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.


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General tasks

Impetus and general political guidelines cover all areas crucial for the development of the European Union. Without being an institution in the formal sense, the European Council is arguably the most important body setting the course for the European Union.

Its conclusions have set treaty reforms and other major developments in motion, but it also sets the limits to what the EU can achieve, taking into account the severe restrictions caused by consensus (unanimous) decision making.

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Specific tasks

Besides the general guidelines there are some provisions on specific tasks for the European Council.

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Reporting

According to the third paragraph of Article 4 TEU the European Council reports to the European Parliament after each meeting and annually:

The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.


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Meeting report

The Presidency Conclusions issued at the end of each European Council are the main instrument to communicate the results, but a livelier version is offered when the member state holding the Council Presidency reports to the European Parliament.

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Annual report

Subsidiarity and proportionality

According to the Protocol (No 30) on the application of the principles of subsidiarity and proportionality (1997) the Commission has an obligation to report annually on the application of Article 5 TEC. According to point 10 the European Council shall take account of the Commission report within the report on the progress achieved by the Union which it is required to submit to the European Parliament in accordance with Article 4 of the Treaty on European Union.

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CFSP and CSDP

The intergovernmental European Council makes the crucial decisions pertaining to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), according to Article 13(1) and (2) TEU:

1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.

2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.

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European defence

If and when the progressive development of a common defence policy leads to a common (European) defence, the decision is taken by the European Council, according to Article 17(1) TEU:

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.

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CFSP referral to the European Council

The decisions under Title V on the common foreign and security policy are basically taken unanimously by the Council, but with the possibility for a member state to abstain (Article 23(1) TEU).

Where the treaty foresees a decision by qualified majority, an opposing member state can use the so called emergency brake on grounds of important reasons of national policy. It must state its reasons and request that the matter be referred to the European Council for decision by unanimity (Article 23(2) TEU):

2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

— when adopting joint actions, common positions or taking any other decision on the basis of a common strategy,

— when adopting any decision implementing a joint action or a common position,

— when appointing a special representative in accordance with Article 18(5).
If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.

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Enhanced cooperation in criminal matters

A referral to the European Council is possible with regard to a decision to establish enhanced cooperation in an area of police and judicial cooperation in criminal matters (Title VI). The detour delays but does not stop the decision, if the requirements are fulfilled (Article 40a(2) TEU):

A member of the Council may request that the matter be referred to the European Council. After that matter has been raised before the European Council, the Council may act in accordance with the first subparagraph of this paragraph.


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Enhanced cooperation generally

Enhanced cooperation between member states in an area referred to in the Treaty establishing the European Community can be referred to the European Council, but it does not stop the pioneering group from moving ahead after the discussion (Article 11(2) TEC):


A member of the Council may request that the matter be referred to the European Council. After that matter has been raised before the European Council, the Council may act in accordance with the first subparagraph of this paragraph.


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Broad economic policy guidelines

The European Council formulates conclusions on the broad economic policy guidelines (BEPGs), according to Article 99(2) TEC.

The spring (March) European Council is traditionally the venue for economic policy and reform, including the BEPGs and the Lisbon Agenda for Growth and Jobs.

In a union with a (partly) common currency, but with national fiscal and economic policies, the European Council meeting starting tomorrow 18 March 2009 has its plate full in the middle of the serious financial crisis and economic recession.

This time the conclusions would have to be ground-breaking, if the European Council wants to turn the tide:

2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.

The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community.

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ECB reporting

Article 113(3) TEC adds the European Council to the addressees of reporting by the European Central Bank (ECB), almost as an afterthought:

3. The ECB shall address an annual report on the activities of the ESCB and on the monetary policy of both the previous and current year to the European Parliament, the Council and the Commission, and also to the European Council. The President of the ECB shall present this report to the Council and to the European Parliament, which may hold a general debate on that basis.


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Joint employment report

The European Council adopts conclusions (during its spring meeting) on the joint employment report by the Council and the Commission, according to Article 128(1) TEC:

1. The European Council shall each year consider the employment situation in the Community
and adopt conclusions thereon, on the basis of a joint annual report by the Council and the
Commission.


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Conclusion

The European Council has set in motion the major developments of the European Union during the last decades, but the construction is plagued by inadequate rules, highlighted by the recession.

Given that, what can we expect from the next two days?


Ralf Grahn

EU Treaty of Lisbon: Permanent structured cooperation

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

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

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

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

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

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

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Article 28e

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

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

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

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

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

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

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

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

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

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

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

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

THE HIGH CONTRACTING PARTIES,

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

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

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

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

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

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

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

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

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

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

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

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

Article 1

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

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

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

Article 2

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

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

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

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

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

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

Article 3

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

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

Article III-213

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

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

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

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

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

Article III-214

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

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

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

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

***

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

Article III-312

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

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

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

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

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

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

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

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

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

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

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

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

***

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

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

THE HIGH CONTRACTING PARTIES,

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

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

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

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

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

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

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

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

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

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

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

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

Article 1

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

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

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

Article 2

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

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

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

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

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

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

Article 3

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

***

Some remarks on the drafting history:

Permanent structured cooperation was a novelty in the draft Constitution.

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

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

The Constitution added the Protocol envisioned by the Convention.

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

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

***

A few general comments:

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

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

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

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

The laggards are being offered the option to join later.

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

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

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

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


Ralf Grahn


Source:

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

EU Treaty of Lisbon: European Defence Agency

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

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

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

***

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

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

-----

Article 28d

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

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

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

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

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

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

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

***

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

Article III-212

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

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

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

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

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

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

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

***

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

Article III-311

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

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

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

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

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

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

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

***

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

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

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

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

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

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

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

Concrete projects are forged between restricted groups of member states.

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

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

***

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


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

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

Article 2
Mission

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

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

***


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

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


Ralf Grahn


Source:

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

EU Treaty of Lisbon: 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.

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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.

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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.”

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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).


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


Ralf Grahn