Select Committee on Defence Written Evidence

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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