Posted on September 2021
Bij :The European Institute for International Law and International Relations
The European Union has for years been pursuing greater cooperation in the field of defence in order to maintain its security and its position in the world. Yet, the idea of a European army is a particularly contentious one with strong advocates for and against. Ultimately, a distinct European army is still not a reality due to the lack of a common strategic culture and the political will among Member States. However, the bloc continues to take steps that further its militarisation.
The debate surrounding the creation of a European army dates back to the beginnings of the European Union. However, the debate has resurfaced in recent years as a result of change in the security environment in Europe (Molina and Benedicto, 2021). Middle East crises, escalating terrorist threats within and outside EU borders, Russian aggressiveness in the EU’s eastern border region, UK’s departure from the EU and revived nuclear antagonism are just a few of the security issues that have become a daily part of the discourse on EU security and defence (Bassot, 2019). In this context, doubts have also arisen regarding the robustness of transatlantic alliance arrangement added to the changing global power relationships, leading to geopolitical and geo-economic competition which resulted in an erosion of the multilateral system (Engberg, 2021).
NATO’s Military Role as a Quasi-EU Army
In its own words, the EU is deemed a “unique and essential partner to NATO” (NATO, 2021) and to an extent, it has been noted that the EU is already afforded military protection and resources from NATO. At least traditionally, the EU has often relied on NATO for military action (Emmott, 2021). Indeed, as the vast majority of EU members also share membership with NATO, they share “common values and face similar threats and challenges.” (Ibid, 2021). Many also benefit from the collective defence principle whereby an attack against one or several of its members is considered as an attack against all. Moreover, in 2002 the European Security and Defence Policy (ESDP) reaffirmed EU access to NATO’s planning capabilities for the use of the EU’s own military operations.
Yet, there are arguments surrounding whether the EU should rely exclusively on the military support of NATO alone. Multiple European leaders have argued the EU should have a greater military role outside of NATO. This was made particularly evident in the recent evacuations at Kabul Airport, Afghanistan, whereby European states were heavily reliant upon the US. Indeed, the US handling of the pull-out of Afghanistan has particularly renewed calls for an EU army (Wheeldon, 2021). European Commission’s president, Ursula von der Leyen, has argued that the EU must learn from the abrupt end of the US-led mission in Afghanistan and develop the “political will” needed to build up its own military force separate from the US and NATO to deploy to future crises (Boffey, 2021).
Yet, despite many European leaders, including French and Germany Office-holders Emmanuel Macron and Angela Merkel, expressing support for a joint European Army, others have strongly criticised the idea. Secretary general of NATO and former prime minister of Norway, Jens Stoltenberg has warned an EU defence force may overstretch “scarce” NATO resources and “divide Europe” (Malnick, 2021).
Recent Actions Toward Security and Defence
The EU’s momentum in security and defence fields translated into the publication of “A Global Strategy for the European Union’s Foreign and Security Policy” (EUGS) on June 2016. This paper called, among other things, for an “appropriate level of ambition and strategic autonomy” of the EU towards the promotion of peace and security within and beyond the EU. The EU’s Global Strategy highlighted five priorities to be implemented and quarterly assessed, namely, Security of our Union; State and Societal Resilience; An Integrated Approach to Conflicts and Crises; Cooperative Regional Orders; Global Governance for the 21st Century. Following the approval of the EUGS, the EU developed a number of new political and institutional tools with the aim of intensifying cooperation on European security and defence.
For the first time, in November 2016, the EU Commission tabled a European Defence Action Plan, aiming to reinforce the single market for defence and which announced the creation of the European Defence Fund. The importance of this fund lies on the capability of the EU to use the Community budget to strengthen the military cooperation as well as to use the EU’s own resources to set financial incentives for Member States to cooperate and to spend more on capability pooling and research in the defence field. (Karakas, 2021). In this context, on 29 April 2021, MEPs agreed to fund the flagship instrument with a budget of €7.9 billion as part of the EU’s long-term budget (2021-2027) and the European Peace Facility (EPF) was approved in December 2020 containing a new off-budget fund worth more than €5 billion.
The EPF & The EU’s latest attempt to exert “hard power”
The EPF, officially adopted earlier this year, has been noted as a distinct shift towards a more militarised EU, at least in terms of foreign policy (Peel, 2021b). The key aim of the EPF touted by the EU is to enhance the EU’s ability to prevent conflict, preserve peace and strengthen international stability and security (Council of the EU, 2021). Yet, there are severe criticisms that the fund instead risks fuelling war and global rights abuses (Peel, 2021b). The EPF will allow military and defence equipment to be provided to third actors and although the EU has affirmed the existence of safeguards, many are concerned it may end up in the wrong hands.
Indeed, the death of Chadian dictator, President Idriss Déby, in April this year and the subsequent tributes and mournful sentiments echoed from the likes of the European Commission president and EU foreign policy chief, have reinforced concerns surrounding the types of regimes the EU may decide to arm (Peel, 2021).
In 2017, several EU security and defence initiatives were also established to strengthen EU cooperation in the defence field and to reach the objectives set out in the EU’s global Strategy. The Coordinated Annual Review on Defence (CARD) was created in May with the objective to lead to a gradual synchronization and mutual adaptation of national defence planning cycle and capability development practices (Zandee, Stoetman and Deen, 2021). Furthermore, the Military Planning and Conduct Capability (MPCC), created in June, was established to react in a faster, and more effective and efficient manner as a security provider outside EU’s borders.
One month later, in July, France and Germany, with the further incorporation of Spain in 2018, reached an agreement on the future combat air system (FCAS), which included the development of a next-generation fighter jet. The FCAS is the most ambitious and costly European defence project yet undertaken.
More significantly, in December 2017, the Permanent Structured Cooperation (PESCO) initiative, based on Article 42.6 and Protocol 10 of the Treaty on European Union (TEU), was established. PESCO members committed to enhance defence capability, defence research and technology spending while being invited to develop joint military projects (Karakas, 2021). The uniqueness of PESCO, according to the European External Action Service (EEAS), is the legally binding nature of the common “more binding” commitments included in the annex to the Council decision which stress the need for collaboration in developing and utilising capabilities. However, the lack of accuracy of the language leaves much discretionary power at the national level (Meershoek, 2021).
The more binding commitments stress the need for collaboration in developing and utilising capabilities. They require commitment to the joint use of existing capabilities, commitment to help overcome European capability shortcomings and demand a European collaborative approach in addressing capability shortcomings. The vague language of these commitments, however, leaves much discretionary power at the national level. In a complementary way and in response to the excessive number of PESCO members, nine European Defence Ministers signed a “Letter of Intent concerning the development of a European Intervention Initiative” (EI2) in June 2018 at the margins of the Foreign Affairs Council (Koenig, 2018).
In late 2019, under the auspices of the new President of the European Commission, Ursula von der Leyen, the European Commission established its first-ever directorate-general for defence industry and space (DG DEFIS), which is part of the portfolio of the Commissioner for the Internal Market, Thierry Breton, who has been given the responsibility of creating an open and competitive European defence equipment market as well as increasing military mobility (Karakas, 2021).
In the area of European defence cooperation, these initiatives have resulted in significant development. However, notwithstanding the progress made since 2016, without strategic direction instruments, these initiatives tend to become bureaucratic tools. There is still a gap between the EU’s aspirations and its ability to achieve them added to the lack of consensus with regards to the debate over “European strategic autonomy” (Zandee, Stoetman and Deen, 2021).
In order to bridge the gap between the EU’s ambitions and realities, the EU embarked on the development of a “Strategic Compass” with the aim of enhancing and guiding the implementation of the level of ambition agreed upon in the EUGS. The procedure began in June 2020, during the German EU Presidency’s second half of that year, and is expected to conclude in 2022 with the achievement of a dual purpose. First, the Strategic Compass is envisaged to contribute to the establishment of a cohesive and strategic approach to existing defence projects, as well as to the strengthening of the EU’s security and defence strategy (Molenaar, 2021). Another goal, as stated in the Council Conclusions, is for the Strategic Compass to define policy orientations and specific objectives in the following four dimensions: crisis management, resilience, capability development, and partnerships.
The Legal Basis of a European Army
The legal basis concerning the creation of a European Army is to be found in article 42 TEU, concretely, its second paragraph, which states that “the common security and defence policy shall include the progressive framing of a common Union defence policy”. It follows by stressing the need of European Council’s unanimity in order to move toward collective defence, but no role is included in the procedure for the Parliament.
Nonetheless, the second sub-paragraph imposes a significant restraint on EU defence strategy, stating in legal terms that national defence policy, including NATO membership or neutrality, takes precedence over EU defence policy. In this context, the military neutrality of Ireland, Cyprus, Malta, Austria, Finland, and Sweden, shall be respected (Basson, 2019). Article 42.7 obliges EU countries to aid a fellow member state that becomes “the victim of armed aggression on its territory” by “all the means in their power”. This formulation is reminiscent of article 5 of the NATO Treaty, which calls on NATO member states to assist a party being attacked “by taking forthwith … such action as it deems necessary, including the use of armed force”.
The NATO constraint on EU military integration has its legal roots on the different sources of law, namely the NATO Treaty and the European law, which are interconnected. The NATO treaty is based on the principle and legal norm of collective self-defence. In this regard, article 3 of the North Atlantic Treaty obliges its signatories to possess sufficient military capabilities for effective collective self-defence. Concerning the European law, the Treaty of Lisbon also includes a collective self-defence clause in article 42.7 TEU and PESCO includes similar expenditure and investment commitments. The legal primacy of military security for those Member States which are also part of NATO lies with the transatlantic organisation. The EU’s collective self-defence clause stresses that NATO ‘‘remains the foundation of their collective defence and the forum for its implementation’’.
Furthermore, art. 42.2 TEU requires coherence between the EU’s CSDP and NATO’s security and defence policies. In addition, the primacy of the NATO Treaty is envisioned by article 351 TFEU which states that ‘‘rights and obligations arising from agreements concluded before 1 January 1958 […] shall not be affected by the provisions of the Treaties’’. It seems that the flexibility of the CSDP obligations and the Treaty-based primacy of NATO obligations for most Member States make legal compatibility likely, whether always politically feasible or not (Meershoek, 2021).
Ultimately, whilst the EU continues to take measures which further its militarisation, the existence of an official European army remains to be seen and continues to be highly controversial and contentious topic. Indeed, there exists legal basis for such an army yet there are also NATO constraints. Nevertheless, the flexibility of the Common Security and Defence Policy obligations and the Treaty-based primacy of NATO obligations for most Member States make legal compatibility possible.