ORIGINAL PUBLISHED ON EU LAW ANALYSIS
by Steve Peers
Is the EU planning to create an army? If so, can and should the UK veto it – up until Brexit? The issue has been much debated in recent days. But this is the classic example of a debate that has created much heat but shed little light. The purpose of this post is to clear up misunderstandings. In short, the recently announced plans do not amount to an EU army – and so the UK is not able to veto the EU’s plans.
Initially, the EU’s foreign policy had little to do with defence, in deference to Irish neutrality and the UK’s strong support for NATO. This has changed gradually over the years as the Cold War ended, US troops left Europe, and the parallel non-EU defence organisation (the Western European Union) was wound down.
Since the Treaty of Lisbon, the rules on EU defence policy are set out in Articles 42-46 of the Treaty on European Union (TEU). I have included the full text of these Articles in an Annex to this post. The starting point (Article 42(1)) is that the EU has an ‘operational capacity’ to use on non-EU missions ‘for peace-keeping, conflict prevention and strengthening international security’, consistently with the UN Charter, as explained further in Article 43. These actions shall use ‘capabilities provided by the Member States’, meaning that they each retain their own armed forces. There’s a reference to using ‘multinational forces’ too (Article 42(3)), but it’s clear that it’s optional both to set up such forces and to contribute them to support the EU defence policy.
However, there is also a long-term objective. Article 42(2) TEU says that the EU includes ‘the progressive framing of a common Union defence policy’, which ‘will lead to a common defence’. But this policy must ‘respect’ the obligations of those Member States who are parties of NATO, and be ‘compatible’ with NATO policy. Equally it ‘shall not prejudice the specific character’ of some Member States’ defence policy: this is an oblique reference to neutrality. (Six Member States are neutral).
Most importantly, it will only happen when the European Council (consisting of Member States’ presidents and prime ministers) ‘acting unanimously, so decides’. That decision then needs to be ratified by Member States ‘in accordance with their respective constitutional requirements.’ For the UK, that would require a referendum, as set out in section 6(2) of the European Union Act 2011. It would need a referendum in Ireland too, since Article 29(4)(9) of the Irish Constitution rules out Irish participation in an EU common defence, and the Irish Constitution can only be amended by referendum. Other Member States may also have stringent constitutional requirements to this end.
What happens in the meantime, before this rather mythical notion of a common defence is achieved? Article 42(3) says that Member States must ‘undertake progressively to improve their military capabilities’. A ‘European Defence Agency’ (see further Article 45) is set up to this end. It’s possible for a group of Member States to take on an EU-wide task (Article 42(5), as set out in more detail in Article 44). Member States have an obligation of ‘aid and assistance’ to each other, if one of them is ‘the victim of armed aggression’, in accordance with the UN Charter (Article 42(7)). Finally, certain Member States which meet higher standards as regards their ‘military capabilities’ 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 EU (Article 42(6), referring to Article 46).
New EU plans
What are the EU’s new military plans? Some newspapers and commentators have referred to plans for an ‘EU army’, which at first sight implies a ‘common defence’. In turn, the UK’s defence minister is quoted as saying he would veto these plans, as long as the UK is part of the EU.
As we saw above, any Member State can indeed veto an EU ‘common defence’. But still, it’s striking to hear a supporter of the Leave side acknowledge that the UK can veto an EU army, since many of them suggested during the referendum campaign that this scary prospect was unavoidable if the UK remained part of the EU. Having said that, there’s a misunderstanding here. According to the information available, the proposal is not to create an EU army, and therefore the UK can’t veto it.
In fact, the ‘State of the Union’ speech by Commission President Juncker proposed four things: a joint headquarters for EU military missions; common procurement to save on defence costs; a Defence Fund for the EU defence industry; and the development of ‘permanent structured cooperation’, as referred to briefly above (and see below). It did not propose merging armies to create a common army. Some press reports suggest that the recent EU summit discussed a ‘common military force’, but the ‘Declaration’ and ‘Road Map’ issued after the summit make no mention of such a thing.
So what exactly is ‘permanent structured cooperation’? It’s described in Article 46 TEU, as well in as a Protocol attached to the Treaties. Article 46 sets out the process: it’s set up by willing Member States only. Any unwilling Member States can simply choose not to take part. There’s no veto on setting it up, but that’s because participation is voluntary. Member States can join once it’s underway – and leave at any time, with no conditions attached. If more EU policies were this flexible, EU participation would be less controversial – although in a post-truth world some people would undoubtedly deny that those policies were flexible in the first place. (If the current EU plans go ahead, I expect to read somewhere that the soldiers are inspired by Hitler, and armed with Muslamic ray guns).
As for the substance of ‘permanent structured cooperation’, it’s explained fully in the Protocol (also reproduced in the Annex). The criteria to join are development of defence capacities, and in particular supplying forces to support EU operations within a short period. Participating countries must aim to achieve approved levels of domestic spending, align their equipment and operability of their forces, fill capability gaps, and take part in joint procurement. That’s significant – but that’s it. It’s not an EU army.
Plans can always change. But the recent Commission plans, and the EU summit declaration, don’t amount to an EU army. And if there’s no EU army, the UK can’t veto one. It’s arguable whether a veto threat is a good negotiating strategy; but it’s indisputable that an empty threat is simply ridiculous.
A more rational approach to the issue would be to acknowledge (as a number of calmer voices on the Leave side have advocated) that the UK and the EU might well benefit mutually from continued defence and foreign policy cooperation after Brexit. In that light, the best way for the UK to spend its remaining time as an EU Member State as regards defence issues is to offer constructive criticism of the EU plans – and align that with sensible proposals for how post-Brexit EU/UK cooperation could go forward in this field.
Barnard & Peers: chapter 24
Annex – Treaty on European Union, defence clauses
- 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.
- 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.
- 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.
- 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.
- 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 44.
- 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 46. It shall not affect the provisions of Article 43.
- 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 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.
- 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.
- Within the framework of the decisions adopted in accordance with Article 43, 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.
- 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.
- The European Defence Agency referred to in Article 42(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.
- 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.
- Those Member States which wish to participate in the permanent structured cooperation referred to in Article 42(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 238(3)(a) of the Treaty on the Functioning of the European Union.
- 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 238(3)(a) of the Treaty on the Functioning of the European Union.
- 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.
- 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.
ON PERMANENT STRUCTURED COOPERATION
ESTABLISHED BY ARTICLE 42 OF THE TREATY ON EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVING REGARD TO Article 42(6) and Article 46 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 43 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:
The permanent structured cooperation referred to in Article 42(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 43 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.
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.
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 46 of the Treaty on European Union.