Memorandum submitted by Professor Richard
G Whitman, University of Bath
FOREIGN, SECURITY AND DEFENCE POLICY AND
THE REFORM TREATY: SIGNIFICANT OR COSMETIC REFORMS?
The EU Reform Treaty is to be signed in Lisbon
on 13 December 2007. The Treaty includes a set of revisions to
the Common Foreign and Security Policy and the European Security
and Defence Policy and these changes are outlined and assessed
below. A consolidated version of the changes to the Treaty on
European Union made by the Reform Treaty can be found at www.bath.ac.uk/rgw22
and all the articles referred to below are the articles of the
TEU post-Reform Treaty amendments unless otherwise indicated.
FROM CONSTITUTIONAL
TREATY TO
REFORM TREATY
The EU Heads of State and Government reached
agreement on the Reform Treaty (RT), the successor text to the
Constitutional Treaty, in Lisbon on 19 October 2007. The text
of the RT is based heavily upon the text of the Constitutional
Treaty. However, a key difference from the Constitutional Treaty
is that the Reform Treaty will not replace the existing founding
Treaties and the Treaty on European Union. Rather, the Reform
Treaty is a set of amendments to the Treaty establishing the European
Communities (to be renamed the Treaty on the Functioning of the
European Union—TFEU) and The Treaty on European Union (TEU).
The latter is heavily amended by the RT with 25 of the 62 amendments
to the TEU pertaining to the CFSP and ESDP provisions of the existing
Treaty. The overwhelming majority of the changes that were previously
proposed in the Constitutional Treaty for the CFSP/ESDP have been
retained in the RT.
AMENDMENTS TO
THE TREATY
ON EUROPEAN
UNION
The changes to the CFSP/ESDP provisions of the
TEU in the RT can be broken down into two main types: those that
amend the CFSP/ESDP within the structure of the EU's policy universe;
and those amendments that have consequences for the decision-making
and implementation of the CFSP/ESDP. Each of these sets of changes
will be examined in turn.
Remodelling the wider foreign policy
A key change to the existing arrangements of
the CFSP/ESDP within the EU's panoply of foreign policy is the
"rebranding" of all aspects of the EU's foreign policy
and external relations under the new heading of "External
Action". This has implications for decision-making explored
below. In terms of the Treaties the changes are that the old Title
V of the TEU is replaced by two new chapters. The first of these
chapters covers "General Provisions on the Union's External
Action" (and contains two new articles 10a and 10b that draw
some wording from the old TEU article 11) and is an entirely new
set of principles and general objectives for the wider External
Action area and understood as covering the CFSP/ESDP; a new part
V of the TFEU entitled "External Action by the Union"
(and which draws together the old EC Treaty provisions covering
the Common Commercial Policy, Cooperation with third countries
and humanitarian aid, restrictive measures, international agreements,
relations with international organisations and third countries
and Union delegations and the solidarity clause); and "external
aspects of its other policy areas". The second of the two
new chapters contains the "specific provisions on the common
foreign and security policy". The new CFSP chapter runs from
articles 10c-31 (as opposed to 11-28 for the existing TEU). The
CFSP chapter is also divided into two sections: "Common Provisions"
and "Provisions on the Common Security and Defence Policy".
The consequence of this division (and the moving and re-ordering
of treaty articles) is that the ESDP/CSDP provisions, and which
are greatly expanded, are now separated out more than was the
case previously. And the provisions dealing with expenditure matters
are moved into the first chapter of the Treaty. Those dealing
with enhanced cooperation are also removed (and now covered by
a new Article 10 for the TEU that covers enhanced cooperation
across all the Union's policy areas). Provisions covering agreements
with third parties and international organisations are also greatly
streamlined (Article 22).
External action provisions impacting on the CFSP/ESDP
It should also be noted that a number of other
changes introduced that have implications for foreign policy but
not contained within the CFSP/ESDP sections of RT. These include
the grant of legal personality to the EU (article 32 of the revised
TEU) and the creation of the position of President of the European
Council. The latter only appears once in the CFSP chapter under
article 13 on the basis that "If international developments
so require, the President of the European Council shall convene
an extraordinary meeting of the European Council in order to define
the strategic lines of the Union's policy in the face of such
developments." Article 9b of the revised TEU that provides
for the creation of the President of the European Council states
that:
The President of the European Council shall,
at his or her level and in that capacity, ensure the external
representation of the Union on issues concerning its common foreign
and security policy, without prejudice to the powers of the High
Representative of the Union for Foreign Affairs and Security Policy.
(Article 9b(6))
The degree of working harmony (or prejudice)
established in the relationship between the first incumbent President
and the HR remains to be seen. Much may depend on the personality
of the two post-holders and the European Council President has
the much less clearly defined job description in the revised TEU.
Changes to decision-making
The second set of changes to the TEU by the
RT are those amendments that have consequences for the decision-making
and implementation of the CFSP/ESDP.
Remaining distinctive
Although there are changes to arrangements for
the decision-making and implementation of the CFSP/ESDP the underlying
principle of a distinctive decision-making regime for the policy
area is retained. The CFSP/ESDP remains a distinctive "pillar"
in that the roles of the Commission, European Court of Justice
and European Parliament are very heavily circumscribed (and explicitly
indicated in a revised Article 11 and in a new Article 240a of
TFEU explicitly spelling out that the ECJ has no jurisdiction
over the CFSP provisions). Most of the existing references to
the Commission are removed (eg existing Article 14) and Commission
initiatives on CFSP matters are to be directed through the HR
(Article 16). The European Parliament is also enjoined to increase
its annual debate on the CFSP to twice per annum and to expand
this debate to encompass the ESDP (Article 21).
Seeking a common approach
There is, however, a substantively new article
(revised Article 16 now renumbered Article 17a) making it incumbent
on member states to seek a "common approach" on matters
of foreign and security policy and to be pursued by member states
through their diplomatic representation in third countries and
in international organisations. It also places greater obligations
on Member States to ensure that any policies that may be pursued
and "affect the Union's interests" require consultation
either in the European Council or Council and member states are
required to show mutual solidarity. Whether this Article is a
"paper tiger" provision remains to be seen but there
is no provision for formal sanctions on a member state that does
not comply. Member States that are members of the UN Security
Council are also tasked with using the HR to represent collective
policy in the UNSC where the Union has defined a position (Article
19).
Limited revisions to procedures of decision making
Unanimity remains the norm in decision-making
except where otherwise explicitly provided for (in article 17.2)
and there is the addition of one new area in which member states
may take decisions by a qualified majority. This is for where
the Council is adopting a decision defining a Union action or
position, on the basis of a proposal "which the High Representative
of the Union for Foreign Affairs and Security Policy has presented
following a specific request to him or her from the European Council,
made on its own initiative or that of the High Representative".
The provision that previously allowed for majority voting in the
implementation of Common Strategies is retained in a revised form
(to cover the replacement arrangement noted above) and by still
permitting implementation of actions or provisions by voting.
There is also now a provision allowing the European Council to
(unanimously) adopt a decision allowing for the extension of areas
covered by majority voting.
Constructive abstention is retained in Article
17 but with the change that the existing blocking minority of
one third of member states now also needs to comprise at least
one third of the population of the Union. The "Emergency
Brake" is also retained for member states opposed to the
move to a decision to be taken on the basis of a majority vote.
The HR is given the role to seek a solution for the state concerned
before the issue would be referred to the European Council.
The existing institutional hierarchy of the
CFSP is retained with the European Council (unanimously) setting
broad objectives. The change to the implementation is that the
HR is now given a much more prominent role. Common Strategies
(and which, in recent years, have become a redundant device) have
been removed from the Treaty. The European Council does, however,
still retain the role to take formal "decisions" to
"identify the strategic interests and objectives of the Union"
(Article 10b and Article 13).
Joint Actions and Common Positions are reworked
within the RT and with the reference now to adopt "decisions"
taken to facilitate "actions" to be undertaken and "positions"
to be held by the EU and its member states (Articles 12, 14, 15).
High Representative
The most significant set of changes to decision-making
concern the revamped role of the High Representative. The "new"
High Representative of the Union for Foreign Affairs and Security
Policy has already attracted attention as the post-holder will
also simultaneously "double-hat" as a Vice-President
of the Commission (RT Article 9e). The High Representative will
be a personification, and the animus, of the new gathering together
of all aspects of External Action, formally responsible for its
consistency across the Treaties and institutions (RT Article 9e(4)
) and clearly key to achieving the ambition of greater synergy
across all aspects of External Action. The HR is appointed by
the European Council (under majority voting provisions) for the
same five year term as the Commission and subject to the European
Parliament vote of consent on the incoming college of Commissioners.
The HR will replace the Presidency as the key animating force
of the CFSP (Article 16). Consequently a number of changes to
the TEU concern the powers and responsibilities of the High Representative
and place the post holder at the centre of coordinating (including
within international organizations and conferences under Article
19), directing and implementing the CFSP. A new article (13b)
sets out strengthened responsibilities and powers for the HR and
which include the chairing of the (new) Foreign Affairs Council
(and nominating the chair of the PSC under Declaration 3 of the
RT), representing the Union with third parties and within international
organizations and conferences and providing for support through
the new European External Action Service (EEAS). The HR also takes
on the responsibility (previously exercised by the Council) for
proposing and managing Special Representatives (Article 18), the
facility to task the PSC with work (Article 23) and replacing
the Presidency in representing the CFSP to the European Parliament
(Article 21).
External Action Service and Union delegations
One of the more eye-catching innovations of
the RT is the introduction of the European External Action Service
(EEAS) tasked with assisting the HR (Article 13(3) ). The EEAS
is intended as the "28th" diplomatic service of the
EU and, under the RT provisions, intended to be staffed by officials
from the General Secretariat of the Council, the Commission and
staff seconded from the diplomatic services of the Member States.
The exact organization and modus operandi of EEAS is to be determined
by the Council acting on the basis of a proposal from the HR and
after there has been consultation of the European Parliament and
"the consent" of the Commission. Under Declaration 22
of the RT preparatory work on the EEAS is to commence after the
RT is signed and so before ratification has been concluded. The
current European Commission delegations in third countries and
international organizations are to be re-titled Union delegations
and placed under the authority of the HR (TFEU article 188q) but
explicit provision is not made for them to become a part of the
EEAS.
New provisions on financing
There is an important change to the arrangements
for funding expenditure for the CFSP. In addition to the existing
provisions for charging administrative and operating expenditure
to the Union budget there are new provisions covering circumstances
in which the EU may wish to have rapid access to the Union budget,
in particular for matters covered by ESDP articles 27(1) and 28),
and if not charged to the Union budget then chargeable to a start-up
fund to be financed by the member states. The arrangements to
govern both of these circumstances are to be determined by the
Council in due course (Article 26(3) ) and on the basis of a proposal
from the HR.
CHANGES TO THE ESDP
The RT changes to the TEU provision dealing
the common defence policy represent a significant proportion of
the new articles introduced. Article 17 of the TEU that, feeling
increasingly threadbare, governed the ESDP is expanded to create
a new section of the TEU and contained within new Treaty articles
27-31. These new articles provide for five main changes to the
ESDP: to expand the aims and ambitions of the ESDP; to expand
the range of Petersberg tasks; to provide for the creation of
the European Defence Agency; to introduce permanent structured
cooperation; and to introduce sub-contracting to "coalitions
of the able and willing" member states.
The aims and ambitions of the ESDP are much
more expansively outlined in a greatly expanded Article 17(1)
and contained in a new Article 27(1)-(7). Notably there is considerable
attention given to the member states committing to progressively
enhance their military capabilities. Commitments to the Atlantic
Alliance remain in the Treaty—and with a stronger reference
to NATO as the "foundation for collective defence".
The remaining reference to the WEU is removed and there is the
introduction of a very soft WEU article V-type guarantee and which
reads "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
. . .".
The Petersberg tasks are greatly expanded, from
what was formerly contained in 17(2), in a new Article (28) to
now read as follows: "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 European Defence Agency is formally introduced
to the Treaty, under Article 27(3), and with Article 30 detailing
the aims and ambitions for the Agency. The provisions also make
clear that membership of the Agency is on an "opt-in"
basis and that sub-groupings of member states are envisioned for
joint projects.
Articles 27(6) and 30 provide for permanent
structured cooperation among member states (and also with arrangements
for its functioning specified in an additional RT Protocol no.4).
The decision for the establishment of permanent structure cooperation
is to be that for the full Council under a qualified majority.
There are also provisions provided for the expansion of such a
group (on the basis of a qualified majority of those already engaged
in structured cooperation) and provisions for suspending a member
for failing to fulfill obligations on the same decision-making
basis. The governing arrangements for permanent structured cooperation
do not convey the impression of streamline decision-making and
there may be a repeat of the experience of enhanced cooperation
with the CFSP which has been a device of insignificance.
The provisions facilitating "coalitions
of the able and willing" member states under articles 27(5)
and 29 are a potentially more interesting innovation especially
(and in contrast to those on permanent structured cooperation)
because they are much more light-touch. It is a decision of the
Council to authorize such a grouping and for the group to liaise
with the HR on management arrangements for the task in-hand.
CONCLUDING COMMENTS
The RT revamps, rather than revolutionises,
the existing arrangements for the CFSP/ESDP. A key determinant
of the effect of the changes introduced will be whether the future
occupants of the position of HR are able to fully utilise the
additional powers that now accrue to the position.
The ambition is for the ratification of the
Reform Treaty to be complete for entry into force of the revised
TEU and TFEU treaties on 1st January 2009. The member states have
negotiated the new Treaty with the express intention of overcoming
the ratification problems associated with the Constitutional Treaty
(as illustrated by changing the original name of the HR away from
the "Union Minister for Foreign Affairs"). And with
an eye to potential ratification difficulties, two new Declarations
(nos 30 and 31) are attached to the RT and provide political cover
for governments that wish to convey the impression that nothing
in the RT hinders their existing ability to define or implement
national foreign policy. Whether the RT will enhance the CFSP/ESDP
waits to be seen.
November 2007
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