The EU Common Security and Defense Policy (Oxford European Union Law Library) [1 ed.] 9780199692729, 0199692726

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OXFORD EU LAW LIBRARY

General Editors: David Anderson, QC Barrister at Brick Court Chambers and Visiting Professor of Law at King’s College London. Piet Eeckhout, Professor of Law at University College London.

THE EU COMMON SECURITY AND DEFENCE POLICY

OXFORD EUROPEAN UNION LAW LIBRARY The aim of this series is to publish important and original studies of the various branches of EC and EU law. Each work provides a clear, concise, and critical exposition of the law in its social, economic, and political context, at a level which will interest the advanced student, the practitioner, the academic, and government and community officials. Formerly the Oxford European Community Law Library. The General Principles of EU Law Third edition Takis Tridimas EU Anti-Discrimination Law Second edition Evelyn Ellis and Philippa Watson EU Employment Law Fourth edition Catherine Barnard EU External Relations Law Second edition Piet Eeckhout EU Justice and Home Affairs Law Third edition Steve Peers The EC Common Fisheries Policy Robin Churchill, Daniel Owen Goyder’s EC Competition Law Fifth edition Joanna Goyder and Albertina Albors-Llorens

EC Securities Regulation Second edition Niamh Moloney EC Customs Law Second edition Timothy Lyons, QC The European Union and its Court of Justice Second edition Anthony Arnull Directives in EC Law Second edition Sacha Prechal EC Company Law Vanessa Edwards EC Agricultural Law Second edition J.A. Usher The Law of Money and Financial Services in the EC Second edition J.A. Usher Workers, Establishment, and Services in the European Union Robin C.A. White

The EU Common Security and Defence Policy

PANOS KOUTRAKOS Professor of European Union Law City University London

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © P. Koutrakos, 2013 The moral rights of the author have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland British Library Cataloguing in Publication Data Data available ISBN 978-0-19-969272-9 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Στον Κυριάκο και στη Σάσσα

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Series Editor’s Foreword The mismatch between ambition and achievement is rarely more obvious than in the attempts of the European nations to devise common policies first for their defence and later for their security. The highly integrative aims of the European Defence Community, rejected by the French Parliament in 1954, were sidelined by the growth of NATO and succeeded by the slow development of European Political Cooperation and the Common Foreign and Security Policy. The Common Security and Defence Policy, conceived in an Anglo-French declaration that the EU ‘needs to be in a position to play its full role on the international stage’ (St Malo, 1988), was finally hatched at Lisbon. But notwithstanding the five lengthy Treaty articles that give it shape, and the wealth of administrative bodies and processes that have attached to it, the underlying impetus remains strongly inter-governmental. Where law meets security, warfare, and international politics, a multi-disciplinary approach is likely to be more productive than a merely legal one. In that respect, author and subject matter are well matched. Panos Koutrakos is equally sure-footed when analysing the underlying economic choices, the political and policy debates, the case law that they have spawned, and the CSDP military operations to date, coolly summarized as ‘rather small contributions to very big problems’. As if these wide-ranging interests were not enough, the citation of P.G. Wodehouse—surely a first, in a book on EU law—is a delightful bonus. David Anderson

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Acknowledgments Part of this book was written in New York, courtesy of Columbia Law School and on study leave granted by the University of Bristol. The financial support of the European Commission through the Jean Monnet Chair in European Law at the University of Bristol Law School is gratefully acknowledged. Many thanks to Michael Lampert, Aaron Khan, Sven Pfeiffer, and Sofia Galani for their research and editorial assistance. I benefited greatly from discussions with officials in Brussels, including Juha Auvinen, Cesira D’Aniello, Armand Franjulien, Ricardo Gosalbo Bono, Angus Lapsley, Guy Milton, Ricardo Passos, Kyriakos Revelas, and Michalis Vitsentzatos. I am grateful to Eileen Denza and Steven Blockmans who have read and commented on parts of the book. The above do not necessarily share the views expressed in this book. I alone am responsible for all remaining errors. PK

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Contents List of Abbreviations Table of Cases Table of Legislation

Introduction 1. The origins and evolution of CSDP Introduction The first phase: the European Defence Community The second phase: another failure prior to marginalization The third phase: security and defence under primary law The starting point for the European Security and Defence Policy—the St Malo Declaration Conclusion 2. The Common Security and Defence Policy within the framework of Common Foreign and Security Policy Introduction Great expectations Integrated, but not quite Integration and distinctiveness Instruments Institutional and administrative framework The European Council The High Representative of the Union for Foreign Affairs and Security Policy The European External Action Service The European Parliament The Council and Commission

Decision-making procedures Conclusion 3. The substantive and institutional framework of Common Security and Defence Policy Introduction Scope and activities The duties of Member States Means Administrative structure and planning of CSDP operations and missions

xv xix xxi

1 5 5 5 9 13 18 19

22 22 22 25 30 35 37 38 40 47 51 52 53 55

57 57 57 61 63 64

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Contents

Mutual assistance clause Flexibility Member States acting on behalf of the Union Permanent structured cooperation

Financing Conclusion 4. The policy context of CSDP Introduction The main themes underpinning the European Security Strategy The internal–external link Broad definition of security Regional and global focus Responsibility

The quest for a European model The EU and the United Nations Conclusion

68 72 72 73 76 78 79 79 80 81 83 88 89 90 96 99

5. CSDP military operations Introduction Administrative framework Military capabilities The EU–NATO relationship EUFOR Concordia (FYROM) (2003) Operation Artemis (RD Congo) (2003) EUFOR ALTHEA (Bosnia and Herzegovina) (2004–present) EU Support to AMIS Action (Darfur) (2005–2007) EUFOR RD Congo (2006) EUFOR Tchad/RCA (2008–2009) EUNAVFOR Somalia—Operation ATALANTA (2008–present) EUTM Somalia (2010–2012) EUFOR Libya (2011, but never deployed) International responsibility over the conduct of CSDP operations Conclusion

101 101 101 102 104 107 109 111 114 116 117

6. CSDP civilian missions Introduction Police missions

133 133 133 133 138 140 141 142

EUPM BiH (Bosnia and Herzegovina) (2003–2012) EUPOL PROXIMA (Former Yugoslav Republic of Macedonia) (2003–2005) EUPAT (Former Yugoslav Republic of Macedonia) (2005–2006) EUPOL KINSHASA (Democratic Republic of Congo) (2005–2007) EUPOL RD Congo (Democratic Republic of Congo) (2007–present)

120 124 125 126 129

Contents EUPOL COPPS (Palestinian territories) (2006–present) EUPOL AFGHANISTAN (Afghanistan) (2007–present)

Security Sector Reform missions EUSEC RD Congo (Democratic Republic of Congo) (2005–present) EU SSR GUINEA-BISSAU (Guinea-Bissau) (2008–2010)

Border missions EUBAM Rafah (Rafah Crossing Point) (2005–present)

Monitoring missions AMM (Aceh, Indonesia) (2005–2006) EUMM GEORGIA (Georgia) (2008–present)

Rule of law missions EUJUST THEMIS (Georgia) (2004–2005) EUJUST LEX (Iraq) (2005–present) EULEX KOSOVO (Kosovo) (2008–present)

Other missions EUAVSEC-South Sudan (South Sudan) (2012–present) EUCAP Sahel Niger (Niger) (2012–present) EUCAP NESTOR (Horn of Africa) (2012–present)

Conclusion 7. International agreements Introduction The negotiation and conclusion of international agreements in the area of CSDP Negotiation of international agreements Conclusion of international agreements

Typology of CSDP agreements Participation of third states in specific CSDP missions Status of forces agreements (SOFAs), and status of missions agreements (SOMAs) Agreements on security procedures for the exchange of classified information Framework participation agreements Transfer agreements

Conclusion 8. Interactions between CSDP and other strands of external action Introduction The nexus between CSDP and development cooperation Policy interactions between development cooperation and CSDP The security-development nexus as a matter of practice The quest for coherence

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143 146 149 150 153 155 155 157 157 159 162 162 165 168 177 177 178 179 181 183 183 185 187 190 192 192 198 203 205 208 209

210 210 210 212 215 221

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Contents

The interactions between CSDP and the Area of Freedom, Security, and Justice The nexus of policies and the Court of Justice: the choice of legal basis The ECOWAS case The judgment The implications A strict approach to the separation between security and defence and other policies A broad understanding of development cooperation Strict monitoring of the choice of legal basis The Philippines Borders case

Conclusion 9. Practical and economic underpinnings of CSDP: The case of defence industries Introduction The state of defence industries in the European Union Armaments and EU law Armaments before the European Court of Justice A strict interpretation of Article 346 TFEU The issue of confidentiality The role of national courts

The new approach by the Commission Policy initiatives within the EU legal order Policy initiatives at intergovernmental level Conclusion

225 229 231 233 236 236 239 240 244 246

248 248 249 252 257 257 260 262 264 268 276 278

10. Conclusions

283

Bibliography Index

287 303

List of Abbreviations General ACP ACTA

African, Caribbean and Pacific Group of States Anti-Counterfeiting Trade Agreement

AETR AFSJ

European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport Area of Freedom, Security, and Justice

AMIS AMISOM

African Union Mission African Union Mission in Somalia

AMM AMM-IMP ASEAN

Aceh Monitoring Mission AMM-Initial Monitoring Presence Association of Southeast Asian Nations

BiH

Bosnia and Herzegovina

BTWC CARDS CEPS CFI

Biological and Toxin Weapons Convention Country Assistance for Reconstruction, Development and Stabilization Centre for European Policy Studies Court of First Instance

CFSP

Common Foreign and Security Policy

CIDSE CIVCOM

International alliance of Catholic development agencies working together for global justice Committee for Civilian Aspects of Crisis Management

CLEER COREPER CONOPS

Centre for the Law of EU External Relations Permanent Representatives Committee Concept of Operations

CSDP DRC EAEC ECHO ECOWAS

Common Security and Defence Policy Democratic Republic of Congo European Atomic Energy Community European Community Humanitarian Office Economic Community of West African States

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List of Abbreviations

ECSC

European Coal and Steel Community

EDA EDC

European Defence Agency European Defence Community

EDF

European Development Fund

EEAS EEC

European External Action Service European Economic Community

ENEL ENP

Italian electric utility company European Neighbourhood Policy

EPC ESA/IO ESDP

European Political Cooperation Eastern and Southern Africa and Indian Ocean European Security and Defence Policy

ESS

European Security Strategy

EUBAM Rafah

European Union Border Assistance Mission at the Rafah Border Crossing Point

EUCAP

European Conference on Antennas and Propagation

EUFOR

European Union Force

EUFOR Tchad EUI EUJUST LEX

European Union Force Tchad European University Institute EU Rule of Law Mission for Iraq

EUJUST THEMIS EULEX KOSOVO

EU Rule of Law Mission to Georgia EU Rule of Law Mission in Kosovo

EUMC

European Union Military Committee European Union Monitoring Mission European Union Military Staff Organization

EUMM EUMS EUNAVFOR—Atalanta EUPFT EUPM EUPT Kosovo EUPOL EUPOL COPPS EUPOL PROXIMA EUSEC RD Congo

European Union Naval Force Somalia—Operation Atalanta European Union Police Force Training European Union Police Mission EU Planning Team—Kosovo European Union Police Mission European Union Coordinating Office for Palestinian Police Support European Police Mission in the former Yugoslav Republic of Macedonia EU Common Security and Defence Policy

List of Abbreviations

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EUSR

European Union’s Special Representative

EUTM EURATOM

European Union Training Mission European Atomic Energy Community

EUAVSEC

EU Aviation Security Mission—South Sudan

FYROM GNP

Former Yugoslav Republic of Macedonia Gross National Product

IfS IGC

Instrument for Stability Intergovernmental Conference

IPA ISG JHA

Instrument for Pre-Accession Assistance International Steering Group Justice and Home Affairs

MINURCAT

NATO

United Nations Mission in the Central African Republic and Chad United Nations Organization Mission in the Democratic Republic of the Congo North Atlantic Treaty Organization

MONUC

NTM-A

NATO Training Mission—AFGHANISTAN

OCCAR OCHA OPLAN

The Organisation for Joint Armament Cooperation Office for the Coordination of Humanitarian Affairs Operation Plan

PESD

Politique européenne de sécurité et de défense

PSC

Political and Security Committee

RELEX SALWs SAP

Working Group on EU External Relations small arms and light weapons Stabilization and Association Process

SEA SHAPE

Single European Act Supreme Headquarters Allied Powers Europe

SOFA SOMA

Status of Forces Agreement Status of Mission Agreement

SSR SWIFT TACIS

Security Sector Reform Society for World Interbank Financial Telecommunications Technical Assistance to the Commonwealth of Independent States programme Treaty on European Union

TEU

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List of Abbreviations

TFEU

Treaty on the Functioning of the European Union

UN-IPTF UNAMID

United Nations International Police Task Force UN and African Union Hybrid Operation in Darfur

UNMIK

Interim Administration Mission in Kosovo

UNSC WEU

United Nations Security Council Western European Union

WHO WTO

World Health Organization World Trade Organization

Publications AFDI Am J Int’l L

Annuaire français de droit international American Journal of International Law

BYIL CDE

British Yearbook of International Law Cahiers de Droit Européen

CEPS Commentaries CMLRev

Centre for European Policy Studies Commentaries Common Market Law Review

CYELS ECR

Cambridge Yearbook of European Legal Studies European Court Reports

EFARev EJIL ELJ

European Foreign Affairs Review European Journal of International law European Law Journal

ELRev

European Law Review

ICLQ JCMS LIEI

International and Comparative Law Quarterly Journal of Common Market Studies Legal Issues of European Integration

OJ C

Official Journal (Information and Notices) of the European Union

OJ L

Official Journal (Legislation) of the European Union

YEL ZaöRV

Yearbook of European Law Zeitschrift für ausländisches öffentlisches Recht und Völkerreicht

Table of Cases

A. EUROPEAN COURT OF JUSTICE Case 26/62 van Gend en Loos [1963] ECR 1................................................ 7, 25 Case 6/64 Costa v ENEL [1964] ECR 585 .... 7 Case 13/68 Salgoil Salgoil SpA v Italian Ministry for Foreign Trade [1968] ECR 453 ............................................................ 255 Case 22/70 Commission v Council [1971] ECR 263 ...................................... 237, 242 Case 35/76 Simmenthal v Ministero delle Finanze [1976] ECR 1871 ................... 263 Case 41/76 Donckwerwolcke [1976] ECR 1921 .............................................................. 93 Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 ......................... 253, 255 Case C-70/88 European Parliament v Council [1990] ECR I–2041 ............................. 230 Case C-300/89 Commission v Council (re: Titanium dioxide) [1991] ECR I–1689... 230 Case C-367/89 Richard et Les Accessoires Scientifiques SNC [1991] ECR I-4621 .......................................... 258, 267 Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019 ............................. 127 Joined Cases C-181/91 and C-248/91 Parliament v Council (Bangladesh) [1993] ECR I-3685 ........................................ 238 Case C-316/91 Parliament v Council (re: European Development Fund) [1994] ECR 625 ............................................. 238 Case C-324/93 R v Secretary of State for the Home Department, ex parte Evans Medical and MacFarlane Smith LTD [1995] ECR I-563 ............................................................ 257 Case C-70/94 Werner v Germany [1995] ECR I-3189 ................................................. 267 Case C-83/94 Leifer [1995] ECR -3231... 267 Case C-120/94 Commission v Greece (re: FYROM) ECR I-1513 ...... 92, 253, 264 Case C-268/94 Portugal v Council (re: India Agreement) [1996] ECR I-6177 ..... 210, 241 Case C-124/95 The Queen, ex parte CentroCom Srl v HM Treasury and Bank of England [1997] ECR I-81 ................................... 26

Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-3655 ............................. 127 Case C-170/96 Commission v Council (re: airport transit visas) [1998] ECR I-2763 ............................................................ 233 Case C-417/96 Commission v Council (re: Airport Transit Visas) [1998] ECR I-2763 .............................................................. 29 Case C-269/97 Commission v Council (re: beef products regulation) [2000] ECR I–2257 ................................................. 230 Case C-273/97 Sirdar [1999] ECR I-7403 ................................................. 255 Case C-414/97 Commission v Spain [1999] ECR I-5585 ........................................ 257 Case C-285/98 Kreil [2000] ECR I-69 .... 255 Case C-476/98 Commission v Germany [2002] ECR I-9855 ........................................ 237 Case C-186/01 Dory [2003] ECR I-2479 ................................................. 255 Case C-211/01 Commission v Council [2003] ECR I-8913 ........................................ 234 Case C-281/01 Commission v Council (re: Energy Star Agreement) [2002] ECR I-12049 ............................... 211, 241 Case C-94/03 Commission v Council (re: Rotterdam Convention) [2006] ECR I-1 ........................ 187, 211, 234, 241 Case C-176/03 Commission v Council (re: criminal law and environmental protection) [2005] ECR I-7879 ......... 29, 233–234, 238 Case C-281/03 Commission v Council (re: Energy Star Agreement) [2002] ECR I-12049 ............................................... 187 Case C-459/03 Commission v Ireland [2006] ECR I-4635 ........................................ 238 Joined Cases C-317/04 and C-318/04 Parliament v. Council (re: Passenger Name Record Agreement) [2006] I-4721 .............. 29 Case C-91/05 Commission v Council (re: ECOWAS) [2008] ECR I-3651 ........ 29, 44, 80, 188, 211, 231, 233, 234, 235, 240 Case C-284/05 Commission v Finland [2009] ECR I-11705 ............................... 260–261 Case C-294/05 Commission v Sweden [2009] ECR I-11777 ...................................... 260

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Table of Cases

Case C-337/05 Commission v. Italy [2008] ECR I-2173 ........................................ 259 Case C-372/05 Commission v Germany [2009] ECR I-11801 ............................... 254, 260 Case C-378/05 Commission v Italy [2009] ECR I-11831 ...................................... 260 Joined Cases C-402/05 P and C-415/05 P Kadi and Al-Barakaat [2008] ECR I-6351 .......................................... 29 Case C-403/05 Parliament v Commission (re: border support to Philippines) [2007] ECR I-9045 ...................... 29, 44, 244, 246 Case C-409/05 Commission v Greece [2009] ECR I-11859 ............................... 254, 260 Case C-440/05 Commission v Council (re: ship-source pollution) [2007] ECR I-9097 ........................................ 29, 233–234, 238 Case C-461/05 Commission v Denmark [2009] ECR I-11887 ...................................... 260 Case C-157/06 Commission v. Italy [2008] ECR I-7313 ................................. 259–260

Case C-239/06 Commission v Italy [2009] ECR I-11913 ...................................... 260 Case C-308/06 Intertanko [2008] ECR I-4057 ............................................................ 127 Case C-130/10 European Parliament v Council, judgment of 19 July 2012, not yet reported ........................... 230, 243 Case C-615/10 Insinööritoimisto InsTiimi Oy, judgment of 7 June 2012, not yet reported ...............................................262–263 B. COURT OF FIRST INSTANCE/ GENERAL COURT Case T-26/01 Fiocchi [2003] ECR II-3951 ......................................... 258, 264 C. NATIONAL COURTS Crotty v. An Taoiseach and Others [1987] 2 CMLR 666 ........................................ 15

Table of Legislation INTERNATIONAL TREATIES Agreements Agreement between the European Union and Bosnia and Herzegovina (BiH) on the activities of the European Union Police Mission (EUPM) in BiH [2002] OJ L 293/2 ....................... 199 Agreement between the European Union and the Republic of Poland on the participation of this State to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 64/38 ....................... 192 Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information [2003] OJ L 80/36 ... 203 Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status of the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L 82/46 ..... 199 Agreement between the European Union and the Russian Federation on the participation of that State in the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 197/38 ..................... 192 Agreement between the European Union and the Republic of Estonia on the participation of the Republic of Estonia in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L 216/61......................................... 193 Agreement between the European Union and the Czech Republic on the participation of the Czech Republic in the European Union-led Forces in the Former Yugoslav Republic of Macedonia [2003] OJ L 229/39......................................... 193

Agreement between the European Union and the Republic of Lithuania on the participation of the Republic of Lithuania in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L 234/19......................................... 193 Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Unionled forcesin the Former Yugoslav Republic of Macedonia [2003] OJ L 234/23......................................... 193 Agreement between the European Union and Cyprus on the participation of Cyprus to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/2 .................................................... 193 Agreement between the European Union and Iceland on the participation of Iceland to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/5 .................................................... 193 Agreement between the European Union and the Czech Republic on the participation of the Czech Republic to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/8 .......................................... 193 Agreement between the European Union and Lithuania on the participation of Lithuania to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/11 .................................................... 193 Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation to the European Union Police Mission (EUPM) in

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Table of Legislation

Bosnia and Herzegovina [2003] OJ L 239/14 ..................................... 193 Agreement between the European Union and Latvia on the participation of Latvia to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/17 .................................................... 193 Agreement between the European Union and Hungary on the participation of Hungary to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/20 .................................................... 193 Agreement between the European Union and Romania on the participation of Romania to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/23 .................................................... 193 Agreement between the European Union and Estonia on the participation of Estonia to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/26 .................................................... 193 Agreement between the European Union and Slovenia on the participation of Slovenia to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/29 .................................................... 193 Agreement between the European Union and the Kingdom of Norway on the participation of the Kingdom of Norway to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/32 .................................................... 193 Agreement between the European Union and Turkey on the participation of Turkey to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/35 .................................................... 193 Agreement between the European Union and Ukraine on the participation of Ukraine to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/38......................................... 193

Agreement between the European Union and Bulgaria on the participation of Bulgaria to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/41 . 193 Agreement between the European Union and Slovakia on the participation of Slovakia to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/44 . 193 Agreement between the European Union and the Republic of Poland on the participation of Polish armed forces in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L 285/44......................................... 193 Agreement between the European Union and the Government of Latvia on the participation of the Republic of Latvia in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L 313/79......................................... 193 Agreement between the European Union and the Slovak Republic on the participation of the armed forces of the Slovak Republic in the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L 12/54 ..... 193 Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status and activities of the European Union Police Mission (EUPOL Proxima) in the Former Yugoslav Republic of Macedonia [2004] OJ L 16/66 ....................... 199 Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military crisis management operation in Bosnia and Herzegovina (operation ALTHEA) [2004] OJ L 20/42 ...... 193 Agreement between the European Union and Romania on the participation of Romania in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L 120/61......................................... 193

Table of Legislation Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/78......................................... 193 Agreement between the European Union and Ukraine on the participation of Ukraine in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/81......................................... 193 Agreement between the European Union and the Kingdom of Norway on the participation of the Kingdom of Norway in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/86......................................... 193 Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/90 ... 193 Agreement between the European Union and the Kingdom of Norway on security procedures for the exchange of classified information [2004] OJ L 362/29......................................... 203 Agreement between the European Union and Georgia on the status and activities of the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L 389/42 ..... 198 Agreement between the European Union and the Kingdom of Morocco on the participation of the Kingdom of Morocco in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 34/47 .................................................... 193 Agreement between the European Union and the Republic of Albania on the participation of the Republic

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of Albania in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 65/35 .................................................... 193 Agreement between the European Union and the Republic of Iceland establishing a framework for the participation of the Republic of Iceland in the European Union crisis-management operations [2005] OJ L 67/2 ......................... 206 Agreement between the European Union and the Kingdom of Norway establishing a framework for the participation of the Kingdom of Norway in the European Union crisis-management operations [2005] OJ L 67/8 ......................... 206 Agreement between the European Union and Romania establishing a framework for the participation of Romania in the European Union crisis-management operations [2005] OJ L 67/14 ...... 206 Agreement between the European Union and the former Yugoslav Republic of Macedonia on the security procedures for the exchange of classified information [2005] OJ L 94/39 .......................................... 203 Agreement between the European Union and Romania on security procedures for the exchange of classified information [2005] OJ L 118/48 ..................... 203 Agreement between the European Union and the Republic of Bulgaria on security procedures for the exchange of classified information [2005] OJ L 118/53......................................... 203 Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 127/28......................................... 193 Agreement between the European Union and the Argentine Republic on the participation of the Argentine Republic in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 156/22 ......... 193

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Table of Legislation

Agreement between the European Union and Ukraine on the security procedures for the exchange of classified information [2005] OJ L 172/84 ..................... 203 Agreement between the European Union and Ukraine establishing a framework for the participation of Ukraine in the European Union crisis management operations [2005] OJ L 182/29 .... 205 Agreement between the European Union and the Republic of Chile on the participation of the Republic of Chile in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) [2005] OJ L 202/40 ..................... 193 Agreement between the European Union and the Democratic Republic of the Congo on the status and activities of the European Union Police Mission in the Democratic Republic of the Congo (EUPOL Kinshasa) [2005] OJ L 256/58 ..................................... 198 Agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its Personnel [2005] OJ L 288/60 ..................... 198 Agreement between the European Union and Canada establishing a framework for the participation of Canada in the European Union crisis management operations [2005] OJ L 315/21......................................... 205 Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission—AMM) [2005] OJ L 349/30......................................... 193 Agreement between the European Union and the Republic of Croatia on security procedures for the exchange of classified information [2006] OJ L 116/74......................................... 203

Agreement between the European Union and the Republic of Iceland on security procedures for the exchange of classified information [2006] OJ L 184/35......................................... 203 Agreement between the European Union and the Gabonese Republic on the status of the European Union-led forces in the Gabonese Republic [2006] OJ L 187/43......................................... 198 Agreement between the European Union and the former Yugoslav Republic of Macedonia on the participation of the former Yugoslav Republic of Macedonia in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) [2006] OJ L 203/12......................................... 193 Agreement in the form of an Exchange of Letters between the European Union and the Government of the Swiss Confederation on the participation of the Swiss Confederation in the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process (Operation EUFOR RD Congo) [2006] OJ L 276/111 ...... 192 Agreement between the European Union and the Government of the United States of America on the security of classified information [2007] OJ L 115/30......................................... 203 Agreement in the form of an Exchange of Letters between the European Union and Brunei on the participation Brunei in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission—AMM) [2007] OJ L 183/52......................................... 193 Agreement in the form of an Exchange of Letters between the European Union and Singapore on the participation of Singapure States in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission—AMM) [2007] OJ L 183/58 ..................... 193

Table of Legislation Agreement in the form of an Exchange of Letters between the European Union and Malaysia on the participation of Malaysia in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2007] OJ L 183/64......................................... 193 Agreement in the form of an Exchange of Letters between the European Union and Thailand on the participation of Thailand in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2007] OJ L 183/70......................................... 193 Agreement in the form of an Exchange of Letters between the European Union and the Philippines on the participation of the Philippines in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2007] OJ L 183/76......................................... 193 Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L 270/28......................................... 192 Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L 274/18 ................................ 192 Agreement between the European Union and the Republic of Cameroon on the status of the European Union-led forces in transit within the territory of the Republic of Cameroon [2008] OJ L 57/31 ....................................... 198 Agreement between the European Union and the Republic of Chad on the status of the European Union-led forces in the Republic of Chad [2008] OJ L 83/40 .................................................... 198 Agreement between the European Union and the Central African Republic on the status of the European Union-led

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forces in the Central African Republic [2008] OJ L 136/46 ..................... 198 Agreement between the European Union and the Swiss Confederation on security procedures for the exchange of classified information [2008] OJ L 181/58......................................... 203 Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/ RCA) [2008] OJ L 217/19 ... 128, 192 Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 217/24......................................... 192 Agreement between the European Space Agency and the European Union on the security and exchange of classified information [2008] OJ L 219/59 .. 203 Agreement between the European Union and the Republic of Guinea-Bissau on the Status of the European Union Mission in Support of Security Sector Reform in the Republic of Guinea-Bissau [2008] OJ L 219/66 ..................... 198 Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/ RCA) [2008] OJ L 268/33 .......... 192 Agreement between the European Union and the United States of America on the participation of the United States of America in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 282/33.................................. 173, 192 Agreement between the European Union and the Russian Federation on the participation of the Russian Federation in the European Union

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military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/ RCA) [2008] OJ L 307/16 ... 128, 192 Agreement between the European Union and Georgia on the status of the European Union Monitoring Mission in Georgia [2008] OJ L 310/31 .... 198 Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 317/20 .... 192 Agreement between the European Union and the Somali Republic on the status of the European Union-led naval force in the Somali Republic in the framework of the EU military operation Atalanta [2009] OJ L 10/29 .................................................... 198 Agreement between the European Union and the Republic of Djibouti on the status of the European Union-led forces in the Republic of Djibouti in the framework of the EU military operation Atalanta [2009] OJ L 33/43 .................................................... 198 Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer [2009] OJ L 79/51 ................ 123, 208 Agreement between the Government of the Russian Federation and the European Union on the protection of classified information [2009] OJ L 155/57 .. 203 Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery

off the Somali coast (Operation Atalanta) [2009] OJ L 202/84 ...... 192 Agreement between the European Union and the Republic of Seychelles on the status of the European Union-led force in the Republic of Seychelles in the framework of the EU military operation Atalanta [2009] OJ L 323/14................... 123, 198, 199, 208 Agreement on security procedures for exchanging classified information between the European Union and Israel [2009] OJ L 192/63 ............ 203 Agreement between the European Union and the Republic of Seychelles on the status of the European Union-led force in the Republic of Seychelles in the framework of the EU military operation Atalanta [2009] OJ L 323/14................... 123, 198, 199, 208 Agreement between Australia and the European Union on the security of classified information [2010] OJ L 26/31 .......................................... 203 Agreement between the European Union and Montenegro on the participation of Montenegro in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) [2010] OJ L 88/3 .......... 192 Agreement between the European Union and the Principality of Liechtenstein on security procedures for exchanging classified information [2010] OJ L 187/2 .......................................... 203 Agreement between the European Union and the Republic of Uganda on the Status of the European Union-led Mission in Uganda [2010] OJ 221/2 .................................................... 199 Agreement between the European Union and Montenegro on security procedures for exchanging and protecting classified information [2010] OJ L 260/2 .......................................... 203 Agreement between the European Union and the Islamic Republic of Afghanistan on the Status of the European Union Police Mission in Afghanistan

Table of Legislation (EUPOL AFGHANISTAN) [2010] OJ L 294/2 .................................. 198 Agreement between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations [2011] OJ L 57/2 . ....................................... 206 Framework Agreement between the United States of America and the European Union on the participation of the United States of America in European Union crisis management operations [2011] OJ L 143/2 ....................... 206 Agreement between the European Union and the Republic of Serbia establishing a framework for the participation of the Republic of Serbia in European Union crisis management operations [2011] OJ L 163/2 ....................... 206 Agreement between the European Union and the Republic of Serbia on security procedures for exchanging and protecting classified information [2011] OJ L 216/2 ....................... 203 Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer [2011] OJ L 254/3 ................................... 123, 208 Agreement between the European Union and New Zealand establishing a framework for the participation of New Zealand in European Union crisis management operations [2012] OJ L 160/2 .................................. 206 Agreement between the Organisation for Joint Armament Cooperation and the European Union on the protection of classified information [2012] OJ L 229/2 ................................... 203, 278 Berlin Plus Agreement ............................. 106 Cotonou Agreement ......................... 180, 232 Dayton Peace Agreement ......................... 111 Framework Agreement between the United States of America and the European Union on the participation of the

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United States of America in European Union crisis management operations [2011] OJ L 143/2 ....................... 206 SWIFT Agreement .................................... 49 SECONDARY EUROPEAN LEGISLATION Directives Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors [2004] OJ L 134/1 ................ 273, 275 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L 134/114 ...................................... 262, 270, 273 Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community [2009] OJ L 146/1 ............................................. 270–276 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the field of defence and security, and amending Directives 2004/17/EC and 2004/18/EC [2009] OJ L 216/76 ......................................270, 272–277 Commission Directive 2012/10/EU of 22 March 2012 amending Directive 2009/43/EC as regards the list of defence-related products [2012] OJ L 85/3 ............................................ 270 Regulations Council Regulation (EEC, EURATOM) 1553/89 of 29 May 1989 on the

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definitive uniform arrangements for the collection of own resources accruing from value added tax [1989] OJ L 155/1 .................................. 261 Council Regulation (EEC) 2913/92 of 12 October 1992 establishing the Community Customs Code [1992] OJ L 302/1 .................................. 261 Council Regulation (EC) No 2666/2000 of 5 December 2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia, repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and (EEC) No 1360/90 and Decisions 97/256/EC and 1999/311/EC [2000] OJ L 06/1 ..................................... 109, 136 Council Regulation (EC) 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology [1994] OJ L 367/1 .................................. 267 Council Regulation (EC) 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) [2006] OJ L 210/82 .............. 175, 215 Regulation (EC) 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument [2006] OJ L 310/1 ................................... 155, 215 Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability [2006] OJ L 327/1 ................ 215–219 Council Regulation (EURATOM) 300/2007 of 19 February 2007 establishing an Instrument for Nuclear Safety Cooperation [2007] OJ L 81/1 ............................. 215, 218 Council Regulation (EC) 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2009] OJ L 134/1 ....................... 275

Joint Actions Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission [2002] OJ L 70/1 ................................ 98, 134, 136 Council Joint Action 2002/211/CFSP of 11 March 2002 on the appointment of the EU Special Representative in Bosnia and Herzegovina [2002] OJ L 70/7 113 Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP [2002] OJ L 191/1 ......... 231, 232, 234 Council Joint Action 2002/962/CFSP of 10 December 2002 amending and extending the mandate of the European Union Special Representative for the African Great Lakes Region [2002] OJ L 334/5 .......................................... 150 Council Joint Action 2003/92/CFSP of 27 January 2003 on the European Union military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L 34/26................... 108, 109 Council Joint Action 2003/141/CFSP of 27 February 2003 amending Joint Action 2002/210/CFSP on the European Union Police Mission [2003] OJ L 53/63 ....................... 134 Council Joint Action 2003/188/CFSP of 17 March 2003 amending Joint Action 2002/210/CFSP on the European Union Police Mission [2003] OJ L 73/9 ............................................ 134 Council Joint Action 2003/423/CFSP 2003/ 423/CFSP of 5 June 2003 on the European Union military operation in the Democratic Republic of Congo [2003] OJ L 143/50 ...........66, 98, 110 Council Joint Action 2003/496/CFSP of 7 July 2003 concerning the appointment of an EU Special Representative for the South Caucasus [2003] OJ L 169/74 ..................... 179 Council Joint Action 2003/681/CFSP of 29 September 2003 on the European

Table of Legislation Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL ‘Proxima’) [2003] OJ L 249/66...........................138–140, 218 Council Joint Action 2003/869/CFSP of 8 December 2003 amending and extending the mandate of the Special Representative of the European Union for the African Great Lakes Region [2003] OJ L 326/37......................................... 150 Council Joint Action 2003/872/CFSP of 8 December 2003 extending and amending the mandate of the Special Representative of the European Union for the South Caucasus [2003] OJ L 326/44 ................................ 163 Council Joint Action 2004/494/CFSP of 17 May 2004 on European Union support to the establishment of the Integrated Police Unit in the Democratic Republic of the Congo (DRC) [2004] OJ L 182/41 ......... 141 Council Joint Action 2004/523/CFSP of 28 June 2004 on the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2003] OJ L 228/21........................... 162, 164, 165 Council Joint Action 2004/530/CFSP of 28 June 2004 extending the mandate of the Special Representative of the European Union for the African Great Lakes Region and amending Joint Action 2003/869/CFSP [2004] OJ L 234/13......................................... 150 Council Joint Action 2004/569/CFSP of 12 July 2004 on the mandate of the European Union Special Representative in Bosnia and Herzegovina and repealing Council Joint Action 2002/211/CFSP [2004] OJ L 252/7 .................................. 113 Council Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina [2004] OJ L 252/10 ... 66, 98, 112, 113 Council Joint Action 2004/638/CFSP of 13 September 2004 amending Joint Action 2004/523/CFSP on the European Union Rule of Law Mission

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in Georgia, EUJUST THEMIS [2004] OJ L 291/7 .................................. 162 Council Joint Action 2004/847/CFSP of 9 December 2004 on the European Union Police Mission in Kinshasa (DRC) regarding the Integrated Police Unit (EUPOL ‘Kinshasa’) [2004] OJ L 367/30 .............. 141, 142 Council Joint Action 2005/96/CFSP of 2 February 2005 amending and extending the mandate of the Special Representative of the European Union for the African Great Lakes Region [2005] OJ L 31/70 .......... 150 Council Joint Action 2005/190/CFSP of 7 March 2005 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2005] OJ L 62/37 ................................... 166, 167 Council Joint Action 2005/355/CFSP of 2 May 2005 on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (DRC) [2005] OJ L 112/20 .................................................... 151 Council Joint Action 2006/468/CFSP of 5 July 2006 renewing and revising the mandate of the Special Representative of the European Union for Sudan [2005] OJ L 184/38 ..................... 103 Council Joint Action 2005/557/CFSP of 18 July 2005 on the European Union civilian-military supporting action to the African Union mission in the Darfur region of Sudan [2005] OJ L 188/46...........................103, 114–115 Council Joint Action 2005/582/CFSP of 28 July 2005 amending and extending the mandate of the European Union Special Representative for the South Caucasus [2005] OJ L 199/92 ...... 163 Council Joint Action 2005/586/CFSP of 28 July 2005 extending and amending the mandate of the European Union Special Representative for the African Great Lakes Region [2005] OJ L 199/97......................................... 150 Council Joint Action 2005/643/CFSP of 9 September 2005 on the European Union Monitoring Mission in

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Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2005] OJ L 234/13............................. 58, 157, 218 Council Joint Action 2005/797/CFSP of 14 November 2005 on the European Union Police Mission for the Palestinian Territories [2005] OJ L 300/65.................................. 144, 145 Council Joint Action 2005/822/CFSP of 21 November 2005 amending and extending Joint Action 2004/847/ CFSP on the European Union Police Mission in Kinshasa (DRC) regarding the Integrated Police Unit (EUPOL ‘Kinshasa’) [2005] OJ L 305/44 .......141 Council Joint Action 2005/824/CFSP of 24 November 2005 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2005] OJ L 307/55 ...... 113, 134, 135, 136, 218 Council Joint Action 2005/826/CFSP of 24 November 2005 on the establishment of an EU Police Advisory Team (EUPAT) in the Former Yugoslav Republic of Macedonia (FYROM) [2005] OJ L 307/61 ....................... 140 Council Joint Action 2005/868/CFSP of 1 December 2005 amending Joint Action 2005/355/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (DRC) with regard to setting up a technical assistance project on improving the chain of payments of the Ministry of Defence in the DRC [2005] OJ L 318/29......................................... 151 Council Joint Action 2005/889/CFSP of 12 December 2005 on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2005] OJ L 327/28......................................... 155 Council Joint Action 2006/121/CFSP of 20 February 2006 appointing the European Union Special Representative for the South Caucasus [2006] OJ L 49/14 ....................... 163 Council Joint Action 2006/122/CFSP of 20 February 2006 extending the

mandate of the Special Representative of the European Union for the African Great Lakes Region [2006] OJ L 49/17 .................................. 150 Council Joint Action 2006/202/CFSP of 27 February 2006 amending and extending Joint Action 2005/643/ CFSP on the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2006] OJ L 71/57 .................................................... 157 Council Joint Action 2006/303/CFSP of 25 April 2006 amending and extending Joint Action 2005/355/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (DRC) [2006] OJ L 112/18 ..................... 151 Council Joint Action 2006/304/CFSP of 10 April 2006 on the establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis management operation in the field of rule of law and possible other areas in Kosovo [2006] OJ L 112/9 ......168–169 Council Joint Action 2006/319/CFSP of 27 April 2006 on the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process [2006] OJ L 116/98 ............................................... 98, 116 Council Joint Action 2006/407/CFSP of 7 June 2006 amending and extending Joint Action 2005/643/CFSP on the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission AMM) [2006] OJ L 158/20 .................................................... 157 Council Joint Action 2006/413/CFSP of 12 June 2006 amending and extending Joint Action 2005/190/CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2006] OJ L 163/17 ..................... 166 Council Joint Action 2006/468/CFSP of 5 July 2006 renewing and revising the mandate of the Special Representative

Table of Legislation of the European Union for Sudan [2006] OJ L L 184/38 .................. 103 Council Joint Action 2006/607/CFSP of 7 September 2006 amending and extending Joint Action 2005/643/ CFSP on the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission AMM) [2006] OJ L 246/16 .................................................... 157 Council Joint Action 2006/708/CFSP of 17 October 2006 amending and extending Joint Action 2005/190/ CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2006] OJ L 291/43......................................... 166 Council Joint Action 2006/868/CFSP of 30 November 2006 amending Joint Action 2004/847/CFSP on the European Union Police Mission in Kinshasa (DRC) regarding the Integrated Police Unit (EUPOL ‘Kinshasa’) [2006] OJ L 335/50 .... 141 Council Joint Action 2007/111/CFSP of 15 February 2007 amending and extending the mandate of the European Union Special Representative for the South Caucasus [2007] OJ L 46/75 ....................... 163 Council Joint Action 2007/112/CFSP of 15 February 2007 appointing the European Union Special Representative for the African Great Lakes Region [2007] OJ L 46/79 .......................................... 150 Council Joint Action 2007/147/CFSP of 27 February 2007 repealing Joint Action 2006/319/CFSP on the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process [2007] OJ L 64/44 ........... 116 Council Joint Action 2007/192/CFSP of 27 March 2007 amending Joint Action 2005/355/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of

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the Congo (DRC) [2007] OJ L 87/22 .................................................... 151 Council Joint Action 2007/245/CFSP of 23 April 2007 amending Joint Action 2005/557/CFSP on the European Union civilian-military supporting action to the African Union mission in the Darfur region of Sudan with regard to the inclusion of a military support element providing assistance to the setting up of the African Union Mission in Somalia (AMISOM) [2007] OJ L 106/65 ..................... 114 Council Joint Action 2007/359/CFSP of 23 May 2007 amending and extending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2007] OJ L 133/51 ..................... 155 Council Joint Action 2007/369/CFSP of 30 May 2007 on establishment of the European Union Police Mission in Afghanistan (EUPOL AFGANISTAN) [2007] OJ L 139/33 ........................................ 98, 146, 147 Council Joint Action 2007/405/CFSP of 12 June 2007 on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2007] OJ L 151/46............................. 98, 146, 147 Council Joint Action 2007/406/CFSP of 12 June 2007 on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo [2007] OJ L 151/52 ................................ 151 Council Joint Action 2007/677/CFSP of 15 October 2007 on the European Union military operation in the Republic of Chad and in the Central African Republic [2007] OJ L 279/21 ........................................ 98, 118, 119 Council Joint Action 2007/733/CFSP of 13 November 2007 amending Joint Action 2007/369/CFSP on

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the establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L 295/31 ................................ 146 Council Joint Action 2007/748/CFSP of 19 November 2007 amending Joint Action 2007/87/CFSP amending and extending the mandate ofthe European Union Special Representative in Bosnia and Herzegovina [2007] OJ L 303/38......................................... 113 Council Joint Action 2007/749/CFSP of 19 November 2007 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2007] OJ L 303/40 ................................ 134 Council Joint Action 2007/760/CFSP of 25 September 2008 appointing the European Union Special Representative for the crisis in Georgia [2007] OJ L 305/58 ........ 166 Council Joint Action 2007/778/CFSP of 29 November 2007 amending and extending Joint Action 2006/304/ CFSP on the establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis management operation in the field of rule of law and possible other areas in Kosovo [2007] OJ L 312/68 ......... 168 Council Joint Action 2007/887/CFSP of 20 December 2007 repealing JointAction 2005/557/CFSP on the European Union civilian-military supporting action to the African Union missions in the Darfur region of Sudan and in Somalia [2007] OJ L 346/28......................................... 114 Council Joint Action 2008/38/CFSP of 20 December 2007 amending Joint Action 2007/405/CFSP on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2008] OJ L 9/18 ......................... 142 Council Joint Action 2008/108/CFSP of 12 February 2008 amending and extending the mandate of the European

Union Special Representative for the African Great Lakes Region [2008] OJ L 38/22 .................................. 150 Council Joint Action 2008/110/CFSP of 12 February amending and extending the mandate of the European Union Special Representative for Sudan [2008] OJ L 38/28 ....................... 119 Council Joint Action 2008/112/CFSP of 12 February 2008 on the European Union mission in support of security sector reform in the Republic of Guinea-Bissau (EU SSR GUINEA-BISSAU) [2008] OJ L 40/11 ................................... 153–154 Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a European Union Special Representative in Kosovo [2008] OJ L 42/88 ...... 174, 175 Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 42/92 ..........54, 98, 170, 171, 173, 229 Council Joint Action 2008/130/CFSP of 18 February 2008 extending the mandate of the European Union Special Representative in Bosnia and Herzegovina [2008] OJ L 43/22 .................................................... 113 Council Joint Action 2008/132/CFSP of 18 February 2008 amending and extending the mandate of the European Union Special Representative for the South Caucasus [2008] OJ L 43/30 ....................... 163 Council Joint Action 2008/228/CFSP of 17 March 2008 amending and extending Joint Action 2006/304/CFSP on the establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis management operation in the field of rule of law and possible other areas in Kosovo [2008] OJ L 75/78................168 Council Joint Action 2008/229/CFSP of 17 March 2008 amending Joint Action 2007/369/CFSP on the establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2008] OJ L 75/80 .................................................... 146

Table of Legislation Council Joint Action 2008/304/CFSP of 14 April 2008 amending and extending Joint Action 2005/190/ CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2008] OJ L 105/10......................................... 166 Council Joint Action 2008/379/CFSP of 19 May 2008 amending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EUBAM Rafah) [2008] OJ L 130/24 .................................................... 155 Council Joint Action 2008/480/CFSP of 23 June 2008 amending and extending Joint Action 2005/190/CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2008] OJ L 163/50................ 166 Council Joint Action 2008/485/CFSP of 23 June 2008 amending and extending Joint Action 2007/405/ CFSP on the European Union Police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2008] OJ L 164/44 .............. 142, 143 Council Joint Action 2008/491/CFSP of 26 June 2008 amending and extending Council Joint Action 2007/406/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) [2008] OJ L 168/42 ................................ 151 Council Joint Action 2008/643/CFSP of 4 August 2008 amending Joint Action 2007/369/CFSP on establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2008] OJ L 207/43......................................... 146 Council Joint Action 2008/736/CFSP of 15 September 2008 on the European Union Monitoring Mission in Georgia, EUMM Georgia [2008] OJ L 259/15 ..................................... 160

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Council Joint Action 2008/749/CFSP of 19 September 2008 on the European Union military coordination action in support of UN Security Council resolution 1816 (2008) (EU NAVCO) [2008] OJ L 252/39 ..................... 121 Council Joint Action 2008/759/CFSP of 25 September 2008 amending Joint Action 2008/736/CFSP on the European Union Monitoring Mission in Georgia, EUMM Georgia [2008] OJ L 259/15 ................................ 160 Council Joint Action 2008/760/CFSP of 25 September 2008 appointing the European Union Special Representative for the crisis in Georgia [2008] OJ L 259/16 ........ 160 Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and Repression of acts of piracy and armed robbery off the Somali coast [2008] OJ L 301/33 ............................................. 121, 123 Council Joint Action 2008/862/CFSP of 10 November 2008 amending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EUBAM Rafah) [2008] OJ L 306/98 ..................... 155 Council Joint Action 2008/958/CFSP of 16 December 2008 amending Joint Action 2005/797/CFSP on the European Police Mission for the Palestinian Territories [2008] OJ L 338/75......................................... 144 Council Joint Action 2009/128/CFSP of 16 February 2009 extending the mandate of the European Union Special Representative for the African Great Lakes Region [2009] OJ L 46/36 .......................................... 150 Council Joint Action 2009/131/CFSP of 16 February 2009 extending the mandate of the European Union Special Representative for the crisis in Georgia [2009] OJ L 46/47.......... 160 Council Joint Action 2009/133/CFSP of 16 February 2009 extending the

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mandate of the European Union Special Representative for the South Caucasus [2009] OJ L 46/53 ...........163 Council Joint Action 2009/294/CFSP of 23 March 2009 amending Joint Action 2008/736/CFSP on the European Union Monitoring Mission in Georgia, EUMM Georgia [2009] OJ L 79/60 ....................................... 160 Council Joint Action 2009/405/CFSP of 18 May 2009 amending Joint Action 2008/112/CFSP on the European Union mission in support of security sector reform in the Republic of Guinea-Bissau (EU SSR GUINEABISSAU) [2009] OJ L 128/60 ...... 153 Council Joint Action 2009/445/CFSP of 9 June 2009 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2009] OJ L 148/33 ................................ 170 Council Joint Action 2009/466/CFSP of 15 June 2009 amending and extending Joint Action 2007/405/ CFSP on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2009] OJ L 151/40 ..................... 142 Council Joint Action 2009/475/CFSP of 11 June 2009 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2009] OJ L 156/57......................................... 166 Council Joint Action 2009/509/CFSP of 25 June 2009 amending and extending Joint Action 2007/406/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) [2009] OJ L 172/36......................................... 151 Council Joint Action 2009/571/CFSP of 27 July 2009 extending the mandate of the European Union Special Representative for the crisis in Georgia [2009] OJ L 197/109 ...... 160

Council Joint Action 2009/572/CFSP of 27 July 2009 amending and extending Joint Action 2008/736/CFSP on the European Union Monitoring Mission in Georgia, EUMM Georgia [2009] OJ L 197/110 .............................. 160 Council Joint Action 2009/709/CFSP of 15 September 2009 on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) [2009] OJ L 246/33 ................................ 151 Council Joint Action 2009/769/CFSP of 19 October 2009 amending Joint Action 2007/405/CFSP on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2009] OJ L 274/45 ..... 142, 143 Council Joint Action 2009/795/CFSP of 19 October 2009 repealing Joint Action 2007/677/CFSP on the European Union military operation in the Republic of Chad and in the Central African Republic [2009] OJ L 283/61 .................................................... 118 Council Joint Action 2009/841/CFSP of 17 November 2009 amending and extending Joint Action 2008/112/ CFSP on the European Union mission in support of security sector reform in the Republic of GuineaBissau (EU SSR GUINEA-BISSAU) [2009] OJ L 303/70 ..................... 153 Council Joint Action 2009/842/CFSP of 17 November 2009 amending Joint Action 2007/369/CFSP on the establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2009] OJ L 303/71 ................................ 146 Council Joint Action 2009/854/CFSP of 20 November 2009 amending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2009] OJ L 312/73 ..................... 155

Table of Legislation Council Joint Action 2009/907/CFSP of 8 December 2009 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2009] OJ L 322/27 .................................................... 121 Council Joint Action 2009/955/CFSP of 15 December 2009 amending Joint Action 2005/797/CFSP on the European Union Police Mission for the Palestinian Territories [2009] OJ L 330/76.................................. 144, 145 Council Joint Action 2010/113/CFSP of 22 February 2010 extending the mandate of the European Union Special Representative for the African Great Lakes Region [2010] OJ L 46/30 .......................................... 150 Council Joint Action 2010/279/CFSP of 18 May 2010 on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2010] OJ L 123/4 .................................. 146 Council Joint Action 2010/424/CFSP of 26 July 2010 amending Joint Action 2008/736/CFSP on the European Union Monitoring Mission in Georgia, EUMM Georgia [2010] OJ L 199/29 ..................................... 160 Council Joint Action 2010/440/CFSP of 11 August 2010 extending the mandate of the European Union Special Representative for the African Great Lakes Region [2010] OJ L 211/20......................................... 150 Council Joint Action 2010/766/CFSP of 7 December 2010 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2010] OJ L 327/49 .... 121 Common Positions Common Position 2003/319/CFSP of 8 May 2003 concerning European Union support for the implementation of

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the Lusaka Ceasefire Agreement and the peace process in the Democratic Republic of Congo (DRC) [2003] OJ L 115/87 ..................................... 109 Common Position 2004/85 of 26 January 2004 concerning conflict prevention, management and resolution in Africa [2004] OJ L 21/25 ....................... 150 Common Position 2005/304/CFSP of 12 April 2005 concerning conflict prevention, management and resolution in Africa [2005] OJ L 97/57 .......................................... 150 Common Position 2006/276/CFSP of 10 April 2006 concerning restrictive measures against certain officials of Belarus [2006] OJ L 101/05 ......... 185 Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L 335/99 .............. 271, 272 Common Position 2009/314/CFSP of 6 April 2009 amending Common Position 2006/276/CFSP concerning restrictive measures against certain officials of Belarus [2009] OJ L 332/76......................................... 185 Decisions Council Decision 88/376/EEC, Euratom of 24 June 1988 on the system of the Communities’ own resources [1988] OJ L 185/24 ................................ 261 Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities’ own resources [1994] OJ L 293/9 ........ 261 Council Decision 94/942/CFSP of 19 December 1994 on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1994] OJ L 367/8 ....................... 267 Council Decision 2001/78/CFSP of 22 January 2001 setting up the Political and Security Committee [2001] OJ L 27/1 ...................... 64, 65 Council Decision 2001/79/CFSP of 22 January 2001 setting up the Military

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Committee of the European Union [2001] OJ L 27/4 ............................. 64 Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union [2001] OJ L 27/7 ................ 64 Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations [2001] OJ L 101/1 ............................ 196, 203, 207 Council Decision 2001/496/CFSP of 25 June 2001 on the rules applicable to national military staff on secondment to the General Secretariat of the Council in order to form the European Union Military Staff [2001] OJ L 181/11 .................................. 64 Council Decision 2002/34/EC of 20 December 2001 amending the Council Decisions of 25 June 2001, 22 December 2000, 25 June 1997 and 22 March 1999 with regard to the daily allowance received by national military staff and national experts on detachment to the General Secretariat of the Council [2002] OJ L 15/29 ............................................ 64 Council Decision 2002/845/CFSP of 30 September 2002 concerning the conclusion of the Agreement between the European Union and Bosnia and Herzegovina (BiH) on the activities of the European Union Police Mission (EUPM) in BiH [2002] OJ L 293/1 .................................................... 199 Council Decision 2003/157/CFSP of 19 December 2002 concerning the conclusion of the Agreement between the European Union and the Republic of Poland on the participation of this State to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 64/37 ....................... 193 Council Decision 2003/211/CFSP of 24 February 2003 concerning the conclusion of the Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information [2003] OJ L 80/35 .......................................... 203

Council Decision 2003/222/CFSP of 21 March 2003 concerning the conclusion of the Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status of the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L 82/45 ................................... 199, 201 Council Decision 2003/582/CFSP of 21 July 2003 concerning the conclusion of the Agreement between the European Union and the Russian Federation on the participation of that State in the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 197/37 ..................... 193 Council Decision 2003/624/CFSP of 15 July 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Estonia on the participation of the Republic of Estonia in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L 216/60......................................... 193 Council Decision 2003/650/CFSP of 26 May 2003 concerning the conclusion of the Agreement between the European Union and the Czech Republic on the participation of the Czech Republic in the European Unionled Forces in the Former Yugoslav Republic of Macedonia [2003] OJ L 229/38......................................... 193 Council Decision 2003/661/CFSP of 19 May 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Lithuania on the participation of the Republic of Lithuania in the European Unionled forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L 234/18 ..................... 193 Council Decision 2003/662/CFSP of 26 May 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Unionled forces in the Former Yugoslav

Table of Legislation Republic of Macedonia [2003] OJ L 234/22......................................... 193 Council Decision 2003/663/CFSP of 10 December 2002 concerning the conclusion of the Agreements between the European Union and Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Iceland, Latvia, Lithuania, Norway, Romania, the Slovak Republic, Slovenia, Switzerland, Turkey and Ukraine on the participation of these States to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L 239/1 ................ 193, 194 Council Decision 2003/781/CFSP of 29 September 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Poland on the participation of Polish armed forces in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L 285/43......................................... 193 Council Decision 2003/832/CFSP 2003/832/CFSP of 26 May 2003 concerning the conclusion of the Agreements between the European Union and the Government of Latvia on the participation of the Republic of Latvia in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L 313/78......................................... 193 Council Decision 2003/834/EC of 17 November 2003 creating a team to prepare for the establishment of the agency in the field of defence capabilities development, research, acquisition and armaments [2003] OJ L 318/19 ..................................... 276 Council Decision 2004/61/CFSP of 26 May 2003 concerning the conclusion of the Agreement between the European Union and the Slovak Republic on the participation of the armed forces of the Slovak Republic in the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L 12/53 ..... 193

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Council Decision 2004/75/CFSP of 11 December 2003 concerning the conclusion of the Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status and activities of the European Union Police Mission (EUPOL Proxima) in the Former Yugoslav Republic of Macedonia [2004] OJ L 16/65 ................ 199, 201 Council Decision 2004/194/EC of 10 February 2004 amending Decision 2001/264/EC adopting the Council’s security regulations [2004] OJ L 63/48 .......................................... 196 Council Decision 2004/197/CFSP of 23 February 2004 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications OJ L 63/68 ............................................ 77 Council Decision 2004/392/CFSP of 19 May 2003 concerning the conclusion of the Agreement between the European Union and Romania on the participation of Romania in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L 120/61 ......193 Council Decision 2004/803/CFSP of 25 November 2004 on the launching of the European Union military operation in Bosnia and Herzegovina [2004] OJ L 353/21 ..................... 111 Council Decision 2004/809/CFSP of 5 July 2004 concerning the conclusion of the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Police Mission (EUPOL “Proxima”) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/77 ......193 Council Decision 2004/810/CFSP of 5 July 2004 concerning the conclusion of the Agreement between the European Union and Ukraine on the participation of Ukraine in the European Union Police Mission (EUPOL ‘Proxima’) in the former

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Yugoslav Republic of Macedonia [2004] OJ L 354/81 ..................... 193 Council Decision 2004/811/CFSP of 5 July 2004 concerning the conclusion of the Agreement between the European Union and the Kingdom of Norway on the participation of the Kingdom of Norway in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/85 ......193 Council Decision 2004/812/CFSP of 19 July 2004 concerning the conclusion of the Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L 354/89......................................... 193 Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons [2004] L 359/65 .......231–234 Council Decision 2004/843/CFSP of 26 July 2004 concerning the conclusion of the Agreement between the European Union and the Kingdom of Norway on security procedures for the exchange of classified information [2004] OJ L 362/28 ..................... 203 Council Decision 2004/924/CFSP of 22 November 2004 concerning the conclusion of the Agreement between the European Union and Georgia on the status and activities of the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L 389/41 ......................... 198, 201 Council Decision 2005/44/CFSP of 20 December 2004 concerning the conclusion of the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military crisis management operation in Bosnia and

Herzegovina (operation ALTHEA) [2005] OJ L 20/41 ....................... 193 Council Decision 2005/109/CFSP of 24 January 2005 concerning the conclusion of the Agreement between the European Union and the Kingdom of Morocco on the participation of the Kingdom of Morocco in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 34/46 .................................................... 193 Council Decision 2005/191/CFSP of 18 October 2004 concerning the conclusion of agreements between the European Union and the Republic of Iceland, the Kingdom of Norway and Romania establishing a framework for the participation of the Republic of Iceland, the Kingdom of Norway and Romania in the European Union crisis-management operations [2005] OJ L 67/1 .................................... 206 Council Decision 2005/199/CFSP 31 January 2005 concerning the conclusion of the Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 65/34 .................................................... 193 Council Decision 2005/296/CFSP, JHA of 24 January 2005 concerning the conclusion of the Agreement between the European Union and the former Yugoslav Republic of Macedonia on the security procedures for the exchange of classified information [2005] OJ L 94/38 ....................... 203 Council Decision 2005/364/CFSP of 12 April 2005 concerning the conclusion of the Agreement between the European Union and Romania on security procedures for the exchange of classified information [2005] OJ L 118/47......................................... 203 Council Decision 2005/365/CFSP of 14 April 2005 concerning the

Table of Legislation conclusion of the Agreement between the European Union and the Republic of Bulgaria on security procedures for the exchange of classified information [2005] OJ L 118/52....................... 203 Council Decision 2005/386/CFSP of 14 March 2005 concerning the conclusion of the Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 127/27 .......... 193 Council Decision 2005/395/CFSP of 10 May 2005 amending Decision 2001/80/ CFSP on the establishment of the Military Staff of the European Union [2005] L 132/17 ............................ 64 Council Decision 2005/447/CFSP of 14 March 2005 concerning the conclusion of the Agreement between the European Union and the Argentine Republic on the participation of the Argentine Republic in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L 156/21 ......... 193 Council Decision 2005/481/CFSP Council Decision 2005/481/CFSP of 13 June 2005 concerning the conclusion of the Agreement between the European Union and Ukraine on the security procedures for the exchange of classified information [2005] OJ L 172/83......................................... 203 Council Decision 2005/495/CFSP of 11 October 2005 concerning the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and Brunei, Singapore, Malaysia, Thailand and the Philippines on the participation of those States in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2007] OJ L 273/8 ............................................. 193, 205 Council Decision 2005/593/CFSP of 18 July 2005 concerning the conclusion

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of the Agreement between the European Union and the Republic of Chile on the participation of the Republic of Chile in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) [2005] OJ L 202/49......................................... 193 Council Decision 2005/680/CFSP of 12 August 2005 concerning the Conclusion of the Agreement between the European Union and the Democratic Republic of the Congo on the status and activities of the European Union Police Mission in the Democratic Republic of the Congo (EUPOL Kinshasa) [2005] OJ L 256/57 .............................. 198, 201 Council Decision 2005/765/CFSP of 3 October 2005 concerning the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2005] OJ L 288/59 ..................... 198 Council Decision 2005/851/CFSP of 21 November 2005 concerning the conclusion of the Agreement between the European Union and Canada establishing a framework for the participation of Canada in the European Union crisis management operations [2005] OJ L 315/20 .... 205 Council Decision 2005/966/CFSP of 14 November 2005 concerning the conclusion of an Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2005] OJ L 349/30......................................... 193 Council Decision 2006/201/CFSP of 27 February 2006 concerning the extension of the agreement in the form of an Exchange of Letters

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between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2006] OJ L 71/53 ....................... 198 Council Decision 2006/317/CFSP of 10 April 2006 concerning the conclusion of the Agreement between the European Union and the Republic of Croatia on security procedures for the exchange of classified information [2006] OJ L 116/73.......................203 Council Decision 2006/366/CFSP of 20 March 2006 concerning the conclusion of the Agreement between the European Union and the Government of Georgia on the status in Georgia of the European Union Special Representative for the South Caucasus and his/her support team [2006] OJ L 135/15) .................... 192 Council Decision 2006/412/CFSP of 12 June 2006 on the launching of the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process (Operation EUFOR RD Congo) [2006] OJ L 163/16 ........ 116 Council Decision 2006/448/CFSP of 7 June 2006 concerning the extension of the Agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission—AMM) and its personnel [2006] OJ L 176/107 ................... 198 Council Decision 2006/467/CFSP of 21 November 2005 concerning the conclusion of the Agreement between the European Union and the Republic of Iceland on security procedures for the exchange of classified information [2006] OJ L 184/34......................................... 203

Council Decision 2006/475/CFSP of 12 June 2006 concerning the conclusion of the Agreement between the European Union and the Gabonese Republic on the status of the European Unionled forces in the Gabonese Republic [2006] OJ L 187/42 ..................... 198 Council Decision 2006/477/CFSP of 30 June 2006 concerning the conclusion of the Agreement between the European Union and the former Yugoslav Republic of Macedonia on the participation of the former Yugoslav Republic of Macedonia in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) [2006] OJ L 203/11 ..................... 193 Council Decision 2006/482/CFSP of 10 April 2006 concerning the conclusion of the Agreement between the European Union and the Republic of Turkey establishing a framework for the participation of the Republic of Turkey in the European Union crisis management operations [2006] OJ L 89/16 ....................... 206 Council Decision 2006/666/CFSP of 15 September 2006 concerning the extension of the Agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2006] OJ L 273/8 ....................... 198 Council Decision 2007/665/CFSP of 28 September 2007 concerning the conclusion of the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L 270/72 ........................................ 192 Council Decision 2007/670/CFSP of 1 October 2007 concerning the conclusion of an Agreement

Table of Legislation between the European Union and New Zealand on the participation of New Zealand in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L 274/17 . .............................. 192 Council Decision 2006/676/CFSP of 10 August 2006 concerning the conclusion of the Agreement in the form of an Exchange of Letters between the European Union and the Government of the Swiss Confederation on the participation of the Swiss Confederation in the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process (Operation EUFOR RD Congo) [2006] OJ L 276/10 ........ 192 Council Decision 2007/274/JHA of 23 April 2007concerning the conclusion of the Agreement between the European Union and the Government of the United States of America on the security of classified information [2007] OJ L 115/29 ..................... 203 Council Decision 2007/791/CFSP of 4 December 2007 implementing Joint Action 2007/749/CFSP on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2007] OJ L 317/83 ........... 134 Council Decision 2008/134/CFSP of 18 February 2008 implementing Joint Action 2005/797/CFSP on the European Union Police Mission for the Palestinian Territories [2008] OJ L 43/38 .......................................... 144 Council Decision 2008/178/CFSP of 28 January 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Cameroon on the status of the European Union-led forces in transit within the territory of the Republic of Cameroon [2008] OJ L 57/30 .......................................... 198 Council Decision 2008/266/CFSP of 28 January 2008 concerning the

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conclusion of the Agreement between the European Union and the Republic of Chad on the status of the European Union-led forces in the Republic of Chad [2008] OJ L 83/39 .................................................... 198 Council Decision 2008/389/CFSP of 7 April 2008 concerning the conclusion of the Agreement between the European Union and the Central African Republic on the status of the European Union-led forces in the Central African Republic [2008] OJ L 136/45........ 198 Council Decision 2008/482/CFSP of 23 June 2008 amending Decision 2008/134/ CFSP on the European Union Police Mission for the Palestinian Territories [2008] OJ L 163/52 ..................... 144 Council Decision 2008/568/CFSP of 24 June 2005 concerning the conclusion of the Agreement between the European Union and the Swiss Confederation on security procedures for the exchange of classified information [2008] OJ L 181/57 ..................... 203 Council Decision 2008/665/CFSP of 9 June 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/ RCA) [2008] OJ L 217/18 ......... 192 Council Decision 2008/666/CFSP of 24 July 2008 concerning the conclusion of an Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 217/24......................................... 192 Council Decision 2008/667/JHA of 7 April 2008 concerning the conclusion of the Agreement between the European Space Agency and the European Union on the security and exchange of classified information [2008] OJ L 219/58......................................... 203

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Council Decision 2008/669/CFSP of 16 June 2008 concerning the conclusion of the Agreement between the European Union and the Republic of GuineaBissau on the Status of the European Union Mission in Support of Security Sector Reform in the Republic of Guinea-Bissau [2008] OJ L 219/65 .................................................... 198 Council Decision 2008/783/CFSP of 15 September 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/ RCA) [2008] OJ L 268/32 .......... 192 Council Decision 2008/814/CFSP of 13 October 2008 concerning the conclusion of an Agreement between the European Union and the United States of America on the participation of the United States of America in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 282/32 ........................ 173, 192 Council Decision 2008/868/CFSP of 13 October 2008 concerning the conclusion of the Agreement between the European Union and the Russian Federation on the participation of the Russian Federation in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA) OJ L 307/15 .................................................... 192 Council Decision 2008/877/CFSP of 24 October 2008 concerning the conclusion of the Agreement between the European Union and Georgia on the status of the European Union Monitoring Mission in Georgia [2008] OJ L 310/30 ..................... 198 Council Decision 2008/884/CFSP of 21 November 2008 implementing Joint Action 2007/369/CFSP on the establishment of the European

Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2008] OJ L 316/21 ................................ 146 Council Decision 2008/887/CFSP of 25 September 2008 concerning the conclusion of an Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 317/19.......192 Council Decision 2009/29/CFSP of 22 December 2008 concerning the conclusion of the Agreement between the European Union and the Somali Republic on the status of the European Union-led naval force in the Somali Republic in the framework of the EU military operation Atalanta [2009] OJ 10/27 .......................... 198 Council Decision 2009/88/CFSP of 22 December 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Djibouti on the status of the European Union-led forces in the Republic of Djibouti in the framework of the EU military operation Atalanta [2009] 33/41 ......198 Council Decision 2009/293/CFSP of 26 February 2009 concerning the Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer [2009] OJ L 79/47 ......... 123, 192, 208 Council Decision 2009/558/CFSP of 16 March 2009 concerning the conclusion of the Agreement on security procedures for exchanging classified information between the European Union and Israel [2009] OJ L 192/63 ..................................... 203

Table of Legislation Council Decision 2009/597/CFSP of 27 July 2009 on the signing and provisional application of the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) [2009] OJ L 202/81 ...... 192 European Council Decision 2009/880/EU of 1 December 2009 taken with the agreement of the President of the Commission appointing the High Representative of the Union for Foreign Affairs and Security Policy [2009] OJ L 315/49 ....................... 46 European Council Decision 2009/882/EU of 1 December 2009 adopting its Rules of Procedure [2009] OJ L 315/51 .. 38 Council Decision 2009/906/CFSP of 8 December 2009 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2009] OJ L 322/22 ................................ 134 Council Decision 2009/91 6/CFSP of 23 October 2009 concerning the signing and conclusion of the Agreement between the European Union and the Republic of Seychelles on the status of the European Unionled force in the Republic of Seychelles in the framework of the EU military operation Atalanta [2009] OJ L 323/12........................... 123, 198, 208 Council Decision 2009/955/CFSP of 15 December 2009 amending Joint Action 2005/797/CFSP on the European Union Police Mission for the Palestinian Territories [2009] OJ L 330/76.................................. 144, 145 Council Decision 2010/53/CFSP of 30 November 2009 concerning the conclusion of the Agreement between Australia and the European Union on the security of classified information [2010] OJ L 26/30 ....................... 203 Council Decision 2010/96/CFSP of 15 February 2010 on a European Union

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military mission to contribute to the training of Somali security forces [2010] OJ L 44/16 ................ 103, 124 Council Decision 2010/106/CFSP of 22 February 2010 extending the mandate of the European Union Special Representative for the crisis in Georgia [2010] OJ L 46/5............ 160 Council Decision 2010/109/CFSP of 22 February 2010 extending the mandate of the European Union Special Representative for the South Caucasus [2010] OJ L 46/16 ........ 163 Council Decision 2010/118/CFSP of 25 February 2010 extending the mandate of the European Union Special Representative in Kosovo [2010] OJ L 49/22 ....................... 174 Council Decision 2010/197/CFSP of 31 March 2010 on the launch of a European Union military mission to contribute to the training of Somali security forces (EUTM Somalia [2010] OJ L 87/33 ....................... 124 Council Decision 2010/199/CFSP of 22 March 2010 on the signing and conclusion of the Agreement between the European Union and Montenegro on the participation of Montenegro in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) [2010] OJ L 88/1 .......... 192 Council Decision 2010/274/CFSP of 12 May 2010 amending and extending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2010] OJ L 119/22 ..................... 155 Council Decision 2010/279/CFSP of 18 May 2010 on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2010] OJ L 123/4 .................................................... 146 Council Decision 2010/298/CFSP amending and extending Joint Action 2008/112/ CFSP on the European Union mission in support of security sector

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reform in the Republic of GuineaBissau [2010] OJ L 127/16 ........... 153 Council Decision 2010/322/CFSP amending and extending Joint Action 2008/124/ CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2010] OJ L 145/13 .... 170 Council Decision 2010/329/CFSP of 14 June 2010 amending and extending Joint Action 2007/405/ CFSP on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2010] OJ L 149/11 ..................... 142 Council Decision 2010/330/CFSP of 14 June 2010 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX-IRAQ [2010] OJ L 149/12 ..................................... 166 Council Decision 2010/348/EC of 17 November 2009 concerning the conclusion of the Agreement between the Government of the Russian Federation and the European Union on the protection of classified information [2010] OJ L 155/56.........................203 Council Decision 2010/404/CFSP of 14 June 2010 concerning the signing and conclusion of the Agreement between the European Union and the Principality of Liechtenstein on security procedures for exchanging classified inform ation [2010] OJ L 187/1 .......................................... 203 Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service [2010] OJ L 201/30..... 50, 51, 52, 55, 190, 223–225 Council Decision 2010/444/CFSP of 11 August 2010 extending the mandate of the European Union Special Representative in the former Yugoslav Republic of Macedonia (FYROM) [2010] OJ L 211/32.... 139 Council Decision 2010/446/CFSP of 11 August 2010 extending the mandate of the European Union Special

Representative in Kosovo [2010] OJ L 211/36......................................... 174 Council Decision 2010/449/CFSP of 11 August 2010 extending the mandate of the European Union Special Representative for the South Caucasus [2010] OJ L211/41 ....... 163 Council Decision 2010/452/CFSP of 12 August 2010 on the European Union Monitoring Mission in Georgia, EUMM Georgia [2010] OJ L 213/43 .................................................... 160 Council Decision 2010/464/CFSP of 6 August 2010 on the signing and conclusion of the Agreement between the European Union and the Republic of Uganda on the Status of the European Union-led Mission in Uganda [2010] OJ L 221/1 .......... 199 Council Decision 2010/565/CFSP of 21 September 2010 on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) [2010] OJ L 248/59 ................................ 151 Council Decision 2010/576/CFSP of 23 September 2010 on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2010] OJ L 254/33......................................... 142 Council Decision 2010/587/CFSP of 14 June 2010 concerning the signing and conclusion of the Agreement between the European Union and Montenegro on security procedures for exchanging and protecting classified information [2010] OJ L 260/1 ..... 203 Council Decision 2010/619/CFSP of 15 October 2010 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2010] OJ L 272/19 ........................... 98, 170 Council Decision 2010/686/CFSP of 13 September 2010 concerning the signing and conclusion of the

Table of Legislation Agreement between the European Union and the Islamic Republic of Afghanistan on the Status of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2010] OJ L 294/1 .................................................... 198 Council Decision 2010/747/CFSP of 2 December 2010 amending Joint Action 2005/797/CFSP and Council Decision 2009/955/CFSP on the European Union Police Mission for the Palestinian Territories [2010] OJ L 318/44......................................... 144 Council Decision 2010/755/CFSP of 6 December 2010 amending Decision 2009/906/CFSP on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2010] OJ L 320/10 ................................ 134 Council Decision 2010/784/CFSP of 17 December 2010 on the European Union Police Mission for the Palestinian Territories (EUPOL COPPS) [2010] OJ L 335/60....... 144 Council Decision 2011/119/CFSP of 21 February 2011 extending the mandate of the European Union Special Representative in Kosovo [2011] OJ L 47/18 ....................... 174 Council Decision 2011/133/CFSP of 21 February 2011 on the signing and conclusion of the Agreement between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations [2011] OJ L 57/1 ........ 206 Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP [2011] OJ L 76/56 ......................... 37 Council Decision 2011/170/CFSP of 21 March 2011 amending Council Decision 2010/330/CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX – IRAQ [2011] OJ L 76/61 ............ 166 Council Decision 2011/210/CFSP of 1 April 2011 on a European Union

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military operation in support of humanitarian assistance operations in response to the crisis situation in Libya (EUFOR Libya) [2011] OJ L 89/17 ........................................ 47, 125, 126 Council Decision 2011/270/CFSP of 5 May 2011 appointing the European Union Special Representative in Kosovo [2011] OJ L 119/12 ..................... 174 Council Decision 2011/298/CFSP of 23 May 2011 amending Decision 2010/279/ CFSP on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2011] OJ L 136/64......................................... 146 Council Decision 2011/312/CFSP of 26 May 2011 amending and extending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2011] OJ L 140/55 ..................... 155 Council Decision 2011/318/CFSP of 31 March 2011 on the signing and conclusion of the Framework Agreement between the United States of America and the European Union on the participation of the United States of America in European Union crisis management operations [2011] OJ L 143/1 .................................. 206 Council Decision 2011/361/CFSP of 20 December 2010 on the signing and conclusion of the Agreement between the European Union and the Republic of Serbia establishing a framework for the participation of the Republic of Serbia in European Union crisis management operations [2011] OJ L 163/1 ....................... 206 Council Decision 2011/380/CFSP of 28 June 2011 amending Decision 2010/330/ CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX-IRAQ [2011] OJ L 169/27 ..................................... 166 Council Decision 2011/411/CFSP of 21 July 2011 defining the statute, seat, and operational rules of the European Defence Agency [2011] OJ L 183/16 .................................................... 276

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Table of Legislation

Council Decision 2011/473/CFSP of 25 July 2011 amending Decision 2010/279/ CFSP on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2011] OJ L 195/72......................................... 146 Council Decision 2011/483/CFSP of 28 July 2011 amending and extending Decision 2010/96/CFSP on a European Union military mission to contribute to the training of Somali security forces (EUTM Somalia) [2011] OJ L 198/37 ..................... 123 Council Decision 2011/514/CFSP of 22 November 2010 concerning the signing and conclusion of the Agreement between the European Union and the Republic of Serbia on security procedures for exchanging and protecting classified information [2011] OJ L 216/1 ....................... 203 Council Decision 2011/518/CFSP of 25 August 2011 appointing the European Union Special Representative for the South Caucasus and the crisis in Georgia [2011] OJ L 221/5 .............163 Council Decision 2011/536/CFSP of 12 September 2011 amending and extending Decision 2010/452/CFSP on the European Union Monitoring Mission in Georgia (EUMM Georgia) [2011] OJ L 236/7 ....................... 160 Council Decision 2011/537/CFSP of 12 September 2011 amending and extending Decision 2010/576/ CFSP on the European Union Police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2011] OJ L 236/8 .......................................... 142 Council Decision 2011/538/CFSP of 12 September 2011 amending Decision 2010/565/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) [2011] OJ L 236/10 ........ 151

Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Unionled naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer [2011] OJ L 254/1 ........................... 123, 208 Council Decision 2011/691/CFSP of 17 October 2011 extending the mandate of the European Union Special Representative in Kosovo [2011] OJ L 271/48......................................... 174 Council Decision 2011/752/CFSP of 24 November 2011 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2011] OJ L 310/10 ................................ 170 Council Decision 2011/764/CFSP of 28 November 2011 repealing Decision 2011/210/CFSP on a European Union military operation in support of humanitarian assistance operations in response to the crisis situation in Libya (EUFOR Libya) [2011] OJ L314/35 ................. 47, 126 Council Decision 2011/781/CFSP of 1 December 2011on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2011] OJ L 319/521 .............................. 134 Council Decision 2011/819/CFSP of 8 December 2011 appointing the European Union Special Representative for the Horn of Africa [2011] OJ L 327/62 ..................... 124 Council Decision 2011/857/CFSP of 19 December 2011 amending and extending Joint Action 2005/889/ CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2011] OJ L 338/52.......... 155 Council Decision 2011/858/CFSP of 19 December 2011 amending and extending Decision 2010/784/ CFSP on the European Union Police

Table of Legislation Mission for the Palestinian Territories (EUPOL COPPS) [2011] OJ L 338/54......................................... 144 Council Decision 2011/871/CFSP of 19 December 2011establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) [2011] OJ L 343/35 ......... 77 Decision of the European Parliament and of the Council 2012/5/EU of 13 December 2011 amending the Interinstitutional Agreement of 17 May 2006 on budgetary discipline and sound financial management as regards the multiannual financial framework, to address additional financing needs of the ITER project [2012] OJ L 4/12 ........................... 77 Council Decision 2012/39/CFSP of 25 January 2012 appointing the European Union Special Representative in Kosovo [2012] OJ L 23/..............174 Council Decision 2012/173/CFSP of 23 March 2012 on the activation of the EU Operations Centre for the Common Security and Defence Policy missions and operation in the Horn of Africa [2012] OJ L 89/66 ..... 102, 180 Council Decision 2012/174/CFSP of 23 March 2012 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2012] OJ L 89/69 ................................. 121, 122 Council Decision 2012/291/CFSP of 5 June 2012 amending and extending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2012] OJ L 146/46 ................................ 170 Council Decision 2012/312/CFSP of 18 June 2012 on the European Union Aviation Security CSDP Mission in South Sudan (EUAVSEC-South Sudan) [2012] OJ L 158/17.......... 178 Council Decision 2012/315/CFSP of 19 December 2011 on the signing and

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conclusion of the Agreement between the European Union and New Zealand establishing a framework for the participation of New Zealand in European Union crisis management operations [2012] OJ L 160/1 ...... 206 Council Decision 2012/324/CFSP of 25 June 2012 amending and extending Decision 2010/784/CFSP on the European Union Police Mission for the Palestinian Territories (EUPOL COPPS) [2012] OJ L 165/48....... 144 Council Decision 2012/326/CFSP of 25 June 2012 extending the mandate of the European Union Special Representative for the South Caucasus and the crisis in Georgia [2012] OJ L 165/53......................................... 163 Council Decision 2012/329/CFSP of 25 June 2012 extending the mandate of the European Union Special Representative or the Horn of Africa [2012] OJ L 165/62 .............. 124, 179 Council Decision 2012/332 of 25 June 2012 amending and extending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2012] OJ L 165/71.................................. 155, 156 Council Decision 2012/344/CFSP of 23 March 2012 on the signing and conclusion of the Agreement between the European Union and the Republic of Albania establishing a framework for the participation of the Republic of Albania in European Union crisis management operations [2012] OJ L 169/1 ....................... 206 Council Decision 2012/372/CFSP of 10 July 2012 amending and extending Decision 2010/330/CSFP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEXIRAQ [2012] OJ L 179/22 .......... 166 Council Decision 2012/389/CFSP of 16 July 2012 on the European Union Mission on Regional Maritime Capacity Building in the Horn of Africa (EUCAP NESTOR) [2012] OJ L 187/40......................................... 179

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Table of Legislation

Council Decision 2012/391/CFSP of 16 July 2012 amending Decision 2010/279/ CFSP on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2012] OJ L 187/47......................................... 146 Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger) [2012] OJ L 187/48..........178, 218, 228 Council Decision 2012/421/CFSP of 23 July 2012 in support of the Biological and Toxin Weapons Convention (BTWC), in the framework of the EU Strategy against Proliferation of Weapons of Mass Destruction [2012] OJ L 196/61 ...................................................... 36 Council Decision 2012/422/CFSP of 23 July 2012 in support of a process leading to the establishment of a zone free of nuclear weapons and all other weapons of mass destruction in the Middle East [2012] OJ L 196/67 .... 36 Council Decision 2012/486/CFSP of 23 July 2012 concerning the signing and conclusion of the Agreement between the Organisation for Joint Armament Cooperation and the European Union on the protection of classified information [2012] OJ L 229/1 ................................... 203, 278 Decision 2012/503/CFSP of 13 September 2012 amending Decision 2010/452/ CFSP on the European Union Monitoring Mission in Georgia, EUMM Georgia [2012] OJ L 249/13 .................................................... 160 Council Decision 2012/514/CFSP of 24 September 2012 amending and extending Decision 2010/576/ CFSP on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2012] OJ L 257/16 ..................... 142 Council Decision 2012/515/CFSP of 24 September 2012 amending and extending Decision 2010/565/CFSP on the European Union mission

to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) [2012] OJ L 257/18......................................... 151 EU Miscellaneous Common Military List of the European Union (equipment covered by the European Code of Conduct on Arms Exports) [2012] OJ C 85/1 .......... 271 Council Declaration of 13 June 2000, issued on the occasion of the adoption of the common list of military equipment covered by the European Union code of conduct on arms export [2000] OJ C 191/01 ..................................... 271 Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management [2006] OJ C 139/1 .... 77 MISCELLANEOUS European Commission COM (96) 10 final, The Challenges facing the European Defence-Related Industry. A Contribution for Action at European Level ........................... 269 COM (97) 583 final, Implementing European Union Strategy on Defence-Related Industry ....................................... 269 COM (2000) 50 final, Developing closer relations between Indonesia and the European Union ......................... 157 COM (2003) 104 final, Wider EuropeNeighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours ................... 88 COM (2003) 113 final, European Defence – Industrial and Market Issues. Towards an EU Defence Equipment Policy ......................................... 269 COM (2003) 526 final, The European Union and the United Nations: The choice of multilateralism and European Security Strategy ................................. 32, 184 COM (2004) 373 final, European Neighbourhood Policy Strategy Paper ...................................................... 88

Table of Legislation COM (2004) 590 final, Security Research: The Next Step ..................... 269, 274 COM (2004) 608 final, Green Paper on Defence Procurement .......... 254, 270 COM (2004) 630 final, Proposal for a Regulation of the Council establishing an Instrument for Stability ........... 218 COM (2005) 489 final, EU Strategy for Africa: Towards a Euro-African Pact to accelerate Africa’s development ............................................. 215, 228 COM (2005) 491 final, A Strategy on the External Dimension of the Area of Freedom, Security and Justice ...... 227 COM (2005) 626 final, Communication on the results of the consultation launched by the Green Paper on Defence Procurement and on the future Commission initiatives ...... 270 COM (2006) 253 final, A Concept for European Community Support for Security Sector Reform ....... 150, 227 COM (2006) 278 final, Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility ...................................................... 96 COM (2006) 567 final, Global Europe: Competing in the world ............... 96 COM (2006) 779 final, Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement .............................. 264, 265, 266, 268 COM (2007) 764 final, A strategy for a stronger and more competitive european defence industry .......... 270 COM (2007) 765 final, Proposal for a Directive of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community ................................ 270 COM (2007) 766 final, Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security .................................................... 270

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COM (2009) 262 final, An Area of freedom, security and justice serving the citizen .................................................... 227 COM (2010) 673 final, The EU Internal Security Strategy in Action: Five steps towards a more secure Europe ................................................. 83, 87 COM (2011) 393 final Green Paper: The dual-use export control system of the European Union: ensuring security and competitiveness in a changing world .......................................... 275 COM (2011) 842 final, Proposal for a Regulation establishing common rules and procedures for the implementation of the Union’s instruments for external action .... 215 COM (2012) 359 final Report from the Commission to the European Parliament and the Council on transposition of Directive 2009/43/EC simplifying terms and conditions for transfer of defencerelated products within the EU ........276 COM (2012) 405 final, 2011 Annual Report on the Instrument for Stability .... 219 SEC (2005) 288/3 Commission Staff Working Paper, Annex to European Neighbourhood Policy, Country Report: Georgia .......................... 164 SEC (2009) 932 Commission Staff Working Paper Accompanying Annual report from the European Commission on the Instrument for Stability in 2008 .................................................... 220 SEC (2011) 1627 final, EU 2011 Report on Policy Coherence for Development .................................................... 223 European Council – Presidency Conclusions Copenhagen European Council Presidency Conclusions, 21–22 June 1993 ...... 32 Tampere European Council, Presidency Conclusions, 15–16 October 1999 ............................................ 226 Helsinki European Council Presidency Conclusions, 10–11 December 1999 ............................................. 103, 183 Santa Maria de Feira European Council Presidency Conclusions, 19–20 June 2000 ............................. 183, 204, 226

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Table of Legislation

Laeken European Council Presidency Conclusions, 14–15 December 2001 ............................................... 23, 204 Brussels European Council Presidency Conclusions, 12–13 December 2003 ...................................................... 66 Brussels European Council Presidency Conclusions, 17–18 June 2004 ...... 59 Brussels European Council Presidency Conclusions, 14 December 2007 ............................................. 24 Brussels European Council Presidency Conclusions, 21–22 June 2007 ...... 24 European Parliament Written Question Written Question E-1324/01 [2001] OJ C 364E/85 ..................................... 254 United Nations Security Council Resolutions Security Council Resolution 1244 (1999) .............................. 168, 170, 171, 172 Security Council Resolution 1373 (2001) ............................................. 146, 245 Security Council Resolution 1396 (2002) .................................... 98, 134

Security Council Resolution 1484 (2003) ............................. 98, 109, 110 Security Council Resolution 1551 (2004) .................................... 98, 112 Security Council Resolution 1575 (2004) ............................................. 112, 195 Security Council Resolution 1631 (2005) ......................................... 172 Security Council Resolution 1639 (2005) ......................................... 112 Security Council Resolution 1671 (2006) .................................... 98, 116 Security Council Resolution 1722 (2006) ......................................... 112 Security Council Resolution 1769 (2007) .......................................... 118 Security Council Resolution 1778 (2007) .................................... 98, 117 Security Council Resolution 1785 (2007) ......................................... 112 Security Council Resolution 1845 (2008) ... 112 Security Council Resolution 1872 (2009) .................................... 12, 125 Security Council Resolution 1973 (2011) ...................................... 125, 131, 252 Security Council Resolution 2019 (2011) 112

Introduction

On 12 September 2012, the President of the European Commission José Manuel Barroso delivered the 2012 State of the Union Address to the plenary session of the European Parliament. He argued that1 The world needs a Europe that is capable of deploying military missions to help stabilize the situation in crisis areas. We need to launch a comprehensive review of European capabilities and begin truly collective defense planning.Yes, we need to reinforce our Common Foreign and Security Policy and a common approach to defense matters because together we have the power, and the scale to shape the world into a fairer, rules based and human rights’ abiding place.

This statement exudes ambition and self-confidence, and envisages developments of considerable scope and impact. It also reflects accurately the rhetoric of the European Union (EU) institutions, which, since the early 2000s, articulate the security role of the Union in strikingly grand language. For instance, the Laeken Delcaration, which initiated the process of constitutional reform in December 2001 and led, ultimately, to the adoption of the Lisbon Treaty, states: Now that the Cold War is over and we are living in a globalised, yet also highly fragmented world, Europe needs to shoulder its responsibilities in the governance of globalisation.

Security has been a constant feature of the Union’s foreign affairs system since the Maastricht Treaty established the tripartite constitutional structure of the European Union in 1992. The reference to it in the title of the legal framework which governed its conduct, that is Common Foreign and Security Policy, illustrated its role as a distinct component of the Union’s external political relations. However, the decidedly intergovernmental nature of that framework, the cautious wording of the relevant provisions, and the consistent failure of the Member States to meet the targets they themselves proclaimed, with fanfare, as necessary for the conduct of security and defence policy2 did not make this policy a top priority for legal schol-

1 http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/596 (last accessed on 25 October 2012). 2 See, for instance, the Headline Goal for military capabilities mentioned in the 1999 Helsinki European Council (11–12 December 1999), which was purported to be met by 2003.

2

The EU Common Security and Defence Policy

ars. Instead, it attracted, and still attracts the attention of a very considerable number of political scientists and international relations theorists.3 Recently, however, it has become clear that lawyers may ignore security and defence policy at their peril. In the first instance, Common Security and Defence Policy (CSDP) features ever more prominently in the official rhetoric of the Union about its international posture. Whereas in the past it was mainly the economic policies of the EU which shaped its international role, now CSDP appears as an essential element of the role that the Union seeks to project and assume on the world stage. This policy rhetoric is also reflected in legal terms in the current constitutional framework of the EU. The entry into force of the Lisbon Treaty, and the long and agonizing process which led to its drafting, appeared to suggest a shift in the role of the policy within the Union’s external action context.This is illustrated by the change of its name, which is now Common Security and Defence Policy, rather than European Security and Defence Policy, as well as the considerable part of the provisions in the Treaty on the European Union (TEU) dedicated to its conduct. More substantially, security and defence has emerged as a visible part of the Union’s presence in the world. The EU has carried out twenty-six military operations and civilian missions in Europe, Africa, and Asia. The planning, conduct, and evaluation of these activities have given rise to a body of measures which are numerous in volume and significant in their interactions with other strands of the Union’s external action. As such, they have now attracted the interest of academic lawyers and practitioners too.4 This book aims to provide a legal analysis of CSDP. In doing so, it seeks to avoid the pitfall of approaching the relevant legal rules and procedures in isolation from either the policy context within which the EU designs its security role or the policy implications of the military operations and civilian missions which it carries out. Academic lawyers may tend to focus on the study of the international role of the Union as a distinct area of legal analysis and sometimes to over3 The literature is voluminous. For a sample, see André Dumoulin, Raphaël Mathieu, and Gordon Sarlet (eds), Politique européenne de sécurité et de defense, (PESD): De l’opératoire à l’ identitaire (Brussels: Bruylant, 2003); Simon Duke, The Elusive Quest for European Security: from EDC to CFSP, (Basingstoke: Palgrave Macmillan, 2000); Jolyon Howorth, Security and Defence Policy in the European Union (Basingstoke: Palgrave Macmillan, 2007); Andrew Hyde-Press, European Security in the Twenty-first Century—The challenge of multipolarity (London: Routledge, 2007); Eric Kirchner and James Sperling, EU Security Governance (Manchester: Manchester University Press, 2007); Xymena Kurowska and Fabian Breuer (eds), Explaining the EU’s Common Security and Defence Policy—Theory in Action (Basingstoke: Palgrave Macmillan, 2012); Michael Merlingen, EU Security Policy—What it is, How it Works,Why It Matters (London: Lynne Rienner Publishers, 2012); Christoph O Meyer, The Quest for a European Strategic Culture—Changing Norms on Security and Defence in the European Union (Basingstoke: Palgrave Macmillan, 2006); Martin A Smith and Graham Timmins (eds), Uncertain Europe: Building a New European Security Order? (London: Routledge, 2002). 4 See, for instance, Steven Blockmans (ed), The European Union and Crisis Management: Policy and Legal Aspects (The Hague: TMC Asser Press, 2008); Steven Blockmans, Jan Wouters, and Tom Ruys (eds), The European Union and Peacebuilding—Policy and Legal Aspects (The Hague:TMC Asser Press, 2010); Frederik Naert, International Law Aspects of the EU’s and Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Antwerp: Intersentia, 2010).

Introduction

3

estimate the significance of legal rules (just as political science and international relations scholars tend, at times, to underestimate the significance of the law, and its role as the expression of the constitutionally idiosyncratic nature of the European Union).5 The Union’s security and defence policy is constantly evolving. This book does not aim to provide a comprehensive and exhaustive analysis of all its aspects. Instead, its objectives are to examine the legal framework within which the CSDP is carried out, to provide an account of the practice of the policy and highlight the impact of legal rules and procedures on its effectiveness, to place CSDP within the broader framework of the Union’s external action, and to explore the Union’s approach to the economic and practical underpinnings of defence. The analysis in Chapter 1 will chart the genesis of the EU’s security and defence policy from the early death of the European Defence Community in the 1950s through a long period of marginalization in the 1960s and 1970s to its gradual integration in the Union’s formal constitutional framework in the 1980s, and leading to the most elaborate set of rules provided by the Treaty of Lisbon. It will describe the distinct change of emphasis from defence to security and will explain how the current legal framework grew organically from the successes of economic integration rather than a deeply seated need to protect security and enhance national defence. While CSDP is an integral part of the Common Foreign and Security Policy (CFSP), it has also been served by an institutional framework which has developed considerably over the years and which highlights the position of the former policy within the context of the latter in somewhat distinct terms. These two aspects of CSDP explain the structure of Chapters 2 and 3. Both focus on the legal rules and procedures laid down in Title V of the Treaty on the European Union (TEU). Chapter 2 examines the rules which govern the conduct of CSDP within the broader constitutional framework of CFSP, whereas Chapter 3 focuses on the specific substantive and institutional CSDP provisions and the ways in which they distinguish the policy from the other strands of the Union’s external action. Chapter 4 examines the policy context within which the Union carries out its security and defence policy. It analyses the main strategic documents, such as the European Security Policy and the 2008 Report on the Implementation of the European Security Strategy, and identifies the main threads which underpin the Union’s approach as a matter of policy. Familiarity with this context is essential to our understanding of the conduct of CSDP and its relationship with the Union’s other external policies.The analysis also provides an overview of the relationship between the United Nations and the EU in the area of security and defence. The following three chapters analyse the practice of CSDP. Chapter 5 examines the military operations and Chapter 6 focuses on the civilian missions that the 5 For an effort to provide a conversation between these disciplines, see Panos Koutrakos (ed), The Foreign Policy of the European Union—Legal and Political Aspects (London: Edward Elgar Publishing, 2011).

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The EU Common Security and Defence Policy

Union has carried out so far. They explain their policy context, the legal issues to which their planning and deployment has given rise, the practical problems that they have faced, and their links with other related Union and international initiatives. They also examine the relationship between the EU and other international organizations as they emerge in the context of the operations and missions, with emphasis on NATO. Chapter 7 focuses on another aspect of the CSDP practice, namely the international agreements which the Union has concluded in the context of its military operations and civilian missions.There has been a considerable body of such agreements. After an examination of the procedure which governs their negotiation and conclusion, the analysis categorizes them and examines their content as well as the policy context within which they are applied. One of the main policy threads which emerges from the analysis of both the law and practice of CSDP is the existence of deep linkages between this policy and the other strands of the Union’s external action.These are highlighted in a vertical manner, that is in relation to specific operations and missions, in the context of the examination set out in Chapters 5 and 6.They are also examined in Chapter 8, albeit on the basis of a horizontal approach, that is by focusing on the broad substantive and institutional themes which characterize the interactions between CSDP and other policies.The analysis focuses on two such policies; namely, development cooperation and the external aspects of the Area of Freedom, Security and Justice. The final chapter focuses on the economic and practical underpinnings of defence policy. It examines the state of defence industries in the European Union and the impact this has on the conduct and effectiveness of CSDP military operations. It highlights the effects of the current financial crisis on the willingness and capacity of the States to maintain their defence spending and its impact on the perilous state of European defence industries. It then analyses the status of the latter under European Union law and explores the ways in which legal reform and intergovernmental cooperation may provide some impetus for change. When the idea for writing this book was mooted, the sovereign debt crisis, which the Union faces at the time of publication, and the political upheaval it has caused both within and beyond its borders were simply not contemplated by the EU elites. Instead, the Union appeared to embody economic success, political ambition, and self-confidence. The current climate has now created an altogether different context within which the Member States are preoccupied with their economic policies and the EU institutions seek to redefine their role. Furthermore, the EU is viewed by third countries as an entity in decline, which endangers the world economy. The impact of this shift on the conduct of CSDP will also be examined in the following analysis.

1 The origins and evolution of CSDP

Introduction The constitutional life of European integration is marked by a trauma, which it suffered at birth. This was the death of the European Defence Community before it ever entered into force in 1954. As this bold and ambitious, albeit thwarted, plan was about defence in its strict sense, that is the protection of national territory, its fate was bound to have an impact on how this most sensitive of policies has been dealt with by the Member States within the evolving constitutional configuration, which has led to the adoption of the current rules at Lisbon. To point out the place of security and defence at the core of national sovereignty is to state the obvious. As Chris Patten, former Commissioner responsible for external relations puts it, foreign and security policy ‘goes right to the heart of what it means to be a nation state’.1 And as geopolitical developments, economic exigencies, and the increasingly pervasive problems of the environment have challenged our traditional understanding of what it means to be a nation state, so has the approach of the Member States to security and defence changed over the years. This chapter examines the development of the rules and procedures which led to the adoption of the framework governing the Common Security and Defence Policy (CSDP) of the European Union. To place the current rules within their historical context is necessary in order to appreciate both their legal and political implications as well as the dynamics underlying the emergence of these rules.

The first phase: the European Defence Community The first episode in the history of the Union’s security and defence policy is the ambitious and ultimately doomed European Defence Community (EDC). In fact, this was one of the first episodes of the history of European integration more generally, as the fateful birth of the EDC coincided with the very first steps of European integration in the form of the European Coal and Steel Community (ECSC), the various extensions of which led to the European Union.

1

Chris Patten, Not Quite the Diplomat (London: Penguin Books, 2005), 156.

6

The EU Common Security and Defence Policy

In essence, the EDC was about defence integration.2 It originated in a proposal by the French Prime Minister René Pleven in September 1950 and led to the signing of the EDC Treaty in Paris on 27 May 1952. The Treaty was signed by the founding six Member States of European integration, namely Germany, France, Italy, Belgium, The Netherlands, and Luxembourg. After four of them had ratified it,3 it was rejected by the French Parliament on 30 August 1954. In order to appreciate its content and significance, the EDC should be placed in its historical and political context. Only a few years after the end of the Second World War and with Germany having, in effect, no defence of its own, Europe faced the alarming possibility of life under Communist domination. The war between the communist North Korea and the United States-backed South Korea had only just started. Furthermore, the Schuman Declaration proposing the establishment of the ECSC had just been adopted. Aiming to render war in Europe an impossibility, and even though its focus was purely economic, the ECSC, established under the Treaty of Paris signed on 18 April 1951 by the founding six Member States, had a clear security underpinning: as the Schuman Declaration put it, ‘[t]he pooling of coal and steel production . . . will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims’.4 Therefore, the proposal for the EDC emerged against the background of considerable European and global insecurity, and economic integration among European States was identified as the appropriate means through which to lay the ghosts of the past and prevent the emergence of new ghosts. Drawing upon the ECSC model, the EDC aimed to integrate the defence of Member States. Its Article 1 sets the tone with a starkness and succinctness not often associated with European treaty-making: ‘the High Contracting Parties institute among themselves a European Defense Community, supranational in character, consisting of common institutions, common armed Forces and a common budget’.5 Such an express acknowledgment of transfer of sovereignty from the Member States to an independent and autonomous authority is rare. By way of comparison and in order to put things in perspective, it is worth recalling the considerable 2 The authoritative historical analysis of the EDC is provided in Edward Fursdon, The European Defence Community—A History (London: Macmillan, 1980). For a very early analysis, see Clarence C Waldon, ‘Background for the European Defence Community’, (1953) 68 Political Science Quarterly 42. See also the recent analysis in David Scannell, ‘Third Time Lucky: The Pre-history of the Common Security and Defence Policy’, in Anthony Arnull, Catherine Barnard, Michael Dougan, and Eleanor Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford: Hart Publishing, 2011), 565; and Martin Trybus, ‘The vision of the European Defence Community and a Common Defence for the European Union’, in Martin Trybus and Nigel White (eds), European Security Law (Oxford: OUP, 2007), 13. 3 Germany, Belgium, the Netherlands, and Luxembourg. 4 The text of the Declaration is available here: http://europa.eu/about-eu/basic-information/symbols/ europe-day/schuman-declaration/index_en.htm (last accessed on 26 October 2012). 5 For an unofficial translation of the EDC Treaty in English, see http://aei.pitt.edu/5201/1/5201.pdf ( last accessed on 26 October 2012).

The origins and evolution of CSDP

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disquiet caused, in a different context, by the early statements of the European Court of Justice about the transfer of national sovereignty in the context of the then European Economic Community.6 The main objective of the EDC was also defined in terms which set it apart from the emphasis on the joint concepts of security and defence, which underpin the current understanding of European integration in the area: instead, EDC was exclusively about defence. Article 2 of the EDC Treaty provided that ‘it shall ensure the security of the member States against any aggression by participating in Western Defense within the framework of the North Atlantic Treaty and by accomplishing the integration of the defense forces of the member States and the rational and economic utilization of their resources’. In addition to the institutional and substantive linkages with NATO,7 this provision is striking for two reasons. First, it refers to the integration of national defence forces, hence the establishment of a European army. The rigour with which this objective would have been achieved is remarkable: not only would Member States place contingents ‘at the disposal of the Community . . . with a view to their fusion’, but also no Member State would be allowed to ‘recruit or maintain national armed forces’8 unless in exceptional and clearly defined circumstances.The second striking feature of the objective of the EDC, as set out in the Treaty, is the requirement of rational and economic utilization of national resources. As this analysis is written at a time when European integration is marred by a most profound economic and political crisis, a requirement of rationality and economic efficiency in managing defence capabilities is almost disconcertingly relevant. This is all the more so, given the implications of the financial crisis for the Union’s security and defence policy, and as the possibility of the rationalization of the national capabilities at EU level may be seen as expedient on both financial and security grounds. While this is a theme to which this analysis will return,9 suffice it to point out the central role which practical considerations had in the provisions of this early attempt for defence integration. The institutional design of the EDC followed that of the ECSC, which had been signed the previous year. It included an independent Board of Commissioners with significant executive and supervisory functions; the Council, consisting of national representatives and entrusted to take the most important decisions, to a considerable extent by majority voting; the Court of Justice, which was the ECSC Court, and the jurisdiction of which was described in the EDC Treaty in identical, 6 See, for instance, Case 26/62 van Gend en Loos [1963] ECR 1 and Case 6/64 Costa v ENEL [1964] ECR 585. 7 For instance, the NATO Supreme Commander would be actively involved in the implementation of the functioning of the EDC, as he would be ‘empowered to satisfy himself that the European Defense Forces are organized, equipped, trained and prepared for use in a satisfactory manner’ (Art 18(1) EDC Treaty). See Trybus, ‘The vision of the European Defence Community and a Common Defence for the European Union’, in Trybus and White (eds), European Security Law, at 37–41. 8 9 Art 9 EDC Treaty. See Ch 9.

8

The EU Common Security and Defence Policy

and therefore strikingly broad, terms to those of the Paris Treaty;10 finally, the ECSC Assembly, the precursor to the European Parliament, was also part of the EDC institutional design and was given an innocuous, rather decorative, role similar to that assigned to it under the Paris Treaty. The EDC Treaty included a mutual defence clause. Its Article 2(3) read as follows: ‘Any armed aggression directed against any one of the member States in Europe or against the European Defense Forces shall be considered as an attack directed against all of the member States. The member States and the European Defense Forces shall furnish to the State or Forces thus attacked all military and other aid and assistance in their power’. This provision recalls the mutual defence clause of the NATO Treaty.11 However, it is broader in its scope and not subject to reservations.12 The mutual defence clause of the EDC Treaty has become worth noting since the entry into force of the Lisbon Treaty, which includes for the first time a mutual assistance clause.13 This latter clause will be analysed in Chapter 3. At this juncture, suffice it to point out that the far-reaching implications that the EDC mutual defence clause would have had would need to be assessed in the light not only of its wording but also the specific context within which the whole Treaty was drafted.This leaves no doubt as to its profoundly supranational character and exclusively defence-oriented objective. The supranational character of the EDC, as well as its deeply political underpinnings, need to be assessed in the context of the different motivations of the various actors. While the defence of Western Europe in an increasingly polarized world was the main imperative, the question of the involvement of Germany was central both to the negotiations leading to the drafting of the EDC Treaty and to its demise. German rearmament had been accepted by the major players, including the United States, but its management proved controversial. Original thoughts by the United States for intergovernmental structures were strongly resisted by France, which was anxious to ensure that German involvement would be heavily constrained and controlled by tight rules and procedures. However, political change in France at the end of 1953 led to serious misgivings about the provisions of the Treaty and the extent to which they would be able to rein in the 10 Art 51 EDC entrusted the Court with the task of ‘ensur[ing] the rule of law in the interpretation and application of the present Treaty and of its implementing regulations’ (as Art 31 ECSC had done). 11 Art 5 Washington Treaty: ‘The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security’. 12 See Trybus, ‘The vision of the European Defence Community and a Common Defence for the European Union’, in Trybus and White (eds), European Security Law, at 33–4. 13 Art 42(7) TEU.

The origins and evolution of CSDP

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German participation. It was in the light of these considerations that the Assemblée Nationale voted down the Treaty.14 The national sensitivities involved were illustrated in legal terms in the Treaty itself, which made it clear that it would not ‘involve any discrimination among its member States’.15 Germany was adamant that it should not be viewed as a secondclass participant, an attitude not discouraged by the United States. An incident illustrating the sensitivities of the main actors occurred in January 1951 when delegations from the United States, the United Kingdom, and France, then the occupying powers in Germany, met with a German delegation in Petersberg, outside Bonn, in order to discuss the eventual integration of German forces in Western defence mechanisms. When the German representative, Theodor Blank, the defence advisor of Chancellor Adenauer, arrived at the place of the Conference, his car was directed to a parking place away from the front of the building. There had only been space for three VIP cars reserved at the front of the building, and these were for the Heads of the other delegations.The German representative refused to enter the building unless his car was parked along with those of the other representatives.16 As this analysis will illustrate at various points, appearances matter in European policy, all the more so in the politically charged area of defence. While it is interesting that a failure should lie at the very genesis of European integration, it is striking that the masters of the Treaties should have channelled their integrationist fervour directly into security and defence so early on. This is so not only because this area falls within the core of national sovereignty, but also because the Member States and the European Union institutions have spent more than fifty years seeking to ensure that any progress, slow and modest, and reluctant though it might appear to be, is heavily controlled by intergovernmental rules and procedures.

The second phase: another failure prior to marginalization Following the failure of the plan for the establishment of the European Defence Community, defence policy became the subject matter of another initiative, albeit of a fundamentally different character. Devised by French President Charles De Gaulle and named after the French Ambassador to Denmark who wrote it, the Plan Fouchet was put forward in 1961, that is six years after the French Parliament ensured the end of the EDC. The proposal was distinctly intergovernmental and its objective was the establishment of ‘a Union of States’ which would aim ‘to reconcile, co-ordinate and 14 For a political science analysis of the negotiating power of the actors involved, see Björn Fleischer, ‘Negotiating the European Defence Community’, (2012) 11 European Political Science (forthcoming). 15 Art 6 EDC Treaty. 16 Fursdon, The European Defence Community—A History, 107.

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The EU Common Security and Defence Policy

unify the policy of Member States in spheres of common interest: foreign policy, economics, cultural affairs and defence’.17 However, the proposal and the broad political union which it envisaged were rejected, since its intergovernmental provisions were viewed by the remaining Member States as misplaced and retrograde in the light of the existing ECSC and EEC frameworks.18 After this second attempt to place it within the scope of cooperation between Member States, defence policy was consigned to irrelevance as far as the structures of European integration were concerned. Instead, it formed the subject of the Western European Union and the North Atlantic Treaty Organization (NATO), the membership of which did not coincide with that of the European Economic Community and the subject matter of which was confined to defence.19 In fact, the broader area of foreign policy was, in formal legal terms, alien to the life of the European Economic Community (EEC), which was established by the Treaty of Rome three years following the rejection of the EDC Treaty. Based on the principle of limited competence, the EEC was confined to the powers conferred by the Treaty of Rome and foreign policy, and to an even greater extent security and defence were decidedly not among them. However, over the years the Member States adopted a set of arrangements which enabled them to cooperate in the area of foreign policy.These formed the European Political Cooperation (EPC), the precursor of the Common Foreign and Security Policy. The EPC framework developed in two phases. The first was carried out beyond the primary rules set out in the Treaty of Rome. Following the establishment of the EEC and the gradual acclimatization of the national administrations to the culture of cooperation, which emerged from the conduct of the Community’s policies, the discussion of foreign policy issues crept in. Gradually, the Foreign Affairs Ministers of the Member States began to meet regularly to discuss foreign policy issues, albeit strictly on an intergovernmental basis and all the while being keen to maintain the strict separation between their EEC work and their cooperation in high politics issues. There is an episode in 1973 which illustrated the concern of Member States not to allow supranational principles to affect foreign policy coordination: at a meeting of Foreign Affairs Ministers of the Member States in Copenhagen, the French Minister prevented the discussion of EEC business, instead making his colleagues fly to Brussels in the afternoon of the same day to convene a Council meeting.20 Once again, appearances are central to this area of external action. 17 Art 2 of the second draft presented on 18 January 1962 (the text is available on this website: http://www.cvce.eu/viewer/-/content/c9930f55-7d69-4edc-8961-4f12cf7d7a5b/en; the text of the first draft is available on this website: http://www.cvce.eu/viewer/-/content/485fa02e-f21e4e4d-9665-92f0820a0c22/en;jsessionid=441BD693160E8706492434D58977AEB5), (last accessed on 26 October 2012). 18 See Christian WA Timmermans, ‘The Uneasy Relationship between the Communities and the Second Union Pillar: Back to the “Plan Fouchet”?’, (1996) LIEI 61. 19 These will be discussed in Chs 5 and 9. 20 Eric Stein, ‘European Political Cooperation (EPC) as a Component of the European Foreign Affairs System’, (1983) 43 ZaöRV 49, at n14.

The origins and evolution of CSDP

11

Having been developed incrementally and on an ad hoc basis during the late 1960s, these arrangements were then set out in three Reports presented by the Ministers of Foreign Affairs of the Member States to the Heads of State and Government in the period between 1970 and 1986.21 These Reports set out, with varying degrees of clarity and precision, the objectives and the institutional framework under which the Member States would attempt to formulate a collective stance on the international scene. In many cases, they simply formalized pre-existing arrangements about consultation and cooperation between the Member States. The Luxembourg Report22 was the first formal attempt of the Member States to set out a mechanism of cooperation in foreign affairs.The need for the international presence of the then EEC to be equivalent to its economic role was stressed as the main reason for the establishment of a common foreign policy mechanism. EPC was conceived as being of potentially unlimited scope,23 whereas its modest objectives were confined to coordination of national views. These objectives were to be achieved through equally modest consultation mechanisms confined to meetings between Foreign Affairs Ministers and the then established Political Committee, that is, the Directors of Political Affairs of the Member States Foreign Affairs Ministries.24 The establishment of EPC as distinct from the EC was reflected by the significantly limited role of the Commission and the European Parliament. The subsequent Copenhagen Report, adopted on 23 July 1973, reaffirmed the modest and vague objectives of EPC25 and formalized procedural improvements to the consultation mechanism which had already been applied. While the Luxembourg Report was silent on security and defence, the Copenhagen Report referred to security in a very narrow context; that is, the coordination arrangements between Member States in the framework of the Conference on Security and Cooperation in Europe.26 This Report stressed the distinct nature of foreign policy cooperation from the EEC institutional and legal set-up.27 However, it also pointed out that, in the light of ‘the widening scope of the European Communities and the intensification of 21 See David Allen and William Wallace, ‘European Political Cooperation:The Historical and Contemporary Background’, in David Allen, Reinhardt Rummel, and Wolfgang Wessels (eds), European Political Cooperation—Towards a foreign policy for Western Europe (London: Butterworth, 1982) 21 et seq. 22 It was adopted on 27 October 1970; see European Political Cooperation (EPC) (5th edn, Bonn: Press and Information Office of the Federal Government, 1988) at 24 et seq. 23 According to Art IV, ‘Member States may propose any question of their choice for political consultation’. 24 The Political Committee is composed of the directors of political affairs of the Member States. 25 Namely ‘promoting the harmonisation of . . . views and the alignment of . . . positions and, wherever it appears possible and desirable, joint action’: European Political Cooperation (EPC) (5th edn, Bonn: Press and Information Office of the Federal Government, 1988) at 35. 26 Item 2(b)(i) under ‘Results obtained from European Political cooperation on Foreign policy’. 27 Art 10 of the Copenhagen Report points out that EPC ‘is distinct from and additional to the activities of the institutions of the Community which are based on the juridical commitments undertaken by the Member States in the Treaty of Rome. Both sets of machinery have the aim of contributing to the development of European unification’.

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The EU Common Security and Defence Policy

political cooperation at all levels’,28 EPC could not operate in total isolation from the EEC, and provided that the development of EPC should ‘keep in mind . . . the implications for and the effects of, in the field of international politics, Community policies under construction’.29 This provision articulates one of the principles which would underpin the development of not just the foreign policy system of the Union, but also its security and defence policy. The notion of a watertight distinction between this area of high politics and the economic and social policies which have traditionally formed the nucleus of European integration is illusory. Once acknowledged expressly, this policy reality was bound to have legal repercussions for both the Union and its Member States. Indeed, this provision appears to constitute an embryonic form of the requirement of consistency which is laid down in subsequent Treaties.30 It is revealing that this understanding of the intrinsic linkages between the traditional activities of the EEC (and later the EC and then the EU) should have been articulated as early as in 1973. At that time, there was no formal provision for foreign policy, let alone defence, in the Community’s primary rules. Furthermore, that extract from the Copenhagen report recognizes the incremental nature of the activities carried out under the existing primary rules and affirms their dynamic nature, hence providing an even stronger foundation for the linkages between these activities and foreign policy. The final stage of the development of EPC is marked by the London Report. Adopted on 13 October 1981, this articulates the objectives of EPC in considerably grander terms than the previous Reports. In fact, its language illustrates ambition in terms which have been recurring in subsequent policy documents: for instance, it is claimed that Member States must ‘play a role in the world appropriate to their combined influence’, they must ‘increasingly seek to shape events and not merely to react to them’, and they ought to be able to ‘speak with one voice in international affairs’.31 While the London Report referred to the Member States, rather than the EEC, the force of its wording, which is not dissimilar to that of important security documents adopted more than twenty years later, such as the European Security Strategy,32 and the strength of its ambition are noteworthy. This is all the more so given that, at that time, there was no formal legal base on which the Member States could act in order to assume the central role on the international scene to which they aspired. This is not the only theme of the Union’s security policy which emerges from the London Report. In addition to intensifying the coordination procedures between the Member States, it draws upon the Copenhagen Report and the linkages between foreign policy and the other policies carried out within

28

29 Art 10 of the Copenhagen Report. Art 12(b). This point is explored further in Ch 8. 31 European Political Cooperation (EPC) (5th edn, Bonn: Press and Information Office of the Federal Government, 1988), at 62–3. 32 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). 30

The origins and evolution of CSDP

13

the EEC framework, which it acknowledges, and goes on by implication to envisage the use of EEC instruments for foreign policy objectives. Its preamble states that ‘the maintenance and development of Community policies in accordance with the Treaties will be beneficial to a more effective co-ordination in the field of foreign policy and will expand the range of instruments at the disposal of [then] Ten’.33 Finally, the London Report refers to security for the first time in broader terms: in relation to the scope of EPC, it points out that, ‘having regard to the different situations of the member states, the Foreign Ministers agree to maintain the flexible and pragmatic approach which has made it possible to discuss in Political Cooperation certain important foreign policy questions bearing on the political aspects of security’.34 This brief overview of the early development of EPC is relevant to our understanding of the Union’s security and defence policy. First, following the demise of what may appear, with hindsight, to be an over-ambitious effort to create a common defence policy, defence was banished from subsequent developments in the area of high politics. Instead, these focused on foreign policy and only gradually did they develop a vague and marginal security dimension. The shock of the EDC experience was so profound that the Member States focused their attention and efforts on the softer end of the high politics spectrum. Understood in its proper historical and political context, this shift from one end of the spectrum to the other may shed light on the current focus of the Union’s security and defence policy. Second, it becomes apparent that, even within its clearly intergovernmental context, entirely beyond the constraints of primary rules and quite early on in the life of European integration, foreign policy, and therefore security, may not be viewed in isolation from the economic activities which form the core of European integration. The former owe part of their existence to the latter, and their conduct is bound to give rise to interactions between different policy and institutions.

The third phase: security and defence under primary law As the Single European Act (SEA) amended the Treaty of Rome for the first time,35 a reference to security was included for the first time in primary law. This change came about in the context of the addition of a new Article in the Treaty, which was dedicated entirely to EPC. In general terms, Article 30 SEA set out the commitment of the Member States in rather vague and ambiguous terms and drew upon

33 34

A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). 35 Part I of London Report. It entered into force on 1 July 1987.

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The EU Common Security and Defence Policy

and improved further the pre-existing consultation arrangements.36 The distinct character of the EPC was not only maintained but also illustrated with considerable clarity by the structure of the amended Treaty, as Article 30 SEA constituted a separate Title (Title III), and until a late stage of the negotiations was intended to form a separate Treaty. All the provisions about security were laid down in Article 30(6). They read as follows: (a) The High Contracting Parties consider that closer co-operation on questions of European security would contribute in an essential way to the development of a European identity in external policy matters. They are ready to coordinate their positions more closely on the political and economic aspects of security. (b) The High Contracting Parties are determined to maintain the technological and industrial conditions necessary for their security. They shall work to that end both at national level and, where appropriate, within the framework of the competent institutions and bodies. (c) Nothing in this Title shall impede closer co-operation in the field of security between certain of the High Contracting Parties within the framework of the Western European Union or the Atlantic Alliance.

Title III SEA refers to the Member States as ‘the High Contracting Parties’. Given that the remaining part of the Treaty uses the term ‘Member States’, this wording provides a stark reminder of the intergovernmental character of EPC, its distinct nature from the activities carried out by the EEC, and the central role which the Member States retained for its implementation. The absence of a reference to defence is also noteworthy. Consistent with the practice which followed the demise of the EDC, it suggests that Member States were not prepared to revisit this sensitive policy area even pursuant to a method decidedly intergovernmental. Even the references to security were considerably qualified. In fact, there was no reference to security policy as such. Instead, Article 30(6)(a) SEA refers to matters of European security in general, hence avoiding any reference to the security of the Member States, let alone the then EEC, and it merely acknowledges the links between national coordination on such matters and the development of a European identity in external relations. This constitutes a statement of the obvious at best. In terms of more specific provisions, Article 30(6) SEA singles out the political and economic aspects of security. However, even these are not subject to any obligation on Member States to coordinate their positions. Instead, the new provision envisages the readiness of the masters of the Treaty to do so more closely. The remarkably loose wording of this provision notwithstanding, the reference to the economic aspects of security for the first time in primary law is noteworthy. Following the 36 For an early commentary on the new provision, see Simon Nuttall, ‘European Political Cooperation and the Single European Act’, (1985) 5 YEL 203, and Stelios Perrakis, ‘L’incidence de l’Acte Unique Européen sur la Coopération des Douze en Matière de Politique Etrangère’, (1988) 34 AFDI 807.

The origins and evolution of CSDP

15

genesis and development of EPC since the 1960s, the wider context within which security was gradually discussed at EEC level was decidedly linked to the economic position of the Community. It was its clout and policy expertise which created the external and internal factors (expectations from third countries and consultation culture respectively) necessary for the gradual development of EPC. Viewed from this angle, it is not surprising that the economic aspects of security are mentioned expressly. It is in this vein that the reference to the technological and industrial conditions necessary for the security of the Member States in Article 30(6)(b) SEA ought to be seen. Again, this express reference is more significant on symbolic grounds, as it is not accompanied by either a duty imposed on Member States or anything other than an anodyne statement and a heavily qualified declaration of intent. Article 30(6)(c) SEA is noteworthy for a different reason. By acknowledging the right of Member States to pursue policies of closer cooperation in the context of security organizations entrusted at the time with protecting the security of Western Europe, the Member States disassociated the security dimension of EPC, such as it was, from national security and, by implication, defence. After all, the Western European Union was and NATO is a defence organization. In doing so, the SEA set a trend which was to be followed by all subsequent amendments of the Treaty. The loose wording and innocuous nature of the references to security in the SEA are by no means exceptional. In fact, they characterize Title III SEA in general, and their ambiguous wording reflected both the sensitive nature of its subject matter and the fact that it was only the first time that it was enshrined in binding Treaty law. It was precisely this wording which gave rise to litigation in Ireland questioning its legal significance.37 Following the SEA, the role of security became more pronounced in subsequent amendments to the Treaties. This was consistent with the upgrading of the arrangements pursuant to which the Member States agreed to coordinate their foreign policies. The establishment of the European Union under the Maastricht Treaty, which entered into force on November 1993, signalled the introduction of the Common Foreign and Security Policy (CFSP) which succeeded the EPC. This transition had a strong symbolic force: the wars in the former Yugoslavia, and the difficulty of the Member States in agreeing a common stance, let alone any intervention to prevent a massacre in Europe, had 37 See the judgment of the Irish Supreme Court in Crotty v An Taoiseach and Others [1987] 2 CMLR 666. This action was brought by an Irish citizen against the Irish Government on the basis of the latter’s refusal to include Title III SEA in the European Communities Bill 1986 ratifying the SEA. The Supreme Court held that the relevant provisions were binding under international law on Ireland. See John P McCutcheon, ‘The Irish Supreme Court, European Political Cooperation and the Single European Act’, (1988) 2 LIEI 93; Finbarr Murphy and Arnaud Gras, ‘L’Aff aire Crotty: La Cour Suprême d’Irlande Rejette l’Acte Unique Européen’, (1988) 24 CDE 276; John Temple Lang, ‘The Irish Court Case which Delayed the Single European Act: Crotty v An Taoiseach and Others’, (1987) 24 CMLRev 709.

16

The EU Common Security and Defence Policy

affected the main actors of European integration profoundly.38 The CFSP illustrated the determination of Member States to become more active in the area of foreign policy and to exercise influence commensurate to the economic might of the Community. However, the establishment of the CFSP was by no means merely a symbolic gesture. It laid down a more detailed set of rules, imposed tighter duties on Member States, and introduced specific instruments.39 For the purposes of this analysis, the main point of interest is the elevation of security to one of the components of the system which it introduced in the Union’s legal order. This was apparent in the title of the new policy framework, which referred expressly to security for the first time, and was also illustrated by its substantive provisions. Another noteworthy innovation was the reference to defence: whereas absent from all three Reports of the 1970s and 1980s, as well as the SEA, defence featured in the CFSP framework from its inception at Maastricht, the preamble to which stated that the Member States were resolved ‘to implement a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world’.40 While of an aspirational nature rather than the subject matter of a specific policy, the reference to defence signified both the growing confidence of the Union as an international player and the incremental widening of the scope of its activities. The substantive provisions of CFSP at Maastricht illustrate the considerable upgrading of security and defence in the context of its external action. The objectives of the CFSP included the ‘safeguard[ing of] the common values, fundamental interests and independence of the Union’ and the ‘strengthen[ing of] the security of the Union and its Member States in all ways’.41 This reference to the security of the Union as distinct from that of the Member States is noteworthy, given the previous reluctance of the drafters of the Treaty to include any such term in primary 38 On the Union’s role in relation to the war in ex-Yugoslavia see Eric Remacle, La politique étrangère europeéenne: de Maastricht à la Yugoslavie (Brussels: GRIP dossier, 1992); Caroline J Smith, ‘Conflict in the Balkans and the Possibility of a European Union Common Foreign and Security Policy’, (1996) XIII/2 International Relations 1; and Petros N Stangos, ‘La Communauté et les Etats membres face à la crise yougoslave’, in M Telò (ed), Vers une nouvelle Europe? (Brussels: ULB, 1992), 177. 39 See Marise Cremona, ‘The Common Foreign and Security Policy of the European Union and the External Powers of the European Community’, in David O’Keeffe and Patrick Twomey (eds), Legal Issues of the Maastricht Treaty (London: Chancery Law, 1994), 247; Florica Fink-Hooijer, ‘The Common Foreign and Security Policy of the European Union’, (1994), 5 EJIL 173; Christopher Hill, ‘The Capabilities-Expectations Gap, or Conceptualising the European International Role’, (1993), 31 JCMS 305; Ian MacLeod, Ian D Hendry, and Stephen Hyett, The External Relations of the European Communities (Oxford: Clarendon Press, 1996), Ch 24; Dominic McGoldrick, International Relations Law of the European Union (London: Longman, 1997), Ch 8. 40 10th para of preamble to TEU (Maastricht). 41 Art J.1(2) TEU (Maastricht).

The origins and evolution of CSDP

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law. The new position of security was not confined to the Union’s objectives, as the scope of CFSP expressly included ‘all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence’.42 The scheme of the CFSP in relation to security and defence follows the example set by the SEA: the relevant provisions are set out in a single Article, namely Article J.4. However, this is where similarities end. While defence features prominently in this new set of rules, it is not in a positive manner, that is in order to define a course of action for Union in the area. Instead, the new arrangements are about the engagement of an existing international organization; that is, the Western European Union ( WEU ), to implement Union measures with defence implications,43 and the right of Member States to make fundamental choices about the defence of their territories.44 The two subsequent amendments of the Treaty on the European Union (TEU) by the Amsterdam and Nice Treaties retained the scheme of CFSP as introduced originally at Maastricht and built upon its main characteristics. In fact, there is a gradual evolution which makes the transition to the legal rules and procedures currently in force predictable. Each Treaty amendment tightens up the security and defence component of CFSP and makes its provisions more detailed. For instance, at Amsterdam, the scope of the activities covered by this component is expressly set out for the first time and refers to humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking.45 These were known as the Petersberg tasks and had been adopted by the Western European Union in June 1992 at the Hotel Petersberg, near Bonn.46 In addition, there is the first reference to the possibility of cooperation in the area of armaments with a view to supporting the progressive framing of a common defence policy.47

42

Art J.4(1) TEU (Maastricht). Art J.4(2) TEU (Maastricht). A Declaration on Western European Union (WEU) was also attached to the Treaty. This applied to the then Member States, which were also members of the WEU (namely Belgium, Germany, Spain, France, Italy, Luxembourg, the Netherlands, Portugal, and the United Kingdom) and set out arrangements about the relationship between the WEU and the EU and NATO. 44 Art J.4(4) TEU (Maastricht) refers to neutral States as well as to members of NATO. 45 Art 17(2) TEU (Amsterdam). 46 Petersberg Declaration by WEU Council of Ministers (Bonn, 19 June 1992) (http://www.weu.int/ documents/920619peten.pdf), (last accessed on 31 October 2012). On their introduction in the TEU at Amsterdam, see F Pagani, ‘A New Gear in the CFSP Machinery: Integration of the Petersberg Tasks in the Treaty on European Union’, (1998) 9 EJIL 737. 47 Art 17(1), subpara 4 TEU (Amsterdam). For an analysis of the Amsterdam CFSP provisions, see Panos Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing, 2001), 26–34, and Jörg Monar, ‘The European Union’s Foreign Affairs System after the Treaty of Amsterdam: A “Strengthened Capacity for External Action?”’, (1997) 2 EFARev 413. 43

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The EU Common Security and Defence Policy

The starting point for the European Security and Defence Policy—the St Malo Declaration The increasingly prominent position which security and defence assumed in the Union’s life in the first decade of the 2000s originated in a joint United Kingdom and French initiative. On 3–4 December 1998, the then British Prime Minister Tony Blair and the then French President Jacques Chirac signed a Joint Declaration in St Malo, a French seaside town on the coast of Brittany. This relatively short document was succinct in its drafting, wide in its scope, and ambitious in its objectives. Its starting point was that the European Union ‘needs to be in a position to play its full role on the international stage’.48 It then explained what this objective entailed, namely that ‘the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises’.49 The Declaration acknowledged the central role of the WEU and NATO in collective defence, but also expressed the need for the Union to ‘have recourse to suitable military means’, and pointed out that ‘Europe needs strengthened armed forces that can react rapidly to the new risks, and which are supported by a strong competitive European defence industry and technology’.50 As any foreign policy act of sovereign States, the St Malo Declaration served different national interests for the United Kingdom and France. On the one hand, Blair was keen to ensure that the advent of the economic and monetary union would not marginalize the UK from the European political stage, and the dynamic emergence of the Union’s security and defence policy would provide a suitable arena within which the UK would become a central player. On the other hand, Chirac was keen to ensure that France, one of the two important military players in Europe, would be part of a European security structure which would not play second fiddle to NATO. Furthermore, the political and security landscape in Europe was in a state of flux, given the impending gradual disengagement of the United States from European security following the end of the Cold War.51 The difficulties in controlling Serbian action in Kosovo also lent an air of urgency to the construction of a more effective European security policy. The Declaration was seen as ‘revolutionary’ for bringing security and defence back to the mainstream of European policy and for giving rise to a healthy debate about the security role of

48 Franco-British Joint Declaration on European Defence, adopted at the Franco-British summit, St Malo, 3–4 December 1998, Art 1. The text of the Declaration is available on this site: http://www. atlanticcommunity.org/Saint-Malo%20Declaration%20Text.html (last accessed on 26 October 2012). 49 Franco-British Joint Declaration on European Defence, Art 2. 50 Franco-British Joint Declaration on European Defence, Arts 3 and 4. 51 See Nicole Gnesotto,‘Common European Defence and Transatlantic Relations’, in Philip H Gordon (ed), NATO’s Transformation: The Changing Shape of the Atlantic Alliance (Lanham, MD: Rowman and Littlefield, 1997), 39.

The origins and evolution of CSDP

19

the Union on the international scene.52 In doing so, it had a significant impact on the changes of the TEU provisions of security and defence introduced at Nice,53 and contributed to the momentum which kept the policy at the centre of the political and legal process, which led to the drafting of the Constitutional Treaty and, later, the Lisbon Treaty. For the purposes of this analysis, suffice it to make the following observations. First, the initiative did not come either from an institution of the European Union or Member States acting under the EU umbrella. Instead, it originated in two powerful Member States acting autonomously to spearhead progress, hence illustrating clearly the inherent role of national administrations in the design and conduct of security and defence policy. Second, the initiative was undertaken by the two Member States, which are by far the main military powers in Europe. This conveys clearly that any meaningful security and defence policy for the EU would require not just the backing but also the active participation of France and the United Kingdom. Third, it is noteworthy that the St Malo Declaration refers expressly to the economic aspects of security and the need for a competitive European defence industry. As the role of this dimension will emerge clearly in subsequent parts of this analysis,54 it is crucial that it should have been so well understood by the Member States, which are the main players in this area.

Conclusion This analysis suggests that the development of the Union’s security and defence policy has followed the movement of a pendulum which, having reached one end of its trajectory, then swings back the other way. Having attempted to apply a distinctly supranational logic to defence, that is a policy area closest to the core of national sovereignty, and then having rejected a distinctly intergovernmental approach, the Member States left it entirely beyond the realm of their endeavours. Its emergence in the sphere of the Union’s activities has been slow, incremental, and characterized by a number of interrelated features. First, it is marked by a distinct shift of emphasis from defence to security. In fact, even after the EPC was formalized in the Treaties, defence was decidedly not a central policy, and the relevant provisions were either confined to economic and political aspects of the area or constituted emphatic reminders of the sovereign right of Member States to make fundamental choices about the defence of their realm.

52 Jolyon Howorth, Security and Defence Policy in the European Union (London: Palgrave Macmillan, 2007), 36–7. 53 The Nice Treaty will be examined in Chs 2 and 3, in the context of the subsequent changes introduced by the Lisbon Treaty. 54 See Ch 9.

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Second, security and defence policy, as it became, loses its autonomy and any focus of the energies of the Member States and becomes secondary to the efforts of the Member States to coordinate their activities in the area of foreign policy. Rather than constituting the subject matter of an autonomous set of actions, rules, and procedures, defence becomes subsumed by a much broader framework, the EPC and then the CFSP, which develop independently from the main activities carried out pursuant to the primary rules governing European integration. By emerging within the fold of the foreign policy set of rules and procedures, security and defence policy acquires the main characteristics of EPC and, later, CFSP.55 Its development is dynamic; constantly evolving beyond the Treaties framework as well as within it. Indeed, every amendment of the Community’s and the Union’s primary rules is accompanied by an amendment of the rules on security and defence. Third, neither defence requirements nor security imperatives on their own shape the origins of the precursor to the CSDP. It is also the growing success of economic integration under the existing legal structures of ECSC and EEC, the increasing ambition of European political actors to match their economic might with political stature, and the growing expectations of third parties, which provide the momentum for the genesis and development of EPC and, within it and secondarily, security and defence. This point is significant for it defines the very genesis of CSDP. It suggests that its DNA is both diverse and troubled. It is troubled because it is conditioned by a death; the failure of the EDC which has always shaped the inherent reluctance of Member States to relinquish control in the area of security and defence. And it is diverse because it owes its existence partly to factors which are not directly linked to either security or defence.This feature has policy implications: because the Union’s security and defence policy is organically linked to the policies carried out first by the EEC, then by the EC and now the EU, the objectives and conduct of the latter are bound to have an impact on the conduct of the former. There are also legal implications for the regulation and management of security and defence, given the distinctly supranational features on the basis of which the Union organizes its economic and social policies. This analysis shows that the emphatic reminders of the intergovernmental nature of security and defence within the process of European integration are accompanied by the clear realization that rigid distinctions between this and the other EU policies are both untenable and undesirable. Therefore, there is a thread which brings together the emergence and early development of security and defence policy and the references to the requirement of coherence, which is introduced in different forms in the more recent amendments of the Treaties.

55 On the characteristics of the development of CFSP up until the Amsterdam Treaty, see Panos Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing, 2001), 14–18.

The origins and evolution of CSDP

21

Finally, there is an overwhelming pragmatic dimension underpinning the impact of the relevant rules and procedures. This is about the role of the Member States, which are the main players in the field.The willingness of the Member States, which are the main European security actors, to engage actively in the conduct of ESDP is a conditio sine qua non for the success of the latter. This is an area where clearly ‘some animals are more equal than others’.56 56

George Orwell, Animal Farm, (London: Penguin, 2000), 90.

2 The Common Security and Defence Policy within the framework of Common Foreign and Security Policy

Introduction The previous chapter charted the development of the European Union’s security and defence policy from the early death of the European Defence Community through successive informal and formal arrangements to primary rules. It described how it developed organically from the quest of the Union to develop an international political role commensurate to its economic weight, and examined its main characteristics. This chapter focuses on the specific legal framework governing the Common Security and Defence Policy. This is set out in the Treaty of Lisbon, which entered into force on 1 December 2009. Amending the Treaty on European Union as previously revised by the Treaty of Nice, this new phase in the Union’s constitutional life marks the latest episode of a long process whose surprising twists kept the Union institutions and the Member States on their toes for a good part of the first decade of the 2000s.This chapter examines the rules which define the conduct of CSDP within the broader constitutional framework of CFSP, while the next chapter focuses on the substantive and institutional rules which are unique to CSDP, and sets out its main constitutional and institutional features with reference to the pre-existing Nice provisions.

Great expectations The story of the journey to Lisbon has been told often and well.1 For the purposes of this analysis, suffice it to recall that the Nice Treaty, which was signed in February 2001, had a Declaration on the Future of Union annexed to its main body.2 This called for a ‘deeper and wider debate about the future of the European Union’ and 1 See, for instance, Paul Berman, ‘From Laeken to Lisbon:The Origins and Negotiation of the Lisbon Treaty’, in Andrea Biondi, Piet Eeckhout, and Stefanie Ripley (eds), EU Law After Lisbon (Oxford: OUP, 2012), 3; and Paul Craig, The Lisbon Treaty—Law, Politics, and Treaty Reform (Oxford: OUP, 2010), 1–25. 2 Declaration 23 on the Future of the European Union.

The CSDP within the framework of Common Foreign and Security Policy

23

suggested that its subject matter focus on delimitation of competences, the status of the Charter of Fundamental Rights, the simplification of the Treaties, and the role of national parliaments.3 Ten months later, in December 2001, the European Council adopted the Laeken Declaration, which initiated a wide-ranging process involving a range of institutional actors across all the Member States and which would lead to the amendment of the Nice Treaty.4 The Laeken Declaration defined the subject matter of the reform process in considerably broader terms.These included the international role of the EU, which featured prominently in the Declaration, and raised the question: ‘Does Europe not, now that it is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilising role worldwide and to point the way ahead for many countries and peoples?’.5 The process launched by the Laeken Declaration, managed by the Convention on the Future of Europe and chaired by the former French President Valery Giscard d’Estaing, led to the Intergovernmental Conference in late 2003 which finalized the text of the Treaty Establishing a Constitution for Europe. Signed in Rome in October 2004, the Treaty proved controversial for various reasons, not least the express emphasis on its constitutional nature.6 Following the rejection of the Treaty by referendums in France and The Netherlands in 2005, the European Council initiated a period of reflection,7 which led to the short Intergovernmental Conference in the latter part of 2007.This led to the drafting of the Reform Treaty, signed by the Member States in December 2007 in Lisbon. As if this process had not already been long and tortuous enough, the rejection of the Treaty in Ireland by referendum in June 2008 produced further delays, as the European leaders sought to reach a compromise, which would make the new Treaty acceptable to the Irish public. After a number of guarantees were offered on issues as diverse as taxation, neutrality in the area of defence, the status of the Charter and Ireland’s participation in the European Commission, Ireland ratified the new Treaty after a second referendum in 2009, hence removing the main obstacle to its entry into force on 1 December that year. This process is noteworthy not just for its unusual duration and dramatic course. For the purposes of this analysis, two issues are worth emphasizing. First, throughout the process, the international role of the Union and its security and defence

3

Declaration 23, paras 3 and 5. Presidency Conclusions of the Laeken European Council (14–15 December 2001), Annex I: Laeken Declaration on the Future of the European Union. 5 Conclusions of the Laeken European Council (14–15 December 2001), Annex I, at 2. 6 For an analysis of the Treaty, see Giulliano Amato, H Hervé Bribosia, and Bruno de Witte (eds), Genesis and destiny of the European Constitution (Bruxelles: Bruylant, 2007); and Jean Claude Piris, The Constitution for Europe: A Legal Analysis (Cambridge: CUP, 2006). 7 Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe, European Council, SN 117/05 (Brussels, 16–17 June 2005). 4

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The EU Common Security and Defence Policy

policy never ceased to be one of the core areas for the negotiators. For instance, in the Declaration responding to the negative referendums in France and The Netherlands, the European leaders underlined the need for the Union ‘to respond to the challenges of globalisation [and] to safeguard internal and external security’.8 The reform of the EU’s institutional and legal framework to which the EU elites aspired was deemed essential to the role of the Union on the world stage and had been articulated in grand terms in the Laeken Declaration. Second, from the Constitutional Treaty to the Lisbon Treaty and notwithstanding the legal guarantees offered to Ireland following the first negative referendum in the country, the Treaty provisions on security and defence remained largely unchanged.9 This suggests their wide acceptance by Member States and EU institutions alike. In fact, compared to the Nice Treaty, both the position and the substance of the CSDP provisions in the Lisbon Treaty suggest a general upgrading of this policy within the Union’s constitutional and policy framework. Third, the Lisbon Treaty, as well as its precursor, was drafted, negotiated, and ratified among great hopes as to its impact in the area of foreign affairs, and was received with the expression of even greater relief and anticipation.The then President of the Commission, Romano Prodi, said on the day of the signing of the Constitutional Treaty that ‘today, Europe is reaffirming the unique nature of its political organization in order to respond to the challenges of globalisation, and to promote its values and play its rightful role on the international scene’.10 Launching the Intergovernmental Conference, which led to the adoption of the Lisbon Treaty, the European Council stated that, ‘[i]n order to secure our future as an active player in a rapidly changing world and in the face of ever-growing challenges, we have to maintain and develop the European Union’s capacity to act ...’.11 The European Council stated that the Lisbon Treaty ‘will bring increased efficiency to our external action’.12 In its Opinion for the IGC, which led to the Lisbon Treaty, the European Commission expressed the view that the latter ‘will give Europe a clear voice in relations with our partners worldwide, and sharpen the impact and visibility of our message . . . This will mean an EU able to play a more responsive and effective part in global affairs’.13 And the Commission President José Barroso, in addressing the 8 Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe, European Council, SN 117/05 (Brussels, 16–17 June 2005), 2. 9 For an analysis of its external relations provisions, with emphasis on CFSP, see Panos Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), Ch 14. 10 Speech delivered in Rome at the ceremony on the signing of the Constitutional Treaty (http://europa.eu/rapid/press-release_SPEECH-04-479_en.htm?locale=FR), (last accessed on 7 December 2012). 11 Presidency Conclusions, June 2007, 2nd para. 12 EU Declaration on Globalisation, annexed to Brussels European Council Presidency Conclusions, December 14, 2007, at 25. 13 Opinion of the European Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the governments of the Member States convened to revise the Treaties, 13 July 2007, Council 11625/07 POLGEN 83, 8.

The CSDP within the framework of Common Foreign and Security Policy

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European Parliament, said that, ‘[w]ith the Reform Treaty, Europe will have the conditions and the instruments to shape globalisation’.14

Integrated, but not quite One of the main innovations of the Lisbon Treaty and, earlier, the Constitutional Treaty was considered to be the abolition of the pillar structure. Since its establishment at Maastricht, the Union constitutional order had been based on three distinct, albeit interrelated, sets of rules: the European Communities, the Common Foreign and Security Policy, and the Justice and Home Affairs (which, at Amsterdam, became Police and Judicial Cooperation in Criminal Matters). Central to this structure was the organization of the second and third pillars on the basis of essentially intergovernmental principles. To that effect, the unique normative features of the Community legal order, which had shaped its sui generis nature and in the light of which the Court of Justice had pronounced it ‘a new legal order of international law for the benefit of which the Member States have limited their sovereign rights, albeit within limited fields’15 were absent from CFSP. The Commission did not enjoy the exclusive right to initiate legislation, but shared it with the Member States. The Court of Justice was expressly excluded; the nomenclature of Community instruments (regulations, directives, decisions) was not applicable; decisionmaking by qualified majority was initially not provided at all, and subsequently was possible only exceptionally; rather than being part of the co-legislature, the European Parliament was merely to be consulted; a distinct administrative infrastructure was set up in the area of CFSP (for instance, the Political and Security Committee), which operated alongside bodies, such as the Committee of Permanent Representatives, which had been central to the functioning of the Community legal order.16 Primacy in the strong form developed under European Community jurisprudence as well as uniform rules on direct effect did not apply to binding instruments adopted under the second and third pillars. And yet, this separation in institutional and legal terms could not ignore the interactions between the areas of activities covered by the different pillars which were necessitated as a matter of fact: economic and political relations are all combined to define the international role of the Union, and it is not always easy to distinguish between them. In the words of Advocate General Jacobs as he then was: [m]any measures of commercial policy may have a more general foreign policy or security dimension. When for example the Community concludes a trade agreement with Russia, it

14

Speech/07/469, (23 October 2007). Case 26/62 Van Gend en Loos [1963] ECR 1 at 12. Less than thirty years later, the Court held that the Member States had limited their sovereign rights ‘within ever wider fields’: Opinion 1/91 (re: Draft EEA Agreement) [1991] ECR I-6079, at para 21. 16 See Geert De Baere, Constitutional Principles of EU External Relations (Oxford: OUP, 2008), Ch 4. 15

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is obvious that the agreement cannot be dissociated from the broader political context of the relations between the European Union, and its Member States and Russia.17

This fact was reflected by the provision of legal links between the otherwise distinct pillars: on the one hand, the Union was served by a single institutional framework, hence enabling the same institutions to carry out different functions and exercise different powers depending on the legal framework within which they acted; on the other hand, the Council and the Commission were required to ensure the consistency of the Union’s activities in the context of its external relations, security, and economic and development policies.18 The above set-up of distinct but interrelated sets of rules involving the same Member States and the same institutions exercising different powers and following different procedures in areas which were often intrinsically linked was criticized heavily: it was seen as opaque, cumbersome, detrimental to the effectiveness of the Union’s action and damaging for its international profile. This was all the more so given the confusion which surrounded the Union’s legal order in relation to its legal personality. While the Community had traditionally been endowed with it, the Member States were reluctant to grant the Union legal personality, as they (mistakenly) considered this an indication of autonomy which they were loath to grant in the sensitive areas of foreign and security policy. Therefore, they merely granted treaty-making capacity in the areas of the second and third pillars.19 This compromise would enable the Union to conclude the treaties which would be necessary for the implementation of its security and defence policy without making what was seen by some as a further threat to the continued sovereign independence of the Member States. However, the distinction between the Community, which enjoyed express legal personality, and the Union, whose international legal personality was highly debateable, added to the complexity which increasingly characterized the Union’s legal order. The Lisbon Treaty removes the pillar structure, and subsumes all three legal frameworks (EC, CFSP, PJCCM) in the EU, which now becomes a single and unitary structure. Article 47 TEU endows the Union with express legal personality. Therefore, the de-pillarization20 introduced by the Lisbon Treaty is considered one of the main positive features of the current constitutional arrangements. In the words of Sir Francis Jacobs, the Lisbon Treaty removed ‘a patchwork system . . . widely regarded as opaque, incoherent and generally unsatisfactory’.21 Reflecting this view, in a report to the European Council, the Presidency of the Convention on the Future of Europe, which drafted the precursor to the Lisbon

17 Case C-124/95 The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England, [1997] ECR I-81, at para 41. 18 19 See Art 3 TEU (Nice). Arts 24 and 38 TEU (Nice). 20 See Editorial, ‘The CFSP under the EU Constitutional Treaty—Issues of Depillarization’, (2005) 42 CMLRev 325. 21 House of Lords Tenth Report The Treaty of Lisbon: An Impact Assessment, (2007–2008), S148.

The CSDP within the framework of Common Foreign and Security Policy

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Treaty, argued that the abolition of the pillars would respond to the requirements of clarity and simplification.22 It is not just for its contribution to the clarity of the constitutional order that the abolition of the pillars was praised. It was also seen as establishing a unified system of external policies. By placing the CSDP, as part of the CFSP, within a common set of rules, the Lisbon Treaty appears to establish a unified legal system whose external policies are not governed by disparate sets of principles and rules. However, a closer look at the relevant provisions of the Lisbon Treaty tells a somewhat different story. In terms of the nature of the competence which the Union enjoys in the area of CFSP, it is clear that this is defined in terms which leave no doubt as to its distinct status. It is recalled that one of the main objectives of the Treaty amending process, which started with the Laeken Declaration, was the clear delimitation of competences. Article 2 TFEU distinguishes between exclusive, shared, coordinating, and supporting, coordinating, and supplementing competence.23 However, the Union’s competence in the area of CFSP falls within none of these categories, and, instead, is listed separately.24 Article 2(4) TFEU does not elaborate on the nature of the competence to carry out the CFSP; it merely provides that the Union ‘shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy’.While the idea that this competence might be shared has been mooted,25 the choice of the drafters of the Treaties to refuse to categorize it must be taken as corroboration of the distinct nature of the Union’s competence in the area. This conclusion is also supported by the introduction in the Treaties of distinct legal mechanisms for the exercise, management, and enforcement of this competence, which will be examined further in this chapter. In this vein, Article 24(1) subparagraph 2 TEU states that the common foreign and security policy ‘is subject to specific rule and procedures’. This clear indication of distinctiveness is reinforced by other features of the CFSP rules. First, despite doing away with the special nomenclature of instruments in force under the previous constitutional arrangements, the following section will show that the Lisbon amendments still maintain, in substance, the distinct nature of the CFSP measures.

22

CONV 851/03, para 7. For an analysis, see Robert Schütze, ‘Lisbon and the Federal Order of Competences: A Prospective Analysis’, (2008) 33 ELRev 709. 24 ‘The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy’ (Art 2(4) TFEU). For earlier criticism of the failure to provide clarity, see Eileen Denza, ‘Lines in the Sand: Between Common Foreign Policy and Single Foreign Policy’, in Takis Tridimas, and Paolisa Nebbia (eds), EU Law for the Twenty-First Century (Oxford: Hart Publishing, 2004), 259, at 266–7. 25 See, for instance, Ricardo Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’, (2006) 43 CMLRev 337, at 364. 23

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The EU Common Security and Defence Policy

In addition, Declaration 41 attached to the Lisbon Treaty states that legislative acts may not be adopted in the CFSP area.26 Second, in terms of legal effect, Article 40 TEU elevates the normative differences between the CFSP and the other EU policies to a constitutional principle. It reads as follows: The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.

This reflects a similar provision laid down in the precursor to the Lisbon Treaty in ex Article 46 TEU. The Lisbon Treaty adds another provision: Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

The legal implications of this addition for the EU constitutional order, the role of its institutions and the jurisdiction of the Court of Justice are examined elsewhere in this book.27 At this juncture, suffice it to point out that Article 40 TEU cements the distinctive nature of the CFSP and highlights the presentational character of the appearance of integration which the Lisbon Treaty seeks to convey. Third, the endowment of the Union with express legal personality under Article 47 TEU should be put in context. On the one hand, the issue of legal personality had been addressed as a matter of practice prior to the entry into force of the Lisbon Treaty, as the agreements concluded by the Union in the areas of CFSP and Police and Judicial Cooperation in Criminal Matters suggested—at least to many European lawyers—that the Union had been endowed with implied legal personality.28 Therefore, the provision of Article 47 TEU may be viewed as a welcome clarification of the Union’s status. On the other hand, the provision for express legal personality, and its exercise by the Union, by no means affect the complex issues which underpin the relationship between the Union and the Member States in their conduct of foreign affairs, neither does it contribute to our understanding of the powers of the latter in specific areas once the former has concluded an agreement in the area of CSDP. Fourth, consistently with the constitutional arrangements underpinning the pillar structure, the CFSP area is expressly excluded from the jurisdiction of the Court

26

Declaration on Article 352 of the Treaty on the Functioning of the European Union. See Ch 8. See also Piet Eeckhout, EU External Relations 2nd edn (Oxford: OUP, 2011), 478–83. To that effect, see Panos Koutrakos, EU International Relations (Hart Publishing, 2006), 408–9. But for an indication of the diverse analyses of the position, see Urfan Khaliq, ‘Treaty Conflict and the European Union, or Conflicting Perspectives on the European Union?’, (2012) ELRev 495, at 498–9; and Aurel Sari, ‘The Conclusion of International Agreements in the Context of the ESDP’, (2008), 57 ICLQ 53. 27

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The CSDP within the framework of Common Foreign and Security Policy

29

of Justice under Article 24(1) subparagraph 2 TEU and Article 275 TFEU.29 Article 24(1) TEU refers to two exceptions: first, the monitoring of compliance with Article 40 TEU, and second, the review of legality of CFSP decisions adopted by the Council and providing for restrictive measures against natural or legal persons.30 However, in effect, neither of the above provisions introduces any new exception to the exclusion of CFSP from the jurisdiction of the Court of Justice. The former has always been considered to fall within the purview of the Court, which has produced, over the years, a number of important judgments on the dividing line between the CFSP (and the old third pillar) and the (old) Community legal framework.31 As for the latter, it is significant, and follows the logic of the jurisdiction which the Court previously exercised in the area of economic sanctions targeting individuals when these were adopted under European Community powers, but pursuant to prior CFSP measures.32 In the light of the above, a paradox emerges: while the Lisbon Treaty was praised on the basis of the rhetoric of unity of the Union’s structure and the integration of foreign, security, and defence policy in its constitutional architecture, in legal terms it has only been the appearance of unity which has been achieved. The CFSP framework retains its distinct characteristics, albeit within a constitutional context which lacks obvious signs of division. Put differently, the CFSP and CSDP constitute a distinct pillar of the Union’s structure in all but name.33 The reluctance of the drafters of the Lisbon Treaty to do away with the substance of the pillar structure, as well as its appearance, is in itself neither indicative of constitutional timidity, nor necessarily detrimental to the Union’s external action. This is because, for all its notoriety and complexity, the pillar structure illustrated in legal terms a self-evident fact: while Member States are determined to broaden the scope of their cooperation in areas deemed to be closer to the functions traditionally carried out by states, and while they thought it sensible to rely upon institutions and processes of what used to be the Community legal order, they wish to do so at a different pace, in 29 See Alicia Hinarejos, Judicial Control in the European Union—Reforming Jurisdiction in the Intergovernmental Pillars (Oxford: OUP, 2009). 30 See further the analysis in Ch 7. 31 See Case C-417/96 Commission v Council (re: Airport Transit Visas) [1998] ECR I-2763, Case C-176/03 Commission v Council (re: criminal law and environmental protection) [2005] ECR I-7879, Joined Cases C-317/04 and C-318/04 Parliament v Council (re: Passenger Name Record Agreement) [2006] I-4721, Case C-440/05 Commission v Council (criminal environmental sanctions) [2007] ECR I-9097, Case C-403/05 Parliament v Commission (re: border support to Philippines) [2007] ECR I-9045, Case C-91/05 Commission v Council (re: small arms and light weapons) [2006] ECR I-1145. 32 This was the case under ex Art 301 EC, and now under Art 215 TFEU. See, for instance the long line of cases about smart sanctions, such as the much-discussed Joined Cases C-402/05P and C-415/05 P Kadi and Al-Barakaat [2008] ECR I-6351. 33 See also Paul Craig, The Lisbon Treaty—Law, Politics, and Treaty Reform (Oxford: OUP, 2010), 40, 49–54. Cf Marise Cremona, ‘The Two (or Three) Treaty Solution:The New Treaty Structure of the EU’, in Andrea Biondi, Piet Eeckhout, and Stefanie Ripley (eds), EU Law After Lisbon (Oxford: OUP, 2012), 3, who argues that the distinct position of CFSP under the Lisbon arrangements is based on differences in procedures and institutional powers, rather than the more profound separation of legal orders, which existed within the previous pillar structure.

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accordance with a different model of integration, in order to achieve qualitatively different objectives, and without compromising the ultimate independence in the conduct of foreign policy, which is the key characteristic of independent sovereign statehood. This differentiation is central to the organization of the Union’s constitutional structure in general and external action in particular. This is what the much-maligned pillar structure was intended to safeguard, and this is what the Lisbon arrangements about the distinctive legal features of CFSP and CSDP, as outlined, also acknowledge.The difference is that, by removing the external manifestations of this fact, the Lisbon Treaty has succeeded in rendering the EU legal order to appear less complex. However, the removal of the appearance of complexity does not necessarily render the ensuing legal framework any less complex to manage in substance.

Integration and distinctiveness The Lisbon Treaty illustrates the greater emphasis which the EU institutions and Member States have placed on security and defence. This becomes immediately apparent from the name of the new policy, as well as the position of the relevant provisions within the wider scheme of external relations rules. Since the momentum given by the Franco-British St Malo Declaration in 1998,34 the Union’s security and defence policy was organized under the title European Security and Defence Policy (ESDP). The Lisbon Treaty changes this and introduced the term ‘Common Security and Defence Policy’. By substituting the term ‘Common’ for ‘European’, the drafters of the Treaty convey not only commonality of purpose, but also the higher status of the policy within the Union’s policy framework. The new name recalls that of the Common Foreign and Security Policy (CFSP) within which it has emerged and grown over the years. In fact, the true significance of CSDP within the CFSP is illustrated by a provision in Article 42(1) TEU, which states that ‘[t]he common security and defence policy shall be an integral part of the common foreign and security policy’. The CSDP provisions are grouped together under Title V TEU, succinctly, albeit inelegantly, entitled ‘General Provisions on the Union’s External Action and Specific Provisions on the Common Foreign and Security Policy’.Title V TEU consists of two Chapters, one dealing with general provisions on the Union’s external action (Arts 21–22 TEU), and the other dealing with specific provisions on the common foreign and security policy (Arts 23–46). The provisions on security and defence are part of the latter, and are grouped together in a distinct Section (Section 2), preceded by Section 1, which sets out common provisions on common foreign and security policy.35 Whereas the precursor to the Lisbon Treaty covered security and

34

See the analysis in Ch 1.

35

Arts 23–41 TEU.

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defence policy in a single article,36 the Lisbon Treaty dedicates a distinct Section to it, consisting of five articles (Articles 42–46 TEU). Both the semantics of CSDP and its new position in the Treaty scheme illustrate the increasingly prominent place that this policy is granted in the external relations system set out at Lisbon, both deeply integrated in the CFSP framework and more pronounced. However, it is not only in terms of its relationship with CFSP that the role of CSDP has become more pronounced, since the new Treaty has brought the latter closer to the wider spectrum of the EU’s external policies. One of the innovations introduced in the Lisbon Treaty in the area of external relations is the re-organization of the relevant provisions which, up until the Nice Treaty, were scattered in different parts of the Treaties in no particular order; furthermore, no particular attention was paid as to the elaboration of specific common objectives and principles which would govern their conduct. Instead, the drafters of the Treaties were mainly preoccupied with ensuring that, in the light of their subject matter, external relations provisions were assigned to the appropriate legal framework, and with setting out general constitutional principles aiming to govern their interactions. To that effect, external trade, development, humanitarian aid, and economic, financial, and technical cooperation with third countries, as well as the conclusion of association agreements, were all part of the EC Treaty, while foreign and security policy were part of the Treaty on the European Union. As to their overall conduct, this was governed by the principle of coherence.37 The Lisbon Treaty follows a different method: on the one hand, CFSP and CSDP are the only substantive external policies, the provisions of which are laid down in TEU, as all the others are part of TFEU; on the other hand, all these are brought together under a common set of principles, aims, and objectives. The principles are set out in Article 21(1) TEU: The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principle of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

These are the very principles which the Union has sought to apply in its policies over the years. For instance, the enlargement process, the various rounds of which dominated the Union’s activities in the latter part of 1990s, was based on criteria 36

Art 17 TEU (Nice). Art 3 TEU (Nice) referred to the requirement of consistency regarding the activities carried out within the EU legal order. In relation to external relations specifically, in a second subparagraph it stated that the Union ‘shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies’.The Council and the Commission were responsible for ensuring that this requirement was met. 37

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for EU membership, some of which echo these principles.38 These principles also emerge as the main cornerstones of the Union’s security policy as this is set out in the European Security Strategy, a document endorsed by the European Council in December 2003.39 The reference to respect for the UN Charter and international law is noteworthy as it reflects the increasing emphasis on multilateralism, which has characterized the Union’s external policies ever more prominently since the terrorist attacks of 9 September 2001.40 The objectives of the EU’s external action are set out in Article 21 (2) TEU: (a) safeguard its values, fundamental interests, security, independence, and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f ) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or man-made disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance.

These objectives are remarkably broad: they are of a political, security, economic, and social nature, and cover activities within the entire range of what the EU may do under any of the legal arrangements set out in primary law. Furthermore, they include and build upon objectives that, from Maastricht to Amsterdam to Nice, were specifically related to the CFSP. Indeed, Article 21(2)(a), (b), (c), and (h) TEU builds upon the list of objectives set out in Article 11(1) TEU (Nice). Therefore, Article 21(2) is noteworthy both on structural and substantive grounds. In relation to the former, it brings together the different strands of the Union’s external policies (common commercial policy, development cooperation,

38 These were the criteria set out by the Copenhagen European Council in June 1993 and which included references to democracy, the rule of law and human rights (Presidency Conclusions, 21–22 June 1993). See further, Marise Cremona (ed), The Enlargement of the European Union (Oxford: OUP, 2003), and Christophe Hillion (ed), EU Enlargement—A Legal Approach (Oxford: Hart Publishing, 2004). 39 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). See the analysis in Ch 4. 40 See, for instance, COM (2003) 526 final The European Union and the United Nations: The choice of multilateralism.

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economic, financial, and technical development cooperation with third countries, humanitarian aid, restrictive measures, CFSP, and CSDP) within a single set of objectives. Therefore, the Lisbon Treaty appears to integrate the Union’s external policies within a system of policies governed by the same principles, and pursuing the same objectives.This theme of integration is also illustrated by the choice of the term ‘action’: referring to all the different policies as a whole, this refers not only to the visible outcome of the different policies, but also the singular focus of these policies. Throughout the process of European integration and the drafting of the relevant primary rules, semantics matter. In substantive terms, the formulation of the political and security objectives set out in Article 21(2) TEU is noteworthy in terms of their content as well as the extent to which they build upon pre-existing primary provisions. For instance, there is no reference to ‘common values’—the Union now has ‘its values’.This suggests a shift of focus from the aggregate of the values, which all the Member States share, to those that the Union itself possesses. While there is no ensuing change in substance, the removal of any reference to the constituent Member States denotes a new emphasis on the autonomy of the Union as an international actor.41 Furthermore, in Article 21(2)(c) TEU, for the first time, conflict prevention is added to the preservation of peace and the strengthening of international security, in acknowledgment of the wider scope of security and defence policy. Finally, in Article 21(2)(h) TEU, the Nice objective of promoting international cooperation becomes more focused in its direction, as it now refers to the promotion of an international system with reference to multilateralism and global good governance. On the one hand, this formalizes the thread that has underpinned the Union’s international policies quite distinctly in the last ten years and has been formulated in numerous policy documents.42 As far as the foreign and security policy objectives in particular are concerned, they appear vague and anodyne. It would be difficult to imagine any international actor that would not proclaim to adhere by them and would not include them in any of its mission statements.This vagueness further underlines the central role of the institutional players endowed with powers under Title V TEU and, ultimately, the Member States themselves, which are in control of the pace of developments in this area. As Article 21 TEU aims to bring clarity to the Union’s international action, to give it a commonality of purpose, and formalize threads which have already underpinned it as a matter of policy, it is couched in the language of integration, bringing the CFSP and CSDP rules closer to the other strands of EU external action. Put differently, the articulation of a set of common principles and objectives may appear

41 Art 11 TEU (Nice) already referred to the fundamental interests, independence, and integrity of the Union, as well as its security, which would be strengthened in all ways. 42 See, for instance, European Security Strategy—A Secure Europe in a Better World (Brussels, 12 December 2003), at 9 et seq., and Report on the Implementation of the European Security Strategy (Brussels, 11 December 2008).

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to normalize foreign and security policy: it seeks to remove it from the special position which its sensitive nature appeared to justify and its prior status in the pillar structure conveyed, and to render it an integral part of the diverse, albeit indivisible, whole, which the totality of the Union’s external policies form. However, the legal implications of this integration are far from clear. In particular, a question is raised as to how the CFSP/CSDP relate to these broad objectives.The Treaty itself, and in particular Title V TEU, provides two pointers: on the one hand, Article 23 TEU provides that the Union’s activities in the area ‘ . . . shall pursue the objectives’ set out in Article 21(2) TEU; on the other hand, under Article 24(1) TEU, ‘the Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence’. In the light of this, may the Union rely upon CFSP rules in order to adopt measures pursuing the entire range of objectives set out in Article 21(2) TEU? Or is there an inherent limit on the scope of these rules? Put differently, when Article 24(1) TEU confers on the Union the power to act ‘in all areas of foreign policy and all questions relating to the Union’s security’ in accordance with the rules laid down in Title V TEU, does it also include the economic and social objectives laid down in Article 21(2) TEU? The answer to this question should be negative. First, the wording, and context of the Lisbon Treaty leave no doubt as to the distinct normative position of CFSP and CSDP in the EU constitutional framework. The competence conferred upon the Union is qualitatively different from the competences covering the other areas of Union activity. Article 2(4) TFEU refers to the competence to carry out the CFSP as if it was a stand-alone competence, and the Lisbon Treaty maintains similarly distinct legal mechanisms for the exercise, management, and enforcement of this competence. Second, in historical terms, the pre-existing constitutional arrangements, from Maastricht to Amsterdam to Nice were clear as to the distinct nature of CFSP within the Union’s constitutional configuration, and the history and content of the Lisbon Treaty provide no indication of a rupture in this respect. In fact, the contrary is the case. Article 40 TEU suggests that the implementation of neither the CFSP nor the other policies covered by the Union’s other competences should affect each other. By elevating the CFSP to the special status and protection that the Community legal order was granted under the previous constitutional arrangements, the Lisbon Treaty stresses the distinct nature of the two types of policies and the competence which covers them. Third, the discussions at the European Convention, which preceded the drafting of the Treaty Establishing a Constitution for Europe, on which the Lisbon Treaty is based, suggest that the rationale of Article 21 TEU was not to render the CFSP competence of unlimited scope. Instead, it aimed to provide the Union’s international role with a sharper focus, and facilitate the substantive consistency of its

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external policies.43 It is for this reason, for instance, that Article 21(3) TEU refers expressly to the consistency not only between the different areas of the Union’s external action, but also between these and the Union’s other policies. Fourth, the terms ‘foreign policy’ and security, used in Article 24(1) TEU, are so broad, that, if interpreted literally, they would render the external policies governed by Part Five TFEU devoid of any substance, and the procedures for their implementation irrelevant. This is even more so in the light of the intense securitization which has characterized the conduct of the Union’s external policies recently.44 In the light of this, the scope of CFSP, and consequently of CSDP, must be understood as inherently limited to the pursuit of the political and security objectives laid down in Article 21(2) TEU.45 However, this conclusion must be viewed against a consideration of a practical nature. As the globalized international environment renders the economic and social objectives of external relations increasingly linked to political and security objectives, the interactions between measures pursuing these objectives are increasing, and there is a growing tendency in the Union, as well as other international players, to frame external policies in broad terms. Therefore, it must be accepted that, while the CFSP competence may only be used in order to pursue the political and security objectives laid down in Article 21(2) TEU, a rigid distinction between them and the other objectives laid down therein may be not only difficult to draw but also, in certain cases, impractical to maintain. The multiplicity of objectives is not only a matter of a fact, but also seems to be accepted by the architecture and wording of Article 21 TEU. However, this by no means suggests that all these objectives may carry the same weight in relation to a Union measure: a CFSP measure is required to have a different degree of congruence with its security and political objectives than with the economic and social ones. The question is how is this to be established, and how is the complex process to be monitored? This will be examined further in Chapter 8.

Instruments The CSDP is carried out on the basis of a range of CFSP instruments. The Treaty on European Union provided for a range of instruments especially designed for the 43 See, to this effect, G Grevi, ‘The Institutional Framework of External Action’, in Giulliano Amato, Hervé Bribosia, and Bruno de Witte (eds), Genesis and destiny of the European Constitution (Bruxelles: Bruylant, 2007), 773, at 784–5. 44 See the analysis in Ch 4. 45 As Eeckhout puts it, ‘there should be a footnote to Article 24(1) TEU stating that this provision applies only insofar as there is no other EU external competence’: ‘The EU’s Common Foreign and Security Policy after Lisbon: From Pillar Talk to Constitutionalism’, n33, at 290. See also Marise Cremona, ‘Defining competence in EU external relations—Lessons from the Treaty reform process’, in Alan Dashwood, and Marc Maresceau (eds), Law and Practice of EU External Relations—Salient Features of a Changing Landscape (Cambridge: CUP, 2008), 34, at 45–6; and Alan Dashwood, ‘Article 47 TEU and the relationship between first and second pillar competences’, in ibid, 70, at 102.

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CFSP. These included joint actions (measures of an operational nature), common positions (defining the EU’s position on a particular matter of a geographical or thematic nature), and common strategies (dealing with areas where the Member States had important interests in common).46 In addition, reference was also made to principles and general guidelines. In the name of this objective of simplification, this nomenclature was removed and replaced by decisions, a type of measure familiar in the light of other activities of the Union. Not all instruments relied upon in the context of CFSP are identified in the Treaties. For instance, the High Representative of the Union for Foreign Affairs and Security Policy, like foreign ministers of States, issues declarations and démarches regularly in order to express the position of the Union on a specific development in the world, but without seeking to produce binding legal effects.47 In addition, Title V TEU provides for a set of formal CFSP instruments, each of which purports to carry out a specific function. Article 25 TEU refers to the definition of the Union’s general guidelines, the adoption of decisions, and the strengthening of systematic cooperation between Member States in the conduct of policy. As far as the general guidelines are concerned, these are further implemented by means of Council decisions adopted under Article 26(2) TEU. An example of such a measure is provided by Council Decision 2012/421/CFSP in support of the Biological and Toxin Weapons Convention (BTWC), in the framework of the EU Strategy against Proliferation of Weapons of Mass Destruction.48 Article 25 TEU, then, distinguishes between three types of decisions. The first defines an action to be undertaken by the Union. These are measures of an operational character: the Union expresses its intention to act in a specific manner in order to tackle a specific situation which has arisen, and the Council adopts the relevant measures under Article 28 TEU. Such measures lay down the objectives, scope, and Union means, as well as the duration and conditions for their implementation; should a change in circumstances having a substantial impact on the subject matter of such action occur, the Council may review the principles and objectives of the decision in question. An example of such a measure is provided by Council Decision 2012/422/CFSP in support of a process leading to the establishment of a zone free of nuclear weapons and all other weapons of mass destruction in the Middle East.49 The measures establishing the Union’s CSDP missions are also such measures and are adopted on the basis of Article 28 TEU.

46 Arts 14–15 TEU (Nice). The various legal instruments of the CFSP as originally designed are distinguished in Denza, The Intergovernmental Pillars of the European Union (Oxford: OUP, 2002), 134–55. 47 See, for instance, the Declaration on the situation in the eastern Democratic Republic of the Congo (Brussels, 10 July 2012, 12422/1/12 REV 1, PRESSE 333), which expresses the concern of the EU at the rapidly deteriorating situation following the breakaway of the rebel M23 movement and the death of a UN peacekeeper, and which calls for an immediate end to all violence perpetrated by armed groups. 48 49 [2012] OJ L 196/61. [2012] OJ L 196/67.

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Second, the Union may adopt decisions defining its position on a particular matter. These do not require a particular action to be carried out by the EU institutions, and apply the general guidelines and strategic lines, as defined by the European Council, to a particular matter of a geographical or thematic nature.50 An example of such a measure is provided by Council Decision 2011/168/CFSP on the International Criminal Court.51 Third, the Union may adopt decisions defining arrangements for the implementation of decisions on an action to be undertaken or a position to be taken by the Union. The removal of joint actions, common positions, and common strategies from the Union’s visible armoury is viewed as ‘a major terminological simplification’.52 However, notwithstanding the assimilation of the title of CFSP instruments to that of measures relied upon in the other EU activities, this overview suggests that the set of formal instruments currently available in this area is identical to that laid down in the precursors to the Lisbon Treaty in all but name. The clarity of the clearly distinguished earlier forms of instrument has been replaced by a single title—and one moreover that is confusing since its intended legal effects are quite different from those of ‘decisions’ in other contexts. This raises the question, what was the purpose of the rebranding exercise that the Lisbon Treaty carried out in the area of CFSP instruments? It is recalled that one of the objectives of the long process, which led to the drafting of the Constitutional Treaty, as well as that of the Lisbon Treaty, was the simplification of the Union’s primary rules.53 Along with the abolition of the pillar structure, the abolition of CFSPspecific instruments appears to serve this objective. It also appears to bring the CFSP machinery closer to the rules governing the other EU external activities, hence suggesting the convergence of the different strands of EU external action. However, just as the abolition of the pillar structure removed the appearance of complexity while in reality merely submerging that complexity, so does the introduction of decisions in the CFSP framework. Similarly, the formal integration of sets of rules by no means ensures the substantive convergence of their legal effects.

Institutional and administrative framework There is a range of institutional actors whose role is central to the conduct of CSDP either directly or indirectly. Their role is not always clearly delineated, and

50

51 Art 29 TEU. [2011] OJ L 76/56. Bruno de Witte, ‘Legal Instruments and Law-Making in the Lisbon Treaty’, in Stefan Griller, and Jacques Ziller (eds), The Lisbon Treaty—EU Constitutionalism without a Constitutional Treaty? (Wien, New York: Springer, 2008), 79, at 90. 53 See the Declaration on the Future of the Union annexed to the Nice Treaty, n2, as well as the Laeken Declaration, n1. 52

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their interactions may give rise to legal, political, and practical difficulties.The institutional machinery of CSDP has been modified substantially by the Lisbon Treaty. In fact, the changes this introduces are viewed as being among its most significant achievements.

The European Council Over the years, the role of the European Council has become more prominent in the Union’s constitutional architecture. Once considered a political actor, potentially unsettling the institutional balance and the carefully calibrated decision-making principles of the Union,54 it has now become deeply embedded in the institutional life of the EU.55 The financial crisis facing the Union in the last few years has raised its profile and the general expectation for its more active involvement in tackling the problems of the eurozone as well as its real and over-arching powers. The Lisbon Treaty has underlined further the significance of the European Council for the Union’s external action in general and the CFSP/CSDP in particular.56 Article 22 (1) TEU reads as follows: On the basis of the principles and objectives set out in Article 21, the European Council shall identify the strategic interests and objectives of the Union. Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States. The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.

This provision endows the European Council expressly with decision-making power. In doing so, it provides for the adoption of a measure under the generic title ‘decision’ which, however, is neither a legislative, nor an implementing act.57 In fact, such decisions may carry out the function of common strategies, a CFSP instrument provided for in the pillar-based legal order58 to which the characteristics set out in Article 22 (1) subparagraph 3 allude.

54 See the concerns expressed early in Alan Dashwood, ‘Decision-making at the Summit, (2000) 3 CYELS 79. 55 See European Council Dec. 2009/882/EU of 1 December 2009 adopting its Rules of Procedure [2009], OJ L 315/51. 56 See Youri Devuyst, ‘The European Council and the CFSP after the Lisbon Treaty’, (2012) 17 EFARev 327. 57 See Paul Craig, The Lisbon Treaty—Law, Politics, and Treaty Reform (Oxford: OUP, 2010), 384. 58 See Art 13(2) TEU (Nice).

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Another feature illustrating the central role of the European Council is the introduction of the post of the President of the European Council. He is elected by the latter by qualified majority for a term of two and a half years, renewable once, in accordance with Article 15(5) TEU. In the light of the significant role of the European Council in CFSP, the relevance of the post of its President to the CSDP becomes immediately apparent. It is recalled that the introduction of this post was proposed by the United Kingdom Government, which was keen on the idea of strengthening the intergovernmental part of the EU at the expense of its supranational one.59 To his general duties, which Article 15(6) TEU sets out (to chair the European Council and drive forward its work, to ensure the preparation and continuity of its work, to facilitate cohesion and consensus within it, to present a report to the European Parliament after each of its meetings), there is one function which is particularly pertinent: The President of the European Council shall, at his 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.

The introduction of this post sought to address the growing need for the EU to be represented by a recognizable figure which would not change every six months, that is every time the Presidency rotates among Member States. In his autobiography, former British Prime Minister Tony Blair describes the failure of the then United States President George W Bush to recognize the then Belgian Prime Minister Guy Verhofstedt at a G8 meeting. Once Blair explained to him who he was, he had to address Bush’s query as to whether Belgium was a member of G8. When he heard that Verhofstedt represented the EU because Belgium held the Presidency, Bush responded by shaking his head and wondering aloud ‘You got the Belgians running Europe?’.60 Quite apart from the subtle and thoughtful way of thinking of the former United States President, this episode illustrates the power of personification for international actors such as the Union, an issue which will also be discussed in relation to the High Representative. The provision of Article 15(6) TEU is quite opaque and raises serious questions about the scope of the functions of the President of the European Council, as well as his impact on the management of the Union’s affairs. In fact, the Treaty on European Union in general and this provision in particular merely set out the canvass on which the Union’s leaders are expected to define the job description of this post and, therefore, to shape the extent to which its holder may influence the conduct of the EU’s foreign affairs. This issue will be explored in relation to the High Rep-

59 See Jonathan Powell, The New Machiavelli: How to Wield Power in the Modern World (London:Vintage, 2011), 257. 60 Tony Blair, A Journey (London: Hutchinson, 2010), 557.

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resentative. The first President is Herman Van Rompuy—he had been the Prime Minister of Belgium for nine months. His term was renewed in March 2012.

The High Representative of the Union for Foreign Affairs and Security Policy A main innovation of the Lisbon Treaty is the establishment of a post specifically catering for the Union’s foreign and security policy, namely that of the High Representative of the Union for Foreign Affairs and Security Policy. This is, in all but name, the post of the Foreign Affairs Minister established under the Constitutional Treaty. The choice of the rather inelegant name at Lisbon is due to the effort by the drafters of the Treaty to remove from the successor of the Constitutional Treaty any remnants of the constitutional nature of the document and, more importantly, any suggestion that its innovations would seek to duplicate functions of a sovereign State in a Union context.The term ‘Foreign Minister’ had connotations of aspiration towards statehood, which some Member States found intolerable, all the more so in the light of the negative referendums in France and The Netherlands. Once again, the drafters of the Treaty follow a pattern in dealing with what proves to be controversial, that is, by stripping it of its facade while maintaining its substance. The new post is not created in a legal and policy vacuum.The Amsterdam Treaty introduced the post of High Representative for the common foreign and security policy who was also the Secretary General of the Council.61 This role was considerably more clearly confined than that which was introduced at Lisbon. However, during the decade he was in office,62 its first and only holder, Javier Solana, worked with enthusiasm, imagination, and dynamism. His previous role as the Secretary General of NATO had given him considerable experience in international affairs as well as access to the highest level of government internationally.63 Under the Lisbon Treaty, the High Representative is appointed by the European Council by a qualified majority, and his term may end by the same procedure.64 His position in the Union’s institutional constellation is unique: on the one hand, he is a Vice President of the European Commission,65 and, on the other hand, he presides over the Foreign Affairs Council.66 The mandate of the High Representative reflects 61 Art 26 TEU (Amsterdam). On the background to the creation of the post and its current importance, see Eileen Denza, ‘The Role of the High Representative of the Union for Foreign Affairs and Security Policy’, in Hermann-Josef Blanke, and Stelio Mangiameli (eds), The European Union after Lisbon (Berlin: Springer, 2012), 481. 62 From October 1999 until December 2009. 63 See ‘Javier Solana: Europe’s diplomat-in-chief ’, The Economist, 8 April 2000, at 58. 64 Art 18(1) TEU. 65 Art 18(4) TEU. This explains the involvement of the Commission’s President in his appointment: Art 18(4) TEU stipulates that it is with the latter’s agreement that the High Representative is appointed by the European Council. 66 Art 18(3) TEU.

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the dual institutional status of the post. On the one hand, he ‘shall conduct the Union’s common foreign and security policy’;67 on the other hand, he is responsible within the Commission for ‘external relations and for coordinating other aspects of the Union’s external action’.68 In essence, the introduction of the post of High Representative aims to achieve two main objectives. The first objective is external: it is to provide the Union’s international role with a face, hence facilitating the contacts of the Union with its international partners, and ultimately raising its profile. The second objective is internal: it is about ensuring greater independence and coherence in external policy, being responsible for bringing together the different threads which underpin the different strands of the Union’s external policies.69 In relation to CFSP responsibilities, the brief is broad. First, the High Representative enjoys the right of initiative: either on his own, or with the Commission’s support, he70 may submit to the Council initiatives or proposals.71 This is a significant power because, to a certain extent, it enables the High Representative to shape the agenda. It is recalled that this right has rendered the European Commission a central player in policy-making in the Union legal order. However, there is no genuine parallel between these two contexts: the Commission’s power is exclusive and accompanied by procedural devices, which entrench its contribution to the legislative outcome,72 whereas the High Representative shares the right of initiative with all Member States and his contribution to the Council’s decision is dependent entirely upon the willingness of the latter to accept his proposals. His position as permanent Chair of the Foreign Affairs Council, however, may place him in a strategic position to steer the Council in the direction he wishes. Second, the High Representative enjoys executive powers, as he is entrusted with the implementation of CFSP. He carries out the policy as mandated by the Council, whose decisions, along with those of the European Council, he is responsible for implementing using national and Union resources.73 An important aspect of the job is to be involved in the ways in which Member States choose to discharge of their duties under Title V TEU. The High Representative coordinates with the Ministers for Foreign Affairs of the Member States within the Council in relation to a common approach adopted by the latter,74 and is responsible for the 67

68 Art 18(2) TEU. Art 18(4) TEU. On coherence on the basis of the Lisbon arrangements, see Marise Cremona, ‘Coherence in EU Foreign Relations Law’, and Simon Duke, ‘Consistency, coherence and EU external action: the path to Lisbon and beyond’, in Panos Koutrakos, European Foreign Policy—Legal and Political Perspectives (Cheltenham: E Elgar Publishing, 2011), 55 and 15 respectively. 70 The Treaty uses ‘he’ throughout in relation to post holders. 71 Art 30(1) TEU. This is a right which he shares with any Member State. This right is also set out in the context of CSDP (Art 42(4) TEU). 72 See Art 17(2) TEU. Under Art 294(9) TFEU, the Commission’s negative opinion on proposals by the European Parliament in the context of the ordinary legislative procedure may be bypassed by the Council only unanimously. 73 74 Art 26(3) TEU. Art 32 TEU. 69

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organization of the coordination of Member States action in international organizations and at international conferences.75 He is also kept informed of any matter of common interest by Member States represented in international organizations or international conferences where not all Member States participate.76 Third, the High Representative is responsible for the international representation of the Union. He carries out political dialogue with third countries and international organizations on the Union’s behalf and expresses the Union’s position in international organizations and at international conferences.77 Furthermore, in cases where the EU has defined a position on a subject to be discussed at the United Nations Security Council, the High Representative is invited by those Member States which sit on it to present the Union’s position.78 Fourth, the High Representative is responsible for the management of the Union’s foreign and security policy. He has the power, of his own motion, or at the request of a Member State, to convene an extraordinary Council meeting in cases requiring a rapid decision within 48 hours or, in an emergency, within a shorter period.79 It is his proposal which triggers the process of the appointment of a special representative by the Council in relation to a particular policy issue and it is under his authority that such representatives act.80 It is also on the basis of his proposal that the Council established, by qualified majority, a start-up fund made up of Member States’ contributions for CSDP tasks.81 And in cases where a decision by qualified majority at the Council is not possible because a Member State invokes vital and stated reasons of national policy, he will search for a solution acceptable to that State.82 In the area of CSDP, not only is the High Representative involved in the management of the tasks entrusted to a group of Member States which are willing and have the necessary capabilities,83 but it is also under his responsibility, along with that of the Council, that the Political and Security Committee exercises the political control and strategic direction of the EU crisis management operations.84 He interacts with the European Parliament, which he ‘shall regularly consult’ and the views of which he ‘shall ensure that . . . are duly taken into consideration’.85 In discharging of these responsibilities, the High Representative is assisted by the European External Action Service (EEAS).86 Crucially, the High Representative is mandated with monitoring the application of the principles which constitute a conditio sine qua non for the Union’s foreign and security policy. He is responsible for ensuring that the Member States comply with their duties under Title V TEU, mainly ‘to support the Union’s external and security 75

Art 34(1) TEU. Art 34(2) TEU, which also refers specifically to Member States which participate in the UN Security Council. 77 78 Art 27(2) TEU. Art 34(2), third subpara TEU. 79 80 81 Art 30(2) TEU. Art 33 TEU. Art 41(3) TEU. 82 83 84 Art 31(2), subpara 2 TEU. Art 44(1) TEU. Art 38, subpara 2 TEU. 85 86 Art 36 TEU. Art 27(3) TEU. 76

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policy actively and unreservedly in a spirit of loyalty and mutual solidarity’ and ‘to refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations’.87 He is also responsible for ensuring ‘the unity, consistency, and effectiveness of action by the Union’.88 In relation to both of these, he shares his responsibilities with the Council. In the area of CSDP in particular, the High Representative, under the authority of the Council and interacting with the Political and Security Committee, is responsible for ensuring coordination of the civilian and military aspects of the EU tasks.89 The introduction of the post of High Representative was heralded as an innovation central to the effectiveness of the EU foreign policy. A former Commissioner, Günter Verheugen, referring to the post of Foreign Minister, which had been provided for by the Constitutional Treaty, argued that its holder ‘may not yet provide the proverbial single telephone number for European foreign policy, but the office is exceedingly powerful . . . The position is so strong that individual Member States will find it very difficult to resist the pressure’.90 The influence resulting from the chairmanship of the Foreign Affairs Council is also an important element in policy formation. It was in part the need for the personification of the Union’s international role which led to the introduction of the new post and the enhancement of its powers. As for the various institutional hats of the High Representative, they were viewed as contributing to enhancing the coherence of the Union’s actions. In the words of the then British Foreign Secretary David Miliband, ‘the double-hatting, or the merger of the two posts into a single post, is a worthwhile reform . . . two people doing one job is not a very sensible way of proceeding. [The new post is] therefore […] a sensible rationalisation’.91 The expectations from the introduction of the new post were high. For instance, in August 2008, the then French President Nicolas Sarkozy argued during the Russia–Georgia war that, had the Lisbon Treaty been in force, the Union would have had the institutions and tools which would have enabled it to act decisively and exert its influence.92 This innovation does appear to clarify the somewhat opaque institutional and legal framework of CFSP: it seeks to bring together different strands of EU external relations, to define their common threads, to streamline the process of policy-shaping and to bring clarity to the international representation of the Union. Viewed from this angle, the provision for a High Representative is potentially a constructive suggestion. However, to some extent the revamping of the post was more about the façade of clarity and less about substantive, policy-oriented changes aiming to render the different strands of the Union’s foreign policy into a cohesive whole.There are a number of reasons which justify this scepticism. 87

88 89 Art 24(3) TEU. Art 26(2), subpara (2) TEU. Art 43(2) TEU. Mentioned in James Rogers, ‘From “Civilian Power” to “Global Power”: Explicating the European Union’s “Grand Strategy” Through the Articulation of Discourse Theory’, (2009) 47 JCMS 831, at 854. 91 UK House of Commons Select Committee on Foreign Affairs, (2007–2008) Third Report, Foreign Policy Aspects of the Lisbon Treaty, Question 506. 92 Le Figaro, 18 August 2008. 90

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First, while construing the High Representative’s mandate in broad terms, there is very little in Title V TEU about its scope. For instance, it is not clear whether, in addition to his function in the CFSP area, he is also expected to take over all the responsibilities previously held by the external relations Commissioner. Neither is it clear whether he would also take over the responsibilities of all other portfolios involved in external relations, such as humanitarian aid.93 This is determined in practice in the light of various considerations, not least practical (the portfolio of the High Representative must be manageable by one holder of the post), and political (the understanding of the Member States and the President of the Commission).The latter factors are in themselves subject to continuous redefinition, as they reflect shifts in political power in both the EU institutions and the Member States. Another significant factor is also the personality of the post holder: a dynamic, energetic, and independent-minded High Representative would gradually render the post a focal point for the overall EU external action, whereas a timid and cautious one would contribute to its narrow construction and, over time, its diminishing stature. It follows that the legal provisions setting out this purportedly central innovation leave its construction subject to inherently indeterminate factors to be settled by political agreement and by practice. Second, the institutional affiliations of the High Representative raise questions of both institutional loyalty and substantive efficiency. The issue of the authorization for the negotiation of an international agreement illustrates this clearly. Article 218(3) TFEU provides that the High Representative, rather than the Commission, would recommend that the Council authorize the opening of negotiations of international agreements in areas where the subject matter of the agreements relates exclusively or principally to the CFSP. This is consistent with the logic of the distinct competence with which the EU is endowed under the current constitutional arrangements in the areas of CFSP and external economic relations. It is also consistent with the central role, which the Treaty appears to bestow upon the High Representative. However, this new provision of the Lisbon Treaty by no means makes it easier to determine whether an agreement is principally about CFSP, or whether it is about other aspects of the Union’s external action though having peripheral CFSP implications. In fact, the very question of the delimitation between the CFSP and other external policies has given rise to considerable inter-institutional disputes for which the appetite of the EU institutions has by no means waned and in which the case law of the Court has been somewhat unhelpful.94 It is 93

See Editorial, ‘Mind the gap!’, (2008) 45 CMLRev 317. See Case C-91/05 Commission v Council (re: ECOWAS) [2008] ECR I-3651, and Case C-403/05 Parliament v Commission (re: Philippines borders) [2007] ECR I-19045. See Panos Koutrakos, ‘The nexus between development and CSDP’, in Anthony Arnull, Catherine Barnard, Michael Dougan, and Eleanor Spaventa (eds), A Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Oxford: Hart Publishing, 2011), 589. The relevant case law will be analysed in Ch 8. Turf wars between the EU institutions are by no means confined to the delimitation of CFSP from other external policies: for the case law on trade and environment, see Panos Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’, in Marise Cremona and Bruno de Witte (eds), EU Foreign Relations Law— Constitutional Fundamentals (Oxford: Hart Publishing, 2008), 171. 94

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regrettable (though predictable given the sensitivity of the issue in intergovernmental negotiations) that a post intended to bring clarity and coherence to the EU’s external policies is defined in such unclear terms as to feed further the interinstitutional tensions which have marred these policies. Third, in relation to the international representation of the EU, the High Representative shares the stage with a number of other actors, the most important being the President of the European Council. Given the opacity of the Treaty provisions setting out the functions of both, their definition is bound to be subject to a range of mainly political and practical considerations.95 Indeed, prior to the appointment of the first President of the European Council, a protracted debate took place as to the type of job which the Member States wanted. The then French President Sarkozy stated that ‘there are two different theories out there: should we choose a strong and charismatic president, or a president who facilitates the search for a consensus position, and who organises the work of the Council?’.96 In relation to CSDP in particular, there appears to be no clear dividing line between the functions of the President of the European Council and the High Representative. Indeed, the wording of Article 15(6) TEU suggests that the international representation of the Union is still not envisaged to be the responsibility of just one actor. Therefore, far from endowing the EU’s external action with clarity and ensuring its coherence, the post of the High Representative as set out in the Treaty on European Union, is but work in progress. Its precise terms are left to be determined as a matter of practice by its holder and the various actors with whom the post holder interacts and competes for power and influence. The latter should not be underestimated: the choice of person for each post is bound to have an impact on the effectiveness of the other, and the relationship of their holders would have profound implications for the character of both posts.97 In other words, it is their ability and willingness to delineate their role in the area of foreign policy which would assess the genuine contribution of the post to the effectiveness and coherence of EU foreign policy.Viewed from this angle, primary law merely sets out the legal framework in broad terms within which the political actors are expected to put flesh on an arrangement, which would reflect their understanding of managing foreign policy. While indicative of acute political awareness on behalf of the drafters of the Treaty, this approach can by no means justify any grand claims about the introduction of the post of the High Representative and its implications for the effectiveness of the Union’s foreign policy. 95 In addition, Declaration 6 on Articles 15(5) and (6), 17(6) and (7), and 18 TEU provides that, in the process of choosing the holders of the posts of the European Council President, the Commission President and the High Representative, due account should be taken of the need to respect the geographical and demographic diversity of the Union and its Member States. 96 Interview in Le Figaro, 15 October 2009. 97 ‘[I]f the president is a big-hitter whose name opens doors in Beijing and Washington, he will surely overshadow his rival’: The Economist, 10 October 2009, at 56.

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As if the uncertainty and the scope for inter-institutional wrangling, as outlined, are not enough, there is also a third actor which may compete for a role, namely the President of the Commission. Article 17(1) TEU provides that, ‘[w]ith the exception of the common foreign and security policy, and other cases provided for in the Treaties, the Commission shall ensure the Union’s external representation’. As the dividing line between the CFSP and other policies has become increasingly blurred, a dynamic and ambitious Commission President may find it difficult to resist turf wars with his Vice President, whose allegiances also lay with the Council. Furthermore, it must be stressed that the rotating Presidency chairs all Council meetings, except for those of the Foreign Affairs Council, which are chaired by the High Representative, and as well as the Council Working Groups, which in reality resolve all but the most intractable differences. So in practice the Presidency retains an important influence in external policy-making. Furthermore, the conviction that it is the introduction of the new post that would give the Union a single voice is at best questionable and at worst bizarre.This is all the more so in the light of the extraordinary complexity in which the function of this post is shrouded. Menon wonders ‘[w]ho really believes that particularly the larger member states would call this individual prior to dealing with Washington or Beijing?’.98 The scepticism about the grand claims made in relation to the institutional innovation at Lisbon has not been dissipated in practice.The first holder of the post of High Representative is Baroness Catherine Ashton.99 Prior to her appointment, she was Trade Commissioner for a year and had started her political career in the United Kingdom as the Head of a regional Health Authority. Her selection by the European Council did not fill the hearts of either the Union’s citizens or its international interlocutors with unbridled excitement. Given her lack of experience in international affairs, low profile, and the public horse trading between the Member States and the European Parliament, which preceded her appointment, the latter appeared rather underwhelming. However, it is worth pointing out that the relationship between the High Representative and the European Council President, as well as the Commission President, with all the uncertainty and problems to which the opacity of the relevant Treaty provisions give rise, is essentially dynamic in nature. The balance of powers established by the appointment of their first holders by the European Council is far from static: the performance of the relevant actors, the changing dynamics in political power in Europe, the direction of the Union, and the international geopolitical developments, may all be reviewed and assessed in ways which may entail a different institutional constellation in the governance of the Union’s foreign affairs in general and CSDP in particular.

98 99

Anand Menon, Europe—The State of the Union (London: Atlantic Books, 2008), 195. European Council Dec. 2009/880/EU [2009] OJ L 315/49.

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Baroness Ashton has been attacked consistently over what has been perceived as lack of enthusiasm and a low profile. She has also argued with national governments about her proposal for a 5.8% increase in the budget of the EEAS for 2012.100 At this juncture, suffice it to observe that the first High Representative has taken very little interest in CSDP. In her speech in April 2011 to the European Parliament on the main choices on CFSP and CSDP, Baroness Ashton referred to security and defence only once and only in relation to a small military operation of very narrow scope in Libya, which has never actually been launched101 and which she viewed as an indication of ‘how far we have come’.102

The European External Action Service The establishment of the European External Action Service (EEAS) was viewed at the time as ‘one of the most significant changes introduced by the Treaty of Lisbon’.103 Aiming to assist the High Representative by working in cooperation with the diplomatic services of the Member States, the EEAS consists of Commission and Council officials, as well as diplomats seconded from the Member States.104 The introduction of the EEAS was not uncontroversial—in the United Kingdom, for instance, the then Conservative Shadow Foreign Secretary William Hague (now Foreign Secretary) saw it as yet another illustration of ‘a power grab by the EU’.105 In some circles, the establishment of the EEAS was vilified as likely to reduce national embassies to irrelevance and foreshadow their closure.106 In order to dispel such scepticism, the establishment of the EEAS was mentioned in Declaration 13 on the common foreign and security policy as one of the developments which ‘do not affect the responsibilities of the 100 This was described by the then UK Minister for Europe David Lidington as ‘somewhat ludicrous’: Financial Times, 24 May 2011, at 8. 101 Council Decision 2011/210/CFSP of 1 April 2011 on a European Union military operation in support of humanitarian assistance operations in response to the crisis situation in Libya (EUFOR Libya) [2011] OJ L 89/17, repealed by Council Decision 2011/764/CFSP of 28 November 2011 [2011] OJ L314/35. 102 Press Release A 179/11 (Brussels, 11 May 2011), at 3 (the entire phrase is as follows: ‘Or take Libya. There are members of this house who wish that the EU had a stronger defence and security policy. I say to them this—in the last weeks and months we’ve seen how far we have come in some ways, but in this, how far we have to go’). In December 2011, Baroness Ashton delivered a speech on CSDP in particular, the main theme of which was the need for the EU to use the financial crisis as a driver for closer cooperation (Press Release A 512/11, Brussels, 13 December 2011). Countering the charge levelled at the EU for ‘CSDP fatigue’, she claims that ‘2011 has been a year of intensive work on CSDP with concrete results and ending with comprehensive, forward-looking Council conclusions’. The latter refers to the CSDP Conclusions of the Foreign Aff airs Council of 1 December 2011 (17991/11), which referred to synergies between Member States, the latter and EU institutions, and the EU and NATO. See also Jolyon Howorth, ‘The “New Faces” of Lisbon: Assessing the Performance of Catherine Ashton and Herman van Rompuy on the Global Stage’, (2011) 16 EFARev 303. 103 Council Conclusions of 26 April 2010 (8967/10), at 8. 104 105 Art 27(3) TEU. The Daily Telegraph, 3 May 2008. 106 See, for instance, the debate at the House of Lords on 30 April 2009: HL Deb, 30 April 2009, c326 et seq.

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Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations’. In essence, the idea of the EEAS is sensible, as it is intended to provide a focal point for the EU as an international actor, to make coordination easier, and to foster a culture of cooperation between officials from Member States and the EU institutions.107 However, not for the first time, the Lisbon Treaty was silent on the specifics about the Service’s function: the distribution of posts among the Council, the Commission, and the Member States; the scope of the policies it oversees; the definition of the lines of authority between the Union institutions involved; and its precise role in the conduct of the Union’s foreign affairs were all left for subsequent resolution among the Member States and the institutions. Against this blank canvas, the organization and management of the EEAS provided the playground for the kind of inter-institutional disputes which its establishment had purported to address. Quite how broad the scope for the EU’s actors and the Member States to shape the EEAS was became apparent by the early and intensive work in which they engaged even before the Lisbon Treaty was ratified.108 In fact, it had already started, following the conclusion of the Constitutional Treaty. After the Commission established a steering group, the High Representative Solana and the Commission President presented a joint progress report.109 The European Parliament asked for the clarification of the Service’s function repeatedly, suggesting that it be part of the Commission, and that joint training programmes be organized.110 In addition, various non-papers were circulated by different countries expressing different views on the establishment and role of the service: the BENELUX countries suggested it should have a separate legal personality, a broad scope for its activities, funding from the EU budget, and a sui generis nature which would ensure its association with both the Council and the Commission without being part of either;111 Poland argued for the status of an executive agency, half the personnel of which would come from Member States, and which, at some point would even become a common visa application centre.112

107 See, among others, Bart Van Vooren, ‘A legal-institutional perspective on the European External Action Service’, (2011) 48 CMLRev 475. 108 This was provided for in Declaration 15 on Article 27 TEU which states that, ‘as soon as the Treaty of Lisbon is signed, the Secretary-General of the Council, High Representative for the common foreign and security policy, the Commission and the Member States should begin preparatory work on the European External Action Service’. 109 Doc 9956/05, CAB 24, RELEX 304 of 9 June 2005. 110 See, for instance, P6_TA(2005)0205 [2006] OJ C 117E/232. 111 The document, entitled ‘Mise en œuvre du traité de Lisbonne’ was probably leaked and became available online (see, for instance, http://bruxelles2.over-blog.com/article-37152063.html/ (last accessed on 7 December 2012)). 112 The two page-long paper was dated 5 October 2009 (http://euobserver.com/9/28851), (last accessed on 25 October 2012). See also Financial Times, 9 October 2009, at 8.

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Two particularly controversial issues arose at a later stage of the negotiations. The first was about development cooperation and the various financing instruments which it covers, such as the Development Cooperation Instrument and the European Development Fund: should it be integrated in the tasks entrusted to the EEAS, or should it become a distinct and autonomous policy within the Union’s external action? The Commission was hostile to the former, as it felt that it would undermine its powers as set out in Article 17(1) TEU: these include the Union’s external representation, with the exception of the common foreign and security policy, the execution of the budget and the management of programmes, and the exercise of coordinating executive and management functions as laid down in the Treaties.These are sensitive matters: their resolution touches upon issues of efficiency and effectiveness, practical considerations (the development budget is very considerable), as well as institutional powers deeply entrenched through successive rounds of Treaty amendments. The proposal made by the High Representative in March 2010 suggested the integration of development policy in the functions of the EEAS, and turned out to be controversial.113 Most non-governmental organizations viewed it as a Trojan horse, which would undermine both the integrity of development policy and the powers of the Commission.114 The Parliament, on the other hand, was keen not only to avoid the contamination of the Community (now Union) method, which governs development cooperation by the intergovernmental features of the EEAS, but was also keen to increase its leverage in the conduct of the EU’s external action by intervening directly on the funding of the Service, and the appointment of Heads of Delegation. The input of the Parliament turned out to be the second controversial issue as, in addition to the above, the only directly elected Union institution was keen to underline the political accountability of EEAS and ensure that the latter would not be diluted by the management structure of the Service. One of the issues about which it felt strongly was to ensure that the person deputizing for the High Representative before the Parliament would be politically accountable, and not an official. In order to appreciate its role in the establishment of the EEAS, it must be stressed that, while required only to be consulted on the establishment of the Service,115 the Parliament had to give its consent to the amendments of the Staff and Financial Regulations, which were necessary for the EEAS to become operational. Therefore, not for the first time following the introduction of the Lisbon Treaty, the Parliament was in a position to flex its muscles.116 113

8029/10 (Brussels, 25 March 2010). See, for instance the press statement of 26 April 2010 issued by CIDSE, Oxfam International, APRODEV, CONCORD, EUROSTEP, and One International (www.concordeurope.org/Files/ media/0_internetdocumentsENG/5_Press/1_Press_releases/5_Press_releases_2010/MEDIA-STATEMENT-on-EEAS--26-04-2010---EN.pdf), (last accessed on 25 October 2012). 115 Art 27(3) TEU. 116 See its rejection of the EU–US SWIFT Agreement in February 2010, as well as its attack against the Anti-Counterfeiting Trade Agreement (ACTA), which led the Commission to refer its legality to the Court of Justice under Art 218(11) TFEU in February 2012 (Opinion 1/12, pending). ACTA was rejected nonetheless by the Parliament on 4 July 2012. 114

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Following intense inter-institutional haggling, the final outcome, set out in Decision 2010/427/EU establishing the organization and functioning of EEAS,117 follows the logic of integrating development within the EEAS functions. However, it does so through a very delicate and complex balancing exercise. The High Representative is responsible for the coordination between all the EU financial instruments, but the management of these programmes remains under the responsibility of the Commission,118 and the EEAS shall ‘contribute to the programming and management cycle’ of these instruments, and shall be responsible for ‘preparing Commission decisions on the strategic, multi-annual steps within the programming cycle’.119 All proposals are to be prepared following Commission procedures, and the role of the Commissioner responsible for development is pronounced; for instance, in relation to the European Development Fund and the Development Cooperation Instrument in particular, that is the programmes involving the majority of the development policy budget, both the EEAS and the Commission are to make any proposals under the supervision of the Development Commissioner.120 Furthermore, the High Representative adopted a Declaration on political accountability in which she sets out the practicalities of her interactions with the Parliament.121 These include an exchange of views with newly appointed Heads of Delegations to countries and organizations which the Parliament considers strategically important (while the latter had argued originally, and rather unrealistically, for exchanges with all Heads of Delegations). It also provides for the person who would deputize for the High Representative before the Parliament, namely a Commissioner or a minister from the rotating Presidency (or the trio Presidencies) depending on the subject matter of discussion. Whether the compromise outlined above is workable remains to be seen.122 At this juncture, suffice it to point out its vague language, the complex arrangements it sets out, and its underlying effort to strike the balance between competing claims to influence by interacting Union institutions. While understandable for practical reasons and political expediency, this compromise cannot hide the fact that its success in practice depends on too many variables: the willingness of the Union institutions to take a leap of faith and cooperate in order to make the policies in which the EEAS participates truly coherent: the personality of the relevant post holders and their ability to navigate their way through the compromises enshrined in Decision 2010/427/EU and the vague language in which these are couched. Another consideration to be taken into account is the response of diplomats of Member States. Both Article 27(3) TEU and the Decision refer to the cooperation of the EEAS with the diplomatic services of the Member States. How easy will it 117

118 [2010] OJ L 201/30. [2010] OJ L 201/30, Art 9(1) and (2). 120 [2010] OJ L 201/30, Art 9(3). [2010] OJ L 201/30, Art (4). 121 [2010] OJ C 210/1, and [2010] OJ C 217/12. 122 See Simon Duke, ‘A difficult birth: the early days of the European External Action Service’, in Panos Koutrakos, The European Union’s External Relations a year after Lisbon, 2011/3 CLEER Working Papers, 69. 119

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be for the missions of the big Member States to share information, given that their foreign policy stature depends on it, and that the Lisbon provisions on Common Foreign and Security Policy enable them to retain their foreign policy role? Is it not likely that the big Member States would view the new Service as a potential rival, whereas the small Member States would see themselves as overshadowed by the big ones, given the influence of the latter in shaping foreign policy?123 The introduction of the EEAS is an eminently sensible innovation. Its benefits may be both tangible (to facilitate the gathering of information, streamline the conduct of different external activities, enhance coordination between both the EU services and national administrations and coherence between the relevant policies124) and intangible (to foster a culture of cooperation between officials from Member States and the EU institutions, establish a framework within which a common language will be gradually developed and shared). Its effective functioning of EEAS is a process which is bound to take time and constant adjustment.125 Decision 2010/427/EU provides for the first review of the organization and functioning of the EAAS by mid-2013, which may be accompanied by proposals for the revision of the Decision.126 However, the legal and policy issues, which its functioning raises within the multilayered system of foreign aff airs set out in the Union’s primary rules, are formidable.

The European Parliament The European Parliament is not mentioned at all in relation to CSDP in the Treaty. Its role in CFSP in general has been traditionally limited. Article 36 TEU sets it out as follows: The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament. The European Parliament may address questions or make recommendations to the Council or the High Representative. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.

123 See Michael Kluth and Jess Pilegaard, ‘The Making of the EU’s External Action Service: A Neorealist Interpretation’, (2012) 17 EFARev 303. 124 See Simon Duke, ‘The European External Action Service: Antidote against Incoherence?’, (2012) 17 EFARev 45. 125 See Stephen Brockmann, The European External Action Service one year on: First signs of strengths and weaknesses, CLEER Working Papers 2012/12, at 37. 126 Art 13(3), n117.

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It follows from this that the Parliament does not have an automatic right for consultation on all CFSP measures adopted by the Council. This limited formal input has to be viewed in the light of three considerations. First, the Parliament has been one of the big winners in the constitutional reordering introduced by the Lisbon Treaty. Its powers in the area of EU external action have been increased considerably, along with its confidence and its willingness to flex its new muscle.127 Second, the assertive approach of the Parliament to foreign affairs also became apparent in the process of the drafting and adoption of Council Decision 2010/427/ EU establishing the organization and functioning of EEAS.128 This was accompanied by a Declaration by the High Representative on political accountability, which sets out the practicalities of the interactions between the High Representative and the European Parliament.129 Among others, these include an exchange of views prior to the adoption of mandates and strategies, enhanced and more regular briefings about missions funded by the EU budget and the need for beefed-up arrangements for access to and handling of confidential information, not least related to CSDP missions. Third, the limited powers bestowed on it in the CFSP/CSDP area notwithstanding, the Parliament has one strong instrument through which to exercise pressure in the area and ensure that its views are heard by the decision-makinginstitutions. This is its role in the budget of the EU and, therefore, the financing of CFSP and CSDP activities.This is examined further in Chapter 3. At this juncture, suffice it to point out the prominent position of financing in the Declaration by the High Representative on Political Accountability.

The Council and Commission While Title V TEU provides for no direct involvement of the European Commission in the shaping and conduct of CSDP, its indirect involvement is not without interest. Quite apart from contributing one third of the personnel of EEAS, it is responsible for the implementation of the Union budget.130 This enables it, along with the Parliament, to have an impact which would not be immediately apparent from the wording of the CFSP provisions. Most importantly, however, the indirect impact of the Commission is felt in the light of its prominent role in policy areas such as development cooperation, the conduct of which has become increasingly central to CSDP activities over the years. This book will elaborate on this, as it will 127 See Ricardo Passos, ‘The European Union’s external relations a year after Lisbon: a first evaluation from the European Parliament’, in Panos Koutrakos, The European Union’s external relations a year after Lisbon, CLEER Working Papers 2011/3, 49. For the role of the Parliament in EU external relations more generally, see Daniel Thym, ‘Parliamentary Involvement in European International Relations’, in Marise Cremona and Bruno de Witte (eds), EU Foreign Relations Law (Oxford: Hart Publishing, 2008), 201. 128 See n117. 129 130 [2010] OJ C 210/1 (and corrigenda in [2010] OJ C 217/12). See Art 137 TFEU.

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show the gradual widening of the notion of security and the emergence of substantive links with a number of other fields the institutional configuration of which differs from that set out in Title V TEU.131 As for the Council, it is the main decision-making actor in the area, and its role is set out in the following section.

Decision-making procedures In the area of CFSP generally, the rule of unanimity prevails.132 This applies to CSDP too. In accordance with Article 42(4) TEU, the High Representative of the Union for Foreign Affairs and Security Policy makes a proposal to the Council, which then adopts the relevant decisions unanimously. In addition, any Member State has the right to take the initiative for the adoption of a Council decision. The proposal by the High Representative may recommend the use of both national resources and EU instruments. There is reference to decision-making twice in Section 2 of Title V TEU: first, in Article 42(4) TEU in relation to decisions relating to CSDP, and then in Article 43(2) TEU in relation to decisions relating to the specific tasks set out in Article 43(1) TEU. While compounding the sense of repetition which one gets by reading this part of Title V TEU, this is not due to careless drafting. Instead, the latter case is rather a lex specialis, as the specific function of the relevant decisions requires a prescriptive determination of their essential features, namely the definition of their objectives, scope, and general conditions for their implementation. It must be recalled that, in the area of CFSP, Article 31(1)–(3) TEU provides for certain exceptions from the unanimity rule. These may be divided into three cases. The first follows from the logic of implementation, and suggests that a Council measure may be adopted by a qualified majority if it is related to another measure which has already been agreed upon unanimously.133 To that effect, the following situations are envisaged: a decision defining a Union action or position on the basis of a European Council decision relating to the EU’s strategic interests and objectives; a decision defining a Union action or position pursuant to a proposal by the High Representative, which has been submitted upon a specific request from the European Council; and a decision implementing another decision defining a Union action or position. Second, special representatives are appointed by qualified majority.Third, Article 31(1) TEU provides for constructive abstention: any Member State may abstain, 131

See the analysis in Ch 4, as well as that of specific CSDP operation and missions in Chs 5 and 6. Art 31(1) TEU. 133 This is not a novelty introduced at Lisbon: the Maastricht Treaty which established the EU enabled the Council to define the aspects of a joint action, which could be implemented by measures adopted by qualified majority (Art J.3(2)), and permitted measures implementing common strategies to be adopted by qualified majority in the Council. 132

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and may even qualify its abstention by making a formal declaration, the effect of which would be to exempt the State in question from the requirement to apply the decision, while accepting its binding effects on the Union.134 There has been one case of abstention so far: Cyprus abstained from the adoption of the CSDP measure setting up the EU mission in Kosovo in 2008.135 It is recalled that, following the precedents set out in the Amsterdam136 and Nice versions of the TEU,137 there is an ‘emergency brake’ for the use of qualified majority voting: in cases where a Member State relies upon ‘vital and stated reasons of national policy’ and expresses its intention to oppose the adoption of a decision under that procedure, a vote shall not be taken.138 The Lisbon amendment differs from the previous Treaties in two respects. First, by requiring reliance upon ‘vital and stated’, rather than ‘important and stated’, reasons of national policy, it appears to set the bar higher for the use of the emergency brake. Second, it provides a more elaborate procedure for the ensuing impasse to be addressed: the High Representative is to search for a solution acceptable to the Member State involved and in close consultation with it; in case this does not prove to be fruitful, the Council may decide by qualified majority to refer the matter to the European Council for a unanimous decision. Article 31(2) subparagraph 2 TEU clearly suggests that a derogation from the qualified majority exception should be construed very narrowly, and that every effort should be made for a mutually agreeable solution to be found. However, neither the tighter wording, nor the procedural framework set out therein can prevent a Member State from abusing it. The foreign policy nature of the decisions involved, the inherently exceptional circumstances in which a State would deem reliance upon it politically convenient, and the domestic political reflexes, which the loss of veto in foreign policy invariably provokes, all suggest that no effective mechanism for regulating the use of an emergency brake is set out in the Treaty. And no such mechanism may be set out in primary law, other than a political framework within which the institutional actors of the Union may reach a compromise.Viewed from this angle, the wording of Article 31(2) subparagraph 2 TEU is significant in terms of semantics, rather than substance: it conveys the message that the exceptional provisions for qualified majority voting should not be riddled with further unnecessary exceptions.

134 Art 31(1) TEU also provides that ‘[i]n a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision, and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted’. 135 Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 42/92. 136 Art J.3(2) TEU (Amsterdam). 137 138 Art 23(2) TEU (Nice). Art 31(2), subpara 2 TEU.

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In a step further towards the use of qualified majority, the Lisbon Treaty views the above exceptions from the unanimity rule as a non-exhaustive list. However, there is a serious caveat: under Article 31(3) TEU, the European Council may decide unanimously that the Council shall act by a qualified majority in cases other than those referred to in Article 31(2) TEU. However, not all of this is relevant to the CSDP, as Article 31(4) TEU introduces a rule of exclusion: the exceptions regarding implementing measures, the appointment of special representatives, and the possibility of extension of qualified majority decision-making by the European Council ‘shall not apply to decisions having military or defence implications’. On the other hand, the rule about constructive abstention set out in Article 31(1) TEU does apply.

Conclusion Both the Lisbon Treaty and the process which led to its drafting and entry into force are underpinned by a strong emphasis on the façade of the Union’s constitutional architecture. The CSDP is central to this process not only in the light of its topicality and the importance attached to it by the EU leaders as a matter of principle, but also given its position in a pillar the disappearance of which the main political actors are keen to stress. The analysis in this chapter suggests that all this exercise in constitutional reordering does not alter the unique position of CSDP within the new configuration. The central role of the Member States and the fundamentally intergovernmental characteristics of the relevant rules emerge as a constant theme of the evolving legal framework governing security and defence. Therefore, the general tenor of the Lisbon amendments may be couched in the language of integration (of sets of rules, instruments, institutional functions), but the distinct position of CSDP is not altered. What is striking about the new institutional mechanisms available to CSDP is the conviction held deeply by the leaders of the Member States as well as the EU institutions that their absence was responsible for the underwhelming effect of the Union’s foreign policy and, accordingly, that their introduction would place the Union in its well-deserved place at the very centre of the world stage. The analysis of the wording, context, and implications of the new arrangements suggests that such expectations are wildly exaggerated. The new provisions of the Treaty about the High Representative, for instance, or the European External Action Service merely provide a wide canvas on which the Member States and the EU institutions may shape their functions and ensuing impact. In doing so, the political realities, practical exigencies, and inter-institutional rivalries, which have always affected the conduct of the Union’s foreign policies, are as prominent as ever. This is borne out by the story of the negotiation of Council Decision 2010/427/EU establishing the organization and functioning of EAAS. That is not to say that inter-institutional tensions are the preserve of the EU: one does not need to be a fan of Yes Minister

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and Yes, Prime Minister to appreciate the debilitating effect of intense infighting between Government Departments seeking to protect their turf and increase their powers.139 However, their impact is bound to be felt more acutely in a context within which institutional reform is viewed as the main answer to increasing political influence on the international scene. This is all the more so given the opaque wording of the provisions introducing the new institutions. The approach of the European leaders to the Lisbon amendments discussed in this chapter suggests a deeply entrenched belief in the role of institutions and, consequently, the effectiveness of the sets of rules and procedures which govern their conduct and interactions. This may be explained in the light of the deeply institutionalized framework of the TEU and its precursors since the mid-1950s, as well as the significance of law in the development of this framework and the ensuing progress of European integration. After all, Europe has been described as ‘the most institutionalized part of the world’.140 And as Weiler points out, ‘[i]n some ways, Community law and the European Court were everything an international lawyer could dream about: the Court was creating a new order of international law in which norms were norms, sanctions were sanctions, courts were central and frequently used, and lawyers were important’.141 However, foreign policy in general and security and defence policy in particular are areas where a traditional institutionalist approach with heavy emphasis on legal procedures may be less effective than in policies pertaining to the establishment of the internal market. This is all the more so given its diverse origins and troubled history, explained in Chapter 1.The challenges raised by the nature of CSDP will also be explored in Chapter 3, which focuses on the substantive TEU provisions on CSDP. 139 See the analysis by Jonathan Powell, the Chief of Staff of former British Prime Minister Tony Blair, in The New Machiavelli: How to Wield Power in the Modern World. 140 Barry Buzan and Ole Waever, Regions and Powers—The Structure of International Security (Cambridge: CUP, 2003), 352. 141 Joseph HH Weiler, The Constitution of Europe (Cambridge: CUP, 1999), 205–6.

3 The substantive and institutional framework of Common Security and Defence Policy

Introduction The analysis in Chapter 2 approached the Common Security and Defence Policy from the perspective of its position within the wider constitutional framework of Common Foreign and Security Policy (CFSP). This chapter will focus on the specific substantive and institutional provisions governing the CSDP and the ways in which these provisions distinguish it from the other strands of the Union’s external action.

Scope and activities The scope of CSDP is defined in Article 42(2) TEU as follows: The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

Compared to the precursors to the Lisbon Treaty, this provides a considerably tighter, more firm formulation, which reflects the increasing significance that the Member States place on the role of the policy and confidence in its construction. These are suggested in a number of ways: the tone is decidedly more committal (note that the Nice Treaty provided that the ESDP ‘might’ lead to a common defence), the wording firmer (the Nice qualification ‘should the European Council . . . so decide’ is replaced by ‘when’), and the emphasis on the Union nature of the new policy inescapable (whereas at Nice reference was made generally to a ‘common defence policy’). However, the temptation to read too much into the semantics of the evolution of the wording of primary law should not be indulged without qualification: in its preamble, the Treaty on European Union maintains

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the less-committal Nice formulation, a discrepancy which appears in all language versions of the Treaty.1 However, this is not to suggest either that the emerging policy should be viewed in isolation, or that national policies will be ignored.This is illustrated by the second subparagraph of Article 42(2) TEU which reads as follows: The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realized in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.

There are six EU Member States which are not NATO members, namely Austria, Finland, Sweden, Ireland, Malta, and Cyprus.2 However, it is not just their special status that Article 42(2) TEU seeks to protect. The broad wording of this provision suggests a ‘catch-all clause’3 aiming to accommodate the security and defence considerations prevailing in different Member States. In fact, these qualifications are significant because they tell us something about the general tenor of the CSDP, that is, its inherently limited function, its narrow reach, and the centrality of the Member States whose right to make the fundamental choices about their defence is not called into doubt. This central aspect of the character of the policy is underlined further by the largely repetitive wording of Declarations 13 and 14, concerning the common foreign and security policy annexed to the Lisbon Treaty. The objectives of the CSDP are outlined in Article 42(1) TEU as ‘peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’. This provision also refers specifically to ‘missions outside the Union’. The operations carried out by the EU prior to the entry into force of the Lisbon Treaty had all been carried out outside the Union, many in far-flung places.4 Protection of the territories of the Member States is seen as the primary responsibility of NATO. The tasks pursuant to which the EU carries out its CDSP objectives are set out in Article 43(1) TEU, and cover

1 The French version states that CFSP ‘conduira à une défense commune’ (Art 42(2)), while in the preamble it provides that is stated it ‘pourrait conduire à une défense commune’. The same discrepancy appears in the Greek version of the Treaty. 2 Following the adoption of the Nice Treaty, the Irish Constitution was amended in order to include the following clause: ‘[t]he State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the [Nice] Treaty ...where that common defence would include the State’ (Art 29.4.9). On the origins and differences of the neutral status of these countries, see Eileen Denza, The Intergovernmental Pillars of the European Union (Oxford: OUP, 2002), 347–50. 3 Ben Tonra and Patrick Keatinge, European Security and Defence Policy and the Lisbon Treaty (Dublin: The Institute of International and European Affairs, 2009), para 28. 4 The Aceh Monitoring Mission was carried out in Indonesia (Council Joint Action 2005/643/CFSP [2005] OJ L 234/13).

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– joint disarmament operations, – humanitarian and rescue tasks, – military advice and assistance tasks, – conflict prevention and peacekeeping tasks, – tasks of combat forces in crisis management, including peace-making and postconflict stabilization. Not only is this a non-exhaustive list, as Article 43(1) TEU provides that the CSDP ‘shall include’ these tasks, but it also covers activities which are mentioned in primary law for the first time. The Nice Treaty referred to humanitarian and rescue tasks, peacekeeping tasks, and tasks of combat forces in crisis management, including peacemaking.5 These were known as the Petersberg tasks since they were adopted by the Western European Union in June 1992 at the Hotel Petersberg, near Bonn.6 Therefore, the references to conflict prevention and the strengthening of international security are new, as are the provisions for joint disarmament operations, military advice and assistance tasks, conflict prevention, and post-conflict stabilization. However, Article 41(3) TEU merely formalizes past practice, as the Brussels European Council in 2004 had already extended the original Petersberg Tasks.7 The scope of the tasks laid down in Article 43(1) TEU is quite wide and ranges from the softer end of the spectrum (such as joint disarmament operations and humanitarian tasks) to the harder end of security, which would include the engagement of combat forces.8 However, the definitions are quite vague and ambiguous.9 This makes them both challenging to distinguish with any degree of accuracy, and inherently malleable so as to grant Member States considerable flexibility when they consider how to act in a given situation. At this juncture, and in relation to the tasks in the harder end of the security spectrum, suffice it to point out that crisis management refers to ‘the organisation, regulation, procedural frameworks and arrangements to contain a crisis and shape its future course while resolution is sought’, and post-conflict stabilization refers to ‘actions meant to address the root causes of crises that have been resolved’.10

5

Art 17(2) TEU (Nice). Petersberg Declaration by WEU Council of Ministers (Bonn, 19 June 1992) (http://www.weu. int/documents/920619peten.pdf), (last accessed on 25 October 2012). The WEU ceased to exist on 30 June 2011. 7 Presidency Conclusions, Brussels European Council (17–18 June 2004). 8 See Sebastian Graf Von Kielmansegg, ‘The Meaning of Petersberg: Some Considerations on the Legal Scope of ESDP Operations’, (2007) 44 CMLRev 629. 9 See Simon Duke and Aurélie Courtier, ‘EU Peacebuilding: Concepts, Players and Instruments’, in Steven Blockmans, Jan Wouters, and Tom Ruys (eds), The European Union and Peacebuilding—Policy and Legal Aspects (The Hague: TMC Asser Press, 2010), 15, at 21–30. 10 See Steven Blockmans and Ramses Wessel, ‘The European Union and Crisis Management:Will the Lisbon Treaty Make the EU More Effective?’, (2009) 14 Journal of Conflict and Security Law 265, at 269, who also point out that ‘“crisis management” means, in the EU context, a catch-all phrase for both military and civilian ESDP operations, whether they are deployed to prevent the conflict from bursting into crisis, assist in enforcing the peace, keep the peace or build the peace’, at 70. 6

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The introduction of Article 42(1) TEU follows the pattern of previous amendments of the Treaties in the area of foreign and security policy, which have formalized existing arrangements already relied upon by the relevant actors.This underlines further the heavy policy focus and the unique nature of the challenges in the area, which lead the EU institutions and Member States to act on the basis of pragmatic considerations and arrangements irrespective of whether they are enshrined in primary legal rules. A further indication of the wider construction of CSDP under Lisbon is provided by the linkage between all the above tasks and terrorism: under Article 43(1) TEU, ‘[a]ll these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories’. This reference broadens further the scope of activities which the Union may carry out under its CSDP umbrella. From a policy point of view, the anti-terrorism dimension has been a central feature of the Union’s external policies since the terrorist attacks of September 11, 2001. The European Security Strategy mentions it first in the list of ‘key threats’ facing the Union, which are ‘more diverse, less visible and less predictable’.11 As one of the tenets of this document is the multiplicity of instruments which the Union must use in order to tackle these threads,12 it states that, ‘[a]s we increase capabilities in the different areas, we should think in terms of a wider spectrum of missions.This might include joint disarmament operations, support for third countries in combating terrorism and security sector reform.The last of these would be part of broader institution building’.13 Furthermore, in the 2008 Report on the Implementation of the European Security Strategy, terrorism features prominently as a global challenge and key threat, and the Union’s security and defence policy are referred to as a considerable tool in the Union’s armoury.14 Therefore, the wording of Article 43(1) TEU formalizes a link which has been acknowledged as a matter of policy for some time. Quite how this link has been translated in the context of the specific CSDP operations will be examined later in this book.15 Viewed in more general terms, the broad wording of the CSDP objectives in Article 42(1) TEU and the CSDP tasks in Article 43(1) TEU does not only suggest a more ambitious and confident security and defence policy for the Union, but also acknowledges the central role of the Member States in the definition of this policy. These provisions of the Lisbon Treaty appear to set out a broad canvas on which the Member States may draw the policy they want the Union to carry out, define its

11

A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), at 3. In relation to terrorism in particular, it points out that it ‘may require a mixture of intelligence, police, judicial, military and other means’ (A Secure Europe in a Better World—European Security Strategy, at 7). 13 A Secure Europe in a Better World—European Security Strategy, at 12. The acknowledgment of a counter-terrorism dimension has by no means been confined to security and defence: see CC Murphy, EU Counter-Terrorism Law—Pre-Emption and the Rule of Law (Oxford: Hart Publishing, 2012). 14 Report on the Implementation of the European Security Strategy—Providing Security in a Changing World (S407/08, Brussels, 11 December 2008). 15 See Chs 5 and 6. 12

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reach, and stress its limitations. Whichever way they decide to proceed, they may shift the focus of the policy in order to be able to tackle different challenges while taking into account their own interests. After all, the wording in which the CSDP objectives and tasks are expressed suggests a security and defence policy which is not confined by strict categorization.

The duties of Member States Member States in the area of CFSP have three basic obligations. The first is a general loyalty obligation set out in Article 24(3) TEU, which reads: 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 provision suggests a twofold duty: a positive duty to take action in accordance with the Union’s policy, and a negative duty not to engage in behaviour which would run counter to the Union’s action. The reference to ‘political solidarity’ is noteworthy, and raises the question whether its definition is as imprecise as might appear at first sight. In its second subparagraph, Article 24(3) TEU deals not with the definition of the term, but rather its development: The Member States shall work together to enhance and develop their mutual solidarity.They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.

Compliance with these principles is for the High Representative of the Union for Foreign Aff airs and Security Policy and the Council to ensure. The second indent of the provision appears to be in the wrong place: it belongs rather to the first subparagraph of Article 24(3) TEU as it highlights the negative dimension of the general obligation, which EU law imposes on Member States in the area of foreign and security policy. As for the reference to mutual solidarity, the duty imposed by Article 24(3) subparagraph 2 TEU (‘shall’) is at best irrelevant and at worst superfluous. It is difficult to envisage how political solidarity may be developed pursuant to a legally binding obligation imposed by primary law. Involving a community of states, each of which may have differing foreign policy interests but all of which are committed to respecting these interests and finding common ground for action, political solidarity is unlikely to emerge from the application of legal obligations. Rather, it is the outcome of a constantly evolving process of understanding and osmosis, which is brought about gradually, incrementally, and often indirectly and imperceptibly. What legal rules and procedures, such as these set out in Title V TEU, may do is to contribute to a culture of cooperation among Member States, which is central to the development of political solidarity.

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The second obligation imposed on Member States is also general in its scope and is about consultation. It is set out in Article 32 TEU which reads as follows: Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.

The provision for a duty to consult may appear unnecessary in the context of Title V TEU. After all, consultation is an essential component of the duty of Member States to support the Union’s external policy and, as such, it follows from Article 24(3) TEU. However, the specific provision for consultation is explained by two considerations. First, historically, since the very first efforts to formalize its conduct, consultation was central to European foreign policy. Indeed, the European Political Cooperation Reports set out principles about consultation, and the very first elaboration of foreign policy rules in primary law, namely the Single European Act, had a specific provision on the matter.16 Therefore, specific reference to cooperation is explained in historical terms. Second, this provision of Article 32 TEU acknowledges that EU foreign policy may not replace national foreign policies, and that a common policy does not amount to a single policy. In essence, what underpins these distinctions is the existence of distinct national interests in the foreign policy sphere—as a common policy cannot replace them, the Treaty sets a forum within which consultation would either achieve their convergence, or manage their differences. In this respect, the wording of Article 32 TEU is noteworthy: it is ‘the convergence of [the Member States’] actions’ which will make the Union ‘able to assert its interests and values on the international scene’. This makes consultation all the more significant. Viewed from this angle, by articulating consultation as a distinct duty, the Treaty acknowledges that the definition of the common foreign and security policy is the outcome of a continuous, and incrementally evolving process of establishing a culture of cooperation between Member States with different, and therefore at times differing, foreign policy interests. What is noteworthy, nonetheless, is the broad wording of Article 32 TEU, which, if applied literally, could be seen as imposing a considerable constraint on independent action by the Member States.17

16 The SEA provided that the ‘High Contracting Parties undertake to inform and consult each other on any foreign policy matters of general interest so as to ensure that their combined influence is exercised as effectively as possible through co-ordination, the convergence of their positions and the implementation of joint action’ (Art 30(2)). See the analysis in Ch 1. 17 See Eileen Denza, ‘Lines in the Sand: Between Common Foreign Policy and Single Foreign Policy’, in Takis Tridimas and Paolisa Nebbia (eds), European Union Law for the Twenty-First Century—Rethinking the New Legal Order Vol 1 (Oxford: Hart Publishing, 2004), 259, at 269–70.

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The third duty which is imposed on Member States is specific and relates to specific CFSP instruments. Article 28(2) TEU provides that decisions defining actions to be undertaken by the Union ‘shall commit the Member States in the positions they adopt and in the conduct of their activity’. As for decisions defining the approach of the Union to a particular matter of a geographical or thematic nature, Member States ‘shall ensure that their national policies conform to the Union positions’.18 In addition to the above, the Treaty also refers expressly to the diplomatic missions of the Member States in third countries and at international organizations: along with the Union delegations, they ‘shall cooperate and shall contribute to formulating and implementing the common approach’.19

Means CSDP activities are carried out on the basis of resources provided by the Member States. This is mentioned twice, first in Article 42(1) TEU where the CSDP tasks are first outlined, and then in Article 42(3) TEU, which refers to both civilian and military capabilities. It is not only this emphasis on national resources which is noteworthy, but also the wording which the Treaty drafters chose: the CSDP tasks ‘shall’ be undertaken pursuant to national capabilities, and Member States ‘shall’ make the latter available to the Union. This duty imposed on the Member States is in contrast to their position in the context of establishing multinational forces— under Article 42(3) TEU, the latter ‘may also make them available to the common security and defence policy’. The duty on Member States to provide the Union with capabilities is accompanied by another related duty, namely to ‘undertake progressively to improve their military capabilities’.20 In addition, it imposes a duty on Member States to ‘make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council’.21 However, this provision ought to be examined in its proper context. On the one hand, while suggesting a degree of impetus in this area, the duty imposed on Member States is vague in its scope, and silent in its implications. Most importantly, it needs to be considered in the light of the numerous reminders in the Treaty and its attached Declarations that the Member States remain responsible for the organization of their defence.22 Viewed from this angle, the provision of Article 42(3) subparagraph 2 TEU is more interesting at the level of semantics, rather than substance. In any case, compliance with it is not to be viewed in isolation; instead, it is linked to the European Defence Agency whose role is outlined in this context.23 18 21 22 23

19 20 Art 29 TEU. Art 32, subpara 3 TEU. Art 42(3), subpara 2 TEU. Art 42(3), subpara 2 TEU. See, for instance, Declarations 13 and 14 concerning the common foreign and security policy. EDA will be analysed in detail in Ch 9.

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Administrative structure and planning of CSDP operations and missions A distinct administrative structure has developed for the design and conduct of CSDP, the significance of which has increased over the years. The Political and Security Committee (PSC) is established under Article 38 TEU and comprises ambassadors representing the Member States, along with representatives of the European Commission, the Council Secretariat, and the European Military Committee.24 Its function is quite broad. On the one hand, it acts as the ‘ear and eye’ of the Union’s foreign policy institutions: it monitors international developments; delivers opinions to the Council, at the request of the latter or of the High Representative or on its own initiative; and monitors the implementation of agreed policies. On the other hand, it is responsible for the political control and strategic direction of the operations and missions carried out under Article 43 TEU. In this context, it acts under the direction of the Council and of the High Representative. The Council may authorize the Committee to take the necessary decisions for the purpose of and throughout the duration of a crisis management operation, such as the re-appointment or replacement of the Operation Commander. The European Military Committee (EUMC) is the highest military body established within the Council.25 Its purpose is to give military advice and make recommendations to the Political and Security Committee, and to provide military supervision of the European Union Military Staff. It is composed of the Member States’ Chiefs of Defence, who may be represented by military alternates, and it meets as and when necessary. Its Chairman attends meetings of the Council when defence issues are discussed. The EUMC also exercises its responsibility for the military direction of the mission through the EU Operation Commander—that is an officer appointed in the first instance by the Council who is responsible for the proper execution of the mission and is answerable to the EUMC to which he reports regularly. The Military Staff of the European Union (EUMS) consists of military personnel seconded from the Member States, and is part of the General Secretariat of the Council.26 Its function is to perform early warning, situation assessment, and strategic planning for CSDP missions and tasks. In doing so, it is involved in the implementation of decisions by the European Union Military Committee. Its tasks are multiple: it is responsible for intelligence gathering and input; it is active in the area 24

The PSC was set up under Council Dec. 2001/78/CFSP [2001] OJ L 27/1. Council Dec. 2001/79/CFSP [2001] OJ L 27/4. 26 Council Dec. 2001/80/CFSP [2001] OJ L 27/7, amended by Council Dec. 2005/395/CFSP L 132/17. The rules applicable to the officers seconded from the Member States are set out in Council Dec. 2001/496/CFSP [2001] OJ L 181/11 amended by Council Dec. 2002/34/EC [2002] OJ L 15/29. 25

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of defence capabilities;27 and it is responsible for liaison and coordination with NATO. There are two units within the EEAS, which are responsible for CSDP in particular. The Crisis Management and Planning Directorate carries out the politicalstrategic planning and review of CSDP civilian missions and military operations, and the Civilian Planning and Conduct Capability is responsible in particular for civilian missions. Decision-making by the Union institutions in the area of CSDP draws upon the constant interactions among these bodies. Following the Nice European Council in December 2000, these issued a number of documents seeking to streamline crisis management procedures.28 The decision-making process in a case where the Union envisages carrying out an operation or a mission starts when the Political and Security Committee agrees on a crisis management concept drafted by the Crisis Management Planning Directorate on the basis of advice by both the Committee for Civilian Aspects of Crisis Management (CIVCOM) and the EU Military Committee.This is the document that assesses the situation on the ground, articulates the political objectives of the EU’s intervention, and proposes a course of action. The crisis management concept is submitted to the Permanent Representatives Committee (COREPER) and the Council. The Committee on Civilian Planning and Conduct Capability and the EU Military Staff then develop civilian and military strategic options respectively, aiming to achieve the objectives set out in the Crisis Management Concept as approved by the Council. Following comments by the Committee for Civilian Aspects of Crisis Management and the EU Military Committee, a decision is drafted by the PSC outlining the various options and is submitted to COREPER and the Council. This is the point when the Council makes a policy choice as to the type of intervention the Union should make, that is, between a military operation or a civilian mission.29 This choice is set out in a Decision adopted under Articles 28 TEU, 42(4) TEU, and 43(2) TEU. Such a Decision establishes the operation or the mission, appoints the Operation Commander or the Head of Mission, and sets out the financial arrangements about the cost of the operation or mission. In addition, the Council also determines at this juncture whether, in the case of a military operation, recourse should be had to NATO assets and capabilities pursuant to the arrangements agreed upon in 2003 and known as Berlin Plus.30 27 It contributes to the elaboration, assessment, and review of the capabilities, goals, and works in close coordination with the European Defence Agency in identifying and listing European national and multinational forces for EU-led operations. 28 See, for instance, 11127/03 Suggestions for procedures for coherent, comprehensive EU crisis management (Brussels, 3 July 2003). 29 See Annex IV to the Nice European Council Conclusions (7–9 December 2000), and were then annexed to Joint Action 2001/78/CFSP [2001] OJ L 27/1. 30 See Ch 5.

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The next step of the planning phase is about the drafting of the operational planning documents. As far as military operations are concerned, there are two steps. The first consists of the drafting of an Initiating Military Directive, which is drafted by the European Military Committee on the basis of advice by the European Military Staff , which elaborates on the Council Decision establishing the operation and provides military guidance to the Operation Commander. The second phase is about the Concept of Operations (CONOPS), which sets out the manner in which the Operation Commander is expected to fulfil the mission, and the Operation Plan (OPLAN), which sets out the details of the conduct of the operation, required forces, support elements, transportation, and rules of engagement. Both documents, as well as the Initiating Military Directive, are drafted by the EU Military Committee, and approved by the PSC and the Council. As far as civilian missions are concerned, the CONOPS is developed by the Committee on Civilian Planning and Conduct Capability prior to the adoption of the Council decision establishing the mission. As for the OPLAN, this is drafted by the Head of Mission and approved by the Committee on Civilian Planning and Conduct Capability. Both documents are approved by the PSC and by the Council. There is another process, which is carried out while the operation planning documents are developed, and determines the specific resources that will be required for the mission to be launched. This involves the organization of force generation conferences where Member States pledge assets and capabilities upon which the EU may rely in order to launch the mission.31 While the planning phase of the conduct of military operations and civilian missions diverge, there are increasing similarities between them, just as there is also emphasis on civilian–military coordination. This is illustrated by the establishment of a Civilian–Military Cell within the EU Military Staff,32 aiming, among others, to plan and manage EU military operations in cases where a military–civilian initiative is necessary. This process is not carried out on the basis of a strict sequence, nor does its application adhere to a specific deadline. For instance, it took the EU institutions three weeks to establish Operation Artemis in the Democratic Republic of Congo,33 while Operation ALTHEA in Bosnia and Herzegovina was established after a 10-month process had been completed.34 The picture that emerges so far suggests the deep institutionalization of the conduct of CSDP, the latter being carried out on the basis of constant interactions

31 See Committee for Civilian Aspects of Crisis Management, 8276/09 Draft guidelines for improving Force Generation for civilian ESDP missions (Brussels, 1 April 2009). 32 Brussels European Council, 12–13 December 2003, Presidency Conclusions, para 90. 33 Joint Action 2003/423/CFSP [2003] OJ L 143/50. 34 Joint Action 2004/570/CFSP [2004] OJ L 252/10.

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between a wide range of administrative bodies.35 Given the sensitive nature of the security and defence policy and the early preoccupation of Member States to avoid even the appearance of allowing the European integration to impinge on national security, it is quite remarkable that one should come across so many officials in military uniform milling around the Justus Lipsius building in Brussels. While military bodies consist of national officials, their common background and shared esprit de corps are instrumental in establishing a culture of cooperation in CSDP planning. Empirical work carried out on the EU Military Committee, for instance, suggests that it functions as a cohesive body that has developed informal working methods and aims to provide pragmatic solutions to planning issues.36 Such views are not confined to the military bodies of the CSDP structure. Empirical research carried out by political scientists reach similar conclusions in relation to PSC and points out the culture of genuine negotiation and compromise which has prevailed over the years.37 It has been argued that the PSC: […] has developed into a multiplier of social influence, both through informational influence as well as peer pressure. It has managed to manufacture consent and broker compromises even in areas where national strategic norms would initially indicate incompatibility [and] remains one of the most important idea transmission belts within a gradual Europeanisation of national foreign, security and defence policies.38

Given the central role of PSC in the design and conduct of CSDP, this finding reflects more generally on the institutional and administrative structure of the policy. In fact, it is this type of institutional osmosis which may contribute in practice to the gradual development of a shared understanding which is vital for the conduct of CSDP. The deep institutionalization of CSDP and the development of a culture of cooperation between its administrative bodies comprising national officials highlight the organizational autonomy of the policy. On the one hand, it has grown organically from the Common Foreign and Security Policy of which it is an integral part, as the Treaty of Lisbon expressly affirms for the first time.39 On the other hand, it has become more visible as a distinct component of CFSP, a feature which is reflected by its autonomous administrative structure and the development of its working methods. This adds a different dimension to the fundamentally intergovernmental character of the policy.40 There is no doubt that the latter is determined 35 See Simon Duke, ‘Peculiarities in the Institutionalisation of CFSP and ESDP’, in Steven Blockmans (ed), The European Union and Crisis Management—Policy and Legal Aspects (The Hague: TMC Asser Press, 2008), 75. 36 Mai’a K Cross, Cooperation by Committee: the EU Military Committee and the Committee for Civilian Crisis Management (Paris: The Institute for Security Studies: Occasional Paper, 2010), 82. 37 See Ana Juncos and Christophe Reynolds, ‘The Political and Security Committee: Governing in the Shadow’, (2007) 12 EFARev 127. 38 Christoph O Meyer, The Quest for a European Strategic Culture: Changing Norms on Security and Defence in the European Union (London: Palgrave Macmillan, 2006), 136–7. 39 Art 42(1) TEU. 40 See also Daniel Thym, ‘The Intergovernmental Constitution of the EU’s Foreign, Security and Defence Executive’, (2011) 7 European Constitutional Law Review 453.

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by the political will of the Member States and their own interests, which are expressed pursuant to intergovernmental mechanisms. The intense proceduralization of the legal and political space within which these interests are expressed and the culture of cooperation which it generates introduce a degree of subtle and gradual convergence in decision-making. The distinct role of CSDP, as described, is also reflected by the unique manner in which its design has developed over the years.This has been based on Presidency Conclusions following European Council summits, which have articulated the main tenets, concepts, goals, and administrative functioning of the policy. Finally, Article 42(3) second subparagraph TEU establishes an intergovernmental body responsible specifically for military capabilities. This is the European Defence Agency (EDA), which is to operate in the area of defence capabilities, development, research, acquisition, and armaments.41

Mutual assistance clause For the first time in the Union’s constitutional history, the Lisbon Treaty introduces a mutual assistance clause. This is laid down in Article 42(7) TEU, and reads as follows: 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. Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

This clause imposes a duty on Member States, the scope of which appears to be very broad:‘by all the means in their power’, therefore envisaging military support by way of collective self-defence. The caveats which are set out are broad too, as they relate to compliance with international law,42 the neutrality of certain Member States, and the fundamental choices about security and defence made by Member States in relation to NATO.This formulation of the mutual assistance clause is entirely consistent with the tenor of CSDP, and the balance that it seeks to strike between the security and defence choices made by the individual Member States and the common policy, which it envisages for the Union.43 41

See also Art 45 TEU. The EDA is examined in Ch 9. According to Art 51 UN Charter, ‘[n]othing 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’. 43 See, for instance, Art 42(2), subpara 2 TEU. 42

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However, the question which Article 42(7) TEU raises is how far are Member States required to go in order to comply with their duty of solidarity, and might there be a question of enforcement of this duty? Its wording implies that military means constitute merely one option open to a Member State when it examines how to comply with its duty. It also suggests that compliance with the mutual assistance clause depends on the subjective assessment of a Member State as to how best it may assist another Member State, which is a victim of armed aggression on its territory. This assessment is subject to multiple considerations, including those of a political and economic nature. Such inherently indeterminate criteria do not lend themselves to a mechanism of verification or control. There can be no agreed assessment mechanism as to whether, for instance, military means should be relied upon by all Member States. After all, the EU is not a military alliance, and the mutual assistance clause does not render it one.44 Therefore, comparisons between Article 42(7) TEU and the mutual defence clauses laid down in Article V of the Brussels Treaty45 or Article 5 of the NATO Charter46 are misplaced.47 This is not to imply that the provision of Article 42(7) TEU is not significant. On the one hand, it is a specific illustration of political solidarity, one of the main pillars of CFSP as laid down in Article 24(3) TEU. As such, it may appear merely to state the obvious. However, when it comes to the Union’s foreign policy, the obvious often needs to be stated. It is recalled that, when Greece claimed that its territorial integrity was undermined by Turkey in the Imia incident in December 1995, and Spain made a similar claim regarding Morocco in the Leila incident in July 2002, their fellow Member States failed woefully to provide any substantial support

44 See also Jean Claude Piris, The Lisbon Treaty—A Legal and Political Analysis (Cambridge: CUP, 2010), 275. See also Panos Koutrakos, ‘The law in Common Security and Defence Policy: functions, limitations, and understandings’, in Panos Koutrakos (ed), The Foreign Policy of the European Union—Legal and Political Aspects (London: Edward Elgar Publishing, 2011), 235. 45 This provided that,‘[i]f any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power’. The Treaty was terminated (after a long period of near-death) in 2010, with effect on 30 June 2011. 46 This reads as follows: ‘The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security’. The clause was formally invoked for the first time in response to the terrorist attacks of September 2001 against the US. 47 But see the statement to the contrary by Open Europe in the House of Lords Select Committee Twelfth Report The Treaty of Lisbon: An Impact Assessment (HL 62-II) C35.

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in terms of political solidarity, let alone assurances about military assistance.48 It is against this background that the mutual assistance clause must be understood. On the other hand, the interpretation of the mutual assistance clause is subject to continuous redefinition: the development of CSDP and political solidarity in general, and of common structures of military capabilities in particular, is bound to have an impact on how far Member States would be prepared to go in order to assist a Member State under attack. There is another function of the mutual assistance clause that is noteworthy: against the various CSDP missions, which are carried out in far-flung places and export EU values to third parties, it renders the CSDP relevant to the Union’s citizens in a much more direct manner. In other words, it bolsters a sense of belonging by reaffirming the solidarity between Member States. However, its practical significance should a crisis occur is another matter altogether. In addition to the mutual assistance clause set out in Article 42(7) TEU, there is a new solidarity clause in Article 222 TFEU. Its first paragraph reads as follows: The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to: (a) - prevent the terrorist threat in the territory of the Member States; - protect democratic institutions and the civilian population from any terrorist attack; - assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.

In addition to the Union, the other Member States are also required to assist a Member State under terrorist attack or a victim of a natural or man-made disaster if so requested by its political authorities.49 The threats facing the Union are assessed regularly by the European Council in order to ensure that both the Union and its Member States can take effective action.50 The solidarity clause has a clear security and defence dimension.This is apparent from the reference to the military resources of the Member States, and is acknowledged by its procedural provisions: according to Article 222(3) TFEU, the Council decides on the arrangements for the implementation of the clause following a joint proposal by both the Commission and the High Representative; where this decision has defence implications, it will be adopted by unanimity in accordance with Article 31(1) TEU, with the European Parliament being kept informed;51 and the 48 See Jörg Monar, ‘The CFSP and the Leila/Perejil Island Incident: The Nemesis of Solidarity and Leadership’, (2002) 7 EFARev 251. 49 50 Art 222(2) TFEU. Art 222(4) TFEU. 51 This implies that, in the absence of defence implications, decisions are adopted by a qualified majority.

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Council is assisted by the Political and Security Committee, along with the CSDP structures including the EU Military Committee and the EU Military Staff.52 The core of the solidarity clause could well have been placed in Title V TEU. In fact, it is striking that there is no reference to terrorism in the mutual assistance clause in Article 42(7) TEU. After all, it is recalled that terrorism features prominently in the European Security Strategy53 as well as the 2008 Report on its implementation.54 On the other hand, the reference to Article 222 TFEU illustrates the broader understanding of security, which now informs the Union’s activities, and establishes a link with the European Security Strategy as the latter, even when the Union was based on the tripartite pillar structure, emphasized the need for a combination of a broad range of instruments.55 The significance of the reference to terrorism, as well as the solidarity clause itself, is illustrated by the European Council’s Declaration on Combating Terrorism. Adopted in response to the terrorist attack in Madrid in March 2004, the Declaration refers expressly to the precursor to Article 222 TFEU in the Constitutional Treaty.56 It refers to the spirit of that provision and sets out the commitment of the Member States, and of the acceding States, to act jointly in case one of them becomes the victim of a terrorist attack. There is also the following clarification: ‘It shall be for each Member State or acceding State to the Union to choose the most appropriate means to comply with this solidarity commitment towards the affected State.’ In terms of its CSDP links, another noteworthy feature of the solidarity clause is its broad scope. The action it envisages is not confined to response to terrorist attacks. It is also about prevention and protection, as well as assistance. Finally, it is worth noting that, in their Decision on the Concerns of the Irish People on the Lisbon Treaty, the Heads of State or Government of the European Union stated that it ‘will be for Member States—including Ireland, acting in a spirit of solidarity and without prejudice to its traditional policy of military neutrality— to determine the nature of aid or assistance to be provided to a Member State which is the object of a terrorist attack or the victim of armed aggression on its territory’.57 52 A standing committee provided for in Art 71 TFEU will also participate, if necessary by submitting joint proposals with the Political and Security Committee. The former aims ‘to ensure that operational cooperation on internal security is promoted and strengthened within the Union’ and ‘facilitate coordination of the action of the Member States’ competent authorities’. Its proceedings may involve representatives of the Union bodies, offices and agencies, and the Parliament and national Parliaments must be kept informed of them. 53 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). 54 Report on the Implementation of the European Security Strategy—Providing Security in a Changing World (S407/08, Brussels, 11 December 2008). 55 The European Security Strategy points out that, ‘in contrast to the massive visible threat in the Cold War, none of the new threats is purely military, nor can any be tackled by purely military means. Each requires a mixture of instruments’ (at 7). 56 Namely, Art 42 of the Constitutional Treaty. 57 Decision of the Heads of State or Government of the 27 Member states of the EU, meeting within the European Council, on the Concerns of the Irish People on the Treaty of Lisbon.

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Flexibility One of the innovations introduced at Lisbon is the formalization of flexibility, that is the establishment of mechanisms, which would authorize an ad hoc group of Member States to undertake CSDP actions on behalf of the Union. There are two such mechanisms.

Member States acting on behalf of the Union According to Article 42(5) TEU, the ‘Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union’s values and serve its interests’. This would be done in accordance with the standard voting requirement, namely unanimity, pursuant to Article 42(4) TEU, and following a proposal by the High Representative or an initiative by a Member State. The delegation of this role is governed by Article 44 TEU, which reads as follows: 1. Within the framework of the decisions adopted in accordance with Article 43, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Aff airs and Security Policy, shall agree among themselves on the management of the task. 2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.

It follows from this that there are two substantive conditions which need to be met: the first is subjective and requires that the Member States involved are willing to implement the task in question; the second condition is objective, and requires that the Member States involved have the necessary capability for such a task.The wording of Article 44(1) TEU makes it clear that these conditions must be met cumulatively. The management of the task is for the relevant Member States to agree among themselves in association with the High Representative. It is not clear what the role of the High Representative is in this context. As the Member States act in order to protect the Union’s interest, they may not decline to consult with the High Representative. In any case, the expertise of the latter (assisted by the resources of the EEAS) on the management of CSDP tasks would make her advice invaluable for the Member States concerned. However,

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the High Representative may not dictate how a task should be managed under Article 44 TEU. The above provision suggests a degree of close interaction between Member States and EU institutional bodies in the context of actions undertaken by Member States on behalf of the Union. In fact, there is a reasonably tight framework, which provides for adequate supervision. In any case, the subject matter of such actions distinguishes the legal and policy context set out in Article 44 TEU from other areas of EU law where Member States act as trustees of the Union’s interests.58 The applicable criteria for assessing the effectiveness of the procedures governing management and accountability for tasks delegated to Member States allow room for political flexibility and independent action by those actually involved.

Permanent structured cooperation The Treaty provides a mechanism for permanent structured cooperation. In accordance with Article 42(6) TEU, this is open to Member States ‘whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions’. However, rather than merely outlining the relevant criteria, the drafters of the Treaty define them in quite detailed terms. In a Protocol attached to the Lisbon Treaty, the commitments on military capabilities are set out in detail. In Article 1, a Member State wishing to participate in a structured cooperation mechanism is required to: (a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and (b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

58 For an analysis of such areas, see Marise Cremona,‘Member States as Trustees of the Union Interest: participating in international agreements on behalf of the European Union’, in Anthony Arnull, Catherine Barnard, Michael Dougan, and Eleanor Spaventa (eds), A Constitutional Order of States: Essays in European Law in Honour of Alan Dashwood (Oxford: Hart Pubishing, 2011), 435.

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Article 2 of the Protocol requires the participating Member States to: (a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union’s international responsibilities; (b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics; (c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures; (d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’; (e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency. Member States fulfilling the criteria and having made the above commitments may notify their intention to engage in permanent structured cooperation to the Council and the High Representative. In accordance with Article 46(2) TEU, the decision to establish such cooperation rests with the Council, which is expected to take it within three months, following notification by a qualified majority and consultation with the High Representative. In terms of its management, any decision and recommendation by the Council within the context of permanent structured cooperation is taken unanimously on the basis of the votes of the representatives of the participating Member States under Article 46(6) TEU, unless otherwise provided for in Article 46 TEU. There are certain principles which appear to govern the permanent structured cooperation mechanism. First, the principle of openness: provided that the criteria and requirements set out in Article 46(1) TEU and Articles 1 and 2 of the Protocol are met, any Member State may participate in the mechanism, either ab initio or at a later stage. In the latter case, following a notification from the relevant State to the Council and the High Representative, the former will adopt the decision confirming the participation of the Member State by qualified majority of the participating Member States and after consulting the latter.59 The second principle is that of continuity: every participating Member State must fulfil the criteria and make the necessary commitments throughout their participation. According to Article 46(4) TEU, if at any point they cease to do so, the Council may 59

Art 46(3), subpara 2 TEU.

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suspend the participation of the Member State concerned by a qualified majority of the member representing the participating Member States, with the exception of the Member State in question. In this respect, Article 3 of the Protocol on Permanent Structured Cooperation provides for the involvement of the European Defence Agency. In accordance with this provision, the role of EDA is broad: it contributes to the regular assessment of participating Member States’ contributions regarding capabilities in general, and in particular these made in accordance with the criteria elaborated upon on the basis of, among others, Article 2 of the Protocol. However, its impact is limited, at least as a matter of law: while it is entrusted with reporting at least once a year, its assessment ‘may serve as a basis for Council recommendations and decisions adopted in accordance with Article 46 of the Treaty on European Union’.60 Third, the free will of the Member States is an essential precondition for their participation: any participating Member State may withdraw by notifying its intention to do so to the Council. The latter has no power to approve or to veto this. In accordance with Article 46(5) TEU, it can only ‘take note that the Member State in question has ceased to participate’. Fourth, the definition of the capabilities criteria mentioned in Article 46(1) TEU and set out in Article 2 of the Protocol on Permanent Structured Cooperation is subject to a dynamic, incrementally evolving process. Both Articles 2 and 3 of the Protocol suggest that they need to be further elaborated and defined in greater detail. This is realistic given that requirements related to military capabilities may vary depending on factors as diverse as technical and operational needs, geopolitical environment, activities of international security organizations, financial conditions, and political commitment. Treaties are unsuited to defining with any degree of precision such requirements. On the other hand, the vagueness of the relevant provisions is such as to render their application entirely a matter to be determined on the basis of factors as inherently fluid as political will, and as constantly evolving as economic realities. The vagueness of the legal rules on permanent structured cooperation reflects the vagueness of the Lisbon Treaty provisions introducing institutional innovations. Viewed as a way of enabling the Union to shape its security and defence identity more efficiently, one might have hoped that the mechanism of permanent structured cooperation would have provided a clearer yardstick as to quite how the Member States might rely upon it. As they both stand, the relevant legal provisions appear to acknowledge that their contribution to the Union’s foreign affairs is merely to set out the broad parameters within which the Member States and the Union’s institutional actors may determine how to proceed, at what pace, and in which direction. In this respect, there has been some discussion among Member States during the Belgian Presidency in the latter part of 2010, and a German–Swedish proposal for closer military cooperation.61 However, all these developments have been proposed 60

Art 3 of Protocol on Permanent Structured Cooperation. For a discussion of these developments, see Sven Biscop and Jo Coelmont, ‘CSDP and the “Ghent Framework”: The Indirect Approach to Permanent Structured Cooperation?’, (2011) 16 EFARev 149. 61

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by Member States, rather than the Union institutions, and are more geared towards the rationalization of military cooperation.

Financing The rules governing the financing of CSDP activities are laid down in Article 41 TEU. This makes a distinction between two types of expenditure; administrative and operational. Both are, in principle, charged to the Union budget. However, there are two exceptions in relation to operational expenditure, namely in cases where it arises from operations having military or defence implications and in cases where the Council decides otherwise unanimously. In both these exceptional cases, expenditure is charged to the Member States in accordance with the Gross National Product scale, unless the Council decides unanimously otherwise.62 As far as operations with military or defence implications in particular are concerned, Member States which have abstained from voting in the Council and have made a formal declaration under Article 31(1) subparagraph 2 TEU are under no obligation to contribute to their financing. These rules reproduce the arrangements already in place under the Nice Treaty, and adjust them to the post-pillar EU structure.63 The financing arrangements are no mere detail in the CSDP framework. They are significant not only because to control the budget is to influence the substance and, ultimately, the effectiveness of the Union’s action in this field, but also because their application relies upon various institutional interactions within the EU legal order. In terms of the operations funded by the Union budget, the active involvement of the Parliament, which participates in decision-making, enables it to have a say over the conduct of the Union’s foreign affairs, a fact which the Council does not view with much sympathy. The interaction between the two institutions complicates the conduct of security and defence missions in the light of certain practical considerations: on the one hand, the distinction between operational and administrative expenses is not always clear, as is also the case regarding the specific nature of an operation and whether it has security and defence implications. An operation may often have both civil and military implications. For an effective operation, time is usually of the essence, and issues regarding confidentiality may also arise. As with national operations, parliamentary involvement may inhibit swift and effective deployment of resources. For expenditure from the Union budget, the Union institutions drew up an Interinstitutional Agreement in 2006, which sets out certain procedures to avoid 62

Art 41(2), subpara 2 TEU. On the criticism which the precursor to these rules attracted, see, Florika Fink-Hooijer, ‘The Common Foreign and Security Policy of the European Union’, (1994) 5 EJIL 173, at 184–5. See also Jörg Monar, ‘The Finances of the Union’s Intergovernmental Pillars: Tortuous Experiments with the Community Budget’, (1997) 35 JCMS 57, and ‘The Financial Dimension of the CFSP’, in Martin Holland (ed), Common Foreign and Security Policy —The Record and Reforms (London: Pinter, 1997), 34. 63

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protracted disputes and which aim to maintain instant channels of communication between the Parliament and the Council.64 As far as operations with military and defence implications are concerned, while the cost is borne by the Member States, the Council decided in 2003 that certain common costs should be administered by a separate financing mechanism. Such costs cover transport, infrastructure, and medical services. This mechanism is called ATHENA and was originally set out in Council Decision 2004/197/CFSP.65 Its objective is to allow the Union flexibility to meet specific operational challenges and facilitate the rapid deployment of forces while ensuring that Member States would always be in control of its implementation.The ATHENA mechanism is managed under the authority of a Special Committee, in which all Member States except Denmark participate, by an administrator, the commander of the relevant operation and an accountant. These efforts notwithstanding, financing of security and defence operations has given rise to considerable controversies. These will be outlined in the context of the specific operations in which they have emerged.66 An interesting innovation introduced at Lisbon is the provision for rapid disbursement of funds. Pointing out the need for the urgent financing of preparatory activities for the CSDP tasks, Article 41(3) TEU introduces two methods. First, for activities to be funded by the EU, and having no military or defence implications, the Council adopts a decision, following consultation with the Parliament, establishing the specific procedures ‘for guaranteeing rapid access to appropriations in the Union budget’. Second, for preparatory activities for CSDP tasks with military and defence implications, a start-up fund is made up of Member States’ contributions. The specific issues about the start-up fund (the procedures for its setting up, financing, administration, and financial control) are set out in a Council decision adopted by a qualified majority on a proposal from the High Representative. The use of this fund for a specific CSDP task is entrusted to the High Representative following an authorization by the Council to which the former must also report on this remit.67 This provision acknowledges the significance of practical considerations, such as urgency and the ability to provide funding for the preparation of tasks for the effective conduct of security and defence policy. While the main tenets underpinning financing CFSP operations are left unchanged, the provisions of Article 41(3) TEU illustrate a welcome shift to the practical issues which are likely to be critical on the 64 Arts 42–3 of Interinstitutional Agreement between the European Parliament, the Council, and the Commission on budgetary discipline and sound financial management [2006] OJ C 139/1. This has been amended, more recently by Dec. 2012/5/EU [2012] OJ L 4/12. 65 Council Dec. 2004/197/CFSP [2004] OJ L 63/68, last codified in Council Dec. 2011/871/CFSP [2011] OJ L 343/35. The mechanism and its rationale are explained in the explanatory memorandum set out in Council Doc 13668/2003 of 16 October 2003 (http://register.consilium.europa.eu/pdf/ en/03/st13/st13668.en03.pdf), (last accessed on 25 October 2012). See also David Scannell, ‘Financing ESDP Military Operations’, (2004) 9 EFARev 529. 66 Ch. 5. 67 No such fund has been set up yet: see Council Doc 12643/12 of 13 July 2012 on the Summary record of the meeting of the European Parliament Subcommittee on Security and Defence.

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ground. The importance of this aspect of security and defence policy is illustrated by the provision for qualified majority voting for the adoption of the relevant Council measures. Furthermore, by endowing the High Representative to manage the start-up fund, subject to authorization by the Council, it strengthens this post in a meaningful way. After all, rather than the rhetoric about the EU’s foreign affairs in which the EU leaders have indulged, it is the capacity to deal with the practical issues of security and defence which enhances the role of the Union’s institutions.

Conclusion This analysis of the legal framework of CSDP suggests that there is a paradox which characterizes its position within the Union’s legal order. On the one hand, CSDP is defined on the basis of an increasingly developed framework, considerably more so than that set out in previous Treaties. In fact, the relevant provisions may appear to provide rigour to a policy the presence of which was marginal in previous primary law. This reflects not only the topical relevance of the policy but also the conviction of the Union institutions and the Member States about the role of legal rules and procedures for the effective conduct of the policy. The policy which emerges is deeply process-oriented. On the other hand, the changes introduced at Lisbon are firmly anchored in the central role of the Member States. In fact, they are characterized by an inherent political dimension so much stronger than in other Treaty provisions that it renders their impact difficult to gauge. Therefore, their impact on the role of the Union should not be exaggerated, as it is bound to depend on multifarious factors extraneous to the legal provisions set out in the Treaty, not least political developments within Member States (in particular the important defence actors such as the United Kingdom, France, and Germany), the geopolitical environment and the approach of the United States to international security, and economic exigencies. After all, as the analysis of the military operations and civilian missions undertaken by the Union will show, financial and practical considerations have had a considerable impact on the conduct of CSDP. In fact, the opacity of the CSDP provisions introduced by the Lisbon Treaty reflects further the reliance of the policy upon non-legal considerations. This raises a general question about the law governing CSDP. Have the Union institutions and Member States been unduly preoccupied with legal provisions in an area where it is mainly political and, to a certain extent, economic considerations which determine policy impact? Have too much energy and time been spent on setting out process-based rules, the relevance of which is at best questionable in the light of what really makes a difference in security and defence? Put differently, is there an inherent limit to what legal rules may achieve in the area of security and defence in the context of the multilayered and constitutionally idiosyncratic European Union? These questions will underpin the analysis of the practice of CSDP in the following chapters.

4 The policy context of CSDP

Introduction The analysis so far has focused on the legal rules and procedures which govern the conduct of CSDP. It has examined their genesis, development, and the interpretation of the current framework as laid down in the Lisbon Treaty. However, law may not be examined in isolation from the policy context within which it is drafted, and the relevant institutions are called upon to apply it. While this is the case generally, it is even more so in relation to security and defence, as the conduct of these deeply politicized activities is directly linked to various extraneous non-legal factors, including international geopolitical developments and the policies of third parties. This makes for a complex and constantly evolving policy environment. In this context, it is worth exploring the general policy threads which shape the practice of CSDP. In this enquiry, the European Security Strategy (ESS) is noteworthy.1 Drawn up by the then High Representative for the Common Foreign and Security Policy Javier Solana and endorsed by the European Council in December 2003, its significance is illustrated not only by its content, but also its timing as well as its title. Prepared against the backdrop of the terrorist attacks in New York and Washington of September 11, 2001, it is given a name which is reminiscent of the National Security Strategy adopted by the United States administration in order to set out the security challenges facing the country.2 Therefore, it seeks to project ambition and stature, and to suggest depth in policy and strategic thinking in its design and implementation. In purporting to play this role, the ESS was not an isolated initiative. Five years later, in December 2008, the European Council endorsed a Report on the Implementation of the European Security Strategy. Under the subheading Providing Security in a Changing World, the presentation of this document is somewhat misleading: rather than setting out a report on the implementation of ESS, it provides a restatement of the main strands of the original ESS upon which it draws heavily and certain aspects of which it adjusts to the evolving geopolitical environment. It has been argued that, while originally the 2008 Report was intended to provide a new ESS, 1

A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). For the most recent version of the US National Security Strategy, see http://www.whitehouse.gov/ sites/default/files/rss_viewer/national_security_strategy.pdf (last accessed on 25 October 2012). 2

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political opposition from the United Kingdom (which was hostile to the articulation of policy visions in the area) and Germany (which was keen to avoid a debate on military security in the light of the participation of its forces in Afghanistan) made this impossible.3 These two documents are worth considering in detail for various reasons. First, their adoption is indicative of how the Union understands its role on the international scene. It constitutes its grand strategy, that is its ‘conception of its security goals and of the ways it plans to insure its security’.4 Quite apart from what this act of self-perception tells us about the Union’s ambition, it also sets a useful yardstick against which both institutional behaviour and the conduct of specific policies may be assessed. Second, they articulate certain principles and trends that underpin the conduct of specific policies, and on the basis of which threads may be identified which bring together these policies. Third, they have provided the basis on which other policy initiatives draw and have, therefore, become a point of reference for the role of the EU on the international scene. Finally, there is another reason which makes the detailed study of the ESS and the 2008 Report worthwhile, that is the increasing significance which non-legal documents have in the choices made by the Union’s most important legal actors.This is illustrated in the controversial judgment of the Court of Justice of the European Union in Case C-91/05 Commission v Council (Small Arms and Light Weapons)5 where the Court attaches considerable weight to policy documents adopted by the Union institutions and the Member States. In this increasingly politicized legal landscape, lawyers need to pay attention to the documents which articulate certain themes underpinning policy-making.

The main themes underpinning the European Security Strategy The ESS is a short document, of approximately fourteen pages,6 structured in three parts. First, it identifies the global challenges facing the EU and articulates its key threats. These include terrorism, the proliferation of weapons of mass destruction, regional conflicts, State failure, and organized crime. Second, it sets out the Union’s strategic objectives, namely to address the above key threats, to build security in its neighbourhood and to develop an international order based on effective multilateralism.Third, it spells out the policy implications for Europe which entail its being more active, more capable, more coherent, and working with its partners. 3 Asle Toje, The European Union as a Small Power—After the Post-Cold War (Basingstoke: Palgrave Macmillan, 2010), 79–80. 4 Pascal Vennesson, ‘Europe’s Grand Strategy: The Search for a Postmodern Realism’, in Nicola Casarini and Constanza Musu (eds), European Foreign Policy in an Evolving International System—The Road Towards Convergence (Basingstoke: Palgrave Macmillan, 2007), 12, at 14. 5 [2008] ECR I-3651. 6 Note that the US National Security Strategy is almost four times as long.

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The internal–external link The starting point for the ESS is the success of the project of European integration—its first sentence is ‘Europe has never been so prosperous, so secure nor so free’.7 This link has two dimensions; a political and economic one. The role of economic success is mentioned in stark terms: ‘[a]s a union of 25 [now 27 and counting] states with over 450 million people producing a quarter of the world’s Gross National Product (GNP), and with a wide range of instruments at its disposal, the European Union is inevitably a global player’.8 While hardly controversial, this direct link between the economic might and the international role of the Union is striking. On the one hand, it touches upon the core of European integration by highlighting the link between economic integration and security. Indeed, as the analysis in Chapter 1 suggested, the very genesis of the European Coal and Steel Community, its spillover effect in the establishment of the European Economic Community and the latter’s seamless metamorphosis into the European Community and the European Union are all based on the assumption that economic integration will render war in Europe impossible. Therefore, the establishment of the single market and the ensuing economic benefits constitute a profound security act. Similar considerations apply to the successive rounds of enlargements, which ‘are making a reality of the vision of a united and peaceful continent’.9 As the ESS puts it, ‘[t]he violence of the first half of the 20th Century has given way to a period of peace and stability unprecedented in European history’.10 Therefore, the Union has already been a security actor in Europe. This link between economic might as the result of economic integration and security is striking for another reason too. The ESS was drafted in 2003, that is a year following the introduction of the euro.This was perceived to be a golden time for the Union: growth was seen as spreading across the eurozone where the new currency was viewed as ushering in a period of stability. In an international climate of credit boom, the introduction of the common currency was seen as a vital step towards completing the internal market and an unprecedented step towards further integration, ultimately leading to political union. This development should also be viewed along with the process of the negotiation and conclusion of the Treaty establishing a Constitution for Europe. Launched two years prior to the adoption of the ESS, this process had introduced the constitutional rhetoric as part of the mainstream of the EU discourse. Such was the symbolic force of these two factors, the introduction of the common currency and its ensuing economic and political 7

8 ESS, 1. ESS, 1. ESS, 2, which also points out that ‘the progressive spread of the rule of law and democracy has seen authoritarian regimes change into secure, stable and dynamic democracies’. On enlargement as a foreign policy act, see Marise Cremona, ‘Enlargement: A Successful Instrument of Foreign Policy?’, in Takis Tridimas and Paolisa Nebia (eds), European Union Law for the Twenty First Century Vol 1 (Oxford: Hart Publishing, 2004), 397. 10 ESS, 1. 9

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benefits, and the express constitutionalization of the EU legal space, that spurred on visions of grandeur for the Union as an international player. The Laeken Declaration, which initiated the process of the drafting of the Treaty Establishing a Constitution for Europe in December 2001, raised the question: ‘Does Europe not, now that is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilising role worldwide and to point the way ahead for many countries and peoples?’.11 Valéry Giscard d’Estaing, the former French President who was entrusted with chairing the Convention on the Future of Europe which initiated the drafting of the Constitutional Treaty, expressed his hope in 2002 that the EU ‘will talk on equal terms to the greatest powers on our planet’.12 In this vein, an influential political commentator working for the distinguished Centre for European Reform published a book entitled ‘Why Europe Will Run the 21st Century’.13 As the ESS illustrates the direct correlation between economic prosperity and international ambition, the question which is raised is to what extent a change in the former is bound to have repercussions for the latter? The financial crisis which started undermining the markets in 2008 and the crisis which has plagued the eurozone since 2009 have shaken the foundations of the EU. Managing the distinct possibility of sovereign default within the eurozone, staving off the threat of contagion to economies which the euro members could not afford to save, seeking to tackle the political ramifications which the handling by the European powers of this extraordinary financial crisis has caused; all these are at the very centre of the current EU agenda. This is even more so given that the EU leaders have attributed to the crisis an existential dimension: German Chancellor Angela Merkel, for instance, has stated time and again that the fight to save the euro is a fight to save Europe. And the President of the European Commission José Barroso argues that the fight to save the euro is the most serious crisis the Union has had to face since its establishment.14 This crisis has been consuming all the energy of the EU institutions and political leadership is bound to have an impact on the role that the Union assumes in the world. Its precise impact on the security and defence policy of the Union will be explored further in this book, in particular in relation to the military capabilities of the EU. Implicitly accepted for a long time as a matter of policy, the links between the internal and external security of the Union have been articulated gradually with increasing clarity. In early 2010, the Council adopted the EU Internal Security Strategy.15 Aiming to set out the vision, values, and objectives of the Union’s internal security, it articulates a European security model on the basis of the integration of 11

ESS, 2. Gideon Rachman, Zero-Sum World—Politics, Power and Prosperity After the Crash (London: Atlantic Books, 2010), 147. 13 Mark Leonard, Why Europe Will Run the 21st Century (London: Fourth Estate, 2005). Three years later, he seemed to express similar views, albeit about China: What does China think? (London: Fourth Estate, 2008). 14 See his 2011 State of the Union address to the European Parliament: (http://ec.europa.eu/commission_2010-2014/president/pdf/speech_original.pdf), (last accessed on 25 October 2012). 15 5942/2/10, (Brussels, 23 February 2010). 12

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three pillars: law enforcement and judicial cooperation, border management, and civil protection. In late 2010, the Commission sought to describe more clearly the steps which would be required in order to give shape to the European security model over a period of four years.16 These documents need to be understood in the context of the ESS and the 2008 ESS Report as their general tenor, specific content and main themes are complementary. At this juncture, suffice it to make three observations. First, the Internal Security Strategy was adopted seven years following the adoption of the ESS, and two years following the 2008 ESS Report. It is indicative of their ambition and confidence about the Union’s international role that the Union’s institutions should have deemed it necessary to focus their attention first on external security. Second, while each of the documents discussed so far seeks to articulate a vision about the Union’s role as a security actor, they may not be understood as part of a single initiative, underpinned by a unified strategic vision. The time of their adoption, spanning the 2000s, is merely indicative of the incremental nature of the Union’s understanding of what its security strategy entails: this understanding is shaped gradually and its articulation is subject to a range of different factors, not least the institutional dynamics within the Union’s constitutional structure, the economic development of the single market, the political balance of power within the main Member States, and the evolution of the international geopolitical order. Third, the very adoption of the Internal Security Strategy illustrates the heavy reliance of the international role of the Union as a security actor upon its internal policy-making. In fact, this relationship is mutually reinforcing: not only is the link between the internal and external aspects of security indissoluble, but its regulation and management depend heavily on the interaction between the respective policies and the institutional actors which shape their conduct.

Broad definition of security The key threats for the EU which the ESS sets out are terrorism, the proliferation of weapons of mass destruction, regional conflicts, State failure, and organized crime. Rather than originating in individual powers or States, this set of threats is dispersed in terms of its sources and varied in terms of its characteristics. It reflects the period in which it was drawn up and the prevailing assumptions about security. For instance, it is noteworthy that the very first threat, that of terrorism, should echo the profound shift in the international order produced by the terrorist attacks of September 11, 2001 and the ensuing coalition against terrorism leading to the invasion of Afghanistan in that year. In other words, the ESS views its security threats as what emerges inexorably from a ‘disordered world’.17 16 COM (2010) 673 fin, The EU Internal Security Strategy in Action: Five steps towards a more secure Europe (Brussels, 22 November 2010). 17 Amin Maalouf, Disordered World—Setting a New Course for the Twenty-first Century (London: Bloomsbury, 2011).

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Similarly, the predominance of the other threads emerged in the first years of this century. The proliferation of weapons of mass destruction had started attracting attention following the fall of the Soviet Union when the absence of a central control system was viewed as enabling maverick elements within the governmental structures of the new republics to give access to rogue States and traders. As terrorism became a paramount concern for the international community in the early 2000s, so has the concern for the proliferation of weapons of mass destruction been steadily raised. In the last ten years, the Union has been active on many fronts and in many ways in its efforts to tackle this problem.18 Regional conflicts are seen as having an ‘impact on European interests directly and indirectly’ and a threat to regional stability.19 The ESS refers specifically to the conflicts in Kashmir, the Great Lakes Region, and the Korean Peninsula, as well as the long-standing one in the Middle East. From a historical perspective, it is hardly surprising that regional conflicts figure prominently in the ESS. After all, the wars in the Balkans prior to, during, and following the dissolution of Yugoslavia in the late 1980s and 1990s had shocked the system of European integration so profoundly as to create considerable momentum for a more active EU in the area of foreign and security policy. It was in that context that the revamped Common Foreign and Security Policy, governed by the tighter legal framework set out as the second pillar of the newly established EU under the Maastricht Treaty, gave greater prominence to the international role of the Union. State failure is described in the ESS as a combination of bad governance, covering corruption, abuse of power, weak institutions, and lack of accountability, as well as civil conflict, with express reference to Somalia, Liberia, and Afghanistan under the Taliban (a qualification which, more than ten years after the fall of the fundamentalist regime, may not appear entirely justified). It is noteworthy that one of the most visible security and defence operations of the Union has been carried out in such a state, namely Somalia, and has been the backbone of a series of development, economic, and security initiatives, all of which are purported to be intrinsically linked.20 The last threat mentioned in ESS is organized crime, with particular emphasis to cross-border trafficking in drugs, women, illegal migrants, and weapons, for all of which ‘Europe is a prime target’.21 An increasingly prominent concern for the EU’s decision-makers,22 organized crime features in the 2008 ESS Report as the second key threat for the ‘EU’s security interests along with terrorism’.23 This becomes all the more apparent by its prominence in the 2010 Internal Security Strategy.24 While 18 See Panos Koutrakos, ‘The Non-proliferation Policy of the European Union’, in Malcolm Evans and Panos Koutrakos (eds), Beyond the Established Legal Orders—Policy Interconnections Between the EU and the Rest of the World (Oxford: Hart Publishing, 2011), 249. 19 20 21 ESS, 4. See the analysis in Ch 5. ESS, 4. 22 See Tomoya Obokata, ‘Key EU Principles to Combat Transnational Organized Crime’, (2011) 48 CMLRev 801. 23 24 2008 Report, 4. 5942/2/10 (Brussels, 23 February 2010).

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of wider scope, the notion of organized crime in the latter covers similar ground with the ESS: drug trafficking, economic crime, human trafficking, smuggling of persons, arms trafficking, sexual exploitation of minors and child pornography, violent crimes, money-laundering, and document fraud.25 While clearly articulated in the ESS, the broad understanding of security becomes all the more apparent in the 2008 Report where the emphasis is heavily on less traditional aspects of security: in addition to organized crime, these include cyber security and climate change, which are not mentioned in ESS, and energy security. Cyber security has become a major concern for all significant international actors.26 Quite apart from its rapidly increasing cost in the corporate world,27 its role in warfare has been difficult to ignore. During the war between Russia and Georgia in August 2008, the former attacked the websites of important Georgian institutions as well as the local bases of international and news organizations.28 More recently, computer programmes such as Stuxnet, Duqu, and Flame have attracted attention, as they have been claimed to be developed by the United States and Israeli services in order to attack Iranian facilities and prevent them from further developing their nuclear capabilities.29 United States President Obama has stated that the ‘cyber threat is one of the most serious economic and national security challenges we face as a nation’,30 and in 2011 the US Government designated cyber-capability its fifth military domain, hence complementing land, sea, air, and space.31 It becomes apparent that, in focusing on tackling cyber crime, the EU’s institutions are firmly within the mainstream of international policy-making. Similar considerations apply to energy security. Article 194(1)(b) TFEU states that EU policy on energy ‘shall aim, in a spirit of solidarity between Member States, to . . . ensure security of energy supply in the Union’. The erratic behaviour of an increasingly confident Russia has raised the stakes: by manipulating energy supplies to Ukraine in January 2009, it cut gas deliveries to a number of central and eastern European countries for two weeks.32 A proper understanding of the energy dimension of security also requires one to take into account the intense work carried out 25

Internal Security Strategy, at 5. See Paul Ducheine, Frans Osinga, Joseph Soeters (eds), Cyber Warfare: Critical Perspectives (The Hague: TMC Asser Institute, 2012). 27 It has been argued that the annual cost of global cybercrime exceeds the combined yearly market for marijuana, cocaine, and heroin: Paul Taylor, ‘Warnings of “war” serve to focus minds’, Financial Times, 1 June 2012, Special Report, 2. 28 See Ronald D Asmus, A Little War that Shook the World—Georgia, Russia, and the Future of the West (Basingstoke: Palgrave Macmillan, 2010), 166–8. 29 See David E Sanger, Confront and Conceal—Obama’s Secret Wars and Surprising Use of American Power (New York: Crown Publishing, 2012), Ch 10. 30 http://www.whitehouse.gov/cybersecurity (last accessed on 25 October 2012). See also Wesley Clark and Peter Levin, ‘Securing the Information Highway—How to Enhance the United States’ Electronic Defences’, (2009) 88/6 International Affairs 2. 31 Misha Glenny, ‘We will rue the cavalier deployment of Stuxnet’, Financial Times, 7 June 2012, 13. 32 See The Economist, 7 January 2009. For an analysis of the Union’s external energy policy, see Sanam S Haghighi, Energy Security—The External Legal Relations of the European Union with Major Oil and Gas Supplying Countries (Oxford: Hart Publishing, 2007). 26

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by the European Commission and a number of Member States in recent years about the liberalization of the energy market within the EU.33 This is yet another example of external security being intrinsically linked to ensuring an internal security objective, the attainment of which is fraught with political and economic difficulties. While climate change is not mentioned in the 2003 ESS, it features quite prominently in the 2008 Report. Its inclusion follows not only from the emphasis on energy security, but also the broad construction of security which underpins the entire document: ‘[n]atural disasters, environmental degradation and competition for resources exacerbate conflict, especially in situations of poverty and population growth, with humanitarian, health, political and security consequences, including greater migration. Climate change can also lead to disputes over trade routes, maritime zones and resources previously inaccessible’.34 Quite apart from confirming the increasingly broad understanding of security, the reference to climate change also reflects a more general trend. On the one hand, ‘climate change is . . . beginning to shift the geopolitical sensibilities from matters of protecting borders to thinking about global interconnections’35 and features prominently in international policymaking. On the other hand, the Union has been at the forefront of the fight against climate change not only as a matter of rhetoric, but also in terms of policy. In fact, this is illustrated by its enthusiastic use of the carbon trading emissions scheme and its application to airlines flying to or from an EU airport.36 The adoption of this measure and its endorsement by the Court of Justice in Case C-366/10 Air Transport Association37 has caused disquiet in major international actors (including United States, Russia, China, India).38 All the threats which the ESS identifies as facing the EU have certain common characteristics. The first is their internal coherence: rather than self-standing and random, they are intrinsically linked and potentially interconnected. Each of the threats set out in the ESS feeds and is being fed by the others. This is explicit in the ESS which, for instance in relation to regional conflicts, points out that ‘[c]onflict can lead to extremism, terrorism and state failure; it provides opportunities for organised crime. Regional insecurity can fuel the demand for WMD’.39 The same rationale applies to organized crime: the activities mentioned in the ESS ‘can have 33 See David Lecoque, ‘Ownership Unbundling of Electricity Transmission Networks’, (2011) 20 European Energy and Environmental Law Review 207. For an analysis from the perspective of the European Energy Charter, see Peter D Cameron, ‘The EU and Energy Security: a Critical Review of the Legal Issues’, in Antonis Antoniadis, Robert Schütze, and Eleanor Spaventa, The European Union and Global Emergencies—A Law and Policy Analysis (Oxford: Hart Publishing, 2011), 125. 34 2008 Report, 5. 35 Simon Dalby, Security and Environmental Change (Cambridge: Polity Press, 2009), 12. 36 Directive 2008/101 amending Directive 2003/87 so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L 8/3. 37 Judgment of 21 December 2011, not yet reported. 38 For a comment on the judgment, see Eileen Denza, ‘International Aviation and the EU Carbon Trading Scheme: Comment on the Air Transport Association of America Case’, (2012) 37 ELRev 314. 39 ESS, 4.

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links with terrorism . . . [and] are often associated with weak or failing states’.40 Therefore, there is internal coherence in the articulation of the threats facing the Union as they are all viewed as interconnected facets of the new concept of security, which emerged from the post-Cold War environment. Their second characteristic is that they are removed from the hard end of the defence spectrum and suggest an understanding of the Union’s security environment, which is at odds with the security culture dominating the 20th century. The latter was shaped by the divisions that emerged from the Second World War and the emergence of the Iron Curtain which entrenched them. In that constantly charged geopolitical environment, security and defence were understood within the context of the requirement that territorial integrity be protected. A function traditionally entrusted to the State, this requirement was supplemented in the West by coalitions, namely the North Atlantic Treaty Organisation and the Warsaw Treaty Organisation of Friendship, Cooperation, and Mutual Assistance, which solidified a deeply polarized international order. As the ESS puts it,41 Our traditional concept of self-defence—up to and including the cold War—was based on the threat of invasion.. . . In contrast to the massive visible threat in the Cold War, none of the new threads is purely military . . .

The fall of the Iron Curtain reframed the security challenges which States faced. It by no means removed the significance of territorial protection as an essential function of the State. Instead, it placed it within a wider constellation of challenges to the security of States. As General Sir Rupert Smith, a former Deputy Supreme Allied Commander in NATO puts it, ‘we are living in a world of confrontations and conflicts rather than one of war and peace’.42 The broad construction of security, away from a narrow, military-based approach and closer to its dispersed sources in various sectors of activity, has long been analysed in the political science literature.43 It is within this new context that it emerges as a central aspect of the Union’s approach. This is by no means a characteristic of its external security. The Internal Security Strategy, for instance, refers to issues of such striking generality as to include ‘violence itself, such as youth violence or hooligan violence at sports events’, as well as ‘other common phenomena’ such as road traffic accidents.44

40 ESS, 4. The relevant section of the ESS concludes as follows: ‘Taking these different elements together—terrorism committed to maximum violence, the availability of weapons of mass destruction, organised crime, the weakening of the state system and the privatisation of force—we could be confronted with a very radical threat indeed’, at 5. 41 ESS, 7. 42 Rupert Smith, The Utility of Force—The Art of War in the Modern World (London: Penguin Books, 2006), 371. 43 See, for instance, Barry Buzan, Ole Waever, and Jaap de Wilde, Security: A New Framework for Analysis (London: Lynne Rienner Publishers, 1998). 44 Internal Security Strategy, 5–6. The Commission goes even further, as it refers to ‘seemingly petty crimes such as burglary and car theft, sale of counterfeit and dangerous goods’: COM (2010), 673 fin, The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, 4.

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This broad understanding of security is entirely consistent with how other geopolitical actors have approached the matter and reflects the new realities of the 21st century. Cyber security is a case in point. In his influential analysis, Nye views it as a major aspect of power and points out the impact of cyberspace on the diffusion of power on the global geopolitical order.45

Regional and global focus In setting out its strategic objectives, the Union may not be accused of lacking in ambition. The focus is both on regional and broader international security. The emphasis on regional security is hardly surprising. After all, the enlargements of the Union and the gradual integration of European States in its structure have been one of the most prominent instruments of security in the area. Viewed from this angle, the EU has developed a considerable security acquis merely by widening its membership. In a similar vein, the ESS refers to the objective of ‘building security in our neighbourhood’.46 This is an interesting choice of words, as one of the most prominent external policies of the Union is the European Neighbourhood Policy (ENP). Indeed, the ESS refers to the task of promoting ‘a ring of well governed countries to the East of the European Union and on the borders of the Mediterranean with whom we can enjoy close and cooperative relations’; it is interesting that the Commission should also refer to the development of ‘a ring of friends’ in its neighbourhood in its main Communication on the ENP earlier in the same year.47 Building upon existing contractual relationships between the Union and its Eastern and Mediterranean neighbours and originating in initiatives of EU institutional actors which had been under way when the ESS was endorsed,48 this policy relies upon a wide range of economic, political, social and security instruments in order to establish a privileged relationship with the Union’s neighbours based on the principle of joint ownership.49 In relation to its regional objective, the ESS 45

Joseph S Nye Jr, The Future of Power (New York: Public Affairs, 2011), Ch 5. ESS, at 7. COM (2003) 104 fin, Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours (Brussels, 11 March 2003), 4. 48 For instance, a joint letter by the then Commissioner responsible for external relations (Chris Patten) and the then High Representative for the CFSP (Javier Solana) entitled Wider Europe and dated 7 August 2002. 49 COM (2004) 373 final (12 May 2004). On the legal mechanisms applied in the context of the ENP, see Bart Van Vooren, EU External Relations Law and the European Neighbourhood Policy—A paradigm for coherence (London and New York: Routledge, 2012), Chs 5–7. On ENP more generally, see M Cremona and C Hillion, ‘L’Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy’, (2006) EUI Law Working Papers 39; R Dannreuther, ‘Developing the Alternative to Enlargement:The European Neighbourhood Policy’, (2006) 11 EFARev 183; C Hillion, ‘The EU’s Neighbourhood Policy towards Eastern Europe’, in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations (Cambridge: CUP, 2008), 309. 46 47

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refers specifically to its potential problems by fleshing out what its broad approach to security entails: ‘[n]eighbours who are engaged in violent conflict, weak states where organised crime flourishes, dysfunctional societies or exploding population growth on its borders all pose problems for Europe’.50 Express reference is made to the Balkans and the European perspective offered to the countries in the region (‘the credibility of our foreign policy depends on the consolidation of our achievements there’),51 the Southern Caucasus (‘[w]e should now take a stronger and more active interest in the problems [there]),52 the Arab/Israeli conflict (‘a strategic priority for Europe’),53 the Mediterranean area, and the Arab World. As for its global objective, this is intrinsically linked to its commitment to effective multilateralism. This is examined further in this chapter, in the context of the Union’s quest for a European security model.

Responsibility A distinct feature of the Union’s understanding of its security role is its sense of responsibility. The Laeken Delcaration, which kick-started the process of constitutional reform which led, ultimately, to the adoption of the Lisbon Treaty, states: Now that the Cold War is over and we are living in a globalised, yet also highly fragmented world, Europe needs to shoulder its responsibilities in the governance of globalisation.

At its very first page, the ESS points out that ‘Europe should be ready to share in the responsibility for global security and in building a better world’.54 And, once it has set out the security challenges facing the Union and the added value of its contribution, it states that a ‘European Union which takes greater responsibility and which is more active will be one which carries greater political weight’.55 Five years later, this message has lost none of its relevance: in the very first sentence of its executive summary, the 2008 Report states that, ‘[f]ive years on from [sic] adoption of the European Security Strategy, the European Union carries greater responsibilities than at any time in its history’.56 In legal terms, the notion of responsibility is charged as it refers to the legal implications that the assumption of international obligations connotes for a legal entity.57 In the case of the EU, this is even more so, given the complex relationship between the Union and the Member States and their coexistence pursuant to different legal formulas in different legal contexts in international relations.58 However, these documents use the term literally. This is a soft, almost moral, understanding 50

51 52 53 ESS, 7. ESS, 8. ESS, 8. ESS, 8. 55 56 ESS, 1. ESS, 11. 2008 Report, 1. 57 For the most recent comprehensive analysis on this topic, see James Crawford, Allain Pellet, and Simon Olleson (eds), The Law of International Responsibility (Oxford: OUP, 2010). 58 See Malcolm Evans and Panos Koutrakos (eds), The International Responsibility of the European Union—European and International Perspectives (Oxford: Hart Publishing, 2013), (forthcoming). 54

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of responsibility and it emerges from, and is deeply embedded in, the EU experience in legal and policy integration. It provides another expression to the linkages between internal and external policies, which underpins the whole articulation of the Union’s security role in the 2000s.

The quest for a European model The broad construction of security underpinning the Union’s strategic approach raises a question about policy-making and the EU’s model of integration. The adjustment of strategic cultures and institutional structures of States to evolving security requirements is a process which is being carried out as a matter of course and in the context of which authorities rely upon the full panoply of instruments traditionally available to States. However, what are the implications of this process for the Union? The documents examined in this chapter articulate a role for the EU which they view as distinct and unique. In fact, the ESS suggests that it is precisely the new, broadly defined security challenges which render the Union’s role all the more central:59 In contrast to the massive visible threat in the Cold War, none of the new threats is purely military; nor can any be tackled by purely military means. Each requires a mixture of instruments. Proliferation may be contained through export controls and attacked through political, economic and other pressures while the underlying political causes are also tackled. Dealing with terrorism may require a mixture of intelligence, police, judicial, military and other means. In failed states, military instruments may be needed to restore order, humanitarian means to tackle the immediate crisis. Regional conflicts need political solutions but military assets and effective policing may be needed in the post conflict phase. Economic instruments serve reconstruction, and civilian crisis management helps restore civil government. The European Union is particularly well equipped to respond to such multi-faceted situations.

This extract articulates what may be viewed as a European approach to security: it is the constant combination of economic, political, cultural, development, and security instruments available to the Union which enable it to ‘match [its] potential’60 and to assume its responsibility on the world stage. The 2008 ESS Report is more explicit. It refers to ‘a distinctive European approach to foreign and security policy’ in the context of the security and defence missions which the Union had deployed around the world,61 and the general tenor of the document is to reinforce the combination of instruments which the ESS put forward as a unique European contribution to international security. This sense of distinctiveness is also apparent in the 2010 Internal Security Strategy too.This refers time and again to ‘a European Security Model’ which is defined as:62 59 62

60 ESS, at 7. ESS, 11. 2010 Internal Security Strategy, 4.

61

2008 ESS Report, 2.

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consisting of common tools and a commitment to: a mutually reinforced relationship between security, freedom and privacy; cooperation and solidarity between Member States; involvement of all the EU’s institutions; addressing the causes of insecurity, not just the effects; enhancing prevention and anticipation; involvement, as far as they are concerned, of all sectors which have a role to play in protection – political, economic and social; and a greater interdependence between internal and external security.

The above definition provides an intriguing combination of the trite (‘addressing the causes of insecurity, not just the effects’; ‘enhancing prevention and anticipation’) and the interesting, the latter referring to the interactions between different policies in order to address multi-faceted security threats. Be that as it may, there is an effort underpinning the three documents analysed in this section to articulate a distinctly European role. The Internal Security Strategy refers expressly to ‘the added value of the EU’ which must be harnessed by the Union’s various policies.63 However, it is not made entirely clear to what this added value amounts. Two main strands appear to stand out. The first strand is about the Union’s commitment to effective multilateralism. This is stressed time and again in all relevant documents. It features prominently in the ESS, for instance, which defines the development of an international order based on effective multilateralism as one of the Union’s strategic objectives. It reiterates the Union’s commitment not only to ‘upholding’ but also ‘developing’ international law, acknowledges the role of the United Nations as ‘the fundamental framework for international relations’, and refers to the benefits of regional integration and the work of international organizations.64 The emphasis on multilateralism may be viewed, rather narrowly, as one of the main objectives of the Union’s security policy, complementing its regional focus. However, if viewed in its broader legal and political context, it becomes a distinct strand in the Union’s self-understanding. On the one hand, the Lisbon Treaty, as well as its precursor, that is the Constitutional Treaty, includes it in its principles and objectives. In relation to the former, Article 21(1) TEU provides that the Union ‘shall promote multilateral solutions to common problems, in particular in the framework of the United Nations’. In relation to the latter, Article 21(2)(h) TEU states that the Union ‘shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to . . . promote an international system based on stronger multilateral cooperation and good global governance’. Effective multilateralism has also been given more prominence in the Union’s governance language in the light of the approach of the United States administration in the early part of the 2000s.Widely viewed as distinctly unilateralist, it appeared to create a gap in international politics, which the EU could fill in by becoming the main agent for effective multilateralism.65 Therefore, it was political exigencies which gave rise to legal provisions and on the basis 63 65

64 Internal Security Strategy, 4. ESS, 9–10. See, for instance, European Voice, 5–11 April 2001, at 11–13.

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of which the compliance with and development of multilateral policies have become identified with a distinctly EU approach to security. The second strand of the EU’s contribution is its emphasis on the comprehensive nature of the tools which would enable it to meet its security objectives. Tied in with the other characteristics of its approach, in particular the broad understanding of security and the inextricable linkages between internal and external policies, the EU suggests that the combination of instruments in its armoury and the experience of their application in a variety of contexts render it well equipped to address the security challenges it faces in an increasingly globalized and interdependent world. Take, for instance, this extract from the ESS:66 The best protection for our security is a world of well-governed democratic states. Spreading good governance, supporting social and political reform, dealing with corruption and abuse of power, establishing the rule of law and protecting human rights are the best means of strengthening the international order.

Once security has been construed as widely as the ESS has done, it follows that policy implications of, for instance, economic instruments would be understood as having profound political implications. Again, this is accepted widely as a matter of policy. For instance, it has been argued that it is the impact of the political institutions on the economic institutions which has the most profound effect on the economic plight of failed States.67 As in most policy contexts within the EU legal order, semantics matter. The quest for a distinctly EU approach to security is illustrated by the references to the ‘European interest’68 and the ‘European Union’s interests’.69 While it would not take an extraordinarily detailed knowledge of international affairs to define them in broad terms, it is by no means apparent how these interests relate to those of the Member States. On the one hand, they may not consist of the total sum of national interests: the extraordinary diversity among Member States in terms of geography, history, tradition, and culture renders different interests of different significance to different Member States. As Advocate General, as he then was, Jacobs put it in a different context in Case C-120/94 Commission v Greece, ‘because of differences of geography and history, each of the Member states has its own specific problems and preoccupations in the field of foreign and security policy . . . What one Member state perceives as an immediate threat to its external security may strike another Member State as relatively harmless’.70 On the other hand, the increasingly globalized international environment makes a number of security threats common to all Member States. In effect, to seek to define the European Union’s interests in relation to the interests of all the Member 66

ESS, 10. See Daron Acemoglu, and James A Robinson, Why Nations Fail:The Origins of Power, Prosperity, and Poverty (New York: Crown, 2012). 68 69 For instance, ESS, 7. ESS, 8. 70 [1996] ECR I-1513, para 54 of his Opinion. 67

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States with any degree of accuracy is an exercise in theorizing and doomed to fail. This cannot have escaped the attention of the Union’s institutions as the security challenges set out in ESS and the 2008 Report are couched in broad and, in effect, innocuous terms. Be that as it may, it is noteworthy that there are other areas in the Union’s legal and political landscape where the effort of identifying the Union’s existence as distinct from that of its Member States leads to similar dilemmas. For instance, Article 21(2)(a) TEU refers to the objective of safeguarding the Union’s ‘values, fundamental interests, security, independence and integrity’.71 Another factor which suggests the effort of the Union to carve out for itself a distinct security role is the emphasis on the policies which are at the very core of its competence and legal and political aqcuis. For instance, following the reference to the need for a world of well-governed democratic states, the ESS describes trade and development as powerful tools for promoting reform.72 Quite apart from its significance in policy terms, this statement is also noteworthy for what these two policies mean in the context of the Union’s international role. In relation to trade, not only is it one of its oldest external policies, given that the then European Economic Community was endowed with competence in the Common Commercial Policy under the original Treaty of Rome, but the Union’s competence is also exclusive.73 As for development cooperation, it is one of the areas of activity in which the Union is most active and the budget of which is amongst the highest in EU spending.74 Therefore, the tenor of the ESS and the 2008 Report, the broad understanding of security, and the underlying emphasis on the links between internal and external policies shape what the Union understands as its unique contribution to external security. The message is brought home at various points in ESS where, for instance, reference is made ‘to the full spectrum of instruments for crisis management and conflict prevention at our disposal, including political, diplomatic, military and civilian, trade and development activities’.75 There is a degree of symmetry in the policy design envisioned in ESS: a wide spectrum of intrinsically linked security challenges are to be tackled by a wide spectrum of intrinsically linked instruments. The emphasis on the range of instruments available to the Union, the references to security and defence as part of the wider 71 The reference to ‘integrity’ was introduced first by the Amsterdam Treaty and raises the question whether it refers to the territorial integrity of the EU and, if so, how it relates to the territorial integrity of the Member States: see P Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), 389–90. 72 ESS, 10. 73 The exclusivity of the Union’s competence in CCP was first ruled by the Court in Opinion 1/75 (re: OECD Local Cost Standard) [1975] ECR 1355 and Case 41/76 Donckwerwolcke [1976] ECR 1921. It is now enshrined in primary law: Art 3(1)(e) TFEU. For an analysis, see P Eeckhout, EU External Relations Law 2nd edn (Oxford: OUP, 2012), Ch 2, and P Koutrakos, EU International Relations Law, Ch 1. 74 See Hadfield, A, ‘Janus Advances? An Analysis of EC Development Policy and the 2005 Amended Cotonou Partnership Agreement’, (2007) 12 EFARRev 39; Jan Orbie and Helen Versluys, ‘The European Union’s International Development Policy: Leading and Benevolent?’, in Jan Orbie, Europe’s Global Role—External Policies of the European Union (Farnham: Ashgate, 2009), 67. 75 ESS, 11.

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armoury available to the Union, the ever-present links between internal policies and external actions, have all fed into the lively debate by political scientists about the nature of the Union’s power.76 It has been argued, for instance, that it is its own model of organization and its transformative force which lies at the core of the Union’s distinctive contribution to international security: ‘a model of social order and of a particular brand of advanced capitalism that lays emphasis on the need for equality and solidarity; but, above all, as a model of governance beyond the state’.77 The thesis that this is where the Union’s strength as an international actor is has taken various forms,78 prominent among which is the argument that Europe is a normative power.79 Such views suggest that greater emphasis on the harder end of defence would reflect traditional approaches to international influence which are ill-suited to the sui generis character of the Union and which would not play to its strengths. The ESS and its 2008 Report do not follow such dichotomies. While based on a broad understanding of security and intent on setting out the Union’s role by drawing upon as wide a set of instruments as possible, they do not underestimate the practicalities of defence. The 2008 Report, for instance, states that:80 [A]ppropriate and effective command structures and headquarters capability are key . . . we must continue to strengthen our efforts on capabilities, as well as mutual collaboration and burden-sharing arrangements. Experience has shown the need to do more, particularly over key capabilities such as strategic airlift, helicopters, space assets, and maritime surveillance . . . These efforts must be supported by a competitive and robust defence industry across Europe, with greater investment in research and development.

In any case, the main tenets of the Union’s security as highlighted in the ESS raise an important concern: how can it contribute to the complex configuration of power which the broad understanding of security entails while taking into account its constitutional idiosyncrasies, its limited powers,81 and the different types of competence with which it is endowed to cover different types of activities? This question highlights a legal conundrum as well as a political imperative. In legal terms, primary law has included a provision aiming to avoid inconsistencies between different policies. In the pre-Lisbon days, this was an issue of apparent significance given the pillar-structure and the separateness of the different sets of 76 See a summary in Ian Manners, ‘Global Europa: Mythology of the European Union in World Politics’, (2010) 48 JCMS 67. 77 Andrew Hurrell, On Global Order—Power,Values, and the Constitution of International Society (Oxford: OUP, 2007), 249, who then goes on to explain that, even if this was the EU’s model, ‘the soft power route’ is fraught with difficulties as ‘soft power is not a soft option’, 250. 78 See, for instance, Zaki Laïdi, La Norme sans La Force: L’énigme de la puissance européenne (Paris: Presses de Sciences Po, 2005); Joseph Nye, Soft Power. The Means to Success in World Politics (New York: Public Affairs, 2005), 75 et seq. 79 This notion was introduced in Ian Manners, ‘Normative Power Europe: a Contradiction in Terms?’, (2002) 40 JCMS 235. See also Richard G Whitman (ed), Normative Power Europe—Empirical and Theoretical Perspectives (London: Palgrave Macmillan, 2011). 80 2008 Report on the Implementation of the European Security Strategy, 9. 81 Art 5 T(1)–(2) TEU.

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rules which this entailed.82 But the possibility of clashes is not to be discounted under the current constitutional arrangements either: Article 21(3) subparagraph 2 TEU, for instance, provides that the Union ‘shall ensure consistency between the different areas of its external action and between these and its other policies’, and entrusts the Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, with ensuring that consistency.83 Coherence as a policy imperative is acknowledged in the ESS. In fact, the need for the Union policy to be more coherent is one of the policy implications which it articulates, and by which it concludes (the others being the need to be more active, more capable, and working with partners). The drafting of the section on coherence is quite interesting: it starts off with a reference to CFSP and CSDP (‘the[ir] point is that we are stronger when we act together’) and points out the introduction of various different instruments, ‘each of which has its own structure and rationale’.84 It, then, goes on as follows:85 The challenge now is to bring together the different instruments and capabilities: European assistance programmes and the European Development Fund, military and civil capabilities from Member States and other instruments. All of these can have an impact on our security and on that of third countries. Security is the first condition for development. Diplomatic efforts, development, trade and environmental policies, should follow the same agenda. In a crisis there is no substitute for unity of command. Better-coordination between external action and Justice and Home Affairs policies is crucial in the fight both against terrorism and organised crime. Greater coherence is needed not only among the EU instruments, but also embracing the external activities of the individual member states. Coherent policies are also needed regionally, especially in dealing with conflict. Problems are rarely solved on a single country basis, or without regional support, as in different ways experience in both the Balkans and West Africa shows.

From a policy point of view, all this makes perfect sense: the greater the reliance upon a wide range of instruments each of which is regulated pursuant to different rules, the greater the need for the coherence of their use. By drawing upon the wide definition of security and adjusting it to the Union’s specific policy armoury, it also highlights the specific features of CFSP and CSDP, namely their inherent links with the other sets of the Union’s external activities.The former are but a part of a wider set of policies each of which is not capable of addressing the multilayered security challenges facing the Union, but all of which may do so if carried out in a coherent manner. 82

See, for instance, Art 3 TEU (Nice). The use of the term ‘consistency’ rather than ‘coherence’ is of no practical significance. On the one hand, other versions of the Treaty (such as the French) use the term coherence. On the other hand, consistency should be interpreted as connoting more than merely an absence of contradictions: see E Denza, The Intergovernmental Pillars of the European Union (Oxford: OUP, 2002), 289–90; P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing, 2001), 39–40. 84 85 ESS, 13. ESS, 13. 83

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Indeed, the above extract refers to the coherent use of the various instruments at the Union’s disposal in the context of the effectiveness of CFSP and CSDP. This approach to CFSP and CSDP highlights more than the need to ensure coherence with other policies—it underlines the inherent limits of the former if carried out as an autonomous, isolated policy. Put differently, it suggests that the strength of these policies lies in their links with other EU external activities. This approach illustrates a thread which brings it closer to the origins of CSDP as part, albeit a marginal one, of the EPC which in itself rose organically from the main activities undertaken first by the EEC, then the EC and later the EU.86 It is this deep connection with non-CSDP strands of external action which renders the requirement for coherence all the more significant. This requirement is also noticeable in the 2008 Report.This states that ‘we must strengthen our own coherence through better institutional co-ordination and more strategic decision-making’ and points out that ‘each situation requires coherent use of our instruments, including political, diplomatic, development, humanitarian, crisis management, economic and trade cooperation, and civilian and military crisis management’.87 The analysis later in this book will examine the specific ways in which the conduct of CSDP interacts with other strands of the Union’s external action.88 At this juncture, suffice it to point out that the principle of coherence as a legal requirement has emerged as one of the main tenets of the EU’s external relations.The mandate of the 2007 Intergovernmental Conference (IGC), which led to the adoption of the Lisbon Treaty, refers to it expressly in its very first paragraph:89 ‘[t]he IGC is asked to draw up a Treaty . . . amending the existing Treaties with a view to enhancing the efficiency and democratic legitimacy of the enlarged Union, as well as the coherence of its external action’. In addition to Article 21(3) TEU, as mentioned, and other Treaty provisions, it applies not only in relation to the links between CFSP/CSDP and other external activities, but also to the links between the economic and social strands of EU external action. For instance, the Commission’s Communication on Global Europe: Competing in the World underlines its significance in terms of the effectiveness of development cooperation, trade and the European Neighbourhood Policy.90

The EU and the United Nations The CSDP operations and missions are undertaken in accordance with the principles and objectives set out in Article 21 TEU.91 It is recalled that respect for the 86

87 88 See the analysis in Ch 1. 2008 Report, 9. See the analysis in Ch 8. IGC 2007 Mandate, Council SG/11218/07, POLGEN74 (Brussels, 26 June 2007), para 1. 90 COM (2006) 567 final (Brussels, 4 October 2006). It also features prominently in COM (2006), 278 final, Europe in the World—Some Practical Proposals for Greater Coherence, Effectiveness and Visibility (Brussels, 8 June 2006). 91 See the analysis in Ch 2. 89

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principles of the United Nations Charter and the Union’s commitment to effective multilateralism feature prominently both in the provisions of Article 21 TEU and the European Security Strategy. There is an apparent deference to the role of the United Nations as the main guarantor of international peace. On the other hand, the United Nations do cooperate with other organizations in carrying out this function. Chapter VIII of the UN Charter sets out a role for ‘regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations’.92 In accordance with Article 53 UN Charter, they may be relied upon by the UN Security Council ‘for enforcement action under its authority’. The EU institutions have avoided referring to the Union as an organization within the meaning of Article 53 UN Charter, and the UN institutions have also avoided making such an inference.93 However, the flexible and pragmatic approach which the latter has adopted to its interactions with international organizations in the security sphere94 suggests that the legal framework set out in the UN Charter clearly offers scope for the security ambitions of the Union within the parameters set out in the Treaties.95 Furthermore, the UN organs have developed over the years a security policy space in which regional organizations in general and the EU in particular may feature prominently. This became apparent in An Agenda for Peace, the report that the then UN Secretary General Boutros Boutros-Ghali drew up in response to a request from the UN Security Council.96 Opening up the range and scope of actors who may assist the UN in its security tasks after the end of the Cold War, this Report referred expressly to the Union and its important role in tackling the Balkan wars in the 1990s. The emphasis on the role of regional organizations became gradually more specific, as, for instance, the UN authorities referred with approval to the development of EU battle groups, that is small rapid reaction forces provided by the Member States for the conduct of EU operations,97 the development

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Art 52 UN Charter. See Nigel White, ‘The EU as a Regional Security Actor within the International Legal Order’, in Martin Trybus and Nigel White (eds), European Security Law (Oxford: OUP, 2007), 329, 332–5. 94 See Jan Wouters and Tom Ruys, ‘UN-EU Cooperation in Crisis Management’, in Jan Wouters, Frank Hoffmeister, and Tom Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (The Hague: TMC Asser Press, 2006), 229, 231–2. 95 For an analysis of the issues which the Union’s commitment to effective multilateralism may raise in terms of its loyalty to the UN system, see Per Cramér, ‘Reflections on European Effective Multilateralism and the Use of Force’, in Evans, and Koutrakos (eds), Beyond the Established Legal Orders—Policy Interconnections Between the EU and the Rest of the World (Oxford: Hart Publishing, 2011), 225. 96 A/47/277-S/24111 (17 June 1992). 97 See Report of the Secretary General A/59/2005 In larger freedom: towards development, security and human rights for all (21 March 2005), para 112. 93

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of the Union’s capabilities,98 and the involvement of the Union in regional conflicts.99 The osmosis between the UN and the EU is not confined to statements made by each of the parties in official documents. Instead, it has developed along two distinct but interrelated tracks.The first emerges in relation to a number of military operations and civilian missions which the Union has carried out since 2003. This will become apparent in Chapters 5 and 6. At this juncture, suffice it to point out that the very first security and defence operation of the Union, the European Union Police Mission in Bosnia and Herzegovina launched in 2003, assumed the tasks previously carried out by the United Nations International Police Task Force.100 While apparent, the link between the UN framework and the mandate of the CSDP missions may vary in its terms: for instance, the EU Police Mission in Bosnia and Herzegovina was welcomed rather than expressly authorized by the UN Security Council;101 Operation Artemis in the Democratic Republic of Congo,102 on the other hand, was authorized under Chapter VII of the UN Charter to be deployed in a city in the North East Congo which was the epicentre of clashes between militias and forces originating in Uganda.103 However, the links between a CSDP mission and the UN may give rise to considerable legal debate, as illustrated by the Union’s Rule of Law mission in Kosovo.104 This will be analysed in Chapter 6. Growing from this ad hoc relationship which adjusts to the practical and political circumstances of the time, the second track on which an osmosis between the EU and UN has been developing is a process of more formalized interaction. In September 2003, the then UN Secretary General Kofi Annan and the EU Presidency signed a Joint Declaration on UN–EU Co-operation in Crisis Management which set up an institutional framework within which the two organizations would enhance the coordination and compatibility in civilian and military crisis management. They established a joint consultative mechanism at working level, known as ‘the Steering Committee’, to deal with planning, training, communication, and best

98

General Assembly Resolution A/60/L.1 2005 World Summit Outcome (24 October 2005), para

93(a). 99

Report of the Secretary General A/61/204-S/2006/590 A regional-global security partnership: challenges and opportunities (28 July 2006), para 57. 100 See Joint Action 2002/210/CFSP [2002] OJ L 70/1. 101 See UNSC Resolution 1396 (2002), para 5. Similarly, see EUFOR ALTHEA in Bosnia and Herzegovina under Joint Action 2004/570/CFSP [2004] OJ L 252/10 and UNSC Resolution 1551 (2004), para 10; EUPOL AFGHANISTAN under Joint Action [2007/369/CFSP [2007] OJ L 139/33 and UNSC Resolution 1746 (2007), para 11. 102 Joint Action 2003/423/CFSP [2003] OJ L 143/50. 103 UNSC Resolution 1484 (2003). Similarly, see EUFOR DR Congo under Joint Action 2006/319/ CFSP [2006] OJ L 116/98 and UNSC Resolution 1671 (2006); EUFOR Tchad/RCA under Joint Action 2007/677/CFSP [2007] OJ L 279/21; and UNSC Resolution 1778 (2007), para 6. 104 Joint Action 2008/124/CFSP [2008] OJ L 42/92, last amended by Council Decision 2010/619/ CFSP [2010] OJ L 272/19.

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practices. This has given rise to some thinking within the EU as to the modalities of the provision of military capabilities by the Union to the UN.105 It has also given rise to further consolidation of the consultation mechanisms between the two organizations.106 In addition to the UN, the EU interacts with other international organizations. The analysis in Chapters 5 and 6 will examine its links with NATO and the African Union.The latter in particular has become more visible in the light of the considerable focus of CSDP in Africa.107

Conclusion This chapter highlighted the central threads which underpin the Union’s approach to security and defence, as these emerge from the main policy documents in the area. The notion of responsibility, the broad construction of external security, the references to the added value which the Union’s contribution may bring both on the regional and international scene, and the determination to rely upon the wide range of the instruments at its disposal, all suggest an underlying ambition in the Union’s security role. In articulating this role, the Union’s policy papers exude confidence, vigour, and enthusiasm. The context within which the role of the Union was articulated in these terms is noteworthy. It is recalled that the ESS and the Report on its implementation were drafted at a time when the EU had initiated and was about to complete the process of redrafting its primary rules. It was convinced that it was rich and successful and that the new Treaties were to mark an even brighter future. The Berlin Declaration of 2007, that is the Declaration on the occasion of the fiftieth anniversary of the signature of the Treaties of Rome, stated that:108 [t]his European model combines economic success and social responsibility. The common market and the euro make us strong. We can thus shape the increasing interdependence of the global economy and ever-growing competition on international markets according to our values. 105 See Elements of Implementation of the EU-UN Joint Declaration, adopted by the European Council on 17–18 June 2004. 106 See Joint Statement on UN-EU cooperation in Crisis Management (Brussels, 7 June 2007), in which the UN ‘recognizes the considerable contribution of human and material resources on the part of the European Union in crisis management’ (para 1) and which refers to ‘the achievements of the 2003 Joint UN-EU declaration’ (para 50). 107 See, in relation to non-proliferation, Panos Koutrakos, ‘The Non-proliferation Policy of the European Union’, in Evans and Koutrakos (eds), Beyond the Established Legal Orders (Oxford: Hart Publishing, 2011), 249, at 268–9. More generally, see Ademola Abass, ‘EU Crisis Management in Africa: Progress, Problems and Prospects’, in Steven Blockmans (ed), The European Union and Crisis Management: Policy and Legal Aspects (The Hague: TMC Asser Press, 2008), 327. 108 Declaration on the occasion of the fiftieth anniversary of the signature of the Treaties of Rome (Berlin, 25 March 2007). This was signed by the Presidents of the Commission and the Parliament as well as the Head of Government which held the Presidency at that time (that is Germany).

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Things have changed since then. To paraphrase Wodehouse, it is not difficult to distinguish between the current economic and political climate in Europe and a ray of sunshine. The pace of the deterioration of the financial stability of the eurozone is staggering, the political instability facing the countries seeking to avoid sovereign default tangible, and the risk of contagion real and unsettling. The repercussions of the crisis are also felt acutely by the rest of the Union and the international community.109 The distinct change in both the financial position of and the prevailing mood in the Union is directly relevant to the conduct and effectiveness of CSDP on various grounds. In practical terms, as the conduct of CSDP depends to a large extent on the Member States for the provision of appropriate funding and resources, their financial problems are bound to have an impact on both their capacity and willingness to contribute. The more the Union institutions and the Member States are preoccupied with staving off the collapse of the euro, the more their energies would focus on their internal policy and financial problems. Furthermore, the ambition of the Union as a security player is in direct correlation to the successes of European integration and, similarly, its weight on the international arena is determined accordingly. Therefore, the profound financial crisis and the ensuing political crisis which the Union faces since 2010 cast a disconcerting shadow on what the rhetoric of ambition and exuberance examined in this chapter actually mean in this new political reality. In terms of the character of CSDP, this rhetoric focuses on the interactions of the policy with other strands of the Union’s external action. As it appears to approach the latter as part and parcel of the raison d’être of CSDP, it also suggests the difficulty of ensuring the conduct of the policy pursuant to a coherent set of instruments pursuing a clear set of objectives. Put differently, the osmosis between CSDP and other external policies of differing legal characteristics may challenge the distinct position of the former with the Union’s legal order as a matter of practice. Viewed from this angle, coherence, both as a legal requirement set out in the Treaty and as a policy imperative underlined in the Union’s strategic documents emerges as the main challenge for both lawyers and policy-makers.

109

See Panos Koutrakos, ‘Editorial: Is there such a thing as too much law?’, (2012) 37 ELRev 1.

5 CSDP military operations

Introduction The analysis so far has focused on the legal and policy framework within which the European Union carries out the Common Security and Defence Policy.This chapter will initiate the analysis of the CSDP practice and, in particular, the military operations which the Union has undertaken and which will be examined in chronological order.1

Administrative framework The administrative framework which governs the planning and conduct of CSDP military operations is set out in Chapter 4. At this juncture, suffice it to point out that it is dense and relied upon in a heavily proceduralized context. This is hardly surprising. On the one hand, given the model of development of European integration since the 1950s, the reflex of the Member States and the existing EU institutions is to introduce heavily institutionalized structures in every new or emerging area of activity. On the other hand, given the sensitive subject matter of CSDP and the differences in strategic cultures among the Member States, institutions facilitate the gradual development of a culture of cooperation. This is essential to the mutual trust and understanding without which cooperation in the area of security and defence would be impossible. The existence of this dense institutionalized framework may give the impression that the Union has developed a fully operational structure within which the practicalities of every military mission would be addressed automatically as a matter of course. However, this is not the case. For instance, the EU has no permanent military headquarters where the conduct of the operation would be planned and monitored. Instead, every time the Union decides on a military mission, the choice of where the headquarters would be based is made on an ad hoc basis. In cases where the military mission is carried out with recourse to NATO capabilities, the operational 1 The CSDP practice has been examined exhaustively in Giovanni Grevi, Damien Helly, and Daniel Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (Paris: European Institute for Security Studies, 2009).

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headquarters of the mission are in the NATO Allied Command Operations, based in Mons, Belgium. If no NATO assets are relied upon, the choice is made among five locations offered by five Member States, namely the United Kingdom, Italy, France, Germany, and Greece.2 The State whose headquarters are chosen as the mission’s Operational Headquarters becomes the Framework State for the mission.3 A third possibility has emerged recently and is an Operations Centre based in Brussels, which may be activated following a Council Decision and in relation to a specific mission of a joint military and civil character. This Centre, which is envisaged to reach full capacity within twenty days and which would be staffed by EUMS personnel along with other staff from the EEAS has been activated once.4 While this has not been a permanent feature of CSDP practice so far, it is not inconceivable that reliance upon the Centre might become more deeply entrenched. The establishment of permanent EU Operational Headquarters has been a thorny issue. It is viewed by many as necessary for both reflecting the prominence of CSDP in the Union’s external action and facilitating the smooth conduct of missions. However, the establishment of such headquarters in Brussels, where the main EU institutions are also based, has also been seen as indicative of integration in an area where Member States are not only keen to be in control, but are also just as keen to be seen to be in control.Yet again, it becomes clear that, in this sensitive field, semantics matter. Furthermore, the establishment of autonomous EU headquarters may be seen as antagonistic to, and potentially undermining, NATO. In July 2011, the High Representative of the European Union for Foreign Affairs and Security Policy proposed the establishment of permanent headquarters in Brussels to be staffed by approximately 250 officers and civilians. This proposal was vetoed by the United Kingdom. In fact, Foreign Secretary William Hague stated that ‘the U.K. will block any such move now and in the future’ and described the proposal as a ‘red line’.5 To this violent opposition, five of the biggest Member States (France, Germany, Italy, Poland, and Spain) responded by urging Baroness Ashton to press ahead and find a solution to this problem ‘as a matter of urgency’.6

Military capabilities Each military operation is carried out by personnel offered by Member States.These vary and are determined on an ad hoc basis by each State in the light of the needs 2 The locations are Northwood (UK), Ulm (Germany), Paris (France), Rome (Italy), and Larissa (Greece). 3 The role of the Framework State is set out by the Council in COSDP 247 11278/2 of 24 July 2002. 4 Council Dec. 2012/173/CFSP on the activation of the EU Operations Centre for the Common Security and Defence Policy missions and operation in the Horn of Africa [2012] OJ L 89/66. 5 http://www.defensenews.com/article/20110718/DEFSECT04/107180306/U-K-RejectsIdea-EU-Operations-HQ (last accessed on 26 October 2012). 6 Bruno Waterfield, ‘ “Big five” tell Baroness Ashton to bypass Britain over EU military HQ’, The Daily Telegraph, 8 September 2011.

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identified in the Operations Plan once this has been approved by the European Union Military Committee, the Political and Security Committee, and, ultimately, the Council. Each operation is headed by the Operation Commander and also has a Force Commander who is responsible for its day-to-day conduct.7 In terms of capabilities, the objective of the European Security and Defence Policy was defined by the Helsinki European Council as follows:8 to agree to deploy rapidly and then sustain forces capable of the full range of Petersberg tasks as set out in the Amsterdam Treaty, including the most demanding, in operations of up to corps level (up to 15 brigades or 50,000–60,000 persons). These forces should be militarily self-sustaining with the necessary command, control and intelligence capabilities, logistics, other combat support services and additionally, as appropriate air and naval elements. Member States should be able to deploy in full at this level within 60 days, and within this to provide smaller rapid response elements available and deployable at very high readiness.They must be able to sustain such a deployment for at least one year.This will require an additional pool of deployable units (and supporting elements) at lower readiness to provide replacements for the initial forces.

In order to achieve this Headline Goal, the Member States engaged in November 2000 in a Capabilities Commitment Conference in order to determine which areas required enhancement. They pledged the assets which they would be able to commit and included them in a force catalogue. However, these suggested that the Helsinki Headline Goal was not achievable.Therefore, they launched the European Capabilities Action Plan in December 2001 which was followed in June 2004 by a new ‘Headline Goal 2010’. According to the latter, the Member States would ‘be able by 2010 to respond with rapid and decisive action applying a fully coherent approach to the whole spectrum of crisis management operations covered by the Treaty on European Union’.9 The 2010 Headline Goal endorsed the concept of battlegroups, that is, groups consisting of 1,500 troops, each of which should be deployable at 15 days’ notice and sustainable for at least 30 days (potentially extended to 120) either as a stand-alone force or as part of a larger operation. In 2005, an EU Requirements Catalogue was compiled which set the capabilities required for the Union to achieve the Headline Goal 2010. Two years later, a Force Catalogue was drawn up setting out the contributions pledged by the Member States, and a Progress Catalogue was compiled which identified the shortfalls between the national contributions and the EU Requirements Catalogue. 7 This post may be held by the Operation Commander: this is the case in EUTM Somalia (Art 2(2) of Joint Action 2010/96/CFSP). In the EU civilian-military supporting action to the African Union mission in Darfur (EU Support AMIS II), because of its formally mixed character, covering both civilian and military aspects, there was no EU Force Commander. Instead, there was a military advisor to the EU Special Representative responsible for the coherence of the military component of the EU action (Joint Action 2005/557/CFSP and Joint Action 2006/468/CFSP). 8 Helsinki European Council (10–11 December 1999), Presidency Conclusions, Annex: Progress Report on Strengthening the Common European Policy on Security and Defense. 9 Headline Goal 2010, approved by General Affairs and External Relations Council on 17 May 2004, endorsed by the European Council of 17 and 18 June 2004, para 2.

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All this intense activity of the EU and national administrations aiming to set goals and processes has not achieved tangible results. Neither the Helsinki Headline Goal nor the 2010 Headline Goal was met, and no battlegroup has been deployed at the time of writing (2012).10 This has not prevented the European Council from stating in Laeken in December 2001 that ‘the Union is now capable of conducting some crisis-management operations’, nor did it deter the General Affairs and External Relations Council from declaring in May 2003 that ‘the EU now has operational capability across the full range of Petersberg tasks ...’. In fact, CSDP operations are carried out on the basis of pragmatic arrangements pursuant to the troops which the Member States are actually willing to commit on the ground.

The EU–NATO relationship Since the establishment of CSDP, the EU and the North Atlantic Treaty Organization (NATO) have been trying to manage their relationship in order to avoid overlaps and duplication.11 The main role of NATO is to provide the foundation for the collective self-defence of its members. In accordance with Article 5 of its founding Treaty, signed in Washington DC on 4 April 1949, The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all, and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually, and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

This is markedly different from the main focus of the CSDP, which is to carry out peace building and crisis management operations in accordance with Article 43 TEU. While the mutual assistance clause laid down in Article 42(7) TEU for the first time at Lisbon appears to draw upon Article 5 NATO, the analysis in Chapter 3 pointed out the limited function of this provision. In any case, and in addition to its collective defence role, NATO also has a wider mandate in accordance with Article 2 of the Washington Treaty which reads as follows: 10 It appears, however, that the PSC has tacitly agreed in May to use the Battlegroup concept as a safety valve for EUFOR ALTHEA. 11 See the early analysis in Hall Gardner (ed), NATO and the European Union—New World, New Europe, New Threats (Aldershot: Ashgate Publishing, 2004); and Jolyon Howorth and John TS Keeler (eds), Defending Europe:The EU, NATO and the Quest for European Autonomy (Basingstoke: Palgrave Macmillan, 2003).

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The Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions, by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well-being. They will seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.

The above underlines a dimension of NATO’s role which brings it closer to the EU’s role in the area of security and defence policy.12 Managing their relationship has been far from easy.13 This has been due to various factors. Their diverse membership is one such factor: there are six EU Member States which are not NATO members (Austria, Cyprus, Ireland, Finland, Malta, Sweden), and three European NATO members which are not EU Member States (Norway, Iceland, Turkey). Another factor is about political allegiances, as some Member States, such as the United Kingdom, have been traditionally Atlanticist, rather attached to the preeminence of NATO in the area of security and defence and reluctant to engage in processes which may be viewed as undermining NATO’s role. On the other hand, France has always had an ambivalent relationship with the Alliance and is keen to develop the autonomy of the Union’s security and defence dimension. The links between the EU and NATO originate before the launch of the European Security and Defence Policy at the St Malo meeting between the then British Minister Tony Blair and the then French President Jacques Chirac. In fact, there were a number of arrangements about coordination between NATO and the Western European Union, the organization upon which the Union would draw following the entry into force of the Maastricht Treaty.14 The main foundation of the EU–NATO relations is the Berlin Plus agreement, concluded by the then High Representative for the common foreign and security policy Javier Solana (who had also been the Secretary General of NATO), and the then NATO Secretary General George Robertson.15 Concluded in December 2002 and finalized in March 2003, this consists of a number of documents, some of them classified, covering areas such as exchange of information, access to NATO planning, and access to NATO capabilities and assets.16 These are applicable in cases where the EU needs to rely upon NATO in order to carry out a crisis management operation, even though they have not been relied upon since 2004. 12 See Heike Krieger, ‘Common European Defence: Competition or Compatiblity with NATO?’, in Martin Trybus and Nigel White (eds), European Security Law (Oxford: OUP, 2007), 174. 13 See Steven Blockmans, ‘The Influence of NATO on the Development of the EU’s Common Security and Defence Policy’, in Ramses A Wessel and Steven Blockmans (eds), Between Autonomy and Dependence—The EU Legal Order under the Influence of International Organisations (The Hague/Vienna: TMC Asser Press/Springer, 2012), 243. 14 See Fabien Terpan, ‘EU-NATO Relations: Consistency as a Strategic Consideration and a Legal Requirement’, in Martin Trybus and Nigel White (eds), European Security Law (Oxford: OUP, 2007), 270, at 272–82. 15 (2003) 42 ILM 242. 16 For the legal nature of the Agreement, see Martin Reichard, ‘The EU-NATO “Berlin Plus” Agreement: The Silent Eye of the Storm’, in Steven Blockmans (ed), The European Union and Crisis Management—Policy and Legal Aspects (The Hague: TMC Asser Press, 2008), 233.

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At the core of the Berlin Plus Agreement is the EU–NATO Declaration on European Security and Defence Policy, which was drawn up on 16 December 2002.17 It refers to the ‘strategic partnership’ between the two entities, and points out the ‘continued important role of NATO in crisis management and conflict prevention, and reaffirms that NATO remains the foundation of the collective defence of its members’. It is recalled that the latter point is expressly acknowledged in the TEU.18 The Declaration then refers to the role of the EU’s security and defence policy, that is, to ‘add to the range of instruments already at the European Union’s disposal for crisis management and conflict prevention ...the capacity to conduct EU-led crisis-management operations, including military operations where NATO as a whole is not engaged’. It defines the activities of the EU and NATO as ‘mutually reinforcing, while recognising that the European Union and NATO are organizations of a different nature’. It, then, identifies the main principles which govern the EU–NATO relationship, namely partnership, effective mutual consultation, dialogue, cooperation and transparency, equality and due regard for the decision-making autonomy of both EU and NATO, respect for the interests of the EU Member States and NATO, respect for the principles of the UN Charter, and coherent, transparent, and mutually reinforcing development of capability requirements of the two organizations.19 This rhetoric of complementarity and coordination is supported by open channels of communication between the two entities. On the one hand, there are regular meetings at ambassadorial level between the Political and Security Committee and NATO’s North Atlantic Council. On the other hand, there is a small EU cell at NATO’s Supreme Headquarters Allied Powers Europe (SHAPE), and a NATO liaison team at the EU Military Staff. In practical terms, the interactions between the two organizations have been marred by problems.20 A major problem has been political and is about the application of the Berlin Plus arrangements on exchange of information. Turkey prevents meetings on strategic cooperation as it objects to the participation of Cyprus. The official explanation for this approach is the wording of the Berlin Plus Agreement and the non-participation of Cyprus in the framework, which NATO has established with a number of non-members in its region, called Partnership for Peace. Cyprus, on the other hand, claims that such an approach would only be justified in cases where the EU carries out a military operation by relying upon NATO’s capabilities and assets. Cyprus has also blocked the participation of Turkey in the 17 Doc SO240/02 (http://www.consilium.europa.eu/uedocs/cmsUpload/73803%20-%20Solana %20-%20Permanent%20arrangements%20+%20NATO%20declaration.pdf), (last accessed on 26 October 2012). 18 Article 42(2) TEU. 19 See the analysis in Martin Reichard, The EU–NATO Relationship (Aldershot: Ashgate Publishing, 2006). 20 See Simon Duke, ‘The Future of EU-NATO Relations: a Case of Mutual Irrelevance Through Competition?’, (2008) 30 Journal of European Integration 27.

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European Defence Agency as an associate member. At the core of this dispute is the long-standing conflict in Cyprus. Another problem is about the significant gap between the international role which NATO seeks to assume and the capabilities which its European members are prepared to commit. This will be examined in Chapter 9 in the context of the analysis of military capabilities and CSDP. At this juncture, suffice it to point out that it has become more urgent in the last few years, as the United States have reoriented their defence priorities away from Europe and towards Southern East Asia and the Pacific Ocean. Finally, NATO is going through an existential crisis of its own, seeking to balance its collective defence and crisis management functions and adjust them to the evolving geopolitical environment.21 Two issues which have been raised in this context are the shifting interest of the United States away from Europe and the imbalance between the contributions to NATO assets and capabilities between the United States and the European members. These will be examined again later in this analysis.

EUFOR Concordia (FYROM) (2003) This was the first military operation carried out by the Union, and only the second CSDP operation. It was undertaken in the context of the civil conflict between the Government of Former Yugoslav Republic of Macedonia (FYROM) and ethnic Albanians which broke out in early 2001. After a few months, the government of FYROM and ethnic Albanian representatives signed the Ohrid Framework Agreement in August 2001, a peace settlement which aimed to put an end to the conflict. This was brokered by Javier Solana, the High Representative for Common Foreign and Security Policy, as he then was, George Robertson, the then Secretary General of NATO, and the then Chairman of the Organization for Security and Cooperation in Europe Mircea Geoană. The implementation of the Agreement depended on the disarmament and disbandment of the National Liberation Army, that is the ethnic Albanian military force. The UN Security Council expressly supported the efforts of the international community, including the European Union, to the implementation of the Agreement.22 The task of overseeing the latter was entrusted to NATO which, to that effect, deployed approximately 3,500 troops in an operation called ‘Essential Harvest’. This was succeeded by a much smaller force (Operation Amber Fox) aiming to protect international monitors responsible for overseeing the implementation of the Ohrid Agreement. It was from the subsequent, much smaller, NATO operation (Allied Harmony) of approximately 450 troops, which provided protection and military advice that EUFOR Concordia took over. 21 See David S Yost, ‘NATO’s evolving purposes and the next Strategic Concept’, (2010) 86 International Affairs 489. 22 S/RES/1371 (2001).

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It was launched on 31 March 200323 and was envisaged to last for six months, but was extended until 15 December 2003 when it expired.24 This was a small operation of approximately 350 military personnel which were contributed by all Member States (except Denmark, which has a permanent opt-out from CSDP, and neutral Ireland) and fourteen third countries.25 The main parameters were set out in Joint Action 2003/92/CFSP.26 It aimed to ‘further contribute to a stable, secure environment, to allow the FYROM Government to implement the Ohrid Framework Agreement’,27 and was undertaken following an invitation from the FYROM authorities. The central characteristic of the operation is its organic link with NATO. Its very raison-d-être was to take over from the NATO operation in the area, and it relied upon its assets and capabilities on the basis of arrangements agreed with NATO. In terms of command, the Operation Commander was the NATO Deputy Supreme Allied Commander for Europe and the operation’s headquarters were at the Supreme Headquarters of Allied Powers in Europe, in Mons. While the EU Military Committee was responsible for monitoring the execution of the operation, and the Political and Security Committee was responsible, under the supervision of the Council, for the political control and strategic direction of the operation, there was provision for close links with NATO. In particular, Article 10 of Joint Action 2003/92/CFSP referred to the ‘transparency, consultation and cooperation between the two organisations’ in the interests of which regular contacts and meetings are provided at PSC and Military Committee level, as well as between EU and NATO commanders in the region. While NATO was kept informed throughout the operation, it was made clear that the ‘entire chain of command will remain under the political control and strategic direction of the EU throughout the operation, after consultation between the two organisations’.28 The deployment of EUFOR Concordia in association with NATO was not uncontroversial. France had suggested that the EU undertake a fully autonomous operation. However, this was rejected by other Member States, not least Germany and the United Kingdom which were keen to ensure that the emerging security and defence policy of the Union would not be seen as antagonistic to NATO. Another feature of the operation was its place within the context of the Union’s approach to the Balkans. In its preamble, Joint Action 2003/92/CFSP refers to the Union’s ‘broad approach’ and states that its ‘activities ...will contribute to the overall peace implementation in the Former Yugoslav Republic of Macedonia as well as to the achievements of the Union’s overall policy in the region, notably the stabilisation and association process’.29 This raises two issues. The first is about the other Union policies in the area. Joint Action 2003/92/CFSP referred expressly to the 23

Council Joint Action 2003/202/CFSP [2003] OJ L 76/43. Council Joint Action 2003/563/CFSP [2003] OJ L 190/20. 25 Bulgaria, Canada, Czech Republic, Estonia, Hungary, Iceland, Latvia, Lithuania, Norway, Poland, Romania, Slovakia, Slovenia, Turkey. 26 27 [2003] OJ L 34/26. [2003] OJ L 34/26, first recital. 28 29 Art 10(2) of Joint Action 2003/92/CFSP. Second recital. 24

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programme through which the then Community provided assistance for reconstruction, development, and stabilization to South-Eastern European countries.30 The second, related, issue is about the links between the different strands of the Union’s approach and the harmony in their implementation. In this context, special attention is paid to the European Union’s Special Representative (EUSR): Article 7 of Joint Action 2003/92/CFSP provided that, ‘without prejudice to the chain of command, EU commanders shall coordinate closely with the EU Special Representative in FYROM with a view to ensure consistency of the military operation with the broader context of the EU activities in FYROM’.31

Operation Artemis (RD Congo) (2003) This was the first EU operation in the area. Following a savage civil war, which had started in 1993 and in which third countries, such as Uganda and Rwanda, had become involved, a negotiation process started under the aegis of UN following the Lusaka Ceasefire Agreement (concluded by the Democratic Republic of Congo, Uganda, Rwanda, Angola, Namibia, and Zimbabwe) in July 1999. Following the exit of Ugandan troops from Ituri, an eastern province of Congo, a civil war erupted in February 2003 which led to a major humanitarian crisis, producing a very considerable number of displaced persons. The EU stated that it would support action taken by the United Nations and the African Union in support of the implementation of the Lusaka Ceasefire Agreements, as well as the other related Agreements between the parties.32 It also expressed its willingness to cooperate with them and other relevant actors of the international community and to provide support for the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC).33 The United Nations deployed a force, consisting of 700 Uruguayan military personnel, in April 2003. However, this did not find it possible to address the situation. It was in this context that the UN Security Council provided for the legal basis which allowed the EU to undertake Operation Artemis. This was the UN Security Council Resolution 1484 (2003), which was adopted on 30 May 2003 under Chapter VII of the UN Charter.34 It invited States to contribute to a multinational force which would be deployed in Bunia, a city in the North-East Congo. This was an area rich in natural resources, which was the epicentre of clashes between militias and forces originating in Uganda. 30

Council Reg 2666/2000 [2000] OJ L 306/1. Council Reg 2666/2000 [2000] OJ L 306/1. It also adds that, ‘[w]ithin that framework, EU Commanders will liaise with other international actors in the area as appropriate’. 32 Common Position 2003/319/CFSP [2003] OJ L 115/87. 33 Common Position 2003/319/CFSP [2003] OJ L 115/87, Art 3. 34 For an analysis of Chapter VII, see Bruno Simma (ed), The Charter of the United Nations—A Commentary 2nd edn (Oxford: OUP, 2002). 31

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The UN Security Council invited Member states35 to contribute to the stabilization of the security conditions and the improvement of the humanitarian situation in Bunia, to ensure the protection of the airport, the internally displaced persons in the camps in Bunia, and, if the situation requires it, to contribute to the safety of the civilian population, United Nations personnel, and the humanitarian presence in the town. It was with reference to this Resolution that the Council adopted Joint Action 2003/423/CFSP, which defined the main objective of Operation Artemis.36 In accordance with the limited mandate, both in scope and duration, which Resolution 1484 (2003) set out, the operation lasted for less than three months (from 12 June until 1 September 2003). It was launched on 12 June 200337 and comprised approximately 2,000 troops. It was carried out with the contribution of fourteen States, two candidate countries, and three third countries.38 The organic link with the United Nations is not the only interesting feature of the origin of Operation Artemis. Originally, the UN Secretary General approached France and invited it to lead a multinational force in the area. In the light of the historic links of France with the area, this was hardly surprising. However, France took the initiative to carry out the operation within the context of the Union’s security and defence policy. Therefore, it is the integration of the French intervention within the EU structure which gave rise to Operation Artemis. The origin of the operation set the tone for the management of its deployment, as France assumed the central role by leading the operation and providing the vast majority of troops.39 In fact, Operation Artemis was the first military operation carried out autonomously by the Union. Operation Artemis provided the Union with a significant confidence boost. It was considered to be a success in so far as it achieved its objectives with minimal casualties40 on an operation undertaken for the first time without recourse to NATO resources and in a continent where the security and defence presence of the Union had been non-existent. However, practical problems became apparent soon, including the obsolescence of equipment and the lack of common communications channels,41 as well as the absence of common strategic transport.42

35

36 Para 1. [2003] OJ L 143/50. Council Dec. 2003/432/CFSP [2003] OJ L 147/42. 38 The Member States comprised Austria, Belgium, France, German, Greece, Ireland, Italy, the Netherlands, Portugal, Spain, Sweden, and the UK. The candidate countries were Hungary and Cyprus, and the third countries were Brazil, Canada, and South Africa. 39 See the analysis in S Duke, ‘Consensus Building in ESDP: Lessons of Operation Artemis’, (2008) Dublin European Institute Working Paper 08/07. 40 Two troops were killed in June 2003: Damien Helly, ‘The EU Military Operation in DR Congo (Artemis)’, in Grevi, Helly, and Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 181, at 183. 41 See Helly, ‘The EU Military Operation in DR Congo (Artemis)’, in Grevi, Helly, and Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), at 184. 42 See Anand Menon, ‘Empowering paradise? The ESDP at ten’, (2009) 85 International Affairs 227, at 234. 37

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EUFOR ALTHEA (Bosnia and Herzegovina) (2004–present) This was the second military operation which the Union undertook in the Balkans, the first being Operation CONCORDIA in FYROM. It was launched on 2 December 200443 and no date for its expiration was provided. In fact, the operation is still on-going. The operation was conceived within the context of the direct, forceful, and evolving approach of the international community’s to Bosnia and Herzegovina. Following the end of the war, Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia signed the Framework Agreement for Peace in Bosnia and Herzegovina (BiH) on 14 December 1995 (Dayton Peace Agreement).44 The main objective of the Agreement was to ensure the coexistence between the three communities in Bosnia and Herzegovina (Bosnian Muslims, Croat Bosnians, and Bosnian Serbs). As its title suggests, the Agreement is wide-ranging and includes provisions on, among others, regional stability, elections, boundaries, constitutional issues, human rights, and displaced persons. It also introduced a system of international supervision, by establishing the Office of the High Representative which it endowed with significant powers such as hiring and firing local politicians, and introducing and blocking laws. In order to ensure compliance with its military aspects, the Agreement expressly provides that the United Nations Security Council would authorize Member States or regional organizations and arrangements to establish a multinational military Implementation Force in the country.45 It was also provided that NATO might establish such a force, and that other States might also participate in the military aspects of the Agreement. In accordance with the latter, NATO set up its operation in 1995 under the Implementation Force, which amounted to 60,000 troops and which was tasked with monitoring the separation and partial demobilization of the Bosniak–Croat and Serb forces. After a year, this force was replaced by the Stabilisation Force which amounted to 30,000 troops and which was responsible for protecting the return of locals to their communities and for arresting suspects of war crimes. This was further reduced to approximately 7,000 troops. It was in order to take over from this force that the Union undertook EUFOR ALTHEA, and it did so under the express authorization by the United Nations. In particular, only three days before the Union determined the mandate of its

43

Council Dec. 2004/803/CFSP [2004] OJ L 353/21. (1995) 35 ILM 75. For an analysis, see Bonnie Jenkins, ‘The Enhancement of Political and Military Stability in the Former Yugoslavia Through the Use of International Law: Annex 1-B of the General Framework Agreement’, (1995) 19 Fordham International Law Journal 1920. 45 Annex IA of the Agreement, Art I(1)(a). 44

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operation, the United Nations Security Council (UNSC) expressly welcomed its intention to launch it,46 and then authorized it under Chapter VI.47 The operation originally comprised 7,000 troops (that is the same strength as that of the NATO Stabilisation Force). All the then Member States contributed, except for Denmark, Cyprus, and Malta (the latter two due to their non-participation in NATO). In addition, fifteen third countries participated over the years.48 This was not an autonomous operation, but relied on NATO assets and capabilities, and its Operation Commander was the Deputy Allied Commander for Europe.49 The mandate of the operation is set out in Council Joint Action 2004/570/ CFSP and is ‘to provide deterrence, continued compliance with the responsibility to fulfil the role specified in [the Peace Framework Agreement] in BiH and to contribute to a safe and secure environment in BiH’.50 The main task of the operation is to monitor compliance with the Framework Agreement, ensured in practical terms mainly through patrols on the ground and confiscation of weapons. This was supplemented by various supporting tasks, such as establishing liaison arrangements with local civilian and military authorities and other international organizations, assisting the movement of actors such as the United Nations High Commissioner for Refugees in their humanitarian operations, and protecting the movement of civilian populations, refugees, and displaced persons. The name of the operation reflects the nature of its tasks—‘Althea’ is the Greek name for ‘healer’. Two distinct phases may be identified in the life of the operation. The first lasted from the time it was launched in December 2004 until 2007, and was characterized by the forceful intervention of EU troops in order to eradicate local networks protecting war criminals suspects. In the second phase, the number of EU forces was considerably lower (at the time of writing (2012), the operation consists of approximately 1,200 troops)51 and more localized (concentrating in the area surrounding Sarajevo). This third military operation carried out in the context of CSDP deals with an area of profound strategic interest for the Union, it has been the biggest, and has lasted the longest. It was apparent from the start that the military operation was but a part of the wider presence of the Union in the country.52 This raises questions of 46

UNSCR 1551 (2004), Art 11. S/RES/1575 (2004). This was reiterated in subsequent UNSC Resolutions S/REC/1639 (2005), S/REC/1722 (2006), S/REC/1785 (2007), S/REC/1845 (2008), S/REC/2019 (2011). 48 See PSC Dec BiH/1/2004 [2004] OJ L 324/20, PSC Dec BiH/3/2004 [2004] OJ L 325/64, PSC Dec BiH/5/2004 [2004] OJ L 357/39, PSC Dec BiH/13/2008 [2008] L 237/90. These consisted of Albania, Argentina, Chile, Dominican Republic, El Salvador, FYROM, Guatemala, Honduras, Switzerland, Turkey, Canada, Morocco, New Zealand, Norway, Bulgaria. 49 See PSC Dec BiH/2/2004 [2004] OJ L 324/22, PSC Dec BiH/10/2007 [2007] OJ L 293/8, PSC Dec NiH/17/2011 [2011] OJ L 18/41. 50 [2004] OJ L 252/10, Art 1. 51 According to information in April 2011, twenty-one Member States participate in the mission along with Albania, Chile, FYROM, Switzerland, and Turkey. 52 Recital 1 of Joint Action 2004/570/CFSP states that ‘the European Council has announced the readiness of the European Union for an ESDP mission in Bosnia and Herzegovina (BiH), including a military component’. Art 1(1) points out that the ‘operation shall be part of the overall ESDP mission in BiH’. 47

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coherence. Article 7 of Joint Action 2004/570/CFSP expressly deals with the coherence of EU response, and identifies three links responsible for ensuring it: the Council which is generally responsible for ensuring the maximum coherence and effectiveness for the EU efforts in BiH; the EUSR who is responsible for promoting overall political coordination in BiH; and the EU Force Commander who is to take into account advice and any requests from the EUSR, and is to liaise with the Union’s Police Mission, which had been deployed in BiH since 2003.53 Two issues are worth raising at this juncture. The first is about the EU Special Representative and the role with which he was endowed. It is recalled that Lord Ashdown was both High Representative for the international community and EUSR. In fact, his mandate was adjusted by the Council and was set out in very broad terms on the same day when the latter adopted the mandate of EUFOR ALTHEA.54 The emphasis on the role of the EUSR may be explained on various grounds: acting under the authority of the Union’s High Representative, he provides a localized point of contact for the latter. This function is also carried out for the other EU actors in the area, given the interactions between the military operation and the other strands of the Union’s presence in BiH. Significantly, at the time of the planning and launch of EUFOR ALTHEA, the EUSR post was held by Lord Ashdown, a forceful and dynamic personality who commanded international respect and who was widely viewed as capable of bringing focus and determination in an area where a miscellany of international actors had to deal with a very sensitive political and security environment.55 The second issue is about the role of Operation ALTHEA within the wider context of EU policies in the area. As it was deployed when the serious security issues in the area had already been addressed by NATO forces, it set about tackling war crime suspects and the various networks that protected them. In doing so, it targeted organized crime networks in ways which caused tension with the existing EU Police Mission in the area. In fact, the operation includes an Integrated Police Unit, which aims to assist in the maintenance of public order and security, and to support the implementation of civilian aspects of the Dayton Agreement.Therefore, turf wars with the Police Mission, as well as substantive disagreements about policy approach, were not avoided.56 Both these points illustrate the significance of factors which may not be planned in advance, such as the personality of the individuals involved in the conduct of the operation. For instance, Lord Ashdown and the first ALTHEA Commander were of the same views as to how to tackle local problems and enforce the Union’s presence 53

See Joint Action 2005/824/CFSP [2005] OJ L 307/55. See Joint Action 2004/569/CFSP [2004] OJ L 252/7. It was later amended by Joint Action 2007/748/CFSP [2007] OJ L 303/38 in order to achieve ‘optimal coordination and coherence’ (recital 3), and Joint Action 2008/130/CFSP [2008] OJ L 43/22. 55 He had been appointed under Council Joint Action 2002/211/CFSP [2002] OJ L 70/7. 56 See Eva Gross, ‘The end of the EU Police Mission in Bosnia and Herzegovina: What lessons for the Common Security and Defence Policy’, (Brussels: European Policy Centre, Policy Brief, 13 June 2012), 2–3. 54

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in the area. However, this was not the case initially in relation to the latter and the Head of the EU Police Mission in BiH.Within a crowded institutional scene where the interactions of the relevant players are considerable, albeit ill defined, such factors become important as a matter of fact.

EU Support to AMIS Action (Darfur) (2005–2007) This was a joint civilian and military mission aiming to support the African Union’s initiative in Darfur in Western Sudan. Following the signing of a ceasefire agreement between the parties in April 2004, the African Union deployed a small observer mission (AMIS) entrusted with monitoring the application of the Agreement and engaging in confidence-building measures. As the security situation deteriorated, this force was beefed up and its operation became a peacekeeping one (AMIS II). The objective of the Union’s operation was ‘to ensure effective and timely EU assistance to support the AMIS II enhancement’.57 In 2007, its task was extended when the African Union, under a mandate by the UN Security Council,58 established an operation in Somalia (AMISOM) aiming to contribute to the initial stabilization phase in Somalia. Therefore, in April 2007, the EU added a military support element to AMISOM.59 The EU operation expired on 31 December 2007,60 when the joint UN and African Union Hybrid Operation in Darfur (UNAMID) took over. This was a small operation, comprising approximately thirty police officers, fifteen military experts, and two military observers. These were mainly based at the headquarters of the African Union in Addis Ababa, and the AMIS headquarters in Khartoum. Given its joint military/civil nature, it was coordinated in Brussels by a specially established joint coordination team. The military component of the operation covered the provision of planning and technical assistance to AMIS II command, military observers, training of African troops and observers, as well as strategic and tactical transportation. As far as its contribution to AMISOM, this consisted of assisting the strategic planning cell in the planning of the African Union operation, including the drafting of the AMISOM deployment plan. The civilian component of the operation consisted of providing advice, training and administrative support to the civilian police component of AMIS.61 57

Joint Action 2005/557/CFSP [2005] OJ L 188/46, Art 1. S/RES/1744 (2007). Joint Action 2007/245/CFSP [2007] OJ L 106/65. 60 Joint Action 2007/887/CFSP]2007] OJ L 346/28. 61 See Benedikt Franke, ‘The European Union’s supporting actions to the African Union mission in Sudan (AMIS) and Somalia (AMISOM)’, in Grevi, Helly, and Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 255, at 260–1. 58 59

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The EU had already provided support for the African Union in the area pursuant to its other policies. For instance, it had set up the African Peace Facility through which the Commission had committed considerable sums for supporting the African Union’s funding personnel costs, including salaries, allowances, insurance, travel, food, and medical costs.62 Furthermore, Member States made bilateral contributions too in kind, including expertise, equipment, food, and airlifts. An important feature of the operation is local ownership which is stressed time and again in the relevant instruments. Article 1 of Joint Action 2005/557/CFSP states that the ‘EU shall respect and support the principle of African ownership and the EU supporting action shall be to support the AU and its political, military and police efforts to address the crisis in the Darfur region of Sudan’. As the CSDP operation was but a part of a multilayered policy approach, coordination was central. Two aspects of it may be distinguished, namely external coordination (involving liaising with both the African Union and other institutional and bilateral donors engaged in supporting AMIS II, such as the UN and NATO) and internal coordination (between the different strands of the EU’s presence in the area and, therefore, the Council Secretariat, the Commission, and the CSDP mission). To that effect, an EU Coordination Cell was established in Addis Ababa. Comprising a Political Adviser, a Military Adviser, and a Police Adviser, it managed day-to-day coordination with all relevant EU actors and with the Administrative Control and Management Centre within the chain of command of the African Union in Addis Ababa in order to ensure coherence and timely EU support to AMIS II.The Cell was responsible for both, and was under the direction of the EU’s Special Representative who acted under the authority of the Union’s High Representative.63 In practical terms, internal coordination was managed through the doublehatting of various actors. For instance, the police advisor to the EU Special Representative was also the Head of the EU Police Team and was responsible for the day-to-day management of the police activities.64 Similarly, the military advisor to the EU Special Representative was responsible for ensuring the coherence of the military component action of the CSDP mission and its day-to-day coordination with the EU Coordination Cell in Addis Ababa. This reliance upon dual institutional roles is noteworthy, for it is by no means an isolated development. In other areas where the EU has intervened and where a number of its actors are involved in policy-making, its institutions have recourse to this method, expecting that closer institutional association would give rise to policy coherence.The most high-profile example of this practice is the appointment of the High Representative of the

62 See Franke, ‘The European Union’s supporting actions to the African Union mission in Sudan (AMIS) and Somalia (AMISOM)’, in Grevi, Helly, and Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 255, at 258. 63 See Art 5(1) of Joint Action 2005/557/CFSP. 64 Art 7(1) and (2) of Joint Action 2005/557/CFSP.

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European Union for Foreign Affairs and Security Policy under the Lisbon Treaty.65

EUFOR RD Congo (2006) While in Operation Artemis the EU had deployed troops on relatively short notice, the second military operation in Congo, EUFOR RD Congo, proved to be a rather protracted aff air. In December 2005, the UN raised the possibility of an EU military force in order to assist MONUC during the elections, which were scheduled for the second half of 2006. Following considerable reluctance by Germany, the EU agreed, and in April 2006 the United Nations Security Council adopted Resolution 1671 (2006) under Chapter VII of the UN Charter. This authorizes the EU to deploy a military operation in order to carry out the following objectives:66 (a) to support MONUC to stabilize a situation, in case MONUC faces serious difficulties in fulfilling its mandate within its existing capabilities, (b) to contribute to the protection of civilians under imminent threat of physical violence in the areas of its deployment, and without prejudice to the responsibility of the Government of the Democratic Republic of the Congo, (c) to contribute to airport protection in Kinshasa, (d) to ensure the security and freedom of movement of the personnel as well as the protection of the installations of EUFOR RD Congo, (e) to execute operations of limited character in order to extract individuals in danger. UNCS Resolution 1671 (2003) states that decisions to engage the mission forces will be taken by the European Union upon a request by the Secretary-General, or in emergency cases, in close consultation with MONUC. It also states that, pending the conclusion of an agreement on the status of forces between the EU and DRC, the agreement concluded with the latter by the UN in 2000 on the status of UNMIC would apply mutatis mutandis to EUFOR RD Congo troops. The operation was established under Joint Action 2006/319/CFSP.67 It was launched on 12 June 200368 and ended on 30 November 2006.69 It consisted of the deployment of three elements: the first was the smallest, comprising fewer than 1,000 troops, and was based in Kinshasa; the second was stationed in Gabon, that is a two-hour flight from Kinshasa, and was the biggest element which would intervene in cases of an attack on the Kinshasa force; the third was a 65

66 See the analysis in Ch 2. Para 8 of UNSC Resolution 1671, (2006). 68 [2003] OJ L 116/98. Council Dec. 2006/412/CFSP [2006] OJ L 163/16. 69 Council Joint Action 2007/147/CFSP repealing Joint Action 2006/319/CFSP on the European Union military operation in support of the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) during the election process [2007] OJ L 64/44. 67

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reserve force stationed in Germany and France and which never needed to interfere. All in all, twenty-one Member States, and two third countries participated in the operation.70 The operation headquarters were in Potsdam, as Germany was the Framework Nation. Contrary to Operation Artemis, this was a fully multinational operation. The EU’s High Representative was given a significant role, as he was responsible for coordinating with the United Nations, the Congolese authorities and neighbouring countries. In doing so, he was assisted by the EU’s Special Representative in the area, in coordination with the Presidency. The operation was ultimately successful in meeting its objectives, in so far as two rounds of elections ran smoothly without major attacks. However, it was also characterized by its limited mandate and geographical scope. These may be explained partly by the distinct reluctance by Germany both to lead and engage—it was only following considerable discussions that it gave its agreement. Three other issues are also worth noting. First, the cooperation between EUFOR RD Congo and MONUC was not without problems. Coordination problems emerged, and the dense institutional set-up of the CSDP framework made the channels of communication slow down the whole process.71 Second, Member States were reluctant to commit troops on the ground.While political agreement as to the need for the Union to undertake the operation was reached, this was not matched by actual deployment of national troops. Third, the issue of capabilities arose again, in particular in relation to airlift. The operation did not have at its disposal the number of aircraft which had been planned, and therefore, only one deployment at a time was possible beyond Kinshasa.72 It is recalled that the problems due to insufficient capabilities had already been raised following the completion of Operation Artemis.

EUFOR Tchad/RCA (2008–2009) This is an operation authorized by the United Nations Security Council under Chapter VII of the UN Charter,73 in the context of the latter’s effort to address the regional dimension of the Darfur crisis. It is recalled that, in addition to the civil war in Western Sudan, there was considerable political instability in Chad and the Central African Republic. This broader dimension was of particular concern to the 70 These included Austria, Belgium, Cyprus, Czech Republic, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, Turkey, and Switzerland. 71 For instance, at an exercise in July 2006, it transpired that, following a formal UN request for EUFOR engagement, it would take the EU twenty-four hours to respond to MONUC. 72 See Claudia Majors, ‘The military operation EUFOR RD Congo 2006’, in Grevi, Helly, and Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 311, at 316. 73 S/RES/1778 (2007).

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UN Security Council, which had referred to regional security as necessary in order to achieve long-lasting peace in Darfur.74 In this vein, the following year UNSC Resolution 1769 (2007) authorized the establishment of an operation in Darfur by both United Nations and African Union troops (UNAMID), and explored the idea of a UN presence in Eastern-Chad and North-Eastern Central African Republic. Once it had been decided that such a small force would be deployed (MINURCAT), the UN looked for a bridging operation which would prepare the ground in the region and from which the envisaged UN–AU mission would take over.75 It was this bridging function that EUFOR Tchad/RCA carried out.The Council emphasized the significance of the regional dimension of the Darfur crisis,76 and, under considerable pressure by France, it was agreed that the EU would establish a military operation in Chad and Central African Republic.77 This was launched on 28 January 200878 and ended on 15 March 2009,79 when the EU force handed over to MINURCAT. France was the Framework Nation, and the Operational Headquarters of the operation were in Paris. It consisted of contributions by twentythree Member States and three third countries,80 amounting to a total of 3,700 troops. Once the operation ended, a considerable number of EUFOR troops stayed in the area, and were transferred to the UN force which took over. The aim of the operation was to contribute to the protection of refugees and internally displaced persons, to facilitate the delivery of humanitarian assistance, help to create the conditions for displaced people to return to their places of origin voluntarily, and to contribute to ensure MINURCAT’s security and freedom to operate.81 To that end, it carried out, among others, short- and long-range patrols and air missions. The operation was considered successful by the EU institutions and troopcontributing states, as no major incidents marred its development and contributed to the return of a considerable number of displaced persons. The then High Representative Javier Solana argued that the Chad operation ‘affirmed the credibility of [the European Union’s] military capability’ and that it demonstrated ‘how the Union had become a global provider of security and strategy’.82 Beyond the official rhetoric, however, it is difficult to ignore the very limited mandate of the operation and its similarly limited impact on the overall problems in the area. For the purposes of this analysis, two issues are noteworthy.The first is about the broader policy context within which the operation was established. EUFOR Tchad/RCA was not deployed in a policy vacuum, but was viewed as a component of the multifaceted EU’s approach to the area. In its Conclusions of October 74 76 77 78 79 80 81 82

75 S/RES/1706 (2006). S/RES/1769 (2007). See Council Conclusions of July 2007. Joint Action 2007/677/CFSP [2007] OJ L 279/21. Joint Action 2008/101/CFSP [2008] OJ L 34/39. Joint Action 2009/795/CFSP [2009] OJ L 283/61. Russia which provided helicopters, Albania, and Croatia. Council Conclusions of 15/16 October 2007, para 4. Javier Solana, ‘Chad mission shows EU is effective in giving stability’, The Irish Times, 13 March 2009.

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2007, for instance, the Council referred to the ‘comprehensive EU effort to reinforce support for refugees and displaced people in Chad and the Central African Republic, including through continuing humanitarian assistance to both countries and the financing of substantial rehabilitation and reconstruction work in the zones of return for displaced persons’.83 In this context, it refers specifically to the Commission and its intention ‘to implement transitional programmes of recovery and rehabilitation, covering reconciliation-oriented activities, support to the voluntary return of IDPs and to the rehabilitation in their places of origin, and support to local governance’.84 There is also reference to the Commission’s plan to contribute substantially to the UN programme for the establishment of the UN Police force in Chad, which would train and equip Chadian police officers and deploy them in the refugee camps in Eastern Chad.85 In addition to the above, two further strands of non-CSDP contribution may be identified. On the one hand, in both Chad and the Central African Republic, the Union has provided considerable financial assistance aiming to facilitate the return of displaced persons and refugees under its development programmes. On the other hand, it has provided humanitarian assistance through the European Commissionmanaged ECHO programme. The cross-references between the CSDP and the other strands of the EU’s approach to Chad and the Central African Republic raise the issue of their substantive coherence. Joint Action 2007/677/CFSP dedicates an article to ‘Community action’. Article 11 reads as follows: 1. The Council and the Commission shall ensure, each in accordance with its respective powers, consistency between the implementation of this Joint Action and external activities of the Community, in accordance with Article 3 of the EU Treaty. The Council and the Commission shall cooperate to this end. 2. Arrangements for the coordination of the EU’s activities in the Republic of Chad and in the Central African Republic shall be established as appropriate on the ground as well as in Brussels.

In addition, there is provision for the involvement of the EU’s Special Representative. Not only is he to be consulted by the EU Force Commander to whom he would offer political guidance, in particular on issues with a regional political dimension,86 but his mandate was also extended to include close coordination and coherence of the activities of the EU with respect to Operation EUFOR Tchad/ RCA.87

83

Council Conclusions, Luxembourg, 15–16 October 2007, para 4. Council Conclusions, Luxembourg, 15–16 October 2007, para 4. In fact, the European Commission has contributed €10 million to the programme set up by MINUCART. 86 Art 8(2) of Joint Action 2007/677/CFSP. 87 Council Joint Action 2008/110/CFSP amending and extending the mandate of the European Union Special Representative for Sudan [2008] OJ L 38/28, Art 3(2)(b). 84 85

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The second interesting, and by now familiar, feature of the operation is about capabilities and the related difficulties which the EU had to face. It is striking, for instance, that there should have been a shortage of tactical air lift, so much so that the Union had to rely upon helicopters from Russia.88 This may appear unsurprising, given the serious misgivings of various Member States about the operation and their concern that France’s insistence might make the EU, in effect, support the local authoritarian rulers.89 However, the problem of shortage of resources is hardly novel in the context of CSDP military operations. As far as EUFOR Tchad/RCA was concerned, the number of troops actually deployed was lower than that originally envisaged, and the Operation Commander commented that ‘for a while we were a mission without means’.90

EUNAVFOR Somalia—Operation ATALANTA (2008–present) This has been one of the most high-profile CSDP operations. Not only has it been the first, and so far only, naval operation that the EU has undertaken, but it has also been tackling a problem which has attracted considerable attention over the last few years. In particular, two dimensions of piracy at sea are worth noting. First, the financial cost of piracy for the maritime industry is considered significant. In a Report produced in 2010 for the One Earth Future Foundation, an independent non-profit organization, the cost of Somali piracy was estimated to be between $7 and $12 billion.91 On the other hand, piracy is intrinsically linked to, and adds a significant dimension to other pathologies bred by State failure, such as organized crime and terrorism. It is no coincidence that Somalia has been marred by a long and brutal civil war which has effectively destroyed all structures of central government. The emerging significance of piracy is illustrated by the increasing attention it has attracted by international actors. In its Security Strategy, adopted in 2003, the European Union highlights it as a new dimension of organized crime.92 Five years later, in its Report on the Implementation of the European Security Strategy, the 88 Damien Helly, ‘The EU military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA)’, in Grevi, Helly, and Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 339, at 349. 89 See Giovanna Bono, ‘The EU’s Military Operation in Chad and the Central African Republic: an Operation to Save Lives?’, (2012) 5 Journal of Intervention and Statebuilding 23. 90 Quoted in Michael Merlingen, EU Security Policy—What It Is, How it Works, Why It Matters (London: Lynne Rienner Publishers, 2012), 165. 91 Anna Bowden (ed), The Economic Cost of Maritime Piracy, One Earth Future Working Paper, December 2010. The cost was estimated to be lower in 2011, between $6.6 and $6.9 billion: The Economic Cost of Somali Piracy 2011, One Earth Future Working Paper, December 2011. 92 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). This document is analysed in Ch 4.

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Union elevates piracy as one of the main issues in its effort to build stability in Europe and beyond (along with development and the proliferation of small arms and light weapons).93 In the light of the above, it is hardly surprising that the United Nations should have been vocal in expressing its concern about the phenomenon. In 2008, the United Nations Security Council invites States and regional organizations to act in order to protect shipping involved with the transportation and delivery of humanitarian aid to Somalia and UN-authorized activities.94 Two weeks later, it adopts Resolution 1816 (2008) which authorizes, under ChapterVII of the United Nations Charter, States acting in cooperation with the Somalian Transitional Federal Government to act in the fight against piracy and armed robbery at sea off the coast of Somalia.95 Finally, it adopts Resolution 1838 (2008) where it mentions specifically the possibility of an EU maritime operation, and ‘calls upon States interested in the security of maritime activities to take part actively in the fight against piracy on the high seas off the coast of Somalia, in particular by deploying naval vessels and military aircraft, in accordance with international law, as reflected in [the United Nations Convention on the Law of the Sea]’.96 Prior to deploying a naval force, the Union decided, first, to set up a military cell in Brussels in order to coordinate the involvement of certain Member States which had been providing protection to World Food Programme vessels.97 It was two months later that the Council adopted Joint Action 2008/851/CFSP in which it set out the parameters of the Union’s first maritime operation.98 This operation was further welcomed by the UN Security Council which also extended the duration of its authorization.99 It was launched on 8 December 2008100 and, while envisaged to last for 12 months, its duration has been extended twice so far, the second time envisaging it to last until 12 December 2014.101 As the Framework Nation is the United Kingdom, the Operational Headquarters are in Northwood, UK, whereas the Force Command is aboard ships in the area. The operation comprises approximately 1,400 military personnel. The mandate of the operation has been, originally, – to protect vessels chartered by the World Food Programme, including by providing armed units on board those vessels – to protect merchant vessels cruising the areas where it is deployed 93 Report on the Implementation of the European Security Strategy (Brussels, 11 December 2008). This document is analysed in Ch 4. 94 S/RES/1814 (2008), para 11. 95 S/RES/1816 (2008), para 7. 96 S/RES/1838 (2080), para 2. 97 Joint Action 2008/749/CFSP [2008] OJ L 252/39, Art 1. 98 [2008] OJ L 301/33. 99 S/RES/1846 (2008), para 6. 100 [2008] OJ L 330/19. 101 Council Decision 2012/174/CFSP [2012] OJ L 89/69, amending Joint Action 2010/766/CFSP [2010] OJ L 327/49, and Joint Action 2009/907/CFSP [2009] OJ L 322/27.

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– to keep watch over areas off the Somali coast, including Somalia’s territorial waters, in which there are dangers to maritime activities, in particular to maritime traffic – to take the necessary measures, including the use of force, to deter, prevent, and intervene in order to bring to an end acts of piracy and armed robbery – to arrest, detain and transfer persons who have committed, or are suspected of having committed, acts of piracy or armed robbery and seize the vessels of the pirates or armed robbers or the vessels caught following an act of piracy or armed robbery and which are in the hands of the pirates, as well as the goods on board – to liaise with organizations, entities and States working in the region to combat acts of piracy and armed robbery off the Somali coast. In March 2012, and in accordance with the UNSC Resolution, the mandate of the operation was extended to cover Somali coastal territory and internal waters.102 It was in the light of this development that, in May 2012, EUNAVFOR Somalia attacked Somali pirate assets on land for the first time. The attack was carried out by helicopters, and came four days after Somali pirates hijacked a Greek-owned oil tanker carrying crude oil.103 In order to convey the size of the task of the operation, it is worth noting that its rather limited resources (no more than seven vessels and four planes), covers the extremely broad zone comprising the south of the Red Sea, the Gulf of Aden, and part of the Indian Ocean, including the Seychelles. This is an area comparable in size to the Mediterranean Sea or to ten times the size of Germany. A main feature of the operation is the establishment of the Maritime Security Centre—Horn of Africa which provides a secure web-portal enabling all merchant vessels intending to sail in the zone of operation of EUNAVFOR to register in advance.104 This system, hosted in the Headquarters in Northwood, enables the operation to coordinate information, assess the need for its vessels and aircraft to act in specific instances, and enables merchant vessels to plan their routes as safely as possible. An important part of the success of the operation depends on the transfer of persons arrested and detained in order to be prosecuted on piracy charges. As the Somali Government accepted the jurisdiction by Member States in its territorial waters, and Article 105 UNCLOS enables States to arrest persons on board pirate vessels in high seas, and determine the penalties to be imposed,105 the Union needed 102

Art 1 of Council Decision 2012/174/CFSP. http://euobserver.com/tickers/116275 (last accessed on 27 October 2012). 104 Its website is www.mschoa.eu (last accessed on 27 October 2012). 105 Art 105 UNCLOS provides as follows: ‘On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith’. 103

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to decide how to deal with this issue. The Member States were reluctant to assume responsibility for trying suspects of piracy in their territory, as this would be politically sensitive and they would find it almost impossible to return them back to their country of origin once their sentence had been served. In this vein, Article 12 of Joint Action 2008/851/CFSP provides for the transfer of persons having committed or suspected of having committed acts of piracy or armed robbery in Somali territorial waters or on the high seas and who are arrested and detained. These are transferred to the competent authorities of the flag Member State or of the third State participating in the operation, of the vessel which took them captive. The Union has concluded agreements with Kenya,106 Seychelles,107 and Mauritius,108 while the agreements on the participation of Croatia and Montenegro have an annex attached to them laying down a set of provisions about transfer of persons.109 It is also negotiating an agreement with Tanzania. These agreements are examined in Chapter 7. At this juncture, suffice it to point out that, in all of them, the third countries undertake to treat any transferred person humanely and in accordance with international human rights obligations, including the prohibition against torture or cruel, inhuman, or degrading treatment, the prohibition of arbitrary detention and in accordance with the requirement to have a fair trial. The assessment of Operation ATALANTA must take into account the wider context within which it is carried out. On the one hand, it is not the only counterpiracy operation off the coast of Somalia. In fact, a number of international initiatives have been undertaken: NATO has been active, most recently with Operation Ocean Shield which, along with traditional patrolling, offers assistance to States in the region in developing their own counter-piracy policies; the United States have been leading Combined Maritime Forces comprising a number of States and covering a very wide zone. Furthermore, a number of individual States maintain vessels patrolling the area, including China, India, Russia, and Japan. Member States participate to some of these initiatives in addition to EUNAVFOR.110 An important element of these initiatives is their coordination which is carried out on the basis of ad hoc arrangements.111 106 [2009] OJ L 79/51, concluded by Council Dec. 2009/293/CFSP [2009] OJ L 79/47. Kenya has denounced the Agreement, but this does not seem to have made much different in practice, as it is still cooperating with the EU on the matter. 107 [2009] OJ L 323/14, concluded by Council Dec. 2009/916/CFSP [2009] OJ L 323/12. 108 [2011] OJ L 254/3, concluded by Council Dec. 2011/640/CFSP [2011] OJ L 254/1. 109 For a detailed analysis, see Daniel Thym, ‘Piracy and Transfer Agreements concluded by the EU’, in Panos Koutrakos and Achilles Skordas (eds), The Law and Practice of Piracy at Sea—EU and International Perspectives, (Oxford: Hart Publishing, 2013) (forthcoming). See also Robin Geiss and Anna Petrig, Piracy and Armed Robbery at Sea:The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden, (Oxford: OUP, 2011), 199–206. 110 For instance, the UK participates in both NATO and the Combined Maritime Forces, and Germany, Italy, and France participate in the latter, along with Denmark (which does not participate in Operation ATALANTA in accordance with its defence opt-out). 111 For a summary of the various initiatives, see Geiss and Petrig, Piracy and Armed Robbery at Sea (Oxford: OUP, 2011), 17–29.

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On the other hand, Operation ATALANTA is carried out against the background of the increasingly intense involvement of the Union in the area.112 Both the Commission113 and the Council114 have been active in addressing the problems originating in the status of Somalia as a failed state. The former provides considerable development and humanitarian assistance aid, funding projects on good governance, education, economic growth, health, water and sanitation, environment, and support to non-governmental organizations. The latter, amongst others, ensures that the Union participates in the process for peace and conciliation in Somalia (known as the Djibouti process),115 and organizes CSDP interventions such as the support provided to the African Union force (AMISOM) and, of course, ATALANTA. Again, while commendable as a matter of principle, the development of a comprehensive approach raises the issue of the coherence between its different policy components and the coordination between the institutions and administrative bodies involved. A prominent role has been assigned to the European Union’s Special Representative for the Horn of Africa first appointed in 2011.116 His mandate covers both Somalia in general and piracy in particular, and he is ‘to contribute to developing and implementing a coherent, effective and balanced EU approach to piracy originating in Somalia, encompassing all aspects of EU action, particularly in the political, security and development areas and to be the EU’s key interlocutor on piracy for the international community including the Eastern and Southern Africa and Indian Ocean (ESA/IO) region’.117 While it is the task of the EUSR to coordinate regionally and internationally, it is for the EEAS to provide support to the EUS and to coordinate policies and instruments.

EUTM Somalia (2010–2012) This is a military training operation,118 launched on 7 April 2010119 and extended until 2012.120 It was decided in accordance with United Nations Security Council Resolution 1872 (2009) which urged States, international and regional 112 See Hans-Georg Ehrhard and Kerstin Petretto, ‘The EU, the Somalia Challenge, and Counterpiracy: Towards a Comprehensive Approach?’, (2012) 17 EFARev 261. 113 European Commission Strategy for the Implementation of Special Aid to Somalia 2002–2007, and Somalia Joint Strategy Paper for the period 2008–2013. 114 Council of the European Union 17383/09 An EU Policy on the Horn of Africa—towards a comprehensive EU strategy (Brussels, 10 December 2009), and A Strategic Framework for the Horn of Africa, annexed to Council Conclusions on the Horn of Africa (Brussels, 14 November 2011). The latter document was prepared by the EEAS and was one of the first products of integrated EU external action. 115 See, for instance, Foreign Affairs Council Conclusions, 21 March 2011. 116 Council Dec. 2011/819/CFSP [2011] OJ L 327/62. 117 Art 2(4) of Council Dec. 2011/819/CFSP. His mandate was extended by Council Dec. 2012/329/ CFSP [2012] OJ L 165/62. 118 Council Dec. 2010/96/CFSP [2010] OJ L 44/16. 119 Council Dec. 2010/197/CFSP [2010] OJ L 87/33. 120 Council Dec. 2011/484/CFSP [2011] OJ L 198/37.

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organizations to offer technical assistance for the training and equipping of the Somali security forces.121 The operation trained Somali recruits in Uganda, where Somali troops are being trained as a matter of course by Ugandan forces, as Uganda is the biggest contributor to the African Union force in Somalia. The EU force, no bigger than 150 personnel, trains recruits and officers on compliance with human rights and rules on protecting civilians. In 2011, the mandate of the operation was extended to cover command and control, that is the management of the authority to direct the actions and exercise authority over troops, as well as specialized capabilities.122 EUTM Somalia constitutes another part of the Union’s comprehensive approach to Somalia. The Council refers expressly to the need to carry out security sector reform within a comprehensive approach to the situation in Somalia, and it states that this support should be part of a larger and coherent framework involving close EU cooperation and coordination with the African Union, the United Nations, and other relevant partners, in particular the United States of America.123 Indeed, the United States have assumed responsibility for transporting recruits to Uganda for training and for paying half of their salary following completion of their training.

EUFOR Libya (2011, but never deployed) Following the eruption of civil war in Libya in early 2011, the United Nations Security Council required that the UN Member States provide humanitarian aid and other related assistance.124 In March 2011, it adopted Resolution 1973 in which it authorized Member States to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya. Such action should be notified to the UN Secretary General, it should be in cooperation with the Member States of the League of Arab States, and should not lead to a foreign occupation force of any form on any part of Libyan territory.125 Two days later, on 19 March 2011, a number of States formed a coalition and intervened by organizing air strikes. The leading States were the United Kingdom and France, along with the rather reluctant United States.126 This operation had no institutional or policy link with the European Union. However, two weeks after the first strikes, the Council decided on a military operation in support of humanitarian assistance in the area.The main parameters of this operation were set out in Council Decision 2011/210/CFSP, which also stressed that the operation is to be undertaken following a request from the United Nations Office for the Coordination of 121

S/RES/1872 (2009), para 8. Council Dec. 2011/484/CFSP [2011] OJ L 198/37. 123 External Relations Council Conclusions, 17 November 2009, para 29. 124 125 S/RES/1970 (2011). S/RES/1973 (2011). 126 The States which participated in the coalition from the start were Belgium, Canada, Denmark, France, Italy, Norway, Qatar, Spain, the United Kingdom, and the United States. 122

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Humanitarian Affairs (OCHA).127 The objectives of the operation were to contribute to the safe movement and evacuation of displaced persons, and to support, with specific capabilities, the humanitarian agencies in their activities. The international origin of the operation and the multiplicity of actors involved in the Libyan crisis were also reflected in the references to international cooperation: Article 8 of Council Decision 2011/210/CFSP provided that the planning and conduct of the operation was to be carried out ‘in close cooperation and complementarity’ with OCHA, NATO, and other actors. Reference was also made to close cooperation with the coordinators designated by the United Nations, the Arab League, and its Member States, whereas consultations are to take place with the African Union ‘as appropriate’.128 The duration of the EUFOR Libya was envisaged to be quite short, no longer than four months. However, once the UN Security Council had ended the mandate of the NATO mission,129 and given the OCHA never requested the assistance of the Union, the operation expired without ever having been launched.130 Given the date of the adoption of Council Decision 2011/210/CFSP establishing it, a Member of the European Parliament called it an ‘April’s Fool joke’.131 At the time of writing (2012), however, the PSC is considering the possibility of reviving it.

International responsibility over the conduct of CSDP operations The European Union is endowed with express legal personality.132 Therefore, by applying the famous dictum of the International Court of Justice about international organizations, it ‘is a subject of international law and capable of possessing international rights and duties, and . . . it has the capacity to maintain its rights by bringing international claims’.133 An international organization is liable for an act which violates its international legal obligations, provided that this act is attributed to the organization.134 The scope of neither of these two requirements is entirely clear in the context of the 127

128 Council Dec. 2011/210/CFSP [2011] OJ L 89/17. Art 8(1)-(3). 130 S/RES/2016 (2011). Council Dec. 2011/764/CFSP [2011] OJ L 314/35. 131 Ana Gomes, ‘Was EUFOR Libya an April fool’s joke?’ (http://euobserver.com/opinion/32624), (last accessed on 27 October 2012). 132 Art 47 TEU. 133 Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Reports 174 at 179. 134 Arts 3 and 4, International Law Commission (ILC), ‘Draft Arts. on the responsibility of international organisations, with commentaries 2011’, Adopted by the ILC at its sixty-third session, in 2011, and submitted to the General Assembly as part of the Commission’s report covering the work of that session (A/66/10) (2011), Yearbook of the International Law Commission, vol II, Part Two, 5. These were adopted by the International Law Committee (ILC) in August 2011 and endorsed by the UN General Assembly in December 2011. See the analysis in C Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’, (2011) 8 International Organizations Law Review 397. 129

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Union’s military operations. As far as the first requirement is concerned, it is beyond doubt that the EU is bound by the various international agreements which it concludes in the context of its operations, namely the agreements about the participation of third countries, the status of its forces and operations, transfer agreements, and agreements about the security procedures for the exchange of classified information.135 It is also bound by human rights, as Article 6 TEU provides that the Charter of Fundamental Rights of the European Union has the same status as that of primary rules. Furthermore, the Union is currently carrying out negotiations about its accession to the European Convention of Human Rights, which will also bind its activities once the EU has become a party.136 In addition, Article 6(3) TEU provides that fundamental rights as guaranteed by the Convention and as they derive from the constitutional traditions of the Member States also bind the Union. The Union is bound by customary international law as well,137 which includes customary humanitarian law.138 The requirement of attribution is far more complex and controversial. On the one hand, actions by an organ of the organization are considered to amount to conduct of the latter.139 On the other hand, the conduct of an organ of a State placed at the disposal of an international organization is attributable to the latter if the ‘effective control’ test is met.140 The requirement of attribution has given rise to considerable debate and diversity of views not only among academia but also the judiciary.141 For instance, the International Court of Justice has adopted the ‘effective control’ test, albeit in a dispute about State liability.142 However, in a controversial judgment, the European Court of Human Rights has adopted the ‘ultimate 135 As a matter of EU law, Art 216(2) TFEU provides that agreements concluded by the EU are binding on both the EU institutions and the Member States. See, from a long line of cases, Case C-308/06 Intertanko [2008] ECR I-4057.The international agreements concluded by the EU in the context of the CSDP are analysed in Ch 7. 136 See Art 6(2) TEU. See also Tobias Lock, ‘Walking on a tightrope: the draft accession agreement and the autonomy of the EU legal order’, (2011) 48 CMLRev 1025. 137 See Advisory Opinion on the Interpretation of the Agreement of 25 March 1951 between the World Health Organization and Egypt (1980) ICJ Reports 89–97, para 37. The Court of Justice also ruled that the then EC was bound by rules of customary international law: Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, para 9, and Case C-162/96 Racke v Hauptsollampt Mainz [1998] ECR I-3655, paras 45–46. To that effect, see Allan Rosas, ‘The European Court of Justice and Public International Law’, in Jan Wouters, Andre Nollkaemper, and Erika de Wet (eds), The Europeanization of International Law (The Hague: TMC Asser Press, 2008), 71, at 80. 138 See Frederik Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Antwerp: Intersentia, 2010), Chs 8–9. On the effect of humanitarian law generally, see Marten Zwanenburg, ‘Towards a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Oeprations’, in Steven Blockmans (ed), The European Union and Crisis Management—Policy and Legal Aspects (The Hague: TMC Asser Press, 2008), 395. 139 140 Art 6 DARIO. Art 7 DARIO. 141 For a recent summary, see Russell Buchan, ‘UN peacekeeping operations: when can unlawful acts committed by peacekeeping forces be attributed to the UN?’ (2012) 32 Legal Studies 282. 142 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) (Merits) (1986) ICJ Reports 14, and Application of the Convention on the Protection and Punishment of the Crime of Genocide (Bosnia v Servia) (2007) ICJ Reports 1.

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authority and control’ test which provides a more formalistic solution based on the legality of the delegation of powers by the United Nations Security Council.143 And the International Criminal Tribunal for the Former Yugoslavia has adopted the broader ‘overall control’ test.144 The question of responsibility has been examined in detail elsewhere.145 For the purposes of this analysis, suffice it to make the following points. First, the question of the existence of responsibility in the context of CSDP military operations largely depends on an ad hoc assessment of the specific parameters within which troops are deployed. Some international agreements concluded between the EU and third countries about the participation of the latter in CSDP operations provide expressly that operational and tactical control over the forces of the third countries is transferred to the EU Operation Commander, even though their national authorities retain their full command.146 Second, the application of the DARIO provisions to the European Union in general and its CSDP activities in particular is subject to considerable debate, and has been criticized for failing to address the peculiarities of the Union’s legal structure.147 This criticism has been made, more generally, about its application to organizations carrying out military operations, such as NATO.148 Third, it is striking that, in the light of the CSDP military operations and given the Union’s constitutional idiosyncrasies, the issue of international responsibility should not have raised any considerable problems for the EU and its Member States as yet as a matter of fact. 143 Behrami and Behrami v France, Saramati v France, Germany and Norway App Nos 71412/01 and 78166/01, Grand Chamber Decision, 2 May 2007. See the analysis in Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations:The Behrami and Saramati Cases’, (2008) 8 Human Rights Law Review 159; and Nicholas Tsagourias, ‘The responsibility of international organisations for military missions’, in Marco Odello and Ryszard Piotrowicz (eds), International Military Missions and International Law (Leiden: Brill, 2011), 245. The Behrami and Saramati judgments were confirmed in AlJedda v UK App No 27021/08, 7 July 2011. 144 Prosecutor v Tadić ICTY-94-1-A (1999) 38 IL. 145 See Frederik Naert, ‘The International Responsibility of the European Union in the Context of its CSDP Operations’, in Malcolm Evans and Panos Koutrakos (eds), The International Responsibility of the European Union—European and International Perspectives (Oxford: Hart Publishing, 2013), (forthcoming); Aurel Sari and Ramses Wessel, ‘International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime’, in Bart Van Vooren, Steven Blockmans, and Jan Wouters (eds), The EU’s Role in Global Governance—The Legal Dimension (Oxford: OUP, 2013), (forthcoming); Ramses A Wessel and Leonhard den Hertog, ‘EU Foreign, Security and Defence Policy: A Competence–Responsibility Gap?’, in Evans and Koutrakos (eds), The International Responsibility of the European Union—European and International Perspectives (Oxford: Hart Publishing, 2013), (forthcoming). 146 See, for instance, the Agreement about the participation of Albania in EUFOR Tchad/RCA [2008] 217 OJ L 217/19 Art 4(1)–(2). See also Council of the European Union, EU Military C2 Concept 11096/03 EXT 1 (Brussels, 26 July 2006). See, however, Art 4(2) of the Agreement for the participation of Russia in the same operation ([2008] OJ L 307/16). 147 See, for instance, Pieter Jan Kuijper and Esa Paasivirta, ‘EU International Responsibility and its Attribution—From the inside looking out’, in Evans and Koutrakos (eds), The International Responsibility of the European Union (Oxford: Hart Publishing, 2013), (forthcoming). 148 See, for instance, Nigel White, ‘Institutional responsibility for private military and security companies’, in Francesco Francioni and Natalino Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford: OUP, 2011), 381.

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Conclusion The analysis of the CSDP military operations raises the issue of their ambition, or lack thereof. All eight carried out so far share certain characteristics. Their overall size is rather small. Even the biggest operation, EUFOR ALTHEA, comprised no more than 7,000 troops at its highest level of deployment. Writing in 2008, Nick Witney, the first Chief Executive of the European Defence Agency, estimated that ‘the total number of troops deployed today ...constitutes less than one third of one percent of European military manpower’.149 Things have not changed since then: while two operations have been launched thereafter, namely ATALANTA and EUTM Somalia, the latter is very small and, in any case, the operation in Chad and the Central African Republic has expired. Furthermore, their mandate is quite narrow and the terrain in which they are deployed largely safe. The EU operations have a limited and clearly defined task to perform which, while worthwhile and useful in itself, constitutes only a small part of a wide and complex problem. In doing so, the operations have not had to face considerable security challenges, nor have they had to be deployed in a dangerous terrain. It is noteworthy that, in almost ten years since the first operation was deployed, no EU force has been involved in combat as a party to an armed conflict.150 In fact, it appears that in almost all CSDP military operations (with the possible exception of these in Chad, off the coast of Somalia and on Somalian territory), the hard security questions had already been addressed prior to EU deployment by either NATO or the United Nations. In the light of the above, the military operations of the Union so far illustrate a lack of ambition.While their objective is commendable, their size, mandate, terrain, and conditions under which they are deployed suggest rather small contributions to very big problems. This, in itself, may not necessarily be an issue. After all, these problems have been so complex, long-standing, and serious that no international actor on its own has managed to solve them. However, the lack of ambition is striking in the light of the main strategy documents of the Union in the area.The analysis in Chapter 4 showed that the European Security Strategy and the 2008 Report on the Implementation of the European Security Strategy, as well as the other strategy documents adopted in the 2000s, all convey ambition, responsibility, and robustness in tackling the security challenges facing the Union. Viewed against this context, the military operations carried out so far may appear underwhelming. Another issue which the conduct of CSDP operations raises is related to the role of the Member States. A characteristic which all military operations share is the distinct unwillingness of the States to provide the troops necessary for deployment. In fact, this emerges as a constant theme of the preparations for the deployment of 149 Nick Witney, Re-energising Europe’s Security and Defence Policy (London: European Council on Foreign Relations, 2008), 7. 150 See Frederik Naert, ‘Legal Aspects of EU Military Operations’, (2011) 15 Journal of International Peacekeeping 218, at 235.

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the operations. Witney writes that Javier Solana, the EU High Representative for the common foreign and security policy prior to the entry into force of the Lisbon Treaty, ‘has often been reduced to phoning Defence Ministers in person to secure a single transport place or field surgeon’.151 It is not uncommon for the number of troops actually deployed to be lower than that originally envisaged by the EU bodies as necessary, nor is it surprising that the unwillingness of the Member States to commit sufficient troops should undermine the conduct of the operation (in Operation Artemis, for instance, there was no reserve force even though the Political and Security Committee had deemed one necessary).152 A related issue pertains to the capabilities upon which the operations rely on the ground. There have been consistent shortfalls and problems. It is remarkable, for instance, that operations should have had recourse to Russian helicopters and Ukrainian aircraft, especially given that the problem of strategic and tactical airlift was identified quite early in the life of CSDP. The unwillingness of Member States to commit troops and resources on the ground may be explained in the light of economic, practical, and political considerations. Given that CSDP operations are not covered by the EU budget, the cost of the deployment of troops is borne by the contributing State. This is high and involves not only the cost associated with the troops sent but also their replacement in the sending country.153 In addition, there is a political cost for the sending State, the government of which would have to bear by explaining to its electorate its choice to send troops abroad. The impact of this factor would vary depending on the mandate and the location of the operation. This raises the more general issue of the degree of political commitment that Member States show in relation to the conduct of CSDP. Certain Member States appear to take the lead and insist on EU action in relation to specific areas. France, for instance, was pivotal both to the decision to deploy and to the actual conduct of the operations in Congo and Chad—indeed, Operation Artemis appeared to be almost a French operation in all but name. Germany, on the other hand, was distinctly reluctant to agree to and engage in the launching of EUFOR Congo, and this had an impact on the duration of the operation. In other words, there is considerable diversity in the approach of different Member States as to the establishment and conduct of military operations. This is not surprising, as the diverse membership of the Union in terms of location, culture, history, and tradition, is bound to be reflected in different assessments of security needs. However, for the purposes of this analysis, this underlines further the central role of political will in 151 Witney, Re-energising Europe’s Security and Defence Policy (London: European Council on Foreign Relations, 2008), 7. 152 S Ulriksen, C Gourlay, and C Mace, ‘Operation Artemis: The Shape of Things to Come?’, (2004) 11 International Peacekeeping 508, at 515. 153 It is also noteworthy that the ATHENA mechanism, aiming to cover common costs in military operations, has only applied actually to less than 10% of the extra costs of operations:Witney, Re-energising Europe’s Security and Defence Policy (London: European Council on Foreign Relations, 2008), 8.

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the development of CSDP, and its locus in the Member States. There is, therefore, a thread which brings together the main legal characteristics of CSDP, as analysed in Chapters 2 and 3, and the conduct of military operations, as set out in this chapter. This thread highlights the role of Member States at the very centre of security and defence, the latter understood both as a legal space evolving over time and as a policy implemented on the basis of ad hoc political decisions.154 The recent experience in Libya reflects both the limited ambition of CSDP military action on the ground and the questionable commitment of the Member States. It is recalled that, in March 2011, a coalition of various States initiated a military operation against Libya under the authorization of United Nations Security Council Resolution (2011) 1973.155 This operation consisted of the enforcement of a no-fly zone and a naval blockade and led, controversially but inevitably, to strikes against forces remaining loyal to Gaddafi. The operation was not carried out by the European Union, but a number of individual States, most of which were European, led by the United Kingdom and France, while the United States were for political reasons content to play second fiddle. It is worth noting that Germany abstained at the UN Security Council vote on SC Resolution 1973, in the company of China and Russia. It is also interesting that, in relation to this operation, British Prime Minister David Cameron, United States President Barack Obama, and French President Nicolas Sarkozy wrote an article for The Times156 in which there was no reference to the Union at all. Finally, the conduct of every operation is characterized by the quest for internal coherence. There is such institutional density and multiplicity of policy initiatives that very considerable time and energy are spent in order to ensure the coordination between the various actors involved. This is the case not only in terms of the interactions between the organs of the operation and institutions, such as the Commission, acting within the purview of other EU policies, but also between the organs of CSDP operations and missions active in the same area simultaneously.The role of the Union’s Special Representatives has also emerged as quite prominent in the management of coherence between different components of the Union’s policy. The strain which the quest for coordination and coherence puts on the CSDP operations becomes all the heavier in the light of the requirement of coordination with other international actors with which the Union interacts in the context of its operations, such as the United Nations or the African Union. Pertaining to the effectiveness of the CSDP military operations, these issues are all internal; that is they are about factors inherent in the Union’s idiosyncratic 154 The central role of the States in the pursuit of CSDP and the diversity of interests this may entail is also reflected by the absence of an overall effort to define the Union’s strategic interests with any degree of specificity. The European Security Strategy does not carry out this function, as it merely sets out the broad principles which aim to define the Union’s approach to international security. 155 The States which participated in the coalition from the start were Belgium, Canada, Denmark, France, Italy, Norway, Qatar, Spain, the United Kingdom, and the United States. 156 15 April 2011, at 25.

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set-up and political realities. The constraints which they impose on the policy as a matter of fact are such as to render it introverted in its implementation, a characteristic which is compounded by the process-oriented approach described in Chapters 2 and 3 of this book.Viewed from this angle, there appears to emerge a noticeable disjunction between the policy analysed in this chapter and that articulated in the European Security Strategy, whose ambition and self-confidence suggest an outward approach which would seek to respond to the diverse, dispersed, and multilayered security challenges facing the EU and its Member States.The analysis of the civilian missions in the following chapter will shed further light on these features of CSDP.

6 CSDP civilian missions

Introduction There is no formal definition of civilian missions carried out by the European Union under the Common Security and Defence Policy. While the absence of military objectives and instruments is at its core, it is difficult to envisage an exhaustive definition. In relation to the civilian dimension of crisis management in particular, the European Security Strategy merely states that ‘civilian crisis management helps restore civil government’.1 This chapter will examine the practice of the civilian missions which the Union has carried out so far, and will show the considerable diversity in the typology of its activities. Given the different categories of civilian missions, the following analysis will examine them by category, rather than in strict chronological order. This method will facilitate the analysis of the degree of coherence characterizing each category.

Police missions EUPM BiH (Bosnia and Herzegovina) (2003–2012) The Union’s police mission in Bosnia and Herzegovina (BiH) was the very first security and defence policy mission of the Union. It was undertaken against the backdrop of intense international involvement in this troubled European country. It is recalled that, following the declaration of its independence in March 1992, BiH was plunged in a civil war for three and a half years which ended with the General Framework Agreement for Peace in Bosnia and Herzegovina, known as the Dayton Agreement. Signed in December 1995, this Agreement seeks to manage the peaceful coexistence between the Muslim-Croat Federation and the Serbian Republika Srpska as separate entities, while introducing a loose central administration. As was mentioned in Chapter 5 in the context of EUFOR ALTHEA, the Dayton Agreement was wide-ranging in its scope and ambitious in its reach. In order to initiate a process of ordered transition to a fully functioning multi-ethnic democracy,

1

A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 7.

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it established the Office of the High Representative upon which it conferred very considerable executive powers. In that highly charged and volatile political context, the United Nations deployed a police mission (United Nations International Police Task Force—UN-IPTF) in 1995. It was its function which the Union’s police mission was designed to assume on 1 January 2003.2 Initially, it was scheduled for three years, but ended up lasting for nine and a half years.3 It comprised 540 staff in its peak capacity, whereas when it expired it comprised 34 international staff. All EU Member States participated, along with Switzerland,Turkey, and Ukraine.4 The main headquarters were located in Sarajevo, but the mission mainly carried out its tasks by co-locating its staff alongside local middle- and higher-ranking officers in agencies in Sarajevo (such as the State Intelligence Protection Agency and the State Border Service) and around the country. The main parameters of the mission were set out in Joint Action 2002/210/ CFSP.5 It aimed to establish sustainable policing arrangements in accordance with best European and international practice. A number of issues about the mandate are noteworthy. First, it is set out in quite some detail, including an overview of the methodology of the envisaged mission and covers a page and half in an Annex to the Joint Action—this is unusual, as normally the mandate is set out in the body of the Joint Action setting up the mission, and it lacks any degree of detail. As this was the first mission, this aberration was neither significant in itself, nor indicative of a unique feature. Second, the standard which the mission’s mandate should achieve is not articulated clearly. Indeed, there is no reference whatever in the Joint Action itself and its Annex as to what are ‘the best European and international practice’. Therefore, and despite the length of the mission statement, a central component of its ultimate objective is left unclear and, inevitably, subject to future determination. This gives the mission both a degree of flexibility and ambiguity. Third, an integral part of the mission’s mandate was local ownership. This is mentioned expressly in the mission statement, and is also borne out in the specific actions of the mission. Local ownership is a central aspect of various CSDP missions, which will emerge time and again throughout this analysis. The EUPM (BiH) was a non-executive mission. Therefore, its personnel were not composed of armed policemen, and they did not have the authority, for instance, 2

S/RES/1396 (2002). For the period between 2006 and 2007, see Joint Action 2005/824/CFSP [2005] OJ L 307/55. For the period between 2008 and 2009, see Joint Action 2007/749/CFSP [2007] OJ L 303/40, implemented by Council Decision 2007/791/CFSP [2007] OJ L 317/83. For the period between 2010 and 2011, see Council Decision 2009/906/CFSP [2009] OJ L 322/22, amended by Council Decision 2010/755/CFSP [2010] OJ L 320/10. For the period between 2011 and 2012, see Council Decision 2011/781/CFSP [2011] OJ L 319/521. 4 Originally, Canada, Iceland, Norway, and Russia participated too. 5 [2002] OJ L 70/1, amended by Joint Action 2003/141/CFSP [2003] OJ L 53/63 and Joint Action 2003/188/CFSP [2003] OJ L 73/9. 3

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to make arrests themselves. Instead, the mission was to achieve its objectives through monitoring, mentoring, and inspecting. Initially, its mandate was focused on building on the achievements of the UN police missions and preserving the existing levels of institutional and professional proficiency, on enhancing police managerial and operation capacities, on strengthening professionalism at high level within the ministries and at senior police officers level, and on monitoring the exercise of appropriate control. This was achieved through, among others, the introduction of internal mechanisms for dealing with police misconduct and the reform of the system of carrying out criminal investigations.6 Over the years, the objectives evolved in two noticeable ways: on the one hand, they became more focused on the fight against organized crime and corruption; on the other hand, they developed their emphasis on a wider rule of law approach, encompassing the police, the judiciary, and the penitentiary, for example seeking to enhance the cooperation between the police and the prosecution. The mission was marred by a number of problems. Some were practical, and slowed down its starting phase, such as the final delivery of office computers which took place about a year into the mission.7 Some had to do with the personnel seconded by the Member States.Their expertise was found lacking, their training prior to their deployment insufficient, their proficiency in English problematic, and their turnaround rather too quick.8 The overall legal and political context within which the mission was envisaged sheds light on its very establishment, as well as its bearing on the Union’s posture in the Balkans. All measures setting out the main parameters of the mission made references to the Stabilization and Association Process. The state of the police force in BiH was a concern for the Union which was quite serious about ensuring that the authorities supervising them were decentralized. This state of affairs rendered the police both highly politicized and insufficiently able to tackle organized crime and police corruption. The Union felt so strongly about the need for this system to be reformed that it made it one of the conditions for the signing of a Stabilisation and Association Agreement.9 While this objective fell beyond the scope of the original mandate of EUPM, it became one when it was renewed in November 2005.10 6 See Michael Merlingen, ‘The EU Police Mission in Bosnia and Herzegovina (EUPM)’, in Giovanni Grevi, Damien Helly, and Daniel Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (Paris: European Institute for Security Studies, 2009), 161, at 164–5. 7 See M Merlingen, ‘The EU Police Mission in Bosnia and Herzegovina (EUPM)’, 167. 8 See the criticism in International Crisis Group (ICG), ‘Bosnia’s Stalled Police Reform: No Process, No EU’, 6 September 2005, Europe Report N°164, 12–14, where it is claimed that, according to interviews with police of both entities, the EUPM was not viewed as a serious actor. Note that the report was drawn up in the first three years of the life of the mission. 9 The others were cooperation with the International Criminal Tribunal for the former Yugoslavia, public administration reform and public broadcasting reform. For the process of the negotiation, see Steven Blockmans, Tough Love—The European Union’s Relations with the Western Balkans (The Hague: TMC Asser Press, 2007), 258–9. 10 See Art 2 of Joint Action 2005/824/CFSP.

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This suggests the dynamic nature of the mandate of CSDP missions. It also illustrates how the state of the police force became a focal point where different policies of the Union (security, political, economic) meet and, therefore, different legal challenges arise given the range of institutional actors involved and the differences in their mandate and legal powers. Article 2 of Joint Action 2005/824 provides that the BiH police service under reform ‘should operate in accordance with commitments made as part of the Stabilization and Association Process with the European Union, in particular with regard to the fight against organized crime and police reform’. As EUPM BiH was conceived and carried out as part of a wider Union approach to Bosnia and Herzegovina in particular and the Western Balkans in general, issues of the linkages between its conduct and other parts of this approach arose, and, along with them, so did issues of coherence and coordination. The interactions between the mission and non-CSDP policies were pronounced from the start. For instance, in its preamble, Joint Action 2002/210/CFSP states that EUPM BiH is supported by the Community’s institution building programmes under the Regulation which set up the Country Assistance for Reconstruction, Development and Stabilization (CARDS) programme aiming to provide support to the South-East European countries.11 In addition, it states in Article 10 that ‘the Council notes the intention of the Commission to direct its action towards achieving the objectives of this Joint Action, where appropriate, by relevant Community measures’. To that effect, it also notes that coordination arrangements in Brussels and Sarajevo are required. The reference to the Commission’s intended action is dropped in the following Joint Actions, where one may only find a reference to the requirement of consistency between the implementation of the mission’s mandate and the external activities of the Community.12 In terms of other CSDP initiatives, EUPM overlapped with EUFOR ALTHEA, the Union’s military operation in BiH. This co-existence proved problematic and gave rise to turf wars. As mentioned in Chapter 5, the latter mission carried out operations targeting organized crime networks, and in doing so it clashed with the EUPM authorities who viewed this as part of their mandate. It was only in late 2005 that the EUPM took the lead in the coordination of the policing aspects of the CSDP efforts in the fight against organized crime.13 Within such a multilayered policy terrain, the customary institutional density characterizing the Union’s structure complicated further the achievement of coordination and the management of coherence. In Chapter 5, the role of the European Union’s Special Representative (EUSR) in areas where a CSDP operation is deployed 11 Third para preamble to Joint Action 2002/210/CFSP. For the CARDS programme, see Council Reg (EC) No 2666/2000 [2000] OJ L 306/1. 12 See Art 13(1) of Joint Action 2005/824/CFSP. 13 See Art 2, subpara 3 of Joint Action 2005/824/CFSP. See also Eva Gross,‘The end of the EU Police Mission in Bosnia and Herzegovina:What lessons for the Common Security and Defence Policy’ (Brussels: European Policy Centre, Policy Brief, 13 June 2012), 2–3.

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was examined. In the context of EUPM BiH, this role features even more prominently as the EUSR is also the High Representative appointed under the Dayton Agreement, whose executive powers are far-reaching. One of the reasons that made the EUSR such a central figure was the clout which the first holder of this post, Lord Ashdown, had. Viewed as a dynamic and knowledgeable individual, this former Royal Marines officer had had considerable political experience in the United Kingdom and direct access to other international players.14 This, along with the doublehatting which characterized the post since 2002, was seen as helpful in reducing the scope for misunderstandings and institutional rivalries on the ground. In fact, this type of institutional amalgamation was deemed successful enough to make the powers that be consider extending it further when Lord Ashdown’s replacement was discussed: the idea to merge the posts of EUSR and the Head of the EC Delegation was mooted. This would have provided the clearest acknowledgment of the paramount role of coordination of the different Union actors in Bosnia. However, this did not happen.15 The institutional density and the ensuing overlap of functions was also a complicating factor in the management of the Union’s overall approach to Bosnia and Herzegovina. For instance, the lack of progress made by the representatives of the Republika Srpska and the Bosniak-Croat Federation was central to the postponement by the Union of the signing of the SAA in December 2006. The process following this episode and the ultimate signing on the Agreement in June 2008 was marred with disagreements between the European Commission (responsible for the negotiation of the Agreement) and the EUSR/HR (who provided guidance to the EUPM Head of Mission and to whom the latter reported): the latter was pushing for a robust position by the Union which would exercise considerable pressure on the BiH parties to go far in their compromise,16 whereas the former was more circumspect.The tension was such that, ‘[i]n private meetings, the Commission was accused of undermining the police reform’.17 What emerges from this is not only the existence of substantive linkages between the areas targeted by civilian CSDP missions and the other external policies of the Union, but also the implementation of CSDP initiatives, both as intrinsically linked to the Union’s overall approach and within a dense institutional constellation of power. In fact, the overall structure and content of the reforms designed by the 14 For instance, his political advisor had worked at the cabinet of Chris Patten, who was at the time the EU Commissioner responsible for external relations. 15 See Michael Humphreys and Jasna Jelesié, ‘A missed opportunity: State building in Bosnia and Herzegovina (October 2002 to October 2006)’, in Steven Blockmans, Jan Wouters, and Tom Ruys (eds), The European Union and Peacebuilding—Policy and Legal Aspects (The Hague: TMC Asser Press, 2010), 439, at 455. 16 On the overall role of EUSR in police reform in Bosnia and Herzegovina, see Ana E Juncos, ‘Europeanization by Decree? The Case of Police Reform in Bosnia’, (2011) 49 JCMS 367. 17 M Humprheys and J Jelesié, ‘A missed opportunity: State building in Bosnia and Herzegovina (October 2002 to October 2006)’, in Blockmans, Wouters, and Ruys (eds), The European Union and Peacebuilding—Policy and Legal Aspects, at 458.

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EUPM reflect the process of the gradual integration of Bosnia and Herzegovina in the Union’s framework.18

EUPOL PROXIMA (Former Yugoslav Republic of Macedonia) (2003–2005) This was the first police mission which the Union launched without taking over from another international police mission. It was no coincidence that it was launched in Former Yugoslav Republic of Macedonia (FYROM), where the Union had already launched its first military mission (CONCORDIA) in March 2003. It was undertaken in the context of the implementation of the Ohrid Framework Agreement. As explained in Chapter 5, this was signed in August 2001 and aimed to provide a peace settlement which would put an end to the conflict between the FYROM Government and the ethnic Albanian forces.The UN Security Council expressly supported the efforts of the international community, including the European Union, to its implementation.19 The mission comprised approximately 200 police officers seconded from Member States and third countries.20 Its mandate was to monitor, mentor, and advise in five areas: the consolidation of law and order, including the fight against organized crime; the practical implementation of the comprehensive reform of the Minister of Interior, including the police; the operational transition towards, and the creation of a border police; the local police in building confidence within the population; and enhanced cooperation with neighbouring States in the field of policing.21 In its last year of operation, the mission focused, with slightly reduced staff, on organized crime, public peace and order, and border police.22 The mission was carried out on the basis of the principle of co-location. In other words, mission police officers were placed at the Ministry of Internal Aff airs (including the Department for state security and counter-intelligence), regional and sub-regional headquarters, police stations, border crossing points, and the two international airports. Its activities were focused on the middle and senior levels of local management.This co-location of mission officers with local officers

18 See Michael Merlingen and Rasa Ostrauskaité, European Union Peacebuilding and Policing (London: Routledge, 2006), 64–72. 19 S/RES/1371 (2001). 20 The third countries comprised Norway, Switzerland, Turkey, and Ukraine. 21 Council Joint Action 2003/681/CFSP [2003] OJ L 249/66, Art 3. This was amended by Council Joint Action 2004/87/CFSP [2004] OJ L 21/31, and extended by Council Joint Action 2004/789/ CFSP [2004] OJ L 348/40. 22 See Isabelle Ioannides, ‘The EU Police Mission (EUPOL Proxima) and the European Union Police Advisory Team (EUPAT) in the former Yugoslav Republic of Macedonia’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 187, at 191–2.

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and officials illustrates the reference in the mission statement to its ‘strong partnership with the relevant authorities’.23 The principle of co-location is linked to one of the central tenets of the mission, namely local ownership. This suggests that the mission was envisaged as a tailor-made one which would take into account the needs of the local services, and would set its targets in cooperation with them.This is a theme in a number of CSDP missions which will be revisited in this chapter. Another feature of EUPOL PROXIMA is its function as a part in the wider context of the Union’s approach to FYROM in general, and the Union’s nonCSDP policies in particular. Following the pattern discussed in the context of EUPM BiH, the very first paragraph of the preamble to Joint Action 2003/681/ CFSP points out that the ‘activities of the Union, supported, inter alia, by the Community’s institution building programmes under the CARDS Regulation, will contribute to the overall peace implementation in [FYROM] as well as to the achievements of the Union’s overall policy in the region, notably the stabilisation and association process’.24 In its conduct, the mission faced practical problems not dissimilar to those which also challenged EUPM BiH: computers and other equipment were not provided until well after the launch of the mission, and there was a high turnover of personnel.25 In addition, there were considerable problems in the coordination between the different actors involved in the conduct of the different strands of the Union’s policy in FYROM. The European Union Special Representative was assigned a role as the medium through which the High Representative would give guidance to the Head of Mission, and, to that effect, he chaired weekly informal meetings. However, turf wars between the Commission and the Council were not avoided: the relations between EUPOL PROXIMA and the Commission Delegation in Skopje were tense, and the European Agency for Reconstruction was reluctant to share information with EUPOL PROXIMA personnel, and only initiated programmes following the expiry of the mission.26 These problems were significant, given the big budget which the Commission dedicated to police reforms and the new border police projects.27 In an effort to facilitate coordination on the ground, the Union resorted to double-hatting, that is, appointing the Special Representative to FYROM as the Head of the Commission delegation since 1 November 2005.28 23

Art 3 of Joint Action 2003/681/CFSP. [2003] OJ L 249/66. 25 I Ioannides, ‘The EU Police Mission (EUPOL Proxima) and the European Union Police Advisory Team (EUPAT) in the former Yugoslav Republic of Macedonia’, 194. 26 I Ioannides, ‘The EU Police Mission (EUPOL Proxima) and the European Union Police Advisory Team (EUPAT) in the former Yugoslav Republic of Macedonia’, 194. 27 M Merlingen and R Ostrauskaité, European Union Peacebuilding and Policing (London: Routledge, 2006), 101. 28 The mandate of the EUSR in FYROM expired in February 2011: Council Dec. 2010/444/CFSP [2011] OJ L 211/32. 24

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EUPAT (Former Yugoslav Republic of Macedonia) (2005–2006) As soon as the mandate of the police mission in FYROM had expired in December 2005, an EU Police Advisory Team was dispatched at the request of the FYROM Government. The aim of the mission was to provide technical assistance in specific areas of local police.This was a small mission, both in terms of its personnel (approximately thirty, including police advisors, police officers, and civilian experts) and duration (six months, until June 2006). A smaller number of Member States participated29 but no third countries. It drew on the staff of EUPOL PROXIMA. The mandate of EUPAT was to monitor and mentor local police in the field of border police; public peace and order, and accountability; and the fight against corruption and organized crime. It did so by focusing on overall implementation of police reform in these areas, the cooperation between the police and the judiciary, and compliance with professional standards and internal control procedures.30 In practical terms, it sought to achieve its objectives by submitting monthly reports to FYROM authorities on the progress achieved and the outstanding shortcomings. The very existence of EUPAT sheds some light on the deeply idiosyncratic nature of CSDP. In terms of the mission’s mandate, there is a striking similarity with the mandate of EUPOL PROXIMA on which it drew and which it succeeded. There is also noticeable congruence between its mandate and the subject matter of the CARDS programme designed for FYROM and which it preceded. The latter was scheduled to start in June 2006 and was about providing resident advisors at the Ministry of Interior dealing with different areas of police reform. It is recalled that the CARDS Regulation was mentioned in the very first paragraph of the Council measures setting up EUPOL PROXIMA,31 as, indeed in Council Joint Action 2005/826/CFSP establishing the EUPAT. Viewed from this angle, the latter does not only constitute a bridging operation between a CSDP mission and the application of a non-CSDP initiative, hence phasing out the security rationale in order to phase in the enlargement method, but also illustrates clearly how fine the dividing line is between CSDP and other EU missions, as well as between EU missions themselves. This raises various questions, not least about the raison-d-être of launching EUPAT. It appears that its existence was largely due to external factors, namely the wish of the FYROM Government to dissociate FYROM from the Union’s security and defence policy. As the country sought to find its way towards accession to the Union, the presence of a CSDP mission would have suggested an area of tension and instability, hence undermining the ambition of the Government to pursue its EU aspirations. However, given the continuous need of the FYROM services to 29 Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Slovakia, Slovenia, Spain, Sweden, the United Kingdom. 30 Art 2 of Council Joint Action 2005/826/CFSP [2005] OJ L 307/61. 31 Joint Action 2003/681/CFSP [2003] OJ L 249/66.

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be advised and mentored, a hiatus of six months between the termination of EUPOL PROXIMA and the development of the CARDS programme would have made no sense. Therefore, the establishment of the EUPAT in FYROM was designed for entirely pragmatic reasons.

EUPOL KINSHASA (Democratic Republic of Congo) (2005–2007) This was the first civilian CSDP mission in Africa, and was deployed in an area where the Union had already set up a military operation.32 Its establishment followed the signing in December 2002 of the Pretoria Agreement, an allencompassing arrangement about the transition in the Democratic Republic of Congo (DRC). This provided for the establishment of an Integrated Police Unit, a mixed unit of the Congolese National Police of approximately 1,000 men responsible for the protection of the institutions and the action of the transition process. The process was supported by the United Nations Organization Mission in the DRC (MONUC). It was to support this police unit that EUPOL KINSHASA was established.33 The mission was launched in April 2005 and expired in June 2007. It was small; its personnel no more than thirty, and had no executive authority. Its original objective was to monitor, mentor, and advise the setting up and the initial running of the Integrated Police Unit in order to ensure that the latter would act in accordance with the training it received and international best practices in the field. In 2006, this mandate was extended to cover the training of the Unit, the supervision of its integration into the Congolese National Police, and to support the coordination between different units of the latter during the election process. The planning for and the mandate of EUFOR RDC illustrates clearly the construction of CSDP as a component of a web of EU policies aiming to address a specific problem in a complementary manner. Initially, the Union’s approach to security in DRC was confined to the provision of technical assistance, the rehabilitation of the training centre of the Integrated Police Unit, the training of and the provision of equipment to the Unit on the basis of the European Development Fund and managed by the European Commission. In addition, both the Union and the Member States provided financial assistance and law enforcement equipment; arms and ammunition considered necessary for the establishment of the Unit.34 During this process, the possibility of a CSDP mission was mooted and considered.35 32

Operation Artemis (EUFOR RD Congo): see the analysis in Ch 5. Council Joint Action 2004/847/CFSP [2004] OJ L 367/30, amended by Council Joint Action 2005/822/CFSP [2005] OJ L 305/44, Council Joint Action 2006/30/CFSP [2006] OJ L 111/12, and Council Joint Action 2006/868/CFSP [2006] OJ L 335/50. 34 Council Joint Action 2004/494/CFSP [2004] OJ L 182/41. 35 See recital 12 of Joint Action 2004/494/CFSP. 33

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The establishment of the mission as part of the Union’s broader approach is also illustrated by the provision for other EU actors in Joint Action 2004/847/CFSP which ‘notes the Commission’s intention to direct its action towards achieving the objectives of this Joint Action, where appropriate, by relevant Community measures’.36 In addition, it also makes reference to possible future projects under the European Development Fund and notes that coordination arrangements are required both in Kinshasa and Brussels.37 As with other police missions, the European Union Special Representative was entrusted with the role of giving guidance to the Head of Mission on behalf of the High Representative. Following the 2006 elections, the Union launched a second police mission, the mandate of which was wider and its duration longer. This is examined in a following section.

EUPOL RD Congo (Democratic Republic of Congo) (2007–present) EUPOL RD Congo is the outcome of the EU’s effort to assume a central position in the rebuilding of DRC.The Council, in September 2006, expressed its intention to assume a coordinating role in international efforts in the security sector, in close cooperation with the United Nations, to support the Congolese authorities in the field.38 In this vein, EUPOL RD Congo was launched in July 2007, just a few months after EUPOL KINSHASA had expired.39 As was the case with the latter mission, EUPOL RD Congo was carried out in the context of the UN approach to DRC. The UN Security Council adopted Resolution 1756 (2007) in which it allowed MONUC, whose mandate was extended, to contribute to efforts to support the government of DRC in the initial process of planning security sector reform. In this effort, MONUC was to act in close cooperation with other international partners, including the European Union. The mission personnel comprised approximately sixty police and legal advisors from nine contributing Member States.40 It had no executive powers. Instead, its mandate was to monitor, mentor, and advise the Congolese National Police. Its emphasis was more strategic and was about respect for human rights, international humanitarian law, democratic standards, and the principles of good governance, transparency, and respect for the rule of law. It was also entrusted with 36

37 Art 11(1) of Joint Action 2004/847/CFSP. Art 11(2) of Joint Action 2004/847/CFSP. Council Conclusions, 12205/06 (Brussels, 15 September 2006), 12. 39 Joint Action 2007/405/CFSP [2007] OJ L 151/46, amended by Joint Action 2008/38/CFSP [2008] OJ L 9/18; Joint Action 2008/485/CFSP [2008] OJ L 164/44; Joint Action 2009/466/CFSP [2009] OJ L 151/40; Joint Action 2009/769/CFSP [2009] OJ L 274/45; Council Decision 2010/329/ CFSP [2010] OJ L 149/11; Council Decision 2010/576/CFSP [2010] OJ L 254/33; Council Decision 2011/537/CFSP [2011] OJ L 236/8; and Council Decision 2012/514/CFSP [2012] OJ L 257/16. 40 Belgium, Finland, France, Germany, Italy, Portugal, Romania, Spain, and Sweden. Angola, Turkey, Switzerland, and Canada have contributed one expert each. 38

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facilitating the interactions between the Congolese police and the criminal justice system. The mandate was extended gradually. In June 2008, it included the provision of assistance to the Congolese Police in the areas of Border Police and the Audit Police Service.41 In addition, its personnel was also entrusted with contributing to the process of stabilization of the eastern parts of DRC (in the North and South Kivu provinces) and providing training on protection of gender and children’s rights. In October 2009, the mission’s focus on the fight against violence and impunity was spelled out clearly.42 Therefore, gradually EUPOL RD Congo was working on the entire spectrum of issues which pertain to security sector reform. As was the case with EUPOL KINSHASA, the linkages between EUPOL RD Congo and other non-CSDP activities were apparent from the start. Prior to and in order to prepare for the deployment of the mission, the Union dispatched two joint Council/Commission evaluation missions.43 Joint Action 2007/405/CFSP refers specifically to the requirement of consistency between the mission’s activities and the Union’s non-CSDP policies, and the need for the Council and the Commission to cooperate to that end both in Kinshasa and in Brussels.44 Consistency was necessary not only between CSDP and non-CSDP activities, but also between different CSDP missions. Since June 2005, the Union had been carrying out a security sector reform mission in DRC (EUSEC DR Congo) that will be examined further in this chapter along with the practical problems to which its coordination with EUPOL RD Congo has given rise. At this juncture, suffice it to point out that consistency with its activities was entrusted in the EUSR and coordination was carried out by the Heads of the Missions.

EUPOL COPPS (Palestinian territories) (2006–present) This mission was undertaken against the background of intense involvement of the Union in the effort of the international community to solve the Israeli–Palestinian crisis.45 The Union is a member of the Quartet, that is, the four parties involved in mediating between Israel and the Palestinian Authorities (the other three being the United Nations, the United States, and Russia). The police mission was launched on 1 January 2006. Its headquarters are located in Ramallah. While originally very small, it has grown to comprise approximately seventy prosecutors, judges, prison experts, human rights specialists, and lawyers, 41

Joint Action 2008/485/CFSP [2008] OJ L 164/44. Joint Action 2009/769/CFSP [2009] OJ L 274/45. 43 In October 2006 and March 2007. 44 Art 11(1) of Joint Action 2007/405/CFSP. 45 See Rory Miller, Inglorious Disarray: Europe, Israel and the Palestinians since 1967 (London and New York: Hurst/Columbia University Press, 2011). 42

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seconded from seventeen Member States,46 as well as Norway and Canada. As soon as it was launched, it became apparent that its work was going to be extremely difficult: Hamas’ victory in the Palestinian legislative elections in January 2006 led to the withdrawal of all funding from the Union and the halting of the mission’s work. EUPOL COPPS resumed its work in June 2007, following the assumption of power by an emergency Government, and confined its activities in the West Bank. The aim of the mission is to provide assistance to the Palestinian Civil Police, a body consisting of approximately 7,800 officers in the West Bank and the Gaza Strip. Its main parameters are set out in Article 2 of Council Joint Action 2005/797/ CFSP:47 ‘The aim of EUPOL COPPS is to contribute to the establishment of sustainable and effective policing arrangements under Palestinian ownership in accordance with best international standards, in cooperation with the Community’s institution building programmes as well as other international efforts in the wider context of Security Sector including Criminal Justice Reform’. Four issues are raised by the above mandate. First, the focus of the mission is to assist the Palestinian Civil Police by advising and closely mentoring, in particular senior officials at District, Headquarters, and Ministerial level. Therefore, the mission is not executive. Initially, the main emphasis was on short-term projects and the provision of essential equipment. Over the years, the rule of law aspect of the mission featured more prominently and its approach became more clearly oriented towards capacity building in the whole criminal justice system.48 The advice and training functions are carried out through field and specialist advisors who focus on such diverse areas as criminal investigation, crime scene management, police administration, information storage, and the development of training courses. In keeping with the broader rule of law approach, they deal with, among others, the prison section, criminal justice, prosecution, and court administration, and focus on good governance, accountability, anti-corruption, and gender mainstreaming.49 Second, and consistently with the other police missions of the Union, the mandate of EUPOL COPPS is based on the notion of local ownership. Therefore, emphasis is given on the role of the Palestinian authorities and their involvement in identifying their needs and the ways in which the EU mission may help the relevant bodies meet them. 46 Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, the Netherlands, Portugal, Spain, Sweden, the United Kingdom. 47 Art 2(1) of Joint Action 2005/797/CFSP [2005] OJ L 300/65. This was implemented by Council Dec. 2008/134/CFSP [2008] OJ L 43/38 (amended by Council Dec. 2008/482/CFSP [2008] OJ L 163/52) and amended by Council Joint Action 2008/958/CFSP [2008] OJ L 338/75; Joint Action 2009/955/CFSP [2009] OJ L 330/76, Council Decision 2010/747/CFSP [2010] OJ L 318/44. In December 2010, the Council adopted Decision 2010/784/CFSP [2010] OJ L 335/60, amended by Council Decision 2011/858/CFSP [2011] OJ L 338/54, and Council Decision 2012/324/CFSP [2012] OJ L 165/48. 48 Joint Action 2008/958/CFSP [2008] OJ L 338/75. 49 See European Parliament Subcommittee on Security Defence, CSDP Missions and Operations: Lessons Learned Processes (Brussels: European Parliament Directorate-General for External Policies Policy Department, 2012), at 70.

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Third, the mandate of the mission and its work on the ground are characterized by the realization that this is but a part of a wide range of activities carried out by an even wider range of actors in the area. On the one hand, both the Union and the Member States are involved in providing financial and technical assistance to the Palestinian Civil Police. Joint Action 2005/797/CFSP includes the, by now, standard clause about coordination between the Council and the Commission.50 On the other hand, other international actors are also active in the area. For instance, the United States have been central in training and supporting the Palestinian military, that is the National Security Forces and the Presidential Guard. Over the years, another function was added to the mandate of the mission, namely a project cell coordinating, facilitating, and advising on projects implemented by Member States and third States under their responsibility, in areas related to the mission and in support of its objectives.51 In this dense policy terrain, EUPOL COPPS was envisaged not only as complementary to other international efforts, but also as an initiative aiming to bring ‘added value’.52 This quest for a distinct EU contribution has been a thread underpinning the whole EU’s approach to security—it is recalled that it also emerges in the European Security Strategy.53 However, the size of the mission seemed to be in inverse correlation with the Union’s ambition about its contribution. As for its personnel, problems similar to those which afflicted previous missions emerged, both in terms of the expertise and competence of the staff seconded from the Member States. In fact, this problem led the Council to provide for the recruitment of experts on a contractual basis ‘if the functions required are not provided by personnel seconded by Member States’.54 Another problem is the political situation in the area which has proved intractable and which has placed an inherent limit on the impact of EUPOL COPPS.55 In addition, coordination problems with other actors, and in particular the European Commission and its Technical Assistance Office in Jerusalem, are by no means infrequent.56

50

Art 15 of Joint Action 2005/797/CFSP. Joint Action 2009/955/CFSP [2009] OJ L 330/76, and Joint Action 2010/748/CFSP [2010] OJ L 335/60 which extended the mandate of the mission until 31 December 2011. The other CSDP missions with such a cell are EUSEC RD Congo, and EUPOL AFGHANISTAN. 52 Recital 7 to Joint Action 2005/797/CFSP. 53 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). See the analysis in Ch 4. 54 Art 8(3) of Joint Action 2005/797/CFSP as amended by Art 1(2)(a) of Council Decision 2009/955/ CFSP [2009] OJ L 330/76. 55 See Esra Bulut, ‘The EU Police Mission for the Palestinian Territories—EU Coordinating Office for Palestinian Police Support (EUPOL COPPS)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 287, at 293–5. 56 See European Parliament Subcommittee on Security Defence, CSDP Missions and Operations: Lessons Learned Processes (Brussels: European Parliament Directorate-General for External Policies Policy Department, 2012), at 70. 51

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EUPOL AFGHANISTAN (Afghanistan) (2007–present) The Union’s mission in Afghanistan was established against a background of intense international involvement in the security and governance of the country. On the one hand, a number of Member States had participated in the Operation Enduring Freedom, the United States-led military intervention authorized by the United Nations Security Council in 2001 following the terrorist attacks of September 11.57 In 2002, the United Nations established an assistance mission bringing together specialized UN agencies and dispensing humanitarian and development aid.58 Furthermore, a peacekeeping force, the International Security Assistance Force (ISAF) was established aiming to provide assistance in developing national security structures and the training of the future Afghan security forces.59 In addition, individual States provided small groups of personnel which developed civilian projects; called Provincial Reconstruction Teams, a number of them were sent by Member States. Furthermore, following a United Nations initiative in 2002, a number of individual States assumed responsibility for different areas of security sector reform. Germany’s was the most important contribution, as it established the German Police Project Office comprising approximately forty personnel. It was against this crowded background that the Union established a police mission in Afghanistan.60 EUPOL AFGHANISTAN is a non-executive mission, therefore its personnel do not bear weapons. Its tasks are carried out through monitoring, mentoring, advising, and training. It comprises approximately 350 police officers who constitute the bulk of its strength, as well as rule of law experts, and civilian experts. These are seconded from twenty-three Member States, as well as Croatia, Norway, Canada, and New Zealand. The mission was originally envisaged to last until the end of 2010, but has been extended until 31 May 2013.61 The aim of the mission is to ‘significantly contribute to the establishment . . . of sustainable and effective civilian policing arrangements, which will ensure appropriate interaction with the wider criminal justice system’ and to ‘support the reform process towards a trusted and efficient police service, which works in accordance with international standards, within the framework of the rule of law and respects human rights’.62 To that effect, its work is focused on anti-corruption, intelligenceled policing, criminal investigations, training the Afghan Police trainers, and security plans for a number of main cities. In cooperation with United Nations and US officials, the mission has drafted an anti-corruption strategy; it has established a 57

58 59 S/RES/1373 (2001). S/RES/1401 (2002). S/RES/1378 (2002). Joint Action 2007/369/CFSP [2007] OJ L 139/33, amended by Joint Action 2007/733/CFSP [2007] OJ L 295/31, Joint Action 2008/229/CFSP [2008] OJ L 75/80, Joint Action 2008/643/CFSP [2008] OJ L 207/43, Joint Action 2009/842/CFSP [2009] OJ L 303/71, and implemented by Council Dec. 2008/884/CFSP [2008] OJ L 316/21. In May 2010, the Council adopted Decision 2010/279/ CFSP [2010] OJ L 123/4, amended by Council Decision 2011/298/CFSP [2011] OJ L 136/64, Council Decision 2011/473/CFSP [2011] OJ L 195/72, and Council Decision 2012/391/CFSP [2012] OJ L 187/47. 61 62 Joint Action 2010/279/CFSP [2010] OJ L 123/4. Art 3 of Joint Action 2007/369/CFSP, n60. 60

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hotline for complaints about police misbehaviour in Helmand; it has provided courses for training officers of the Afghan Police; it has drawn up programmes for ensuring the district-by-district security of big cities.63 Therefore, the approach of EUPOL AFGHANISTAN to police reform is distinctly civil-oriented, and, as such, it meets one of the ambitions of the Union about its contribution, namely to provide ‘added value’.64 Consistently with the other police missions, the element of local ownership is a cornerstone of EUPOL AFGHANISTAN. This has contributed to the gradual development of its activities to adjust to the evolving policy context on the ground. However, its application in practice proved fraught with problems. There was considerable delay in getting the Afghan Government to articulate its needs in the area.65 This was hardly surprising given the state of the country and the collapse of its institutions. However, in that context, the mandate of the mission appeared not to have taken into account the particularities of the state of Afghanistan at the time and the reliance of the mission upon the receptiveness of actors which did not exist in any formal institutional sense.66 There were also considerable problems in launching the mission.The Member States were distinctly unenthusiastic about manning it and reluctant to send highly qualified personnel. While by no means unique in CSDP missions, this attitude also illustrated a lack of political will of the EU capitals to engage in Afghanistan. In fact, EUPOL AFGHANISTAN was established due to the strong pressure exercised by the United States to the Union to share the burden of rebuilding Afghanistan, and the insistence of Germany that its existing Police Project Unit be supported by EU personnel.67 This illustrates a thread which brings together the military operations, examined in Chapter 5, and the civilian missions outlined so far: rather than the outcome of a strategic and carefully thought out policy process; the establishment of a CSDP mission may well serve the specific interests of a Member State, the remaining States tagging along rather reluctantly for other political reasons. What makes this point all the more striking in the case of EUPOL AFGHANISTAN is the disjunction which it seems to suggest between the Union’s ambition to shoulder its responsibilities on the world scene, as expressed in the European Security Strategy, and the somewhat disconcerting background to its contribution to one of the most important conflicts in the world. 63 Luis Peral, ‘The EU Police Mission in Afghanistan (EUPOL Afghanistan)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 325, at 330–1. 64 Recital 5 to Council Joint Action 2007/369/CFSP. 65 See L Peral, ‘The EU Police Mission in Afghanistan (EUPOL Afghanistan)’, at 332. 66 In another respect, the EU did take into account the specific circumstances prevailing in the area: initially, EUPOL hired a private company to guarantee its security: L Peral, ‘The EU Police Mission in Afghanistan (EUPOL Afghanistan)’, at 334. 67 In fact, the personnel of the German Police Project Office constituted the bulk of the EUPOL AFGHANISTAN’s police personnel.

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As explained, the mission was launched in a rather crowded terrain. Among others, there is the NATO Training Mission-AFGHANISTAN (NTM-A). Focused on the Afghan army, as well as police, this is a much bigger operation than the Union’s mission, and a number of Member States participate in its police-specific strand.68 In addition, the United States have a strong presence in the area not only militarily but also in terms of training. Coordinating between the various international players active in the area of security sector reform is one of the specific tasks of EUPOL AFGHANISTAN. However, ensuring coherence is by no means easy. A case in point is the United States initiative which is based on a rather militarized approach which is in contrast to the civil-oriented approach underpinning the work of EUPOL AFGHANISTAN.69 In terms of internal coherence, that is the links between the mission and other EU policies, a noteworthy feature of the mission is its constant interaction with the European Commission which, among others, provides funding for the Afghan police. On the one hand, there is a striking discrepancy between the considerable funds managed by the Commission and the inability of EUPOL to finance even minor renovation work in the field in which it is deployed.70 On the other hand, there is no clear allocation of functions and strategic policy planning between the two actors. On the basis of the above overview, it would not be difficult to criticize the planning and execution of EUPOL AFGHANISTAN. However, it is important not to lose sight of the broader context within which the mission was designed and carried out. In particular, one should not lose sight of the immensely complex situation in Afghanistan and the multifarious problems which the international community faced.This does not apply only to rule of law initiatives,71 but also generally to the coalition approach to the country’s rebuilding. The former UK Ambassador in Kabul and special envoy to Afghanistan and Pakistan Sir Sherard Cowper-Coles describes this as follows: The enterprise has proved to be a model of how not to go about such things, breaking all the rules of grand strategy: getting in without having any idea of how to get out; almost wilful misdiagnosis of the challenges; changing objectives, and no coherent or consistent plan; mission creep on an heroic scale; disunity of political and military command, also on an heroic scale; diversion of attention and resources [to Iraq] at a critical stage in the adventure; poor choice of local allies, who rapidly became more of a problem than a solution; unwillingness to co-opt the neighbours into the project, and thus address the mission-critical problem of external sanctuary and support; military advice, long on institutional self-interest, but woefully short on serious objective analysis of the problems of pacifying a broken country with largely non-existent institutions of government and security; weak political 68

Germany, Czech Republic, Italy, the UK, France, and the Netherlands. L Peral, ‘The EU Police Mission in Afghanistan (EUPOL Afghanistan)’, at 333. 70 L Peral, ‘The EU Police Mission in Afghanistan (EUPOL Afghanistan)’, at 335. 71 See Whit Mason (ed), The Rule of Law In Afghanistan—Missing In Inaction (Cambridge: CUP, 2011). 69

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leadership, notably in subjecting to proper scrutiny militarily heavy approaches, and in explaining to the increasingly, and now decisively, sceptical domestic press and public the benefits of expending so much treasure and blood.72

Security Sector Reform missions In the last decade, Security Sector Reform (SSR) has attracted considerable attention. Its definition is broad and evolving.73 In a 2008 Report of the UN Secretary General, the security sector is defined as follows:74 [It] is a broad term often used to describe the structures, institutions and personnel responsible for the management, provision and oversight of security in a country. It is generally accepted that the security sector includes defence, law enforcement, intelligence services and institutions responsible for border management, customs and civil emergencies. Elements of the judicial sector responsible for the adjudication of cases of alleged criminal conduct and misuse of force are, in many instances, also included. Furthermore, the security sector includes actors that play a role in managing and overseeing the design and implementation of security, such as ministries, legislative bodies and civil society groups. Other non-State actors that could be considered part of the security sector include customary or informal authorities and private security services.

SSR is described as ‘a process of assessment, review and implementation as well as monitoring and evaluation led by national authorities that has as its goal the enhancement of effective and accountable security for the State and its peoples without discrimination and with full respect for human rights and the rule of law’.75 It has become a prominent feature of the Union’s security and defence policy. It is mentioned in the European Security Strategy as an area support for which could be the subject matter of CSDP missions in the context of broader institution building.76 In 2005, the Council developed an EU Concept for ESDP support to SSR.77 It was drawn up in close co-operation with the Commission which then drew up its 72 Sherard Cowper-Coles, Cables From Kabul: The Inside Story of the West’s Afghanistan Campaign (London: Harper Press, 2011), 289–90. 73 See David Spence, ‘The European Union and Security Sector Governance’, in Steven Blockmans, Jan Wouters, and Tom Ruys (eds), The European Union and Peacebuilding—Policy and Legal Aspects (The Hague: TMC Asser Press, 2010), 195. 74 A/62/659-S/2008/39 Securing Peace and development: the role of the United Nations in supporting security sector reform, para 14. 75 A/62/659-S/2008/39 Securing Peace and development: the role of the United Nations in supporting security sector reform, para 17.The Organisation for Economic Co-operation and Development/Development Assistance Committee also developed guidelines on SSR in 2004, which defines SSR as ‘seeking to increase partner countries’ ability to meet the range of security needs within their societies in a manner consistent with democratic norms and sound principles of governance, transparency and the rule of law; SSR also includes, but extends well beyond, the narrower focus of more traditional security assistance on defence, intelligence and policing’. 76 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), at 12. 77 12566/5/05, REV 4, (Brussels, 13 October 2005).

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own Concept for Support for SSR.78 Therefore, it is apparent that SSR has a dual dimension pertaining both to security and development. This is acknowledged in the Council’s Concept which states that:79 ‘[d]urable stability and development need a well organised and controlled security system that is managed in accordance with democratic norms and principles of accountability, transparency and good governance’, and which defines the ultimate goal of CSDP actions in support of SSR as ‘to reach a situation where the security system is organised in a way which ensures an effective Security Sector, the protection of individuals as well as of sustainable stage institutions through ensured democratic oversight, transparency and accountability in accordance with internationally recognized values and standards’. The following characteristics of the envisaged CSDP actions as they are set out in that document are worth raising. First, they are based on the principle of local ownership, that is, the participation of the local authorities in the process of drawing up the plans necessary for reform and their responsibility for the implementation of these plans. Second, the document stresses the need for close cooperation with international actors, such as the United Nations and other international organizations, as well as non-governmental organizations. Third, it suggests a holistic approach to SSR which pertains both to wider governance and security. Fourth, in the light of the underlying security and development dimensions of SSR, the issue of coherence features prominently, as does the requirement for close coordination between the different EU actors involved, namely the Council, the Commission, and the Member States.

EUSEC RD Congo (Democratic Republic of Congo) (2005–present) This was the second civilian mission launched in DRC, as the Union had already deployed EUPOL KINSHASA in April 2005 which was succeeded in 2007 by EUPOL RD Congo. It is recalled that there had been considerable movement in EU policy in the area,80 as well as an internationally monitored transition framework. 78 COM (2006) 253 final, A Concept for European Community Support for Security Sector Reform (Brussels, 24 May 2006). 79 12566/5/05, paras 22 and 25. 80 See Common Position 2004/85 concerning conflict prevention, management, and resolution in Africa [2004] OJ L 21/25, repealed by Common Position 2005/304/CFSP [2005] OJ L 97/57. See also Council Action Plan for ESDP support to Peace and Security in Africa (10538/4/04), (Brussels, 16 November 2004), along with Guidelines for implementation of this Action Plan (13 December 2004) and Council Conclusions stating the Union’s readiness to contribute to security sector reform in Congo (13 December 2004). See also the appointment of a Special Representative of the European Union for the African Great Lakes Region: Council Joint Action 2002/962/CFSP [2002] OJ L 334/5, amended by Joint Action 2003/869/ CFSP [2003] OJ L 326/37, Joint Action 2004/530/CFSP [2004] OJ L 234/13, Joint Action 2005/96/CFSP [2005] OJ L 31/70, Joint Action 2005/586/CFSP [2005] OJ L 199/97, Joint Action 2006/122/CFSP [2006] OJ L 49/17, Joint Action 2007/112/CFSP [2007] OJ L 46/79, Joint Action 2008/108/CFSP [2008] OJ L 38/22, Joint Action 2009/128/CFSP [2009] OJ L 46/36, Joint Action 2010/113 [2010] OJ L 46/30, Joint Action 2010/440/CFSP [2010] OJ L 211/20.

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The latter included the establishment of a restructured and integrated national army following the agreement of the parties involved to put an end to a nasty and long civil war.81 It is also recalled that the United Nations Security Council supported the transition process by deploying MONUC which was tasked, among others, with supporting the Congolese Government to carry out reform of the security sector.82 EUSEC RD Congo was deployed in June 2005 and is planned to expire on 30 September 2013.83 At its highest capacity, it comprises approximately sixty personnel, and in its final phase approximately fifty, from thirteen Member States and the United States.84 In fact, following the Union’s mission in Kosovo (EULEX KOSOVO), this was only the second CSDP mission in which the United States participated.While a civilian mission, it consists entirely of military staff. In practical terms, a number of experts were based in the mission’s headquarters in Kinshasa and others were assigned to posts within the Congolese administration, such as the private office of the Minister for Defence, the combined general staff, and the army, naval, and air force general staff. The mandate of the mission has evolved considerably over the years and the work of EUSEC RD Congo went on beyond the transition process. Once a Government was formed in 2007, following the elections, the United Nations Security Council adopted Resolution 1756 (2007) in which it extended the mandate of its own mission in the country (MONUC) and referred to the need to contribute to efforts to support the Congolese Government in the initial process of planning security sector reform by making special reference to the European Union. The overall focus of the mission is firmly on the management and administration of the DRC Armed Forces. Three broad strands may be identified. The first is about enhancing the administrative capacity of the Armed Forces through specific projects, including setting up a technical assistance project on the modernization of the chain of payments of the Ministry of Defence85 and the provision of technical support for the biometric census of the troops.While both projects may appear 81 These consisted of the Global and Inclusive Agreement signed by the Congolese parties in Pretoria on 17 December 2002, and the Final Act signed in Sun City on 2 April 2003. For an overview of this background, see Rory Keane, ‘Security System Reform in the Democratic Republic of Congo: The Role Played by the European Union’, in David Spence and Philipp Fluri (eds), The European Union and Security Sector Reform (London: John Harper Publishing, 2008), 217, at 217–20. 82 S/RES/1592 (2005) amending S/RES/1565(2004). 83 Council Joint Action 2005/355/CFSP [2005] OJ L 112/20, amended by Council Joint Action 2005/868/CFSP [2005] OJ L 318/29, Council Joint Action 2006/303/CFSP [2006] OJ L 112/18, Council Joint Action 2007/192/CFSP [2007] OJ L 87/22. It was replaced by Joint Action 2007/406/ CFSP [2007] OJ L 151/52 which was then amended by Joint Action 2008/491/CFSP [2008] OJ L 168/42, Joint Action 2009/509/CFSP [2009] OJ L 172/36. It was replaced by Joint Action 2009/709/ CFSP [2009] OJ L 246/33 which was amended by Council Decision 2010/565/CFSP [2010] OJ L 248/59 which is amended by Council Decision 2011/538/CFSP [2011] OJ L 236/10 and Council Decision 2012/515/CFSP [2012] OJ L 257/18. 84 85 The US personnel withdrew in 2011. See Council Joint Action 2005/868/CFSP.

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trivial, they were of central importance for the functioning of the Congolese Army because they targeted one of its perennial shortcomings, namely corruption. By separating the chain of payment from the chain of command it rationalized the organization of the Armed Forces and prevented corrupt officers from reducing the already low wages of soldiers. Similarly, to draw up an accurate record of the existing Congolese soldiers was no mean feat and would tackle the problem of troops and officers pocketing the salaries of a considerable number of ghost soldiers.86 The second strand consists of the promotion of policies compatible with human rights, international humanitarian law, democratic standards, principles of good governance, transparency, and respect for the rule of law. To that effect, the mission provides expertise in the selection, training, and education of staff, as well as the management of the administration, budget and finance, training, and logistics. The third strand is related to projects financed by the Member States. The mission identifies such projects for the Member States or the Union to support and contributes to their development, and also supervises projects financed and initiated by the Member States themselves, provided, of course, that they pursue the aims of EUSEC RD Congo. In addition, it is responsible for coordinating the implementation of national projects. Consistently with other civilian missions, local ownership is a feature of EUSEC RD Congo too. For instance, in its later phase, it provides assistance for the implementation of the guidelines for the reform of the Congolese armed forces as these were adopted by the DRC Minister of Defence in January 2010. Finally, the mission supports the Union’s Special Representative, in particular in the context of the peace negotiations in East Congo, by providing military knowhow for initiatives for the disengagement and disarmament of combatants. A number of issues which were highlighted in relation to other civilian missions emerge in the context of EUSEC RD Congo. Funding is a constant source of tension, as was the unwillingness of the Member States to provide it in sufficient sums. This may have to do, partly, with the initial reservations of some Member States about the establishment of the mission, the latter being advocated strongly by France and Belgium, countries with traditional links to the area. In addition, its main focus on technical issues and its size raises questions as to its overall impact. This is all the more so in the light of the continuous crisis in RD Congo which constantly prevents the development of a political and security environment conducive and responsive to the work carried out by the mission.87 Finally, there is the ever present problem of coherence and coordination with other strands of EU Action (for instance EUPOL KINSHASA and EUPOL RD Congo), as well as 86 See Caty Clément, ‘The EU mission to provide advice and assistance to security sector reform in the Democratic Republic of Congo (EUSEC RD Congo)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 243, at 247–8. 87 See Human Rights Watch, ‘ “You Will Be Punished”—Attacks on Civilians in Eastern Congo’ (13 December 2009), for violations committed by the Congolese Army.

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with the Member States, the insufficient impact of the practical arrangements on the ground being acknowledged within the EU itself.88

EU SSR GUINEA-BISSAU (Guinea-Bissau) (2008–2010) A very small and extremely poor country, Guinea-Bissau was ruled by brutal dictatorship followed by a civil war in 1998–1999 and, then, considerable political tension and instability. In 2007, its Government drew up a national security strategy in which security sector reform featured prominently and which focused on restructuring the armed forces. This was of particular interest to the international community as Guinea-Bissau had become a major drug-trafficking destination. The UN Secretary General pointed out the country’s inability to combat drug trafficking by itself and urged regional and international partners to provide technical and financial support.89 While the European Union had already made Africa a main point of focus for its security policy,90 it was mainly Portugal, the old colonial master, which advocated an EU mission most strongly. Following two joint Council/Commission fact-finding missions in May and October 2007, EU SSR GUINEA-BISSAU was launched in June 2008 and expired on 30 September 2010.91 This was a very small mission, comprising no more than twenty military and civilian advisors from six Member States,92 and located in the capital city of Bissau. Its main objective was to ‘provide local authorities with advice and assistance on SSR in the Republic of Guinea-Bissau in order to contribute to creating the conditions for implementation of the National SSR Strategy, in close cooperation with other EU, international, and bilateral actors, and with a view to facilitating subsequent donor engagement’.93 A strong feature of the mission was the notion of local ownership. Following the approach adopted by the national security strategy, its activities pertained to the military, police, and prosecution services. In order to achieve its objectives, it contributed to the drafting of detailed implementation plans for the restructuring of 88 See Recommendations of the Politico-Military Group on the six-monthly report by the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD CONGO), 10937/11, 30 May 2011. 89 See S/2007/576 Report of the Secretary-General on developments in Guinea-Bissau and on the activities of the United Nations Peacebuilding Support Office in that country, (28 September 2007). 90 See the Joint Africa-EU Strategy of 9 December 2007 in which the promotion of peace, security, and stability in Africa and Europe is defined as a key strategic priority. In addition, see Council Conclusions of 12 February 2008 which state that SSR in partner countries constitutes one of the core areas for EU action as identified in the European Security Strategy. 91 See Council Joint Action 2008/112/CFSP [2008] OJ L 40/11, amended by Council Joint Action 2009/405/CFSP [2009] OJ L 128/60, Council Joint Action 2009/841/CFSP [2009] OJ L 303/70, and Council Decision 2010/298/CFSP [2010] OJ L 127/16. 92 Germany, Spain, France, Italy, Portugal, and Sweden. 93 Art 2 of Joint Action 2008/112/CFSP.

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the security forces, including the armed forces, it identified needs in relation to training and equipment and sought to attract projects and donors to address them, and it revised the rules governing criminal investigations and prosecutions, as well as those governing the operation of the armed and security forces. However, the application of the principle of local ownership proved fraught with difficulties. There was intense infighting between the relevant authorities in Guinea-Bissau which, along with the inertia of military staff , seriously hampered the ability of the mission to achieve its objectives.94 The political instability which never ceased and which led to a military coup in November 2008, the assassination of the President in March 2009, and a mutiny in April 2010 by no means helped. The mission was also marred by the practical problems that have become rather familiar in the CSDP setting. The lack of enthusiasm of the Member States to launch it was illustrated by their reluctance to provide the necessary personnel and which led to a number of positions not being filled.95 This is striking, given the very small size of the mission. In addition, practical problems suggested a distinct lack of professionalism: for instance, personnel were required to bring their own laptops to Bissau in anticipation of delays in the delivery of IT equipment.96 Another problem was the interaction between the work of EU SSR GUINEABISSAU and the other EU policies. The coordination with the Commission is a case in point. The awareness of its significance was apparent, as the mission was prepared by two joint Council/Commission missions. It should also be recalled that, in its preamble, Council Joint Action 2008/112/CFSP stated that ‘security sector reform in Guinea-Bissau is essential for the stability and sustainable development of that country’.97 Therefore, the linkages between the security and development dimension of security sector reform were spelled out clearly. However, the synergies between the mission and the Commission were far from pronounced. This was in particular regarding the programmes on security sector reform funded by the European Development Fund and the Instrument for Stability. As for the activities of other Member States, the Head of Mission was involved in regular ambassadorial EU coordination meetings, even though the technical coordination with national advisors was rather loose. All these problems undermined the effectiveness of the mission and its capacity to respond to the needs of the local authorities.98 94 See Damien Helly, ‘The EU mission in support of Security Sector Reform in Guinea-Bissau (EU SSR Guinea-Bissau)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy— The First 10 Years (1999–2009) (2009), 369, at 374. 95 D Helly, ‘The EU mission in support of Security Sector Reform in Guinea-Bissau (EU SSR Guinea-Bissau)’, at 375. 96 D Helly, ‘The EU mission in support of Security Sector Reform in Guinea-Bissau (EU SSR Guinea-Bissau)’, at 372. 97 Recital 2, [2008] OJ L 40/11. 98 See Alex Vines, ‘Rhetoric from Brussels and reality on the ground: the EU and security in Africa’, (2010) 86 International Affairs 1091, at 1098.

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Border missions This section examines CSDP missions in which the Union supports the border control functions of local authorities in areas of conflict. In addition to the mission at Rafah Crossing Point in the Middle East, there is also one on the border between Moldova and Ukraine. However, this is not examined in this chapter as it is carried out in the context of the European Neighbourhood Policy, funded by the European Commission under the European Neighbourhood and Partnership Instrument.99 Its legal basis is a Memorandum of Understanding between the European Commission and the Governments of Moldova and Ukraine in 2005. Its aim is to support the border guard and customs authorities of the two countries in guaranteeing security, tackling criminality, and enhancing movement of legitimate trade and travel. The mission comprises approximately 100 personnel from Member States and is envisaged to expire on 30 November 2015.100

EUBAM Rafah (Rafah Crossing Point) (2005–present) Rafah is located in the southern Gaza strip and is the only land crossing between Gaza and Egypt. In November 2005, the Israeli Government and the Palestinian Authority signed the Agreement on Movement and Access which referred specifically to Rafah, and which made reference to the EU as a third party which could provide assistance in monitoring its operation.The management of border crossings had been the subject matter of activity by both the EU (including assistance to the Palestinian border management and establishment of a dialogue on customs issues with Israel and the Palestinian Authority) and the international community (including discussion of border security procedures by the Palestinian Authority with the support of the United States and Israel). It was against this background that EUBAM Rafah was launched in November 2005.101 It is scheduled to expire on 30 June 2013,102 but it is highly likely that it will be extended further. Instead of being based in the Gaza strip, its personnel are based in a hotel in the Israeli town of Ashkelon, 13 km north of the border with the strip. 99 Regulation 1638/2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument [2006] OJ L 310/1. 100 See the analysis in George Dura, ‘The EU Border Assistance Mission to the Republic of Moldova and Ukraine’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 275. 101 Council Joint Action 2005/889/CFSP [2005] OJ L 327/28, amended by Council Joint Action 2007/359/CFSP [2007] OJ L 133/51, Council Joint Action 2008/379/CFSP [2008] OJ L 130/24, Council Joint Action 2008/862/CFSP [2008] OJ L 306/98, Council Joint Action 2009/854/CFSP [2009] OJ L 312/73, Council Decision 2010/274/CFSP [2010] OJ L 119/22, Council Decision 2011/312/CFSP [2011] OJ L 140/55, Council Decision 2011/857/CFSP [2011] OJ L 338/52, and Council Decision 2012/332 [2012] OJ L 165/71. 102 Council Decision 2012/332 [2012] OJ L 165/71.

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Its mandate is not to guard the border crossing, but to monitor compliance by the Palestinian customs officials with the 2005 Agreement on Movement and Access, and to mentor them on the ground in the process of examination of passengers and luggage. In addition, the mission facilitates the interactions between the Palestinian, Israeli, and Egyptian authorities in all aspects regarding the management of the Rafah Crossing Point. It is recalled that the EU is the biggest aid donor to the Palestinian Authority. However, the contribution of EUBAM Rafah has been intended to be ‘complementary and [to] bring added value to current international efforts, as well as develop synergies with ongoing European Community and Member States efforts’.103 In relation to other actors, it has cooperated with the Commission which provides equipment such as x-ray machines, metal detectors, communications and baggage equipment.104 EUBAM Rafah also collaborates with the Union’s police mission in the area (EUPOL COPPS) and audits and prepares training programmes on border policing and customs which were provided for the Palestinian Civil Police in the Rafah area. However, the situation on the ground has proved almost impossible. For approximately seven months (from November 2005 until June 2006), the Rafah crossing was open almost daily.When an Israeli corporal was captured and detained as a prisoner in the Gaza Strip by Hamas, it was only open exceptionally for about a year.105 In June 2007, when Hamas took over in the Gaza strip, the crossing point closed and the Union’s mission was suspended.This climate of political and security instability has had an impact on the size of the mission: while at its height it comprised approximately eighty personnel106 from twenty-one Member States,107 it is now down to four. It follows from this that the main challenge facing EUBAM Rafah has been the political and security situation in the area. This raises the question of its actual impact. On the one hand, while its scope appeared to be narrow and technical, it related to an issue of practical significance for the local population. In fact, it has been pointed out that the Rafah border crossing arrangements for passengers were the only part of the Agreement on Movement and Access which was actually implemented, albeit for a limited period.108 On the other hand, its continuous 103

Council Decision 2012/332 [2012] OJ L 165/71, recital 10. Esra Bulut, ‘The EU Border Assistance Mission at the Rafah Border Crossing Point (EUBAM Rafah)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 299, at 304. 105 In the period between June 205 and June 2007, a total of 443,975 passengers crossed through the Rafah crossing point: EEAS, EUBAM Rafah Factsheet (updated July 2012). This number is double that from during the period when the Israeli authorities were in charge of the posting: E Bulut, ‘The EU Border Assistance Mission at the Rafah Border Crossing Point (EUBAM Rafah)’, at 302. 106 Tovah Lazaroff, ‘EUBAM Head: Keeping Gaza Border Open is the Trick’, The Jerusalem Post, 6 February 2009. 107 Twenty-one contributing Member States: Austria, Belgium, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Spain, Sweden, and the UK. 108 Esra Bulut, ‘The EU Border Assistance Mission at the Rafah Border Crossing Point (EUBAM Rafah)’, at 307. 104

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presence may appear to be merely of symbolic significance, illustrating the interest of the EU and its presence in the area. In addition, it suggests that it would be redeployed swiftly should it be asked to do so. The issue of the merger of EUBAM Rafah with EUPOL COPPS has been raised since 2011, but this has not happened at the time of writing (2012), even though some posts in the latter have been designated as serving the former too.109

Monitoring missions AMM (Aceh, Indonesia) (2005–2006) Aceh is the northwestern region of the island of Sumatra in Indonesia. Since the mid-1970s, it was ravaged by a civil war between the Government of Indonesia and the Free Aceh Movement, the latter fighting for independence. The tsunami in December 2004, the loss of human lives, and the catastrophic damage which it caused acted as a catalyst for the negotiation of a peace settlement. On 15 August 2005, the two parties signed a Memorandum of Understanding in Helsinki, committing them to a fair and democratic process, and providing for the establishment of the Aceh Monitoring Mission by the EU and the States of the Association of Southeast Asian Nations (ASEAN). The high profile of the European Union so far away from its territory is not as surprising as it may appear originally. In economic terms, along with the Member States, it had been a major trading partner of Indonesia’s.110 In political terms, it had sent a considerable number of observers to monitor the 1999 parliamentary elections, and it had started developing a strategy towards Indonesia in which the consolidation of democracy, the rule of law, and good governance featured prominently.111 Following the tsunami disaster, the EU and the Member States were the biggest donor of aid to Indonesia. Finally, the EU and the Member States had facilitated the negotiations between the parties in 2005, which took place under the aegis of the former Finnish President Martti Ahtisaari. It was against this background that the Union was asked to contribute to the post-conflict environment in Aceh. The mission was executive, therefore unarmed, was deployed on 15 September 2005 and expired on 15 December 2006.112 It consisted of approximately 130 EU 109 See Evidence by UK Minister for Europe at the Foreign and Commonwealth Office David Lidington at House of Commons European Scrutiny Committee, 20 June 2012, para 15.35. 110 See European Commission, Indonesia–European Community Strategy Paper 2007–2013, at 8–9. 111 See COM (2000) 50 final, Developing closer relations between Indonesia and the European Union, (Brussels, 2 February 2000). See Rachel Kleinfeld, ‘US and EU Strategies to Promote Democracy in Indonesia’, in Amichai Magen, Thomas Risse, and Michael A McFaul (eds), Promoting Democracy and the Rule of Law—American and European Strategies (Basingstoke, Palgrave Macmillan, 2009), 216, in particular at 229 et seq. 112 Council Joint Action 2005/643/CFSP [2005] OJ L 234/13, amended by Council Joint Action 2006/202/CFSP [2006] OJ L 71/57, Council Joint Action 2006/407/CFSP [2006] OJ L 158/20, and Council Joint Action 2006/607/CFSP [2006] OJ L 246/16.

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personnel seconded from twelve Member States113 and ninety personnel from ASEAN countries.114 The objective of the mission was to monitor the implementation of the commitments laid down in the Memorandum of Understanding. This was achieved through monitoring the demobilization of the Free Aceh Movement, the decommissioning and destruction of its weapons, the relocation of non-organic military and police forces, and the reintegration of Free Aceh Movement personnel. In addition, the Aceh Monitoring Mission (AMM) had the authority to rule on disputed amnesty cases, and investigate and rule on complaints and alleged violations of the 2005 Memorandum of Understanding. Finally, there was a human rights component, according to which the mission would provide assistance in respect of the human rights situation and monitor the change of the relevant legislation. The security-related objectives were achieved.115 Decommissioning of weapons and demobilization of the guerillas were complete, the Government relocated its military and police forces in accordance with the Memorandum of Understanding, and the first ever direct local elections were held in Aceh on 11 December 2006 with the participation of former militants. However, the human rights part of the mandate was neglected and, by the time the AMM expired, the new human rights legislation had been criticized, and the Indonesian Government had established neither a Human Rights Court nor a Truth and Reconciliation Commission, in violation of the Memorandum of Understanding.116 The most intriguing legal feature of AMM has to do with the practical and financial issues which marred its deployment.There was considerable disagreement between the Commission and the Council: the former took the initiative and suggested the financing of the mission, partly through the Rapid Reaction Mechanism, a formula considered unacceptable by the latter which deemed it as an effort to highjack the ESDP structures.117 It was following the personal intervention of High Representative Solana that agreement was reached and a solution finally adopted. Furthermore, according to the 2005 Memorandum of Understanding, the decommissioning of weapons was to start on 15 September 2005, that is, merely a month following the signing of the agreement. However, it was not possible for the 113 Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Lithuania, the Netherlands, Spain, Sweden, the United Kingdom. Norway, and Switzerland participated too. 114 Thailand, Malaysia, Brunei, Philippines, and Singapore. 115 See Suying Lai, ‘Civilian Crisis Management in Asia: The Aceh Monitoring Mission’, in David Spence and Philipp Fluri (eds), The European Union and Security Sector Reform (London: John Harper Publishing, 2008), 243, at 246–53. 116 Kirsten Schulze, ‘The Aceh Monitoring Mission’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 265, at 272, where she argues that to have put more emphasis on human rights at that juncture might have jeopardized the mission. 117 See Kirsten Schulze, ‘Mission Not So Impossible: The Aceh Monitoring Mission and Lessons Learned for the EU’, (Berlin: Friedrich-Ebert-Stiftung, International Policy Analysis, 2007), at 5.

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Union to set up and fund the mission on such a tight schedule. Therefore, a compromise was reached by the establishment of a preparatory mission (AMM-Initial Monitoring Presence, AMM-IMP). This was funded and equipped by the Member States118 which were also entrusted with the procurement of equipment and premises, as well as with all the administrative tasks which were necessary for the deployment of the mission on 15 September 2005. In fact, the practical problems which the mission had to encounter were both considerable and bewildering: for instance, EU personnel had to pay for their own plane tickets and use their own mobile phones and personal computers.119 This account is noteworthy for three main reasons. First, it illustrates clearly the flexibility which the current set of legal arrangements allows for practical problems to be dealt with, provided that there is the political will to act. It is yet another illustration of the paramount role of the latter in this policy area. Second, there is a striking gap between, on the one hand, the rhetoric about the Union’s international role and its ambition to ‘shoulder its responsibilities in the governance of globalisation’120 and the reality of its readiness to send personnel on the ground. Third, the Aceh experience underlines the significance of the provision in the Lisbon Treaty for setting up a start-fund in order to enable the Union to launch a mission swiftly.121

EUMM GEORGIA (Georgia) (2008–present) In August 2008, Russia and Georgia went into a war which cost 850 lives and left more than 35,000 displaced civilians, most of them Georgian.122 The Union played an active role in brokering a peace agreement. At that time, France held the EU Presidency, and its excitable and energetic President, Nicolas Sarkozy, engaged in shuttle diplomacy between Moscow and Tbilisi. On 12 August, a six-point Agreement was reached, and was complemented by an implementing Agreement on 8 September 2008. The area of South Caucasus has been considered a priority for the EU. In 2003, the European Security Strategy suggests that ‘[w]e should now take a stronger and more active interest in the problems of the Southern Caucasus’123 The speed with which the EU reacted to the Russia–Georgia crisis is noteworthy. At an extraordinary meeting of the Council on 1 September 2008, it was decided to send a 118 In fact, most of its costs were paid by the UK, which held the EU Presidency at the time, Sweden and Finland: K Schulze, ‘The Aceh Monitoring Mission’, at 268. 119 K Schulze, ‘The Aceh Monitoring Mission’, at 265. 120 Laeken Declaration on the Future of the European Union (15 December 2001) at 2. 121 Art 41(3) TEU. This is examined in Ch 3. 122 The Economist, 1 October 2009. For a detailed and fascinating account, see Ronald Asmus, A Little War that Shook the World: Georgia, Russia, and the Future of the West (Basingstoke: Palgrave Macmillan, 2010). 123 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 8.

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fact-finding mission immediately, which would gather information and examine the practicalities for a CSDP mission. Ten days later, it received an invitation by the Georgian Government to deploy a monitoring mission. Following the deployment of the latter,124 and in addition to the Special Representative in South Caucasus, the Union also appointed a Special Representative for the crisis in Georgia.125 EUMM GEORGIA comprises approximately 300 personnel from all Member States, of whom approximately 200 are monitors.The mission is unarmed and nonexecutive, and is scheduled to expire on 14 July 2013. It covers the whole territory of Georgia. However, the de facto authorities in Abkhazia and South Ossetia have not given EUMM personnel access to their territory.126 Therefore, the activities of the mission are confined to the Georgian areas adjacent to these two regions. The objectives of EUMM GEORGIA are both short and long term: the former is to reduce the risk of a resumption of hostilities by the parties, and the latter to contribute to long-term stability in Georgia and the region. In order to achieve these objectives, four main tasks are defined. The first is about stabilization, and involves monitoring, analysing, and reporting on full compliance with the relevant Agreements between Russia and Georgia, on freedom of movement and on violations of human rights and international humanitarian law. This is an important part of the mission, as it deals with the issue which is of direct concern to all parties involved.The mission has been successful not only in preventing acts which may have come across as provocative, but also in establishing close links with local authorities.127 The second strand of the mission’s mandate is about normalization in Georgia, and involves monitoring, analysing, and reporting on developments in civil governance, mainly regarding the rule of law, law enforcement, public order, transport links, energy infrastructure, and the political and security aspects of the return of internally displaced persons and refugees. It achieves this through direct interactions with the Ministries of Interior and Defence set up under Memoranda of Understanding: these grant them the right to conduct inspections of facilities and sites of the Georgian armed forces. The third part of the mission’s mandate is about confidence-building through facilitating the contacts between the two parties. Finally, the fourth task is about 124 [2008] OJ L 248/26, amended by Joint Action 2008/759/CFSP [2008] OJ L 259/15, Joint Action 2008/736/CFSP [2008] OJ L 259/15, Joint Action 2009/294/CFSP [2009] OJ L 79/60, Joint Action 2009/572/CFSP [2009] OJ L 197/110, Joint Action 2010/424/CFSP [2010] OJ L 199/29. The Council then adopted Decision 2010/452/CFSP [2010] OJ L 213/43, Decision 2011/536/CFSP [2011] OJ L 236/7, and Decision 2012/503/CFSP [2012] OJ L 249/13, which extends the duration of the mission until 14 July 2013. 125 Joint Action 2008/760/CFSP [2008] OJ L 259/16, with a corrigendum in [2008] OJ L 301/40, amended by Joint Action 2009/131/CFSP [2009] OJ L 46/47, Joint Action 2009/571/CFSP [2009] OJ L 197/109, Council Decision 2010/106/CFSP [2010] OJ L 46/5. 126 In fact, the Abkhazian authorities declared the Head of EUMM persona non grata in April 2012. 127 See Sabine Fischer, ‘The European Union Monitoring Mission in Georgia (EUMM)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 379, at 383.

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providing feedback which would inform European policy and future EU engagement. In the context of this, it is noteworthy that, following an agreement reached in Geneva in February 2009, a series of talks between Russia and Georgia has been carried out in which EUMM is represented (and which were co-chaired by the EU Special Representative for the first time in October 2011).128 In practical terms, the mission has had to face problems not dissimilar to those already familiar in the context of CSDP civilian missions. A number of EUMM teams in the starting phase of the mission lacked translators, while equipment such as computers, mobile phones, and desks were also lacking.129 Furthermore, coordination issues emerged on two fronts. In terms of EU coherence, the mission became operational in a rather crowded field. In addition to the Commission which is active in the area in the light of the participation of Georgia in the European Neighbourhood Policy, and which has a delegation in Tbilisi, EUMM acts alongside the EU Special Representative for the Crisis in Georgia, as well as the EU Special Representative for the South Caucasus, let alone the Member States and the EU Border Support Team.130 The coexistence of these actors and the overlaps in some of their activities challenge the coherence of the Union’s approach.131 In terms of external coherence, the EUMM personnel have had to interact with other international actors which had been active in the area, namely the United Nations (which maintained an Observer Mission in Georgia for a long time) as well as the Organization for Security and Co-operation in Europe. It has been argued that, as far as its approach to the Georgia–Russia crisis is concerned, ‘restraints on EU effectiveness by and large outweighed opportunities’.132 Quite apart from the coherence issues, as mentioned, central among them is the differing attitude of Member States towards Russia and the manner in which it needs to be handled in the light of its geopolitical importance, and the Union’s reliance upon it for oil and gas.133 The role of the States as the main locus of power in the area of foreign and security policy is not illustrated only by the decisionmaking rules set out in Title V TEU, but also by the scaling down of the EU’s ambitions when it comes to deciding how to act on the ground in the context of deeply contested conflicts.

128

The talks are also chaired by UN and OSCE representatives. S Fischer, ‘The European Union Monitoring Mission in Georgia (EUMM)’, at 387. 130 On the broader EU approach to Georgia in particular and the South Caucasus in general, see Tanja A Börzel,Yasemin Pamuk, and Andreas Stahn, ‘Democracy or Stability? EU and US Engagement in the Southern Caucasus’, in A Magen, T Risse, and M McFaul (eds), Promoting Democracy and the Rule of Law—American and European Strategies (Basingstoke: Palgrave Macmillan, 2009), 150. 131 Fischer, ‘The European Union Monitoring Mission in Georgia (EUMM)’, at 389. 132 Richard G Whitman and Stefan Wolf, ‘The EU as a conflict manager? The case of Georgia and its implications’, (2010) 86 International Affairs 87, at 98. 133 See Mark Leonard and Nicu Popescu, A Power Audit of EU-Russia Relations (London: The European Council on Foreign Relations, 2009), 31–50. 129

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Rule of law missions Operations aiming to strengthen the rule of law were envisaged as part of the Union’s security and defence policy quite early on. In June 2000, the Feira European Council identified this area as one of the priorities of the civilian aspects of the Union’s crisis management.134 In June 2001, the Gothenburg European Council elaborated on the significance of strengthening the rule of law as a tool for both conflict prevention and conflict management, and set out some concrete targets and implementation methods.135 In 2003, the Council endorsed a Comprehensive EU concept for missions in the field of Rule of Law in crisis management, which refers to two types of missions: the first is about strengthening the rule of law in the host State through education, training, monitoring, and advice, and the second is about EU personnel substituting for local judiciary or other officials of the domestic legal system. The objective of both is ‘to provide for complete and sustainable judiciary and penitentiary systems under local ownership and meeting rule of law and human rights standards in the mission area and to improve these systems’ capacities in accordance with the demands of a democratic society’.136 Finally, a report by the UN Secretary General defines rule of law as referring ‘to a principle of governance in which all persons, institutions or entities, public or private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards’.137

EUJUST THEMIS (Georgia) (2004–2005) The mission in Georgia was one of the smallest, both in size and duration. It was launched in July 2004 and lasted for a year.138 It comprised ten experts seconded from ten Member States (no third State participated).139 These were located within various Georgian authorities, such as the Prime Minister’s Office, the Ministry of Justice, the Ministry of Interior, the Supreme Court, and the Appeals Court. The objective of the mission was to assist with the drafting of a national criminal justice strategy and contribute to the programme for its implementation. In doing 134 European Council 19 and 20 June 2000, Presidency Conclusions, Annex I, Presidency Report on Strengthening the Common European Security and Defence Policy, Appendix 3, B.II. 135 European Council, Presidency Conclusions, Presidency Report on the European Security and Defence Policy, Annex III, I. 136 9792/03, Brussels, 26 May 2003, at 10. 137 S/2004/616 The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies (23 August, 2004), at 4. 138 Joint Action 2004/523/CFSP [2003] OJ L 228/21, amended by Joint Action 2004/638/CFSP [2004] OJ L 291/7. 139 There were ten contributing Member States: Lithuania, Latvia, Denmark, Sweden, the Netherlands, Italy, France, Poland, Germany, and Estonia.

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so, the mission personnel assisted a High Level Working Group established by the President of Georgia in October 2004 to develop a strategy for reforming the country’s criminal legislation. This submitted a strategy to the Government which then established a Steering Group, led by the Minister of Justice, for its implementation. The strategy was put forward to and accepted by the President. EUJUST THEMIS faced three main problems. The first was about the local expectations and the principle of local ownership. The Georgian authorities were not impressed by the low profile of the mission, which made them less interested in interacting with it. This had an impact on the ground: as working groups were staffed by inexperienced officials and met rarely, part of the criminal justice strategy was drafted by the mission personnel without Georgian input.140 In fact, the local authorities became more active following the invitation of the Georgian Justice Minister in Brussels for meetings with the Political and Security Committee in Brussels.141 The second problem is familiar and has to do with the practicalities of the mission: delays in funding meant that the personnel had to use their own personal computers during the first three months of deployment.142 The third problem is also familiar and was related to the mission’s interactions with other EU institutional actors. The Union had already appointed a Special Representative for the South Caucasus (Armenia, Azerbaijan, Georgia).143 His approach was defined in broad terms: ‘to contribute to the implementation of the policy objectives of the European Union in the South Caucasus, as defined and updated by the Council’.144 The terms of the mandate became more specific over the years and included, among others, the monitoring of the implementation of the strategy for reform of the criminal justice system. However, the EUSR did not succeed in supporting the mission’s effort to address the delays and the lack of enthusiasm from the Georgian side.145 The most serious challenge was with the Commission which has been very active in Georgia in the context of the latter’s pre-existing ties with the EU, namely the Partnership and Cooperation Agreement,146 and the European Neighbourhood Policy. In fact, some of the policy objectives developed in the latter framework were not dissimilar to the objectives of EUJUST THEMIS. The first 140 Xymena Kurowska, ‘The rule-of-law mission in Georgia (EUJUST Themis)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009) 201, at 206. 141 Xymena Kurowska, ‘The rule-of-law mission in Georgia (EUJUST Themis)’, 201, at 206 142 Xymena Kurowska, ‘The rule-of-law mission in Georgia (EUJUST Themis)’, 205. 143 Joint Action 2003/496/CFSP [2003] OJ L 169/74, amended by Joint Action 2003/872/CFSP [2003] OJ L 326/44, Joint Action 2005/582/CFSP [2005] OJ L 199/92. In 2006, a new mandate was drawn up for the new Special Representative: Joint Action 2006/121/CFSP [2006] OJ L 49/14, amended by Joint Action 2007/111/CFSP [2007] OJ L 46/75, Joint Action 2008/132/CFSP [2008] OJ L 43/30, Joint Action 2009/133/CFSP [2009] OJ L 46/53, Council Decision 2010/109/CFSP [2010] OJ L 46/16, Council Decision 2010/449/CFSP [2010] OJ L211/41, Council Decision 2011/518/ CFSP [2011] OJ L 221/5, and Council Decision 2012/326/CFSP [2012] OJ L 165/53. 144 Art 2(1) of Joint Action 2003/496/CFSP. 145 146 Art 2(1) of Joint Action 2003/496/CFSP, at 208. [1999] OJ L 205/3.

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EC Country Strategy, covering the period between 2003 and 2006, referred to the improvement of the rule of law and governance and helping to strengthen key democratic and rule of law structures as the first of its three priority areas.147 Similarly, the existing assistance instruments, such as TACIS, were geared to improving rule of law and governance, and EU assistance was focused on supporting the reform of the criminal justice system. It was in the light of these activities that the Commission was less than enthusiastic about the establishment of EUJUST THEMIS, as it felt that it would impinge on its powers to manage the existing assistance programmes. This was reflected in the mandate of the mission which excluded jail reform. It is noteworthy that the EU/Georgia Action Plan, drawn up in the context of ENP in consultation with Georgia in November 2006, identifies as its first priority area the strengthening of the rule of law, especially through reform of the judicial system, including the penitentiary system, and through rebuilding state institutions. It refers to specific actions to that effect, such as the reform of the whole judicial system in line with European standards, in relation to which it points out the contribution of EUJUST THEMIS.148 It also refers to various initiatives to be undertaken in order to ensure the independence and impartiality of the judiciary, prosecution, police, and law enforcement agencies, to improve training of judges, prosecutors, and officials in judiciary, the police, and prisons, and the adoption of a new Criminal Procedural Code. The more recent Country Strategy Paper, covering the period 2007–2013, views assistance for democratic development, the rule of law and governance as a priority.149 It refers to EUJUST THEMIS, and states that assistance will focus on judicial reform, including the implementation of the strategy for the criminal justice system. The reform of the criminal justice system is also referred to in the latest Progress Report on Georgia.150 Consistently with the other civilian missions, the links between the mandate of EUJUST THEMIS and other EU activities are acknowledged: for instance, Article 2 of Joint Action 2004/523/CFSP makes it clear that the mission is carried out ‘in full coordination with, and in complementarity to, EC programmes, as well as other donors’ programmes’. However, the practice of coordination was by no means smooth. It appears, therefore, that the dividing line between what EUJUST THEMIS was established in order to achieve and what the Commission programmes were envisaged to fund was very fine indeed. In fact, it has been argued that EUJUST 147 Adopted on 23 September 2003. The other priority areas were the fight against poverty, and the promotion of conflict prevention, resolution, and post-conflict rehabilitation. 148 EU/Georgia Action Plan, Section 3. 149 Commission Staff Working Paper, Annex to European Neighbourhood Policy, Country Report: Georgia SEC, (2005), 288/3. 150 Commission Staff Working Document, Accompanying the Communication from the Commission to the European Parliament and the Council Implementing, Implementation of the European Neighbourhood Policy in 2008—Progress Report Georgia SEC (2009), 513/2, (Brussels, 23 April 2009).

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THEMIS should not have been established at all, and that its activities should have been covered by the Community’s programmes.151 In the light of these problems, and given its limited mandate and duration, the mission’s impact on the ground is seen ‘as extremely limited’.152 The problems of coordination and the suspicion between the EU actors notwithstanding, the congruence between the mandate of the mission and the ENP is noteworthy. It is also apparent in another feature of EUJUST THEMIS, that is its references to regional cooperation. One of its secondary objectives was to ‘[s]upport the development of international as well as regional cooperation in the area of criminal justice’.153 The emphasis on regionalism is one of the main features of the ENP,154 and is also one of the tasks of the EU Special Representative. Therefore, quite apart from the institutional co-existence and the ensuing turf wars and coordination problems, and the substantive overlaps, there is also a deeper, substantive thread which emerges and brings together different strands of the Union’s approach.

EUJUST LEX (Iraq) (2005–present) The mission in Iraq was designed in a politically charged environment. The long prelude to the war waged by the United States and a number of its allies, including the United Kingdom, Spain, Italy, Portugal, Denmark, the Czech Republic, Poland, and Hungary, had given rise to considerable divisions in the Union.Three days following a Council statement that the ‘responsibility of the [United Nations Security Council] in maintaining international peace and security must be respected’, in January 2003,155 these EU Member States issued a further statement in which they expressed their solidarity with the United States’ effort to tackle the perceived threat of Saddam Hussein’s regime against international security.They, then, participated in the Iraqi invasion.156 This showed clearly that the Union was unable to adopt a common stance on a matter of profound significance for its international standing. In his memoir about his time in Brussels, Chris Patten, who was then the External Relations Commissioner, wrote subsequently that ‘the subject of Iraq was scarcely debated in the Council: as the arguments hotted up elsewhere—at the UN in New York, on the 151 Michael Hoffmeister, ‘Inter-pillar Coherence in the European Union’s Civilian Crisis Management’ in Steven Blockmans (ed), The European Union and Crisis Management: Policy and Legal Aspects (The Hague: TMC Asser Press, 2008), 164, at 166. 152 Michael Merlingen and Rasa Ostrauskaité, EU peacebuilding in Georgia: Limits and achievements (2009), CLEER Working Paper 2009/6, at 20. 153 Art 2(2)(d) of Joint Action 2004/523/CFSP. 154 See Panos Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), 378. 155 General Affairs and External Relations Council Conclusions, 5396/03, at 14. 156 For an early account of the crisis from the international law perspective, see Dominic McGoldrick, From ‘9–11’ to the ‘Iraq War 2003’: International Law in an Age of Complexity (Oxford: Hart Publishing, 2004).

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telephone lines between London, Paris and Berlin—we pretended in Brussels that there was nothing amiss’.157 All this made Union officials lament a lost opportunity for the EU to emerge as an international actor. The then President of the European Commission Romano Prodi argued that ‘[w]hatever the outcome of the war, there can be no denying this is a bad time for the Common Foreign and Security Policy, for the European Union as a whole’.158 This sense of malaise gave rise to considerable introspection as to the international role of the Union, and the means to achieve it. This author has suggested elsewhere that to view the Iraqi crisis as indicative of the failure of the Union’s foreign and security policy is overly dramatic and reflects a lopsided reading of the wider implications of the crisis for all structures of international cooperation.159 At this juncture, suffice it to say that it was against this background, and the frustration, resentment, and sense of insecurity and disorientation which it left to Member States and EU institutions alike that the Union pondered on the form that its approach to the developing Iraqi war should take. EUJUST LEX was launched in July 2005160 and, at the time of writing (2012), is scheduled to expire on 31 December 2013. It comprises approximately sixty personnel seconded from seventeen Member States.161 Initially, the personnel was based in Brussels, with a small liaison office in Baghdad, first based in the British Embassy and, then in the European Commission’s office. Accordingly, most of the activities were carried out outside Iraq. However, since 2010, as the security situation in Iraq improved, most personnel have been transferred to a new Baghdad office, as well as to a field office in the Kurdistan region and a satellite office in Basra. EUJUST LEX is the first integrated rule of law mission carried out by the Union, hence covering the police, the judiciary, and the penitentiary. Its objective is ‘to improve the capacity, coordination, and collaboration of the different components of 157

Chris Patten, Not quite the Diplomat (London: Penguin Books, 2005), 162. IP/03/419. He then went on: ‘these difficult circumstances also show it is time to draw the lessons from this crisis. Europe can make an effective contribution to peace in the world only if its nations pull together within the European Union.We all agree that we owe our wealth and prosperity to the Union. It is not in our interest to continue relying on others when it comes to defending our values militarily’. 159 Panos Koutrakos, ‘Constitutional idiosyncrasies and political realities: the emerging defence policy of the European Union’, (2003) 10 Columbia Journal of European Law 69; and Panos Koutrakos, EU International Relations Law (2006), at 410–13. 160 By Joint Action 2005/190/CFSP [2005] OJ L 62/37, Joint Action 2006/413/CFSP [2006] OJ L 163/17, Joint Action 2006/708/CFSP [2006] OJ L 291/43, Joint Action 2007/760/CFSP [2007] OJ L 305/58, Joint Action 2008/304/CFSP [2008] OJ L 105/10, Joint Action 2008/480/CFSP [2008] OJ L 163/50, Joint Action 2009/475/CFSP [2009] OJ L 156/57. The Council, then, adopted Decision 2010/330/CFSP [2010] OJ L 149/12, Decision 2011/170/CFSP [2011] OJ L 76/61, Decision 2011/380/CFSP [2011] OJ L 169/27, and Decision 2012/372/CFSP [2012] OJ L 179/22. 161 Austria, Belgium Bulgaria, Denmark, Finland, Germany, Hungary, Ireland, Italy, Lithuania, the Netherlands, Poland, Portugal, Romania, Spain, Sweden, the United Kingdom. Two third countries, Egypt and Jordan, have hosted three conferences. 158

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the Iraqi criminal justice system’162 ‘in full respect for the rule of law and human rights’.163 It aims to achieve its objectives in two main ways. The first is by drawing up courses for and training judges, investigating magistrates, senior police, and penitentiary officers. In accordance with the principle of local ownership, these are designed in consultation with the Iraqi authorities and aim to address their specific needs. They are both general (covering issues such as management and investigation skills) and specific (such as leadership and human rights for police officers, forensic science for judicial personnel, crisis management, and human rights for penitentiary staff).164 Initially, these courses were taking place in Member States, which also covered the cost of the participation of the Iraqi officials. The second task of the mission is to organize work placement secondments for Iraqi police, and judicial and penitentiary officials in facilities such as prisons in Member States. The mission was envisaged to be ‘complementary and bring added value to ongoing international efforts, in particular of the United Nations, as well as develop synergies with ongoing Community and Member States efforts’.165 In practical terms, this raises the issue of the coordination between the different actors. On the one hand, this applied to EUJUST LEX, the Commission Delegation, and the EU Presidency, all of which participated in a working group on the rule of law sector chaired by the Iraqi Chief Justice. On the other hand, there had already been missions by individual Member States geared towards contributing to police reform, both inside Iraq (such as the police academy opened by the United Kingdom and Denmark in Basra in December 2003) and outside (such as training provided in Jordan by British officers and in the United Arab Emirates by Germany).166 However, the small size of the mission, its narrow mandate, and its establishment outside Iraq for the first few years raise questions about its impact and visibility. It is reported that, as late as spring 2009, the office of the Coalition Commanding General was hardly aware of the mission and that the committee mandated by US Congress to study the Coalition’s assistance to the Iraqi security forces, including the police, made only scant mention to it.167 The scope of the mission reflects the political disagreements among Member States about the Union’s involvement in the area, as arguments between them about a more ambitious intervention were rebuffed. In essence, the toxic atmosphere created by the pre-invasion phase and the divisions among Member States had an impact on the substance of the policy which the Union adopted following the invasion. 162

163 Art 2(1) Joint Action 2005/190/CFSP. Art 2(2) Joint Action 2005/190/CFSP. Daniel Korski, ‘The integrated rule of law mission for Iraq (EUJUST LEX)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 231, at 235. 165 Art 5 of Joint Action 2005/190/CFSP. 166 D Korski, ‘The integrated rule of law mission for Iraq (EUJUST LEX)’, at 233–4. 167 D Korski, ‘The integrated rule of law mission for Iraq (EUJUST LEX)’, at 238. 164

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EULEX KOSOVO (Kosovo) (2008–present) Kosovo has been an area of tension in Europe for a long time. Following the end of the civil war in Yugoslavia and the Dayton Peace Accords of 1995, the military conflict between the Kosovo Liberation Army and the Serbian Government forces, the Rambouillet Peace Process, the bombardment by NATO, and the peace agreement between the parties,168 in June 1999 the United Nations set up the Interim Administration Mission in Kosovo (UNMIK).169 This was endowed with considerable powers in order to provide ‘transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo’.170 In the context of UNSCR 1244 (1999), a process aiming to determine the status of Kosovo was also set in motion in November 2005. This was supervised by UN Status Envoy Martti Ahtisaari, a former President of Finland. However, no UN presence was envisaged once the status of Kosovo would have been agreed upon. Against this background, the Union reflected on the role it could undertake under its CSDP rules. To that effect, it launched an EU Planning Team (EUPT Kosovo) tasked to ensure the smooth transition between specific UNMIK functions and a possible EU crisis management mission, and to provide technical advice for the EU’s contribution.171 Before analysing EULEX KOSOVO, it is worth paying closer attention to its precursor. It is the way in which it sets out the Union’s role, rather than its substantive work in the two years of its operation, that makes it noteworthy.Three features in particular stand out.The first is the notion of responsibility: the Union feels that, in addition to ‘a vital interest in a positive result of the [post-Status] process’, it has ‘the responsibility’ to contribute to Kosovo once its process set out in UNSCR 1244 has been determined.172 This reminds one of the dominant role which this sense of responsibility has acquired in the Union’s international relations rhetoric in the last ten years and which is analysed in Chapter 4. For instance, the European Security Strategy states in its introduction that ‘Europe should be ready to share in the responsibility for global security and in building a better world’.173 And the 2008 Report on the Implementation of the European Security Strategy, in the very first sentence of its executive summary, states that ‘[f] ive years on from adoption of the European Security Strategy, the European Union carries greater responsibilities than at any time in its history’.174

168 For an overview, see Stephan Keukeleire, Arben Kalaja, and Artan Çollacu, ‘The European Union’s policy on Kosovo’, in Panos Koutrakos (ed), European Foreign Policy—Legal and Political Perspectives (Cheltenham: E Elgar Publishing, 2011), 172, at 173–80. 169 170 S/RES/1233 (1999). S/RES/1233 (1999), para 10. 171 Joint Action 2006/304/CFSP [2006] OJ L 112/9, amended by Joint Action 2007/778/CFSP [2007] OJ L 312/68, and Joint Action 2008/228/CFSP [2008] OJ L 75/78. 172 See recital (2) of the preamble to Joint Action 2006/304/CFSP. 173 174 European Security Strategy, 1. 2008 Report on European Security Strategy, 1.

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The second interesting feature of the EU’s emerging role in Kosovo is the existing policy which the Union had developed towards the countries in the Western Balkans. The Stabilization and Association Process (SAP) and its various components (trade concessions, economic and financial assistance, assistance for reconstruction, development and stabilization, the negotiation and conclusion of Stabilisation and Association Agreements) were developed by the Commission earlier on and set out the framework of the EU’s approach to the Western Balkans.175 It was within this context that the Union pondered on the role it would assume in Kosovo once its status would have been agreed upon: one of the tasks of EUPT Kosovo, for instance, was to ‘contribut[e] to a comprehensive and integrated EU approach, taking into account assistance in the police and judiciary area provided in the framework of the SAP’.176 This framework did not only set the broader political context within which the Union considered its role, but it also had specific practical and legal implications. It is noteworthy that the EU’s intervention in Kosovo was the subject of close cooperation between High Representative Solana and the then European Commissioner responsible for enlargement Rehn who produced a number of reports on the design of the EU’s mission.177 There is also reference to a Joint Council-Commission Fact Finding Mission to Kosovo which preceded the EUPT Kosovo, and which enquired about possible future ESDP and Community engagement. This coexistence with EC initiatives, and the ensuing role of the Commission, highlights the role of the crisis management mission in the area as part of a wider whole, the implications of which will become more apparent in the context of EULEX KOSOVO. The third feature is the considerable groundwork which paved the way to the decision as to the form that the Union’s ESDP contribution should take. A factfinding mission, organized jointly by the Council and the Commission, took place for a week in February 2006, and was followed by the EUPT Kosovo which was operational from April 2006 until February 2008, when it was followed by the current Rule of Law mission. This suggests acute awareness of the evolving political situation in Kosovo, as there was a UN-supervised process under way, the outcome of which was unknown to the Union. It also suggests awareness of the complex legal context which would emerge once the United Nations would have ceased to have a presence in the area. Finally, it suggests an effort to devise an intervention which would be as tied in as possible to the existing Union’s approach to the region. After all, Kosovo is not just another region in the world where the Union

175 See Steven Blockmans, Tough Love: The European Union’s Relations with the Western Balkans (The Hague: TMC Asser Press, 2007). 176 Art 2(8) Joint Action 2006/304/CFSP. 177 See Dimitris Papadimitriou and Petar Petrov, ‘Whose Rule, Whose Law? Contested Statehood, External Leverage and the European Union’s Rule of Law Mission in Kosovo’, (2012), 50 JCMS 746, at 755 et seq. Joint Action 2006/304/CFSP, setting up the EUPT Kosovo, refers specifically to a report drawn up jointly by the High Representative and the Commission on the potential Union’s role in Kosovo (recital 7) (n171).

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seeks to project its international role—it is in Europe, at the doorstep of the Union, and a constant reminder of the wars marking the dissolution of Yugoslavia, which made the Union experience existential guilt about its perceived failure to avert humanitarian catastrophies, and contributed to the emergence of the Common Foreign and Security Policy. However, during the preparatory stage, the role which the EU intended to assume changed in order to adjust to the evolving political environment.The latter was shaped by the conflicting claims of the Kosovar Albanian majority and the Serbian minority, and the third parties which supported them (for instance, Russia was very critical of any independence claim for Kosovo). All of these were played out on the international stage in the context of the UN-sponsored Ahtisaari process and the ensuing diplomatic activity. Indeed, the EU Planning Team operated on the assumption that it prepared the groundwork for a CSDP mission which would take over from UNMIK under terms set out by the UN Security Council, and in accordance with the agreement of all parties concerned. The absence of such an agreement suggested that the EU would undertake the CSDP mission in a political and legal limbo. EULEX KOSOVO was established in February 2008 and, at the time of writing (2012), is scheduled to expire on 14 June 2014.178 However, the mission became operational initially on 9 December 2008, but only reached full capability on 6 April 2009. Its very genesis was met with a legal question about its existence: was it lawful under international law? It is recalled that UNSCR 1244 (1999), apart from setting in motion the Ahtisaari process, authorized the establishment of international security presence with substantial NATO participation,179 and a civilian international interim administration. The latter was assumed by UNMIK with powers covering, among others, the police and justice sectors.180 The UN-sponsored Ahtisaari Report, which was rendered in March 2007 and which recommended ‘independence with international supervision’, provided for a strong EU presence. On the one hand, the EU Special Representative would be double-hatted as the International Civilian Representative and would be ‘the ultimate supervisory authority over the implementation of the Settlement’ with ‘strong corrective powers to ensure successful implementation of the Settlement’.181 On 178 Art 2 of Joint Action 2008/124/CFSP [2008] OJ L 42/92. This measure was amended by Joint Action 2009/445/CFSP [2009] OJ L 148/33, Council Decision 2010/322/CFSP [2010] OJ L 145/13, Council Decision 2010/619/CFSP [2010] OJ L 272/19, Council Decision 2010/322/CFSP [2010] OJ L 145/13, Council Decision 2010/687/CFSP [2010] OJ L 270/31, Council Decision 2011/752/CFSP [2011] OJ L 310/10, Council Decision 2012/291/CFSP [2012] OJ L 146/46. 179 Para 7 of Resolution 1244, and point 4 of Annex 2, along with para 9 of the Resolution which sets out the responsibilities of such security presence. 180 The responsibilities of the administration are set out in para 11 of Resolution 1244 (1999). See Gregory L Naarden and Jeffrey B Locke, ‘Peacekeeping and Prosecutorial Policy: Lessons from Kosovo’, (2004) 98 Am J Int’l L, 727. 181 Point 11 of Annex (‘Main provisions of the Comprehensive Proposal for the Kosovo Status Settlement’) to the Ahtisaari Report (‘Report of the Special Envoy of the Secretary-General on Kosovo’s future status’): UN doc S/2007/168, 26 March 2007 (http://www.unosek.org/docref/report-english. pdf ), (last accessed on 28 October 2012).

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the other hand, it provided for an ESDP mission entrusted to ‘monitor, mentor and advise on all areas related to the rule of law in Kosovo’.182 Following the strong reactions by Serbia, supported by Russia, and the ensuing UN-led discussions until the end of 2007, it became clear that no consensual solution was possible. On 17 February 2008, Pristina declared unilaterally the independence of Kosovo which was set to enter into force by 15 June 2008.The Council established EULEX KOSOVO on 4 February 2008, that is two weeks prior to the unilateral declaration of independence, with Cyprus invoking its right to constructive abstention under Article 31(1) subparagraph 2 TEU. Therefore, EULEX KOSOVO was prepared and adopted in anticipation of a political settlement which never materialized. This political framework also affected the legal environment within which the EU sought to carry out its mission, as it had expected its role to be formalized at UN level. The question which then arises is whether the EU had, in law, the mandate to establish and launch EULEX KOSOVO. The wording and context of Joint Action 2008/124/CFSP underline its links with the UN system: in the first recital of its preamble, it refers to paragraph 10 of Resolution 1244 (1999) which expressly authorizes the UN Secretary General to establish an international civil presence in Kosovo ‘with the assistance of relevant international organizations’;183 the preamble also states that the ‘United Nations Secretary-General . . . noted the readiness of the EU to play an enhanced role in Kosovo, as reflected in the conclusions of the Brussels European Council on 14 December’.184 However, these leave no doubt as to the absence of any express mandate by the UN Security Council. It is noteworthy that, in his Report on Kosovo of March 2008, the UN Secretary General merely notes that he had received a letter from the EU High Representative on 18 February informing him of the ESDP mission and the appointment of an EU Special Representative.185 And he expresses his gratitude to the UN partners, including EU with OSCE, KFOR, for their support.186 However, in a Report to the UN Security Council on 12 June 2008, the UN Secretary General views the EU’s willingness to pay a greater operational role as ‘a key development’ and points out the following:187

182 Point 12 of Annex (‘Main provisions of the Comprehensive Proposal for the Kosovo Status Settlement’) to the Ahtisaari Report. According to the Report, the ESDP mission shall have the right to investigate and prosecute independently sensitive crimes, such as organized crime, inter-ethnic crime, financial crime, and war crimes. In addition, it shall have limited executive authority to ensure Kosovo’s rule of law institutions are effective and functional, such as in the areas of border control and crowd and riot control’: UN doc S/2007/168, 26 March 2007 (http://www.unosek.org/docref/report-english. pdf ), (last accessed on 28 October 2012). 183 184 See n178. Recital 7, n178. 185 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 28 March 2008 (UN doc S/2008/211), para 5. 186 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo of 28 March 2008 (UN doc S/2008/211), para 34. 187 UN doc S/2008/354, para 13.

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Such an enhanced role would allow the United Nations to share responsibilities by drawing upon the expertise and resources of this regional organization and partner. Mindful of the fact that there is a need to devise an operational solution for UNMIK that preserves the positive legacy of the United Nations in Kosovo and the Balkans and is within the framework of resolution 1244 (1999), and noting the willingness of the European Union to play an enhanced role in Kosovo, it is my assessment that the objectives of the United Nations would be best obtained through an enhanced operational role for the European Union in the area of the rule of law under the umbrella of the United Nations, headed by my Special Representative.

And, as if the message has not been brought home yet, he goes on to state the following: It is my assessment that the capacity of the European Union to deploy a rule-of-law mission to Kosovo could, as foreseen in Security Council Resolution 1631 (2005), usefully complement the work of the United Nations and have a positive impact on the optimal use of limited resources. I have also taken into consideration the general interest of the United Nations and the recognition of the potentially valuable contribution that regional organizations can bring in support of the efforts of the United Nations in the maintenance of international peace and security.

As this Report was not endorsed by the UN Security Council, questions have been raised as to whether the UN Secretary General had the power to make such a decision. In particular, it has been argued that this was contrary to past practice where the transfer of responsibilities from UNMIK to other actors was sanctioned expressly by the Security Council.188 However, the framework within which such practice had been carried out is too narrow to warrant more general conclusions. Furthermore, paragraph 10 of UNSC Resolution 1244 (1999) may be construed as granting the UN Secretary General the power to organize the practical manner in which the civilian administration in Kosovo would be set up. It is also interesting that a Statement of the President of the UN Security Council of 26 November 2008189 endorsed a Report by the Secretary General of 24 November 2008 in which he had referred to EULEX KOSOVO in emphatic terms: I expect EULEX to move forward with its deployment in the coming period and to assume responsibilities in the areas of policing, justice and customs, under the overall authority of the United Nations, under a United Nations umbrella headed by my Special Representative, and in accordance with resolution 1244 (1999). UNMIK has been working closely with EULEX on technical arrangements designed to facilitate its deployment under resolution 1244 (1999).

In any case, it is recalled that, until that period, EULEX KOSOVO had not become operational initially before December 2008. 188 See Erika de Wet, ‘The governance of Kosovo: Security Council Resolution 1244 and the Establishment and Functioning of EULEX’, (2009) 103 AJIL 83, at 88–9. 189 S/PRST/2008/44.

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EULEX KOSOVO is the largest civilian mission launched under CSDP, comprising approximately 2,000 personnel from all Member States except Cyprus, along with 5 third countries. Cyprus abstained at the Council meeting which decided the establishment of the mission. Its main headquarters are in Pristina. EULEX KOSOVO is also the first CSDP mission in which the United States participate.190 Its main task is to monitor, mentor, and advise the police, the judiciary, and the customs authorities.191 Therefore, its scope is broad. It aims to assist these authorities in their efforts to become accountable, independent, and multi-ethnic and to act in accordance with international standards and European best practices. In relation to the police, EULEX aims to assist in tackling crime effectively, carrying out patrols, and ensuring public order, providing secure borders and establishing a sustainable organization. In relation to customs, the mission assists in improving internal communications, cooperating with other law enforcement agencies, and developing an integrated border management strategy. In its tasks, the mission enjoys certain executive responsibilities, and is tasked with assuming them ‘independently or in support of the competent Kosovo authorities, to ensure the maintenance and promotion of the rule of law, public order, and security, in consultation with the relevant Council agencies’.192 The work of EULEX KOSOVO is designed to be carried out on the basis of the principle of local ownership: the EU mission personnel aim to address the specific needs of the Kosovar police officers, judges, prosecutors, and customs officials as expressed by the latter who are also intended to lead. The executive functions of EULEX KOSOVO are noteworthy. In the area of police, the mission intervened to maintain public order and security. In the area of justice, EULEX KOSOVO judges and prosecutors join Kosovo judges and prosecutors in mixed panels. There are approximately thirty EULEX judges deployed with their counterparts in all courts of Kosovo. They exercise their powers in accordance with a 2008 law, which grants them jurisdiction on a range of serious crimes, such as terrorism, genocide, crimes against humanity, war crimes, organized crime, inciting national, racial, religious, or ethnic hatred, discord or intolerance, murder and aggravated murder, and economic crimes.193 In addition to these, EULEX judges have secondary jurisdiction in order to ensure the proper administration of justice. In practical terms, this means that they can step in if it is reasonable to believe that there is a serious miscarriage of justice due to threats to a Kosovo judge, a witness, or the parties 190 See Agreement between the European Union and the United States of America on the participation of the United States of America in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 282/33, concluded by Council Dec. 2008/814/CFSP [2008] OJ L 282/32. In addition, Croatia, Norway, Switzerland, and Turkey also participate. These agreements are analysed in Ch 7. 191 For an analysis of mission’s mandate and the practice regarding the justice and police components, see Martina Spernbauer, ‘EULEX Kosovo—Mandate, structure and implementation: Essential clarifications for an unprecedented EU mission’, CLEER Working Paper, 2010/5, at 15–32. 192 Arts 2 and 3(h) of Joint Action 2008/124/CFSP. 193 See 2009 Annual Report on the Judicial Activities of EULEX Judges, at 7–8.

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to the proceedings.They can also take over in criminal proceedings in order to avoid a miscarriage of justice due to the particular complexity or nature of the case. The political impasse following the unilateral declaration of independence by Kosovo has challenged the Union’s approach to the area and the work of EULEX KOSOVO on the ground. Following the unilateral declaration of independence by Kosovo on 17 February 2008,194 Serbia brought an action before the International Court of Justice. The latter ruled on 22 July 2010 that the unilateral declaration of independence by Kosovo ‘did not violate any applicable rules of international law’.195 In the meantime, the Member States have failed to agree on a common stance: while most of them have recognized Kosovo, Spain, Greece, Cyprus, Romania, and Slovakia have not.196 The Council has acknowledged its failure to reach an agreement and merely noted that ‘Member States will decide, in accordance with national practice and international law, on their relations with Kosovo’.197 This lack of agreement on recognition did not result in a lack of agreement on intervention by means of a CSDP mission. In fact, Romania, which has not recognized Kosovo, has contributed a sizeable group of personnel. However, this state of affairs gives rise to some intriguing legal developments. A case in point is the Union’s Special Representative. He was appointed in February 2008 ‘to play a leading role in strengthening stability in the region and in implementing a settlement defining Kosovo’s future status, with the aim of a stable, viable, peaceful, democratic and multi-ethnic Kosovo . . . committed to the rule of law ...’.198 In order to ensure the coordination between the various international actors in the area, it was decided that the method of double-hatting would apply. Therefore, the EUSR was also appointed as the International Civilian Representative of the International Steering Group (ISG), a group of twenty-eight countries supporting Kosovo’s independence and aiming ‘to help guiding Kosovo’s democratic development in the years ahead’.199 This is no longer the case, as the ISG decided to end the 194

See Colin Warbrick, ‘Kosovo: The Declaration of Independence’, (2008) 57 ICLQ 675. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Advisory Opinion, 2010. See the analysis in, among others, Roland Tricot and Barrie Sander, ‘The Broader Consequences of the International Court of Justice’s Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo’, (2010–2011) 49 Columbia J Transnat’l L 321. 196 On the complex issues raised by the recognition of Kosovo, see Christopher J Borgen, ‘The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia’, (2009) 10 Chicago Journal of International Law 1, and Marc Weller, Negotiating the Final Status of Kosovo (2008) Chaillot Paper No 114. 197 Council Conclusions on Kosovo, 2851st External Relations Council meeting, Brussels, 18 February 2008. 198 Art 2 of Joint Action 2008/123/CFSP [2008] OJ L 42/88, amended by Council Decision 2010/118/CFSP [2010] OJ L 49/22, Council Decision 2010/446/CFSP [2010] OJ L 211/36, Council Decision 2011/119/CFSP [2011] OJ L 47/18.The Council then adopted Council Decision 2011/270/ CFSP [2011] OJ L 119/12, and Council Decision 2011/691/CFSP [2011] OJ L 271/48. Finally, the Council appointed a new EUSR by Decision 2012/39/CFSP [2012] OJ L 23/5. 199 Press Statement after first meeting of the ISG, 28 February 2008. The participating countries are Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Slovenia, Switzerland, Sweden, Turkey, the United Kingdom, and the United States of America. 195

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mandate of its Representative and its supervision over independent Kosovo on 12 September 2012. However, when it was introduced, the double hatting of the EUSR was not received by Russia and Serbia with unbridled enthusiasm. A legal and policy paradox emerges: the same person represents an organization which is officially neutral to the status of Kosovo, that is the EU, and a group of countries which favour an independent Kosovo, that is the International Steering Group. On the ground, there were considerable coordination problems between the International Civilian Representative and EULEX. However, this episode illustrates a more general point, namely how the adoption of procedural devices aiming to address the substantive requirement of coherence may ignore the political realities which prevail in the area.200 It is also indicative of the impact of the failure of the EU to adopt a common position on the issue of recognition. This impact is not confined to the institutional configuration of power in Kosovo, and covers substantive issues such as the choice of the applicable law by the EULEX KOSOVO judges.201 In fact, EULEX KOSOVO is carried out in the context of a considerably dense institutional and administrative EU presence. In addition to the mission and the EUSR, there is also a Commission Liaison Office (ECLO) in Pristina which is responsible for the monitoring and management of the progress of Kosovo within the framework of the Stabilization and Association Process, as well as the management of the EU assistance in the implementation of the Instrument of Pre-Accession Assistance (IPA).202 In the context of the latter, Kosovo benefits in relation to transition assistance and institution building, and ECLO has been active in various areas of rule of law over the years by providing significant technical and financial assistance (such as arranging for a housing/building facility for asylum seekers, providing equipment for the Kosovo Border and Boundary Policy, arranging for the construction of a Palace of Justice, providing equipment for the Ministry of Internal Affairs).203 Given the constant interactions between these actors, to point out that their coordination is essential for the coherence of the EU’s policy is to state the obvious. The EUSR is given the task of promoting overall political cooperation, and Joint Action 2008/123/ CFSP set out his role in ensuring the coherence of the actions of EULEX, ECLO, and Heads of Mission of the Member States in quite some detail.204 In addition to the issue of coherence and coordination, EULEX has faced some further problems. First, getting the Member States to send sufficient numbers of 200 See the criticism in Wolfgang Koeth, ‘State Building without a State: The EU’s Dilemma in Defining Its Relations with Kosovo’, (2010) 15 EFARev 227, where he argues that Kosovo ‘has been a textbook case to illustrate the problems of consistency and coherence of EU foreign policy’, at 241. 201 See Stephan Keukeleire and Robin Thiers, ‘EULEX KOSOVO: Walking a Thin Line, Aiming for the Rule of Law’, in Steven Blockmans, Jan Wouters, and Tom Ruys (eds), The European Union and Peacebuilding—Policy and Legal Aspects (The Hague: TMC Asser Press, 2010), 353, at 372–3. 202 See Council Regulation 1085/2006 Establishing an Instrument for Pre-Accession Assistance (IPA), [2006] OJ L 210/82. 203 See the analysis in S Keukeleire, A Kalaja, and A Çollacu, ‘The European Union’s policy on Kosovo’, at 195–200. 204 Art 12 Council Joint Action 2008/123/CFSP.

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experienced personnel has proved a major challenge. Things have not improved by the fact that the expertise required for the mission are also in demand for EUPOL AFGHANISTAN and for EUMM GEORGIA.205 Second, there were delays in delivery of equipment necessary for the work of the mission.206 Third, the principle of local ownership, while one of the pillars of EULEX KOSOVO, has proved difficult to apply in practice. In the light of the state of the Kosovar institutions and practices, the mission has been reluctant to allow them to take initiatives and, instead, has been viewed as applying a top-down approach.207 In assessing the overall significance of EULEX KOSOVO, it is worth pointing out the contrast between the inability of the Member States to agree on the issue of recognition and their agreement to launch their biggest operation in order to provide practical support on the ground for the restoration of the essential police, judicial, and customs functions in an area of intense political tension and, initially, under an ambiguous international legal context. In this respect, it is worth revisiting the Council Conclusions on Kosovo the day after the unilateral declaration of independence by the Kosovo Assembly. Having pointed out that the Member States will decide their stance individually, it states the following: The Council recalls the European Union’s longstanding commitment to the stability of the Western Balkans region. The Council reiterates the European Union’s readiness to play a leading role in strengthening stability in the region, and recalls the European Union’s commitments contained in the conclusions of the European Council of 14 December 2007, as well as the agreement to Joint Actions establishing an ESDP Police and Rule of Law mission and appointing an EU Special Representative in Kosovo.The European Union will continue to cooperate with the UN, KFOR, OSCE and other international actors in order to preserve stability in the region. The Council reaffirms its commitment to fully and effectively support the European perspective for the Western Balkans. It asks the Commission to use community instruments to promote economic and political development and to propose to the broader region concrete measures in order to advance in that direction.

In its formulaic language, this statement appears to acknowledge the political realities which prevail on the ground, while focusing on the management of the area in crisis in order to bring about stability gradually and on the basis of the existing instruments available to the Union. The absence of political agreement on the issue of recognition has been criticized as undermining the international role of the Union in general and the effectiveness of its specific policies in 205 Giovanni Grevi, ‘The EU rule-of-law mission in Kosovo (EULEX Kosovo)’, in G Grevi, D Helly, and D Keohane (eds), European Security and Defence Policy—The First 10 Years (1999–2009) (2009), 353, at 362. 206 See European Parliament Subcommittee on Security Defence, CSDP Missions and Operations: Lessons Learned Processes (Brussels: European Parliament Directorate-General for External Policies Policy Department, 2012), 90. 207 See S Keukeleire, A Kalaja, and A Çollacu, ‘The European Union’s policy on Kosovo’, at 193–4.

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particular.208 While there can be no doubt that a common stance would enhance the EU’s external action, the extremely sensitive issues underpinning the recognition of Kosovo should not be underestimated. This is also illustrated by the previous experience of the recognition of the states, which came about following the dissolution of Yugoslavia and in relation to which, even though the then European Community did provide for a common approach through the establishment of the Badinter Committee in 1991, different approaches emerged.209 It has been argued that, the practical implications of the disagreement on the issue of recognition notwithstanding, the establishment of a civilian mission has enabled the EU to develop internal consensus and contribute to the management of part of the conflict on the ground.210 In fact, the Union’s approach to Kosovo illustrates the almost intuitive reflex of the Union for avoiding thorny legal issues of principle and focusing on the practice of management aiming to achieve longerterm policy objectives. In other words, the lack of agreement on a major issue of principle has not prevented Member States from relying upon pragmatic arrangements in order to tackle a difficult problem on their doorstep. This illustrates yet again the central role of political will in security and defence policy, a factor to be taken into account when assessing the impact of legal rules and procedures in the conduct of that policy.

Other missions In the summer of 2012, the Union establishes three CSDP missions in Africa.Their mandate is not similar to that of the missions already examined, and, at the time of writing in 2012, they have not actually been deployed.211

EUAVSEC-South Sudan (South Sudan) (2012–present) South Sudan became independent on 9 July 2011 following decades of civil war. Two days later, the UN Security Council stressed the need for international actors to assist in the implementation of national strategies aimed at effective institution 208 See Eileen Denza, ‘European Practice on the Recognition of States’, (2011) 36 ELRev 321, at 335–7. 209 See Matthew Craven, ‘The European Community Arbitration Commission on Yugoslavia’, (1995) 66 BYIL 333. 210 Barbara Delcourt and Eric Remacle, ‘Global Governance: A challenge for common foreign and security policy and European security and defence policy’, in Mario Telò (ed), European Union and Global Governance (Abingdon: Routledge: 2009), 233, at 248. 211 For an early commentary, see Giovanni Faleg and Steven Blockmans, ‘The EU’s re-engagement as a security actor: Fresh start or still sleepwalking?’, (2012) Foreign and Security Policy CEPS Commentaries, (http://www.ceps.be/book/eu’s-re-engagement-security-actor-fresh-start-or-still-sleepwalking), (last accessed on 28 October 2012).

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building.212 The following week, the Council decided to follow a comprehensive approach to Sudan and South Sudan, aiming to support the development of the two states, to continue to support efforts for a peace settlement for Darfur, to assist in capacity building, and contribute to the coordination of international support.213 In June 2012, the Council established a civil mission the mandate of which is to contribute to the sustainable and effective functioning of the airport of the South Sudanese capital, Juba.214 In particular, the mission is designed to focus on aviation security, border control, and law enforcement at the airport in accordance with human rights standards. The mission is not executive and its work is intended to be based on the principle of local ownership. It is envisaged to comprise up to sixty-four personnel, to be deployed in September 2012 and last until April 2014. The mandate of EUAVSEC-South Sudan is narrow and clearly defined. Its subject matter was chosen in the light of the significance of the Juba airport for the links of this landlocked country for the rest of the world. In a statement on the date of the establishment of the mission, the EU High Representative pointed out the importance of the security of the airport for both the economic development of South Sudan and for the efforts to prevent the airport from becoming a target for terrorism.215

EUCAP Sahel Niger (Niger) (2012–present) The Sahel region is in North Africa and includes Mauritania, Mali, Niger, Burkina Faso, and Chad. It is one of the poorest areas in the world. In March 2011, the EU adopted the Strategy for Security and Development in the Sahel.216 This focuses on the first three of the above states, and identifies four main challenges: governance, development, and conflict resolution; political and diplomatic coordination of regional initiatives; security and the rule of law; fight against and prevention of violent extremism and radicalization. It points out the central role of local ownership and African responsibility, it stresses the building of new initiatives on existing EU policies such as development cooperation, and outlines some strategic lines of action. It is in the context of the above that the Council established in July 2012 EUCAP Sahel Niger.217 This non-executive mission is envisaged to be deployed for two years and to comprise up to 50 EU and international personnel. Its mandate is focused on the fight against terrorism and organized crime, and its aim is to assist the Nigerien security forces by contributing to the implementation of the Nigerien 212 214 215 216

213 S/RES/1996 (2011). Council Conclusions of 20 June 2011. Council Decision 2012/312/CFSP [2012] OJ L 158/17. 11610/12 (Luxembourg, 18 June 2012). Drawn up by the European External Action Service and endorsed by the Council on 21 March

2011. 217

Council Decision 2012/392/CFSP [2012] OJ L 187/48.

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Strategy for Security and Development, and the development of regional and international coordination in the area by providing training about acting in accordance with the rule of law. Local ownership is a cornerstone of the mission. While the contribution to the fight against terrorism is part of the mandate of EULEX KOSOVO, this is the first mission established specifically in order to tackle this problem. In doing so, it reflects the addition in Article 43 TEU at Lisbon of the fight against terrorism as one of aims of the CSDP tasks. Another interesting feature is the reference to regional cooperation. It is recalled that this is a main point of focus for other strands of EU external action, such as the European Neighbourhood Policy. It also features prominently in the Strategy for Security and Development in the Sahel.218

EUCAP NESTOR (Horn of Africa) (2012–present) In November 2011, the Council approved A Strategic Framework for the Horn of Africa.219 It highlights the considerable implications of the insecurity in the region for the rest of the world, and outlines the need for the Union to make its engagement ‘more effective through consistent, coherent, and complementary use of its instruments; reinforcement of its political coordination; and by focusing more clearly on the underlying challenges of the region’.220 The following month, the Council appointed an EU Special Representative for the Horn of Africa, responsible for ensuring the coherence of the Union’s approach to the area.221 It was in this context that the Council established EUCAP NESTOR in July 2012.222 It is envisaged to comprise up to 175 personnel, to last for two years and be based in Djibouti. Its activities will cover Djibouti, Kenya, the Seychelles, and Somalia (along with Tanzania when the government of the latter invites it). Its mandate focuses on two areas, namely strengthening the maritime capacities of Djibouti, Kenya, and the Seychelles, and strengthening the rule of law in Somalia (particularly in the regions of Puntland and Somaliland). It is intended to support the organization of maritime security agencies carrying out coastguard functions, to deliver training courses and training expertise, to assist in equipment capability building, and in drafting national legislation on maritime security. EUCAP NESTOR is designed as intrinsically linked to the other CSDP missions in the area, namely EUNAVFOR—Atalanta contributing to the deterrence, prevention, and repression of acts of piracy and armed robbery off the Somali coast, 218

See also Council Conclusions of 22 and 23 March 2012, paras 5 and 8. 16858/11, Brussels, 14 November 2011. 16858/11, Brussels, 14 November 2011, at 13. 221 Council Decision 2011/810/CFSP [2011] OJ L 327/62, amended by Council Decision 2012/329/CFSP [2012] OJ L 165/62. Initially, the mandate of EUSR is confined to Somalia and the regional dimension of the conflict, and to piracy. 222 Council Decision 2012/389/CFSP [2012] OJ L 187/40. 219 220

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and EUTM Somalia contributing to the training of Somali security forces. To that effect, it is supported by the Brussels-based EU Operations Centre for the CSDP missions and operations in the Horn of Africa activated in March 2012.223 Both EUCAP NESTOR and EUCAP Sahel Niger are designed within a specific structural approach. In its Conclusions of 23 July 2012, the Council: emphasizes that the focus and the impact of operational engagement [through CSDP operations and missions] is enhanced when it is embedded in an overarching strategy, such as the strategic frameworks for the Horn of Africa and the Sahel region. This allows for a comprehensive approach that makes full use of the role of the High Representative …, and that mobilises the different tools at the EU’s disposal in close interaction with the Member States to achieve the EU’s objectives, in close cooperation with other international actors and making optimal use of scarce resources.

This extract reflects the language used in the European Security Strategy and the 2008 Report on the Implementation of the European Security Strategy: the need for a comprehensive approach, the use of a range of instruments, not least CSDP missions and operations, the close cooperation with international actors, all provide a thread which brings together the Union’s overall strategic priorities set out in the 2000s and the conduct of CSDP. They also underpin the specific strategic frameworks to which this extract refers. A case in point is the Strategic Framework for the Horn of Africa. Having identified the broad range of policy challenges facing the region and described the different ways in which the Union contributes to addressing them, it states that the ‘EU will seek to make its engagement in the Horn more effective through consistent, coherent, and complementary use of its instruments, reinforcement of its political coordination, and by focusing more clearly on the underlying challenges of the region’.224 It, then, adds the following:225 In implementing future action, the EU will draw on its array of means: development cooperation through the European Development Fund (EDF) and Member States’ bilateral programmes, through joint programming in the Horn countries where appropriate, relevant EU budget lines, trade instruments, conflict prevention and crisis response, including the CSDP, diplomacy, EU Special Representatives (EUSRs), cooperation and dialogue through the Cotonou Agreement. An EUSR for the Horn of Africa will contribute to the enhanced coherence, quality, impact and visibility of the EU’s action in the region, working in close consultation with the EUSR for Sudan and South Sudan, as well as with regional and international partners on issues with broader regional implications. The EU will continue to provide humanitarian assistance to the most vulnerable populations in accordance with humanitarian principles.

The document also refers to the principle of local ownership as well as the development of regional cooperation as the main tenets of the Union’s comprehensive approach. 223 224 225

Council Decision 2012/173/CFSP [2012] OJ L 89/66. 16858/11, Brussels, 14 November 2011, at 8. 16858/11, Brussels, 14 November 2011, at 8.

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Conclusion The intention to provide ‘added value’ underpins the choice of the Union’s contribution consistently and, in some cases, is spelled out expressly in the Council measures establishing the missions. It is recalled that the quest for a distinct EU approach was articulated in the European Security Strategy. However, the analysis of the civilian missions which the Union carries out highlights a decidedly realistic perspective to the quest for added value. Defined generally in narrow terms, the mandate of the missions is designed to make a rather tangible, albeit small, contribution to addressing problems of extraordinary complexity in regions torn by conflicts. A commentator has described the CSDP actions as ‘mini missions’.226 In relation to the missions in Africa it has been pointed out that most of them ‘are in effect more about the EU experimenting with its own capabilities than about Africa’.227 Furthermore, the Member States are reluctant to provide personnel of the expertise and in numbers required for the effectiveness of the mission, hence appearing unwilling to match the ambitions articulated repeatedly by the Union institutions with deeds on the ground.There is also the issue of the institutional and administrative density of the Union policy environment in which the missions are launched. The interactions between actors such as the Head of the Mission, the European Commission, the EU Special Representatives, and the representations of the Member States are vital to the effectiveness of the Union’s initiatives. However, the arrangements introduced on the ground do not ensure the efficient coordination of these actors, and considerable energy and time are wasted in order to enhance the coherence of the EU’s approach. This is all the more so given the requirement of coordination with other international actors, such as the United Nations presence in the area or other international organizations such as NATO and the African Union, or third countries. The conduct of the civilian missions by the Union is, therefore, constrained by the internal factors which also affect the CSDP military operations. They, too, reflect a deeply introverted policy which becomes increasingly preoccupied with the management of its own, often conflicting, characteristics.This conclusion is not contradicted by the emphasis on the position of CSDP within the broader, comprehensive policy approach suggested by the recent missions, designed in 2012. On the one hand, these may appear to introduce some order in its CSDP actions. This is noteworthy, for it is intended to render what may have seemed to be an assortment of disparate policy initiatives, extremely flexible in their design and executed pursuant to ad hoc practical considerations, into a policy shaped on the basis of its own logic. Furthermore, the more CSDP operations and missions are carried out 226 Walter Laqueur, After the Fall—The End of the European Dream and the Decline of a Continent (New York: Thomas Dune Books, 2011), 56. 227 Alex Vines, ‘Rhetoric from Brussels and reality on the ground: the EU and security in Africa’, (2010) 86 International Affairs 1091.

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on the basis of structured policy approaches, the more firmly anchored the policy becomes to the other strands of the Union’s external action. The Strategic Framework for the Horn of Africa for instance, refers to CSDP alongside the Instrument for Stability as the initiatives which encapsulate the Union’s crisis response and management.228 As explained in Chapter 4, this follows from the logic of the European Security Strategy which views the Union’s distinct contribution to international security in its ability to rely upon CSDP along with the other external policies. While the analysis in that chapter approached the linkages between these fields as a matter of principle, the analysis of the civilian missions in this chapter illustrated quite how close these linkages are as a matter of practice. On the other hand, the development of formalized structured frameworks such as the Strategic Framework for the Horn of Africa has a whiff of formalism. It appears to promote the normalization of CSDP by bringing it closer to other EU external policies but it does so at a strategic level, in an abstract manner and focusing on rather anodyne policy assumptions. It does not address the specific and real problems facing the Union in the conduct of its civilian missions, an issue which is disconcerting as these problems have also been shown to affect the conduct of military operations.

228

A Strategic Framework for the Horn of Africa at 7 (n219).

7 International agreements

Introduction The previous chapters examined the various CSDP missions which the EU has carried out since its inception.1 A central strand of this practice consists of the links between the missions and third countries and international organizations. After all, the Presidency Report endorsed by the Nice European Council in December 2000 makes this clear: it states that ‘[t]he EU project is open’ and provides for the possibility of third countries cooperating with the EU in security and defence operations.2 This principle of openness emerged first in late 1999, that is, at the genesis of the European Security and Defence Policy. The Helsinki European Council referred for the first time to interactions with third countries, and the need to work out the necessary arrangements.3 The arrangements endorsed subsequently by the Feira European Council are about dialogue and information-sharing and, at times of crisis, consultation.4 As for participation in EU operations, in cases where NATO resources are relied upon, non-EU NATO Member States may participate if they so wish, whereas, in cases where NATO resources are not relied upon, they may do so following an invitation by the Council.5 Candidate countries may also be invited to participate.6

1 The analysis in this chapter draws heavily on Panos Koutrakos,‘International Agreements in the Area of the EU’s Common Security and Defence Policy’, in Enzo Cannizzaro, Paolo Palchetti, and Ramses A Wessel (eds), International Law as Law of the European Union (Leiden: Martinus Nijhoff Publishers, 2012), 156. 2 European Council Conclusions (7–9 December 2000), Annex VI: Presidency Report on the European Security and Defence Policy. 3 European Council Conclusions (10–11 December 1999), Annex I to Annex IV: Presidency Report on strengthening the common European policy on security and defence. 4 European Council Conclusions (19–20 June 2000), Annex I: Presidency Report on Strengthening the Common European Security and Defence Policy. There is an appendix to this Report on Arrangements to be concluded by the Council on modalities of consultation and/or participation that will allow the non-EU European NATO members and other countries, which are candidates for accession to the EU, to contribute to EU military crisis management. The arrangements are set out in Appendix VI to Annex VI (Presidency Report on the European Security Policy) annexed to the Nice European Council Conclusions, European Council Conclusions (19–20 June 2000), Annex I: the Presidency Report on the European Security Policy. 5 The relationship between the EU and NATO was examined in Ch 5. 6 The Presidency Report endorsed by the Helsinki European Council (10–11 December 1999) states that, in the case of the non-EU NATO States, the Council ‘will’ invite them to participate, whereas it ‘may’ do so in relation to candidate countries.

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A number of interesting features about these arrangements emerge. The first is their wide scope: the Union considers not only non-EU NATO Members and candidate States as potential participants, but also any third country.The Feira European Council refers to countries of strategic importance (Russia, Ukraine), countries with which the Union is engaged in political dialogue, as well as any other interested country (such as Canada). Second, the links between the Union and third countries develop on various fronts, ranging from dialogue to consultation at a time of crisis to participation in a mission.7 Therefore, the conclusion of international agreements, which is the subject matter of this chapter, is but a part of a wider framework of interactions between the Union and third countries. The third interesting feature is the flexibility of the relevant arrangements. Consultation is provided for both in times when there is no crisis (mainly carried out by the Political and Security Committee), and in times of crisis (through the Presidency and the High Representative). However, the significance of enabling procedural arrangements to adjust to different political realities is expressly acknowledged.8 Finally, all the provisions set out in the various European Council Conclusions refer to a requirement which the cooperation with third countries must meet, namely respect for the decision-making authority of the Union. The principle of openness which underpins the security and defence role of the Union is tied in with the commitment to effective multilateralism. Underpinning the whole spectrum of external action, this has become more prominent since the terrorist attacks of 9 September 2001. Not only is it a point of reference in the European Security Strategy9 and its 2008 Implementation Report,10 but it is also spelled out in the Lisbon Treaty as one of the objectives of the Union’s external action.11 This point of principle notwithstanding, there are pragmatic reasons which dictated the openness of the Common Security and Defence Policy. On the one hand, the debates about the relationship with NATO were at the very core of the genesis and development of CSDP, as was the issue of the Union’s reliance upon NATO resources for the conduct of operations. In this context, it was only natural that the non-EU NATO members would have a role in the development of CSDP. On the other hand, in relation to the candidate countries, 7 The Brussels European Council (24–25 October 2002) refers to the arrangement with the non-EU European allies as ‘permanent and continuing’ (Annex II: ESDP: Implementation of the Nice Provisions on the Involvement of the non-EU NATO European allies, para 3). 8 ‘These initial principles are without prejudice to any specific consultation and/or participation mechanisms which may be concluded with some of the countries concerned. The EU has, for example, adopted with Russia a joint declaration on strengthening dialogue on political and security questions in Europe, providing in particular for specific consultations on security and defence issues’, (Nice European Council Conclusions, 7–9 December 2000). 9 A Secure Europe in a Better World—European Security Strategy (Brussels, December 12, 2003), 14. See also COM(2003) 526 final, The European Union and the United Nations: The choice of multilateralism and European Security Strategy, at 9 et seq. 10 Providing Security in a Changing World (Brussels, 11 December 2008). 11 Art 21(2)(h) TEU refers to the ‘promot[ion of] an international system based on stronger multilateral cooperation and good global governance’.

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their gradual alignment with the Union’s foreign and security policy has been standard practice.12 Therefore, the establishment of links with them both prior to and during a crisis, and their potential participation in missions merely extends this practice. This chapter examines the treaty-making activity of the Union in the area of CSDP, and the constitutional, procedural, and substantive issues which this raises.13

The negotiation and conclusion of international agreements in the area of CSDP Primary law referred to treaty-making in the area of CFSP for the first time in the TEU-Amsterdam.This provided for the negotiation of international agreements by the Presidency, assisted by the Commission ‘as appropriate’, and their conclusion by the Council.14 The provision for treaty-making capacity was the answer of the Member States to a thorny question, namely whether to bestow the Union with international legal personality. The engagement of the Union in the wars in exYugoslavia highlighted the absence of legal means which would enable it to enter into treaty relations with third States.15 In order to address this problem, it was suggested both at the Amsterdam and Nice Intergovernmental Conferences that the new Treaties confer upon the Union international legal personality. However, this proposal was rejected in both cases, for it was seen as potentially detrimental to the intergovernmental character of the then second and third pillars. Instead, the Member States agreed to provide for treaty-making capacity. This solution had a number of advantages: it avoided a thorny issue with political repercussions, it provided for a legal mechanism which would address a specific 12 This is the case with the current candidate countries too: for instance, Council Dec. 2009/969/ CFSP of 15 December 2009 extending the restrictive measures against certain officials of Belarus laid down in Common Position 2006/276/CFSP, and repealing Common Position 2009/314/CFSP [2009] OJ L 332/76, is complied with by a number of partner countries: Croatia and FYROM (candidate countries), Albania, Bosnia and Herzegovina, Montenegro (SAP countries and potential candidates), and Iceland, Liechtenstein, and Norway (EEA countries). 13 See also Aurel Sari, ‘The Conclusion of International Agreements by the European Union in the Context of the ESDP’, (2008) 57 ICLQ 53, and Ramses Wessel, ‘The EU as a Party to International Agreements: shared competences, mixed responsibilities’, in Alan Dashwood and Marc Maresceau (eds), Law and Practice of EU External Relations (Cambridge: CUP, 2008), 152. 14 ex Art 24 TEU. As amended by the Treaty of Nice, Art 24 provided for the agreements to be concluded unanimously where they covered an issue for which unanimity was required for the adoption of internal decisions (para 2), or by qualified majority, in cases where they implemented a joint action or common position already adopted (para 3). 15 Indicative of the sui generis solutions to which the Union had recourse was the conclusion in 1994 of the Memorandum of Understanding on the European Union Administration of Mostar between the Member States of the European Union acting within the framework of the Union in full association with the European Commission (signed by the Presidency) and the Member States of the Western European Union. On the EU administration of Mostar, see Jörg Monar, ‘Mostar: Three Lessons for the European Union’, (1997) EFARev 1.

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practical need, and it couched the relevant Treaty provision in terms which gave rise to prolonged academic debate as to whether the Union enjoyed or later acquired implied legal personality as a matter of law. There was also debate about the legal implications for the responsibility of the Union and of the Member States. The uncertainty was compounded by the wording of ex Article 24 TEU which enabled Member States to rely upon their own constitutional requirements before they were bound by an agreement concluded thereunder.16 In the light of the above, the attention of academic commentators turned to the practice under ex Article 24 TEU: did this suggest that it was the Union itself which concluded the relevant agreements, assuming obligations and exercising rights, or was it the Member States acting through the Union which were the responsible actors? The wording of the agreements concluded under the pre-Lisbon rules referred to the Union, rather than the Member States, and—although the practice relating to responsibility for damage strongly indicated the contrary—a growing consensus at least among academic European lawyers developed as to the existence of its implied legal personality.17 The entry into force of the Lisbon Treaty has rendered this debate irrelevant, as Article 47 TEU endows the Union with express legal personality. The remaining part of this section will focus on the procedure governing the negotiation and conclusion of international agreements in the area of the Common Security and Defence Policy under the present constitutional arrangements.

16 ex Art 24 (5) TEU read as follows: ‘No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall nevertheless apply provisionally’. In addition, Declaration 4 by the Representatives of the Member States at the signing of the Amsterdam Treaty stated that the pre-Lisbon procedure for the conclusion of international agreements ‘shall not imply any transfer of competence from the Member States to the European Union’. Furthermore, ex Art 24 (6) TEU stated that ‘Agreements concluded under the conditions set out by this Article shall be binding on the institutions of the Union’. For an analysis, see Ramses A Wessel and Gloria Fernandez Arribas, ‘EU Agreements with Third Countries: Constitutional Reservations by Member States’ in Steven Blockmans (ed), The European Union and International Crisis Management: Legal and Policy Aspects (The Hague: TMC Asser Press, 2008), 291. 17 See, among others, Editorial, ‘The European Union: A New International Actor’, (2001) CMLRev 825; Gilles de Kerchove and Stephan Marquardt, ‘Les accords internationaux conclus par l’Union européenne’, (2004) 50 AFDI 803; Panos Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), 409; Frederik Naert, International Law Aspects of the EU’s and Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Antwerp: Intersentia, 2010), 341 et seq.; Nicolas Tsagourias, ‘EU Peacekeeping Operations: Legal and Theoretical Issues’, in Martin Trybus and Nigel White (eds), European Security Law (Oxford: OUP, 2008), 102, at 116–17; Delano R Verwey, The European Community, the European Union and the International Law of Treaties (The Hague: TMC Asser Press, 2004), 60–1; Ramses A Wessel, ‘The EU as a Party to International Agreements: shared competences, mixed responsibilities’, in Alan Dashwood and Marc Maresceau (eds), Law and Practice of EU External Relations (Cambridge: CUP, 2008), 152, at 158–60. Cf, Eileen Denza, The Intergovernmental Pillars of the European Union (Oxford: OUP, 2002), 174–7; Urfan Khaliq, ‘Treaty Conflict and the European Union, or Conflicting Perspectives on the European Union?’, (2012) ELRev 495, at 498–9, shows that there was on this point a division between international lawyers who remained sceptical about the ‘implied legal personality’ theory and EU lawyers.

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Negotiation of international agreements Article 37 TEU provides that: ‘The Union may conclude agreements with one or more States or international organisations in implementation of this Chapter.’ The negotiation and conclusion of such agreements is set out in Article 218 TFEU. In so far as an agreement ‘relates exclusively or principally to the common foreign and security policy’, the High Representative of the Union for Foreign Aff airs and Security Policy submits recommendations to the Council about the initiation of negotiations.The Council, then, adopts a decision authorizing the opening of negotiations and nominates ‘the Union’s negotiator or the head of the Union’s negotiating team’.18 The above formulation of Article 218(3) TFEU reflects the case law of the Court of Justice. In cases where an international agreement covers different areas in which the Union is endowed with different powers, the Court identifies the correct legal basis for the negotiation and conclusion of the agreement by examining which area forms the predominant part of the agreement.19 The provision of Article 218(3) TFEU also acknowledges the likelihood of the Union negotiating agreements the subject matter of which would be covered by different types of competence. The nature of the competence of the Union to conduct its CFSP in general and CSDP in particular as distinct from the other types set out in the Treaties and their conduct ‘subject to specific rules and procedures’20 are bound to have repercussions for the negotiation and conclusion of the relevant agreements. However, to ascertain whether an agreement is ‘exclusively or principally’ about the CFSP/ CSDP is by no means without controversy. As the analysis in Chapter 4 suggested, the notion of security is construed broadly by the EU institutions so that its multifarious dimensions are linked to other EU external policies, such as development, trade, environment, energy, humanitarian aid, and organized crime. The European Security Strategy makes these links clear,21 and the 2008 Report on the Implementation of the European Security Strategy further draws upon them.22 The increasingly strong links between security and other external policies are also acknowledged in policy documents which were adopted in order to enhance the ensuing need for coherence in decision-making and implementation, a case in point being development and humanitarian aid.23 To acknowledge these interactions is to accept that, to a considerable extent, the EU external action has a distinct security dimension, and that the Union’s security and defence policy is instrumental in the effective conduct of the other strands of the Union’s external action. 18

Art 218 (3) TFEU. See, for instance, Opinion 2/00 (re: Cartagena Protocol on Biosafety) [2001] ECR I-9713, Case C-281/03 Commission v Council (re: Energy Star Agreement) [2002] ECR I-12049, Case C-94/03 Commission v Council [2006] ECR I-1. 20 Art 24(1), subpara 2 TEU. See the analysis in Ch 2. 21 22 Art 24(1), subpara 2 TEU. Art 24(1), subpara 2 TEU. 23 See The European Consensus on Development, [2006] OJ C 646/1, and The European Consensus on Humanitarian Aid, [2008] OJ C 25/1. This point is developed further in Ch 8. 19

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The difficulty in determining whether an international agreement ‘relates exclusively or principally’ to a given policy is illustrated with painful clarity by past experience. Inter-institutional disputes about the extent to which international agreements relate to trade or other external policies have been frequent, and the case law of the Court of Justice not consistently helpful.24 This suggests that the application of the provision laid down in Article 218(3) TFEU may be fraught with problems. An argument against this scepticism may be the specificity of security and defence policy. In other words, it may be argued that, its broad construction notwithstanding, security and defence policy lack the degree of osmosis which characterizes trade and environment. In relation to proliferation of small arms and light weapons, for instance, the Court of Justice referred to the grant of political support for a moratorium on the collection and destruction of weapons as measures which ‘fall rather within action to preserve peace and strengthen international security or to promote international cooperation, being CFSP objectives stated in [primary law]’.25 This may seem to suggest that, even in the light of the multifarious links between CFSP/CSDP and other EU external policies and the ensuing difficulty of defining their respective scope, one would be able to recognize the objectives of the former. However, the very dispute in ECOWAS, and the judgment rendered by the Court of Justice, suggest that this, almost intuitive, approach would be misguided.26 It follows from this that the determination of who makes the proposal to the Council for the initiation of negotiation of an international agreement may be contentious.The institutional configuration of the High Representative, in terms of her role as Vice President of the Commission, may, in fact, reduce the scope for disputes. In other words, given that any agreement would be negotiated by a Commission member anyway, whether that person would be the High Representative or another Commissioner, might be considered of secondary importance. However, this is not the case. It is precisely because of the double-hatting of the High Representative that the question of who proposes the negotiation of an agreement is bound to be scrutinized closely by the Council. It is interesting, in this respect, that an early draft of what is now Article 218(3) TFEU, in its Constitutional Treaty incarnation, provided for a joint recommendation from the Commission and the Union Minister for Foreign Affairs.27 This possibility did not however find its way into the text of the Treaties.28 24 See Panos Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’, in Marise Cremona and Bruno de Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (Oxford: Hart Publishing, 2008), 171, at 176–85. See also Piet Eeckhout, EU External Relations 2nd edn (Oxford: OUP, 2011), 42 et seq. 25 Case C-91/05 Commission v Council (re: ECOWAS) [2008] ECR I-3651, para 105. 26 See the analysis in Ch 8. 27 CONV 685/03 Draft Articles on External Action in the Constitutional Treaty (Brussels, 23 April 2003), Art 33(3). 28 See Ricardo Passos and Stephan Marquard, ‘International Agreements—Competences, Procedures and Judicial Control’, in Giuliano Amato, Hervé Bribosia, and Bruno de Witte (eds), Genesis and destiny of the European Constitution (Brussels: Bruylant, 2007), 875, at 900.

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A related issue is about the negotiator of an international agreement. Article 218(3) TFEU provides that the Council nominates the Union’s negotiator or the head of the Union’s negotiating team.The reference to ‘the Union’s negotiator’ and ‘the Union’s negotiating team’ comes into the text of the Treaties for the first time at Lisbon. This formulation is vague and lacking in detail as to which institutional actor is to negotiate each type of agreement and under what procedures.The choice of words is intended be broad enough to cater for all the permutations of representation which the subject matter of an agreement might require in the process of its negotiation on behalf of the EU. It follows from the structure and logic of Article 218(3) TFEU that if it is principally or exclusively related to the Union’s policies other than CFSP and CSDP, then it is to be negotiated by the Commission; if it is exclusively or principally related to the CFSP or CSDP, it is to be negotiated by the High Representative, and if it is related to both CFSP/CSDP and other EU policies, then, in principle, it is to be negotiated by both the Commission and the High Representative. It is in relation to the latter case that the term ‘negotiating team’ becomes relevant. In effect, the provision for a negotiating team follows from the abolition of the pillar structure of the Union, the deletion of the separate treaty-making procedure set out in ex Article 24 TEU, and the introduction of a single procedure for treatymaking by the EU. In doing so, the reference to the Union’s negotiating team in Article 218(3) TFEU addresses the concern that the distinct nature of CFSP/CSDP may be overlooked in cases where a CFSP/CSDP dimension, while not central, is present in an agreement pertaining mainly to other EU policies, and which, therefore, is to be negotiated by the Commission. The existence of a negotiating team ensures the participation of the High Representative, and is therefore intended to safeguard the special interests which underpin the CFSP/CSDP. This does not answer the question, who is head of the negotiating team in any given case? The formulation of Article 218(3) TFEU leaves this question open. A requirement that the head should always be the High Representative even if the CFSP/CSDP dimension is incidental would be unduly formalistic. Given that the High Representative would participate in the negotiating team, it is entirely proper that the determination of the centre of gravity of the agreement’s scope also determines the head of the team, which is appointed to negotiate that agreement.To that effect, the logic of the Court’s case law on the conclusion of international agreements serving a variety of objectives may be applied: if the agreement relates principally to the CFSP/CSDP, the High Representative would be appointed as the head of the negotiating team; if that dimension is marginal, it would be the Commissioner responsible for the policy area which covers the main thrust of the agreement who would be the Head.29 29 See also Ricardo Gosalbo Bono,‘The organization of the external relations of the European Union in the Treaty of Lisbon’, in Panos Koutrakos, The European Union’s external relations a year after Lisbon, CLEER Working Papers 2011/3, 13, at 32.

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The Council has the authority to decide the initiation of negotiation of an international agreement, and adopts the relevant negotiating directives.30 It may also ‘designate a special committee in consultation with which the negotiations may be conducted’.31 Article 218(5) TFEU provides that it is also for the Council to authorize the signing of an agreement by a means of a decision following a proposal from the Union negotiator. In addition, it provides for the possibility of the provisional application of an agreement, prior to its entry into force, by means of a decision following a proposal by the Union’s negotiator. The Lisbon Treaty grants the European Parliament the right to be consulted on the negotiation of international agreements. Article 218 (10) TFEU provides that the Parliament ‘shall be immediately and fully informed at all stages of the procedure’. The Declaration on political accountability by the High Representative of the Union for the Foreign Affairs and Security Policy, accompanying the Council Decision on the establishment and functioning of the European External Action Service,32 makes it clear that this provision covers CFSP agreements too.33

Conclusion of international agreements In relation to the conclusion of international agreements, Article 218(6) TFEU assigns this role to the Council. As for decision-making, the Treaty sets out the presumptive rule for all international agreements, which is qualified majority voting under Article 218(8) TFEU, but provides for unanimity as an exception in certain cases. One such case is where ‘the agreement covers a field for which unanimity is required for the adoption of an act of the Union’.34 If an agreement relates exclusively or principally to CFSP/CSDP, and given that the rule in decision-making in these areas is unanimity and that majority voting is very clearly circumscribed and mainly following the adoption of unanimous rules,35 it must be concluded unanimously. The question is whether unanimity is also required for agreements which are not related exclusively or principally with CFSP/CSDP, but have a CFSP/CSDP dimension. A strict reading of Article 218(8) TFEU suggests an affirmative answer. This provision refers to an agreement which covers ‘a field for which unanimity is required for the adoption of an act of the Union’, a statement which is not qualified in any way. However, such a conclusion would run counter to the logic of Article 218 TFEU as a whole. The latter sets out the unitary framework for treaty-making 30

31 Art 218 (2) TFEU. Art 218 (4) TFEU. Council Dec. 2010/427/EU [2010] OJ L 201/30. 33 [2010] OJ C 210/1 (and corrigenda in [2010] OJ C 217/12), para 2. 34 Art 218(8), second subpara first indent TFEU. 35 See Art 31(1)–(3) TEU. See also Art 31(4) TEU which rules out the exceptions to the unanimity rule for decisions having military or defence implications. See also Frederik Naert, ‘The Application of International Humanitarian Law and Human Rights Law in CSDP Operations’, in Cannizzaro, Palchetti, and Wessel, International Law as Law of the European Union (Leiden: Martinus Nijhoff Publishers, 2012), 189. 32

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on behalf of the European Union, and distinguishes the CFSP areas only with reference to agreements which relate ‘exclusively or principally’ to them. Furthermore, the broad construction of security which the EU institutions have endorsed over the years, and its increasing interactions with the other strands of the EU’s external action might render unanimity the rule, rather than the exception. This cannot have been the intention of the drafters of the Lisbon Treaty. The Lisbon Treaty provides for no active role for the European Parliament in the process of the conclusion of international agreements which ‘relate exclusively to the common foreign and security policy’.36 However, Article 218(8) TFEU provides that it ‘shall be immediately and fully informed at all stages of the procedure’. This suggests a somewhat enhanced role, as the Nice Treaty was silent on the role of the Parliament regarding CFSP/CSDP agreements, and confined it to receiving regular provision of information by the Presidency and the Commission in the area.37 However, the Parliament is still not endowed with any right to interact with the EU institutions in a way that would enable it to influence the content of a CFSP/CSDP agreement. The absence of an active parliamentary involvement becomes all the more striking in the light of the very considerable role with which the Parliament has been endowed by the Lisbon Treaty in relation to the negotiation and conclusion of international agreements pertaining to the other strands of the EU external action. Within national constitutions, however, involvement of a parliament during negotiation of an international agreement is unknown and the parliament can only approve or reject a final text. The role of the Parliament was illustrated clearly only about two months after the entry into force of the Lisbon Treaty by its refusal to consent to the conclusion of the Society for World Interbank Financial Telecommunications (SWIFT) Interim Agreement,38 as well as pressure which was exercised upon it on this occasion, not least by United States Vice President Joseph Biden, and Secretary of State Hillary Clinton. Finally, the Lisbon Treaty introduces a provision for a modification of international agreements. In accordance with Article 218(7) TFEU, when concluding an agreement, ‘the Council may [...] authorise the negotiator to approve on the Union’s behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by body set up by the agreement?’ It adds that the Council ‘may attach specific conditions to such authorisation’.

36

Art 218(6), second indent TFEU. See ex Art 21 TEU. See Daniel Thym,‘Parliamentary Involvement in European International Relations’ in Marise Cremona, and Bruno de Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (Oxford: Hart Publishing, 2008), 201, at 215–16. See also, more generally, Daniel Thym, ‘Beyond Parliament’s Reach? The Role of the European Parliament in the Common Foreign and Security Policy’, (2006) 11 EFARev 109. 38 See Jörg Monar, ‘The Rejection of the EU-US SWIFT Interim Agreement by the European Parliament: A Historic Vote and Its Implications’, (2010) 15 EFARev 143. 37

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Typology of CSDP agreements The Union has concluded over eighty international agreements with third countries in the context of its security and defence policy. These cover a range of areas: they regulate the participation of third States in specific CSDP missions, they constitute status of forces and missions agreements, they set out security procedures for the exchange of classified information between the Union and third countries, or they provide a framework within which third States may participate in CSDP missions.39 This section will examine these agreements in turn.

Participation of third states in specific CSDP missions Most of the international agreements concluded by the Union are about the participation of third countries in specific CSDP operations. At the time of writing, the agreements which have become available were with the following countries:

CSDP Operation/mission

Third country

EUNAVFOR–Atalanta: EULEX KOSOVO: EUFOR Tchad/RCA: EUPOL AFGHANISTAN: EUFOR RD Congo:

Montenegro,40 Croatia,41 Croatia,42 USA,43 Switzerland,44 Russia,45 Croatia,46 Albania,47 Croatia,48 New Zealand,49 Switzerland,50

39 The Union has also concluded agreements addressing specific issues which may arise in the context of specific operations: see the agreement with Kenya about transfer of persons and seized property in the context of EUNAVFOR ([2009] OJ L 79/49, concluded by Council Dec. 2009/293/CFSP [2009] OJ L 79/47 (concerning the exchange of letters)), and the one with Georgia on the status of the EU Special Representative ([2006] OJ L 135/15, concluded by Council Dec. 2006/366/CFSP [2006] OJ L 135/15). 40 [2010] OJ L 88/3, concluded by Council Dec. 2010/199/CFSP [2010] OJ L 88/1. 41 [2009] OJ L 202/84, concluded by Council Dec. 2009/597/CFSP [2009] OJ L 202/81 (the latter also providing for the provisional application of the Agreement). 42 [2008] OJ L 317/20, concluded by Council Dec. 2008/887/CFSP [2008] OJ L 317/19. 43 [2008] OJ L282/33, concluded by Council Dec. 2008/814/CFSP [2008] OJ L 282/32. 44 [2008] OJ L 217/24, concluded by Council Dec. 2008/666/CFSP [2008] OJ L 217/23. 45 [2008] OJ L 307/16, concluded by Council Dec. 2008/868/CFSP [2008] OJ L 307/15. 46 [2008] OJ L 268/33, concluded by Council Dec. 2008/783/CFSP [2008] OJ L 268/32. 47 [2008] OJ L 217/19, concluded by Council Dec. 2008/665/CFSP [2008] OJ L 217/18. 48 [2007] OJ L 270/28, concluded by Council Dec. 2007/665/CFSP [2007] OJ L 270/72. 49 [2007] OJ L 274/18, concluded by Council Dec. 2007/670/CFSP [2007] OJ L 274/17. 50 [2006] OJ L 276/111, concluded by Council Dec. 2006/676/CFSP [2006] OJ L 276/10 (exchange of letters).

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FYROM,51 Chile,52 Argentine,53 New Zealand,54 Albania,55 Morocco,56 Switzerland,57 AMM Aceh: Switzerland,58 Brunei59 Singapore,60 Malaysia,61 Thailand,62 and the Philippines,63 EUPOL PROXIMA: Switzerland,64 Ukraine,65 Norway,66 Turkey,67 CONCORDIA: Slovakia,68 Romania,69 Latvia,70 Poland,71 Lithuania,72 Turkey,73 Estonia,74 the Czech Republic,75 EUPM Bosnia Herzegovina: Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Iceland, Latvia, Lithuania, Norway, Romania, Slovakia, Slovenia, Switzerland,Turkey, and Ukraine,76 Russia,77 Poland,78 EUFOR ALTHEA:

This list is not exhaustive, as a small number of agreements have not been published in the Official Journal.79 Most of these are formal agreements which are attached to the Council Decision which concluded them. A small number of them are in the form of an Exchange of Letters.80 51

[2006] OJ L 203/12, concluded by Council Dec. 2006/477/CFSP [2006] OJ L 203/11. [2005] OJ L 202/40, concluded by Council Dec. 2005/593/CFSP [2005] OJ L 202/49. 53 [2005] OJ L156/22, concluded by Council Dec. 2005/447/CFSP [2005] OJ L 156/21. 54 [2005] OJ L 127/28, concluded by Council Dec. 2005/386/CFSP [2005] OJ L 127/27. 55 [2005] OJ L 65/35, concluded by Council Dec. 2005/199/CFSP [2005] OJ L 65/34. 56 [2005] OJ L 34/47, concluded by Council Dec. 2005/109/CFSP [2005] OJ L 34/46. 57 [2004] OJ L 2042, concluded by Council Dec. 2005/44/CFSP [2005] OJ L 20/41. 58 [2005] OJ L 349/31, concluded by Council Dec. 2005/966/CFSP [2005] OJ L 349/30. 59 [2007] OJ L 183/52, concluded by Council Dec. 2005/495/CFSP [2007] OJ L 273/8. 60 [2007[OJ L 183/58, concluded by Council Dec. 2005/495/CFSP. 61 [2007] OJ L 183/64, concluded by Council Dec. 2005/495/CFSP. 62 [2007] OJ L 183/70, concluded by Council Dec. 2005/495/CFSP. 63 [2007] OJ L 183/76, concluded by Council Dec. 2005/495/CFSP. 64 [2004] OJ L 354/78, concluded by Council Dec. 2004/809/CFSP [2004] OJ L 354/77. 65 [2004] OJ L 354/82, concluded by Council Dec. 2004/810/CFSP [2004] OJ L 354/81. 66 [2004] OJ L 354/86, concluded by Council Dec. 2004/811/CFSP [2004] OJ L 354/85. 67 [2004] OJ L 354/90, concluded by Council Dec. 2004/812/CFSP [2004] OJ L 354/89. 68 [2004] OJ L 12/54, concluded by Council Dec. 2004/61/CFSP [2004] OJ L 12/53. 69 [2004] OJ L 120/61, concluded by Council Dec. 2004/392/CFSP [2004] OJ L 120/61. 70 [2003] OJ L 313/79, concluded by Council Dec. 2003/832/CFSP [2003] OJ L 313/78. 71 [2003] OJ L 285/44, concluded by Council Dec. 2003/781/CFSP [2003] OJ L 285/43. 72 [2003] OJ L 234/19, concluded by Council Dec. 2003/661/CFSP [2003] OJ L 234/18. 73 [2003] OJ L 234/23, concluded by Council Dec. 2003/662/CFSP [2003] OJ L 234/22. 74 [2003] OJ L 216/61, concluded by Council Dec. 2003/624/CFSP [2003] OJ L 216/60. 75 [2003] OJ L 229/39, concluded by Council Dec. 2003/650/CFSP [2003] OJ L 229/38. 76 [2003] OJ L 239/2 (Cyprus), [2003] OJ L 239/5 (Iceland), [2003] OJ L 239/8 (the Czech Republic), [2003] OJ L 239/11 (Lithuania), [2003] OJ L 239/14 (Switzerland), [2003] OJ L 239/17 (Latvia), [2003] OJ L 239/20 (Hungary), [2003] OJ L 239/23 (Romania), [2003] OJ L 239/26 (Estonia), [2003] OJ L 239/29 (Slovenia), [2003] OJ L 239/32 (Norway), [2003] OJ L 239/35 (Turkey), [2003] OJ L 239/38 (Ukraine), [2003] OJ L 239/41 (Bulgaria), [2003] OJ L 239/44 (Slovakia), all concluded by Council Dec. 2003/663/CFSP [2003] OJ L 239/1. 77 [2003] OJ L 197/38, concluded by Council Dec. 2003/582/CFSP [2003] OJ L 197/37. 78 [2003] OJ L 64/38, concluded by Council Dec. 2003/157/CFSP [2003] OJL 64/37. 79 See Art 17(1)(h) of Council Dec. 2004/338/EC adopting the Council’s Rules of Procedure [2004] OJ L 106/22 which refers to the exception from the principle of publication as laid down in Arts 4 and 9 of Council Reg 1049/2001 regarding public access to documents [2001] OJ L 145/43. 80 For instance, the Agreement about the participation of Switzerland in EUFOR RD Congo, n50. 52

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All these agreements refer to the same issues which arise in the context of the participation of third countries in CSDP operations. However, the degree of detail in their drafting may vary considerably. The participation of third countries in CSDP missions is envisaged in the Joint Action pursuant to which each mission is carried out. The agreements set out the main parameters of the participation of the third country in the CSDP operation, the status of the forces and personnel of that country, the chain of command, the treatment of classified information, the financial aspects of participation, and the possibility of terminating that participation. However, neither the structure, nor the content is identical. Some agreements set out the specific contribution in forces and/or personnel of the participating country—for instance, the one with Cyprus about the latter’s participation in the EUPM in Bosnia Herzegovina refers to four seconded officers.81 Most agreements, however, either include a general reference to a contingent to be determined at the Force General Conference, or are silent on the matter. A principle which underlies all participation agreements is respect for the decision-making autonomy of the Union. This is stressed in the agreements which also point out that the personnel of the participating country would act in conformity with the documents setting out the parameters of the mission, namely the Joint Action setting up the mission, along with any amendments to it, the Operation Plan, and any implementing measures. A number of agreements stress the overarching significance of the success of the CSDP mission in question.They do so by including a provision which requires that the forces and personnel of the third country ‘shall carry out their duties and conduct themselves solely with the interest of the EU military crisis management operation in mind’.82 There is considerable variation in the forms of this provision. It does not feature in all Agreements, certainly not in all which concern participation in military operations, and is absent from the EU-Russia Agreement about EUFOR Tchad.83 And even in the context of a single operation, its wording may vary: for instance, in the context of EULEX KOSOVO, while the Agreements about the participation of Swtizerland and Croatia included this formulation,84 the one with United States is distinctly less prescriptive.85 The status of the forces and personnel participating in CSDP missions is defined in a variety of ways. In most cases, it is governed by the Agreement on the status of forces concluded between the EU and the third country in which the mission is undertaken. In some cases, they refer to UN Security Council Resolutions: the Agreements about the participation of Chile and New Zealand in Operation ALTHEA 81

Council Dec. 2003/663/CFSP [2003] OJ L 239/1, Art 2(1). See, for instance, Art 1(4) of the Agreements about the participation of Switzerland, Morocco, Albania, New Zealand, and Argentina in ALTHEA (above). 83 84 See n45. See n42 and n44. 85 Art 1(4) (n43): ‘The United States shall ensure that seconded personnel carry out their duties and conduct themselves in a manner fully supportive of the objectives and interests of EULEX KOSOVO’. 82

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refer to Resolution 1575 (2004),86 but the Agreement about Argentina’s participation does not. As to the chain of command, all forces and personnel contributed by a third country remain under the ultimate command of their national authorities. However, operational control is transferred to the Head of Mission, or, in the case of a military operation, the Operation Commander who has the power to request, at any time, the withdrawal of the third country’s forces and personnel. According to some agreements, this power is to be exercised following consultations with the third country in question, while this requirement is missing in other agreements.87 In some other agreements, no power is given to the Head of Mission to request the withdrawal of the personnel of the third country.88 A small number of agreements also set out the role of the Head of Mission, addressing the need to delineate lines of authority as clearly as possible.89 The input of each participating country is channelled through a senior figure appointed by the participating country as responsible for representing its national contingent in the EU mission operation. This figure is variously called Senior Military Representative (in military operations),90 National Contingent Point of Contact, National Point of Contact Representative, or National Contingent Leader.91 The third country is responsible for exercising jurisdiction over its forces and personnel. Some agreements include provisions about disciplinary control over personnel for which the Head of Mission is responsible, but in relation to which action is taken by the national authority concerned. Others are silent on this.92 In relation to responsibility, this falls on the participating country as far as claims which concern any of its forces or personnel. It is the participating country which is responsible for bringing any action, whether civil, criminal, or disciplinary, 86 Art 2(1) of both Agreements (n52 and n54) refers to para 12 which ‘recognises that the Peace Agreement and the provisions of its previous relevant resolutions shall apply to and in respect of both EUFOR and the NATO presence as they have applied to and in respect of SFOR and that therefore references in the Peace Agreement, in particular in Annex 1-A and its appendices, and relevant resolutions to IFOR and/or SFOR, NATO and the NAC shall henceforth be read as applying, as appropriate, to the NATO presence, EUFOR, the European Union and the Political and Security Committee and Council of the European Union respectively’. 87 See, for instance, the Agreement about the participation of Slovakia in the EU-led Forces in FYROM (n68). 88 See, for instance, the Agreement about the participation of Croatia and USA in EULEX KOSOVO (n42 and n43). 89 See, for instance, the Agreement about the participation of Switzerland, Croatia, and USA in EULEX KOSOVO (n42–44). 90 In the case of the Russian participation in EUFOR Tchad there was in fact more than one Senior Military Representative, and they were based both in the EU operational headquarters in Paris, and in the EU force headquarters in Abéché: Art 4(3) (n45). This was not the case with the other participating countries, a fact which may be explained in the light of the central role of the Russian contribution to the operation. 91 For instance in the Agreement about the Participation of Switzerland, United States, and Croatia in EULEX KOSOVO (n42–44). 92 See, for instance, the Agreement about the participation of Slovakia in the EU-led Forces in FYROM (n68).

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against any of its forces and personnel, in accordance with its own laws and regulations. As for any claims which may arise between the participating country, and any State participating in the operation, as well as any other Member State, the agreement includes an undertaking that both parties will make a declaration waiving any such claim (in the case of the EU, the undertaking is to ensure that Member States make such a declaration). These declarations, one by the participating State, and one by all the EU Member States, are attached to the agreement.93 The agreements also provide for the protection of EU classified information by requiring that the participating country ensure that such information is protected in accordance with the Council’s security rules.94 A number of agreements95 also refer to any ‘further guidance issued by competent authorities’, including the EU Operation Commander or the Head of Mission. There are neither chronological nor operation-specific patterns as to which agreements include this addition: while most recent agreements do, there are still exceptions,96 and not all third countries participating in the same operations have this addition in their agreement with the EU.97 Furthermore, there may be reference to a specific agreement on security procedures for the exchange of classified information between the EU and the participating country in the context of the specific operation. In certain cases such an agreement has already been signed, and so it is to its provisions that the agreement about the participation of the third country cross-refers. This is the case with US participation in EULEX KOSOVO, Article 3 of which refers to the EU–US Agreement concluded on 30 April 2007.98 Finally, in cases where its liability has been established, the participating State is required to pay compensation for any death, injury, loss, or damage to natural or legal persons from the State in which the operation is conducted in accordance with the conditions set out in the relevant SFOR Agreement. A number of the more recent agreements provide for the adoption of implementing technical and administrative arrangements and require that these be concluded by the CFSP High Representative, and the appropriate authorities of the participating State. All agreements include a clause which enables either party to terminate the relevant Agreement. Termination is permitted where the other party has failed to comply with its obligations as laid down in the Agreement. Termination in the 93 This was not the case with the earlier agreements, that is, prior to the one about the Turkish participation in PROXIMA (n67). 94 These are set out in Council Decision 2001/264/EC [2001] OJ L 101/1, as amended by Council Dec. 2004/194/EC [2004] OJ L 63/48. 95 But not all: see, for instance, the Agreement about the participation of Slovakia in the EU Police Mission in Bosnia and Herzegovina (n76). 96 See, for instance, the Agreement about the participation of Croatia to Operation Atalanta: n41. 97 For instance, contrary to the Agreement with Croatia (n41), this is included in the Agreement about the participation of Montenegro to Operation Atalanta (n40). 98 See n43.

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absence of fault is permitted following notice, the length of which varies from one month99 to two months.100 A small number of agreements provide for their termination by either Party on six months’ written notice.101 The more recent agreements provide for the settlement of disputes concerning their interpretation by diplomatic means between the parties.This was provided for the first time in the Agreement about the participation of Turkey in EUPOL PROXIMA.102 This overview suggests that, while the main policy issues raised by the participation agreements are predictably similar, the degree of detail in which they are covered varies. In some cases, it varies quite considerably, suggesting that the drafting of such agreements is guided by a degree of differentiation which is applied on the basis of the weight of the participating country and its role in the operation. Furthermore, negotiators for larger countries have experience of negotiating status of forces or other similar agreements and use their own precedents. The first SOFAs were negotiated by the EU with newly independent States from former Yugoslavia who had no experience. This enabled the Union to have a decisive impact on the drafting of the agreements. This is illustrated by the agreement about the participation of Russia in EUFOR Tchad which is very detailed in certain aspects, and enhances the role of the participating country in the mission. In relation to the chain of command, it reserves a special role for the Russian contingent. It provides for ‘full coordination’ between the Operation Commander and the Russian Senior Military Representatives in cases of air task orders or any other decisions with implication for the Russian military contingent.103 This is not the only feature of the EU–Russia Agreement which distinguishes it from others. Its heavy emphasis on parity, on maintaining the autonomy of the Russian participation is also reflected in its provision about the rules of engagement. In relation to exchange of classified information, it does not make reference to the relevant EU secondary rules, and it only refers to the possibility of concluding a specific agreement. Instead, it requires that the Russian Federation protect EU classified information ‘in accordance with the requirements for protecting classified information as established in the legislation of the Russian Federation’.104 It is noteworthy that the customary reference to the EU rules is now replaced by a general ‘best efforts’ duty the application of which is dependent on a similarly general ‘equivalence’ clause. These provisions confirm the suggestion that the EU–Russia Agreement about the participation of

99

For instance the Agreement about the participation of New Zealand in Operation ALTHEA (n54). See, for instance, the Agreements about the participation of Bulgaria, Cyprus, and other countries to EUPM BiH (n76). 101 See, for instance, the Agreements about the participation of Ukraine, Norway, and Turkey in Proxima (n65, 66, and 67 respectively). 102 103 See n67. Art 4(2), (n45). 104 Art 4(2), (n45), Art 3(1). Art 3(2) contains a commitment to take all appropriate measures. 100

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the latter in EUFOR Tchad is unique in its content and reflects clearly the distinct weight that the participating country has in the conduct of the mission in general as well as the long experience of Russian negotiators.

Status of forces agreements (SOFAs), and status of missions agreements (SOMAs) The legal rights and duties of the forces and personnel which the European Union sends to a third country in the context of a CSDP operation are set out in an international agreement concluded between the Union and that country. These are status of forces agreements (SOFAs) which apply to military operations or status of mission agreements (SOMAs) which apply to civilian missions. Over the years, many such agreements have been concluded by the EU.105 EUNAVFOR–Atalanta: EUMM GEORGIA: EU SSR GUINEA-BISSAU: AMM Aceh EUFOR Tchad/RCA: EUFOR RD Congo EUPOL KINSHASA: EUPOL AFGHANISTAN: EUJUST THEMIS:

Seychelles,106 Djibouti,107 Somalia,108 Georgia,109 Guinea Bissau110 Indonesia111 Chad,112 Central African Republic,113 Cameroon114 Gabon115 Democratic Republic of Congo116 Afghanistan117 Georgia118

105 In addition to SOFAs with third countries, there is an internal EU SOFA, concluded by the Representatives of the Governments of the Member States meeting within the Council in 2003 ([2003] OJ C 321/6). This covers military and civilian staff seconded to the EU institutions, the headquarters and forces which may be available to the Union in the context of the preparation and execution of the CSDP tasks, and the military and civilian staff of the Member States put at the disposal of the European Union to act in the CSDP context. 106 [2009] OJ L 323/14, concluded by Council Dec. 2009/916/CFSP [2009] OJ L 323/12. 107 [2009] OJ L 33/43, concluded by Council Dec. 2009/88/CFSP [2009] 33/41. 108 [2009]OJ L 10/29, concluded by Council Dec. 2009/29/CFSP [2009] OJ 10/27. 109 [2008] OJ L 310/31, concluded by Council Dec. 2008/877/CFSP [2008] OJ L 310/30. 110 [2008] OJ L 219/66, concluded by Council Dec. 2008/669/CFSP [2008] OJ L 219/65. 111 [2005] OJ L 288/60, concluded by Council Dec. 2005/765/CFSP [2005] OJ L 288/59 and extended three times ([2006] OJ L 71/55 by Council Dec. 2006/201/CFSP [2006] OJ L 71/53; [2006] OJ L 176/108 by Council Dec. 2006/448/CFSP [2006] OJ L 176/107, and [2006] OJ L 273/9 by Council Dec. 2006/666/CFSP [2006] OJ L 273/8). 112 [2008] OJ L 83/40, concluded by Council Dec. 2008/266/CFSP [2008] OJ L 83/39. 113 [2008] OJ L 136/46, concluded by Council Dec. 2008/389/CFSP [2008] OJ L 136/45. 114 [2008] OJ L 57/31, concluded by Council Dec. 2008/178/CFSP [2008] OJ L 57/30. 115 [2006] OJ L 187/43, concluded by Council Dec. 2006/475/CFSP [2006] OJ L 187/42. 116 [2005] OJ L 256/58, concluded by Council Dec. 2005/680/CFSP [2005] OJ L 256/57. 117 [2010] OJ L 294/2, concluded by Council Dec. 2010/686/CFSP [2010] OJ L 294/1. 118 [2004] OJ L 389/42, concluded by Council Dec. 2004/924/CFSP [2004] OJ L 389/41.

International agreements EUPOL PROXIMA: CONCORDIA: EUPM in BiH: EUTM Somalia

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FYROM119 FYROM120 Bosnia and Herzegovina121 Uganda122

As in the other agreements, one may detect progressive development in the structure and substance from the first SOFA, with Bosnia and Herzegovina on the activities of the EU Police Mission in the country, to the later ones. In some cases, their preamble makes reference to the broader context of the relationship between the Union and the third country in question: for instance, a SOFA with FYROM refers to the Stabilisation and Association Agreement with that country. 123 The SOFAs set out the general duties imposed on the EU: to respect the laws and regulations of the host State, to refrain from any action or activity incompatible with the impartial and international nature of the operation, and to notify the Host State of the details of the mission’s headquarters and personnel. Under many of the agreements, the CSDP mission enjoys the status of a diplomatic mission under the 1961 Vienna Convention on Diplomatic Relations (hereinafter the Vienna Convention).This entails the principle of inviolability of mission property, funds and other assets, as well as its premises, archives, and documents.124 Similarly, the CSDP personnel are given all privileges and immunities granted to diplomatic agents under the Vienna Convention. The jurisdiction of the State of nationality takes precedence both during and after the end of the mission in relation to official acts performed in its exercise. As for local personnel employed by the mission, earlier agreements provided that those who are nationals or permanent residents of the host State are granted the status equivalent to that enjoyed by locally employed administrative and technical staff in diplomatic missions in the Host State under the Vienna Convention.125 Others merely provide that the privileges and immunities of personnel employed locally are determined by the Host State, provided that the latter does not exercise its jurisdiction in a manner which would interfere unduly with the performance of the operation or the mission.126

119

[2004] OJ L 16/66, concluded by Council Dec. 2004/75/CFSP [2004] OJ L 16/65. [2003] OJ L 82/46, concluded by Council Dec. 2003/222/CFSP [2003] OJ L 82/45. 121 [2002] OJ L 293/2, concluded by Council Dec. 2002/845/CFSP [2002] OJ L 293/1. 122 [2010] OJ 221/2, concluded by Council Dec. 2010/464/CFSP [2010] OJ L 221/1. 123 However, there is no reference to the European integration of FYROM in the SOFA regarding EUPOL PROXIMA (n119). 124 Notice the emphatic wording of Art 5(3) of the EU–Afghanistan SOMA: ‘EUPOL AFGHANISTAN, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process.’ 125 See, for instance, Art 7 of the EU–FYROM Agreement on EUPOL PROXIMA. 126 See, for instance, Art 7 of the EU–Chad Agreement ([2008] OJ L 83/40), and Art 7 of the EU– Seychelles Agreement in the context of Operation Atalanta ([2009] OJ L 323/14). 120

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The conferment of privileges and immunities equivalent to those enjoyed by diplomatic personnel upon all members of CSDP missions has been viewed as ‘unusual’127 and raised questions as to its appropriateness even within the Union.128 This practice must be viewed in the light of the wider context of the Union’s security and defence missions. As the Union made a leap from the economic and social activities which it had been pursuing since the 1950s, relying upon the resources of its Member States whose commitment to and ideas about CSDP varied widely, lacking a clear vision of the kind of security player it envisages for itself, and always careful to organize its actions pursuant to legal and practical compromises which would reflect its highly idiosyncratic constitutional status, it is hardly surprising that it has sought as enhanced a protection as possible for its personnel in its missions. The planning and execution of CSDP missions must meet so many legal, political, and practical challenges internally, that is, within the Union’s structure, that the natural reflex of its institutions is to minimize the legal problems which may arise externally. Furthermore, the Union intervenes in States where the legal structures are either embryonic or in such decay that scepticism about submitting EU personnel to local jurisdictions is understandable.129 Finally, at the beginning, the negotiators from the third States had no considerable experience in negotiating such agreements and were reluctant to challenge the Union’s demands. On the other hand, it is noteworthy that a number of recent agreements provide for the possibility of a waiver by the Sending State, even though this would be possible without express provision for it.130 The SOFAs are considerably more detailed on the issue of privileges and immunities of the mission’s personnel. The one with Chad, for instance, makes it clear that EUFOR personnel are not liable to any form of arrest or detention, they are granted immunity from the criminal jurisdiction of the Host State (which may be waived expressly by the Sending State or by the EU institution concerned), and from its civil and administrative jurisdiction in relation to all acts performed and words expressed by them in the exercise of their official functions, and they may not be obliged to give evidence. 131 The security of the missions is either to be guaranteed by the Host State,132 or is a matter for the missions themselves which are therefore authorized to take the measures necessary for self-defence which may include the establishment of a military police.133 127 See Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights, 250. See also Wessel, n13, at 165. 128 See Aurel Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’, (2008) 19 EJIL 67, at 78–9. 129 See Naert, International Law Aspects of the EU’s and Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights, 250. 130 See, for instance, Art 6(3) of EU–Georgia Agreement (EUMM) (n109). 131 See Art 6 (n112). 132 See, for instance, Art 10 of EU–Georgia SOMA (EUMM) (n109). 133 See, for instance, Art 13 of EU–Gabon SOFA (EUFOR RD Congo) (n115).

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The SOFAs also provide for the identification of the mission’s forces and personnel, the rights of the mission to unrestricted communication within and between its facilities, the support which the Host State must provide from everyday practical issues (such as finding suitable accommodation) to other issues which may arise: the Host State, ‘within its means and capabilities […] shall assist in the preparation, establishment, and execution of and support for the operation’.134 While not all SOFAs provide for their termination (for instance, the recent ones related to military operations do not),135 most of them do. The period following written notification which is required for termination to take effect varies from fortyfive days136 to sixty days (which is provided in most agreements) to six months.137 Among the SOFAs concluded by the EU, it is interesting to note an agreement with Georgia on the status in this country of the EU Special Representative for the South Caucasus and his/her support team.138 This is a brief agreement which follows the structure of SOFAs, and applies similar provisions about immunities and privileges at the level accorded by the Vienna Convention. It is noteworthy that the provision ensuring access to borders, which is standard in SOFAs concluded by the EU, confines it to the northern, eastern and southern borders of Georgia. An interesting provision in SOFAs is about local contracting. Some of the earlier ones provide that the mission ‘shall endeavour, to the maximum extent possible, to contract locally for services, goods and personnel, subject to [its] requirements’.139 In certain cases, but not all,140 the Council Decisions concluding them state in their preamble that the procurement of goods and services should comply with the principles of transparency, proportionality, equal treatment, and non-discrimination.141 One of the interesting aspects of the agreements is that they provide no indication as to whether responsibility is to be borne by the Union or the Member States.142 This is entirely consistent with the fact that it is the Union which is one of the contracting parties.Their provisions on dispute settlement refer to the Union exclusively. These provisions are not uniform: the first Agreement, with FYROM, was silent on this issue, whereas subsequent agreements provided for a Joint Coordination Group; a body composed of representatives of the mission and the

134

See Art 10(3) of the SOFA with Chad (n112). Interestingly enough, there is no such provision in the Agreement with Guinea-Bissau either (n110). 136 See the Agreement with FYROM (n120). 137 See Agreement with Georgia (EUMM) (n109). 138 See n109. 139 See, for instance, Art 11(4) of the EU–DRC Agreement (n116). 140 See for instance Council Dec. 2004/75/CFSP concluding the EU–FYROM Agreement (EUPOL PROXIMA) (n119), and Council Dec. 2003/222/CFSP concluding the EU–FYROM Agreement (n120). 141 See Council Dec. 2005/680/CFSP concluding the EU–Congo Agreement (EUPOL KINSHASA) (n116), and Council Dec. 2004/924/CFSP concluding the EU–Georgia Agreement (EUJUST THEMIS) (n118). 142 See Wessel, n13, at 164 et seq. 135

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competent authorities of the Host State and entrusted to tackle any issues related to their application. As for the interpretation of the Agreements, this is to be settled exclusively by diplomatic means between the Host State and EU representatives. Later SOFAs omit the reference to the Joint Coordination Committee, while still providing for joint examination of issues by representatives of the two parties. Similar considerations apply to their provisions on claims for death, injury, damage, and loss. In relation to any acts related to operational necessities or caused by activities in connection with civil disturbance or protection of the mission, they exclude any liability. For other activities, as well as death of or injury to persons and for damage to or loss of the mission’s property, they set out a three-stage procedure aiming to settle any ensuing disputes.143 The absence of any reference to the division of responsibility between the Union and its Member States also follows from one of the main tenets of the system of EU external relations, namely the internal division of competence between the Union and the Member States. It is recalled that in the late 1970s, the Court of Justice held that ‘it is not necessary to set out and determine, as regards other parties to the Convention, the division of powers […] between the Community and the Member States, particularly as it may change in the course of time. It is sufficient to state to the other contracting parties that the matter gives rise to a division of powers within the Community, it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene’.144 This extract is from a ruling rendered in the context of the European Atomic Energy Community,145 and it is about competence, rather than responsibility. However, its logic, namely the internal character of the arrangements implied by the Union’s idiosyncratic constitutional configuration, is the same. This is not to say that the Union’s interlocutors have been untroubled by the ambiguity, which often characterizes the determination of responsibility and its allocation within the complex system of EU external relations.146

143 This refers to reaching an amicable settlement, the deliberation of a claims commission, composed equally by representatives of the mission and the Host State, and an arbitration tribunal. For claims below a specific amount, provision is made for settlement by diplomatic means between the Host State and the High Representative. The detail in which SOFAs deal with this issue varies: it is mainly the agreements in military operations, as well as those with Georgia and Guinea-Bissau, which refer to arbitration, but the Agreement with Cameroon is considerably less detailed, with no reference to specific figures, possibly because its subject matter was the transit, rather than the establishment, of EUFOR Tchad forces (see Art 15, n112). 144 Ruling 1/78 [1978] ECR 2151, para 35. 145 The ruling addressed the question of whether the conclusion of the Draft Convention of the International Atomic Energy on the Physical Protection of Nuclear Materials, Facilities and Transports was compatible with EAEC. 146 See the analysis in Malcolm Evans and Panos Koutrakos (eds), The International Responsibility of the European Union—European and International Perspectives (Oxford: Hart Publishing, 2013), (forthcoming).

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Agreements on security procedures for the exchange of classified information The conduct of the security and defence policy requires the production, handling, transfer, and storage of information which is sensitive. The Council has adopted internal security regulations aiming to ensure a degree of confidentiality.147 This measure refers specifically to the CSDP in the context of which the confidentiality of classified information is particularly relevant. The effective conduct of CSDP missions requires the provision of information to third States which participate in specific missions, as well as the handling of information supplied by them. In order to facilitate this exchange by ensuring the confidentiality of classified information, the EU has negotiated and concluded specific agreements with fifteen third States, and three international organizations. These are, in chronological order: NATO,148 Norway,149 FYROM,150 Bulgaria,151 Romania,152 Ukraine,153 Croatia,154 Iceland,155 United States,156 Switzerland,157 European Space Agency,158 Russia,159 Israel,160 Australia,161 Liechtenstein,162 Montenegro,163 Serbia,164 and the Organisation for Joint Armaments Cooperation.165 These agreements were concluded under ex Articles 24 TEU and 38 TEU,166 except for the one with NATO which was concluded solely under Article 24 TEU. They have common structure and content.Their objectives are set out in the vaguest and most cursory terms: there is no reference to the Common Security and Defence Policy, nor to the possibility of the participation of the third States in question in its missions. Instead, the conclusion of the Agreements was deemed necessary in the 147 Council Dec. 2011/292/EU on the security rules for protecting EU classified information [2011] OJ L 141/17. This repeals Council Decision 2001/264/EC adopting the Council’s security regulations [2001] OJ L 101/1. 148 [2003] OJ L 80/36, concluded by Council Dec. 2003/211/CFSP [2003] OJ L 80/35. 149 [2004] OJ L 362/29, concluded by Council Dec. 2004/843/CFSP [2004] OJ L 362/28. 150 [2005] OJ L 94/39, concluded by Council Dec. 2005/296/CFSP, JHA [2005] OJ L 94/38. 151 [2005] OJ L 118/53, concluded by Council Dec. 2005/365/CFSP [2005] OJ L 118/52. 152 [2005] OJ L 118/48, concluded by Council Dec. 2005/364/CFSP [2005] OJ L 118/47. 153 [2005] OJ L 172/84, concluded by Council Dec. 2005/481/CFSP [2005] OJ L 172/83. 154 [2006] OJ L 116/74, concluded by Council Dec. 2006/317/CFSP [2006] OJ L 116/73. 155 [2006] OJ L 184/35, concluded by Council Dec. 2006/467/CFSP [2006] OJ L 184/34. 156 [2007] OJ L 115/30, concluded by Council Dec. 2007/274/JHA [2007] OJ L 115/29. 157 [2008] OJ L 181/58, concluded by Council Dec. 2008/568/CFSP [2008] OJ L 181/57. 158 [2008] OJ L 219/59, concluded by Council Dec. 2008/667/JHA [2008] OJ L 219/58. 159 [2009] OJ L 155/57, concluded by Council Dec. 2010/348/EC [2010] OJ L 155/56. 160 [2009] OJ L 192/63, concluded by Council Dec. 2009/558/CFSP [2009] OJ L 192/63. 161 [2010] OJ L 26/31, concluded by Council Dec. 2010/53/CFSP [2010] OJ L 26/30. 162 [2010] OJ L 187/2, concluded by Council Dec. 2010/404/CFSP [2010] OJ L 187/1. 163 [2010] OJ L 260/2, concluded by Council Dec. 2010/587/CFSP [2010] OJ L 260/1. 164 [2011] OJ L 216/2, concluded by Council Dec. 2011/514/CFSP [2011] OJ L 216/1. 165 [2012] OJ L 229/2, concluded by Council Dec. 2012/486/CFSP [2012] OJ L 229/1. 166 However, the Council Decisions concluding them refer only to CFSP, except for the one concluding the EU–FYROM Agreement which refers both to CFSP and JHA (n150), and the one concluding the EU–USA Agreement which refers only to JHA (n156). Rather bizarrely, the measure concluding the agreement with Russia refers to EC (n159).

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context of ‘the need to develop cooperation between the Parties on matters of common interest, especially in the sphere of security’.167 The Agreement with FYROM also refers to the commitment of both Parties to the stabilization and association process as well as the future accession of this State to the EU. The Agreement with NATO is more detailed in its objectives. This is hardly surprising in the light of the defence nature of the organization and the mutual defence commitment of its members, as well as a host of European Council Conclusions which refer to the need for increased cooperation between the two organizations.168 The preamble to the EU– NATO Agreement states that the EU objectives in the area of military capabilities and those regarding NATO’s defence capabilities are mutually reinforcing.169 The Agreements on the security of classified information cover any information or material which has been designated by a security classification as requiring protection against unauthorized disclosure. The Agreements impose duties on the Council and its General Secretariat, and on the Commission. They also cover the CFSP High Representative who was then also the Secretary General of the Council, a denomination which is mentioned in the Agreements. Following the entry into force of the Lisbon Treaty on 1 December 2009, it is the High Representative who is bound by the Agreements, and the fact that she is no longer the Secretary General of the Council does not affect her responsibility in handling classified information. It is interesting that the European Parliament should not be mentioned, as its participation in the conduct of the Union’s security and defence policy and the area which was covered by the third pillar under the pre-Lisbon constitutional constellation would not require it to handle confidential information originating in a third State. The Agreements impose four main obligations on the parties: – to protect and safeguard classified information, – to ensure that classified information provided or exchanged keeps the security classification given to it by the providing party in accordance with the security regulations of the receiving party, – not to use such classified information for purposes other than those established by the originator and those for which the information is provided or exchanged, – not to disclose such information to third parties (including any other EU institution or entity other than the three mentioned above) without the prior consent of the originator. Responsibility for overseeing the implementation of the Agreements falls, for the EU side, on the Secretaries-General of the Council and the Commission. To this

167

This is a phrase which appears in the preamble to all Agreements examined in this section. The preamble to the EU–NATO Agreement refers to Feira, Nice, Gothenburg, and Laeken European Council conclusions. 169 The issue of defence capabilities and the various initiatives for their development is examined in Ch 9. 168

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effect, they are required, under Articles 11 and 12 of the Agreements, to develop security arrangements for the protection and safeguarding of classified information provided to the EU by the third State. Any differences between the parties about the interpretation and application of the Agreement are dealt with by negotiation. Each Agreement provides for its amendment at the request of either of the parties and subject to mutual agreement, and its termination following six months’ notice in writing. There is a degree of variation in the content of the Agreements which becomes apparent from a closer look at those with the United States and with Russia. They provide for more detailed rules on a number of issues, including the security classifications of the information in question, personnel security clearance, transfer of custody, security of facilities and establishments where classified information is kept, the release of classified information to contractors, visits to facilities and establishments of the Parties, reciprocal security visits, downgrading and declassification, and costs incurred in the implementation of the Agreements. Furthermore, both Agreements include a provision about reciprocal consultations between the competent authorities (for the EU, the Security Office of the Council General Secretariat, and the European Commission Security Directorate) in order to assess the effectiveness of the measures taken under the relevant rules. There is also variation between these two Agreements. The EU–USA one, for instance, makes its termination subject to ninety days’ written notice, that is, half of the period provided for in the other Agreements, including the one with Russia. The latter has certain provisions which distinguish it further from all other Agreements. For instance, it requires that each Party should return or destroy carriers of information received from the other Party when required to do so in writing’.170 It also provides that each Party shall decide on the release of classified information to the other Party ‘on a case-by-case basis according to its own security interests and in accordance with its own laws or regulations’.171 And as if the message has not been brought home, it continues: ‘[n]othing in this agreement shall be regarded as a basis for mandatory or generic release of classified information or certain categories of information between the Parties’.172

Framework participation agreements The European Union has concluded framework agreements with twelve countries (in chronological order: Ukraine,173 Canada,174 Bulgaria,175 Iceland, Norway and

170 172 173 174 175

171 Art 4 (3)(d) of EU–Russia Agreement, (n159). See n159, Art 4 (2). See n159. [2005] OJ L 182/29, concluded by Council Dec. 2005/495/CFSP [2005] OJ L 182/28. [2005] OJ L 315/21, concluded by Council Dec. 2005/851/CFSP [2005] OJ L 315/20. [2005] OJ L 46/50, concluded by Council Dec. 2004/134/CFSP [2005] OJ L 46/49.

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Romania,176 Turkey,177 Montenegro,178 United States of America,179 Serbia,180 New Zealand,181 and Albania182). These aim to govern the participation of these countries in any civilian or military operations in which the Union invites them to participate. The conclusion of such agreements was deemed necessary in order to tackle the practical difficulties which the negotiation of separate agreements relating to specific operations raise, including delays which may have an impact on the effectiveness of the mission.183 The negotiation and conclusion of framework agreements is carried out within a specific political context. The agreements with Canada, Bulgaria, Romania, Norway, Iceland, and Turkey need to be seen in the context of the Union’s effort to formalize the modalities for the participation of non-EU European NATO members in EU-led operations. The Agreements refer to Presidency Conclusions of the Brussels European Council (24–25 October 2002), as well as those of the Nice European Council (7–9 December 2000). The Agreement with Ukraine refers to the Seville European Council (21–22 June 2002). These agreements have the same structure and cover the same issues as the agreements about the participation of third countries in CSDP operations. They affirm the decision-making autonomy of the EU, they provide for the conduct of the participating forces in accordance with the EU documents governing the mission, they elaborate on the status of the participating personnel and forces with reference to the status of forces agreement concluded between the EU and the country in which the operation takes place, they provide for the protection of EU classified information by the participating State, they raise the possibility of implementing measures which may be agreed upon between the CFSP High Representative and the relevant authorities of the third State, they refer to the termination of the contract by either party in the event of non-compliance pursuant to one month’s notice, and they provide for dispute settlement by diplomatic means, as well as the termination of the agreement by either party six months after written notice has been given to the other. There are certain differences in these agreements. In relation to the protection of classified information, the Agreements with Canada and Turkey impose an obligation on the Union to give classified information from these two States protection 176 [2005] OJ L 67/2 (Iceland), [2005] OJ L 67/8 (Norway), [2005] OJ L 67/14 (Romania), all concluded by Council Dec. 2005/191/CFSP [2005] OJ L 67/1. 177 [2006] OJ L 189/17, concluded by Council Dec. 2006/482/CFSP [2006] OJ L 89/16. 178 [2011] OJ L 57/2, concluded by Council Dec. 2011/133/CFSP [2011] OJ L 57/1. 179 [2011] OJ L 143/2, concluded by Council Dec. 2011/318/CFSP [2011] OJ L 143/1. 180 [2011] OJ L 163/2, concluded by Council Dec. 2011/361/CFSP [2011] OJ L 163/1. 181 [2012] OJ L 160/2, concluded by Council Dec. 2012/315/CFSP [2012] OJ L 160/1. 182 [2012] OJ L 169/2, concluded by Council Dec. 2012/344/CFSP [2012] OJ L 169/1. 183 See Council Doc 6040/04 (6 February 2004) which points out that ‘the negotiations with all third states each time separately are very time consuming and difficult to finalise in time, in particular during operations of short duration’. See Sari, n13, at 60–1.

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appropriate to its classification and equivalent to the standards established in the regulations for EU classified information.184 This clause renders what has been a unilateral obligation mutual. In this respect, it distinguishes these two agreements not only from the remaining framework agreements, but also from the other agreements which govern the participation of third countries in specific CSDP missions. There is also a subtle difference in the formulation of the clause set out in the Agreement with Canada. The obligation imposed on the latter is to ‘respect the basic principles and minimum standards’ of Council Decision 2001/264/EC,185 and to ensure that its personnel ‘respect further guidance issued by EU authorities, albeit without prejudice to the exercise of the full command of the Canadian authorities over their forces and personnel’.186 This wording is somewhat looser than that in which the other Agreements formulate this duty on the authorities of the third States in question. In terms of the substantive content, the differences in wording which one finds in the Agreements about the participation of third States in specific missions are present here, too. The Agreement with Canada, for instance, qualifies the provision about the conduct of Canadian forces and personnel solely with the interests of the EU mission in mind, with a reference to the existence of the full command of Canadian authorities.187 This clause in the other framework agreements is not accompanied by this qualification. The Agreement with the United States also differs from other framework agreements. It sets the tone in the preamble. While all framework agreements dedicate this part to the practicalities of the partner country being invited to participate in a CSDP mission, the preamble to the EU–US Agreement makes grand statements about the ‘share[d] desire to foster peaceful reconciliation and to facilitate reconstruction and stabilisation through burden sharing in crisis management operations’.188 It is also confined to civil operations. In addition to addressing the practical difficulties which the negotiation and conclusion of participation agreements would entail in relation to individual CSDP missions, the emphasis on framework agreements may be seen in the context of the more general effort of the Union to streamline its activities in EU external relations. It is recalled, for instance, that, in the area of sanctions against third countries, the Council approved in December 2003 a set of guidelines on implementation and evaluation of sanctions in the framework of CFSP.189 This lays down specific measures aiming to minimize deviations from the applications of sanctions regimes, regularize their implementation and enhance their effectiveness.190 This increasing focus on streamlining is also evident in the Union’s approach to negotiating participation agreements as well as SOFAs and SOMAs in 184 186 189 190

185 Art 4 (2) of the Agreements with Canada (n174) and Turkey (n177). See n174. 187 188 See n174, Art 4 (1). See n174, Arts 6 (1) and 10(1). N179, third recital. Council conclusions 15535/03 (PESC 356) of 8 December 2003. See Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), at 446–8.

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relation to which it has developed model agreements similar to those used by States with experience in the area.191

Transfer agreements Finally, in the context of Operation ATALANTA, the Union has concluded transfer agreements with Kenya,192 Seychelles,193 and Mauritius,194 while the agreements on the participation of Croatia and Montenegro have an annex attached to them laying down a set of provisions about transfer of persons.195 It is also negotiating an agreement with Tanzania. These agreements are about the conditions of transfer of suspected pirates and associated seized property from the EU force to the partner country, as well as the conditions of detention of suspected pirates after transfer. Their conclusion is deemed necessary on political grounds: the Member States are not keen to bear responsibility for suspected pirates during their trial and also later on, as they suspect that it would be highly unlikely that they would be able to send them back successfully. The problem of dealing with suspected pirates is so acute for the international community, that the proposal of the establishment of a special international tribunal has been mooted, but has not received enthusiastic response. The central issue in the transfer agreement is the treatment of the suspects by the third country. All agreements contain detailed provisions about the prohibition of torture, and cruel and inhumane and degrading treatment or punishment, the prohibition of arbitrary detention, and the requirement to conduct a fair trial. In the most recent Agreement, with Mauritius, these are accompanied by references to international human rights law, including the 1966 International Covenant on Civil and Political Rights, and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.The concern about compliance with fundamental human rights is also illustrated by other provisions, such as the right of national and international humanitarian agencies to be allowed to visit, at their request, persons transferred under the Agreement.196

191 See, for instance, Council Doc 17141/08 (15 December 2008) on SOMAs. For a detailed analysis, see Sari, n128, at 83 et seq. 192 [2009] OJ L 79/51, concluded by Council Dec. 2009/293/CFSP [2009] OJ L 79/47. Kenya has terminated the Agreement, but this does not seem to have made much different in practice, as it is still cooperating with the EU on the matter. 193 [2009] OJ L 323/14, concluded by Council Dec. 2009/916/CFSP [2009] OJ L 323/12. 194 [2011] OJ L 254/3, concluded by Council Dec. 2011/640/CFSP [2011] OJ L 254/1. 195 For a detailed analysis, see Daniel Thym, ‘Piracy and Transfer Agreements concluded by the EU’, in Panos Koutrakos and Achilles Skordas, (eds), The Law and Practice of Piracy at Sea—EU and International Perspectives (Oxford: Hart Publishing, 2013), (forthcoming). See also Robin Geiss and Anna Petrig, Piracy and Armed Robbery at Sea: the Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (Oxford: OUP, 2011), 199–206. 196 Art 6(6) of the Agreement with Seychelles.

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There are also detailed provisions about the assistance to be given by the EUNAVFOR authorities to the country to which suspected pirates are transferred. This includes various practical aspects of both the pre-trial and trial processes, such as processing of evidence, production of witness statements, and provision of interpreters. In the case of Seychelles, it also includes the provision of technical and financial support for various aspects of the criminal system of the third country, such as the training of investigators and prosecutors.197 Any dispute about the interpretation and application of the transfer agreements are to be settled by diplomatic means. The practical implications of these Agreements and the burden which the Union’s partner country undertakes are substantial. For instance, the Government of Seychelles has stated that its prison capacity is so small that it would not be able to detain more than fifty Somali pirates.198 This reality has been accepted by the main international actors who have sought to address this problem in different ways. For instance, following the London Conference on Somalia of February 2012, it was agreed that Seychelles could further transfer convicted Somali pirates to the breakaway region of Somaliland, where they would serve out their sentences in a special prison funded by the United Nations Development Programme.

Conclusion This chapter has provided a selective overview of the procedural and substantive issues which underlie the treaty-making activities of the Union in the area of CSDP, and set them out in the light of the broader power structures reflected in the constitutional arrangements enshrined in the Lisbon Treaty.The picture which emerges is not that of a clearly thought out, formalized policy. Instead, treaty-making has been carried out as a gradually evolving practice, with individual agreements couched in terms broad enough to reflect the idiosyncratic constitutional arrangements underpinning the CSDP, and flexible enough to address specific considerations which arise in individual missions and from the demands of negotiating partners. As this practice has developed, it has tended to acquire some characteristics of other Union policies, and to streamline its different strands in the light of practical experience and greater familiarity with the problems of deploying forces in non-member States in varying states of disorder. 197 198

Art 7(3). http://www.somaliareport.com/index.php/post/3182 (last accessed on 29 October 2012).

8 Interactions between CSDP and other strands of external action

Introduction The analysis of the Common Security and Defence Policy so far has revealed that security has been construed in broad terms not only in relation to the foundational policy documents such as the European Security Strategy but also on the ground. This gives rise to a constant interaction between security and defence and the other strands of the Union’s external action. This state of interdependence raises three questions. First, how are these interactions designed in policy terms? Second, how are they managed in practical terms? Third, what is their impact on the supervision by the European Court of Justice? This chapter will examine these interactions by focusing on the links between CSDP and the two policies which feature more prominently in its conduct, namely development cooperation and the Area of Freedom, Security, and Justice (AFSJ).

The nexus between CSDP and development cooperation Development cooperation is one of the most important external policies of the European Union as the latter provides over half of all development aid worldwide.1 Since the Maastricht Treaty, the competence to carry it out has been express, and Article 4(4) TFEU describes it as shared. This provision also adds that its exercise by the Union ‘shall not result in Member States being prevented from exercising theirs’.2 The primary rules governing the conduct of development cooperation are laid down in Articles 208–211 TFEU. Article 218(1) TFEU provides that the policy will be carried out ‘within the framework of the principles and objectives of the Union’s external

1 http://ec.europa.eu/europeaid/what/development-policies/european-consensus/index_en.htm (last accessed on 29 October 2012). 2 This also applies to humanitarian aid. For the shared competence on development cooperation, see Case C-268/94 Portugal v Council [1996] ECR I-6177. See also Piet Eeckhout, EU External Relations Law 2nd edn (Oxford: OUP, 2011), 130–6, and Panos Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), 153–60.

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actions’.3 As the analysis in Chapter 2 showed, one of the principal innovations of the Lisbon Treaty in the area of external relations is the articulation of a set of common principles and objectives which govern the conduct of all strands of the Union’s external action, that is, including CSDP and development cooperation. It is recalled that the principles are set out in Article 21(1) TEU and include democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. As for the objectives, they are set out in Article 21(2) TEU, are of a considerably wide range, and may be divided as follows: – political: to safeguard the Union’s values, fundamental interests, security, independence, and integrity; to consolidate and support democracy, the rule of law, human rights, and the principles of international law; to promote an international system based on stronger multilateral cooperation and good global governance; – security: to preserve peace, prevent conflicts, and strengthen international security, in accordance with international law, including those relating to external borders; – economic: to foster the sustainable economic, social, and environmental development of developing countries, with the primary aim of eradicating poverty; to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; – social: to help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; to assist populations, countries, and regions confronting natural or man-made disasters.4 However, Article 208(1) subparagraph 2 TFEU adds another layer to the relationship between development cooperation policy and the objectives of the Union’s external action: Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.

The first limb of the above subparagraph is significant in so far as it identifies an objective envisaged by Article 21(2) TEU to govern the entire range of the Union’s external action, and singles it out as the ‘primary’ objective of development cooperation. In doing so, it suggests that the other objectives set out in Article 21(2) TEU may be pursued by development cooperation measures, but only in so far as these are secondary, or, to use the term often used by the Court of Justice in its legal basis case law, ‘incidental’.5 3

4 Art 208(1), subpara 1 TFEU. See also the solidarity clause in Art 222 TFEU. See Case C-91/05 Commission v Council (re: ECOWAS) [2008] ECR I-3651, para 73. See also Opinion 2/00 (re: Cartagena Protocol on Biodiversity) [2001] ECR I-9713, Case C-281/01 Commission v Council (Re: Energy Star Agreement) [2002] ECR I-12049, and Case C-94/03 Commission v Council (re: Rotterdam Convention) [2006] ECR I-1. 5

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Put differently, in setting out the objectives of the Union’s development cooperation policy, Article 208 (1) TFEU carries out a two fold function: on the one hand, this is inclusive, as it establishes a bridge between development cooperation and the objectives governing all the other external policies of the Union; on the other hand, it is exclusive, as it rules out reliance upon Articles 208–211 TFEU for measures mainly concerned with objectives other than the fight against poverty. Neither of these functions should be underestimated.The former reflects a pragmatic understanding of the multifarious components of development, and their continuous interactions in an increasingly globalized international environment. Therefore, it puts forward a broad understanding of development policy. By placing it within the broader framework of the principles and objectives of the EU’s external action, it also seeks to ensure the consistency of the latter. The exclusionary function of Article 208(1) TFEU suggests that the scope of development cooperation is not unlimited, and that its broad understanding should not amount to reliance upon its rules and procedures to pursue the primary objectives of other EU policies. This latter point becomes of acute significance in the case of CFSP and CSDP, as they have a distinct position in the Union constitutional order. The formulation adopted at Lisbon in relation to development cooperation has also been adopted in order to place the other Union’s external policies within the framework of its overall external action.While all are to be conducted ‘in the context of the principles and objectives of the Union’s external action’,6 each has its own specific objectives defined therein. Humanitarian aid, for instance, ‘shall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations’.7 The Common Commercial Policy ‘shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers’.8

Policy interactions between development cooperation and CSDP The analysis in Chapter 4 examined the Union’s understanding of security and the challenges it raises in an increasingly interdependent international environment. One of the main tenets of this understanding is the broad construction of security, removed from the traditional associations with protecting territorial integrity and, instead, in close links with other policies. Development features prominently in the European Security Strategy which states that security ‘is a precondition of development’ and points out that ‘[c]onflict not only destroys infrastructure, including social infrastruc6 The term ‘in the context of ’ is also used in relation to the Common Commercial policy: see Art 207 (1) TFEU. 7 8 Art 214(1) TFEU. Art 206(1) TFEU.

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ture; it also encourages criminality, deters investment and makes normal economic activity impossible.A number of countries and regions are caught in a cycle of conflict, insecurity and poverty’.9 The Strategy then defines the instruments for crisis management and conflict prevention at the Union’s disposal as covering political, diplomatic, military and civilian, trade and development activities.10 Given the close linkages between security and development policy, the Union expresses its determination to combine them in order to attribute added value to its international role:11 The challenge now is to bring together the different instruments and capabilities: European assistance programmes and the European Development Fund, military and civilian capabilities from Member States and other instruments. All of these can have an impact on our security and on that of third countries.

This raises, then, the question of the coherence of the manner in which the Union relied upon these instruments: ‘[d]iplomatic efforts, development, trade and environmental policies, should follow the same agenda. In a crisis there is no substitute for unity of command’.12 The same focus appears in the 2008 Report on the Implementation of the European Security Strategy which states that ‘[w]e have worked to build human security, by reducing poverty and inequality, promoting good governance and human rights, assisting development, and addressing the root causes of conflict and insecurity. The EU remains the biggest donor to countries in need. Long-term engagement is required for lasting stabilisation’.13 In fact, the emphasis on the nexus of security and development is even more pronounced in the 2008 Report which dedicates a specific section to it. Among others, it states the following:14 Conflict is often linked to state fragility. Countries like Somalia are caught in a vicious cycle of weak governance and recurring conflict. We have sought to break this, both through development assistance and measures to ensure better security. Security Sector Reform and Disarmament, Demobilisation and Reintegration are a key part of postconflict stabilisation and reconstruction, and have been a focus of our missions in Guinea-Bissau or DR Congo. This is most successful when done in partnership with the international community and local stakeholders.

The more the Union designs its security policy as a long-term instrument, the more pronounced the linkage between CSDP and development cooperation becomes. The 2008 Report states that ‘[p]reventing threats from becoming sources of conflict early on must be at the heart of our approach. Peace-building and longterm poverty reduction are essential to this’. 9 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 2.This is reinforced further below where it is stated that security ‘is the first condition for development’, at 13. 10 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 11. 11 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 13. 12 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 13. 13 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 2. 14 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003), 8.

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The same focus on the nexus between security and development underpins the foundational policy documents of development cooperation, albeit with a different point of emphasis. The European Consensus on Development is drawn up by the Council, the Commission, and the European Parliament, as well as the representatives of the governments of the Member States meeting within the Council.15 It sets out the main parameters of development policy and places it within the broader context of the Union’s other policies. It acknowledges that security and development ‘are important and complementary aspects of EU relations with third countries’, and adds the following:16 Within their respective actions, they contribute to creating a secure environment and breaking the vicious cycle of poverty, war, environmental degradation and failing economic, social and political structures. The EU, within the respective competences of the Community and the Member States, will strengthen the control of its arms exports, with the aim of avoiding that EU-manufactured weaponry be used against civilian populations or aggravate existing tensions or conflicts in developing countries, and take concrete steps to limit the uncontrolled proliferation of small arms and light weapons, in line with the European strategy against the illicit traffic of small arms and light weapons and their ammunitions.The EU also strongly supports the responsibility to protect. We cannot stand by, as genocide, war crimes, ethnic cleansing or other gross violations of international humanitarian law and human rights are committed. The EU will support a strengthened role for the regional and subregional organizations in the process of enhancing international peace and security, including their capacity to coordinate donor support in the area of conflict prevention.

As it refers to specific issues which are quite close to the security end of the policy spectrum, these extracts illustrate the central role of security in the Union’s understanding of development. There is also a shift of emphasis: while the starting point for the European Security Strategy was the role of security as a precondition for development, here the attention is evenly balanced:‘[w]ithout peace and security development and poverty eradication are not possible, and without development and poverty eradication no sustainable peace will occur’.17 The European Consensus on Development points out that ‘[w]ithin their respective actions, they contribute to creating a secure environment and breaking the vicious cycle of poverty, war, environmental degradation and failing economic, social and political structures’.18 It views conflict prevention and State fragility as central aspects of development policy, and refers specifically to non-proliferation, and the multidimensional aspects of poverty eradication. Therefore, the EU institutions and Member States construe both security and defence, and development policies broadly and set out a relationship which works both ways: security is a precondition for development, and development is essential for security. The intrinsic link between security and development is stressed in other more specific documents too. For instance, the EU Strategy for Africa underlines it: the 15 17

16 [2006] OJ C 46/1. [2006] OJ C 46/1, para 47. 18 [2006] OJ C 46/1, para 40. [2006] OJ C 46/1, para 37.

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references to security are numerous and the document also identifies specific areas where security is a major challenge for the Union.19 In addition to the references to security generally, there are also quite a few references to CSDP in particular. The Strategy for Africa views support for peace operations in Africa as essential for the attainment of the Millennium Development Goals. In fact, the way in which this is spelled out is noteworthy: following references to the effective implementation of the Union’s financial instrument for Africa, CSDP action emerges as the natural extension of what the Union already achieves on the basis of its more traditional instruments. It follows from this that both security and development policy-makers share the conviction that the linkages between the two areas are inherent as well as deep. The question which is then raised is how these policy statements are translated in specific initiatives.

The security-development nexus as a matter of practice The practice of specific interactions between CSDP and development cooperation is illustrated clearly by the Union’s external financing mechanism. Up until 2006, the Union financed its external activities on the basis of a cumbersome system of many financing instruments. In 2006, the legislature rationalized this system by introducing a smaller number of instruments whose objectives are more clearly defined and their decision-making procedure simpler.20 These have been applicable for the 2006–2013 financial framework. Therefore, they are going to expire on 31 December 2013.21 For the purpose of this analysis, this section will focus on the Instrument for Stability (IfS).22 The IfS is established under Regulation 1717/2006,23 and was launched on 1 January 2007. Its aim is to ‘undertake development cooperation measures, as well 19 See also COM (2005) 489 fin EU Strategy for Africa: Towards a Euro-African Pact to accelerate Africa’s development (Brussels, 12 October 2005). 20 See Sandra Bartelt, ‘The Institutional Interplay Regarding the New Architecture for the EC’s External Assistance’, (2008) 14 ELJ 655. 21 The Commission has put forward its proposals for their reform for the period 2014–2020 in COM (2011) 842 final Proposal for a Regulation establishing common rules and procedures for the implementation of the Union’s instruments for external action (Brussels, 7 December 2011). 22 The other instruments are: the European Neighbourhood and Partnership Instrument (Reg 1638/2006 [2006] OJ L 310/1), the Instrument for Pre-accession Assistance (Reg 1085/2006 [2006] OJ L 210/82), the Instrument for Development Co-operation (Reg 1905/2006 [2006] OJ L 378/41), the Instrument with Industrialised Countries (Reg 1934/2006 [2006] OJ L 405/41, the Instrument for Nuclear Safety Cooperation (Reg 300/2007 [2007] OJ L 81/1), and the European Instrument for Democracy and Human Rights (Reg 1889/2006 [2006] OJ L 386/1). In addition, there is the Peace Facility for Africa which was established in 2004 (Decision 3/2003 of the ACP-EC Council of Ministers on the use of resources from the long-term development envelope of the ninth EDF for the creation of a Peace Facility for Africa [2003] OJ L 345/108). Funded by the European Development Fund, it covers costs incurred by the African Union and African regional organizations deploying their peace-keeping forces in Africa, but does not cover military and arms expenditure. 23 [2006] OJ L 327/1.

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as financial, economic, and technical cooperation measures with third countries’.24 Its legal bases are the Treaty provisions on development cooperation and economic, financial, and technical cooperation with third countries.25 It applies in two cases. The first is short term: it refers to a situation of crisis or emerging crisis, and it aims ‘to contribute to stability by providing an effective response to help preserve, establish or re-establish the conditions essential to the proper implementation of Community’s development and cooperation policies’.26 The second is long term: it refers to a context of stable conditions for the implementation of EU cooperation policies in third countries, and aims ‘to help build capacity both to address specific global and transregional threats having a destabilising effect and to ensure preparedness to address pre- and post-crisis situations’.27 The IfS is of residual application: it funds measures ‘only to the extent that an adequate and effective response cannot be provided under [related Union financing] instruments’.28 In addition, it applies on the basis of the principle of complementarity. This operates on two levels. On the one hand, measures under IfS ‘may be complementary to, and shall be consistent with’ measures in the Common Foreign and Security Policy, and Police and Judicial Cooperation in Criminal Matters (governed by the second and third pillar respectively under the pre-Lisbon constitutional arrangements).29 On the other hand, such measures are complementary to other EU instruments for external assistance.30 There is also a third dimension, namely the consistency between assistance under IfS and national activities. It is for the Commission to ensure the consistency between IfS assistance and ‘the Community’s overall strategic policy framework for the partner country, and in particular with the objectives of the [Union funding] instruments . . . as well as with other relevant Community measures’.31 Therefore, close coordination is important and, to that effect, provision is made for a system of exchange of information between the Member States and the Commission. A closer look at the specific objectives of the IfS which may attract funding illustrates the link between the Instrument and the Union’s security and defence policy. As far as the short-term component is concerned, that is the crisis-related one, its application is envisaged in ‘a situation of urgency, crisis or emerging crisis, a situation posing a threat to democracy, law and order, the protection of human rights and fundamental freedoms, or the security and safety of individuals, or a situation threatening to escalate into armed conflict or severely to destabilise the third country or countries concerned’.32 The specific activities which may be covered are set out in a detailed manner in Article 3(2) of Regulation 1717/2006 and include: – the promotion of confidence-building, mediation, dialogue, and reconciliation, – the establishment and functioning of interim administrations, – the development of democratic, pluralistic state institutions, 24 26 29

Art 1(1). Art 1(2)(a). Art 1(3).

25

ex Arts 179(1) and 181a EC, now Arts 209(1) and 212 TFEU. 28 Art 1(2)(b). Art 2(1). 31 32 Art 2(1). Art 2(2). Art 3(1). 27

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– support for international criminal tribunals and ad hoc national bodies for the legal settlement of human rights claims, – the rehabilitation and reconstruction of key infrastructure, – civilian measures related to the demobilization and reintegration of former combatants into civil society, – measures mitigating the social effects of restructuring of the armed forces, – measures addressing the socio-economic impact on the civilian population of anti-personnel landmines, – measures addressing the impact on the civilian population of the illicit use and access to firearms, – measures ensuring the needs of women and children in crisis and conflict situations, – the rehabilitation and reintegration of victims of armed conflict, – the promotion of human rights and fundamental freedoms, – the promotion of equitable access to and transparent management of natural resources in a situation of crisis or emerging crisis, – addressing the impact of sudden population movements, – the development and organization of civil society, – responding to natural or man-made disasters and threats to public health. Such activities are funded on the basis of specific programming, as and when the Commission identifies a relevant need.The measures are adopted pursuant to Exceptional Assistance Measures, where the effectiveness of the measures is dependent on rapid or flexible implementation, or Interim Response Programmes in order to establish or re-establish the essential conditions necessary for the effective implementation of the Union’s external cooperation policies.These measures may last for up to twentyfour months. They constitute the majority of the funding available under the IfS (73%).33 This suggests that the primary function of the Instrument is crisis response.34 As for the long-term component of the IfS, it covers three types of activities: those aiming to address threats to law and order, to the security and safety of individuals, to critical infrastructure, and to public health; targeting biological, radiological, and nuclear materials or agents; and, pre- and post-crisis capacity building, including early warning, confidence-building, and reconciliation.35 Such activities are funded through multiannual strategy papers and annual action programmes.36 The relevant measures are adopted pursuant to Strategy Papers, which may be Country, Multi-country, or Thematic, and with due account for the Union’s priorities, the international situation and the activities of the main partners.37 33

Art 24. See S Bartelt, ‘The Institutional Interplay Regarding the New Architecture for the EC’s External Assistance’, 669. 35 36 Art 4. Arts 7 and 8. 37 Art 7(2) of Regulation 1717/2006.The process for the adoption of Strategy Papers provides for the interaction between the Union and third countries: according to Art 7(4), they are to be based, ‘where appropriate’, ‘on a dialogue with the partner country, countries or region concerned, including with civil society, so as to support national development strategies and to ensure the participation and involve34

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It follows from this overview that Regulation 1717/2006 provides a detailed, albeit broad, list of activities covered by the IfS. There is a clear security flavour in a number of them. However, there is no reference to military activities. In fact, the Commission’s proposal had included military monitoring and peacekeeping operations within the scope of IfS.38 This provision was dropped during the long process of the negotiation of the Regulation between the Commission, the Council, and the European Parliament.39 Instead, Article 3(2)(a) refers to the efforts undertaken by international and regional organizations, state and non-state actors in promoting confidence-building, mediation, dialogue, and reconciliation.40 This change reflects the concerns of the Council and the Member States that the scope of IfS should not impinge upon the scope of CSDP and the respective powers of the institutions in that area. The above notwithstanding, a number of the activities covered by the IfS are quite close to the hard end of the security spectrum. For instance, the demobilization and reintegration of former combatants into civil society, which is mentioned in Article 3(2)(f ) of Regulation 1717/2006, was one of the activities of the Aceh Monitoring Mission.41 Furthermore, in the context of the long-term component of IfS, reference is made to ‘strengthening the capacity of law enforcement and judicial and civil authorities involved in the fight against terrorism and organised crime’.42 The analysis in Chapter 6 showed the central role of this objective for a number of civilian missions carried out within the CSDP framework, such as the Police Missions in Bosnia and Herzegovina43 or the Former Yugoslav Republic of Macedonia.44 Moreover, it is worth mentioning the new CSDP mission for Sahel (EUCAP Sahel Niger) which is the first mission specifically designed to target terrorism.45 It is noteworthy that, the closer the activities to the security end of the spectrum, the more qualified the wording is of the relevant provision. For instance, Article 3(2)(h) refers to support for measures to address the socio-economic impact on the civilian population of anti-personnel landmines, unexploded ordnance or explosive ment of the partner country, countries or region’.There is also provision for Annual Action Programmes which set out the specific measures to be adopted on the basis of the Strategy Papers and Multi-annual Indicative Programmes. Finally, there is provision for Special Measures in cases of unforeseen needs and circumstances. 38 COM (2004) 630 final Proposal for a Regulation of the Council establishing an Instrument for Stability (Brussels, 29 September 2004) at 15. 39 The provision about the application of IfS to nuclear safety in the Commission’s proposal had the same fate. Instead, Regulation 300/2007 establishing an Instrument for Nuclear Safety Cooperation was adopted under the Euratom Treaty ([2007] OJ L 81/1). 40 See also Art 4(3) of Regulation 1717/2006 in relation to the long-term component of the IfS. 41 Established under Council Joint Action 2005/643/CFSP [2005] OJ L 234/13. See the analysis in Ch 6. 42 Art 4(1)(a) of Reg. 1717/2006. 43 Established under Joint Action 2005/824/CFSP [2005] OJ L 307/55. 44 Established under Council Joint Action 2003/681/CFSP [2003] OJ L 249/66. 45 Council Decision 2012/392/CFSP [2012] OJ L 187/48.

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remnants of war, and Article 3(2)(i) refers to similar measures for the illicit use of and access to firearms. Both provisions set the use of the IfS measures ‘within the framework of Community cooperation policies and their objectives’. They also seek to define the scope of the IfS activities more clearly: in the case of anti-personnel landmines, these cover risk education, victim assistance, mine detection, and clearance and stockpile destruction; in the case of firearms, they are limited to survey activities, victim assistance, raising public awareness, and the development of legal and administrative expertise and good practice. The complementarity between CSDP and activities funded by the IFS is expressly required under Regulation 1717/2006. It is also acknowledged as a matter of fact at policy level. For instance, the Council ‘recognised the relevance to [C]SDP of other EU operational activities. It particularly noted the Community funded activities including overall action of the Instrument for Stability’.46 These interactions emerge in different ways. At a general level, they may have an impact on the Union’s ability to carry out a CSDP mission. This is the case in relation to projects funded by the IfS which are focused on areas upon which CSDP civilian missions may draw. For instance, for the period between 2008 and 2011, the IfS funded the training of 1,894 police officers from different Member States in response to the eruption of a crisis in a third country.47 IfS measures may also have an indirect impact on specific CSDP initiatives. For instance, the former include a project jointly organized by the EU and the United Nations Office on Drugs and Crime supporting the judicial system in countries such as Kenya and the Seychelles. This is viewed as helpful for the Union in its negotiation with countries in the region of transfer agreements, which are a central component of the conduct of EUNAVFOR–Atalanta.48 There are also IfS projects that are linked to specific CSDP missions in a direct manner. A brief overview of some of these interactions in areas where the EU has carried out CSDP operations and missions is useful as it conveys how the principle of policy interactions is reflected by the practice on the ground. Initiatives funded by the IfS may be carried out in parallel to CSDP missions. In Afghanistan, the IfS provided urgent support for the Government in order to draw up and implement a reform programme for the Supreme Court and the Attorney General’s Office and covering issues such as recruitment and personnel systems, and pay and grading for judges and prosecutors. In addition, it aimed to provide support for the development of a national legal aid system in the Ministry of Justice. As for the CSDP mission, the IfS and the other EU measures ‘in the justice sector are 46

Council Conclusions on ESDP (Brussels, 17 November 2009) at para 127. See EEAS, ARES (2011) 1466618 Lessons and best practices for CSDP from the European Union Police Force Training (EUPFT) 2008–2010 (Brussels, 12 December 2011).This project was mentioned in External Affairs Council Conclusions of 17 November 2009, para 96. 48 See COM (2012) 405 final 2011 Annual Report on the Instrument for Stability (Brussels, 24 July 2012) at 8. See also Council Conclusions on ESDP (Brussels, 17 November 2009) at para 25. For the analysis of such Agreements, see Ch 7. 47

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designed to dovetail with the [C]SDP police mission, especially with regard to the interface between the police and the criminal justice system’.49 In the Central African Republic, the Commission funded a project providing institutional and technical support to the main ministries and institutions involved in Security Sector Reform. Another project provided financial support for measures facilitating the retirement of army personnel, notably through a comprehensive retirement package negotiated with the authorities.These were complementary not only to the CSDP military mission in the area (EUFOR Tchad/RCA), but also the regional military mission supported by the African Peace Facility, and EU Member States contributions. In the Democratic Republic of Congo, IfS projects were focused on peace and stabilization in eastern Congo through, among others, the organization of seminars and studies on reconciliation and security and sector reform, and the promotion of confidence-building measures between DRC and its neighbours by improving cross-border cooperation on patrolling national parks straddling the borders of the DRC, Rwanda, and Uganda. It also supported the deployment of Congolese national police in eastern DRC, including in areas which had often been locations for military-type operations. In the context of this project, the Commission noted the input by the EUPOL and EUSEC CSDP missions ‘wherever complementarities and scope for synergies may exist’.50 A project developed in close coordination with EUSEC RD Congo was about Community assistance to twelve integrated brigades aiming to contribute to improve living conditions and security for their families by providing social assistance to family dependants and host communities. The project targeted around 90,000 dependants as well as the local host populations. It is recalled that the main achievement of the EUSEC RD Congo was the establishment of a chain of payments system for the Congolese army, that is, an area of activity related to the IfS project. In the Palestine Territories, the Commission funds a number of measures aiming to enhance capacity-building and, among others, it provides equipment for the Palestinian Civil Police. In Kosovo, the Commission financed projects about vetting judges and prosecutors in a transparent and objective manner. Following the adoption of a methodology agreed upon by all the actors involved in judicial reform in the area (including the EU, the US, the UN, and the Kosovo authorities), judges and prosecutors are being vetted in terms of their moral integrity, legal qualifications, and professional experience.This project is complementary not only with the Commission’s programmes for capacity building in Kosovo, but also with the CSDP rule of law mission in Kosovo. 49 SEC (2009) 932 Commission Staff Working Paper Accompanying Annual report from the European Commission on the Instrument for Stability in 2008. [COM (2009) 341], at 7. 50 SEC (2009) 932 Commission Staff Working Paper Accompanying Annual report from the European Commission on the Instrument for Stability in 2008. [COM (2009) 341], at 18.

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The IfS also funds initiatives which may predate CSDP missions. In GuineaBissau, the Commission launched a programme in October 2007, that is nine months prior to the establishment of the CSDP mission (EU SSR GUINEA-BISSAU) providing technical assistance for the security sector reform through a team of three experts tasked to advise the national Ministry of Defence on the appropriate institutional framework, on the required legal reforms, on drawing up the instruments necessary for compensation and reintegration, on pension schemes for former security personnel, as well as on the preparation of censuses. The Commission noted that the immediate deployment of the Team helped to introduce EU SSR GUINEA-BISSAU to local authorities. Furthermore, initiatives funded by the IfS may be undertaken once a CSDP mission has been completed. In November 2008, that is after the conclusion of the CSDP mission (AMM Aceh), the Commission launched a project on support for post-conflict governance in Aceh. It aimed to provide direct support to the provincial administration in order to enable them to respond to the consultations foreseen in the new special autonomy law in a timely manner. To that effect, it sent project advisors to provide guidance, organize workshops and draw up short courses on legal research, analysis, policy formulation, and mediation strategies. This is an example of an IfS initiative building upon the achievements of a CSDP mission. This overview provided a snapshot of the substantive linkages between initiatives undertaken in the context of the IfS and operations and missions carried out in the context of CSDP. The picture which emerges is one of considerable congruence. This is the case not only in terms of policy objectives, but also techniques. A case in point is the principle of local ownership. A traditional feature of development cooperation, it also features prominently in CSDP civilian missions, as the analysis in Chapter 6 illustrated.

The quest for coherence These substantive linkages are so close and deep that, while they aim to strengthen the Union’s approach to a crisis, they also have the potential to give rise to cacophony. On the one hand, substantive conflicts may emerge by producing policy results which are contradictory. On the other hand, given the different institutional actors involved, these may find it difficult not to succumb to the temptation of determining individually what they deem the right course of action without due account for other factors, possibly extraneous to their expertise but relevant to the area in question. There are policy, institutional, economic, and legal factors which render the need for the nexus between CSDP and development to be coherent all the more imperative. First, both these policies have been construed widely by the Union institutions. As the analysis so far illustrates, it is difficult to envisage a meaningful security policy without a development dimension and, similarly, it is almost impossible to carry out

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an effective development cooperation policy if this does not address security considerations.The more intrinsically linked these policies are, the greater the potential for conflict. Second, each of these areas is organized within the Union’s legal architecture on the basis of different principles, rules, and procedures. As the analysis in Chapters 2 and 3 illustrated, there is a strong intergovernmental dimension in the framework governing CSDP with the Council being the central institution deciding matters mainly on the basis of unanimity while the jurisdiction of the Court of Justice is expressly excluded. On the other hand, development co-operation is carried out on the basis of the traditional integration method, the Commission is endowed with central powers in the process of planning and implementation, and the European Parliament participates in decision-making actively pursuant to the ordinary legislative procedure. Third, the different powers with which different institutions are endowed encourage turf wars between them. Therefore, policy choices are not only about what is the best course of action under the circumstances, but are also underpinned by considerations about power and control to be exercised by Union institutions. This additional layer characterizing policy-making in areas straddling security and development has the potential to slow down decision-making, complicate policy choices, and undermine the effectiveness of the Union’s actions. Fourth, the budget for the Union’s development policy is very considerable and the Commission has control over it. To recall that the power to control the budget is to exercise power over decision-making is to state the obvious.The analysis of the CSDP missions in Chapter 6 illustrated how practical difficulties owing to financing issues affect the effectiveness of the Union’s actions. The combined effect of these factors renders the issue of coherence in the Union’s management of the security-development nexus of paramount significance. In fact, this is a more general problem, which the Union faces in relation to the entire spectrum of its external action. In 2005, Timothy Garton Ash wrote that: Europe has a hundred left hands and none of them knows what the right hand is doing. Trade, development, aid, immigration policy, education, cultural exchange, classic diplomacy, arms sales and anti-proliferation measures, counter-terrorism, the fight against drugs and organized crime: each European policy has an impact, but the effects are fragmented and often self-contradictory’.51

The Union institutions appear to be fully aware of the need for coherence.A number of documents originating in different actors give this a prominent position. As the analysis of the European Security Strategy and the 2008 Report on the Implementation of the European Security Strategy illustrated in Chapter 4, the need for the Union’s action to be coherent emerges as one of the main themes of the documents. 51

Timothy Garton-Ash, Free World (London: Penguin Books, 2005), 218.

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Similarly, the European Consensus on Development puts considerable emphasis on this issue with particular emphasis on the linkages between security and defence.52 In 2007, the Council adopted Conclusions on Security and Development.53 Having reaffirmed the close links between the two areas but also having acknowledged their differences (‘the responsibilities and roles of development and security actors are complementary but remain specific’),54 the document focuses on coherence. Quite apart from the general grand statements which the EU institutions are in the habit of laying down in abundance in official documents, the Council Conclusions approach coherence in two ways. First, they acknowledge that ‘[i]ncreasing coherence between security and development, both at a policy and an operational level, is a process that requires short-term improvements and longer term action’.55 Second, they identify certain areas where pragmatic action is possible and desirable: strategic planning, security sector reform, partnerships with regional and subregional organizations, humanitarian aid, and security. In relation to each of them, it proposes such action, mostly couched in rather general terms and focusing on procedural improvements. In fact, seeking to enhance coherence by focusing on institutional involvement and administrative restructuring is a central feature of the Union’s overall approach. In this respect, it is worth examining the role of the European External Action Service (EEAS) in the implementation of the IfS. The analysis in Chapter 2 explained the genesis of the EEAS, its introduction in the Lisbon Treaty, and the lively debate between the Commission, the Council, and the European Parliament leading to the adoption of Council Decision 2010/427/ EU establishing its organization and functioning.56 It is recalled that the EEAS comprises an equal number of officials from the Commission, the General Secretariat of the Council, and the Member States. It is also recalled that one of the main problems which emerged in the process of the negotiation of the Decision was about the responsibilities of the EEAS regarding the Union’s external financing instruments. A closer look at the relevant provisions of Decision 2010/427/EU suggests an attempt to strike a delicate balance. Article 9(2) provides that the High Representative is responsible for ensuring ‘overall political coordination of the Union’s external action, ensuring the unity, consistency and effectiveness of the Union’s external action, in particular through the . . . external assistance instruments’. Article 9(1) of 52 In 2005 the Commission had been instructed by the Council to produce a bi-annual report documenting progress on policy coherence on development: see Council Conclusions (Brussels, 24 May 2005). For the latest report, see SEC (2011) 1627 final EU 2011 Report on Policy Coherence for Development (Brussels, 15 December 2011). 53 15097/07 Council Conclusions (Brussels, 20 November 2007). 54 15097/07 Council Conclusions (Brussels, 20 November 2007), para 2. See the analysis in Leendert Erkelens and Steven Blockmans,‘Setting up the European External Action Service: an act of institutional balance’, (2012) 8 European Constitutional Law Review 246. 55 15097/07 Council Conclusions (Brussels, 20 November 2007), para 6. 56 [2010] OJ L 201/30.

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Decision 2010/427/EU provides that the Commission remains responsible for the management of the external cooperation programmes, while the EEAS joins it in participating in their programming.The remaining provisions of Article 9 elaborate on this division of labour in a manner characterized by disconcerting ambiguity. The EEAS is given responsibility for ‘preparing the strategic, multiannual steps within the programming cycle’ of, among others, the IfS. These refer to the steps required prior to the development and implementation of annual action programmes, the latter being the responsibility of the Commission. During this process, that is ‘the whole cycle of programming, planning and implementation of the [financing] instruments’, the High Representative and the EEAS ‘shall work with the relevant members and services of the Commission’.57 Furthermore, ‘[a]ll proposals for decisions will be prepared following the Commission’s procedures and will be submitted to the Commission for adoption’.58 As if the above division of labour was not complex enough, Decision 2010/427/ EU singles out the activities covered by the short-term component of the IfS (that is the crisis-related one) and renders its financial implementation within the responsibility of a Commission department which is to be located with the EEAS.59 This is a new department which is called Service for Foreign Policy Instruments (FPI) and operates under the responsibility of the High Representative in her role as the Vice President of the Commission. The complexity of this arrangement and the vagueness of the terms in which it is couched are nothing short of remarkable.60 By providing for the interaction between the EEAS and the Commission, Council Decision 2010/427/EU seeks to strike the balance between the competing claims of the latter over its prerogatives in the management and implementation of the external financing instruments, and those of the former over enhancing the coherence of the Union’s external action. However, it is difficult to envisage how these arrangements are to be implemented. By raising as many questions as it seeks to answer, and by shrouding its provisions in ambiguity, Decision 2010/427/EU follows the example of the drafters of the Lisbon Treaty in relation to the allocation of responsibilities to the High Representative and the interactions between this new post and that of the President of the European Council, and the President of the Commission.61 In doing so, far too much seems to depend on everyday practice, and the efficiency of the new arrangements would depend, among others, on the personalities of the individuals entrusted with making this system work. However, the first signs are not overly promising. In early 2012, the High Representative and the Commission reached an understanding as to how to interact 57

Art 9(3), subpara (2) of Decision 2010/427/EU. Art 9(3), subpara (2) of Decision 2010/427/EU. 59 Art 9(6) of Decision 2010/427/EU. 60 See Hans Merket, ‘The European External Action Service and the nexus between CSDP/CSDP and development cooperation’, (2012) 17 EFARev 625. 61 See the analysis in Ch 2. 58

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daily as a matter of practice.62 They did so on the basis of an inter-service agreement which appears to maintain the control of the Commission over the financing of external action and illustrates a system which is by no means less cumbersome in its functioning than the vague provisions of Article 9 of Decision 2010/427/EU.63 This system has reportedly made the Head of an EU delegation state the following: We were told: ‘You have the mike, but we have the money.You can make statements and say whatever you like, but we control the money’. . . I don’t mind having so many bosses [taking instructions from various commissioners], but what’s important to me is that they act as a team. I don’t think they talk to each other.’64

The compromise which the Council Decision 2010/427/EU reflects seeks to address a real problem, that is, the coherence of the Union’s external action, with institutional tweaking and administrative ingenuity. As far as the nexus of CSDP and development cooperation is concerned, this suggests a narrow understanding of coherence which is deeply process-oriented. Viewed from this angle, there is a symmetry between the overall approach of the Union institutions to security and defence policy and their recipe for enhancing its effectiveness: both appear to be less about substance, and more about process.

The interactions between CSDP and the Area of Freedom, Security, and Justice The Area of Freedom, Security, and Justice is governed by Title V TFEU. Its objectives are to ensure the absence of internal border controls for persons, the development of a common policy on asylum, immigration, and external border control, to seek to ensure a high level of security (through measures to prevent and combat crime, racism, and xenophobia, through measures for coordination and cooperation between police and judicial authorities and other competent authorities, through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws), and to facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.65 Over the years, the external dimension of this policy has emerged clearly and distinctively. In essence, the externalization of AFSJ is about the development of relationships between the Union and third countries and organizations in order to 62 SEC (2012) 48 Working Arrangements between Commission Services and the European External Action Service (EEAS) in relation to external relations issues. 63 See http://euobserver.com/institutional/115145 (last accessed on 29 October 2012). 64 See http://euobserver.com/institutional/115145. 65 Art 67(2)–(4) TFEU. For an exhaustive analysis, see Steve Peers, EU Justice and Home Affairs Law 3rd edn (Oxford: OUP, 2011).

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achieve the objectives relating to the Union’s internal security. This dimension of AFSJ was acknowledged by the European Council as early as in 1999,66 and has been pronounced ever since in the various documents setting out the main contours of the policy. The analysis of these is beyond the scope of this chapter.67 Suffice it to point out that the main priorities of the external dimension of AFSJ are defined by the Feira European Council as migration policy, the fight against organized crime and terrorism, the fight against crimes such as money laundering, corruption, trafficking in human beings, the fight against drug trafficking, and the development and consolidation of the rule of law in countries on the path to democracy.68 It is recalled that these issues also feature prominently in the European Security Strategy which also covers terrorism and organized crime in the global challenges facing the Union. In the context of organized crime, reference is made to crossborder trafficking in drugs, women, and illegal migrants, as well as its potential link to terrorism. Organized crime also features prominently in the 2008 Report on the Implementation of the European Security Strategy69 where, along with terrorism, it is listed among the global challenges and key threats for the Union. The similarities between the objectives of the external dimension of AFSJ and the Union’s external security are underpinned by two main threads. The first is the broad construction of security. This was discussed in detail in Chapter 4, and constitutes a main feature of the European Security Strategy which points out that, ‘in contrast to the massive visible thread in the Cold War, none of the new threads is purely military, nor can any be tackled by purely military means. Each requires a mixture of instruments’.70 The second thread is the link between internal and external security. This is reflected in the European Security Strategy and the 2008 Report and is also apparent in the EU Internal Security Strategy adopted in early 2010.71 Given that the external AFSJ dimension was developed precisely in order to enhance internal security, the internal–external linkage appears all the more significant. The above threads highlight the close linkages between CSDP and AFSJ as a matter of policy orientation.They are also supported by the close links between the 66 See Tampere European Council, Presidency Conclusions on the Area of Freedom, Security, and Justice (15–16 October 1999). 67 See, for instance, Jörg Monar, ‘Justice and Home Affairs: Security Sector Reform Measures as Instruments of EU Internal Security Objectives’, in David Spence and Philipp Fluri (eds), The European Union and Security Sector Reform (London: John Harper Publishing, 2008), 126 and Jörg Monar, The External Dimension of the EU´s Area of Freedom, Security and Justice: Progress, potential and limitations after the Treaty of Lisbon (2012) Swedish Institute for European Policy Studies Report 1. For a theoretical perspective, see Thierry Balzacq, ‘The Frontiers of Governance: Understanding the External Dimension of EU Justice and Home Affairs’, in Thierry Balzacq (ed), The External Dimension of EU Justice and Home Affairs—Governance, Neighbours, Security (Basingstoke: Palgrave Macmillan, 2009), 1. 68 Santa Maria de Feira European Council, 19–20 June 2000, Presidency Conclusions. 69 Report on the Implementation of the European Security Strategy—Providing Security in a Changing World (S407/08, Brussels, 11 December 2008). 70 71 European Security Strategy at 7. 5942/2/10 (Brussels, 23 February 2010).

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external dimension of AFSJ and development. For instance, the Commission’s Strategy views development as ‘an effective long-term response to concerns in the justice, freedom and security area’.72 Therefore, the interactions between the three policies render each of them an intrinsic part of the others, hence forming a whole which is as multifaceted as it is challenging to manage. The interactions between AFSJ and CSDP in particular are stressed in all the relevant documents. The Hague Programme, adopted in November 2004, includes a section specifically on the external dimension of AFSJ and states that ‘[a]ll powers available to the Union, including external relations, should be used in an integrated and consistent way to establish the area of freedom, security and justice’.73 Following a Communication by the Commission,74 the Council adopts an external strategy for AFSJ in December 2005.75 This underlines the links between the AFSJ and, among others, the CSDP. Finally, the Stockholm Programme points out that the external dimension of AFSJ ‘should in particular be taken into account in, and be fully coherent with, all other aspects of EU foreign policy’.76 What emerges from this is a fundamental congruence between CSDP and AFSJ objectives. The central position that the prevention and suppression of terrorism occupies in the Hague Programme and the broad range of instruments aimed to achieve them is mirrored by the increasing focus of the broadly understood security policy of the Union on terrorism. In effect, the Lisbon Treaty confirms this, as it defines more broadly the tasks to be carried out by the Union and draws upon the tasks undertaken under the AFSJ. According to Article 43(1) of the TEU as amended by Lisbon, ‘all these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories’. The congruence of objectives is also reflected by practice. On the one hand, and in the area of security sector reform, for instance, the external dimension of AFSJ is viewed by the Commission as an important policy instrument in different parts of the world.77 On the other hand, the whole range of civilian missions carried out by the Union in the framework of CSDP appears to have AFSJ-related objectives (as 72 COM (2005) 491 fin A Strategy on the External Dimension of the Area of Freedom, Security and Justice (Brussels: 12 October 2005), at 8. For a more detailed analysis between AFSJ links with other external policies, see Panos Koutrakos, ‘The External Dimension of the AFSJ and Other EU External Policies. An Osmotic Relationship’, in Marise Cremona, Jörg Monar, and Sara Poli (eds), The External Dimension of the European Union’s Area of Freedom, Security and Justice (Brussels: PIE Peter Lang, 2011), 139. 73 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’, [2005] OJ C 53/01 at 14. 74 COM (2005) 491 final A Strategy on the External Dimension of the Area of Freedom, Security and Justice (Brussels, 12 October 2005). 75 A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice (Council Doc 14366/3/05 REV 3). 76 Council Doc 17024/09 The Stockholm Programme—An open and secure Europe serving and protecting the citizens (Brussels, 2 December 2009) adopted by the European Council (11–12 December 2009), at para 1.1. See also COM (2009) 262 final An Area of freedom, security and justice serving the citizen (Brussels, 10 June 2009) at 4. 77 See COM (2006) 253 final A Concept for European Community Support for Security Sector Reform (Brussels, 24 May 2006) at 3.

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well as development-related ones, as suggested in the previous section of this chapter). As the missions have been analysed in detail in Chapter 6, suffice it to point out that a number of them aim to reform the security sector of the host country in order to address issues relating to smuggling, trafficking, and organized crime, or the security of the Union itself; in other words, objectives of the external aspect of the AFSJ.78 For instance, the Police Mission in the Palestinian Territories (EUPOL COPPS) has adopted a distinctly technical approach aiming to improve capabilities and enforcement rather than a broader one which would promote civilian oversight and accountability.79 More generally, it has been argued that, when the EU establishes CSDP missions in order to target security sector reform, its main focus is the restructuring of security institutions, whereas strengthening their democratic accountability is secondary.80 What underlies this preference is the policy choice to tackle the issues which undermine, directly or potentially, the security of European citizens. This is spelled out clearly in the more recent mission in Niger (EUCAP Sahel Niger), in relation to which the Council states that ‘the intensification of terrorist actions and the consequences of the conflict in Libya have increased the urgency of protecting Union citizens and interests in the region and preventing the extension of those threats to the Union’.81 In fact, it is not only the objectives of the CSDP missions which highlight their intrinsic links with the external dimension of AFSJ, but also the policy choice of where these missions are carried out. A very considerable part of them are launched in Africa, and the EU Strategy for Africa cannot be more emphatic about the significance of the region for the Union’s AFSJ interests: ‘[t]his instability and insecurity is fed by an increase in transnational organized crime. The African continent has become an important transit area for international drug traffickers. 89 per cent of African countries are affected by human trafficking flows as source, transit or destination countries, while theft and smuggling of natural resources or arms trafficking is increasing’.82 As if the close relationship between the two policies has not emerged clearly enough, it is recalled that the EU has been carrying out a border assistance operation at the Moldova–Ukraine borders beyond the framework of CSDP, organized and funded entirely by the European Commission. This was a policy choice which was not necessitated by legal exigencies. 78 See Gregory Mounier, ‘Civilian Crisis Management and the External Dimension of JHA: Inceptive, Functional and Institutional Similarities’, (2009) 31 Journal of European Integration 45 at 53–4. 79 See Dimitris Bouris, ‘The European Union’s role in the Palestinian Territories: state-building through Security Sector Reform?’ (2012) 21 European Security 257, and Ursula C Schröder and Johannes Kode, ‘Rule of Law and Security Sector Reform in International State-Building: Dilemmas of Converging Agendas’, (2012) 4 Hague Journal on the Rule of Law 31 at 47–8. 80 See Heiner Hänggi and Fred Tanner, Promoting security sector governance in the EU’s neighbourhood (Paris: Institute for Security Studies, 2005) Chaillot Paper No 80 at 50. 81 Recital 1 to Council Decision 2012/392/CFSP [2012] OJ L 187/48. 82 COM (2005) 489 final EU Strategy for Africa: Towards a Euro-African pact to accelerate Africa’s development (Brussels, 12 October 2005).

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As was the case in relation to the links between CSDP and development cooperation, the congruence of objectives and the substantive linkages between the AFSJ and the CSDP raise the question of the coherence of the Union’s approach. It is recalled that all Council measures establishing a CSDP mission refer specifically to the need for coordination between the different EU actors with due regard to their respective competences.83 However, the picture beyond the rhetoric of convergence which the myriad of policy documents recount is not dissimilar to that outlined in the preceding section. In practice, and consistently with the CSDP-development experience, the need for coherence is viewed as a process-oriented issue to be tackled with institutional and procedural tinkering. For instance, the Council proposed early on the involvement of AFSJ actors in the planning of CSDP police missions.84 This appears still a matter of priority for the EU institutions: in July 2012, the Council envisaged concrete action in 2012–2013 on strengthening ties between the CSDP and AFSJ actors.85

The nexus of policies and the Court of Justice: the choice of legal basis So far, this chapter has highlighted the extent to which the Union institutions view development cooperation, and security and defence policy as intrinsically linked. While this reflects the prevailing understanding of security in broad terms and it is translated in multifarious interactions between these policies on the ground, it also raises an important legal question, which has occupied the Court of Justice and on which the Union’s institutions have spent considerable energy and time. It is recalled that the rules laid down in Articles 208–211 TFEU and Title V TEU are defined by distinct legal characteristics.86 In the former, the Union adopts measures pursuant to the ordinary legislative procedure (that is qualified majority in the Council) 87 following a proposal by the Commission and subject to the jurisdiction of the Court of Justice. In the latter, the Council adopts measures mainly by unanimity, merely keeping the Parliament informed, and the jurisdiction of the Court of Justice expressly excluded.88 Therefore, in legal terms, the question of the correct legal basis arises: should the Union adopt a measure which straddles development cooperation, and security and defence policy pursuant to the rules governing the former, or the latter? The answer to this question would define not only the procedure governing the adoption of the relevant measure, but also its legal characteristics and implications. The question of legal basis is by no means confined to determining the practicalities of the Union’s action. Instead, the Court of Justice has traditionally viewed it as 83

See, for instance, Art 17 of Joint Action 2008/124/CFSP [2008] OJ L 42/92. See Action Plan for Civilian Aspects of ESDP, adopted by the European Council (17–18 June 2004) at para 10. 85 Council Conclusions on Common Security and Defence Policy (23 July 2012) at para 6. 86 87 88 See Ch 2. Art 209(1) TFEU. Art 24(1), subpara 2 TEU and Art 275 TFEU. 84

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an issue of constitutional significance:89 it suggests compliance with the principle of limited powers and determines the nature and extent of the Union’s competence. In particular, the choice of legal basis is significant on three grounds. First, it is of an objective nature. According to the standard formulation put forward by the Court of Justice,‘the choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review’.90 In the light of this principle, ‘the fact that an institution wishes to participate more fully in the adoption of a given measure, the work carried out in other respects in the sphere of action covered by the measure and the context in which the measure was adopted are irrelevant’.91 Second, and following on from this, the choice of the correct legal basis is significant for the institutional balance of the Union legal order. Based on ‘a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community’,92 the principle of institutional balance is intrinsically linked to the prerogatives of the various institutions and entails that ‘each of [them] must exercise its powers with due regard for the powers of the other institutions’.93 Third, any practical problems which the Union institutions may face in the context of the exercise of the Union’s competence as laid down in the Treaties are irrelevant to the determination of the competence itself. For instance, in addressing the Commission’s argument that shared competence between the then Community and the Member States in the context of the World Trade Organization would lead to complications and undermine the Community’s external posture, the Court of Justice responded as follows:94 any problems which may arise in implementation of the WTO Agreements and its annexes as regards the coordination necessary to ensure unity of action where the Community and the Member States participate jointly cannot modify the answer to the question of competence, that being a prior issue.

A few years later, in Opinion 2/00 it held that ‘whatever their scale, the practical difficulties associated with the implementation of mixed agreements, which are relied on by the Commission to justify recourse to Article 133 EC—conferring exclusive competence on the Community so far as concerns common commercial policy—cannot be accepted as relevant when selecting the legal basis for a Community measure’.95

89

Opinion 2/00 [2001] ECR I–9713, para 5. Case C–300/89 Commission v Council (re: Titanium dioxide) [1991] ECR I–1689. See also Case C-130/10 European Parliament v Council, judgment of 19 July 2012, not yet reported. 91 Case C–269/97 Commission v Council (re: beef products regulation) [2000] ECR I–2257, para 44. 92 Case C–70/88 European Parliament v Council [1990] ECR I–2041, para 21. 93 Case C–70/88 European Parliament v Council [1990] ECR I–2041, para 42. 94 Opinion 1/94 [1994] ECR I-5267, para 107. 95 Opinion 2/00 (re: Cartagena Protocol) [2001] ECR I-9713, para 41. 90

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The choice of legal basis has been a recurring issue in EU external relations.96 In relation to the nexus between CSDP and development cooperation policy, its significance becomes more acute in the light of the profound legal differences between the sets of rules governing these areas and the close interactions of the policies which have developed by the Union’s institutions as a matter of practice. The ECOWAS case The Court of Justice deals with this issue directly in Case C-91/05 Commission v Council (re: ECOWAS).97 The judgment was rendered in May 2008, that is, when the constitutional order of the Union was governed by the Nice Treaty. However, a number of the issues it raises are still relevant under the current constitutional arrangements. It is for this reason that the ECOWAS judgment will be examined in detail. The case is about non-proliferation of small arms and light weapons (SALWs) in Africa. The European Union has been an active player in the field of non-proliferation of weapons in general, as well as the small arms and light weapons in particular.98 In Joint Action 2002/589/CFSP,99 it sets out a number of principles and measures in order to prevent the further destabilizing accumulation of small arms. These cover a wide range of issues: commitments regarding the production, export, import, and holding of those arms, the establishment and maintenance of national inventories of weapons, the establishment of restrictive national weapons legislation, the provision of assistance to countries requesting support for controlling or eliminating surplus small arms on their territory, the promotion of confidencebuilding measures, and incentives to encourage the voluntary surrender of surplus or illegally held small arms and their ammunition. In particular, Joint Action 2002/589/CFSP provides for financial and technical assistance by the Union to programmes and projects which make a direct contribution to the above principles and measures. In this context, the Council adopted Decision 2004/833/CFSP 100 in order to implement this Joint Action by contributing to the Economic Community of West African States (ECOWAS). The specific measure set out in the Decision is 96 See Panos Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’, in Marisa Cremona and Bruno de Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (Oxford: Hart Publishing, 2008), 171. 97 [2008] ECR I-3651. 98 See Panos Koutrakos, ‘The Non-Proliferation Policy of the European Union’, in Malcolm Evans and Panos Koutrakos (eds), Beyond the Established Legal Orders—Policy Interconnections Between the European Union and the Rest of the World (Oxford: Hart Publishing, 2010), 249. 99 [2002] OJ L 191/1. For the most recent report on its implementation, see the Ninth Annual Report on the implementation of the Council Joint Action of 12 July 2002 on the European Union’s contribution to combating the destabilizing accumulation and spread of small arms and light weapons (2002/589/CFSP) [2010] OJ C 198/1. 100 [2004] OJ L 359/65.

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the provision of financial and technical assistance to ECOWAS in order to set up a Light Weapons Unit within its structure, and turn the Moratorium on Small Arms and Light Weapons into a Convention. It is the legal basis of the Decision which proved to be controversial, namely Article 3 of Joint Action 2002/589/CFSP and Article 23(2) TEU.The Commission challenged both Joint Action 2002/589/CFSP and Council Decision 2004/833/ CFSP before the Court of Justice, the former under ex Article 230 EC (now Article 263 TFEU), and the latter under Article 241 EC (now Article 277 TFEU). Supported by the Parliament, it argued that both measures were illegal, because they violated the Community’s competence in the area, which it enjoys under Article 208 TFEU (ex Article 177 EC) pursuant to which they ought to have been adopted. It substantiated this argument on the basis of the dividing line between CFSP and the former Community legal order which was set out, prior to Lisbon, in Article 47 TEU (Nice): Subject to the provisions amending the Treaty establishing the European Economic Community with a view to establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.

Its position was that this provision established a fixed boundary: the Union should not do what the Community could do, even if the competence of the latter was shared and had not been exercised. Second, the Commission argued that development policy necessarily encompasses the combating of the proliferation of small arms and light weapons, as cooperation in this area presupposes a minimum degree of stability. Viewed from this angle, the decommissioning of small arms and light weapons is essential to achieving the objectives of development cooperation. To that effect, the Commission relied upon the Cotonou Agreement, concluded between the European Community and its Member States and a group of African, Carribean, and Pacific States, Article 11(3) of which refers specifically to activities addressing an excessive and uncontrolled spread, illegal trafficking, and accumulation of small arms and light weapons.101 Third, the Commission argued that both the objective and substantive content of Decision 2004/833/CFSP suggested that they could have been adopted under ex Article 177 EC (now Article 208 TFEU): one of its objectives was the improvement of the prospects for sustainable development in West Africa, while the provision of financial and technical assistance constitutes a typical form of assistance in the context of development cooperation. Furthermore, it argued that the Joint Action upon which Decision 2004/833/CFSP was based should also be declared 101

[2000] OJ L 317/3.

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illegal: while certain aspects of non-proliferation of SALWs can fall within the scope of CFSP, such as police or military action to collect weapons or begin destruction programmes, the financial and technical assistance provided under the Decision would not fall within this category, as it was covered by the Community’s competence in the area of development cooperation and economic, financial, and technical cooperation with third countries. On the other hand, the Council, supported by six Member States, argued that Article 47 TEU carried out a different function: it protected the balance of powers established by primary law and, therefore, could not be interpreted in a way which would be detrimental to the competences enjoyed by the Union. It suggested that the assessment as to whether the Community competence had been affected in the meaning of Article 47 TEU should also take into account the nature of that competence, and pointed out that, in the case of development cooperation, that competence was shared with the Member States. As for the scope of development cooperation, the Council argues that neither non-proliferation of small arms and light weapons, nor the more general objective of preserving peace and strengthening security are among the EC objectives pursuant to ex Articles 2 and 3 EC. Instead, they were CFSP objectives which might incidentally affect the prospects for sustainable development, a fact which could render the whole of that area within the Community’s competence. A broader interpretation of development cooperation would render the Community’s competence unlimited, and deprive the CFSP of any practical effect. Finally, in relation to Decision 2004/833/CFSP, the Council points out that its objective is part of the CFSP’s fundamental objective, namely the preservation of peace and the strengthening of international security as stated in ex Article 11 TEU. As for its substantive content, it argues that ex Article 47 TEU may not limit the scope of CFSP activities and preclude the Union from using the same instruments as those employed by the Community in the area of development cooperation. The judgment The Court first reaffirmed its jurisdiction to rule on the legality of measures adopted beyond the EC framework. Dealing with an objection of inadmissibility raised by the Council, and relying upon previous case law, it ruled that ‘[i]t is . . . the task of the Court to ensure that acts which . . . fall within the scope of Title V of the Treaty on European Union and which, by their nature, are capable of having legal effects, do not encroach upon the powers conferred by the EC Treaty on the Community’.102 102 Case C-91/05 [2008] ECR I-3651, para 33, with reference to Case C-170/96 Commission v Council (re: airport transit visas) [1998] ECR I-2763, para 16; Case C-176/03 Commission v Council (re: environmental crimes) [2005] ECR I-78879, para 39; Case C-440/05 Commission v Council (re: ship-source pollution) [2007] ECR I-9097, para 53.

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The substantive part of the judgment commences with the proper interpretation of ex Article 47 TEU. The Court adopts the interpretation suggested by the Commission and holds that ‘a measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty within the meaning of Article 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevents or limits the exercise by the Community of its competences’.103 This approach links the assessment of ex Article 47 TEU with the examination of the aim and content of the CFSP measure. Before it engages in this, the Court elaborates on the dividing line between development cooperation policy and the CFSP. In relation to the former, it seeks to strike a balance: on the one hand, the scope of development cooperation is broad, as, in addition to the sustainable economic and social development, the smooth and gradual integration into the world economy and the campaign against poverty, it encompasses the development and consolidation of democracy and the rule of law, respect for human rights and fundamental freedoms, and compliance with UN and other international commitments. On the other hand, it is necessary that any measure adopted under this policy contributes to the pursuit of that policy’s economic and social development objectives. Measures aiming to combat the proliferation of small arms and light weapons can contribute to the elimination or reduction of obstacles to the economic and social development of developing countries. However, in the light of their aim and content, such measures must fall within the scope of the Community’s competence in the area, and this would not be the case if they have as their main purpose the implementation of CFSP. Relying on its earlier case law on legal basis, the Court then points out that, if a measure pursues both CFSP and development cooperation objectives, it should be ascertained which is the main one and which is incidental, as the former would dictate the appropriate legal basis.104 If, however, the measure pursues both development and CFSP objectives simultaneously without either being incidental to the other, a joint legal basis is precluded under ex Article 47 TEU. It is for this reason that ‘the Union cannot have recourse to a legal basis falling within the CFSP in order to adopt provisions which also fall within a competence conferred by the EC Treaty on the Community’.105 The Court, then, focuses on Decision 2004/833/CFSP and Joint Action 2002/589/CFSP which the former implements. It points out that the pursuit of non-proliferation objectives by the latter does not necessarily entail the adoption of measures which pursue CFSP objectives, such as the preservation of peace and 103

[103] Case C-91/05 [2008] ECR I-3651, para 60. Reference is made to Case C-211/01 Commission v Council [2003] ECR I-8913, para 39; Case C-338/01 Commission v Council [2004] ECR I-4829, para 55, and Case C-94/03 Commission v Council [2006] ECR I-1, para 35; in relation to ex Article 47 EU, reference is made to Case C-176/03 Commission v Council, paras 51 to 53, and Case C-440/05 Commission v Council, paras 71 to 73. 105 Case C-91/05 , para 77. 104

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the strengthening of international security, rather than EC development cooperation objectives. This is suggested by the wording of the Joint Action itself: its preamble makes the link between non-proliferation of small arms and light weapons and the prospects of sustainable development; Articles 7–9 envisage EC measures in so far as they refer to the Commission’s intention to direct its action towards achieving non-proliferation objectives where appropriate by EC measures, as well as the duty of consistency of the Union’s activities in the area imposed on the Council and the Commission. The adoption of development measures is also corroborated by the general approach of the Union’s institutions in various documents, such as the Council Resolution on small arms,106 the EU Strategy to combat illicit accumulation and trafficking of small arms and light weapons,107 as well as the Joint Statement on Development Cooperation.108 In the light of the above,109 since the measure falling within the CFSP which the contested decisions is intended to implement does not exclude the possibility that its objectives can be achieved by measures adopted by the Community on the basis of its competences in the field of development cooperation, it is necessary to examine whether the contested decisions, as such, must be regarded as a measure which pursues objectives falling within Community development cooperation.

Having examined its preamble, the Court concludes that it pursues both the CFSP objective of tackling a threat to peace and security, and the EC objective of eliminating or reducing obstacles to the sustainable development of cooperating developing countries. It states that neither is incidental to the other: the preamble mentions sustainable development in its first paragraph; and the content, that is about the provision of technical and financial assistance, is viewed as a typical development cooperation measure.110 The Court concluded without ruling on the plea of illegality pursuant to which the Commission had attacked the adoption of Joint Action 2004/589/CFSP: it held that this was not necessary as Decision 2005/833/CFSP was annulled as of its own defects.

106 Council Resolution on combating the excessive and uncontrolled accumulation and spread of small arms and light weapons as part of the EU’s emergency aid, reconstruction, and development programmes, adopted on 21 May 1999. 107 Council Doc 5319/06 EU Strategy to combat illicit accumulation and trafficking of SALW and their ammunition (Brussels, 13 January 2006). 108 Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament, and the Commission on European Union [2006] C 46/01. 109 Case C-91/05, para 92. 110 It is pointed out that, ‘[w]hile there may be some measures, such as the grant of political support for a moratorium or even the collection and destruction of weapons, which fall rather within action to preserve peace and strengthen international security or to promote international cooperation, being CFSP objectives stated in Article 11(1) EU, the decision to make funds available and to give technical assistance to a group of developing countries in order to draft a convention is capable of falling both under development cooperation policy and the CFSP’ (para 105).

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The implications An analysis of the ECOWAS judgment should be preceded by a reminder that it was rendered under a constitutional arrangement distinct from the one set out at Lisbon. Under the Nice Treaty, the Community legal order was afforded special protection: it was upon it that the process of European integration was founded, and it was ‘supplemented by the policies and forms of cooperation established by [the] Treaty [on European Union]’;111 no CFSP action should encroach upon it;112 and the EU was not only to ‘respect’ but also ‘build upon the acquis communautaire’.113 This constitutional arrangement is abandoned by the Lisbon Treaty which affords the CFSP rules special status too: the EC is abolished, and the EU is founded on both the Treaty on European Union and the Treaty on the Functioning of the European Union, both being of equal status;114 the specificity of CFSP rules is expressly acknowledged and given the same status that the Community legal order had under the Nice arrangements. While retaining the rule about the protection of the EU powers in areas other than the CFSP,115 Article 40 TEU, which replaces Article 47 TEU (Nice), includes the following new provision: Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

In terms of their normative status within the EU constitutional order, this new provision puts the CFSP rules on the same footing with the other EU rules. Having abandoned the special constitutional position of what was, until the entry into force of the Lisbon Treaty, the Community legal order, Article 40 TEU (Lisbon) reduces the significance of the judgment in ECOWAS. There are three main tenets which emerge from the line of reasoning followed by the Court, namely the strict approach to the dividing line between the security and defence, and development cooperation policies, the broad construction of development policy, and the strict construction of the legal bases requirements.

A strict approach to the separation between security and defence and other policies The thrust of the judgment relies on a strict construction of the dividing line between security and defence policy, and development cooperation policy as laid

111

112 Art 1, subpara 3 TEU (Nice). Art 47 TEU (Nice). 114 Art 3, subpara 2 (Nice). Art 1, subpara 3 (Lisbon). 115 According to Art 40, subpara 1 TEU, ‘[t]he implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union’. 113

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down in Article 47 TEU under the Nice Treaty. The Court’s interpretation of the term ‘affect’ under that provision suggests that considerations of effectiveness, complementarity, and practicality are irrelevant, as is the nature of the specific policy which the measure in question pursues. Instead, Community policies would be ‘affected’ in the meaning of that provision if a measure which could be adopted under the rules governing them is adopted under CFSP rules. While the implications of this conclusion need to be questioned in the Lisbon constitutional constellation, it is worth pointing out that the Court’s approach to the dividing line between the EC and CFSP/CSDP rules appears formalistic and lacking in reasoning. A number of points substantiate this view. First, there was no consideration of the specific implications of the Union’s action for the potential exercise of Community competence. In rejecting the argument to the contrary made by the British Government, the Court interpreted the term ‘affect’ in ex Article 47 TEU (Nice) in terms which might appear similar to its approach to the exclusivity of the Community’s implied external competence. It is recalled that, in accordance with the AETR principle,116 as elaborated in subsequent case law,117 such competence may become exclusive when the Community has adopted rules which introduce complete harmonization, and Member States are thus precluded from acting in a way which would ‘affect’118 these rules. In its case law, the Court interprets this term strictly: whether unilateral action by Member States may make the application of EC rules more difficult is not relevant, as the former would ‘affect’ the latter simply by coming into existence in a sphere already regulated by the latter.119 The parallel with the strict reading of term ‘affect’ in Article 47 TEU (Nice) might have been too strong for the Court to resist. But this is a parallel which does not exist: in the ECOWAS judgment, the Court construed the competence of the Community as exclusive a priori, Union action being ruled out in the light of merely the possibility of Community action in the area. Second, there was no explanation as to why the nature of the Community’s competence was of no relevance. It is recalled that development cooperation is an area in which the Community’s competence was concurrent with that of the Member States.120 This is also the case under the Lisbon Treaty.121 This suggests that the provision of financial and technical assistance to ECOWAS by the Member States individually, or collectively (for instance by having recourse to the Union structures), does not prevent the Community from engaging in similar action. 116

Case 22/70 Commission v Council (re: ERTA) [1971] ECR 263. See Opinion 2/91 (Re: Convention No 170 ILO on safety in the use of chemicals at work) [1993] ECR I-1061, Opinion 1/94 (re: WTO Agreements) [1994] ECR I-5267, Case C-476/98 Commission v Germany (re: Open Skies Agreement) [2002] ECR I-9855, Opinion 1/03 (re: Lugano Convention) [2006] ECR I-1145 118 Case 22/70 Commission v Council (re: ERTA) [1971] ECR 263. 119 Case 22/70 Commission v Council [1971] ECR 263, Opinion 2/91 [1993] ECR I-1061, Case C-476/98 Commission v Germany [2002] ECR I-9855. 120 Case C-316/91 Parliament v Council [1994] ECR 625, para 26. Similarly, on humanitarian aid, see Joined Cases C-181/91 and C-248/91 Parliament v Council [1993] ECR I-3685, para 16. 121 See Art 4(4) TFEU and Art 208(1) TEU. 117

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While such a conclusion may raise issues of consistency and effectiveness, these may be addressed on the basis of the requirement of consistency, compliance with which is a matter for the Council and the High Representative for Foreign Affairs and Security Policy.122 However, the Court did not engage with these issues at all. Instead, it adopted a broad-brush approach referring to its previous pronouncement in the MOX Plant judgment.123 However, the latter had been put forward in an entirely different context: there, the Community had adopted internal rules the interpretation of which a Member State had raised before an international body in a dispute against another Member State. It is far from clear what this has to contribute in the context of Union action, which by no means prevented the Community from exercising its hitherto potential competence in the future. Third, and following on from this, the Court’s approach suggests that the Member States may not do together, within the framework of the Union, what they may do individually, or even collectively, beyond that framework as fully sovereign subjects of international law. The logic of this is difficult to follow. In its earlier case law, the Court of Justice made it clear that the parallel nature of the Community’s competence in the area of development cooperation enabled Member States to act in that area individually or collectively; and, in the latter case, they may even have recourse to the Community’s institutional and administrative structures.124 To deprive them of the opportunity to act together by relying upon the CFSP provisions in such circumstances amounts to an overly formalistic reading of the dividing line between development cooperation, and security and defence, as set out in ex Article 47 TEU (Nice). Fourth, the starting point for the strict construction of ex Article 47 TEU in ECOWAS is the previous case law in Environmental Crimes 125 and Maritime Pollution.126 However, again, these judgments were rendered in a different context, as the Community had been prevented from adopting measures such as those set out in the Framework Decisions annulled by the Court. In the ECOWAS case, the Community was not prevented from providing further financial assistance to the ECOWAS Member States. To use Dashwood’s words, the former cases involved the direct substitution of a TEU measure for an EC one, whereas the latter was a case of interaction between EC and EU competences.127 This distinction is not reflected in the strict reading of the dividing line between security and defence, and development cooperation policies which the Court adopted pursuant to Article 47 TEU (Nice). 122

See Art 26(2), subpara 2 TEU. Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 93. 124 Joined Cases C-181/91 and C-248/91 Parliament v Council (Bangladesh) [1993] ECR I-3685 at para 16, (in relation to humanitarian aid), and Case C-316/91 Parliament v Council (re: European Development Fund) [1994] ECR 625, paras 26 and 35. 125 Case C-176/03 Commission v Council [2005] ECR I-7879. 126 Case C-440/05 Commission v Council [2007] ECR I-9097. 127 Alan Dashwood, ‘Article 47 TEU and the relationship between first and second pillar competences’, in Alan Dashwood and Marc Maresceau (eds), Law and Practice of EU External Relations—Salient Features of a Changing Landscape (Cambridge: Cambridge University Press, 2008), 70 at 82 et seq. 123

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A broad understanding of development cooperation Another tenet of the judgment in ECOWAS is the Court’s broad construction of both security and defence, and development cooperation policies. This is suggested by the ample reference to policy documents adopted by the Union institutions, and the Member States. As suggested earlier in this chapter, the European Consensus on Development,128 for instance, is a document firmly based on an understanding of development cooperation as a policy with economic, political, social, and security dimensions, all of which are intrinsically linked.The Court referred to it at length, and twice: to acknowledge that measures aiming to prevent fragility in developing countries, including the non-proliferation of small arms and light weapons, can contribute to tackling the economic and social development problems of those countries; and to argue that the objective of a security and defence policy instrument to tackle the non-proliferation of small arms and light weapons may be served by development cooperation, as well as security and defence policy measures. The Court also referred to the 2006 Council Resolution on Small Arms which also highlights the development cooperation and security dimensions of non-proliferation.129 These links are also present in documents to which the Court did not refer, such as the European Security Strategy,130 and the 2008 Report on the Implementation of the European Security Strategy.131 In effect, the above propositions are two sides of the same coin: in the context of EU external relations, the economic and social, and the security and defence are intertwined because each is achieved by a wider range of policy responses than might originally have been envisaged. In this part of the judgment, the Court gives voice to one of the main tenets of the Union’s international role as defined after the terrorist attacks of September 11, 2001. However, there are two issues with the line of reasoning in the judgment. First, the reliance upon documents such as The European Consensus on Development may be problematic if it does not take into account the specific context within which they were adopted. Rather than delineating competences, these were policy documents aiming to adjust the Union’s international role to a rapidly evolving environment by introducing strategic coherence.132 Second, the Court’s conclusion that

128 Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament, and the Commission on European Union [2006] C 46/01. See also The European Consensus on Humanitarian Aid—Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament, and the European Commission [2008] OJ C 25/1. 129 Council Doc 5319/06 PESC 31 of 13 January 2006. 130 A Secure Europe in a Better world—European Security Strategy (Brussels, 12 December 2003). 131 Report on the Implementation of the European Security Strategy (Brussels, 11 December 2008). 132 See Bart Van Vooren, ‘The Small Arms Judgment in an Age of Constitutional Turmoil’, (2009) 14 EFARev 231, at 235. See also Joni Heliskoski, ‘Small Arms and light weapons within the Union’s pillar structure: An analysis of Article 47 of the EU Treaty’, (2008) 33 ELRev 898, at 909–10 where he notices a tension between the reliance upon such policy documents and previous case law which states that institutional practice is irrelevant to the choice of the correct legal basis.

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neither the security nor the development objectives of the provision of financial and technical assistance for the non-proliferation of small arms and light weapons is incidental to the other is problematic. The analysis of the content of the contested Decision is confined to presenting the provision of technical and financial assistance as a typical development cooperation measure. However, this overly instrumental logic renders the scope of development cooperation very broad, and, similarly, confines security and defence policy to a core of the most fundamental security actions, easily recognizable and categorized as such. The Court refers expressly to the grant of political support for a moratorium, or the collection and destruction of weapons, as measures which would aim, primarily, to preserve peace and strengthen international security.133 However, this type of categorization is too tidy and schematic, and fails to engage with the intricacies of the multifarious dimensions of security and defence policy. Furthermore, it is one of the paradoxes of the judgment that what appears to be a broad understanding of distinct but interacting policies ends up being applied in a narrow manner. In fact, this approach suggests that, while in strategic and policy terms, security and defence is understood broadly, in its implementation, it is construed narrowly. The tension between a broad understanding of the interactions between development cooperation and security, and defence policies, and a narrow interpretation of the latter is not the only one in the ECOWAS judgment. In legal terms, the Court’s understanding of EU external relations, in general, and the links between development cooperation, and security and defence policies in particular, suggests a degree of flexibility: CFSP objectives may well be pursued by development cooperation measures, and development cooperation objectives may be pursued by CFSP measures. Is there a tension between the strict approach to the dividing line between security and defence, and development cooperation policies, and the broad approach to the scope of each of these policies? The judgment in ECOWAS suggests that no such tension exists because a strict monitoring of the choice of legal basis is warranted in order to ascertain whether there is a correspondence between the predominant objective of the measure in question and its legal basis. This is the third tenet of the judgment. Strict monitoring of the choice of legal basis The judgment suggests that a close reading of the objectives and substantive provisions of Union measures is necessary in order to ensure that these are adopted pursuant to the correct legal basis. This is all the more so as a joint legal basis is deemed unacceptable, even though the Court’s analysis is striking in its absence of any arguments explaining this. Therefore, what the Union’s institutions need to do is to identify the primary objective of the measure they intend to adopt, as this would determine its legal basis. 133

Case C-91/05, para 105.

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This position is reminiscent of the broad, albeit not unlimited, interpretation of development cooperation agreements given by the Court of Justice in the 1990s. It was then asked to rule on the legality of the conclusion of a cooperation agreement with India on partnership and development under the development cooperation legal basis of the EC Treaty.134 The action was brought because a number of clauses in the Agreement (energy, intellectual property, tourism, information and culture, drug abuse control), as well as a provision for respect for human rights and democratic principles as an essential element of the Agreement, were alleged to fall beyond the scope of development cooperation, and necessitate reliance upon the residual clause of Article 235 EEC (95 EC at Nice). The Court rejected this view, and pointed out the aim of the Agreement as setting out a framework for cooperation, and the broad nature of the contested clauses which entailed no specific measures, the implementation of which would undermine the primary rules governing these policies.135 The logic of the principal/secondary objective which underpins the judgment in ECOWAS is consistent with the logic of specific actions/broad objectives which emerges from the India Co-operation Agreement judgment.136 And the criteria pursuant to which this exercise is to be carried out, as set out in the judgment, are deemed by a distinguished scholar ‘workable’.137 However, past experience justifies some scepticism. First, far from being an exact science, the identification of the weight which a Union measure attaches to the various objectives it pursues is bound to be fraught with ambiguities. In the light of the broad construction of development cooperation, and security and defence policies, to ascertain whether a given objective is the main component of a measure, or whether it is incidental, or whether it is indissolubly linked to other objectives, is more often than not far from clear. The case law on the legal basis of the measures with trade and environmental objectives is a case in point: the Court’s conclusions that the Cartagena Protocol is mainly an environmental measure with incidental trade implications,138 the Energy Star Agreement is a trade measure with incidental environmental implications,139 and the Rotterdam Convention serves equally trade and environmental objectives140 have created a body of case law difficult to follow, and applied principles in a way which is even more difficult to predict.141 134

Case 268/94 Portugal v Council (re: India Agreement) [1996] ECR I-6177. See P Koutrakos, EU International Relations Law, at 153-157. 136 See also Bart Van Vooren, ‘The Small Arms Judgment in an Age of Constitutional Turmoil’, (2009) 14 EFARev 231, at 237 et seq. 137 Pieter Jan Kuijper, ‘Preface’, in Steven Blockmans (ed), The European Union and Crisis Management—Policy and Legal Aspects (The Hague: TMC Asser Press, 2008) v, at viii. 138 Opinion 2/00 (re: Cartagena Protocol) [2001] ECR I-9713. 139 Case C-281/01 Commission v Council (re: Energy Star Agreement) [2002] ECR I-12049. 140 Case C-94/03 Commission v Council (re: Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade) [2006]ECR I-1. 141 Marise Cremona, ‘External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law’, EUI Working Papers LAW No 206/22 (2006), n50, Panos Koutrakos, ‘Annotation on Case C–94/03 Commission v Council and Case C–178/03 Commission v Parliament and Council ’, (2007) 44 CMLRev 171. 135

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Second, the difficulties inherent in the strict monitoring of the choice of legal basis suggested by the Court are bound to whet the already healthy appetite of the Union institutions for legal disputes.This slows down the decision-making process, and takes away energy and time which the EU institutions would put to much better use if focused on the effectiveness of the Union’s international action, and the monitoring of the consistency of its activities. It also disrupts the process of establishing a culture of cooperation between the Union institutions in an area which requires it the most. After all, the analysis in this chapter illustrates the essential role of the cooperation between the Union’s institutions in order to manage the interactions between CSDP and development cooperation. Third, the difficult tests which govern the choice of legal basis, the ambiguous ways in which they are applied by the Court of Justice, and the increasing number of inter-institutional disputes, all suggest that the role of the Court of Justice in this area is bound to become more pronounced. This in itself may not appear controversial, or surprising. After all, the case law of the Court of Justice has been pivotal in the genesis and development of the law of EU external relations: the articulation of the principle of implied competence in AETR 142 and the gradual elaboration of its implications, the reference to the doctrine of necessity in Opinion 1/76 143 and its subsequent adjustment, the introduction of the principle of exclusivity in the area of Common Commercial Policy and its adjustments to the political realities of the 1970s and 1980s, all attest to this.144 In recent years, the proliferation of judgments in the area of external relations leaves no doubt as to the role of the Court in the development of the increasing recourse to Europe’s judges in order to address legal basis choices of the kind appearing in ECOWAS, and is also problematic. On the one hand, it politicizes further a matter of inherent political repercussions and renders the Court of Justice directly at the centre of a most controversial arena; on the other hand, given the emphasis on the synergy between the wide range of policies and instruments available for the Union’s international role, it introduces an element of further uncertainty. Having analysed the main threads and implications of the ECOWAS judgment, it is now time to place it in the post-Lisbon constitutional constellation. How is it affected by the new provision of Article 40 TEU and the equal status which it affords to CFSP? It is now clear that the predominance granted to nonCFSP policies under the previous dispensation and which was given effect by the Court in the judgment would be contrary to the wording and rationale of Article 40 TEU. The main tenet of the judgment is applicable: a Union measure pursuing security and defence objectives may be implemented by development cooperation measures, adopted under Article 208 TFEU, or CFSP and CSDP 142

Case 22/70 Commission v Council (re: ERTA) [1971] ECR 263. Opinion 1/76 (Re: Rhine Navigation Agreement) [1977] ECR 741. 144 For an analysis of these developments, see Piet Eeckhout, EU External Relations Law 2nd edn (Oxford: OUP, 2012) Chs 2–4 , and Panos Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006) Chs 1–3. 143

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measures under Title V TEU, provided that the predominant objective of the former would be related to development, and those of the latter to security and defence.145 However, in cases where neither objective is predominant, uncertainty creeps in. The reason for this is that both CSDP and development cooperation pursue the same objectives and are subject to the same principles set out in Article 21 TEU. Different views have been put forward as to how to address this problem. Reliance upon a joint legal basis might be a possibility, given the equal footing on which Article 40 TEU places CFSP/CSDP and the other strands of the Union’s external action.146 It has also been argued that the Court may give greater weight to factors which are prominent in other strands of EU external relations case law, such as the role of the European Parliament in the decision-making procedure and the degree of judicial protection afforded to citizens.147 Another possibility might be to introduce a very strict separation whereby CFSP and development cooperation objectives would be pursued by different CFSP and development instruments.148 In Case C-130/10 European Parliament v Council, the Grand Chamber of the Court of Justice appears to reject both the possibility of a dual legal basis and the reliance upon the role of the European Parliament.149 Adjudicating on whether Union measures freezing financial assets of individuals suspected of financing international terrorism should be adopted in the AFSJ framework (Article 75 TFEU) or under Article 215 TFEU following a CFSP decision, it held that the latter was the case.While it acknowledged that terrorism may well be an AFSJ objective, it pointed out that combating international terrorism corresponds to the objectives of the Union’s external action and can be achieved through CFSP and CSDP measures. This conclusion was preceded by the clarification of a preliminary point: the Court held that:150 even if the contested regulation does pursue several objectives at the same time or have several components indissociably linked, without one’s being secondary to the other, the differences in the procedures applicable under Articles 75 TFEU and 215(2) TFEU mean that it is not possible for the two provisions to be cumulated, one with the other, in order to serve as a twofold legal basis for a measure such as the contested regulation.

145 See also Vincent Kronenberger, ‘Coherence and Consistency of the EU’s Action in International Crisis Management: the Role of the European Court of Justice’, in Steven Blockmans (ed), The European Union and Crisis Management—Policy and Legal Aspects (The Hague: TMC Asser Press, 2008), 199. 146 See Marise Cremona,‘Coherence in European Union foreign relations law’, in Panos Koutrakos (ed), European Foreign Policy—Legal and Political Perspectives (Cheltenham: E Elgar Publishing, 2011), 55 at 88. 147 See Christophe Hillion and Ramses A Wessel, ‘Competence Distribution in EU External Relations After ECOWAS: Clarification or Continued Fuzziness’, (2009) 46 CMLRev 551 at 584. 148 See Joni Heliskoski, ‘Small Arms and light weapons within the Union’s pillar structure: An analysis of Article 47 of the EU Treaty’, (2008) 33 ELRev at 911. 149 Case C-130/10 European Parliament v Council, judgment of 19 July 2012, not yet reported. 150 Case C-130/10, para 49. See also the Opinion of Advocate General Bot at para 69.

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As for the argument that the choice of legal basis along these lines would impinge upon the Parliament’s prerogatives, the Court accepted it, but held that:151 Nevertheless, the difference between Article 75 TFEU and Article 215 TFEU, so far as the Parliament’s involvement is concerned, is the result of the choice made by the framers of the Treaty of Lisbon conferring a more limited role on the Parliament with regard to the Union’s action under the CFSP.

In the light of the ECOWAS judgment, three points are worth considering. First, the determination of the paramount objective of a Union measure in the areas affected by the CSDP-development nexus is bound to be shrouded in ever greater ambiguity given the re-organization of the Union’s external action at Lisbon. And yet, its significance will be as considerable as ever. Second, in this process, draftsmanship is central, since clear language of the preamble and substantive content of a Union measure regarding its objectives would reduce the scope for inter-institutional disputes. Third, the development of a culture of cooperation between the Union institutions and administrative bodies is more important than ever in order to reduce the scope for turf wars and manage the increasing interactions between the two policies effectively. Finally, the Court of Justice becomes all the more prominent in this area. It is somewhat ironic that, while its jurisdiction over Title V TEU is, for the most part, expressly excluded, its role should become more central in the light of the broad definition of security and development cooperation and the increasing interactions between the two policies.

The Philippines Borders case A case where the nexus between CFSP and development was brought to the Court’s attention was the Philippines Borders.152 In this case, the Parliament challenged the legality of a Commission Decision not published in the Official Journal which approved a project about the security of the Philippines borders. This Decision was adopted pursuant to Council Regulation 443/92 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America.153 Articles 5 and 6 of the Regulation provided that financial and technical assistance would be provided in a number of fields, such as food security, environmental protection, sustainable development, combating drugs, cultural protection, the spread of democracy, good governance and human rights, protection of women and ethnic minorities, and support for the national institutions. Articles 7 and 8 provided for economic cooperation, the aim of which would be to help developing countries in Asia and Latin America to build up their institutional 151 153

152 Ibid, para 82. Case C-403/05 Parliament v Commission [2007] ECR I-9045. [1992] OJ L 52/1, amended by Council Reg 807/2003 [2003] OJ L 122/36.

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capacity. Such cooperation should include three sectors, namely improvement of scientific and technological potential, improvement of the institutional structure, and support for undertakings. The Regulation bestows upon the Commission the authority to administer the financial and technical assistance and the economic cooperation. In exercising this power, the Commission approved the Philippines Border Management Project which, among others, would fund programmes promoting international border management standards, the development of information technology for sharing intelligence information between border management authorities, increased capacity for detecting false documents, and training activities of border management authorities. The Commission linked the adoption of this Decision to United Nations Security Council Resolution 1373 (2001) on the fight against terrorism and international crime. Indeed, in its preamble it states that it is adopted in order to support the Philippines in the implementation of this Resolution by focusing on border management, in particular immigration, and the fight against the financing of terrorism. The Parliament challenged the legality of the adoption of the Decision pursuant to ex Article 230 EC. It argued that the Commission lacked the power to adopt the Decision in question. In particular, Regulation 443/92 does not refer to the fight against terrorism and international crime, that is, the objectives of the contested Decision and, in any case, these were not Community objectives. On the other hand, the Commission argued that the Philippines programme also pursued the objective of combating the trafficking in drugs and human beings, hence enhancing internal security, particularly in the tourism sector, which would help to create conditions more conducive to economic development and investment. It also put forward a broad definition of the Community’s cooperation policies, and suggested a flexible interpretation of Regulation 443/92 in the light of its nature as a financial instrument at the service of a global policy. The starting point for the judgment was the principle that, under Article 71(1) EC (Nice), the Community institutions ought to act within the limits of the powers conferred upon them. It then referred to the broad nature of development cooperation under the Treaty and pointed out that, rather than being confined to economic and social objectives, it also pursues political objectives. However, the Court then observed that Regulation 443/92, that is the authority for the Commission’s power to adopt the contested Decision, contains no express reference to the fight against terrorism and international crime. This is so, despite the Commission’s proposal, in 2002, to include such a reference. The Court then examined whether the contribution of the Philippines Border Management programme towards strengthening institutional capacity in the country rendered the Decision within the scope of Regulation 443/92. It answered in the negative by making three points. First, in accordance with the wording of the Regulation, institutional building is not an objective in itself. Instead, it is an

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instrument for enhancing the capacity of developing countries to administer the development policies and projects to which Regulation 443/92 refers expressly, such as food, security, and environmental protection. Second, while border management is likely to increase the internal stability and security, hence contributing to the removal of serious obstacles to economic and social development, there is no reference to internal stability and security in Regulation 443/92. Neither can such an objective be implied, as the measure in question clearly focuses on economic and social priorities. Third, while institutional strengthening contributes to an environment favourable to investment and development, there must be a direct link between the funded programme and the aim of strengthening investment and development. In the case of the border management project, ‘there is nothing in the contested decision to indicate how the objective pursued by the project could contribute effectively to making the environment more conducive to investment and economic development’.154 The context within which the judgment in the Philippines Borders case was rendered was quite specific, and distinct from that in ECOWAS. Here, the dispute is not about the linkages between security and development policies, but the exercise of implementing powers by the Commission in accordance with EU secondary law.155 However, the case illustrates with stark clarity the legal problems which the interactions between security and defence policy, and development cooperation may raise for the Union’s institutions.

Conclusion This chapter provided an overview of the interactions between CSDP and development cooperation, and the external dimension of the Area of Freedom, Security, and Justice. The picture that emerges is one of considerable congruence, both in terms of objectives and techniques. This creates a process of osmosis between different policies which has become so pronounced as to impinge upon their main character. For instance, the increasing interactions between security policy and development cooperation have given rise to a lively debate about the securitization of the latter.156 The broad understanding of security which prevails in international 154

Case C-403/05 at para 67. See Marise Cremona, ‘Comment on Case C-403/05 European Parliament v Commission (Philippines Border Management Project)’, (2008) 45 CMLRev 1727. 156 See, for instance, Mark Duffield, ‘The Liberal Way of Development and the Development–Security Impasse: Exploring the Global Life-Chance Divide’, (2010) 41 Security Dialogue 53, Björn Hettne, ‘Development and Security: Origins and Future’, (2010) 41 Security Dialogue 31, Amelia Hadfield, ‘Janus Advances? An Analysis of EC Development Policy and the 2005 Amended Cotonou Partnership Agreement’, (2007) 12 EFARev 39, Robert Picciotto, ‘Aid and conflict: the policy coherence challenge’, (2004) 4 Conflict, Security and Development 543, and Ngaire Woods et al., ‘Reconciling Effective Aid and Global Security: Implications for the Emerging International Development Architecture’, (2005) Global 155

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relations, the predominance of civilian missions in the CSDP framework, and their interactions with development may also raise the question as to whether CSDP has been ‘developmentalized’ to a certain extent. More generally, the development and AFSJ dimension of the CSDP missions appear to shape the identity of that policy farther away from the hard end of the security spectrum. The osmosis between these policies is achieved incrementally and affects both their logic and conduct. It also renders their dividing lines increasingly difficult to observe. From a sociological point of view, it has been argued, for instance, that CFSP and Justice and Home Affairs share a ‘functional unity’ which creates a political dynamic, transcending legal differences.157 In fact, it may be worth wondering whether any of the policies examined in this chapter may still be defined as a policy in itself, and whether they all form different components of an emerging security policy. From a legal point of view, however, this osmosis highlights the paradox which the design and conduct of CSDP presents. On the one hand, it is distinct from the other strands of the Union’s external action and its implementation depends entirely on the political will of the Member States to participate and contribute. On the other hand, not only has it become part of the revamped whole which the Lisbon Treaty calls ‘external action’, but it is also being increasingly instrumentalized in the context of the implementation of other EU policies. Within multilayered legal orders, such paradoxes are neither unique nor do they necessarily raise insurmountable obstacles. However, the idiosyncratic constitutional order of the EU and the heavily institutionalized pattern of its development render the management of this paradox an exercise of extraordinary complexity. The Union has sought to address it by the incessant production of policy pronouncements about coherence, which are translated in practice in constant institutional tinkering. This produces a process-oriented policy which raises three considerable issues for the effectiveness of CSDP. First, the emphasis on process obscures the significance of the practicalities of CSDP action, such as the development of the capabilities necessary to give the Union’s security role weight and ensure the effectiveness of its interventions. Second, it entails constant institutional compromises which are applied in a state of considerable ambiguity and make the Union institutions dedicate far too much time and energy on turf wars. Third, it raises the profile of the Court of Justice by involving it in inter-institutional skirmishes and delimitation disputes, and risks further politicizing its role. Economic Governance Working Paper 19, Richard Youngs, ‘Fusing Security and Development: Just Another Euro-platitude?’, (2008) 30 Journal of European Integration 419. 157 See Stephen Stetter, EU foreign and interior policies—Crosspillar politics and the social constructions of sovereignty (London: Routledge, 2007).

9 Practical and economic underpinnings of CSDP: The case of defence industries

Introduction The analysis so far has examined the law and practice of the Common Security and Defence Policy. In relation to the former, it highlighted its distinct position within both the whole of the Union’s external action and the Common Foreign and Security Policy, and the intense proceduralization which underpins the process of the design and implementation of CSDP operations and missions. As for the latter, it illustrated the range of activities it covers, their congruence with development cooperation and the external dimension of the Area of Freedom, Security, and Justice, and the quest for ensuring coherence in the interactions between these policies and the Union’s institutional actors. The analysis suggested that CSDP is construed as deeply process-oriented and that the Union institutions seek to manage its substantial constraints by focusing on legal rules and procedures, the complexity and opacity of which give rise to political infighting and turf wars.These developments give the CSDP an introverted dimension which is at odds with the ambition illustrated in the Union’s main strategy papers such as the European Security Strategy. The institutionalist approach examined so far and the emphasis on the role of legal rules and procedures which underpins it pays insufficient attention to both the fundamental role of the political will of the Member States and the practical and economic underpinnings of security and defence. And yet, it is these issues which emerge consistently as constraining the military operations and civilian missions of the Union. This chapter will analyse the practical and economic underpinnings of defence by examining the military capabilities and the related state of defence industries in the European Union. In the light of the broad understanding of security in the European Security Strategy,1 their role and, in general, that of the armed forces may appear somewhat diminished. This view, however, would ignore its contribution to 1 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). See the analysis in Ch 4.

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shaping the context within which all the other types of power are exercised. As Joseph Nye puts it, ‘the role of military power in structuring world politics is likely to persist well into the twenty-first century. Military power will not have the same utility for states that it had in nineteenth and twentieth centuries, but it will remain a crucial component of power in world politics’.2 In any case, it is recalled that a common thread of the CSDP operations is both the failure of the Member States to commit troops and equipment on the ground and the insufficient nature of the resources which they do commit. This problem is exacerbated by the diverse range of resources provided by the States. A case in point is the communications systems, an issue raised by military commanders early on in the life of CSDP. In a different, albeit related context, a senior NATO commander stated that: ‘I had to have nine different systems sitting on my desk just to communicate with all my units [in Afghanistan]. All these different national systems are useless and it’s unacceptable that we don’t have a common operational network’.3 This phenomenon touches upon the broader issue of defence industries, the regulation and management of which has been subject to considerable change over the last few years. It is this story that this chapter will tell.4

The state of defence industries in the European Union The end of the Cold War changed the landscape of defence industries in Europe considerably and in different ways. By removing the bi-polar structure of the international security environment, it also removed the constant and imminent threat under which States had felt themselves to be, and which had shaped their defence needs.The protection of the territory of the State from clearly identifiable enemies, in the form of other States, ceased to dominate the national security and defence cultures.The transition to a multi-polar geopolitical stage made international actors redefine their security posture and reconsider their commitments. The analysis in Chapter 4 showed how the Member States of the European Union engaged in an incremental process of constructing their security needs in broader terms and put more emphasis on developing a wide range of instruments to protect them. This by no means suggests that there has been a complete convergence of security needs and requirements. Different States have different perceptions about their security needs, and the concern about their territorial integrity has by no means 2

Joseph S Nye, The Future of Power (New York: Pubic Affairs, 2011), 49. This extract is taken from Anand Menon, ‘Much Ado About Nothing: EU Defense Policy after the Lisbon Treaty’, in Riccardo Alcaro and Erik Jones (eds), European Security and the Future of Transatlantic Relations (Roma: Edizioni Nuova Cultura, 2011), 133, at 138. 4 Some of the ideas in this chapter were first explored in Panos Koutrakos, ‘The Application of EC Law to Defence Industries—Changing Interpretations of Article 296 EC’, in Catherine Barnard and Oke Odudu (eds), The Outer Limits of European Union Law (Oxford: Hart Publishing, 2009), 307. 3

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disappeared.5 However, the fall of the Iron Curtain removed the sense of urgency which underpinned the efforts of Member States to focus on their defence capabilities. In practical terms, this change allowed Member States to reduce their defence budgets. In the decade up to 1995, defence spending by the European members of NATO fell by 35%,6 and employment also fell considerably. This has had profound implications for the wider European security. In March 2011, the NATO Secretary General stated that, while in 2002 the United States accounted for about half of the defence spending of all NATO countries, that share was then closer to 75%. During 2010–2012, spending by the European members of NATO shrank by $45bn, equivalent to the entire German defence budget.7 The United Kingdom, France, and Germany are responsible for over half of European defence spending.8 In the Union, defence industries are marred by economic and structural problems such as fragmentation and divergence of capabilities, excess production capability in certain areas and shortages in others, duplication, short production runs, and failure to engage in increasingly costly research.9 Efforts of the European defence industries to consolidate were originally viewed as promising.10 Examples include the aerospace industry, where only three European companies manufacture fighter aircraft11 and where joint purchase processes keep acquisition costs down.12 However, this is not the rule. For instance, armoured fighting vehicles, aiming to help land armies to carry troops and equipment, are produced by many different national manufacturers (for instance, France has four), and purchased on the basis of sixteen different procurement programmes.13 The efforts of the European defence industries to consolidate have been confined mainly within national borders and paled into insignificance in the light of the pace and success of the consolidation of their US counterparts. A complex and big merger 5 See, for instance, the Imia incident between Greece and Turkey in December 1995: see Jörg Monar, ‘The CFSP and the Leila/Perejil Island Incident: The Nemesis of Solidarity and Leadership’, (2002) 7 EFARev 251. 6 See European Military Capabilities—Building Armed Forces for Modern Operations (London: The International Institute for Strategic Studies, 2008), 94. 7 The Financial Times, 25 March 2011, at 13. 8 See European Defence Trends—Budgets, Regulatory Frameworks, and the Industrial Base (Washington DC: Centre for Strategic and International Studies, 2010), 12. 9 See, among others, Aris Georgopoulos, ‘The European Armaments Policy: A conditio sine qua non for the European Security and Defence Policy?’, in Martin Trybus and Nigel White (eds), European Security Law (Oxford, OUP 2007), 198, at 203–5; and Stefan Markowski and Robert Wylie, ‘The Emergence of European Defence and Defence Industry Policies’, (2007) 3 Security Challenges 31, at 38 et seq. 10 See Terrence Guay, and Robert Callum, ‘The Transformation and Future Prospects of Europe’s Defence Industry’, (2002) 78 International Affairs 757. 11 These are Dassault (France), Saab (Sweden), and Eurofighter (a consortium of Italian, British, Spanish, and German companies). 12 For instance, the Eurofighter consortium has also created a military transport aircraft (A400M) which has been ordered by France, the United Kingdom, Germany, and other Member States. 13 The Financial Times, 21 July 2011, at 21. There is an exception in this area: a joint German–Netherlands programme about eight-wheeled Boxer armoured fighting vehicles. The United Kingdom and France participated originally too, but then dropped out.

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between the UK-controlled British Aerospace Systems and EADS (jointly controlled by France and Germany and with a small Spanish stake) was negotiated in 2012 only to collapse in the light of, among others, the considerable political obstacles.14 As for EU defence spending on research and development, in 2010 it was estimated that it represented 17% of the US investment, and 4.4% of total EU defence expenditure, compared with a US share figure of 11.2% of its defence spending.15 The financial crisis which unleashed its forces in 2009 has imposed further constraints on defence industries. Markets for western defence contractors are shrinking and even countries which were recently viewed as big new markets, such as India and Brazil, cut their military budgets in real terms in 2011.16 In the United States, where defence spending has been cut by $490bn over 10 years, a further $500bn of cuts are imminent.17 The coalition government which was formed in the United Kingdom in 2010 has initiated a controversial programme of defence and security review based on considerable cuts.18 Germany, one of the big spenders in defence terms, is planning to cut its budget by 25% by 2015.19 Against this background of deeply suffering defence capabilities, there has been some collaboration between European firms.20 However, it is accepted that most procurement programmes remain national and that cross-border movement of companies has not led to tangible benefits in terms of economies of scale.21 These economic and structural problems facing the defence industries have a direct impact on the capabilities which the Member States are willing to commit to CSDP operations. On the one hand, the cuts introduced by national governments have been determined without any effort to coordinate with other Member States within the Union structure and with no regard for their impact on the capabilities requirements for the effective conduct of CSDP. Therefore, there has been no attempt to address the existing imbalances in national capabilities and rationalize the cuts across the board in a manner that would also address the problems which emerged in the conduct of CSDP military missions. This suggests a considerable disjunction between the grand rhetoric about the Union’s international role which characterizes the official documents on European security and defence, and the 14 See ‘Kaputt’, The Economist, 13 October 2012, at 750. See also Karl-Theodor zu Guttenberg, ‘A historic opportunity grounded by petty politics’, The Financial Times, 11 October 2012, at 13. 15 See European Defence Agency, European, and United States Defence Expenditure 2010. 16 ‘Defence keeps a lower profile’, The Financial Times, 9 July 2012, Special Report on Aerospace, at 2. 17 ‘Defence sector’, The Financial Times, 9 October 2012, at 16. 18 See Max Hastings, ‘Bravado in the Falklands will not ensure Britain’s security’, The Financial Times, 7–8 April 2012, at 15, where he argues that, after 2015, the UK will only be able to deploy for sustained operations just one 8,000-man battlegroup,‘a tiny force by any standards’. See the analysis in Paul Cornish and Andrew Dorman, ‘National defence in the age of austerity’, (2009) 85 International Affairs 733. 19 See TomasValasek, Surviving Austerity—The case for a new approach to EU military collaboration (London: Centre for European Policy Reform, 2011), 4–7 where there is information about the impact of the financial crisis on defence budgets of the Member States. 20 See Seth Jones, The Rise of European Security Cooperation (Cambridge: CUP, 2007), Ch 5. 21 See European Military Capabilities—Building Armed Forces for Modern Operations (London: The International Institute for Strategic Studies, 2008), Ch 5.

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practice of the Member States about dealing with the practical underpinnings of that role. On the other hand, the absence of consultation and coordination is accompanied by a distinct reluctance of the Member States to deploy troops as part of an EU operation. Quite apart from the absence of the political will to do so, the economic cost of the contribution to such an operation has become a considerable factor. These implications are not only felt in the EU context. Even in relation to individual Member States such as the United Kingdom and France, which form the core of any EU defence effort, the problems have become stark. A case in point is the military operation in Libya which a coalition of various States undertook in March 2011 under the authorization of United Nations Security Council Resolution 1973 (2011).This operation consisted of the enforcement of a no-fly zone and a naval blockade and led to strikes against forces remaining loyal to Gaddafi. It was not carried out by the European Union, but a number of individual States, most of which were European, led by the United Kingdom and France, while the United States took a secondary role. The United Kingdom contributed about a dozen fighter aircraft, a couple of frigates, and a submarine, and yet its military chiefs suggested that no more was possible and that they would have had serious problems had the operation lasted into the autumn. France faced similar problems.22 And, even though the operation was not US-led, the United States provided 70% of all air support sorties. It is against this disconcerting background that the Union designs and carries out its security and defence policy. And yet, the defence industries in general and armaments and war material in particular are central for enabling the Union to assume the international security role to which it aspires. The remaining part of this chapter will examine the role that EU law may play in addressing these issues, which pertain to the practical and economic underpinnings of CSDP.

Armaments and EU law For a long time, defence industries were considered to be entirely beyond the reach of EU law. Their function for the organization of national defence was deemed to place them at the core of national sovereignty, a space much removed from the incrementally developing purview of Community law and the increasingly expanding jurisdiction of the European Court of Justice. This view was based on Article 346 TFEU, a rather obscure provision which has remained unchanged since the original Treaty of Rome. This is the only Treaty provision which refers specifically to arms, munitions, and war materials. It reads as follows:

22

The Financial Times, 25 March 2011, 13.

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1. The provisions of the Treaties shall not preclude the application of the following rules: (a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security; (b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes. 2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.

In essence, Article 346 TFEU introduces a derogation from EU law on the basis of public security. This in itself would not be noteworthy, as the Treaties provide for such derogations in the areas of free movement of goods (Article 36 TFEU), persons (Article 45(3) TFEU and Article 52 TFEU), and capital (Article 65 TFEU).23 However, the provision of Article 347 TFEU is different as it authorizes the Member States to deviate from the entire body of EU law. It is for this reason that, while the above provisions are exceptional, Article 346 TFEU is viewed by the Court of Justice as ‘wholly exceptional’.24 The implications of this definition are twofold: first, there is no limit to the type of measure which a Member State may adopt and, second, in adopting such a measure, the State in question may deviate from the entire body of EU law. The ‘wholly exceptional’ nature of Article 346 TFEU is further illustrated by the introduction of an extraordinary procedure for the jurisdiction of the Court of Justice in cases where its provision is violated. This is set out in Article 348 TFEU which reads as follows: If measures taken in the circumstances referred to in Articles 346 and 347 have the effect of distorting the conditions of competition in the common market, the Commission shall, together with the State concerned, examine how these measures can be adjusted to the rules laid down in the Treaty. By way of derogation from the procedure laid down in Articles 258 and 259, the Commission or any Member state may bring the matter directly before the Court of Justice if it

23 See Panos Koutrakos, ‘The concept of necessity in EU law’, (2010) 41 Netherlands Yearbook of International Law 193. 24 Case 222/84 Johnston [1986] ECR 1651, para 27. See also the Opinion of AG Jacobs in Case C-120/94 Commission v Greece (re: FYROM) ECR I-1513, at para 46. The other such EU provision is Art 347 TFEU which is remarkably badly drafted: ‘Member states shall consult each other with a view to taking together the steps needed to prevent the functioning of the common market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security’. On the interpretation of this provision, see Panos Koutrakos, ‘Is Article 297 EC “a reserve of sovereignty”?’, (2000) 37 CMLRev 1339.

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considers that another Member state is making improper use of the powers provided for in Articles 346 and 347. The Court of Justice shall give its ruling in camera.

For a long time, Article 346 TFEU was viewed as placing defence industries beyond the reach of EU law entirely. A broad interpretation of its wording was used to substantiate this approach.The range of products which fell within the scope of this provision was viewed as potentially unlimited, and the circumstances mentioned therein were ignored or viewed as merely indicative of the general status of the defence industries as directly linked to national sovereignty.Therefore, the Member States were only too keen to presume that measures regulating their defence industries would be beyond the scope of EU law in toto.25 A case in point is public procurement: as the Commission points out, the low number of publications in the Official Journal appears to imply that some Member States believe they can apply the derogation automatically.26 This approach was tolerated by the EU institutions.27 For instance, the European Parliament confined itself to arguing regularly for the deletion of Article 346 TFEU,28 as if that would be the only way for extending the scope of application of EU law to the defence industries. Furthermore, the argument that the inaction or the unwillingness of the Commission to bring alleged violations of EU law before the Court of Justice was subsequently relied upon by Member States as evidence of acceptance of the wide interpretation of Article 346 TFEU.29 The list mentioned in Article 346(2) TFEU also gave the application of this provision a somewhat elusive quality. While it was drawn up in April 1958 in a Council document, namely Decision 255/58, it was not published in either the Official Journal or in any other official document. Over the years, it was published in certain academic publications30 and it was only in 2001, that is more than forty years following its adoption, when it became publicly available by the European Commission in a response to a question by the European Parliament.31 The list is quite broad, and covers the following categories of products, some of which are further divided into subcategories:32

25

In relation to public procurement, see COM (2004), 608 final, Green Paper on Defence Procurement. COM (2004) 608 fin Green Paper on Defence Procurement, at 6. See Panos Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing, 2001), 175–82. 28 See, for instance, Resolution A3–0260/92 on the Community’s role in the supervision of arms exports and the armaments industry [1992] OJ C/284/138, at 142; and Resolution on the need for European controls on the export or transfer of arms [1995] OJ C/43/89 at 90, Resolution A3–0260/92 [1992] OJ C/284/138, at 142. 29 See Case C-372/05 Commission v Germany [2009] ECR I-11801, at para 78; and Case C-409/05 Commission v Greece [2009] ECR I-11859, at para 60. 30 See Herbert Wulf (ed), Arms Industry Limited (Oxford: OUP, 1993), 214. 31 Written Question E-1324/01 [2001] OJ C 364E/85. Extracts of the list are reproduced in Council Doc 14538/4/08 of 26 November 2008. 32 See the comments in Martin Trybus, European Union Law and Defence Integration (Oxford: Hart Publishing, 2005), 145–8. 26 27

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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Portable and automatic firearms. Artillery, and smoke, gas and flame throwing weapons. Ammunition for the weapons at 1 and 2 above. Bombs, torpedoes, rockets and guided missiles. Military fire control equipment. Tanks and specialist fighting vehicles. Toxic or radioactive agents. Powders, explosives and liquid or solid propellants Warships and their specialist equipment. Aircraft and equipment for military use. Military electronic equipment. Cameras specially designed for military use. Other equipment and material. Specialised parts and items of material included in this list insofar as they are of a military nature. 15. Machines, equipment and items exclusively designed for the study, manufacture, testing and control of arms, munitions and apparatus of an exclusively military nature included in this list.

This is a broad list which has never been updated, a fact which fed into the view that armaments, munitions, and war material were excluded from EU law altogether. However convenient the above interpretation may have been for Member States, it is also erroneous and misguided. Article 346 TFEU is a badly drafted provision of a wide-ranging scope, but it does not grant Member States a carte blanche. In the first instance, this conclusion follows from the oft-repeated principle that the exceptional clauses set out in the Treaties ‘deal with exceptional cases which are clearly defined and which do not lend themselves to any wide interpretation’.33 In a series of judgments dealing with the application of sex equality rules in the armed forces, the Court dismissed the argument that the importance of the armed forces for national sovereignty renders them beyond the scope of EU law altogether.34 It held that, all the exceptional provisions laid down in primary law, including Article 346 TFEU,35 deal with exceptional and clearly defined cases. It is not possible to infer from those articles that there is inherent in the Treaty a general exception covering all measures taken for reasons of public security. To recognise the existence of such an exception, regardless of the

33 Case 13/68 Salgoil Salgoil SpA v Italian Ministry for Foreign Trade [1968] ECR 453, 463, Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 26. 34 C-273/97 Sirdar [1999] ECR I-7403, Case C-285/98 Kreil [2000] ECR I-69, Case C-186/01 Dory [2003] ECR I-2479. 35 Case C-273/97 Sirdar, at para 16; Case C-285/98 Kreil, at para16; and Case C-186/01 Dory, at paras 30–31. For a comment, see Panos Koutrakos, ‘How far is far enough? EC law and the organisation of the armed forces after Dory’, (2003) 66 Modern Law Review 759; and Martin Trybus, European Union Law and Defence Integration (Oxford, Hart Publishing, 2005), Ch 6.

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specific requirements laid down by the Treaty, might impair the binding nature of Community law and its uniform application.

The strict interpretation of Article 346 TFEU also follows from the wording of the provision itself. First, it is confined to the products which are described in the list to which Article 346(2) TFEU refers. Therefore, the reference in Article 346(1)(b) TFEU to ‘the production of or trade in arms, munitions and war material’ is not envisaged as an open-ended category of products. In this vein, it is not envisaged that products which may be of both civil and military application, that is dual-use goods, should be regulated by national measures deviating from the entire body of EU law. This is supported not only by the content of the Article 346(2) TFEU list but also the reference to the effects that such measures should not have on ‘products which are not intended for specifically military purposes’ in Article 346(1)(b) TFEU. Second, national measures deviating from EU law are tolerated provided that they are ‘necessary for the protection of the essential interests of [national] security’. This is quite an emphatic statement that Article 346(b) TFEU is not merely a public security clause: instead, it should be invoked only when the protection of the core of national sovereignty is at stake. Third, any reliance upon Article 346 TFEU should take into account the effects it may have on the status and movement of other products which fall beyond its rather narrow scope. In effect, this provision suggests that national measures deviating from EU law as a whole should not be adopted in a legal vacuum. Instead, Member States are under a duty to consider the implications that such measures may have for the common market. Fourth, Article 348 subpara 1 TFEU provides for the involvement of the Commission in cases where reliance upon Article 346 TFEU by a Member State would lead to distortions of competition. This provision should be interpreted in the light of the duty of loyal cooperation enshrined in Article 4(3) TEU which reads as follows: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

In other words, a Member State invoking Article 346 TFEU is under a legal duty to cooperate with the Commission in order to adjust any ensuing distortions of competition to the EU rules. Finally, any deviation from EU law justified under Article 346 TFEU is subject to the jurisdiction of the Court of Justice.The reference to the ‘improper use of the powers provided for in Article ...346’ in Article 348 subpara 2 TFEU refers both to the substantive conditions which need to be met by a Member State invoking

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Article 346 EC (namely those regarding its scope of application and the assessment of ‘essential interests of security’) and the procedural ones (that is the duty to cooperate with the Commission inferred from Article 348 subpara 1 TFEU). It follows from this that, according to a strict reading of Article 346 TFEU, the right of Member States to regulate their defence industries by deviating from the entire scope of Union law is confined to a specific class of products, should be exercised in accordance with certain principles, and is subject to the jurisdiction of the Court of Justice in cases where reliance upon amounts to an abuse of power or has been exercised in an inappropriate manner. This narrow interpretation has gradually been accepted due to a number of legal, policy, and economic factors.The following sections will examine these in turn.

Armaments before the European Court of Justice For a long time, the Court of Justice was not asked to adjudicate on cases about armaments and war materials. The prevailing interpretation of Article 346 TFEU, which granted Member States unlimited discretion and the unwillingness of the Union institutions to challenge it, kept defence industries away from Luxembourg. This started changing in the very late 1990s.

A strict interpretation of Article 346 TFEU The first judgment on the applicability of Article 346 TFEU was delivered by the Court of Justice in Case C-414/97 Commission v Spain.36 This was about Spanish legislation exempting intra-Union imports and acquisitions of arms, munitions, and equipment exclusively for military use from VAT.The Sixth VAT Directive excluded aircraft and warships. The action against Spain was brought because the relevant Spanish rules also covered an additional range of defence products. The Spanish Government argued that a VAT exemption for armaments constituted a necessary measure ensuring the achievement of the essential objectives of its overall strategic plan. It was also central to the effectiveness of the Spanish armed forces, both in national defence and as part of NATO. The Court of Justice held that, as in other public safety clauses set out in the EC Treaty, ‘it is for the Member State which seeks to rely on those exceptions to furnish evidence that the exemptions in question do not go beyond the limits of such cases’.37 It went on to point out that: 36 [1999] ECR I-5585. See the analysis in Martin Trybus, European Union Law and Defence Integration (Oxford, Hart Publishing, 2005), 152–4. 37 [1999] ECR I-5585, para 22. For the strict interpretation of the exemptions set out in the public procurement measures, see Case C-324/93 R v Secretary of State for the Home Department, ex parte Evans Medical and MacFarlane Smith Ltd [1995] ECR I-563, at para 48.

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Spain has not demonstrated that the exemptions provided for by the Spanish Law are necessary for the protection of the essential interests of its security. It is clear from the preamble to [the relevant national] Law that its principal objective is to determine and allocate the financial resources for the reinforcement and modernization of the Spanish armed forces by laying the economic and financial basis for its overall strategic plan. It follows that the VAT exemptions are not necessary in order to achieve the objective of protecting the essential interests of the security of the Kingdom of Spain.38

The Court concluded that:39 the imposition of VAT on imports and acquisitions of armaments would not compromise that objective since the income from payment of VAT on the transactions in question would flow into the State’s coffers apart from a small percentage which would be diverted to the Community as own resources.

The judgment interprets Article 346 TFEU in a way which would prevent Member States from abusing it. The conditions laid down in that provision are viewed as substantive conditions which ought to be met in a manner deemed by the Court of Justice both necessary and adequate. This appears to remove defence industries from a twilight zone of EU law and put the onus on the Member States to justify the exceptional status of particular defence industries on a case-by-case basis. Four years later, in 2003, the Court of First Instance (CFI) delivered a judgment in Case T-26/01 Fiocchi.40 In this case, the applicant, an Italian undertaking operating in the arms and munitions manufacturing and marketing sector, complained to the Commission about subsidies granted by the Spanish government to a Spanish arms production undertaking and enquired about their compatibility with the Treaty competition provisions as well as Article 346 TFEU.The Commission then requested information from the Spanish Government as to the nature and amount of the aid granted. When more than fifteen months passed and the applicant heard nothing, it brought an action against the Commission for a declaration of failure to act. It is interesting that the Spanish undertaking which received the subsidies in question should have produced engines for civil aviation and components for olive oil decanting equipment. This illustrates the type of issues which the Commission needs to explore in cases of alleged use of Article 346 TFEU. The action was dismissed by the CFI as inadmissible, because the Commission had defined its position and, therefore, there was no failure to act within the meaning of Article 265 TFEU. Nevertheless, the CFI did engage in an examination of both Articles 346 TFEU and 348 TFEU. In relation to the former, it acknowledged the ‘particularly wide discretion [conferred on the Member States] in assessing the needs receiving such protection’ under Article 346 TFEU. However, it made it clear that the special protection set out in that provision was limited to the Article 346(2) TFEU list.41 The CFI also

38

39 40 See n36, para 22. See n36, para 23. [2003] ECR II-3951. To that effect, see also the Opinion of AG Jacobs in Case C-367/89 Richard et Les Accessoires Scientifiques SNC [1991] ECR I-4621, at para 30. 41

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referred to the bilateral examination which the Commission and the Member State concerned were required to carry out under Article 348 TFEU and pointed out that the former was under no duty to adopt a decision concerning the measures at issue at the conclusion of the examination; the Commission has no power to address a final decision or directive to the Member State concerned.42 This approach is sanctioned by the Court of Justice in Case C-337/05 Commission v Italy,43 and Case C-157/06 Commission v Italy.44 These cases were about Augusta helicopters for the use of police forces and the national fire service. They were purchased under the negotiated procedure in contravention of EU public procurement legislation which provided for a competitive tendering procedure.45 This had been a long-standing practice in Italy, and the Government did not contest that the helicopters in question were clearly for civilian use, and that their military use was only potential. Both cases are about the same practice and raise the same issues. This analysis will focus on Case C-337/05 where the judgment was rendered by the Grand Chamber. The Court first reaffirms the strict interpretation of the exceptional clauses set out in the Treaties:46 It cannot be inferred from those articles that the Treaty contains an inherent general exception excluding all measures taken for reasons of public security from the scope of Community law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, would be liable to impair the binding nature of Community law and its uniform application.

It then points out that:47 It is clear from the wording of that provision that the products in question must be intended for specifically military purposes. It follows that the purchase of equipment, the use of which for military purposes is hardly certain, must necessarily comply with the rules governing the award of public contracts. The supply of helicopters to military corps for the purpose of civilian use must comply with those same rules.

The argument of the Italian Government that a deviation from the EU public procurement rules was necessary in order to protect the confidentiality of information about the production of the purchased helicopters is dismissed by the Court as disproportionate. It was pointed out that no reasons were presented to justify why

42 In terms of the substance of the dispute, the applicant argued that the subsidies in question benefited the export activities of the company receiving them and, as such, fell beyond the scope of Article 346 TFEU. This was a point which the Commission pursued with the Spanish authorities and whose explanations appeared to be deemed credible. 43 [2008] ECR I-2173. 44 [2008] ECR I-7313. This, along with Case C-337/05, is annotated in Martin Trybus, (2009) 46 CMLRev 973. 45 In particular, Art 2(1)(b), 6, and 9 of Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts [1993] OJ L 199/1. 46 47 Case C-337/05, para 43. Case C-337/05, para 47.

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the confidentiality of the information communicated for the production of the helicopters manufactured by Augusta would be less well guaranteed were such production entrusted to other companies, in Italy or in other Member States.48 The Court is no more sympathetic to the final arguments by the Italian Government that, because of their technical specificity, the manufacture of the helicopters in question could be entrusted only to Augusta, and that it was necessary to ensure the interoperability of its fleet of helicopters, in order, particularly, to reduce the logistic, operational, and pilot-training costs. This is dismissed as follows:49 In this case, the Italian Republic has not discharged the burden of proof as regards the reason for which only helicopters produced by Agusta would be endowed with the requisite technical specificities. In addition, that Member State has confined itself to pointing out the advantages of the interoperability of the helicopters used by its various corps. It has not however demonstrated in what respect a change of supplier would have constrained it to acquire material manufactured according to a different technique likely to result in incompatibility or disproportionate technical difficulties in operation and maintenance.

The issue of confidentiality In their claims that military products merit special status beyond the strictures of EU law, Member States often stress the requirement of confidentiality. Not only does the purchase of armaments and war materials entail consideration of matters of capabilities requirements, but it also involves commitments about professional secrecy undertaken by the purchasing State towards the vendor.This issue was dealt with in a series of enforcement actions brought by the Commission against Finland,50 Sweden,51 Germany,52 Greece,53 Denmark,54 and two actions against Italy.55 Most of these cases originate back in the 1970s and they are about customs duties on imports of military goods from third countries. As the judgments raise the same issues, the following analysis will refer to one of them, namely Case C-284/05 Commission v Finland. 48 In Case C-157/06 Commission v Italy, the Court concluded that ‘the mere fact of stating that the supplies at issue are declared secret, that they are accompanied by special security measures or that it is necessary to exclude them from the Community rules in order to protect the essential interests of State security cannot suffice to prove that the exceptional circumstances justifying the derogations provided for in Article 2(1)(b) of Directive 93/36 actually exist’, (para 32). 49 See n64, para 59. 50 Case C-284/05 Commission v Finland [2009] ECR I-11705. 51 Case C-294/05 Commission v Sweden [2009] ECR I-11777. 52 Case C-372/05 Commission v Germany [2009] ECR I-11801. 53 Case C-409/05 Commission v Greece [2009] ECR I-11859. 54 Case C-461/05 Commission v Denmark [2009] ECR I-11887. 55 Case C-378/05 Commission v Italy [2009] ECR I-11831 and Case C-239/06 Commission v Italy [2009] ECR I-11913.

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Finland exempted imports of military equipment from customs duties in the period from 1998 until 2002. The Commission argued that, in doing so, it violated Article 31 TFEU and the Union’s rules setting out the Common Customs Code.56 It also violated the obligation of the Member States to contribute to the Union budget the revenue from the customs duties, as the latter constitute own resources.57 Finland counter-argued that, pursuant to Article 346 TFEU, it enjoyed wide discretion in the measures it may take in order to protect the essential interests of its security. It also pointed out that compliance with the EU customs procedure would entail the transfer of information about the military products imported from the vendor third countries, and suggested that this would have been detrimental to the confidentiality of information which is essential under agreements it had signed with the countries in question prior to its accession to the Union.58 The starting point for the judgment by the Grand Chamber was the principle according to which measures adopted in order to protect national security may not be beyond the scope of EU law altogether, and the strict interpretation of Article 346 TFEU articulated in earlier case law. It, then, pointed out that ‘a Member State cannot be allowed to plead the increased cost of military material because of the application of customs duties on imports of such material from third countries in order to avoid, at the expense of other Member States who collect and pay the customs duties on such imports, the obligations which the principle of joint financing of the Community budget imposes on it’.59 The Court also rejected the specific argument of the Finnish Government about confidentiality, as the level of specificity required in the declarations which Member States must send to the Commission is not such as to damage either the security or the confidentiality interests of the State. In this respect, reference is also made to the duty of cooperation which binds the Member States in providing the Commission with all documents necessary for checking the accuracy of the transfer of the Union’s own resources. However, the Court accepted that, ‘on a case-by-case basis and by way of exception’, a Member State could rely upon Article 346 TFEU in order either to restrict or withhold completely the information sent to the Commission. The Court found for the Commission as Finland had not shown that the conditions laid down in Article 346 TFEU were satisfied. An interesting aspect of the case was about the payment of default interest according to EU rules.60 The Commission suggested that Finland should pay for 56

Art 20 of Council Reg 2913/92 [1992] OJ L 302/1. Art 2 of Council Decision 88/376/EEC [1988] OJ L 185/24 and Council Decision 94/728/EC [1994] OJ L 293/9. 58 However, the Finnish Government did not rely upon Art 352 TFEU, as it argued that these agreements had not violated EU law under Art 346 TFEU. In the alternative, it stated that any revision of such agreements would risk the performance of the contracts and would endanger the security of Finland. 59 Case C-284/05 Commission v Finland, para 50. 60 Council Regulation 1552/89 [1989] OJ L 155/1. 57

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the entire period during which no customs duties were collected. Finland, on the other hand, argued that the proceedings had lasted for too long, and asked the Court to confine the effects of its ruling to the period after its delivery. The Court rejected this request, and pointed out that the Finnish Government had made no attempt either in its written pleadings or at the hearing to demonstrate that there was any risk of serious economic repercussions.

The role of national courts The analysis so far has focused on enforcement actions brought by the Commission against Member States or the failure of the Commission to bring such an action. As the nature of the procedure determines to a certain extent the issues raised before the Court, judgments delivered in the context of such actions provide no guidance as to the role of national courts in the interpretation and application of Article 346 TFEU. In June 2012, however, the Court of Justice rendered its judgment in Case C-615/10 Insinööritoimisto InsTiimi Oy.61 This was a reference from the Finnish Supreme Administrative Court. The subject matter of the reference was the award of a contract by the Finnish Defence Forces Technical Research Centre for the supply of tiltable turnable equipment.This was intended for the purposes of simulating combat situations. For this reason, it was viewed as a product suited primarily to military purposes. The EU public procurement rules laid down at that time, that is Directive 2004/18/EC62 and in particular its Article 10, excluded from its scope products covered by Article 346 TFEU. In accordance with Finnish legislation, the award of the contract for the supply of this product did not follow the procedures laid down in Directive 2004/18/EC. The engineering firm producing the product in question challenged the decision, awarding the contract to a competitor, and argued that the tiltable turnable equipment was, in fact, not a military product. Instead, it was a technical innovation from the civilian sector and its use for military purposes was merely subject to the appropriate selection and attachment of freely available components. In its judgment, the Fourth Chamber of the Court of Justice reaffirms the previous rulings in the case about the Augusta helicopters, according to which the exception of Article 346 TFEU may not be relied upon in relation to products which are certainly for civilian use and possibly for military use. It, then, points out the following:63 . . . even if a product comes within one or other of the categories of materials included in the Council list of 15 April 1958, that product can, if it has technical applications for

61

Case C-615/10 Insinööritoimisto InsTiimi Oy, judgment of 7 June 2012, not yet reported. Dir 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L 134/114. 63 Case C-615/10 Insinööritoimisto InsTiimi Oy, para 40. 62

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civilian use which are largely identical, be considered to be intended for specifically military purposes, within the terms of Article 296 EC, only if such use is not solely that which the contracting authority intends to confer on it but also, as the Advocate has noted in point 48 of her Opinion, that which results from the intrinsic characteristics of a piece of equipment specially designed, developed, or modified significantly for those purposes.

Focusing on the wording of the list, in particular regarding items in points 11 (military electronic equipment), 14, and 15 (both qualified as products of a military nature), it points out that products covered by these categories ‘must, in objective terms, have a specifically military nature’.64 It then concludes that the product in question could be characterized as a component of military equipment for the testing and control of arms, in which case it would be covered by the Article 346(2) TFEU list.65 However, it points out that that was ultimately a matter for the referring court to decide. To that effect, it provides further guidance as to the characteristic of the product which would be sufficient to qualify it as of military nature:‘that equipment, by virtue of its intrinsic characteristics, may be regarded as having been specially designed and developed, also as a result of substantial modifications, for such purposes’.66 The judgment in Case C-615/10 Insinööritoimisto InsTiimi Oy is significant for two main reasons. First, it reaffirms the strict interpretation of Article 346 TFEU which enables Member States to deviate from EU law only provided that the specific requirements laid down therein regarding the scope of the product in question and the essential interests of national security invoked by national authorities are complied with. The second and more important reason has to do with the role of national courts. By endowing them with the right to ascertain whether these conditions are met, it renders them a central actor in the process of the application of EU law to military products. Strictly speaking, such a role follows from the preliminary reference procedure, an inherent part of which is the application of EU rules by the referring court to the facts of the case.67 Viewed within the context of national security, however, this role acquires another dimension as the examination of the sensitive matters related to the essential security interests of the Member States is not to be carried out by a supranational institution that would be removed from the unique realities which exist in different Member States. In this vein, it is recalled that, in the only action under Article 348 TFEU which has reached the Court so far, Advocate General Jacobs, as he then was, commented on the different perceptions of security that prevail in different Member States: ‘because of differences of geography and history, each of

64

Case C-615/10, para 41. In particular, under point 15 of the list, read together with points 11 and 14 (see para 43 of the judgment in Case C-615/10). 66 Case C-615/10, para 44. 67 Case 35/76 Simmenthal v Ministero delle Finanze [1976] ECR 1871, para 4. 65

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the Member states has its own specific problems and preoccupations in the field of foreign and security policy. . . .What one Member state perceives as an immediate threat to its external security may strike another Member State as relatively harmless’.68 Given this rather elusive quality of an assessment of national security interests, the responsibility of national courts to ascertain whether the relevant interests invoked by national authorities are genuine becomes the necessary corollary of the discretion given to these authorities to determine how to protect the security of their State.69

The new approach by the Commission The case law of the EU Courts has been one of the factors which have shifted the position of armaments and war materials away from the margins of the Union legal order, and has highlighted the relevance of EU law to this sensitive and secretive industry. Another factor has been the willingness of the Commission to adopt a more robust approach to the enforcement of EU law in areas where the conditions of Article 346 TFEU are not met. In December 2006, the Commission adopted the Interpretative Communication on the application of Article 296 [now 346 TFEU] of the Treaty in the field of defence procurement.70 Its objective is ‘to prevent possible misinterpretation and misuse of Article [346 TFEU] in the field of defence procurement’ and ‘give contract awarding authorities some guidance for their assessment whether the use of the exemption is justified’.71 Drawing upon the wording of Article 346 TFEU and the Court’s case law on the interpretation of the exceptional clause set out in primary and secondary legislation, the thrust of the Commission’s initiative is that ‘both the field and the conditions of application of Article 346 TFEU must be interpreted in a restrictive way’. In relation to the former, and drawing upon the CFI judgment in Fiocchi, it is argued that the material scope of Article 346 TFEU is confined to the Article 346 (2) TFEU list which is ‘sufficiently generic to cover recent and future developments’, therefore enabling the exceptional clause to cover the procurement of services and works directly related to the goods included in the list, as well as modern, capability-focused acquisition methods.72 However, it would not cover dual-use goods, for whose procurement security interests may justify the exemption from 68 Case C-120/94 Commission v Greece [1996] ECR I-1513, para 54 of his Opinion. The dispute, which was about the trade embargo imposed by Greece on the Former Yugoslav Republic of Macedonia in 1994, was settled after the Opinion but before the Court rendered its judgment. 69 See Panos Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing, 2001), Chs 6–7. 70 COM (2006) 779 final, adopted on 7 December 2006. On the area of defence procurement, see Martin Trybus, European Defence Procurement Law (The Hague: Kluwer, 1999). 71 72 COM (2006) 779 final, at 3. COM (2006) 779, at 5.

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EU rules only on the basis of the exceptional clause set out in the Public Procurement Directive.73 In relation to the conditions of application of Article 346 TFEU, the Commission acknowledges the wide discretion granted to a Member State in order to determine whether its essential security interests ought to be protected by deviating from EU law. However, this discretion is not unfettered. To that effect, it is argued that any interests other than security ones, such as industrial or economic, cannot justify recourse to Article 346 TFEU even if they are connected with the production of and trade in arms, munitions, and war material.74 Furthermore, the reference in Article 346 TFEU to ‘essential security interests’ is viewed as ‘limit[ing] possible exemptions to procurements which are of the highest importance for Member States’ military capabilities’.75 The Commission’s Communication, then, refers to the role of the Member States. It states that it ‘is the Member States’ prerogative to define their essential security interests and their duty to protect them. The concept of essential security interests grants them flexibility in the choice of measure to protect those interests, but also endows them with a special responsibility to respect their Treaty obligations and not to abuse this flexibility’.76 This general understanding of the Member States’ role is further defined in relation to public procurement. The Commission argues that: the only way for Member States to reconcile their prerogatives in the field of security with their Treaty obligations is to assess with great care for each procurement contract whether an exemption from Community rules is justified or not. Such case-by-case assessment [emphasis in the original] must be particularly rigorous at the borderline of Article [346 TFEU] where the use of the exemption may be controversial.77

The corollary of the above is the careful definition of the role of the Commission. It is described as follows:78 It is not for the Commission to assess Member States’ essential security interests, nor which military equipment they procure to protect those interests. However, as guardian of the Treaty, the Commission may verify whether the conditions for exempting procurement contracts on the basis of Article [346 TFEU] are fulfilled. 73 On the other hand, the Commission argues that the procurement of dual-use goods may be covered by Art 346(1)(a) TFEU ‘if the application of Community rules would oblige a Member State to disclose information prejudicial to the essential interests of its security’ COM (2006) 779, at 6. 74 To that effect, it is argued that ‘indirect non-military offsets which do not serve specific security interests but general economic interests, are not covered by Article [346 TFEU], even if they are related to a defence procurement contract exempted on the basis of that Article’ COM (2006) 779 at 7. 75 76 COM (2006) 779, at 7. COM (2006) 779, at 7. 77 COM (2006) 779, at 8. The document goes on to mention the particular questions which need to be addressed by the national authorities: ‘which essential security interest is concerned? What is the connection between this security interest and the specific procurement decision? Why is the non-application of the Public Procurement Directive in this specific case necessary for the protection of this essential security interest?’ 78 COM (2006) 779, at 8.

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In such cases, it is for Member States to provide, at the Commission’s request, [emphasis in the original] the necessary information and prove that exemption is necessary for the protection of their essential security interests. The Court of Justice has repeatedly stated that “Article 10 EC [now 4(3) TEU] makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC [now 258 TFEU], and to provide the Commission with all the information requested for that purpose” [Case C-82/03 Commission v Italy, para. 15]. This concerns all investigations carried out by the Commission as guardian of the Treaty, including possible verifications of the applicability of Article 346 TFEU to defence contracts. Therefore, when the Commission investigates a defence procurement case, it is for the Member State concerned to furnish evidence that, under the specific conditions of the procurement at issue, application of the Community Directive would undermine the essential interests of its security. General references to the geographical and political situation, history and Alliance commitments are not sufficient in this context.

The Commission’s initiative does not advocate either the abolition or the revision of Article 346 TFEU. In the past, such radical solutions had been advocated by the European Parliament79 which had viewed them as essential to the full application of the acquis communautaire to the defence industries.80 However, this wholly exceptional provision appears to carry out an understandable function in the whole context of EU law, namely to ensure that certain activities associated with the core of national sovereignty are not subject to the rules and principles set out in the Treaties and articulated by the Court of Justice. It is interesting that, in its effort to justify the retention of Article 346 TFEU, the Commission actually engages in a creative exercise of adjusting and updating the Article 346(2) TFEU list: it states that the latter should be interpreted in a way which recognizes developments in technology since the list was drawn up and the different practices now employed to procure such items, such as ‘modern, capability-focused acquisition methods’ and the inclusion of contracts for related services and works.81 In its document, time and again the Commission draws upon the case law of the EU judiciary which, at the time, was rather limited. By doing so, not only does it substantiate its approach but it also suggests that its initiative aims at consolidating and clarifying the existing position rather than introducing change in a highly sensitive area. The extent to which the Commission draws upon the Court’s case law is by no means a novelty. It certainly lacks the direct interaction underpinning its response to the judgment in Cassis de Dijon where it underlined the policy ramifications introduced by Cassis and where it signalled a shift in the model of regulatory 79 See, for instance, Resolution A3–0260/92 on the Community’s role in the supervision of arms exports and the armaments industry [1992] OJ C 284/138 at 142, and Resolution on the need for European controls on the export or transfer of arms [1995] OJ C 43/89 at 90, Resolution A3–0260/92 [1992] OJ C 284/138, at 142. 80 The Parliament adopted subsequently a subtler position, asking for the revision of ex Art 296 EC and even pointing out its potential usefulness in shielding European defence industries from coming under the control of third-country companies: Report A4–76/97. 81 COM (2006) 779 final, at 5.

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intervention.82 Nor does it suggest such a direct policy effect as that underpinning the revision of the common rules on exports of dual-use goods where Regulation 1334/2000 abandoned the previous inter-pillar regime83 and introduced new rules exclusively based on the Community legal framework with express reference in its preamble to the judgments in Werner84 and Leifer.85 Instead, the emphasis in the Commission’s document on the Court’s rulings aims to confine Article 346 TFEU to its proper context by clarifying the conditions under which Member States may invoke it. In this vein, it is worth pointing out that the Communication on the application of Article 346 TFEU also features in the subsequent judgments of the Court.There emerges, therefore, a direct interaction between these institutions based on a shared understanding of this wholly exceptional provision.While the Commission’s initiative does not bind the Court, it signalled a shift in its enforcement approach, which enabled the latter to respond and apply it in the manner examined in the previous section. The Communication also stresses the role of the Member States and the discretion which they enjoy in assessing whether the protection of their security warrants reliance upon Article 346 TFEU—the prerogative of the Member States to define their essential security interests is acknowledged time and again throughout the document. What the Commission does not do is to bring this point to its natural conclusion and be clearer as to the corollary of the wide discretion enjoyed by the Member States, namely the inherently limited control which the Court of Justice may exercise pursuant to Article 348 TFEU. In another, albeit related, context, that of exports of dual-use goods, the Court of Justice stressed the discretion enjoyed by national authorities when adopting measures they deem necessary in order to guarantee public security and pointed out that it was the exercise of their discretion in accordance with the principles of necessity and proportionality which was to be determined by national courts.86 In yet another context, that of Article 397 TFEU, Advocate General Jacobs, as he then was, stressed the highly subjective nature of the assessment that national authorities are called upon to make and the corresponding paucity of judicially applicable criteria for the exercise of judicial control of high intensity.87 In this vein, it is suggested that, in terms of the essential interests of national security, the Commission, in the context of Article 348 subparagraph 1 TFEU and the Court of Justice, in the context of Article 348 subparagraph 2 TFEU,

82 ‘Communication from the Commission regarding the Cassis de Dijon judgment’, [1980] OJ C 256/2. 83 That was established under Regulation 3381/94 [1994] OJ L 367/1 and Decision 94/942/CFSP [1994] OJ L 367/8. 84 Case C-70/94 [1995] ECR I-3189. 85 Case C-83/94 [1995] ECR I-3231. 86 See, for instance, Case C-367/89 Richard et Les Accessoires Scientifiques SNC [1991] ECR I-4621, at paras 20 and 25. 87 Case C-120/94 Commission v Greece [1996] ECR I-1513.

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would seek to establish only whether the argument put forward by the national Government is unreasonable.88 This interpretation, which differs from the application of the traditional proportionality test, is consistent with the wording and the general scheme of Articles 346 TFEU and 348 TFEU. Finally, the emphasis on the limited material scope of Article 346(1)(b) TFEU, the consultation procedure set out in order to address any ensuing distortions of competition under Article 348 subparagraph 1 TFEU, and the role of the Commission, all point towards the proceduralization of the exceptional powers set out in Article 346 TFEU. This approach would allow the Commission to become more involved in cases where national authorities invoke this provision. Indeed, the entire Communication reads like a statement of intent, declaring the Commission’s readiness to step into areas of high political sensitivity.This political character of the document should not be underestimated, all the more so as, in essence, the interpretation which it puts forward states what, from a legal point of view, has been obvious. This political dimension is also recognized by the Commission which seeks to strike the balance between its more pronounced role and the discretion enjoyed by the Member States. For instance, it is stated that ‘in evaluating possible infringements, the Commission will take into account the specific sensitivity of the defence sector’.89 In the light of the above, the content, emphasis and tone of the Commission’s Communication suggest a gradual shift towards the normalization of the application of Article 346 TFEU: rather than enabling Member States to approach it as the source of legal ambiguity and political sensitivity, it is to become subject to the Union law mechanisms of interpretation and enforcement, account being taken of the political and economic specificity of the defence industries. This is a significant development not only because of the apparent political sensitivity of the area, but also because of economic and political factors which have had a profound impact on the defence industries of the Member States recently and which were outlined at the beginning of this chapter.

Policy initiatives within the EU legal order The analysis so far has focused on the shifting approach of the Commission to the interpretation of Article 346 TFEU and the case law of the Court of Justice which has been more than willing to apply it. In addition, and against the background of economic and structural deterioration of the defence industries, the European Commission took the initiative in the late 1990s and put forward a comprehensive approach to the restructuring and consolidation of the defence industries of the Member States. Based on an assessment of the economic problems and challenges 88 89

See Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001), at 189–91. COM (2006) 779 final, at 9.

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facing their fragmented state in an increasingly globalized market,90 it adopted a document entitled Implementing European Union Strategy on Defence Related Industries.91 This suggested a detailed set of legal measures which was comprehensive in scope and covered areas such as public procurement, defence and technological development, standardization and technical harmonization, competition policy, structural funds, export policies, and import duties on military equipment. This document articulated the need for a wide synergy of EU, national, and international measures while affirming the link between their subject matter and the core of national sovereignty. However, this initiative was not taken up by the Member States. In response to a request by the European Parliament, the Commission returned to these issues in 2003. In a document adopted that year, it reiterated the need for a coherent crosspillar approach to the legal regulation of defence industries with special emphasis on standardization, intra-Community transfers, competition, procurement, exports of dual-use goods, and research.92 In addition to the above, the Commission has also dealt with the area of research and development. In 2004, it adopted a document about the need to focus on research and development in the area of security.93 The main tenet of this proposal is the development of a coherent security research programme at EU level which would be ‘capability-driven, targeted at the development of interoperable systems, products and services useful for the protection of European citizens, territory and critical infrastructures as well as for peacekeeping activities’ while also directly linked to ‘the good functioning of such key European services as transport and energy supply’.94 Four different areas are targeted: consultation and cooperation with users, industry, and research organizations under the umbrella of a European Security Research Advisory Board; the establishment of a European Security Research Programme implemented as a specific programme with its own set of procedures, rules for participation, contracts, and funding arrangements; cooperation with other institutional actors established under the CFSP and CSDP framework and especially the European Defence Agency; and the establishment of a structure which would ensure the flexible and effective management of the European Security Research Programme. What emerges from this is the determination of the Commission to ensure that the structural and economic problems of the European defence industries are tackled. This explains the intense activity in the late 1990s and 2000s as well the economic rationale which was consistently the starting point of the Commission’s 90 COM (96) 10 final The Challenges facing the European Defence-Related Industry. A Contribution for Action at European Level, adopted on 24/1/1996. 91 COM (97) 583 final, adopted on 12/11/1997. 92 COM (2003) 113 fin European Defence—Industrial and Market Issues. Towards an EU Defence Equipment Policy (Brussels, 1 March 2003). 93 COM (2004) 590 final Security Research:The Next Step (Brussels, 7 September 2004). 94 COM (2004) 590 final Security Research:The Next Step (Brussels, 7 September 2004), at 4.

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proposals. However, the position of the Commission at the supranational end of the constellation of power in the Union legal order made Member States suspicious of its motives. There was a concern that its proposals were underpinned by its desire to expand the scope of the application of EU law and grant the Commission powers in ways which would impinge the right of the Member States to make fundamental choices about an industry the regulation of which is close to the core of national sovereignty. In December 2007, the Commission put forward a set of proposals known as its ‘defence package’. The first is a Communication on the competitiveness of the defence industry in which the Commission sets out a number of measures which would strengthen the European defence market.95 These include common procurement rules, rules on intra-Union transfers, the promotion of the use of common standards, the development of an EU system on security of information, the possibility of a common control system of strategic defence assets, and a host of measures aimed at improving overall coordination between national authorities in the process of defence planning and investment. Of these, the Commission put forward a proposal for a Directive on public procurement of arms, munitions, war material, and related works and services.96 The second proposal was for a Directive on intra-Union transfers.97 Both measures have now been adopted: Directive 2009/81/EC on defence procurement,98 and Directive 2009/43/EC on intra-EU transfers of defence products.99 These cover areas of considerable significance for the development of defence industries. For instance, a study carried out in 2003 concluded that opening up the EU defence market to competition would produce annual savings of at least 9% in defence equipment procurement.100 When the Commission submitted its proposals, the defence procurement market accounted for a large share of EU 95 COM (2007) 764 fin A strategy for a stronger and more competitive European defence industry (Brussels, 5 December 2007). 96 COM (2007) 766 fin, Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security (Brussels, 5 December 2007). This was preceded by a long gestation period: in September 2004, the Commission had adopted COM (2004) 608 final in which it introduced the idea for a specific EC Directive in the area. The results of the public consultation process were presented in December 2005 in COM (2005) 626 final, Communication on the results of the consultation launched by the Green Paper on Defence Procurement and on the future Commission initiatives. 97 COM (2007) 765 fin, Proposal for a Directive of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community (Brussels, 5 December 2007). 98 Dir 2009/81/EC on the coordination of procedures for the award of certain works contracts, supply contracts, and service contracts by contracting authorities or entities in the field of defence and security, and amending Directives 2004/17/EC and 2004/18/EC [2009] OJ L 216/76. 99 Dir 2009/43/EC simplifying terms and conditions of transfers of defence-related products within the Community [2009] OJ L 146/1, amended by Directive 2012/10/EU [2012] OJ L 85/3. 100 See Keith Hartley, ‘The Future of European Defence Policy: An Economic Perspective’, (2003) 14 Defence and Peace Economics, 112.

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public procurement (it was estimated at about €80 billion out of a combined State defence budget of €170 billion).101 However, prior to examining the content of the above measures, it is worth pointing out that the Union has already had common rules on exports of armaments. This originates in the EU Code of Conduct on Arms Exports, adopted by the Council in June 1998 in order to ‘set high common standards which should be regarded as the minimum for the management of, and restraint in, conventional arms transfers by all EU Member States, and to strengthen the exchange of relevant information with a view to achieving greater transparency’. The Code did not set out the list of products to which it applied. It would be two years later, in June 2000, when the Council agreed on the list of arms and related products to the export of which the Code applied.102 This constitutes the Common Military List of the European Union and has been updated a number of times.103 In 2008, the Council decided to upgrade the legal status of the common rules on exports of arms and adopted Common Position 2008/944/CFSP in which it laid down the relevant provisions.104 These set out the criteria on the basis of which national authorities are to authorize exports of products included in the Common Military List.105 The criteria include: – respect for the international obligations and commitments of Member States, in particular the sanctions adopted by the UN Security Council or the European Union, agreements on non-proliferation and other subjects, as well as other international obligations; – respect for human rights in the country of final destination as well as respect by that country of international humanitarian law; – the internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts; – preservation of regional peace, security and stability; – the national security of the Member States and of territories whose external relations are the responsibility of a Member State, as well as that of friendly and allied countries.; – the behaviour of the buyer country with regard to the international community, as regards in particular its attitude to terrorism, the nature of its alliances and respect for international law; – the existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions;

101

See debate at the European Parliament on 19 June 2007, on Oral Question 0–0022/2007. See Council Declaration of 13 June 2000, issued on the occasion of the adoption of the common list of military equipment covered by the European Union code of conduct on arms export [2000] OJ C 191/01. 103 For the more recent version, see [2012] OJ C 85/1. 104 [2008] OJ L 335/99. 105 Art 2 of Council Common Position 2008/944/CFSP. 102

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– the compatibility of the exports of the military technology or equipment with the technical and economic capacity of the recipient country, taking into account the desirability that states should meet their legitimate security and defence needs with the least diversion of human and economic resources for armaments. Common Position 2008/944/CFSP provides for the annual assessment of its implementation by the Council.106 While the rules on exports of armaments are set out in a measure adopted within the CFSP framework, the rules on public procurement and intra-Union transfers are adopted on the basis of the Union’s internal market powers. Both Directive 2009/81 on the former and Directive 2009/43 on the latter are underpinned by the constant determination to strike the balance between the application of EU law and safeguarding the sovereign right of Member States to conduct their security and defence policy. In fact, the first two recitals of the long preamble to Directive 2009/81 (it comprises seventy-nine paragraphs) reflect this clearly. The very first recital states that ‘national security remains the sole responsibility of each Member State, in the fields of both defence and security’, whereas the second points out that ‘[t]he gradual establishment of a European defence equipment market is essential for strengthening the European Defence Technological and Industrial Base and developing the military capabilities required to implement the European Security and Defence Policy’. The latter recital in particular reveals the raison d’être of the Directive which is economic in nature and is about rendering the European defence industries competitive and outward-looking. In other words, the measure is based on the assumption that the highly fragmented state of the defence markets has serious implications for the European taxpayer and the competitiveness of the European defence industries. Therefore, EU law is relied upon as an instrument that would help the defence industries address their major structural and economic problems which have befallen them in the last twenty years. The preamble to Directive 2009/81107 also reflects another dimension of the interactions between CSDP and other strands of EU law. The analysis in Chapter 8 examined the linkages between the design and conduct of CSDP operations and missions, and external policies such as development cooperation and the external dimension of the Area of Freedom, Security, and Justice. The adoption of common procurement rules in the areas of defence and security, however, reveals a broader link: EU law may be relied upon in order to give rise to conditions which would enable the Union to engage in a wider range of operations and missions and also facilitate the timely and efficient conduct of the latter. After all, it is recalled that the Union’s military operations have been marred by problems related to resources and capabilities, so much so that in certain cases it has resorted to using capabilities

106

Art 8(3). For the more recent Council’s Report, see [2012] OJ C 386/1. For an analysis of the Directive, see Martin Trybus, ‘The Tailor-Made EU Defence and Security Procurement Directive: Limitation, Flexibility, Descriptiveness and Substitution’, (2013) 38 ELRev 3. 107

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offered by third countries. This link between EU internal market law and CSDP may appear to be indirect, but may well be more beneficial for the latter and capable of producing a tangible impact. The scope of Directive 2009/81 is broad. It covers the supply of military equipment, including parts and components, the supply of sensitive equipment, including parts and components, works, supplies and services directly related to the military and sensitive equipment, and works and services for specifically military purposes or sensitive works and sensitive services.108 Military equipment refers to the list mentioned in Article 346 (2) TFEU, but is not confined to it and covers any equipment specifically designed or adapted for military purposes and intended for use as arms, munitions, or war material.109 This is because of the generic nature of the list which requires to be interpreted in the light of the evolving character of technology, procurement policies, and military requirements.110 A central feature of the rules laid down in Directive 2009/81 is the acknowledgment of the sensitive nature of procurement in the fields of defence and security and the need to develop a legal framework which would reflect this. The preamble points out that ‘defence and security equipment is vital for both the security and the sovereignty of Member States and for the autonomy of the Union [and, a]s a result, purchases of goods and services in the defence and security sectors are often of a sensitive nature’.111 Such purchases are also complex and may require extensive negotiation in order to satisfy the specific requirements of the awarding authority.112 To that effect, national authorities are allowed to use the restricted procedure (whereby only candidates invited to participate may submit a tender) or the negotiated procedure (whereby the contracting authority consults the economic operators of its choice and negotiates the terms of the contracts with them) without the need for a specific justification and provided that a contract notice is published.113 In doing so, it deviates from the main public procurement instruments, namely the Public Sector Directive114 and the Utilities Directive,115 both of which provide for the open procedure whereby any economic operator may submit a tender. In any case, the Directive requires that contracts be awarded on the basis of objective criteria and consistently with the principles of transparency, non-discrimination, and equal treatment. To that effect, it requires that only two criteria determine the award of the contract, namely the lowest price and the most economically advantageous tender.116 108

109 Art 1 of Directive 2009/81. See Art 1(6) and recital 10 of Directive 2009/81. 111 Recital 10 of Directive 2009/81. Recital 8 of Directive 2009/81. 112 113 See recital 47 of Directive 2009/81. Art 25 of Directive 2009/81. 114 Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts, and public service contracts [2004] OJ L 134/1. 115 Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport, and postal services sectors [2004] OJ L 134/1. 116 Arts 4 and 47(1) of Directive 2009/81. On defence contracts awarded in violation of EU procurement rules constituting illegal state aids, see Baudouin Heuninckx, ‘Defence Procurement: The Most Effective Way to Grant Illegal State Aid and Get Away With It ...Or Is It?’, (2009) 46 CMLRev 191. 110

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Furthermore, Directive 2009/81 provides for a list of exclusions. This includes, among others: contracts for which the application of the Directive would oblige a Member State to supply information, the disclosure of which it considers contrary to the essential interests of its security; contracts for the purposes of intelligence activities; and contracts awarded in a third country, including for civil purchases, carried out when forces are deployed outside the territory of the Union where operational needs require them to be concluded with economic operators located in the area of operations.117 The broad list of exclusions reflects the general tenor of the Directive, that is the acknowledgment of the sensitive nature of procurement in the fields of defence and security. There are two exclusions in particular, however, which merit further attention. The first covers contracts awarded in the framework of a cooperative programme based on research and development, provided that they are conducted by at least two Member States for the development of a new product.118 This reflects the main focus of the Directive, that is to revitalize the European defence industries and assist them in tackling their serious problems. The preamble to Directive 2009/81 points out that such programmes ‘are particularly important because they help to develop new technologies and bear the high research and development costs of complex weapon systems’.119 The degree of collaboration between Member States is quite low—in 2010, the European Defence Agency estimated it to be 22% of total equipment procurement, and has been static for the last five years.120 In fact, collaboration between Member States is one of the most cost-effective and efficient methods of tackling the fragmentation of European defence industries and enhancing their rationalization both in terms of structure and outputs. It may also be central in addressing the specific operational gaps which have been identified in the conduct of CSDP operations. The second interesting exclusion covers research and development services, the benefits of which are confined to the use by the contracting authority in the conduct of its own affairs.121 This aims to stimulate research and development which is viewed as ‘a key way of strengthening the European Defence Technological and Industrial Base’, so much so that the ‘maximum flexibility in the award of contracts’ is justified.122 Research and development has been one of the great victims of the crisis which European defence industries have been facing, and, as has already been mentioned, the Commission identified this as an area where urgent action was needed.123 117

118 Art 13 of Directive 2009/81. See also Art 11–12. Art 13(c) of Directive 2009/81. Recital 28 to Directive 2009/81. 120 European Defence Agency Defence Data 2010 (http://www.eda.europa.eu/Libraries/Documents/Defence_Data_2010.sflb.ashx), (last accessed on 30 October 2012). 121 Art 13(j) of Directive 2009/81. 122 Recital 55. However, in order to avoid protectionist practices, the exclusion does not apply when research and development in relation to a technology is so advanced that the risks of the latter can be reasonably assessed. 123 COM (2004) 590 final Security Research:The Next Step (Brussels, 7 September 2004). 119

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Directive 2009/43 on intra-Union transfers of defence-related products aims to introduce an internal market in the area.124 The scope of the Directive is defined by the Common Military List, and targets the existing divergent national licensing regimes. It introduces common rules aiming for the simplification and harmonization of the divergent national systems. It does so by making transfers of defence products subject to a common system of licences granted by the authorities of the exporting State and recognized by the authorities of other Member States. Such licences may be: – general, authorising transfers to recipients located in another Member State, mainly purchases by armed forces of other EU Member States and transfers to certified companies of components in the context of industrial cooperation;125 – global, authorising a group of transfers from one supplier to several recipients in other Member States;126 – individual, authorising one transfer of a specified quantity of specified products by an individual supplier to one recipient.127 Directive 2009/42 introduces the principle of mutual recognition, thereby requiring that the authorities of each Member State recognize as valid the authorizations granted by the authorities of other Member States.128 At the core of the system lies the definition of the criteria on the basis of which national authorities authorize the transfer of military equipment.129 The obligation of Member States to accept licences granted by another Member State is not absolute: in cases where national authorities consider that there is a serious risk for public policy, public security, or the essential security interests of the importing State, they may request verification of the situation by the exporting State and, in cases where the doubts persist, they may provisionally suspend the effect of the licence.130 It is also made clear that the provisions of the Directive do not affect the discretion of each Member State to determine its policy on the export of defence-related products; neither does it affect the application of Article 346 TFEU.131 Finally, the Directive encourages Member States to pursue and further develop intergovernmental cooperation in 124 See the analysis in Hans Ingel, ‘The intra-EU defence trade directive: positive goals’, in Alysin J K Bailes and Sara Depauw (eds), The EU defence market: balancing effectiveness with responsibility—Conference Report, (Belgium: Flemish Peace Institute, 2011), 61; and Sara Depauw, ‘Risks of the ICT—directive in terms of transparency and export control’, in ibid, 67. 125 Art 5 of Directive 2009/43. 126 Art 6 of Directive 2009/43. 127 Art 7 of Directive 2009/43. 128 This is also the logic of the EU common rules on exports of dual-use goods: see Council Regulation 428/2009 [2009] OJ L 134/1. See also COM (2011) 393 final, Green Paper:The dual-use export control system of the European Union: ensuring security and competitiveness in a changing world (Brussels, 30 June 2011). 129 See Art 9 of Directive 2009/43.These criteria are interpreted in a Recommendation by the Commission ([2011] OJ L 11/62). 130 Art 15 of Directive 2009/43. 131 Art 1(2) and (3) of Directive 2009/43.

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the area, while complying with its provisions.132 Member States should have started applying measures implementing Directive 2009/43 on 30 June 2012.133

Policy initiatives at intergovernmental level So far, this chapter has examined the various initiatives undertaken within the context of EU law in order to facilitate the rationalization of the European defence industries, and open up the defence market with a view to rendering it more competitive and efficient.There is a parallel development seeking to serve similar objectives and originating beyond the Union legal order. It is recalled that the Treaty Establishing a Constitution for Europe provided for the establishment of an agency under the name of European Defence Agency (EDA) which would specialize in the area of defence capabilities development, research, acquisition, and armaments.134 This is reproduced in the Lisbon Treaty, according to which the Agency ‘shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities’.135 However, the establishment of this Agency became an issue separate from the fate of the Constitutional Treaty. Following a decision by the Thessaloniki European Council in June 2003, the Council set it up pursuant to a Joint Action in July 2004.136 The objective of the Agency is ‘to support the Council and the Member States in their effort to improve the EU’s defence capabilities in the field of crisis management and to sustain the ESDP as it stands now and develops in the future’ without prejudice to either the competences of the EC or those of the Member States in defence matters.137 The tasks carried out by EDA are in the areas of defence capabilities development, armaments cooperation, European Defence Technological and industrial base and defence equipment market, and research and technology.

132

Art 1(4) of Directive 2009/43. See COM (2012) 359 final, Report from the Commission to the European Parliament and the Council on transposition of Directive 2009/43/EC simplifying terms and conditions for transfer of defence-related products within the EU (Brussels, 29 June, 2012). 134 Art I-41(3), subpara 2. 135 Art 28A(3) TEU as amended by the Lisbon Treaty (this reproduces Art I-41(3), subpara 2 of the Constitutional Treaty. Further, see Art 28 D TEU as introduced by the Lisbon Treaty. 136 2004/551/CFSP [2004] OJ L 245/17, repealed by Council Decision 2011/411/CFSP defining the statute, seat, and operational rules of the European Defence Agency [2011] OJ L 183/16. See also Council Dec. 2003/834/EC creating a team to prepare for the establishment of the agency in the field of defence capabilities development, research, acquisition, and armaments [2003] OJ L 318/19. 137 [2003] OJ L 318/19, Arts 2(1), 1(2), and 2(2). 133

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A general assessment of the function and record of EDA is beyond the scope of this analysis.138 Instead, it is its initiative in the area of defence procurement which is relevant. In November 2005, the Defence Ministers of all the then participating Member States,139 agreed a voluntary code on defence procurement. This entered into force on 1 July 2006.140 It applies to contracts worth more than €1m which are covered by Article 346 TFEU.141 This is an intergovernmental regime which, following the adoption of Directive 2009/81 on defence procurement, applies only in cases where the latter does not apply. The Code sets out to establish a single online portal, provided by the EDA, which would publicize procurement opportunities. It is based on objective award criteria based on the most economically advantageous solution for the particular requirement. Furthermore, it provides for debriefing, whereby all unsuccessful bidders who so request will be given feedback after the contract is awarded. The regime provides for exceptions for reasons of pressing operational urgency, follow-on work or supplementary goods and services, and extraordinary and compelling reasons of national security. An interesting aspect of this regime is its focus, among others, on small and medium-sized enterprises and non-traditional supplies.The development of the portal for industry contract opportunities enables them to find sub-contracting opportunities listed in the same place, and, hence, help them in a tangible manner to participate in the developing transnational market. It is recalled that small and medium-sized enterprises have also been identified as one of the main vehicles of creating growth in the Union and facilitating the fight against the current economic crisis. The objective of this regime is to introduce transparency in defence procurement and increase the competitiveness of defence industries. The EDA considers the regime a success. In the first year of its application, governments advertized nearly 200 contract opportunities worth approximately €10 billion on the European Bulletin Board online portal. In its Report on European Security and Defence Policy, approved by the Council in June 2007, the German Presidency stated that the Agency ‘was proving itself a fully effective instrument’142 and that the implementation of the Code of Conduct was ‘successful’.143 138 See Alain de Nève, L’Agence Européenne de défense et la coopération dans le domaine capacitaire (Paris: L’Harmattan, 2010); Aris Georgopoulos, ‘The New European Defence Agency: Major Development or Fig Leaf?’, (2005) 14 Public Procurement Law Review 103; Panos Koutrakos, EU International Relations Law (Oxford: Hart Publishing, 2006), 473–5; Martin Trybus, ‘The new European Defence Agency: a contribution to a common European security and defence policy or a challenge to the Community acquis?’, (2006) 43 CMLRev 667. 139 With the exception of Denmark, which has a permanent opt-out in the area of defence pursuant to Protocol 5 annexed to the Amsterdam Treaty. Currently all the other Member states participate, with the exception of Romania which currently considers joining this regime. 140 http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/misc/87058.pdf (last accessed 30 October 2012). 141 It excludes nuclear weapons and nuclear propulsion systems, chemical, bacteriological and radiological goods and services, and cryptographic equipment, as well research and technology and collaborative procurements. 142 143 Document 10910/07, at 19. Document 10910/07, at 20.

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Along with the Code of Conduct, EDA has been managing a number of joint initiatives in areas including air-to-air refuelling, medical support, training, and maritime surveillance. Independently from the work by EDA, Member States participate in bilateral initiatives. For instance, in November 2010, the United Kingdom and France signed a Defence and Security Cooperation Treaty.144 In addition to the Treaty on defence cooperation, it consists of a subordinate treaty on joint nuclear facilities, and a Letter of Intent signed by the Defence Ministers and Chiefs of Defence Staff of the United Kingdom and France, which points towards increasing interoperability between the armed forces of the two countries as a major goal, as well as a number of separate joint initiatives. The Treaty aims to strengthen the operational links between the UK and French Armed Forces, to share and pool materials and equipment, to build joint facilities, and achieve increased industrial and technological cooperation. Among others, it provides for the development of the ability to deploy a UK–French integrated carrier strike group incorporating assets owned by both countries, the development of joint military doctrine and training programmes, and the extension of bilateral cooperation on the acquisition of equipment. The election of François Hollande, however, in May 2012 raised questions as to the viability of the agreement.145 In February 2011, Estonia and Sweden signed a treaty on defence cooperation. The agreement is mainly focused on joint procurement issues, education and training of armed forces, and information exchange. Finally, Member States participate in intergovernmental regimes beyond the EU framework. The Organisation for Joint Armament Cooperation (OCCAR) was established in 1996 and comprises six Member States (France, Germany, Italy, the United Kingdom, Belgium, and Spain). Its objective is to manage joint armaments programmes, and, at present, it does so in relation to seven such programmes, ultimately aiming to provide national armed forces with economies of scale.146 In fact, in July 2012, EDA and OCCAR signed an Administrative Arrangement, aiming to establish a closer relationship based on sharing information on projects and programmes throughout their life cycle. Prior to this, the Union had concluded an agreement with OCCAR on the protection of classified information.147

Conclusion The analysis in this chapter has been set out around four main factors. The first is practical and characterizes the failure of the Member States to commit troops and 144 See http://www.fco.gov.uk/resources/en/pdf/3706546/3892733/21824849/TrFrance1.2010 DefenceSec (last accessed on 30 October 2012). 145 See James Blitz and Ben Hall, ‘Defence may be sore point in ties with France’, The Financial Times, 8 May 2012. 146 These programmes are about a transport aircraft, a helicopter, an armoured transport vehicle, a radar system, a ground-to-air antimissile system for medium and long ranges, and a software defined radio. 147 [2012] OJ L 229/2, concluded by Council Decision 2012/486/CFSP [2012] OJ L 229/1.

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capabilities in order to enable the Union to carry out the ambitious CSDP which the EU institutions are not tired of exalting. The second is economic and has had a profound impact on the state of European defence industries since the end of the Cold War, as these have been deeply affected by the current financial crisis and the deep cuts which the Member States have introduced. The third factor is legal: it is about the ways in which European law may assist the Union institutions and the Member States in tackling the above problems. The final, but by no means least significant, factor is political and is about the resolve of the Member States to commit to the development of CSDP through decisive, coordinated, and ambitious action. Prior to examining the political factor, it is worth reflecting on the contribution of EU law so far. After all, this book set out to present a legal analysis of CSDP. In relation to the defence industries, EU law has carried out various functions: it has normalized their status by bringing them closer to the contours of the Union legal order on the basis of a strict interpretation of Article 346 TFEU which had been abused for too long; it has extended the reach of the internal market by adopting secondary legislation aiming to open up the defence markets; it has also carried out a balancing function by acknowledging both the specificity of defence industries and the right of the Member States to determine how best to protect their security. In doing so, all EU institutions have participated: the European Commission both in its capacity as the guardian of the Treaties, changing its enforcement policy in relation to Article 346 TFEU, and in its role in decisionmaking as it has been working on these matters since the mid-1990s; the Council and the Parliament which adopted the rules on public procurement and intraUnion transfer of military equipment; and the Court of Justice which has responded to the Commission’s fervour by rendering a series of groundbreaking, yet balanced, judgments. This describes the contribution of the law in enhancing indirectly the effectiveness of CSDP. This contribution, however, reflects only one aspect of what the law may achieve in this area. It must be considered along with another aspect which was described in previous chapters in this book. This consisted of the heavy emphasis on either primary rules shrouded in ambiguity and, to a certain extent, of a rhetorical significance or secondary rules and practices about process and institutional tinkering. While this latter function of law represents a pathological aspect of the CSDP which by no means contributes to the effective conduct of the policy, the former function is inherently limited in its impact. This is an area where it is political will which determines the pace of the development and the direction of change. EU law may contribute to shaping the broader context within which political will is exercised, but may not address fundamentally the complex and deeply politicized issues which pertain to the management of military capabilities. As a Report on European Military Capabilities by the International Institute for Strategic Studies

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put it in 2008, ‘almost everything about defence in Europe remains resolutely national’.148 The question, then, which is raised is about the impact of the profound economic crisis that the Union is currently facing on the way in which the Member States exercise their political will. Three points are worth raising. The first is about the expectations and positions of third parties. In a speech on the future of NATO given in June 2011, the then outgoing United States Defence Secretary Gates referred at excruciating length to the perilous state of the European military capabilities.149 He pointed out ‘the very real possibility of collective military irrelevance’, and argued as follows: The blunt reality is that there will be dwindling appetite and patience in the US Congress— and in the American body politic writ large—to expend increasingly precious funds on behalf of nations that are apparently unwilling to devote the necessary resources or make the necessary changes to be serious and capable partners in their own defense. Nations apparently willing and eager for American taxpayers to assume the growing security burden left by reductions in European defense budgets. Indeed, if current trends in the decline of European defense capabilities are not halted and reversed, future US political leaders—those for whom the Cold War was not the formative experience that it was for me—may not consider the return on America’s investment in NATO worth the cost.

There is exasperation in this statement as well as concern about the implications of European weakness for international security.This should be considered along with other factors, such as the shift of the US security interest in South East Asia and the Pacific region,150 and the decision of the US administration to cut its defence budget by $500bn starting in 2012. While extraneous to its political agenda, such factors may exercise pressure on the Union to take the practical underpinnings of its security and defence policy more seriously. The second point is the extent to which Member States would be prepared to embrace flexibility and engage in joint initiatives in order not only to pull resources and capabilities, but also to carry out operations within the context of CSDP. The analysis in Chapter 4 examined the prominent role which the Lisbon Treaty gives to the principle of flexibility. It also highlighted the rather broad and, at times, vague manner in which the Lisbon Treaty set out the conditions under which such flexible arrangements are to be established, and stressed the crucial role of political will, both in how these mechanisms are to be implemented and whether they would be relied upon at all.

148 See European Military Capabilities—Building Armed Forces for Modern Operations (London:The International Institute for Strategic Studies, 2008), 149. 149 Speech delivered on 10 June: http://blogs.wsj.com/washwire/2011/06/10/transcript-of-defensesecretary-gatess-speech-on-natos-future/ (last accessed on 30 October 2012). 150 See the speech by President Obama in the Australian Parliament on 17 November 2011, (The Economist, 25 November 2011).

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Quite apart from the references in primary law, flexibility is already an important part of the conduct of CSDP operations and missions. The analysis in Chapters 5 and 6 showed the wide variation which characterizes the role and contributions of Member States. It has also been formalized in the EU battlegroups.This is an initiative focused on the swift deployment of ‘effective, credible and coherent’ rapid reaction units.151 Declared operational on 1 January 2007, battlegroups consist of 1,500 troops each of which should be deployable at fifteen days’ notice and sustainable for at least thirty days (potentially extended to 120) either as a stand-alone force or as part of a larger operation. The principle is that the EU should have two battlegroups on standby call at all times and that both should rotate every six months.This would enable the Union to carry out two simultaneous operations for a period of up to four months. Each battle group is led by a Member State which acts as the lead nation and provides the assets either on its own or with the contribution from other States. However, no such battlegroup has been deployed as yet. Therefore, their role so far has been questionable both in terms of their contribution in the conduct of CSDP and also in acting as a catalyst for further flexible arrangements focused on effectiveness and interoperability.152 The third point is about some movement since late 2010 in the area of defence capabilities. In the context of permanent structured cooperation, laid down in Article 42 TEU, there has been some discussion among Member States during the Belgian Presidency in the latter part of 2010, initiating what has now been termed ‘the Ghent process’, as well as a German–Swedish proposal for closer military cooperation.153 In December 2010, France, Germany, and Poland sent a letter (which has become known as the Weimar letter) to the High Representative in which they called for a fresh impetus for CSDP. This referred to: a specific need to improve our capacities to plan and to conduct operations and missions, to strengthen cooperation among our militaries and to create synergies in times of scarce resources, taking due care for complementarity with national and NATO planning capacities ...we need to make continued progress in concrete projects and initiatives, whether in a bilateral or collective framework, by strengthening cooperation within the EU and between the EU and NATO on military capability developments issues and seeking new methods for developing and optimising our capabilities (e.g. pooling of efforts, specialisation).

Central to this proposal is the notion of ‘pooling and sharing’ which aims ‘to preserve and enhance national operational capabilities—with improved effect, sustainability, interoperability and cost efficiency as a result’. This was welcomed by the

151 ‘Headline Goal 2010’, Annex I to the Presidency Report on ESDP (European Council, Brussels, 17–18 June 2004). 152 See European Military Capabilities—Building Armed Forces for Modern Operations (London:The International Institute for Strategic Studies, 2008), 124–8, where there is also information about different battlegroups and the contributions by different Member States. 153 For a discussion of these developments, see Sven Biscop and Jo Coelmont, ‘CSDP and the ‘Ghent Framework’: The Indirect Approach to Permanent Structured Cooperation?’, (2011) 16 EFARev 149.

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Council which then asked the High Representative to work further on the issue along with the Member States, the Political and Security Committee, the EU Military Committee, and EDA.154 In March 2012, the Foreign Affairs Council adopted conclusions on pooling and sharing of military capabilities. It emphasizes ‘the urgent political necessity to retain and develop the military capabilities for sustaining and enhancing CSDP’, it refers to cooperation on pooling and sharing of military capabilities as a common response to European capability shortfalls, aiming at enhancing operational effectiveness in a context of financial austerity and a changing strategic environment’.155 It also provides an emphatic acknowledgment of the central role of both military capabilities and political will: ‘[m]ilitary capabilities and the political will to generate forces underpin the EU’s ability to contribute to security and stability through operational engagement’. The Council refers to existing collaborative projects, both in the framework of EDA, NATO, and between individual Member States, and stresses: the need for a more sustainable and structured policy on Pooling and Sharing on the longer term. Systematic cooperation will require a change of mindset and continuous political momentum and commitment. The Council encourages Member States, in the very early stages of their national processes, to systematically explore the possibility for Pooling and Sharing solutions.

Quite how these words will be translated in deeds by Member States is not yet clear. However, apart from their urgent tone, the substance in these developments is confined to references to small projects under way and incremental and unrelated initiatives already in existence. And yet, the circumstances are not to be underestimated. Nick Witney, the first Chief Executive of EDA, writes that ‘European defence, like economic and monetary union, has arrived at a place where Europe’s leaders must now decide whether they want to take it forward—or else watch it break up’ and warns that, if the issue of military capabilities is not addressed, ‘it will be no exaggeration to predict that the CSDP will by the end of 2012 be ready for its final obsequies’.156 While the financial crisis may render the logic of rationalizing the defence industries and pulling military capabilities compelling, it is the political will of the Member States which will determine the pace of any development, and the signs so far are not encouraging. 154

Foreign Affairs Council Conclusions on CSDP, (Brussels, 31 January 2011). Council conclusions on polling and sharing of military capabilities, (Brussels, 22 and 23 March 2012). 156 Nick Witney, How to Stop the Demilitarisation of Europe (London: European Council on Foreign Relations, 2011), 9 and 10. 155

10 Conclusions

The Union’s security and defence policy has been described as representing ‘a triumph of heightened expectations’.1 This book charted the development of the law and practice of the Common Security and Defence Policy by placing it within the wider constitutional framework governing the European Union’s external action. Its starting point was the troubled DNA of CSDP: originating in the very core of European integration in the 1950s, it faced death (when the European Defence Community was rejected by the French Parliament), irrelevance (during the 1960s and 1970s), and marginalization (as a footnote to the incrementally evolving Common Foreign and Security Policy in the 1980s and 1990s) before it appeared to emerge as a more distinct policy during the 2000s. The long negotiation and slow demise of the Treaty Establishing a Constitution for Europe, the more prominent position of the CSDP in the Treaty of Lisbon, and the operations and missions the EU started to undertake in 2003 raised the profile of the policy and rendered it part and parcel of every official pronouncement on the international role of the Union. It is not only its troubled development that makes CSDP a difficult child. Its inherent ties with the other strands of European integration illustrate a degree of ambivalence in its position within the overall constitutional framework of the EU: while an integral part of CFSP from which it has grown organically, it has also acquired a degree of autonomy due to its elaborate institutional and administrative framework which has shaped its own working methods and has developed a distinct esprit de corps; while distinguished from the other external policies of the Union in legal terms, it owes its existence to the successes of European integration and the EU’s economic might, both of which have fed its institutional and substantive development; it is distinct from the other strands of the EU’s external action, but its conduct is increasingly anchored to their implementation. If historical reasons explain the ambivalent position of security and defence in the Union’s overall structure, political developments render it all the more pronounced. The genesis of a multi-polar world order following the end of the Cold War and the emergence of dispersed and varied threats have changed the international security environment and have given rise to a broad understanding of security.They have also 1 Mark Webber, ‘The Common Security and Defence Policy in a multilateral world’, in Panos Koutrakos, European Foreign Policy – Legal and Political Perspectives (Cheltenham: Edward Elgar Publishing, 2011), 205, at 232.

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shaped a similarly broad approach to the instruments necessary for tackling security challenges, hence resulting in the steady securitization of external relations. These developments have made the linkages between CSDP and other EU external policies all the stronger. While sensible in policy terms, these have proved extremely difficult to manage. At the core of this difficulty is the deeply process-oriented approach which the EU institutions and the Member States have applied to the design of CSDP. This may be understood in the light of the development of European integration where a strong institutional preference for process is deeply ingrained. It may also be understood in the light of the early days of security and defence policy, as both European Political Cooperation and the CFSP were focused on process. However, this process-based approach has raised numerous problems. It has created a policy of such disconcerting complexity that it has become difficult to manage and has given rise to a legal space where the dividing line between different sets of rules is increasingly blurred. It has encouraged the EU institutions to spend time and energy which they can ill afford to waste on turf wars, and has risked involving the Court of Justice in deeply politicized disputes, which are essentially based on policy choices. It has also shaped the CSDP as a policy which is inward-looking, its operations and missions marred by inter-institutional conflicts and coordination challenges. Most importantly, it has failed to address the twin factors which have an impact on the effectiveness of the CSDP conduct, namely the lack of political will to commit on the ground troops and capabilities, personnel and resources, and the perilous state of defence industries. These are intrinsically linked: the Member States have shown little interest in addressing together the issue of their capabilities in a politically sensible and economically rational manner. The pathologies of the CSDP understood as process rather than policy have become apparent in the specific military operations and civilian missions that the Union has carried out: small in their size, limited in their mandate, safe in the environment where they are deployed, timid in their ambition, and dwindling in numbers. In the light of the sovereign debt crisis which it has been facing since 2009, the Union has lost clout as an international actor, and its institutions appear to have less energy for meaningful security and defence initiatives. In the light of the above, the high expectations which were raised by the emphasis of the Lisbon Treaty on the CSDP have clearly not been met. This is because legal rules in themselves may not make for an effective security and defence policy. To think otherwise is to misunderstand the peculiarities of security and defence, overestimate the function of law, ignore the complexities of the challenges which the latter purports to address, and overlook the lessons which the existing CSDP practice teaches us. This is not to suggest that law in this area is irrelevant. In fact, legal rules may have a beneficial effect on the practical underpinnings of defence: this is illustrated by the new approach of the Commission to the interpretation of Article 346 TFEU

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and its application to armaments, and by the recent case law of the European Court of Justice. It is also illustrated by the adoption of secondary legislation on public procurement and intra-Union transfers of arms; as its provisions strike the balance between extending the benefits of the internal market and acknowledging the sensitive character of defence materials and the ensuing interests of the Member States, they may give rise to conditions which would facilitate the rationalization of defence industries, and therefore, the state of military capabilities. This function of the law is both necessary and useful and focuses on what really matters for the effective conduct of CSDP. However, its impact would be in direct correlation to the will of the Member States to commit the political capital, energy, and resources to addressing the problems of capabilities as a matter of urgency. This factor is affected by the financial crisis which Europe is facing and the shock to the EU system which it has caused, as the latter makes things both difficult and easy. On the one hand, it makes Member States slash their defence budgets, focus all their energies on averting financial catastrophe, and become less interested in security and defence operations, and missions. On the other hand, it makes the economic case for joint initiatives on addressing the problems of capabilities all the more compelling. Therefore, the economic rationale could give rise to developments which political considerations had overlooked. In addition to this focus on the practicalities of CSDP, there is another factor that is bound to affect the policy, namely the manner in which the EU institutions and the Member States tackle the sovereign debt crisis and consolidate and expand the single market. It is recalled that the CSDP emerged in the context of a prosperous and growing and vibrant Union. Success on the internal plane was crucial to the development of the EU’s international role, and this umbilical cord may not be broken. Viewed from this angle, the failure of the Union to tackle the sovereign debt crisis with strong leadership, imagination, and realism undermines the effectiveness of CSDP. This is, therefore, the two fold conclusion which emerges from this analysis: EU law may have an impact on the inward-looking CSDP if it accepts its own limitations, shifts its emphasis away from processes, and focuses, instead, on the practical underpinnings of security and defence; crucial to this is the political will of the Member States to deal with the problems of capabilities and ensure the consolidation and expansion of the internal market. Otherwise, the Union risks dealing with ‘what to make of a diminished thing’.2

2 Robert Frost, ‘The Oven Bird’ in Robert Frost: Collected Poems, Prose, and Plays (New York: Library of America, 1995) 116.

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Index Abkhazia 160 Aceh, Indonesia Aceh Monitoring Mission (AMM) 58, 157–9, 193, 198, 218, 221 AMM-Initial Monitoring Presence (AMM-IMP) 159 deployment of 157–8 legal features of 158–9 objective of mission 158 practical problems with 159 security-related objectives 158 civil war in 157 Free Aceh Movement 157–8 Government of Indonesia 157 human rights issues 158 monitoring mission ((AMM) (2005–2006)) 157–9 post-conflict governance in 221 Adenauer, Konrad 9 AETR principle 237 Afghanistan 84 2001 invasion of 83 Afghan Government 147 Afghan Police trainers 146 Afghan security forces 146 German forces in 80 Instrument for Stability 219 national legal aid system 219 police mission in (EUPOL AFGHANISTAN) 146–9 see also NATO: NATO Training Mission—AFGHANISTAN African, Caribbean and Pacific Group of States (ACP) ACP-EC Council of Ministers 215 African Peace Facility 115, 220 African Union, the 131 African Union Mission (AMIS) African Union Mission in Darfur 103, 114–16 African Union Mission in Somalia (AMISOM) 114–15, 124 African Union Mission in Sudan (AMIS) 114–15 AMIS II 114–15 EU Support to AMIS Action (2005–2007) 114–16 Agenda for Peace, An 97–8 Agreement on Movement and Access 155–6 agreements, see international agreements Ahtisaari, Martti 157, 168, 170 Ahtisaari Report 170–1

Albania 192 EUFOR ALTHEA 193 framework participation agreement 206 AMIS, see African Union Mission (AMIS) Amsterdam Treaty 17, 20, 32, 40, 54, 103, 185 Angola 109 Annan, Kofi 98 Anti-Counterfeiting Trade Agreement (ACTA) 49 Arab/Israeli conflict 89 see also Israel border security procedures Area of Freedom, Security, and Justice (AFSJ) CSDP, interaction with 225–9, 247 congruence of objectives 227–8 external dimension of 225–6, 228, 247–8, 272 functional unity 247 objectives of 225, 227–8 terrorism and 225–9 see also development cooperation Argentina EUFOR ALTHEA 193–5 armaments 17, 68, 73, 272, 285 European Court of Justice, before the 257–64 Article 346 TFEU, strict interpretation of 257–60 confidentiality, issue of 260–2 national courts, role of 262–4 European Union law and 252–7 product list of 255–6 rules on exports of armaments 271–2 see also defence industries armed attack 8, 104 Armenia 163 ASEAN (Association of Southeast Asian Nations) 157–8 Ashdown, Lord Paddy 113, 137 Ashton, Baroness Catherine 46–7, 102 ATHENA mechanism 77 Atlantic Alliance, see NATO attribution 127 Australia classified information, confidentiality of 203 Austria non-membership of NATO 58, 105 authoritarianism 81 Azerbaijan 163 Badinter Committee 177 Balkan wars (1990s) 97 Barroso, José Manuel 1, 24–5, 82, 100

304 Battlegroup concept 104, 281 Belgium EDC Treaty 6 European Council Presidency 39 OCCAR membership 278 Prime Ministership of 40 WEU member 17 BENELUX countries 48 Berlin Declaration 99 see also Treaty of Rome Berlin Plus Agreement 65, 105–6 Biden, Joseph 191 Biological and Toxin Weapons Convention (BTWC) 36 Blair, Tony 18, 39, 56, 105 Blank, Theodor 9 border missions 155–7 Rafah Crossing Point (EUBAM Rafah) 155–7 Bosnia and Herzegovina (BiH) police mission in ((EUPM BiH) 133–8 Stabilisation Force (SFOR) 195–6 see also European Union Police Mission (EUPM) Bosniak-Croat Federation 137 Boutros-Ghali, Boutros 97 Brazil military budget 251 Brunei AMM Aceh 193 Bulgaria classified information, confidentiality of 203 EUPM Bosnia Herzegovina 193 framework participation agreement 205–6 Burkina Faso 178 Bush, George W. 39 Cameron, David 131 Cameroon EUFOR Tchad/RCA 198 Canada 144, 184 EUPOL AFGHANISTAN 146 framework participation agreement 205–7 capitalism 94 Cartagena Protocol 241 Central African Republic EUFOR Tchad/RCA 198 Instrument for Stability 220 North-Eastern, UN presence in 118 political instability in 117 see also MINURCAT Chad 129, 178 Community action 119 Eastern, UN presence in 118 EUFOR Tchad/RCA 198 UN Police force in 119 see also EUFOR Tchad (European Union

Index Force Tchad); EUFOR Tchad/RCA; MINURCAT Charter of Fundamental Rights 23, 127 Charter of Paris 32 Chile EUFOR ALTHEA 193–5 China climate change 86 maritime operations 123 Chirac, Jacques 18, 105 CIDSE (International alliance of Catholic development agencies working together for global justice) 49 climate change 85–6 Clinton, Hillary 191 coherence, principle of 20, 31, 35, 41, 43, 95–6, 100, 161 development cooperation 221–5 Cold War 1, 18, 71, 87, 89–90 post-Cold War environment 87, 97, 249, 279–80, 283 co-location, principle of 138–9 see also local ownership commercial policy 25–6 Commission Liaison Office (ECLO) 175 Committee for Civilian Aspects of Crisis Management (CIVCOM) 65 Committee on Civilian Planning and Conduct Capability 65–6 Common Commercial Policy (CCP) 93, 212, 242 Common Customs Code 261 Common Foreign and Security Policy 22–56 background 22 decision-making procedures 53–5 European Commission 52–3 European Council 38–40 European External Action Service 47–51 European Parliament 51–2 evaluation 55–6 expectations 22–5 High Representative of the Union for Foreign Affairs and Security Policy 40–7 instruments 35–7 integrated features 25–30 integration and distinctiveness 30–5 Common Military List of the European Union 271, 275 Common Security and Defence Policy (CSDP) abstention 54–5 civilian missions 133–82, see also under individual missions AMM (Aceh, Indonesia) 157–9 background 133 border missions 155–7 EUAVSEC-South Sudan (South Sudan) 177–8

Index EUBAM Rafah (Rafah Crossing Point) 155–7 EUCAP NESTOR (Horn of Africa) 179–80 EUCAP Sahel Niger (Niger) 178–9 EUJUST LEX (Iraq) 165–7 EUJUST THEMIS (Georgia) 162–5 EULEX KOSOVO (Kosovo) 168–77 EUMM GEORGIA (Georgia) 159–61 EUPAT (Former Yugoslav Republic of Macedonia) 140–1 EUPM BiH (Bosnia and Herzegovina) 133–8 EUPOL AFGHANISTAN (Afghanistan) 146–9 EUPOL COPPS (Palestinian territories) 143–5 EUPOL KINSHASA (Democratic Republic of Congo) 141–2 EUPOL PROXIMA (Former Yugoslav Republic of Macedonia) 138–9 EUPOL RD Congo (Democratic Republic of Congo) 142–3 EU SSR GUINEA-BISSAU (Guinea-Bissau ) 153–5 EUSEC RD CONGO (Democratic Republic of Congo) 143, 145, 150–3, 220 evaluation of 181–2 local ownership 134 monitoring missions 157–61 police missions 133–48, 150–4, 163–76 development cooperation and 210–25 coherence, quest for 221–5 policy interactions 212–15 security-development nexus, practice of 215–21 emergency brake, use of 54 exclusion rule 55 freedom, security and justice, interaction with 225–9 military operations of 101–32 see also under individual military operations administrative framework 101–2 background 101 EU Support to AMIS Action 114–16 EUFOR ALTHEA (Bosnia and Herzegovina) 111–14 EUFOR Concordia (FYROM) 107–9 EUFOR Libya 125–6 EUFOR RD Congo 116–17 EUFOR Tchad/RCA 117–20 EU-NATO relationship 104–7 EUNAVFOR Somalia—Operation ATALANTA 120–4 EUTM Somalia 124–5 evaluation 129–32

305 international responsibility 126–8 Member States, role of 129 military capabilities 102–4 Operation Artemis (RD Congo) 109–10 missions (other) 177–80 normalization of 182 origins and evolution of 1–21 background 1 European Defence Community 5–9 evaluation of 19–21 first phase 5–9 second phase 9–13 St Malo Declaration 18–19 starting point for 18–19 third phase 13–17 policy context of 79–99 European model, quest for 90–6 European Security Strategy, main themes of 80–90 evaluation 99–100 United Nations and the EU 96–9 practical and economic underpinnings of 248–82 evaluation of 278–82 qualified majority voting 54–5 responsibility 128 role of 68 substantive and institutional framework of 57–78 adminstrative structure and planning of missions 64–8 anti-terrorism 60 background 57 catch-all clause 58 CFSP instruments, conformity with 63 civil-military coordination 66 common policy, definition of 62 consultation 62 cooperation, culture of 62, 67–8 crisis management procedures 65 evaluation 78 financing 76–8 flexibility 72–6, 280–1 force generation conferences, organization of 66 informal working methods 67 institutionalization of CSDP 66–7 intergovernmental mechanisms 67–8 means 63 member states acting on behalf of the Union 72–3 member states, duties of 61–3 military capabilities, improvement of 63 mutual assistance clause 68–71 national resources 63 objectives of the CSDP 58–61 operational planning documents 66

306

Index

Common Security and Defence Policy (CSDP) (cont.) permanent structured cooperation 73–6 political solidarity 61 PSC, role of 67 scope and activities 57–61 tasks of the CSDP 59–61 unanimity, rule of 53–5 veto in foreign policy, loss of 54 see also international agreements communism 6 Concept of Operations (CONOPS) 66 Conference on Security and Cooperation in Europe (CSCE) 11 conflict prevention 59, 93, 214 see also development cooperation Congolese National Police 141–3 Convention against Torture (CAT) 208 Convention on the Future of Europe 23 Presidency of 26–7 Copenhagen Report 11–12 Country Assistance for Reconstruction, Development and Stabilization (CARDS) 136, 139–41 Court of First Instance (CFI) 258 Court of Justice of the European Union 80 armaments before 257–64 Article 346 TFEU, strict interpretation of 257–60 confidentiality, issue of 260–2 national courts, role of 262–4 choice of legal basis 229–47 ECOWAS case 231–44 evaluation of 246–7 Philippines Borders case 244–6 strict monitoring of 240–4 development cooperation agreements given by 241–2 jurisdiction of 222, 257 politicized disputes involving 284 profile of 247, 279 Cowper-Coles, Sir Sherard 148 crisis management 17, 59, 65, 93, 103, 105–6, 133, 276 Crisis Management and Planning Directorate 65 rule of law in 162 see also Committee for Civilian Aspects of Crisis Management (CIVCOM); United Nations: UN-EU Co-operation in Crisis Management Croatia 111, 192 classified information, confidentiality of 203 EULEX KOSOVO 194 EUPOL AFGHANISTAN 146 transfer agreement 208 cyber security 85, 88

Cyprus 54, 171 conflict in 107 constructive abstention 171, 173 EDA participation 106–7 EUPM Bosnia Herzegovina 193–4 Kosovo, relations with 174 non-membership of NATO 58, 105, 112 Czech Republic CONCORDIA 193 EUPM Bosnia Herzegovina 193 Iraq War 165 Darfur, see African Union Mission (AMIS): African Union Mission in Darfur; UNAMID DARIO (Draft Articles on the International Responsibility of International Organizations) provisions 128 Dashwood, Alan 238 Dayton Peace Agreement 111, 113, 133, 137, 168 De Gaulle, Charles 9 Defence and Security Cooperation Treaty 278 defence industries aerospace industry 250 capabilities and armaments policy 276 collaboration 274 competitiveness of 277 defence package 270 defence procurement 270–1 duty of loyal cooperation 256–7 economic and structural problems 251, 269 European defence spending 250–1 research and development 251 Implementing European Union Strategy on Defence Related Industries 269 licensing regimes 275 list of exclusions 274 mutual recognition, principle of 275 national sovereignty 254–6, 270 rationalization of 285 Report on European Security and Defence Policy 277 research and development 269, 274 restructuring and consolidation of 268 rules on exports of armaments 271–2 sensitive equipment 273 state of (European Union) 249–52 transfers of defence products 275 voluntary code on defence procurement 277–8 see also armaments; European Defence Agency (EDA); public procurement democracy 31–2, 81, 92, 133, 142, 152, 157, 211, 234, 241, 244 Democratic Republic of Congo (DRC) Instrument for Stability projects 220

Index police missions in: EUPOL RD Congo 142–3 EUPOL KINSHASA 141–2 post-conflict stabilisation 213 Security Sector Reform mission (EUSEC RD CONGO) 150–3, 213 see also Common Security and Defence Policy (EUSEC RD Congo); MONUC Denmark 9, 77, 108, 112 confidentiality, requirement of 260 Iraq War 165, 167 detention 123 development cooperation broad understanding of 239–40 Common Commercial Policy 212 Conclusions on Security and Development (2007) 223 conflict 213 CSDP and 210–25, 242–3 coherence, quest for 221–5 policy interactions 212–15 security-development nexus 215–21 development aid 210 Development Cooperation Instrument 49–50 disaster relief 212 European Security Strategy and 212–14, 222, 239 EU Strategy for Africa 214–5 European Consensus on Development 214, 223 external action, objectives of 211–12 humanitarian aid 212 Joint Statement on Development Cooperation 235 rule governing conduct of 210–11 scope of 212 disaster assistance 32, 211–12 Djibouti 179 EUNAVFOR Atalanta 198 Djibouti process 124 Eastern and Southern Africa and Indian Ocean (ESA/IO) 124 Economic Community of West African States (ECOWAS) 44, 188, 211, 231–44 ECOWAS case 231–44 choice of legal basis, monitoring of 240–4 development cooperation, broad understanding of 239–40 implications, the 236 judgment, the 233–5, 239, 241 security, defence and other policies, separation of 236–8 effective control test 128 Egypt 155 energy security 85–6

307

Energy Star Agreement 241 environment 32, 211, 244, 246 equal treatment principle 31, 273 essential security interests 267 concept of 265 Estonia CONCORDIA 193 EUPM Bosnia Herzegovina 193 treaty on defence cooperation 278 EU Code of Conduct on Arms Exports 271, 277–8 EU Coordination Cell 115 EU-NATO Declaration on European Security and Defence Policy 106 EU Requirements Catalogue 103 EUAVSEC (EU Aviation Security Mission) 177–8 EUBAM Rafah (European Union Border Assistance Mission at the Rafah Border Crossing Point) 155–7 added value of 156 challenges to 156 EUPOL COPPS, potential merger with 157 impact of 156–7 mandate of 156 see also Rafah Crossing Point EUCAP EUCAP NESTOR 179–80 EUCAP Sahel Niger 178–80, 218, 228 EUFOR (European Union Force) 195, 200 EUFOR ALTHEA (Bosnia and Herzegovina) 66, 98, 104, 111–14, 129, 133, 136, 193–5 EUPM, overlap with 136 EUFOR Concordia (FYROM) 107–9, 138, 218 EUFOR Congo 130 EUFOR DR Congo 98 EUFOR Libya 47, 125–6 EUFOR RD Congo 116–17, 141, 192–3, 198, 200 EUFOR Tchad (European Union Force Tchad) 194 EUFOR Tchad/RCA 98, 128, 192, 194–5, 197–8, 202, 220 EUFOR Tchad/RCA 117–20, 200, 220 EUJUST LEX (EU Rule of Law Mission for Iraq) coordination, issue of 167 impact and visibility of 167 objectives of 167 political environment of 165–6 tasks of 167 see also Iraq

308

Index

EUJUST THEMIS (EU Rule of Law Mission to Georgia) coordination, practice of 164–5 local ownership 163 mandate of 164–5 objective of 162–3 problems with 163 see also Georgia EULEX KOSOVO (EU Rule of Law Mission in Kosovo) 98, 151, 194, 196, 220 application on the ground 174, 176 challenges and problems 175–6 coherence 175–6 coordination 175–6 establishment of 170 executive functions of 173–4 impact of 171, 173, 177 institutional and administrative factors 174 legal developments 174–5 local ownership 173 mandate of 171 operational role of 171–2 precursor to 168 recognition, issue of 176–7 scope and objectives of 173 Serbian reaction to 171 significance of 176 see also Kosovo EUMM GEORGIA, see Georgia EUNAVFOR Somalia—Operation ATALANTA 120–4, 129, 179–80, 192, 198, 208–9, 219 see also piracy at sea; Somalia EUPOL (European Union Police Mission) 220 EUPOL AFGHANISTAN 98, 145–9, 176, 192, 198–9 added value of 147 aim of 146–7 background of 146, 148 civil-oriented approach 148 coherence 148 composition of 146 local ownership 147 problems with 147 EUPOL COPPS (European Union Coordinating Office for Palestinian Police Support) 143–5, 156–7, 228 added value of 144 aim of 144 background of the mission 143 EUBAM Rafah, potential merger with 157 impact of 144 launch of 143–4 local ownership 144 mandate of 144 EUPOL KINSHASA 141–3, 150, 152, 198, 201

EUPOL PROXIMA (European Police Mission in the former Yugoslav Republic of Macedonia) 138–41, 193, 197, 199, 201 co-location, principle of 138–9 composition of 138 double-hatting practices 139 local ownership 139 stabilization and association process 139 EUPOL RD Congo 142–3, 150, 152 see also Afghanistan; Democratic Republic of Congo (DRC); Former Yugoslav Republic of Macedonia (FYROM); Palestinian territories euro, the 81–2, 100 European Agency for Reconstruction 139 European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR) 237, 242 see also AETR principle European Atomic Energy Community (EAEC/ EURATOM) 202, 218, 232 European Capabilities Action Plan 103 European Coal and Steel Community (ECSC) 5–6, 8, 10, 20, 81, 232 European Commission 52–3 definition of the role of 265–6 new approach by 264–8 European Commission Security Directorate 205 European Community Humanitarian Office (ECHO) 119 European Conference on Antennas and Propagation (EUCAP), see EUCAP European Consensus on Development 214, 222–3, 239 European Convention of Human Rights 127 European Council 38–40 Brussels (24–25 October 2002) 206 Copenhagen (21–22 June 1993) 32 Council Secretariat 64 decision-making powers of 38 Feira (19–20 June 2000) 162, 183–4 Gothenburg ( June 2001) 162 Helsinki (11–12 December 1999) 1, 103, 183 Laeken (14–15 December 2001) 23 Nice (7–9 December 2000) 65, 183, 206 Presidency of 39–40, 45 role of 38–9 Seville (21–22 June 2002) 206 significance of 38 Thessaloniki (June 2003) 276 European Court of Human Rights 127–8 European Court of Justice, see Court of Justice of the European Union European Defence Agency (EDA) 63, 65, 68,

Index 73–5, 107, 129, 251, 269, 274, 276–8, 282 OCCAR, Administrative Arrangement with 278 tasks carried out by 276 European Defence Community (EDC) 3, 5–10, 13–14, 20, 22, 283 European Defence Technological and Industrial Base 272, 274, 276 European Development Fund (EDF) 49–50, 95, 141–2, 154, 180, 213, 215 European Economic Community (EEC) 7, 10, 81, 93, 232 European External Action Service (EEAS) 42, 47–52, 55, 65, 72, 102, 124, 156, 178, 190, 223–5 benefits of 51 concept of 48 Development Commissioner 50 establishment of 47, 49 Heads of Delegations 50 Lisbon Treaty and 48 organization and functioning of 48, 50–2, 55 political accountability of 49 European integration 9, 16, 33, 81, 90, 100, 283–4 European Military Committee, see European Union Military Committee (EUMC) European Neighbourhood Policy (ENP) 88, 96, 155, 161, 163–5, 179 ESS and 88 regionalism, emphasis on 165 European Parliament 11, 25, 39, 46, 51–2 budgetary role of 52 classified information 204 decision-making procedures 222, 243 defence industries 254, 266, 269 EEAS 48 High Representative of the Union for Foreign Affairs and Security Policy 51 international agreements 190–1 European Political Cooperation (EPC) 10–15, 19–20, 62, 96, 284 European Political Cooperation Reports 62 Copenhagen Report 11–12 Luxembourg Report 11 London Report 12–13 European Security Research Advisory Board 269 European Security Research Programme 269 European Security Strategy (ESS) 2008 Report on 94, 96, 168, 180, 187, 213, 239 added value 145 climate change 85–6 coherence 95–6, 222 currency/euro, the 81

309

cyber security 85, 88 development cooperation and 93, 96, 212–14, 239 drafting of 81, 99 economic success 81, 92 energy security 85–6 ENP and 88 EU enlargement 81 EU external policies 187 European integration 81, 90 European Security Model 90–1 European Union’s interests 92–3 globalization 89 introduction to 168 language of 180, 182 main themes of 80–90 internal-external link 81–3 regional and global focus 88–9 responsibility 89–90 security, broad definition of 83–8 openness, principle of 184 organized crime 84–5 policy design, symmetry of 93 regional objectives of 88–9 Russia-Georgia crisis 159–60 security sector reform and 149 security, broad understanding of 248 soft power 94 structure of 80 territorial integrity 93 terrorism and 83–4, 86–7 trade and development 93, 96 see also Internal Security Strategy European Space Agency classified information, confidentiality of 203 European Union (EU) armaments and EU law 252–7 defence industries, state of 249–52 enlargement 31 external action, objectives of 32 international legal obligations 126–7 legal personality 126 member states of 21 membership, criteria for 31–2 military operation, objectives of 116 NATO, relationship with 104–7 policy initiatives 268–76 at intergovernmental level security policy 32 United Nations and 96–9 see also under individual committees, organizations, member states and missions

310

Index

European Union Military Committee (EUMC) 64–5, 103, 108, 282 composition of 64 meetings of 64 purpose of 64 responsibilities of 64 European Union Military Staff Organization (EUMS) 64–5, 102 Civilian-Military Cell 66 composition of 64 function of 64 tasks of 64–5 European Union Monitoring Mission (EUMM) 159–61, 176, 198, 200–1 see also Georgia European Union Naval Force Somalia (EUNAVFOR), see EUNAVFOR; Somalia European Union Police Force Training (EUPFT) 219 European Union Police Mission (EUPM) 98, 133–9, 193–4, 197, 199, 218 EUFOR ALTHEA, overlap with 136 legal and political context 135 mandate of 135–6 objectives of 135 personnel of 134–5 Stabilisation and Association Agreement 135–6 structure and content of reforms 137–8 see also Bosnia and Herzegovina European Union Training Mission (EUTM) 129 EUTM Somalia 103, 124–5, 129, 180, 199 European Union’s Special Representative (EUSR) 109, 115, 119, 131, 136–7, 152, 174, 201 Bosnia and Herzegovina, in 113 Democratic Republic of Congo (DRC), in the 143 FYROM, in 139 Georgia, in 163 Horn of Africa, for the 124, 179–80 Kosovo, in 174–5 EUSEC RD Congo 150–3, 220 coherence 152 deployment 151 focus of mission 151–2 funding 152 local ownership 152 mandate of 151 national projects 152 policies 152 technical issues 152 EUTM Somalia 124–5 Exchange of Letters 193

fair trial, right to 123 financial crisis (2008–present) 82, 100, 251, 277 Finland 168 confidentiality, requirement of 260–2 customs duties 261–2 Finnish Defence Forces Technical Research Centre 262 Finnish Supreme Administrative Court 262 non-membership of NATO 58, 105 Fleischer, Björn 9 food security 244, 246 see also World Food Programme Foreign Affairs Council 40–1, 43, 46, 282 foreign direct investment (FDI) 212 Former Yugoslav Republic of Macedonia (FYROM) classified information, confidentiality of 203–4 EUFOR ALTHEA 193 police missions in: aim of 140 establishment, reasons for 140–1 EUPAT FYROM 140–1 EUPOL PROXIMA 138–9 mandate of 140 see also EUPOL PROXIMA France bilateral initiatives 278 defence industry 252 EADS 251 EDC Treaty 6, 283 EU Operational Headquarters 102 EU Presidency 159 EUFOR Libya (2011) 125 EUFOR RD Congo 117, 130 EUFOR Tchad/RCA 118, 130 European defence spending 250 French version of the TEU 58 Germany, relations with 9 Libya, 2011 intervention in 131, 252 NATO and 105 OCCAR membership 278 Operation Artemis 110, 130 political change in 8–9 political developments within 78 Treaty Establishing a Constitution for Europe 23–4, 40 Weimar letter, the 281 WEU member 17 see also St Malo Declaration Fursdon, Edward 6 G8 39 Gabon EUFORRD Congo 198

Index Gaddafi, Muammar 131, 252 Garton-Ash, Timothy 222 Gates, Robert 280 Geoană, Mircea 107 Georgia borders of 201 Country Strategy Paper 164 criminal justice system, reform of 163–5 Criminal Procedural Code 164 EU/Georgia Action Plan 164 monitoring mission (EUMM GEORGIA) 159–61, 176 coherence 161 human rights issues 160 mandate of 160 objectives of 160 practical problems 161 tasks of 160–1 normalization in 160 President of 163 Progress Report on Georgia 164 rule of law mission (EUJUST THEMIS) 162–5, 198, 201 see also EUJUST THEMIS; European Union Monitoring Mission (EUMM); Russia-Georgia war Germany Afghanistan 147 confidentiality, requirement of 260 defence spending 251 EADS 251 EDC Treaty 6, 8–9 ESS, political opposition to 80 EU Operational Headquarters 102 EUFOR RD Congo 117, 130 European defence spending 250 France, relations with 9 German Police Project Office 146–7 German-Swedish military cooperation 75, 281 Iraq War 167 Libya, 2011 intervention in 131 OCCAR membership 278 political developments within 78 rearmament 8–9 security sector reform 146 United Kingdom, relations with 9 United States, relations with 8–9 Weimar letter, the 281 WEU member 17 Ghent process, the 281 Giscard d’Estaing, Valery 23, 82 global governance 32, 92, 152, 157, 211, 244 globalization 1, 24–5, 89, 99, 159, 212 Great Lakes Region 84 Greece confidentiality, requirement of 260

311

EU Operational Headquarters 102 Greek version of the TEU 58 Kosovo, relations with 174 Gross National Product (GNP) 76, 81 Guinea-Bissau dictatorship in 153 drug-trafficking 153 Instrument for Stability projects 221 national security strategy 153 post-conflict stabilization 213 Security Sector Reform mission (EU SSR GUINEA-BISSAU) 153–4, 213 EU policies and 154 local ownership 153–4 objective of 153 problems with the mission 154 Gulf of Aden 122 Hague, William 47, 102 Hamas 144, 156 Helsinki Final Act 32 Helsinki Headline Goal 103–4 High Representative for the Common Foreign and Security Policy 79, 105, 107 High Representative of the Union for Foreign Affairs and Security Policy 40–7, 49, 64, 72, 74, 77, 95, 102, 115–16 CFSP responsibilities of 41 European Parliament and 51 executive powers of 41–2 impact of the post 43 institutional affiliations of 44 international representation of the EU 45 mandate, scope of 44 objectives of the post 41 political accountability 52 President of the European Council and 45 responsibilities of 41–4 unanimity, rule of 53–4 Hollande, François 278 Horn of Africa challenges of the region 180 EU Operations Centre 180 Horn of Africa mission (EUCAP NESTOR) 179–80 Strategic Framework (2011) 179–80, 182 human rights and fundamental freedoms 32, 92, 152, 211, 234, 241, 244, 271 human dignity, respect for 31 universality and indivisibility of 31 humanitarian law 127, 142, 152, 208 humanitarian aid 212 humanitarian and rescue tasks 17

312

Index

Hungary EUPM Bosnia Herzegovina 193 Iraq War 165 Iceland 105 classified information, confidentiality of 203 EUPM Bosnia Herzegovina 193 framework participation agreement 205–6 India climate change 86 EU–India development cooperation agreements 241 India Co-operation Agreement judgment 241 maritime operations 123 military budget 251 Indian Ocean 122 Indonesia, see Aceh, Indonesia; tsunami disaster Initiating Military Directive 66 institutional balance, principle of 230 Instrument for Pre-Accession Assistance (IPA) 175 Instrument for Stability (If S) 154, 182, 215–21, 223–4 activities of 216–19 aims and objectives of 215–16 applications of 216 civilian missions, role in 218–21 EEAS in the implementation of 223–4 Exceptional Assistance Measures 217 funding available under 217, 219 impact on CSDP initiatives 219 Interim Response Programmes 217 Strategy Papers 217 Integrated Police Unit 141 Intergovernmental Conference (IGC) 23–4, 96, 185 Internal Security Strategy 83–4, 87, 90–1 see also European Security Strategy international agreements 183–209 background 183–5 classified information, protection of 196–7 compensation 196 decision-making autonomy 194 evaluation of 209 forces and personnel, roles of 194–6 liability 196 negotiation and conclusion of 185–91 conclusion of 190–1 negotiation of 187–90 settlement of disputes 197 technical and administrative arrangements 196 termination of 196–7, 206 typology of CSDP agreements 192–209 classified information, security procedures for 203–5 CSDP missions, third state participation in 192–8

framework participation agreements 205–8 status of forces agreements (SOFAs) 198–202 status of missions agreements (SOMAs) 198–202 transfer agreements 208–9 International Court of Justice 126–7 International Covenant on Civil and Political Rights (ICCPR) 208 International Criminal Court (ICC) 37 International Criminal Tribunal for the Former Yugoslavia (ICTY) 128 International Institute for Strategic Studies 279–80 international law 32, 211 principles of 31 international relations theory 2–3 International Security Assistance Force (ISAF) 146 International Steering Group (ISG) 174–5 international trade 32 Iraq 148 criminal justice system in 167 Iraqi Chief Justice 167 police reform 167 rule of law mission (EUJUST LEX) 165–7 see also EUJUST LEX Iraq War 165–7 Ireland 15 European Commission, participation in 23 Irish Constitution 58 Irish Supreme Court 15 Lisbon Treaty in 23 Decision on the Concerns of the Irish People on the Lisbon Treaty 71 neutrality in 71, 108 non-membership of NATO 58, 105 Single European Act (SEA) 15 Iron Curtain 87 Israel border security procedures 155 classified information, confidentiality of 203 cyber security 85 see also Arab/Israeli conflict; EUBAM Rafah Israeli-Palestinian crisis 143 see also Israel; Palestinian Territories Italy Augusta helicopters, use of 259–60, 262–3 confidentiality, requirement of 260 EDC Treaty 6 EU Operational Headquarters 102 Iraq War 165 OCCAR membership 278 WEU member 17 Jacobs, Sir Francis 25–6, 92, 263–4, 267 Japan maritime operations 123

Index Joint Coordination Committee 202 Jordan 167 Kashmir 84 Kenya 123, 179 EUNAVFOR ATALANTA 208 transfer agreement 208 Korea Korean Peninsula 84 see also North Korea; South Korea Kosovo EU Planning Team (EUPT Kosovo) 168–70 Joint Council-Commission Fact Finding Mission 169 Kosovo Border and Boundary Policy 175 Kosovo Force (KFOR) 171, 176 Kosovo Liberation Army 168 rule of law mission (EULEX KOSOVO) 54, 151, 168–77, 179, 192, 194–6 see also EULEX KOSOVO; UNMIK Laeken Declaration 1, 23–4, 27, 37, 82, 104 Cold War 89 globalization 89 Latvia CONCORDIA 193 EUPM Bosnia Herzegovina 193 League of Arab States 125 legal personality 126, 185–6 Leila incident 69–70 lex specialis 53 liability 196 Liberia 84 Libya 2011 intervention in 131, 252 Baroness Catherine Ashton, views of 47 civil war in 125 crisis situation in 47 see also EUFOR Libya Lidington, David 47–8 Liechtenstein classified information, confidentiality of 203 Lisbon Treaty 1–3, 5, 19 competence to carry out CSDP 34 CSDP provisions in 24 CSDP/ESDP, semantics of 30–1 Declaration 41 28 disbursement of funds 77 drafters of 191, 224, 244 entry into force 22, 204 EU constitutional order under 28–30, 55–6 external relations provisions 31 history of 22–4, 34, 55–6 impact of 24, 55–6, 78 institutional changes to CSDP 38, 78 instruments 37

313

integration, language of 55 legal personality 28 pillar structure, abolition of 25–30, 37 principles, aims, and objectives 31 security and defence policy 30–1 unified legal system established by 27 see also High Representative of the Union for Foreign Affairs and Security Policy Lithuania CONCORDIA 193 EUPM Bosnia Herzegovina 193 local ownership AMIS action 115 civilian missions, prominence in 221 EUAVSEC-South Sudan 177 EUCAP NESTOR 180 EUCAP Sahel Niger 178–9 EUPM BiH (Bosnia and Herzegovina) 133–4 EUJUST LEX 167 EULEX KOSOVO 173, 176 EUPOL AFGHANISTAN 147 EUPOL COPPS 144 EUPOL PROXIMA 138 EUSEC RD CONGO 152 rule of law missions 162 EUJUST THEMIS 163 SSR missions 150 EU SSR GUINEA-BISSAU 153–4 London Report 12–13 Lusaka Ceasefire Agreement 109 Luxembourg EDC Treaty 6 WEU member 17 Luxembourg Report 11 Maastricht Treaty 1, 15–17, 32, 84 joint action, aspects of 53 Macedonia, see Former Yugoslav Republic of Macedonia (FYROM) Malaysia AMM Aceh 193 Mali 178 Malta non-membership of NATO 58, 105, 112 Maritime Security Centre-Horn of Africa 122 Mauritania 178 Mauritius 123 EUNAVFOR ATALANTA 208 transfer agreement 208 Memorandum of Understanding (MoU) 155, 157–8, 161 Merkel, Angela 82, 100 Middle East, the 36, 84 see also under individual countries Miliband, David 43 Millennium Development Goals 215

314

Index

MINURCAT (United Nations Mission in the Central African Republic and Chad) 118 see also Central African Republic; Chad Moldova 155 Moldova-Ukraine borders 228 monitoring missions 157–61 AMM (Aceh, Indonesia) 157–9 EUMM GEORGIA (Georgia) 159–61 Montenegro 192 classified information, confidentiality of 203 framework participation agreement 206 transfer agreement 208 MONUC (United Nations Organization Mission in the Democratic Republic of the Congo) 109, 116–17, 141–2, 151 see also Democratic Republic of Congo (DRC) Morocco 69 EUFOR ALTHEA 193 multilateralism 89, 91–2, 97, 184 multilateral cooperation 32, 211 see also unilateralism Muslim-Croat Federation 133 mutual assistance clause 68–71 broad scope of 71 disasters and 70 duty on Member States 68 enforcement and compliance 69 function of 70 interpretation of 69–70 new solidarity clause (TFEU) 70 political solidarity 69–70 terrorism under 70–1 mutual recognition principle 275 Namibia 109 NATO (North Atlantic Treaty Organization) 4, 7 Allied Command Operations 102 Allied Harmony Operation 107 AMIS II and 115 assets and capabilities 65, 107–8, 112 Charter of 69 classified information, confidentiality of 203–4 crisis management operations 105–7 defence organization, as a 15, 18, 58, 105, 107, 129, 204, 249 Deputy Supreme Allied Commander of 87, 108 EU-NATO Declaration on European Security and Defence Policy 106 European Union Military Staff (EUMS) and 65, 106 European Union, relationship with 17, 47, 99, 101–2, 104–8, 181, 183–4, 203–4, 282 future of 280

Implementation Force 111 Kosovo, bombardment in 168, 170 Libyan Crisis (2011) and 126 membership of 10, 17, 58, 105, 112, 183–4, 206, 250, 282 North Atlantic Council 106 Operation ALTHEA and 113, 195 Operation Ocean Shield and 123 Partnership for Peace 106 planning capacities of 281 resources of 110, 183–4 role and responsibility of 58, 104–6, 128 Secretary General of 40, 105, 107, 250 Spanish armed forces 257 Stabilisation Force 112 Supreme Commander 7 Training Mission-AFGHANISTAN (NTM-A) 148 Treaty of: mutual defence clause 8, 68–71 United Kingdom participation in 123 United States investment in 280 see also EUFOR Concordia; Supreme Headquarters Allied Powers Europe (SHAPE) necessity, principle of 267 Netherlands, the EDC Treaty 6 Treaty Establishing a Constitution for Europe 23–4, 40 WEU member 17 neutrality 23, 58, 71 New Zealand 192 EUFOR ALTHEA 193–5 EUPOL AFGHANISTAN 146 framework participation agreement 206 Nice Treaty 17, 19, 32, 54, 185, 191, 231, 236–8, 241 Declaration on the Future of Union 22–3, 37 pre-existing provisions 22 semantics of 57–8 Niger 178 Niger mission (EUCAP Sahel Niger) 178–80, 218, 228 terrorism and 218 Nigerien Strategy for Security and Development 178–9 non-discrimination principle 273 non-proliferation policy 99 North Korea 6 Norway 144 classified information, confidentiality of 203 EUPM Bosnia Herzegovina 193 EUPOL AFGHANISTAN 146 EUPOL PROXIMA 193 framework participation agreement 205–6 non-EU membership 105

Index nuclear weapons 36 see also Strategy against Proliferation of Weapons of Mass Destruction Nye, Joseph S. 88, 249 Obama, Barack 85, 131 Office for the Coordination of Humanitarian Affairs (OCHA) 125–6 Ohrid Framework Agreement 107–8, 138 One Earth Future Foundation 120 openness, principle of 183–4 Operation Allied Harmony 107 Operation ALTHEA, see EUFOR ALTHEA Operation Amber Fox 107 Operation Artemis (RD Congo) 66, 98, 109–10, 116–17 Operation ATALANTA, see EUNAVFOR Somalia—Operation ATALANTA Operation Enduring Freedom 146 Operation Essential Harvest 107 Operation Ocean Shield 123 Operation Plan (OPLAN) 66, 194 Organisation for Economic Co-operation and Development (OECD) 149 Organisation for Joint Armament Cooperation (OCCAR) 278 EDA, Administrative Arrangement with 278 Organisation for Joint Armaments Cooperation 203 Organization for Security and Co-operation in Europe (OSCE) 161 organized crime 84–6, 113, 135, 140, 222, 228 overall control test 128 Palestinian Territories Instrument for Stability projects 220 National Security Forces 145 Palestinian authorities 144 border security procedures 155 Palestinian Civil Police 144–5, 220 police mission in (EUPOL COPPS) 143–5 Presidential Guard 145 see also EUBAM Rafah; EUPOL COPPS; Israeli-Palestinian crisis Paris Treaty 6, 8 Partnership and Cooperation Agreement 163 Partnership for Peace 106 Patten, Chris 5, 165 peace and security, international 8, 68, 172, 211, 234–5 Peace Framework Agreement 112 Permanent Representatives Committee (COREPER) 65 permanent structured cooperation 73–7, 281 capabilities criteria 75 continuity principle 74–5

315

criteria for 73–4 legal rules, vagueness of 75 openess principle 74 Protocol on 75 Petersberg Declaration 17 Petersburg Tasks, the 17, 59 Philippines, the AMM Aceh 193 Philippines Borders case 244–6 Philippines Border Management Project 245 terrorism, financing of 245 pillar structure 38, 82–3, 94, 185, 204, 267 post-pillar EU structure 76 see also Lisbon Treaty piracy at sea 122–3, 208–9 ESS Report (2008) 120–1 financial cost of 120 Security Strategy (2003) 120 significance of 120–1 World Food Programme vessels, protection of 121–2 see also EUNAVFOR Somalia—Operation ATALANTA Plan Fouchet 9–10 Pleven, René 6 Poland CONCORDIA 193 EU Operational Headquarters 102 EUPM Bosnia Herzegovina 193 European External Action Service 48 Iraq War 165 Weimar letter, the 281 Police and Judicial Cooperation in Criminal Matters 25, 28 Instrument for Stability 216 police missions 133–49 EUPAT (Former Yugoslav Republic of Macedonia (FYROM)) 140–1 EUPM BiH (Bosnia and Herzegovina) 133–8 EUPOL AFGHANISTAN (Afghanistan) 146–9 EUPOL COPPS (Palestinian territories) 143–5 EUPOL KINSHASA (Democratic Republic of Congo) 141–2 EUPOL PROXIMA (Former Yugoslav Republic of Macedonia) 138–9 EUPOL RD Congo (Democratic Republic of Congo) 142 policy initiatives at intergovernmental level 276–8 European Union 268–76 Political and Security Committee (PSC) 25, 42–3, 64–7, 71, 103–4, 106, 108, 112, 126, 130, 163, 184, 195, 282 pooling and sharing 281–2

316 Portugal Guinea-Bissau SSR mission 153 Iraq War 165 WEU member 17 poverty 32, 211–2 Powell, Jonathan 56 Pretoria Agreement 141 Prodi, Romano 24, 166 proportionality, principle of 267–8 Provincial Reconstruction Teams 146 public procurement 265, 271, 273, 277 see also defence industries qualified majority voting (QMV) 53–5, 190 Rafah Crossing Point border mission (EUBAM Rafah) 155–7 see also EUBAM Rafah Rapid Reaction Mechanism 158 Red Sea, the 122 refugees refugee camps in Eastern Tchad 119 United Nations High Commissioner for 112 regional conflicts 83–4, 86, 90, 98 regulatory intervention 266–7 RELEX (Working Group on EU External Relations) 48 Report on European Military Capabilities 279–80 Republika Srpska 133, 137 Robertson, George 105, 107 Romania classified information, confidentiality of 203 CONCORDIA 193 EUPM Bosnia Herzegovina 193 framework participation agreement 206 Kosovo, relations with 174 Rotterdam Convention 241 rule of law 31–2, 81, 92, 142, 144, 148, 152, 157, 211, 234 in crisis management 162 definition of 162 rule of law missions 162–77 EULEX KOSOVO (Kosovo) 168–77 EUJUST LEX (Iraq) 165–7 EUJUST THEMIS (Georgia) 162–5 Russia 25–6, 85, 171 classified information 197–8, 205 classified information, confidentiality of 203 climate change 86 energy security 85 EUFOR Tchad/RCA 120 EUPM Bosnia Herzegovina 193 European Union, relations with 25–6 EU-Russia Agreement 197–8 EUSR and 175 Israeli-Palestinian crisis 143

Index maritime operations 123 Russian helicopters 130 strategic importance of 184 Russia-Georgia war 43, 85, 159 oil and gas, importance of 161 see also Georgia; Russia Rwanda 109, 220 Sarkozy, Nicolas 43, 45, 131, 159 Schuman Declaration 6 Security Office of the Council General Secretariat 205 Security Sector Reform (SSR) 60, 213, 220 Concept for Support for SSR 150 ESS and 149 EU Concept for ESDP support to 149–50 holistic approach to 150 security and development dimensions 150 security sector, definition of 149 SSR missions 149–54 EU SSR GUINEA-BISSAU (GuineaBissau) 153–4, 198, 221 EUSEC RD CONGO (Democratic Republic of Congo) 150–3 self-defence 8, 68, 87, 104, 200 Serbia classified information, confidentiality of 203 EULEX KOSOVO, reactions to 171 EUSR and 175 framework participation agreement 206 Service for Foreign Policy Instruments (FPI) 224 Seychelles, the 122–3, 179 EUNAVFOR ATALANTA 198, 208 transfer agreement 208–9 SFOR, see Bosnia and Herzegovina Singapore AMM Aceh 193 Single European Act (SEA) 13–17, 62 Slovakia CONCORDIA 193 EUPM Bosnia Herzegovina 193 Kosovo, relations with 174 Slovenia EUPM Bosnia Herzegovina 193 small arms and light weapons (SALWs) 80, 121, 188, 214, 231–5, 239–40 see also armaments Smith, Gen. Sir Rupert 87 Solana, Javier 40, 48, 79, 105, 107, 118, 130, 158, 169 Somalia 84, 129, 179 conflict in 213 London Conference on Somalia (2012) 209 rule of law in 179 see also EUNAVFOR Somalia—Operation ATALANTA; piracy at sea

Index South Korea 6 South Ossetia 160 South Sudan mission (EUAVSEC-South Sudan) 177–8 sovereign debt crisis 285 Soviet Union fall of 84 see also Russia Spain armaments,VAT exemption for 257–8 EADS 251 EU Operational Headquarters 102 Iraq War 165 Kosovo, relations with 174 OCCAR membership 278 Spanish armed forces 257–8 WEU member 17 St Malo Declaration 18–19, 30, 105 Stabilisation and Association Agreement 169, 199 Stabilization and Association Process (SAP) 135–6, 169, 175, 185, 204 State Border Service 134 State Intelligence Protection Agency 134 State liability 127 status of forces agreements (SOFAs) 192, 197–202, 207 dispute settlement 201 local contracting 201–2 responsibility, division of 202 status of mission agreements (SOMAs) 198–200, 207–8 Strategy against Proliferation of Weapons of Mass Destruction 36 see also nuclear weapons Strategy for Africa 214–15, 228 Supreme Headquarters Allied Powers Europe (SHAPE) 106 see also NATO sustainable development 32, 211, 235, 244 see also development cooperation Sweden confidentiality, requirement of 260 German-Swedish military cooperation 75, 281 non-membership of NATO 58, 105 treaty on defence cooperation 278 SWIFT (Society for World Interbank Financial Telecommunications) 49, 191 Switzerland 192 AMM Aceh 193 classified information, confidentiality of 203 EUFOR ALTHEA 193 EUFOR RD Congo: 192 EULEX KOSOVO 194 EUPM Bosnia Herzegovina 193 EUPOL PROXIMA 193 UN-IPTF 134

317

TACIS (Technical Assistance to the Commonwealth of Independent States programme) 164 Taliban, the 84 Tanzania 123, 179 transfer agreement 208 taxation 23 terrorism 60, 83, 271 9/11 attacks 79, 83, 146, 184, 239 combating international 243, 245 counter-terrorism 222 Declaration on Combating Terrorism 71 ESS and 83–4, 86–7 EUCAP Sahel Niger 179 EUCAP Sahel Niger and 218 EULEX KOSOVO 179 financing of 245 Madrid attack (2004) 71 mutual assistance clause 70–1 Philippines, in the 245 see also Afghanistan; Taliban, the Thailand AMM Aceh 193 torture prohibition of 123 see also Convention against torture (CAT) transparency, principle of 152, 273, 277 Treaty of Rome 10–11, 13–15, 93, 99, 252–3 see also Berlin Declaration treaty-making, see international agreements; see also under individual treaties tsunami disaster 157 Turkey 69 CONCORDIA 193 EDA participation 106–7 EUPM Bosnia Herzegovina 193 EUPOL PROXIMA 193, 197 framework participation agreement 206–7 non-EU membership 105 UN-IPTF 134 Uganda 98, 109, 125, 220 EUTM Somalia 199 Ukraine 85 border missions 155 classified information, confidentiality of 203 EUPM Bosnia Herzegovina 193 EUPOL PROXIMA 193 framework participation agreement 205 Moldova-Ukraine borders 228 strategic importance of 184 Ukrainian aircraft 130 UN-IPTF 134 ultimate authority and control test 127–8 UNAMID (UN and African Union Hybrid Operation in Darfur) 114, 118

318

Index

unanimity rule 53–5, 190 unilateralism 91 see also multilateralism United Arab Emirates 167 United Kingdom Baroness Catherine Ashton 46–7 bilateral initiatives 278 British Aerospace Systems 251 Community competence 237 defence spending 251–2 ESS, political opposition to 80 EU Operational Headquarters 102 EUFOR Libya (2011) 125 European Council, Presidency of 39 European defence spending 250 Foreign Secretary of 47 Germany, relations with 9 Iraq War 165, 167 Libya, 2011 intervention in 131, 252 NATO and 105 OCCAR membership 278 piracy at sea 121–2 political developments within 78 WEU member 17 see also St Malo Declaration United Nations European Union and 96–9 Israeli-Palestinian crisis 143 purposes and principles of 97 UN-EU Co-operation in Crisis Management 98 United Nations Charter 32, 97, 211 principles of 31 United Nations Convention on the Law of the Sea (UNCLOS) 121–2 United Nations Development Programme 209 United Nations International Police Task Force (UN-IPTF) 98, 134 United Nations Office on Drugs and Crime 219 United Nations Security Council (UNSC) 8, 42, 98, 111–12, 116–18, 121–2, 124–5, 128, 131, 146, 151, 165, 168, 170, 172, 245, 252 United States border security procedures 155 classified information, confidentiality of 203, 205 climate change 86 Combined Maritime Forces 123 cyber security 85 defence industries 250 defence priorities 107

defence spending 251, 280 EUFOR Libya (2011) 125 EULEX KOSOVO 173, 192, 194, 196 European security, disengagement from 18 framework participation agreement 206–7 German rearmament and 8–9 Iraq War 165 Israeli-Palestinian crisis 143 Libya, 2011 intervention in 131, 252 National Security Strategy 79–80 Presidency of 39 South Korea, relations with 6 UNMIK (Interim Administration Mission in Kosovo) 168, 170–2 see also Kosovo Van Rompuy, Herman 40 Verheugen, Günter 43 Verhofstedt, Guy 39 Vienna Convention on Diplomatic Relations 199 Host States 199, 201–2 principle of inviolability 199 privileges and immunities 199–201 Warsaw Treaty 87 Washington Treaty 8, 104–5 weaponry and firearms 218–19 see also armaments; small arms and light weapons (SALWs) Weapons of Mass Destruction (WMDs) 83–4, 86 see also Strategy against Proliferation of Weapons of Mass Destruction Weiler, Joseph H. H. 56 Weimar letter, the 281 Western European Union (WEU) 10, 14–15, 17–18, 59, 105, 185 see also under individual countries Western Sudan civil war in 117 Witney, Nick 129–30, 282 World Food Programme 121 World Health Organization (WHO) 127 World Trade Organization (WTO) 230, 237 World War II 6, 87 Yugoslavia, see Former Yugoslav Republic of Macedonia (FYROM) Zimbabwe 109