PERMANENT STRUCTURED COOPERATION
IN DEFENCE
7.119. The Lisbon Treaty introduces a new provision
allowing for a form of institutionalised cooperation between EU
Member States, called Permanent Structured Cooperation. Its exclusive
focus is the development of the military capabilities of the Member
States, which is "a key UK objective". It should not
be confused with the provisions on "enhanced cooperation"
in the current Treaties (Article 27a-d TEU), which specifically
exclude "matters having military or defence implications"[205].
7.120. As stated in the preamble of the Protocol,
the EU should be able to assume fully "its responsibilities
within the international community", including in response
to requests from the United Nations which have grown more frequent.
Despite efforts to improve the capabilities that Member States
can make available to the EU, it has struggled to deploy even
modest forces to theatres of operations such as the Democratic
Republic of the Congo and Chad. The objective of Permanent Structured
Cooperation is to improve these capabilities. As set out in Article
2 of the Protocol, Permanent Structured Cooperation covers a number
of different areas, such as investment in defence equipment. The
European Defence Agency (EDA) will have a role in contributing
to the regular assessment of participating Member States' contributions
with regards to capabilities (Article 3 of the Protocol), reflecting
its current role in capability development.
7.121. Andrew Mathewson, Head of the Directorate
for Policy on International Organisations at the Ministry of Defence,
explained that the existing Battlegroups initiative, which provided
the EU with a rapid reaction capability, could be considered a
form of Permanent Structured Cooperation. The Lisbon Treaty would
formalise and build on this initiative by creating specific provisions
setting out in detail the conditions of participation, and its
objectives and procedures. The new provisions permitted a deepening
of cooperation but did not represent a major departure from current
practice. Permanent Structured Cooperation was a "device
for encouraging nations to do more by way of developing capability"
(Mathewson, Q C40). This should serve to improve the military
capabilities available to both the EU and NATO.[206]
7.122. Charles Grant thought Permanent Structured
Cooperation would be a good thing if it encouraged other Member
States to spend more on defence (Q C80). Nick Witney, formerly
a senior MoD official and until recently the Chief Executive of
the European Defence Agency, believed that Permanent Structured
Cooperation could give a "powerful impetus" to the building
of better defence capabilities and a stronger defence technological
and industrial base in Europe (p C40). He expressed the view that
Permanent Structured Cooperation, by introducing a new political
dynamic and creating new small-group combinations, could be a
"key means for stimulating a more imaginative and energetic
Member State input to the increasingly urgent task of raising
Europe's game on defence" (p C40).
7.123. New Article 46 TEU sets out the rules
for the launching and functioning of Permanent Structured Cooperation.
The general rule is that decisions will be taken by QMV, including
on launching Permanent Structured Cooperation and on determining
the list of participating Member States[207].
This has provoked concern in some quarters[208]
that the UK could be either sidelined at the outset if it decides
not to participate, or outvoted if it does decide to participate.
In evidence to the House of Commons Foreign Affairs Committee,
Dr Javier Solana, High Representative for the CFSP, expressed
the view that Permanent Structured Cooperation "would be
inconceivable without the United Kingdom, which is at the core
of our security and defence capabilities ... it will not happen
without [the UK]. That is very clear to me".[209]
Open Europe expressed concern about the provisions on QMV in the
Lisbon Treaty, including those on structured cooperation (pp C37-38),
but these concerns were not shared by our other witnesses.
7.124. The Government's view was that the use
of QMV in this context was in the interest of the UK since it
prevented an individual Member State from blocking the establishment
of Permanent Structured Cooperation, from blocking another Member
State from subsequently joining, or from blocking the suspension
of a non-performing Member State. Capability development amongst
EU Member States was a key UK objective and it was "likely
that [the UK] would hope to launch [Permanent Structured Cooperation]
as soon as practicable after entry into force of the Reform Treaty,
in cooperation with other like-minded Member States" (p S82).
7.125. The possibility of recourse to QMV will
ensure that no other Member State, acting on its own, will be
able to veto a subsequent UK application to join. Any decisions
regarding the substantive implementation of Permanent Structured
Cooperation will be by unanimity of the participating Member States.
7.126. Permanent Structured Cooperation is
a form of enabling framework allowing the Member States who so
wish to cooperate more closely in the area of defence capabilities
development. Permanent Structured Cooperation is not a major departure
from current practice. Rather, it represents a continuation and
deepening of current forms of cooperation. Its objective is to
create a political dynamic among Member States towards the improvement
of European defence capabilities. Most of these new capabilities
should be available to both NATO and the EU and could therefore
serve to strengthen both organisations. While recognising that
under Permanent Structured Cooperation some decisions will be
taken by qualified majority voting, all decisions of substance
will be taken unanimously by the participating Member States.
Furthermore, the new Treaties will provide that "national
security remains the sole responsibility of each Member State"
(new Article 4 TEU).
AREAS WHERE THE LISBON TREATY CODIFIES
CURRENT PRACTICE
7.127. The first area of codification is the
introduction into the Treaties of a specific legal basis for the
European Defence Agency (EDA) (new Article 42 & 45 TEU). The
EDA already exists under a CFSP Joint Action, and the Lisbon Treaty
will codify what the Agency is doing on the basis of its current
mandate. Decisions regarding the EDA are currently taken by unanimity
by the representatives of the Member States, apart at present
from Denmark, meeting in the EDA Steering Board. The Lisbon Treaty,
of itself, will not have an impact on this. However, the Treaty
provides that the Council, acting by QMV, will adopt a decision
defining the Agency's statute, seat and operational rules.
7.128. The Treaty also codifies the scope of
the crisis management operations that can be undertaken by the
EU (Q C83). In addition to the types of operations that the EU
can carry out under the current Treaties the so-called Petersberg
tasks)[210], new Article
43 TEU introduces into the Treaty the tasks that were agreed by
EU heads of state and government in the European Security Strategy
of 2003, namely: joint disarmament operations, military advice
and assistance tasks, conflict prevention tasks, and post-conflict
stabilisation. The Treaty further stipulates that "All these
tasks may contribute to the fight against terrorism, including
by supporting third countries in combating terrorism in their
territories". This new language also reflects the evolution
of practice in UN peace support operations, which the EU is often
called upon to support or implement.
7.129. The provisions on the European Defence
Agency and on crisis management missions are a codification of
current practice and will therefore have little impact on the
European Security and Defence Policy/Common Security and Defence
Policy.
179 Sir Stephen Wall also thought foreign policy would
remain a separate pillar (Q S194). Back
180
The Lisbon Treaty also changes the nomenclature of CFSP instruments,
but not their legal status. Back
181
Currently "co-decision". Back
182
"If a member of the Council declares that, for vital 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" (Article 31(2) TEU, as amended by
the Lisbon Treaty, drawing on current Article 23(2) TEU). Back
183
See Chapter 3. Back
184
New Article 288 TFEU (drawing on current Article 249 TEC) states:
"A decision shall be binding in its entirety
".
The Lisbon Treaty does not change the binding nature of CFSP instruments
(e.g. Joint Actions and Common Positions, renamed "decisions"). Back
185
Article 31(1) TEU as amended. Back
186
Peter Hustinx, letter to the Presidency of the Intergovernmental
Conference, 23 July 2007. Back
187
See The EU-US Passenger Name Record (PNR) Agreement, 21st
Report of this Committee, Session 2006-07, HL Paper 108. Back
188
Jim Murphy MP, Minister for Europe, House of Commons Hansard,
column 446W, 8 January 2008. Back
189
The Paris Declaration, endorsed on 2 March 2005, is
an international agreement to which over one hundred Ministers,
Heads of Agencies and other Senior Officials adhered. They
committed their countries and organisations to continue to
increase efforts in harmonisation, alignment and managing aid
for results with a set of monitorable actions and indicators. Back
190
Jim Murphy MP, Minister for Europe, House of Commons Hansard,
column 446W, 8 January 2008. Back
191
Government Explanatory Memorandum, para 16. See also the annex
to the EM, point 30. Back
192
Jim Murphy MP, Minister for Europe, House of Commons Hansard,
column 446W, 8 January 2008. Back
193
Consular protection comes under the "non-discrimination and
citizenship" provisions (Title II, Part II) of the TFEU,
rather than under the "external action" provisions of
the TFEU, but it is included here because it relates to cooperation
between Member States' missions in third countries. Back
194
The Treaty will have no impact on the basis on which the UK Diplomatic
Service provides consular assistance to either British Overseas
Territories Citizens or unrepresented Commonwealth nationals (p S85). Back
195
Currently the external relations session of the General Affairs
and External Relations Council. Back
196
Paragraphs 2 and 3 of Article 18 TEU refer to the High Representative's
role in conducting the CFSP and making proposals, and his role
in chairing the Foreign Affairs Council. Back
197
The EU and the Middle East Peace Process, this Committee's
26th Report (2006-07), HL 132. Back
198
Q 581, evidence given by the Secretary of State for Foreign and
Commonwealth Affairs, the Rt. Hon. Mr David Miliband MP,
to the House of Commons Foreign Affairs Committee, 12 December
2007. Foreign Policy Aspects of the Lisbon Treaty, 3rd
report of Session 2007-08, HC 120-II. Back
199
Q 454, evidence given by Professor Christopher Hill to the House
of Commons Foreign Affairs Committee, 21 November 2007. Op.cit. Back
200
Of which approximately 1000 are based in Brussels at Commission
headquarters and 4000 are locally employed in the overseas Commission
delegations, according to Graham Avery (Q C15). Back
201
48th Report of Session 2005-06, HL Paper 268. Back
202
Government Explanatory Memorandum, para 25. Back
203
In full, article 51, Chapter VII, reads:
"Nothing in the present Charter
shall impair the inherent right of individual or collective self-defence
if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace
and security". Back
204
Jean-Claude Piris (2006) The Constitution for Europe-A legal
analysis, Cambridge University Press, Cambridge, p.161. Mr
Piris' analysis is on the mutual assistance clause as it appeared
in the European Constitutional Treaty (Article I-41(7)), the text
of which is identical to that in the Lisbon Treaty. Back
205
Government Explanatory Memorandum, para 26. Back
206
See also evidence given by Secretary of State Des Browne MP and
MoD officials to the House of Commons Defence Committee on 8 January
2008, especially Q 318. Back
207
See the written evidence from the Minister for Europe, Jim Murphy
MP, in which he explains the rules on QMV in detail (p S81). Back
208
For example, Bernard Jenkin MP, A Defence Policy for the UK: Matching
Commitments and Resources, Conservative Way Forward, London, November
2007. Back
209
Q 616, evidence given by Dr Javier Solana, High Representative
for the CFSP, to the House of Commons Foreign Affairs Committee,
8 January 2008. Foreign Policy Aspects of the Lisbon Treaty, 3rd
report of Session 2007-08, HC 120-I. Back
210
The Petersberg tasks set out in current Article 17(2) TEU are:
Humanitarian and rescue tasks, peace-keeping tasks and tasks of
combat forces in crisis management, including peacemaking. Back