A supporter of an integrated European defence as a corollary of a true foreign policy, former Green MEP Olivier Dupuis details here the characteristics that this army should have, as well as its legal and political bases.
Without elaborating on them here, these are our assumptions:
The cohesion of the Union is today seriously threatened by internal and external forces and the connections between these forces.
Even more than as repositories of various worries and fears, the sovereigntist and nationalist movements are today the most important threat in that they represent the vehicle of conservative forces which use them to protect rents and privileges that are threatened by the potential advances of European integration.
Among external threats, the Putin regime is the most serious and immediate one for EU neighbors, for certain EU states and for the Union itself.
The military rise which has accompanied the evolution of the People’s Republic of China is a medium-term threat for the Union. This includes the possible occupation, on the template experimented with in the Spratley archipelago, of territories belonging to an EU member state (for example, the Scattered Islands).
The instability of major parts of the Maghreb-Sahel region and the Middle East will require determined political responses from the Union.
The Union’s soft power, as important as it is, has shown its limits, paroxystic ones in the case of Syria.
There can be no genuine EU foreign policy without a common defense policy, in other words a policy capable of defending, en ultima ratio, the values and principles on which the Union and its members are founded. This includes the integrity of the individuals who espouse them and the territories in which they are in force.
As has been shown by numerous precedents, the EU Treaties’ mention of the duty of mutual assistance between member states (Art. 42 § 7 of the Treaty on European Union) without real political and military embodiment is a dangerous illusion.
There can be no genuine European defense policy without the common instrument of a common European army.
With Brexit the EU is losing the only declared opponent of any hypothetical common European defense, including a common European army.
Before tackling the political and legal scenarios for constructing, hic et nunc, a common and community army, and so as to avoid repeating the flaws of past initiatives which have reached impasses (including WEU, Eurocorps, and the French-German brigade), it is useful to clarify the main features of a common European army.
The essential features of a common European army
Like other EU institutions, the common and community army comprises officers and soldiers which are its direct responsibility. In other words this is not an army which groups together national contingents but rather one composed of European officers and soldiers. This indispensable condition aims to avoid, in particular, any possibility of external pressures on, or by, a member state.
Although the common European army will not be called upon to reproduce mechanically the missions carried out by national member-state armies, it is imperative, in order to create the conditions for mutual respect between the common army and participating national armies, that the European army’s budget be within the same size range as that of the Union’s most important national armies (including Germany, France and Italy). In the hypothesis of cooperation involving 19 members, and based on contributions by member states of 0.3% of their GDP, the common army’s annual budget would amount to around € 30 billion, a figure approximating the defense budgets of Germany, France or Italy.
Integration of the common European army into NATO cannot be in doubt, though this need not prevent the establishment of an ad hoc status which reflects its unique configuration.
Constituting the common army should also be an opportunity and a means to encourage the creation of European arms manufacturers, including via preferential clauses for armaments purchases which favor European companies.
The concentration of armaments industries in “large” EU countries should be, to the extent that strategic considerations allow, counterbalanced by establishing the common army’s military bases in “small” participating countries.
Three institutional scenarios allowing the creation of a common European army are possible today: one extra-treaty scenario, and two scenarios falling within the Treaties but which do not require treaty revisions.
A Schengen-like accord outside of the Treaties
As for the free-movement agreement known as Schengen, proposed by the three Benelux countries to West Germany and France in 1985, one or several of the 27 member states could propose an extra-treaty accord to create a common European army. But to do this, today as then, the signatories to such an agreement would not be able to make use of the European institutions.
It would fall to these willing states to reach agreement on the institutional and operational rules for such a common initiative. In addition to this estrangement from the EU institutions, such a scenario would be difficult for European citizens to understand in an area where clarity is imperative. Above all, however, it would lend itself to suspicion among those member states who might not wish to take part, since they would be excluded. This argument might lead them not to oppose an institutional scenario based on an existing treaty.
Permanent structured cooperation
A priori, a form of permanent structured cooperation would seem the most appropriate for an initiative such as creating ex-nihilo a common and community army.
But permanent structured cooperation poses two major problems. The first is that it would prohibit the involvement of EU members who had decided not to participate. Moreover, its rules stipulate that all decisions other than entry and exit of the “club” must be taken by unanimity (Art. 46 § 6 TEU). Even if the process of creating a common army were still feasible in these conditions, the political oversight of the army would inevitably require majority voting. This limitation deriving from the treaty, which also affects enhanced cooperation, could be lifted by a one-off revision of the Treaties during the common army’s construction phase.
Clearly, states wishing to participate in a common army have the choice of adopting an enhanced-cooperation instrument. Various factors plead in favor of this treaty option. Article 329 § 2 part 1 of the Treaty on the Functioning on the European Union (TFEU) is dedicated specifically to enhanced cooperation in the field of foreign and security policy. The TEU treaty stipulates moreover that defense and security policy is a component of the common foreign and security policy (CFSP, Art. 42 § 1 TEU). Lastly, as François Xavier Priollaud and David Siritzky point out, “the ‘bridging clause’ is applicable in the framework of these cooperations, except for decisions having military implications or in the area of defense. This restriction shows that, conversely, the other dispositions applicable to enhanced cooperation in the area of CFSP are applicable to defense”.
Although enhanced cooperation requires a unanimous decision in the Council (Art. 329 § 2 part 2 TFEU), this difficulty could be an advantage in that enhanced cooperation allows non-participating countries to be involved – unlike an extra-treaty accord or a use of permanent structured cooperation. Non-participants are permitted to “participate in its deliberations” (Art. 20 § 3 TEU). Such a mechanism thus provides the conditions for a relationship of trust between participating and non-participating states, since the latter are involved in all deliberations except voting. They are therefore not only “in the loop” but can, at any time, advocate for their positions on issues arising within the framework of the enhanced cooperation.
Like the permanent structured cooperation, enhanced cooperation also allows non-participating states to become participants at a later date.
Certain member states, for various reasons, might not want to join this enhanced cooperation. One could hypothesize three groups of such countries: (1) Finland, Sweden, Ireland and Austria; (2) Denmark, with a defense opt-out; and (3) Poland, Hungary and, probably, Czechia.
The basis of an EU-27 accord
Therefore three procedures, of which two are written in the EU Treaties, allow a group of member states to create, ex nihilo, a common European army. One of these methods – enhanced cooperation – allows for the involvement of all member states, which is why it seems to us the most opportune. Two questions remain: whether there exists strong political will in the leadership of a substantial number of member states; and whether member states not wishing to participate can demonstrate the kind of fine political judgement which would lead them not to oppose such cooperation. As the Treaties stipulate (Art. 238 § 4 TFEU), these states have the option of constructive abstention, which would allow the enhanced cooperation to proceed.
Without being a suspensive condition of the enhanced cooperation, the accord between participating and non-participating member states should – so as to be more effective and democratic (notably with majority decision-making, and better clarity over the roles of the Commission and Parliament presidents) – provide for a limited revision of the EU Treaties, to spell out:
the responsibility of the EU Commission president as head of the common army;
the figure of an ad hoc commissioner to take charge of organizing the common army, including its budget;
the creation within the European Council of a “European Security Council” configuration tasked with authorizing, on the proposal of the Commission president, engagement of the common army – in which configuration the heads of state and government of non-participating would also take part (without voting rights);
introduction of the codecision procedure (involving EU Council and Parliament) for all issues pertaining to organization and financing of the common army;
abrogation of Art. 333 § 3 of the TFEU in order to allow new members to take part in enhanced cooperation on the basis of a qualified majority vote by existing participants;
modification of Art. 331 § 2 last section TFEU in order to allow the Council to legislate by qualified majority.
To the extent that the modifications would simply adapt existing treaty dispositions so as to make them conform better to the spirit of the EU treaties, an in the sole area of enhanced cooperation, the EU-27 could make use of the ordinary revision procedure laid down in Art. 48 § 3 second section TEU.
A common responsibility
On the basis of the political stances of the EU-27, it does not seem unrealistic that 18 or 19 member states might be willing to take part in such an enhanced cooperation. Among them, obviously, the involvement of France and Germany is fundamental. Until now the United Kingdom’s intransigeance has made this type of enhanced cooperation entirely impracticable. With this obstacle gone, will those 18 or 19 states – and Germany and France in particular – be able and willing to assume their responsibilities? Or will they prove right those who claimed that the UK’s opposition was also convenient cover for the reticence of certain other states? Clearly much depends on Paris and Berlin, but that does not absolve other member states of their own responsibilities, including the option of associating themselves with a shared proposal. An alternative exists: that of the cozy intellectual comfort of our new Maginot lines, both real and potential. Today they are called, among other things, “nuclear dissuasion”, “article 5 of the North Atlantic Treaty”, and “article 42 § 7 of the Treaty on European Union”.
(1) Art. 42 § 7 TEU: “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 […]”
(2) Germany, Belgium, Bulgaria, Cyprus, Croatia, Spain, Estonia, France, Greece, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Romania, Slovakia, Slovenia
(3) Germany: 37.0; France: 32.7, Italy: 20.2 (in billion €, 2017, Eurostat)
(4) Art. 46 § 6 TEU: “The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.”
(5) Art. 329 § 2 section 1 TFEU: “The request of the Member States which wish to establish enhanced cooperation between themselves within the framework of the common foreign and security policy shall be addressed to the Council. It shall be forwarded to the High Representative of the Union for Foreign Affairs and Security Policy, who shall give an opinion on whether the enhanced cooperation proposed is consistent with the Union’s common foreign and security policy, and to the Commission, which shall give its opinion in particular on whether the enhanced cooperation proposed is consistent with other Union policies. It shall also be forwarded to the European Parliament for information.”
(6) Art. 42 § 1 TEU: “The common security and defence policy shall be an integral part of the common foreign and security policy. […]”
(7) Le Traité de Lisbonne, article-by-article text and commentary for the new European Treaties (TEU, TFEU), François-Xavier Priollaud, David Siritzky, La documentation française, 2008, p. 395
(8) Art. 333 § 3 (bridging clause): “Paragraphs 1 and 2 shall not apply to decisions having military or defence implications.”
(9) Art. 329 § 2 section 2 TFEU: “Authorisation to proceed with enhanced cooperation shall be granted by a decision of the Council acting unanimously.”
(10) Art. 20 § 3 TEU: “All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 330 of the Treaty on the Functioning of the European Union.”
(11) Art. 238 § 4 TFEU: “Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.”
(12) Art. 331 § 2 last section TFEU: “For the purposes of this paragraph, the Council shall act unanimously and in accordance with Article 330.”
(13) Art. 48 § 3 section 2 TEU: “The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.”
(14) Varying policy positions of the current Italian government make it difficult to predict what might be the current position of this founding member state.