House of Lords - European Union

Select Committee on European Union Written Evidence

Memorandum by Open Europe

1. What are the implications of the changes in the functions of High Representative, who will also hold the position of Vice-President of the European Commission?

While the title "Union Minister for Foreign Affairs" has been replaced by the High Representative of the Union for Foreign Affairs and Security Policy, he or she will have all the same powers as proposed in the original Constitution—against the wishes of the UK.

Despite UK resistance to giving the Commission a direct role in foreign policy since 1992, the current Government accepted that the new minister will be a member (Vice-President) of the Commission, under the terms of the Reform Treaty. This "double-hatting" blurs the distinction between the EU's intergovernmental and "supranational" bodies—giving the High Representative a hand in each. This merging of two positions will provide the new High Representative with the "diplomatic clout of the current foreign policy and security chief, Javier Solana, plus the financial clout of External Relations Commissioner, Benita Ferrero-Waldner, who currently controls the EU foreign aid budget", as explained by UK Ministers Gareth Thomas and Jim Murphy.[1]

Perhaps one of the most important changes is that when the Council asks the new High Representative for a proposal on a particular subject, once he or she has made that proposal it will be subject to majority voting.

The proposed Article 17(2) TEU stipulates that the Council shall act by qualified majority, "when adopting a decision defining a Union action or position, on 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".

So not only would the High Representative be able to devise proposals, (which has raised debate regarding exclusivity on the right of initiative on military missions) but the majority voting process means the UK would be prevented from vetoing such a proposal.

This change could have important repercussions. EU states could (unanimously) ask the High Representative to devise with a plan but then, if individual states such as the UK don't agree with what he/she proposes, could find themselves in a majority voting situation. For example, in the squabble between NATO and the EU over who will supply air transport to the African Union troops in Darfur, the UK might not be able to block the EU from pointlessly duplicating NATO—if this was proposed as part of a plan from the High Representative.

What are the implications of the High Representative's role in chairing the Foreign Affairs Council?

Despite initial opposition, the UK accepted that the High Representative will chair meetings of the EU General Affairs and External Relations Council. This new role serves to further concentrate power in the hands of the High Representative, and increase his/her representation within and access to various EU bodies. As the Guardian noted: "Britain said the new official should not chair regular meetings of EU foreign ministers, nor take over the resources of the European Commissioner for external affairs. It lost."[2]

What are the implications of the High Representative's role in representing the EU in international organisations?

In addition to the power to appoint EU envoys, the new High Representative will have an automatic right to speak for the UK in the UN Security Council on issues where the EU has taken a position.

Under Article 19 (2) of the Treaty, "When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be asked to present the Union's position". While the Government has reiterated its point that the UK will not lose its permanent seat at the UN Security Council, UK self-representation will be minimized with the passage of the Treaty.

Although concerns surrounding representation rights may seem premature based on the vague new treaty text alone, they are substantiated by leading EU and Member State officials' statements. Last October, Lord Malloch Brown, then Deputy General Secretary of the UN, told Brussels diplomats that the EU was heading towards representation by a single seat within the UN institutions. He said, "I think it will go in stages. We are going to see a growing spread of it institution by institution. It is not going to happen with a flash and a bang." He added that he hoped that it would happen "as quickly as possible. I'm a huge fan of it."[3]

This is reaffirmed by EU officials, including the European Commissioner for External Affairs, Benita Ferrero-Waldner, who said "Europe must speak with one voice in the Security Council ... I think that one should consider a special seat for the EU in the Security Council."[4] The current EU High Representative, Javier Solana, also discussed having one seat in the UN for the EU. He said, "Imagine what influence Europe could have had if it had spoken with one voice?"[5]

2. Will the establishment of a European External Action Service make the EU's external action more coherent and effective? What issues arise with regards to its structure, functioning, mechanisms for accountability and financing? What effects, if any, will it have on the UK's foreign policy and diplomatic service?

A single "European External Action Service" as proposed in the Treaty would for the first time bring together national officials with the 745 civil servants in the Commission's DG external relations and the 4,751 members of staff in the Commission's existing "delegations" around the world.

If the Treaty is approved, the new diplomatic force will begin to take shape in January 2009, although it is expected to take far longer to establish a functional and effective EU diplomatic corps.

Article 13b states that decisions in the creation of a diplomatic service will be made by qualified majority vote on a proposal from the EU High Representative. A paper published by Javier Solana in March 2005 suggested that only a third of the staff of the service will come from member states' diplomatic services. Estimates of the size of the service vary widely. One EU official briefed that the number of diplomats alone would be 7,000, but that it could rise to 20,000.[6]

The European Parliament's External Relations Committee has raised concerns over the proposed EU diplomatic service. It warned that if the diplomatic service was set up as an independent institution it would "take on an uncontrollable life of its own" and would result in an "independent super administration". It suggested that the service would consist of between 5,000 and 7,000 diplomats,[7] yet funding details of the service are not specified.

Wilhelm Schoenfelder, former German ambassador to the EU, highlighted the open-ended nature of the EU diplomatic force, asking "What will be the share of member states, and how will be the share among member states? I don't know. These are all open questions."[8]

Jose Luis Rodriguez Zapatero, the Spanish Prime Minister, has said, "We will undoubtedly see European embassies in the world, not ones from each country, with European diplomats and a European foreign service. We will see Europe with a single voice in security matters. We will have a single European voice within NATO. We want more European unity.[9]

Nicolas Schmit, the Luxembourg Foreign Minister has said, "We want a political Europe that can speak with one voice, and with one minister of foreign affairs and a common foreign service."[10]

The UK Government originally opposed the EU Diplomatic Service. In the negotiations on the draft Constitutional Treaty Denis MacShane said, "We believe that it remains for EU Member States to organise their respective bilateral diplomatic services at the national level."[11]

Under the Treaty Article 20 TEU is amended so that the EU can pass laws by majority vote determining rules on diplomatic and consular protection—so moves towards common consulates and embassies would be likely to accelerate. This is important because the UK has expressed doubts about existing Commission proposals in this area.

In November 2006 the European Commission published a Green Paper which revealed plans to establish EU "consulates" around the world. It argued that "Setting up common offices would help to streamline functions and save on the fixed costs of the structures of Member States" diplomatic and consular networks ... these offices could be housed in various representations or national embassies or in just one, or they could share the Commission delegation." It went on to say that "the EU consulates could take over functions now controlled by member states, including issuing visas. "In the long term, common offices could perform consular functions, such as issuing visas or legalising documents."[12]

Geoff Hoon responded to the Green Paper saying that Member States have long held the unanimous view that the provision of consular assistance to their citizens is primarily a matter for national authorities, and that "some of the Green Paper's proposals, which involve a greater role for the Commission and Council Secretariat, therefore sit uneasily with this position". He said, "It is also notable that, leaving aside the legal difficulties, the Commission has no expertise in providing consular assistance. We are therefore concerned by those proposals which envisage the Commission becoming involved in consular service delivery (eg the provision of training for consular staff)."[13]

There are questions about transparency in the operations of the High Representative and the European External Action Service. Former Director-General of the Council Secretariat Sir Brian Crowe, a contributor to a European Policy Centre working paper on the development of EU foreign policy, cautioned that "Member States should not expect to see all communications between the High Representative/Vice President and the EEAS, as foreign services cannot operate with "complete transparency". Given the delicacy of the EEAS and the HR/VP positions, they would need some "breathing space" to get going."[14] This leads to questions regarding the EU's commitment to transparency and accountability, as well as who is ultimately the decision-maker or agent of foreign policy.

3. Will the changes in the area of European Security and Defence Policy (ESDP) enhance its effectiveness? What impact, if any, will they have on the UK's defence policy? How will the new provisions work in practice and what political and legal issues arise? The new provisions include:

— The mutual assistance clause, covering cases of armed aggression

The proposed new Article 27 (7) TEU states that, "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."

This article is essentially a mutual defence commitment. Irish Foreign Minister Dermot Ahern has said, "The European Constitution provides for a mutual defence commitment. This establishes an obligation to assist another Member State that is the victim of armed aggression on its territory."[15]

Lord Robertson, former Secretary General of NATO, warned that it is "dangerous to introduce a mutual defence clause into the Constitution if you do not have the means to carry it through".[16] The Government wanted this entire paragraph to be deleted from the Constitution, and issued an unsuccessful amendment to this end, in which Peter Hain wrote, "Common defence, including as a form of enhanced cooperation, is divisive and a duplication of the guarantees that 19 of the 25 Member States will enjoy through NATO." The objection was abandoned.[17]

— Permanent structured cooperation in the area of ESDP

The proposed Articles 27 (6) and 31 (1) TEU provide for the establishment of a special sub-group of member states "whose military capabilities fulfil higher criteria and which made have more binding commitments to one another in this area with a view to the most demanding missions". This provision for so-called "permanent structured cooperation" within the EU framework would allow neutral countries to opt out, and create an "inner core" of EU members interested in taking forward military integration, and serve as a mechanism which would allow certain Member states to move faster towards a common European defence.

The implications of this should not be underestimated: The French Defence Minister Hervé Morin, has said, "The responsibility of our generation is to give a more ambitious dimension to defence Europe .... Soon, a new institutional treaty will permit reinforced cooperation, notably in the area of defence, since defence Europe will move forward by using a hard core of countries which want to take on their own Security."[18]

The Young European Federalists say in a briefing paper that they "Welcome the possibility to establish Structured Co-operation in the field of Defence, which is a significant step toward a Single European Army."[19] They also welcome "the introduction of structured cooperation in the field of defence, which will allow the willing States to create the bulk of an effective European defence, without which Europe will never be able to develop an autonomous foreign and defence policy."[20]

Article 31 TEU will specify that the group can be set up by QMV. The rough outline of how the group would work is explained in a new protocol annexed to the original EU Constitution. This outlines a number of qualifications which member states would have to pass to join permanent structured cooperation. Clause 1 stipulates that it is open to any member state undertaking to:

(a) "proceed more intensively to develop its defence capacities through the development of its national contributions and participation" in multinational forces and activities of the European agency; and

(b) "have the capacity to supply by 2007 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned ... within a period of 5 to 30 days ... and which can be sustained for an initial period of 30 days".

Article 2 of the Protocol specifies that participating member states would cooperate to:

(a) achieve "approved objectives concerning the level of investment expenditure on defence equipment";

(b) "bring their defence apparatus into line with each other";

(c) "take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces";

(d) "make good ... the shortfalls perceived in the framework of the `Capability Development Mechanism'"; and

(e) "take part ... in the development of major joint or European equipment programmes in the framework of the Agency".

The Government was initially strongly opposed to the structured cooperation proposal. Peter Hain argued in an amendment, "The UK has made clear that it cannot accept the proposed ESDP reinforced cooperation provisions. While we support Member States making higher capability commitments and co-operating with partners to this end, the approach described here—a self-selecting inner group—undermines the inclusive, flexible model of ESDP that the EU has agreed."

However, the Government failed in its attempts to remove the provision for enhanced cooperation from the original Constitution, and after the meeting between the UK, France and Germany in October 2003, the UK agreed to back the idea in return for assurances that member states could not be excluded from the group if they wanted to join.

4. What are the implications of the other new provisions or amendments, including:

— The solidarity clause, covering cases of terrorist attacks or natural/man-made disasters

Article 188r TFEU stipulates that the detail and meaning of the "terrorism solidarity clause" is to be decided by QMV. This is important because the Government had clear reservations about this article. During negotiations on the original Constitution, Peter Hain proposed an amendment to remove a key provision of the article—that "Should a Member State fall victim to a terrorist attack, the other Member States shall assist it," but the amendment was rejected.

Article 188r (2) reads, "Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities". In a separate proposal, the Government asked for the new EU power to "prevent" terrorist threats to also be deleted. At a plenary session of the European Convention Hain objected that, "if it carries real military obligations to offer military assistance it is duplicating the NATO guarantee. If it does not ... it is empty rhetoric."[21] However, his objection was ignored as well.

— The provisions on development cooperation and humanitarian aid

Two new Articles 188i and 188j set up majority voting on urgent macro-financial aid and humanitarian aid. The UK tried to have these articles deleted. The UK argued that "Macro-financial assistance has been agreed urgently when required". Both amendments were ignored.[22]

Although this seems to be a benign change (and is now cited by the Government as an "uncontroversial" example of a move to QMV), it could raise highly important questions. To give a past real-world scenario, this might have been used to decide whether the Union should continue to fund the Palestinian Authority after the 2006 elections which put Hamas in power—the UK and other Member States disagreed about this, the UK being keen only to fund NGOs and not the Hamas-led authority.

— The representation of the Union in international organisations

As discussed above, the High Representative will have an automatic right to speak for the UK in the UN Security Council on issues where the EU has taken a position, under Article 19 (2) of the Treaty—"When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be asked to present the Union's position."

The draft treaty states that the Union shall have "legal personality", as in the original Constitution. This would mean that for the first time the EU, rather than member states, could sign up to international agreements on foreign policy, defence, crime and judicial issues (currently the EC can only sign agreements in first pillar issues like trade). That would be a huge transfer of power and make the EU look more like a country than an international agreement.

Talking about the original version of the Constitution, Italian PM Romano Prodi said that this change was "A gigantic leap forward. Europe can now play its role on the world stage thanks to its legal personality". The French government's referendum website argued that, "The European Union naturally has a vocation to be a permanent member of the Security Council, and the Constitution will allow it to be, by giving it legal personality."

Even the UK Government admitted that it could cause problems. When the Constitution was first being drafted, Peter Hain said that "We can only accept a single legal personality for the Union if the special arrangements for CFSP and some aspects of JHA are protected." He told MPs: "we could support a single legal personality for the EU but not if it jeopardises the national representations of member states in international bodies; not if it means a Euro-army; not if it means giving up our seat on the United Nations Security Council; and not if it means a Euro-FBI or a Euro police force."

The UK Government had long been opposed to the idea of giving the EU a legal personality. Back in 1997 Prime Minister Tony Blair boasted that he had successfully stopped a provision for this appearing in the Amsterdam Treaty. He said, "Others wanted to give the European Union explicit legal personality across all the pillars of the treaty. At our insistence, that was removed."[23]

5. What effect will the extension of qualified majority voting (QMV) in CFSP have on decision making in the Council, including the efficiency and speed of decision making? What implications will it have for the UK's ability to play a leading role in EU foreign and security policy?

At the start of the original negotiations on the Constitution Peter Hain promised that "QMV is a no-go area in CFSP" [Common Foreign and Security Policy].[24] During the IGC, Jack Straw said that the move to QMV in this area was "simply unacceptable."[25]

Nonetheless the Government has now accepted it, according to its own analysis, in nine different areas of foreign policy.[26] In fact, there is also majority voting on at least two other aspects of foreign policy—so the veto would in fact be given up in 11 different areas. Thus, the Government's insistence that "unanimity will remain the rule for setting the Common Foreign and Security Policy", is an extraordinary distortion of the facts.[27]

Areas where majority voting would be introduced in foreign policy:

1. Proposals from the EU High Representative. Perhaps the most important introduction of QMV relates to the new High Representative. Article 17(2) TEU stipulates that the Council shall act by qualified majority, "when adopting a decision defining a Union action or position, on 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".

2. The design of the EU diplomatic service. The new Article 13a TEU allows the organisation and functioning of the new EU diplomatic service to be decided by QMV. The tasks and even the eventual size of the service are still unclear in the Treaty, but the shift toward a more centralised and powerful institution would inherently result in a major shift of power from the Member States to EU establishments, likely to grow in strength over time. The Council will act on a proposal from the High Representative after getting the consent of the Commission.

3. Consular issues. Under the Treaty Article 20 TEU is amended so that the EU can pass laws by majority vote determining rules on diplomatic and consular protection—so moves towards common consulates and embassies would be likely to accelerate. The UK has already expressed reservations and concerns regarding EU consular services proposed by the Commission (see above).

4. Setting up an inner core in defence. Under Article 31(1) TEU, the decision to set up the "permanent structured cooperation" group would also be taken by QMV, as would subsequent decisions to expel members, or to admit new ones to the group.

There is also the prospect of majority voting within the inner core. Article 280H (1) TFEU allows for the Council to act by qualified majority voting in the context of enhanced cooperation, if the Council, acting unanimously, so decides. While this new article does not cover "defence" decisions, it presents the prospect of majority voting within the inner core and could affect the common foreign and security policy. (Discussed in greater detail above.)

5. Terrorism and mutual defence. Article 188r TFEU stipulates that the detail and meaning of the "terrorism solidarity clause" is to be decided by QMV. This is important because the Government had clear reservations about this article. During negotiations on the original Constitution, Peter Hain proposed an amendment to remove a key provision of the article—that "Should a Member State fall victim to a terrorist attack, the other Member States shall assist it," but the amendment was rejected.

Article 188r (2) reads, "Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities." In a separate proposal, the Government asked for the new EU power to "prevent" terrorist threats to also be deleted. At a plenary session of the European Convention Hain objected that, "if it carries real military obligations to offer military assistance it is duplicating the NATO guarantee. If it does not ... it is empty rhetoric."[28] However, his objection was ignored.

6 & 7. Urgent financial aid, and Humanitarian aid. Two new Articles 188i and 188j set up majority voting on urgent macro-financial aid and humanitarian aid. As noted above, the UK failed to have these articles deleted despite its claim that "Macro-financial assistance has been agreed urgently when required".[29]

8. The election of the High Representative. New article 9e specifies that the Foreign Minister/High Representative is elected (and can be sacked) by qualified majority voting. Because he or she is going to be a member of the Commission, whichever country he or she is from will lose its national commissioner if it has one, when he or she is appointed.

9. Civil protection. Article 176h allows the EU to pass laws by majority vote on the response to natural or man-made disasters. The UK sought to forestall this move to majority voting, arguing that it wanted to preserve "the current flexible arrangements".[30] However, this request was ignored.

10. Terrorist financing controls. Article 67a allows for decisions on measures to control the financing of international terrorism to be taken by QMV. The UK Government was not against this article per se, but wanted it to be changed to stop it restricting member states' freedom to act. The UK argued that "At present, the scope of [the] article ... is certainly too wide and open-ended. Member States should retain competence to take further action consistent with the European law, for example to take immediate action to freeze assets of terrorists identified in accordance with national procedures and laws". This was rejected.

11. The new EU Foreign Policy Fund. Article 26(3) TEU creates a "start up fund" for foreign policy operations. This new fund is seen by many as the first step towards a common defence budget for the EU. All aspects of funding are to be decided by QMV—including the amounts paid by member states, despite UK demands that decisions relating to the fund should be unanimous.

CONCLUSIONS ON THE SHIFT TO QMV

Efforts to increase, centralise, and streamline power to create and implement EU foreign policy, are wrought with complications and insurmountable obstacles. Member States' differences in opinion in various foreign policy areas have been intractable and preclude agreement on a common foreign and security policy, adopted by all 27 nations and articulated by the High Representative of the Union.

Current divisive issues such as the status of Kosovo, confronting Iran, the meeting of human rights violator Robert Mugabe in the upcoming EU-AU summit, as well as past cleavages stemming from the invasion of Iraq, are only the most salient points of contention which have obstructed the development of a common foreign and security policy within the EU bloc. The attempts to institute QMV in various foreign policy issues are over-ambitious efforts to create an unrealistically seamless CFSP.

The EU-AU summit in December reveals but one fissure in European foreign policy toward Africa. While Gordon Brown has maintained his stance against dealing with Zimbabwean leader Robert Mugabe, while the human rights abuses in Zimbabwe go unaddressed, the Portuguese EU President has expressed a willingness to go forth with the summit as scheduled. The UK voice would seem to become irrelevant on this issue as South African Foreign Affairs Minister Nkosazana Dlamini-Zuma told reporters that "Summits depend on a number of people, not just one, and one person does not make a summit."[31]

6. What other important political or legal issues arise, other than those set out above, in the area of EU foreign, defence and development policy?

The European Court of Justice's jurisdiction over the all aspects of CFSP remains ambiguous in certain areas, and loopholes have been exposed. In a European Scrutiny Committee meeting in 2005, Cambridge Professor of European Law and FCO legal advisor on the EU Constitution, Alan Dashwood noted one particular loophole in Article I-16 of the old Constitution. According to Dashwood, this article, which states that "Member States shall actively and unreservedly support the Union's common foreign and security policy" had not been excluded from the ECJ's remit and, therefore, "means that the issue could be raised in court". This raises the possibility that in the event that Britain's foreign policy actions were deemed to contradict EU policy, the matter could be settled by the ECJ. The updated Article 11(3) of the Reform Treaty states that "The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area." This reworded clause does not provide further clarity on this matter.

The issue of ECJ jurisdiction over CFSP was more recently examined during a hearing before the Foreign Affairs Committee on 12 September 2007—and again exposed as ambiguous and unresolved. Europe Minister Jim Murphy described the extent of ECJ jurisdiction over CFSP as "limited", according to the Treaty provisions. However, his next statement that "The interpretation and application of these provisions, in the light of the Declaration, will therefore be determined in the course of decision-making on the CFSP" raised concerns that the ostensibly "limited circumstances" in which the ECJ can exercise jurisdiction over CFSP are not necessarily limited. Sir John Stanley noted that "how far these very limited circumstances go will be dependent on the further negotiations on the terms of the treaty, which are still to be concluded. That would suggest to me, and possibly many others, that there is still a quite wide and as yet undefined area of foreign policy that might fall within the jurisdiction of the European Court of Justice."[32] The extent of the ECJ's jurisdiction over areas within CFSP remains unclear.

3 December 2007

1 http://www.bond.org.uk/networker/2007/november/neweurope.htm Back

2 6 June 2007. Back

3 The Times, 6 August 2007. Back

4 EUobserver, 25 January 2005. Back

5 http://www.globalpolicy.org/security/reform/cluster1/2003/0324eu.htm Back

6 European Voice, 9 November 2004. Back

7 EUobserver, 28 February 2005. Back

8 EUobserver, 27 November 2007: http://euobserver.com/9/25207 Back

9 AP, 17 February 2005. Back

10 BBC, 26 January 2007. Back

11 Hansard Written Answer, 17 June 2002. Back