Supplementary memorandum from the Ministry
of Defence
1. This memorandum is provided by the Ministry
of Defence as written evidence for the House of Commons Defence
Committee Inquiry: The Future of NATO and European Defence. It
seeks to answer questions asked by the Committee in the first
section of its letter of 11 January (in italics in the text),
which requested further information on legal aspects of the EU
reform treaty, as offered by the Secretary of State's during his
evidence session on 8 January.
What are the potential legal effects of
the merging of the EC and the EU for CFSP and ESDP for UK domestic
and international law?
2. While the European Community will disappear
with the entry into force of the Reform Treaty, the European Union
will succeed the European Community and in particular to its rights
and obligations under international law and, insofar as it is
applicable, under law in the United Kingdom. This change will
not affect CFSP since CFSP falls within the Treaty on European
Union (TEU) under which the European Union is the actor rather
than the European Community. CFSP includes ESDP as an integral
part of it (see Article 28A(1) (Article 42(1) in new numbering
introduced by the table of equivalences in the Reform Treaty).
CFSP will remain within the Treaty on European Union and will
be distinct in a number of ways from those policies falling under
the Treaty on the Functioning of the European Union (TFEU). One
way in which CFSP will be distinct from policies falling under
the TFEU will be that, with two, limited exceptions, the Court
of Justice of the European Union will not have jurisdiction with
respect to provisions relating to the Common Foreign and Security
Policy or acts adopted under them (see TFEU Article 240a (Article
275 in new numbering))
Is it the case that foreign and security policy
(including CFSP) remains "inter-governmental"?
3. Yes.
What is the status in international law of the
declaration which states that nothing in the treaties affects
the existing powers of Member States to formulate and conduct
their foreign policy, including monitoring their own national
diplomatic services and membership of the United Nations Security
Council?
4. The declaration sets out political commitments
made by all 27 of the Member States. It records their understandings
that any changes in the provisions of the TEU on CFSP, including
the establishment of the new post of High Representative of the
Union for Foreign Affairs and Security Policy and of the External
Action Service, leave the existing powers of the Member States
unaffected. It specifically recalls that the provisions governing
the common security and defence policy do not prejudice the specific
character of the security and defence policy of the Member States.
Declarations relating to a treaty form part of the context for
its interpretation (see the Vienna Convention on the Law of Treaties
Article 31(2)). The declaration and its companion declaration
will be part of the context in which the common foreign and security
policy is applied.
What is the effect of the EU as a whole acquiring
"legal personality"? Does this mean the EU will be able
to sign defence and military treaties?
5. The EU already has legal personality
to the extent that it has the express power today to conclude
international agreements, including defence and military treaties
(see Article 24, Treaty on the European Union). Accordingly, the
Lisbon Treaty's assertion in Article 46A that the EU shall have
legal personality does not give the Union any new power to conclude
international agreements. In any event, it has already concluded
about a hundred agreements. Any decision to sign a treaty with
defence or security implications could only be taken by unanimity.
The European Community has had legal personality from its beginning.
Conferring express single legal personality on the Union is appropriate
in order to achieve the aim of more coherent action internationally
in the areas of the common foreign and security policy and the
areas currently covered by external action in the European Community
Treaty. Conferring express legal personality on the EU will bring
about no changes in decision-making procedures or EU competences.
Does the exclusion of the Court of Justice from
the common foreign and security policy in Article 11(1) provide
comprehensive protection for all areas of foreign and defence
policy of the Member States from jurisdiction by the Court? What
is the definition of "common foreign and security" which
the Court is likely to use when limiting its jurisdiction?
6. Article 11(1) TEU (Article 24(1) in new
numbering) and the provision in the TFEU, Article 240a (Article
275 in new numbering) which is the article, among the various
TFEU articles on the jurisdiction of the Court of Justice, dealing
with the exclusion of jurisdiction from CFSP matters, together
offer comprehensive protection for all areas of the common foreign
and security policy, subject to the two exceptions referred to
in those articles (monitoring compliance with TEU Article 25b
(Article 40 in new numbering) and reviewing the legality of certain
decisions as provided for by TFEU Article 240a(2) (Article 275(2)
in new numbering).
7. The common foreign and security policy
including ESDP is not defined in the TEU. The TEU, Article 11,
states that the Union's competence in matters of the common foreign
and security policy shall "cover all areas of foreign policy
and all questions relating to the Union's security". The
Court could use the words in quotation marks as a working definition
of "common foreign and security" when deciding on the
limits of its jurisdiction. TFEU Article 240a expressly provides
that the Court of Justice "shall not have jurisdiction with
respect to the provisions relating to the common foreign and security
policy nor with respect to acts adopted on the basis of those
provisions". Any provisions relating to the common foreign
and security policy including ESDP are caught by this exclusion
of the ECJ's jurisdiction."
Is Article 3 ("The Union's aim is to promote
peace . . . ") justiciable by the Court and could this provide
an avenue for widening the Court's jurisdiction in future?
8. Article 2(1) TEU (Article 3 in new numbering),
which sets out the Union's objectives, including the Union's aim
to promote peace, will be justiciable by the Court of Justice.
It will not however be justiciable insofar as it might relate
to CFSP (pursuant to Article 240a). Nor would it be possible to
use it as an avenue to widen the Court's jurisdiction in future
because Article 308(1), TFEU (Article 352(1) in new numbering),
which sets out that, if action by the Union should prove necessary
to attain one of the objectives of the Treaties, but that the
Treaties have not provided the necessary powers, the Council can
adopt the appropriate measures, is specifically excluded from
applying to the CFSP by Article 308(4). Furthermore, any acts
adopted under Article 308 must respect the limits set out in TEU
Article 25b(2) (Article 40(2) in new numbering). Article 25b(2)
TFEU (Article 40(2) in new numbering) provides that the implementation
of Union policies under the TFEU shall not affect the application
of the procedures and powers of the institutions acting under
CFSP.
What obligations in international law are created
by Title V? While not justiciable by the EU Court, are they still
enforceable in international law? What is the effect of Article
11(3) which states:
"The Member States shall support the
Union's external and security policy actively and unreservedly
in a spirit of mutual solidarity and shall comply with the Union's
action in this area."
"The Member States shall work together
to enhance and develop their mutual political solidarity. They
shall refrain from any action which is contrary to the interests
of the Union or likely to impair its effectiveness as a cohesive
force in international relations."
9. Title V TEU is part of a treaty, the
Treaty on European Union, as amended by the Reform Treaty. It
creates obligations for the Member States which are the parties
to the TEU under the law of treaties. While a breach of a provision
under Title V would be a breach of a treaty obligation like any
other treaty obligation, it is inconceivable that a Member State
would take another Member State before the International Court
of Justice even if the necessary jurisdictional grounds were satisfied.
10. The question to do with the effect of
Article 11(3) TEU (Article 24(3) in new numbering) is a different
issue. This provision is about the duty of loyal cooperation owed
by the Member States to the Union. A provision containing much
the same language is to be found in the current Article 11(3)
TEU. Having agreed to establish the Union and endow it with certain
powers, the corollary is that the Member States agree not to undermine
it and to support the action it is empowered by the Member States
under the TEU to take in the area of the common foreign and security
policy, through the High Representative and the External Action
Service.
What is the effect of increased qualified majority
voting under Title V?
11. The effect of increased qualified majority
voting under Title V of the TEU as amended by the Reform Treaty
does not apply to decisions with defence or military implications
(see Article 15b (Article 31 in new numbering)).
Does the so-called "passerelle clause"
(Article 33(7)) enable the EU to widen areas of qualified majority
voting in foreign and defence policy? Would this require any reference
to Parliament?
12. The passerelle clause in Article 33(7)
(now Article 48(7) (Article 48(7) also in new numbering) does
not apply to decisions having military or defence implications.
Where it does apply, the European Council's initiative to authorise
the Council to act by QMV in a specific case or area must be notified
to national Parliaments, including the UK Parliament. If any national
Parliament is opposed to the initiative, the European Council
may not adopt a decision moving to QMV. Furthermore the decision
of the European Council is taken by unanimity. Clause 6(1)(b)
of the Bill requires Parliamentary approval to be given before
the United Kingdom can support the decision.
Does the role of High Representative materially
increase his influence over the Union's foreign and security policy?
13. The High Representative's role is designed
primarily to enable the EU to act more coherently on the international
scene because he is not only the High Representative for the common
security and defence policy but also a Vice President of the Commission
for external affairs other than those under the common security
and defence policy. He will be able to make proposals but will
have to carry out decisions adopted by the Council and the European
Council as mandated by their decisions. While he can conduct political
dialogue with third parties and express the Union's position in
international organisations and conferences, this is ultimately
under the control of the Member States deciding by unanimity.
His role is primarily one of making proposals, coordination, implementation
and the giving out of information.
Does the Commission have the right of initiative
in foreign and defence policy?
14. The Commission, along with any Member
State, may under the present Treaty on European Union, refer to
the Council any question relating to the common foreign and security
policy and may submit proposals to the Council. Under the TEU
as amended by the Reform Treaty, the Commission does not have
its own right of initiative. In future any Member State, the High
Representative or the High Representative with the Commission's
support may refer to the Council any question relating to the
common foreign and security policy and may submit initiatives
or proposals to the Council as appropriate (see TEU Article 15a)
(Article 30 in the new numbering).
How does the Lisbon Treaty affect the respective
roles of the European and National Parliaments in decision-taking?
15. Under Article 48(7) (Article 48(7) new
numbering) TEU, national Parliaments are for the first time involved
in decision taking in the area of the common foreign and security
policy. This is in the context of when the European Council seeks
to adopt a decision authorising the Council to move from acting
by unanimity in a given area or case to acting by qualified majority
voting, except for decisions with military implications or those
in the area of defence (which must always be taken by unanimity).
Any initiative taken by the European Council on the basis of this
provision must be notified first to the national Parliaments.
If any national Parliament makes its opposition to the change
known within six months of the date of notification by the European
Council, the decision cannot be adopted by the European Council.
The European Parliament also gives its consent under these provisions
but not for decisions with military implications or those in the
area of defence.
Does Article 27(7) duplicate NATO's function as
a mutual defence pact?
16. Article 27(7) on mutual defence is renumbered
as 28A TEU (Article 42 in the new numbering). Article 28A(7) does
not duplicate NATO's function as a mutual defence pact because
not all members of the European Union are members of NATO. The
mutual defence provision provides an obligation on Member States
to come to the aid and assistance of another Member State which
is the victim of armed aggression on its territory. For the first
time EU Member States which are not also members of NATO are now
committed to the defence of their fellow Member States (to the
potential benefit of the UK). The obligation to provide assistance
falls on individual Member States, not the EU. The provision therefore
does not provide a basis for the development of an EU collective
defence organisation to rival NATO. The Reform Treaty makes clear
that for members which are members of NATO, NATO remains the foundation
of their collective defence and the forum for its implementation.
What does Article 27(2) mean for NATO?
17. Article 27(2) has become Article 28A(2)
TEU (Article 42(2) in the new numbering). This provision does
not have any implications for NATO. It is clearly provided that
the policy of the Union in accordance with this provision shall
not prejudice the specific character of the security and defence
policy of those Member States which are NATO members. It shall
also respect the obligations of those Member States which see
their common defence realised through NATO under the North Atlantic
Treaty and be compatible with the common security and defence
policy established within NATO. Decisions on framing a common
Union defence policy require unanimity and, furthermore, would
require Parliamentary ratification, in accordance with the constitutional
requirements of each Member State. It is entirely possible that
a decision leading to a common defence may never be adopted or
come into force. The language of the provision is based on and
in substance the same as equivalent language in the current TEU
(Article 17(1)).
Does "permanent structured co-operation"
provide for a single Member State's absolute veto over EU foreign
and defence policy?
18. The provisions on permanent structured
co-operation including in the Protocol on permanent structured
co-operation do not affect foreign and defence policy but are
solely limited to the purpose of developing military capabilities.
This is in line with UK objectives for improving European capability
development.
Does the treaty limit the European Defence Agency
(EDA) to the co-ordination of the defence industry in the EU,
or is its role potentially wider? Does "permanent structured
co-operation" in this context continue to provide for a single
Member State's veto over the EDA's policies and actions?
19. The European Defence Agency has already
been established. It was established by a joint action in 2004.
Article 28A(3) (Article 42(3) in the new numbering) sets out the
main roles of the Agency. These are 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. Its task is further
spelt out in Article 28D(1) (Article 45(1) in new numbering).
20. Decisions in relation to these matters
would, like other decisions relating to the common security and
defence policy, be adopted unanimously by the Council except where
it is specifically provided that QMV applies. In the context of
the European Defence Agency, the Council only acts by QMV when
adopting a decision defining its statute, seat and operational
rules (see Article 28D(2) (Article 45(2) in the new numbering)).
Although the Reform Treaty provides for the adoption of such a
decision, the matters to do with the EDA's statute, seat and operational
rules were decided upon in the 2004 joint action. It is not anticipated
that there will be any further need for decisions in this area.
18 February 2008
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