The European Union: Facing the Challenge of Multiple Security Threats (European Security and Justice Critiques series) 1788111044, 9781788111041

Citation preview

een Y

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Antonina Bakardjieva Engelbrekt

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raw Miele lca Niklas Nilsson Lars Oxelheim

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THE EUROPEAN UNION Facing the Challenge of Multiple Security Threats

EUROPEAN

SECURITY

AND

JUSTICE

CRITIQUES

The European Union

EUROPEAN SECURITY AND JUSTICE CRITIQUES Series Editors: Christian Kaunert and Sarah Leonard, School of Humanities,

University of Dundee, Andrew Geddes, Professor, Department of Politics, University of Sheffield, Emil Kirchner, Jean Monnet Chair in European Political Integration, Department of Government, University of Essex, UK, John Occhipinti, Director of European Studies, Department of Political Science, Canisius College, New York, US, Knud Erik Joergensen, Professor, Department of Political Science and Government, Aarhus University, Denmark, Kamil Zwolski, Lecturer in Global

Politics and Policy, University of Southampton, Valsamis Mitsilegas, Head of the Department of Law, Professor of European Criminal Law, Queen Mary University of London, UK, Dora Kostakopoulou, Professor of European Union Law, European Integration and Public Policy, Warwick Law School, Warwick, UK, and Monica den Boer, Faculty of Social Sciences, VU University Amsterdam, the Netherlands What is security in the 21st Century? Recently, issues such as crime, terrorism, energy security, population movements and migration, environmental and climate security, underdevelopment, health and pandemic diseases, as well as economic security have become important matters of European security. Furthermore, more traditional security challenges, such as military conflicts and the proliferation of weapons of mass destruction (WMDs), have evolved and changed character. In this context, an increasing body of scholarship has recognized the European Union (EU) as a security actor, which is well equipped to tackle these complex security challenges, due to the multi-dimensional or structural character of its policies. Based on a broad definition of security, this unprecedented series examines the role of Europe in international security and justice matters. Taking inspiration from the European Security Strategy (ESS), it identifies more traditional security threats such as WMDs, but also points to global warming and poverty as the possible cause of conflict. Moreover, the series promises to recognize the intrinsic links between security and justice from a multitude of disciplinary perspectives and provides a platform for research that focuses on the study of Europe as a whole, going beyond only the European Union. The series and its individual publications will be of interest to both students and academics across the areas of politics, international relations, law, sociology,

history, area studies, gender studies, post-colonial studies and human and political geography.

The European Union Facing the Challenge of Multiple Security Threats

Edited by

Antonina Bakardjieva Engelbrekt Professor of European Law and Torsten and Ragnar Séderberg Professor of Legal Science (2015-2018), Stockholm

University, Sweden Anna Michalski Associate Professor, Uppsala University, Sweden

Niklas Nilsson Assistant Professor, Department of Military Studies, Swedish Defence University

Lars Oxelheim Professor, School of Business and Law, University of Agder (UiA), Kristiansand, Norway, Research Institute of Industrial Economics (IFN), Stockholm, and Lund University School of

Economics and Management (LUSEM ), Lund, Sweden

EUROPEAN SECURITY AND JUSTICE CRITIQUES

KE

Edward Elgar PUBLISHING

Cheltenham, UK * Northampton, MA, USA

© Antonina Bakardjieva Engelbrekt, Anna Michalski, Niklas Nilsson and Lars Oxelheim 2018 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, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2017959525

This book is available electronically in the Elgaronline Social and Political Science subject collection DOI 10.4337/9781788111058

ISBN 978 1 78811 104 1 (cased) ISBN 978 1 78811 105 8 (eBook) Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

Contents List of contributors Preface 1

Vii ix

The EU and the growing number of complex security threats Antonina Bakardjieva Engelbrekt, Anna Michalski, Niklas Nilsson and Lars Oxelheim The EU and the European security community: history and current challenges Niklas Bremberg

18

After Lisbon: the new legal framework for the EU’s Common Foreign and Security Policy Inger Osterdahl

42

Sanctions and the security policy environment from a European perspective Mikael Eriksson

64

The EU’s civilian crisis management capacity and the challenge of trust Sten Widmalm, Thomas Persson and Charles Parker

88

Food security in Europe Joakim Gullstrand and Christian Jérgensen

116

Threats against innovation-based growth in the EU Roger Svensson

139

Threats to personal data security: how does the EU protect its citizens? Cecilia Magnusson Sjéberg

163

Security in a liberal union: EU asylum and migration control policies Gregor Noll

191

vi

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Europe: take on your responsibilities

212

Charlotte Wagnsson Index

235

Contributors Antonina Bakardjieva Engelbrekt is Professor of European Law and Torsten and Ragnar Sdderberg Professor of Legal Science (2015-2018) at the Faculty of Law, Stockholm University, Sweden. She is also Board

Director of the Institute of European Law, Stockholm University, and Chair of the Swedish Network for European Legal Studies. Niklas Bremberg is Senior Research Fellow at the Swedish Institute of International Affairs and affiliated to the Department of Government, Uppsala University, as Research Coordinator for the Swedish Network for European Studies in Political Science. Mikael Eriksson is Deputy Research Director, Division of Defence Analysis at the Swedish Defence Research Agency. He is also a senior research associate of the Nordic Africa Institute, Uppsala, Sweden. Joakim

Gullstrand

is Professor

of

International

Economics

at

Lund

University. His research interests are in the intersection of international trade, regional economics and food economics.

Christian Jérgensen earned his PhD in economics at Lund University and is a senior researcher at Agrifood Economics Centre. His research focuses on food supply chain issues, for instance competition in retailing and industry, food labelling and firm export behaviour. Cecilia Magnusson Sjoberg is Professor and Subject Director of Law & Informatics at Stockholm University. Her academic profile focuses primarily on data protection, information security and public sector governance. Anna Michalski is Associate Professor at the Department of Government, Uppsala University. She has held positions at the European Commission, at research institutes in London, Paris, The Hague and Stockholm, and

at Fudan University and the University of Auckland. She is Chair of the Swedish Network for European Studies in Political Science. Niklas Nilsson is Assistant Professor in War Studies at the Department of Military Studies, Swedish Defence University. He was formerly affiliated with the Department of Government, Uppsala University, as coordinator for the Swedish Network for European Studies in Political Science. vii

viii

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Gregor Noll is the Chair of International Law at the Faculty of Law, Lund University. His current research is mainly in the area of migration law, the laws of war and the digitalization of the law. Inger Osterdahl is Professor in Public International Law at Uppsala University, Sweden. She is a member of the board of the Swedish branch of the International Law Association (ILA) and a member of the ILA’s

working group on ‘Aggression and the Use of Force’. Lars Oxelheim is Professor of International Business and Finance at the School of Business and Law, University of Agder, Norway, at the Lund University School of Economics and Management, Lund, and affiliated to the Research Institute of Industrial Economics (IFN), Stockholm, Sweden.

Charles Parker is Docent in Political Science at Uppsala University and one of the heads of research at the Centre for Natural Disaster Science (CNDS). His research focuses on climate change politics, warningresponse problems and post-crisis learning and accountability. Thomas Persson is Docent in Political Science at Uppsala University and former Chair of the Swedish Network for European Studies in Political Science. His current research examines social capital, administrative tradi-

tions and crisis management in the EU. Roger Svensson is Associate Professor at the Research Institute of Industrial Economics (IFN) in Stockholm. His research focuses on entrepreneurship, the commercialization of inventions/patents and government intervention in these areas, as well as monetary policy in a historical perspective. Charlotte Wagnsson is Professor of Political Science with a focus on security studies at the Swedish Defence University. Her research interests are European and global security. Sten Widmalm is Professor of Political Science at Uppsala University. He researches democratic conditions in South Asia, parts of Africa and Europe — with a focus on the nature of public administration and its effects on the ability to cooperate and the capacity for handling conflicts.

Preface In recent years, the European Union (EU) has faced several overlapping crises. These have ranged from a financial crisis with concomitant social problems, including thousands of unemployed young people, to a humanitarian crisis stemming from the drastically increased number of refugees fleeing destabilized regions in the Middle East and Africa, to security threats aggravated by Russia’s aggression against Ukraine and several terrorist attacks in European cities. While the EU has increasingly taken on the role of Europe’s foremost crisis manager, its ability to handle these crises has simultaneously received negative attention. It remains debated what can be expected of the EU in this regard, and how the EU and its

Member States should respond to the increased insecurity emanating from these crises. Yet it is clear that a growing awareness of crises and security threats has permeated the worldview of European politicians and citizens alike. Against the backdrop of these protracted crises, which put cohesion and solidarity within the Union to the test, the question of what European politicians can and should do to confront the challenge of multiple security threats has become increasingly acute. While the crises in the Eurozone and in Ukraine have been ongoing for several years, and the threats from terrorism and radicalism have manifested themselves on several previous occasions, events taking place since the autumn of 2015 have fuelled a drastically increased awareness of the security threats that Europe is facing. At the time of writing, governments across Europe are working to find solutions to these crises and the security threats associated with them, and to respond to their concrete consequences. It seems safe to assume that threats and crises in Europe and its geographical proximity will continue to be a central theme in national as well as European politics. The EU is facing an existential challenge in casting itself as an actor capable of devising common

solutions, uniting its Member States around them and

supporting national measures to implement them. It is imperative that European cooperation can respond to crises and threats, and that it is not in itself viewed as a security challenge. How can the EU strengthen the solidarity among its Member States in their responses to various crises? How can European and national

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authorities improve their cooperation regarding security and crisis management? Crucially, how can the EU exercise political leadership in a way that does not antagonize the Member States, but instead promotes improved accord and coordination? This book contributes to our understanding of the inherent complexity in responding to crises and perceived or concrete threats in the political multilevel system that the contemporary EU comprises, and addresses a broad array of current security challenges to the EU. This book is the fruit of a collective effort by scholars from the disciplines of political science, economics and law to address the multifaceted challenges that the Union is facing. The editors are greatly endebted to the researchers who have contributed their knowledge and insights in the individual chapters of this book. The editors are also grateful to the Swedish parliament and government for ensuring the resources that have made possible the production of this book and the interdisciplinary research effort that lies behind it. Antonina Bakardjieva Engelbrekt, Anna Michalski, Niklas Nilsson and Lars Oxelheim Stockholm and Uppsala, February 2018

1.

The EU and the growing number of complex security threats Antonina Bakardjieva Engelbrekt, Anna Michalski, Niklas Nilsson and Lars Oxelheim

In recent years, a sense of danger has become more and more salient in Europe in a number of areas. Some of these perceptions are new and unexpected; others are well-known and have been long debated. They are often held to reflect fear and perceived vulnerability in open and complex societies, yet are also justified in a situation marked by uncertainty in several areas. Europe in the second half of the 2010s seems out of step with the trend prevailing in many other parts of the world, where the liberal order is not seen as the obvious way forward. The fact that a number of political regimes and organized groups around the world do not share liberal values and norms increases the feeling of vulnerability. The perceived or actual threats have furnished a fertile soil for illiberal forces in European countries, and the polarizing impact of such forces on the political climate complicates efforts by the public authorities to confront various perceptions and possibilities of danger. This set of problems has been well-captured by Anthony Giddens (1990) and Ulrich Beck (1992), who speak of the paradox of late modernity. Advanced and affluent societies attempt, by rational means, to manage the risks that arise from social and economic development, thereby engendering the belief that such risks can be parried and neutralized. But those in power often lack the capacity to counter threats of this kind, due to the latter’s complexity and/or scope. When this incapacity becomes evident, a deep crisis of confidence results — with unfortunate consequences for democracy. In the light of the above, the new and threatening situations that have arisen inside and outside the borders of the European Union (EU) are testing in full the ability of the Union to carry out joint crisis management. In Europe’s eastern reaches, Russia’s aggressive policy in Ukraine, its annexation of the Crimean peninsula and military support to the breakaway republics of Donbas and Luhansk have underlined once again

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the importance of maintaining the military capabilities of European states, and called attention to the centrality of the North Atlantic Treaty Organization

(NATO)

in guaranteeing

their territorial integrity.

Nevertheless, Donald J. Trump’s victory in the US presidential elections in November 2016 has raised doubts regarding the continued US commitment to European security through NATO. The Union’s Member States have agreed on a common policy of sanctions against Russia, but it is clear that the different countries — and their populations — hold varying views on the extent to which Russia poses a security threat. This crisis also has implications for the EU’s self-image as an international player that exerts its influence on a normative rather than geopolitical basis. The EU’s status as a normative power is challenged by Russia as it has made plain that an important motive for its actions in Ukraine lies in EU policies vis-a-vis Europe’s eastern regions — despite their focus on trade and socio-economic reform — rather than in a potential expansion of NATO. Whether Russia’s opposition to increasing Western influence in neighbouring areas reflects an honest position, or whether instead it represents an opportunistic pretext for its policy towards Ukraine and Russia’s near-abroad, the crisis has highlighted the limited understanding that Russia and the EU’s Member States have for the worldview of the other. It has also resulted in a setback for socialization and the spreading of norms as the EU’s key foreign policy instrument. A harsh and prolonged crisis of an entirely different kind played out during the spring and summer of 2015, when the sovereign debt crisis in Greece reached its peak. Extending into the subsequent years, the crisis put that country at risk of leaving the euro, and raised the ultimate prospect of the disintegration of the European Monetary Union (EMU). This crisis illustrated very clearly the substantial differences in prosperity and economic-political structure that exist between the EU’s northern and southern Member States. The hope was thereby extinguished that monetary integration on its own would lead to economic convergence across the Eurozone. Instead, divisions arose between richer and poorer countries within the Eurozone about how far fiscal solidarity between them ought to extend. In the autumn of 2015, furthermore, the EU faced the greatest challenge in its history when a humanitarian crisis within its borders was sparked by large inflows of refugees and migrants from far afield. The crisis had been in the offing for some time as Member States along the Mediterranean, particularly Greece and Italy, have been seeing an ever heavier flow of migrants — under often hazardous conditions — across the Mediterranean for years. This has put a heavy load on facilities in these countries for receiving refugees. However, more recently, there has been a sharp increase in the

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and the growing number of complex security threats

3

numbers of refugees from war-torn Syria, from the rest of the Middle East,

and from Asia and Africa. New roads into Europe were opened through the Balkans. As a result, the situation has developed into a humanitarian

crisis — for the whole of Europe — of a kind seldom seen. This crisis has implications far beyond all talk of ‘volumes’ and reception capacities; it also raises some highly uncomfortable questions about the EU as a political union. How strong is the real will and capacity of EU Member States to act in solidarity with each other and to defend values, such as human rights, which are central to the Union? The row that emerged among the Member States over the distribution of refugees, at the time of writing, is

still raging in the EU with little hope of resolving soon. It also has, in its wake, opened a rift between the majority of Member States on one side and the Visegrad countries on the other. On 13 November 2015 yet another dreadful act of terrorism struck an EU country. Gunmen linked to the Islamic State in Iraq and Syria (ISIS) fired indiscriminately at four locations in the centre of Paris, killing 130 people. In a speech to the French National Assembly on 16 November, President Frangois Hollande declared that France was at war and ordered a series of airstrikes on ISIS bases in Syria. Notably, Hollande invoked the EU’s mutual-defence clause, Article 42(7) of the Treaty on European Union (TEU), which states that, if an EU Member State is the victim of

armed render fateful, enemy, around

aggression on its territory, the other Member States are obliged to it all such assistance as lies within their power. In tones solemn and Hollande (2015, n.p.) stressed that ‘the enemy is not just France’s it is Europe’s enemy. Europe cannot live in the belief that the crises it have no effect on it’. The French president preferred to invoke

Article 42(7) TEU

rather than the solidarity clause, Article 222 TFEU,

according to which the Union and its Member States are to act jointly in a spirit of solidarity in the event that a Member State is subjected to a terrorist attack, or falls victim to a natural or human-made disaster. This is the first time Article 42(7) TEU has been invoked, reflecting the view

of the French government that the November attacks were an act of war and expresses its expectation that solidaristic military commitments on the part of France’s fellow Member States would be forthcoming in the war against ISIS. All the EU Member States answered France’s call for aid, but

several stressed that the issue of military action against ISIS would have to be discussed separately. The UK chose to take part directly in bombing ISIS in Syria, and Germany assisted the action in question, underscoring the strong military solidarity that has emerged among the three largest countries in the Union. Unfortunately, several other large-scale terrorist attacks have occurred since November 2015: Brussels, Nice, and Berlin in 2016, followed by London, Stockholm, Paris, and Manchester in 2017.

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The European Union

Against this background, the ability of Europeans to manage the many crises that have struck Europe in recent years stands out as crucial. For this reason, the focus of this book is on the dangers and perceptions thereof that beset Europe, and on the capacity of the Union and its Member States to meet them. This means taking a broad perspective on threats and perceptions thereof, while stressing their variety and complexity. (We make no claim, however, to any comprehensive coverage.) This book also draws

attention to the quandary faced by the EU and national authorities as they try to reach balanced decisions about concrete measures in light of their long-term impact on society. Perhaps the greatest challenge in the current situation is the diversity of the dangers: some are based in a struggle for territorial domination; others have their sources in ideology and fanaticism; and still others arise as a consequence of society’s technological, economic and social development. The contributions to this book exhibit a thematic variation and an interdisciplinary approach that reflect the heterogeneity of both the security challenges facing the Union and the measures which must be taken to handle them. What do the current threats mean for the EU as a security community? What tools does the Union require to meet its security needs? How can it forestall long-term problems relating to food supply and economic growth? And what do the answers to these questions mean for the EU’s fundamental values, for the rights of citizens both within the Union and elsewhere, and for the EU’s relations with the outside world? These are

just some of the questions addressed in this book.

WILL THE EU SUSTAIN THE CHALLENGE POSED BY HEIGHTENED INSECURITY? The varied crises referred to above coincide more or less in time, and

each poses a serious challenge to the Union. Their combined effect has been to strengthen doubts about the EU’s ability to respond to security threats, to provide a platform for cooperation among its Member States in crisis management, and to function as a coherent actor on the global stage. Armed conflict and human hardship pose immediate problems, but their sources are complex. They are fuelled by poverty, authoritarian government, ongoing climate change, unequal economic development, and dismal prospects for rapidly growing numbers of youth. Never before has the Union faced so many threats of so diverse a character at the same time. However, it is important to remember that Europe has gone through major crises before. The basic idea behind integration is that cooperation is necessary to meet cross-border challenges. Among

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and the growing number of complex security threats

5

researchers, it is often held that a perceived need to deal with crises will

lead to a greater willingness on the part of the EU Member States to compromise. Crises provide an incentive for unity and cooperation. Where solidarity in the current situation is concerned, however, the emergence

of threats and crises has had ambiguous effects. On the one hand, the relatively far-reaching sanctions imposed in response to Russian policy in Ukraine have required common

consent; moreover, Hollande’s invo-

cation of Article 42(7) TEU met with solidaristic backing for expanded military intervention in Syria. On the other hand, a different picture is presented by the EU’s response to the euro crisis and the refugee crisis. The inability of the Member States to find common solutions to the latter problems has highlighted deep divisions within the EU regarding responsibility and solidarity, both within the Union and vis-a-vis the outside world. Ultimately, this connects with an even deeper crisis that the EU is undergoing. The credibility of the Union as a security community is being called into question by citizens, by political parties, and by national governments of several EU Member States. At the same time, the EU’s status as an international actor is meeting growing scepticism in the outside world. Not least, the political success of populist and anti-EU parties in several Member States, along with the perceived need in many countries for established parties to adapt to this situation, has given vent to widespread dissatisfaction with the EU as a political project. A widely noted example here is the UK, where Prime Minister David Cameron called a referendum in June 2016 on the country’s continued EU membership, in a bid to stave

off the pressure of longstanding anti-EU factions in the Conservative party. The fact that the referendum resulted in victory for the Leave-side underscores the challenges that the EU is facing to re-establish support among European populations. But political developments in countries such as Poland and Hungary, which have not only broken democratic values and norms, but have also consistently refused to honour the agreement to accept refugees, demonstrate the appeal of political selfishness. The European Commission’s decision in December 2017 to trigger Article 7 of the Treaty of Lisbon, for the first time in the EU’s history and in

response to the Polish government’s infringements of the independence of the country’s judiciary, is indicative of an unprecedented rift between the EU’s member states. In this perspective, it is no exaggeration to say that the vision of the EU outlined in the Lisbon Treaty of 2009 is at stake. Views of the Union may be fundamentally changing, and the preparedness of its Member States to confront problems on a supranational basis may be declining. Political scientists tend to assume that crises pave the way for political change. The

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challenges the EU is facing could in fact result in a Union that is less supranational, yet also less legitimate and solidaristic. The above-mentioned crises display great variation, both in their causes and in their effects. A traditional approach to security, mainly emphasizing the military capability of states to protect themselves against external aggression, prevailed during the Cold War. Since the 1990s, however, a broader concept of security has gained ground, which covers almost all conceivable threats to people as individuals. In 2003, the Commission on Human Security (2003, p. 4) defined ‘human security’ as involving the ‘protect[ion of] the vital core of all human lives in ways that enhance human

freedoms

and human

fulfilment’.

In 2009,

the United

Nations

Trust Fund for Human Security identified possible threats to such security as including (in addition to armed conflict and war) ill health, restrictions

on access to food, economic dangers (for example, poverty and unemployment), climate change and environmental degradation, ethnic and religious violence, political repression and the violation of human rights, and violence arising from terrorism or from crime (United Nations, 2009,

p. 6). In addition to broadening the range of threats to security to include those that apply from an individual human standpoint, the new approach has expanded on the traditional view of states as the principal actors in war and armed conflict. So-called asymmetric threats are now included too, where the adversary — which is not a unitary actor and which does not operate from a defined territory — applies unconventional methods such as terrorism and organized crime. The threats facing the EU thus challenge the capacity of the state for defence and counterattack. For example, the terrorist attacks in Paris in

2015 and 2017 — like those against the editorial offices of Charlie Hebdo in Paris, and Krudttonden in Copenhagen, as well as the attacks in Nice, Berlin, London, Stockholm, and Manchester — represent a test of Europe’s ability to respond to asymmetric threats. There is a danger, however, that heavy-handed measures will exacerbate the underlying problems, while the values that Europe means to defend are eroded. Efforts to tackle these threats also risk consigning the human dimension of the security question to the background. In a speech to the European Parliament on 25 November 2015, Jean-Claude Juncker, president of the European

Commission, warned against ‘equat[ing] refugees, asylum seekers, and migrants on the one hand with terrorists on the other’. After all, he pointed out, ‘[t]hose who carried out these attacks in Paris are the same people who are forcing the unhappy, the unlucky of this planet, to flee’ (European Parliament, 2015). Hollande too highlighted, in his speech on 16 November the same year, the severe suffering of people in Syria and Iraq: ‘[PJarticularly those living in territories controlled by Daesh

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and the growing number of complex security threats

7

... are the victims of this same terrorist system. That is why it is vital for Europe to offer a dignified welcome to those who are eligible for asylum’ (Hollande, 2015, n.p.).

The horror aroused by the attacks in Paris in November 2015 could not fail to have an impact on EU policy towards the refugee crisis. A number of Member States had already responded to the latter by introducing stricter border controls, some of which have since remained in force. The

resurrection of internal borders in the EU threatens to put an effective end to Schengen. The threat of terrorism within the Union has also brought to the fore, once again, a debate on the conflict between the need to protect society on the one hand, and the right of the individual to privacy, integrity, and freedom of thought on the other hand — a discussion highly topical since the terrorist attacks in the US on 11 September 2001. The Economist described this dilemma in an editorial on 21 November 2015, in

which it reminded readers that ‘the West has two things to defend: the lives of its citizens, and the liberal values of tolerance and the rule of law that

underpin its society’ (The Economist, 2015, n.p.). This set of problems has emerged clearly in connection with the type of information warfare conducted both by ISIS and by Russia. The successful use by ISIS of social media to recruit disillusioned young people in European cities highlights vulnerabilities associated with unemployment, alienation, and inadequate integration. Russia, for its part, uses government-controlled media such as RT and Sputnik — along with Twitter, Facebook, and comment threads on the websites of European media — to present its preferred narrative on world politics. Aside from supporting the Russian version of events in Ukraine, this narrative aims — among other things through publication in local languages — to foment right-wing populist tendencies in EU Member States. The doomsday reporting on the refugee crisis by Russia’s state-controlled media epitomizes this concern. EU citizens are confronted today with a highly relativized media environment, where news accessed through the Internet can be used to confirm just about every opinion on a political event. Both the EU and NATO have accordingly stressed the importance of countering Russia’s information warfare, as well as the need to develop their own capacity for strategic communication. We noted above the insufficient response of the EU and its Member States to the most acute crises. We underlined too the complexity of the threats and of perceptions thereof, as well as the difficulty of meeting the ongoing crises in a manner compatible with basic European values. Such pessimism could tempt us to fall back on national solutions, which in practice would mean a setback for European integration. That, however, would be an overly simple answer, especially since today’s threats are

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eminently cross-border in character and so require coordinated solutions. Another aspect here — which may appear paradoxical — is that today’s threats and crises have inspired Europeans to try to safeguard the freedoms which the EU has realized in terms of freedom of movement and the right to reside in other EU countries, as well as the economic opportunities afforded businesses and workers by the single market (the four freedoms). These gains have come to be taken for granted, but they are under challenge as witnessed not least in the British referendum in 2016. Certain groups and parties wish to reintroduce border controls, and to enact rules discriminating between a given country’s citizens and other EU nationals. Against this backdrop of a highly diverse set of security challenges currently facing the EU, the subsequent nine chapters of the book identify specific areas where these challenges stand out as crucial for the EU and suggest means for addressing them. An overview of the chapters follows.

NINE ASPECTS OF THE CRISES FACING THE EU How Can the Union Promote Security Community-building Beyond its Borders?

In Chapter 2, ‘The EU and the European security community: history and current challenges’, Niklas Bremberg examines the EU’s prospects for meeting the new security threats and risks. In an attempt to throw light on this matter, he considers the findings of research on the dynamics of

regional ‘security communities’. The EU is often seen as an example of a tightly bound security community. After all, the threat of war between different states has essentially disappeared from most of Europe. Moreover, the Union’s unique mix of supranational and intergovernmental institutions makes it possible for its Member States to cooperate on addressing cross-border risks and non-military threats. What significance do today’s threats and challenges have for maintaining, deepening or possibly dividing the European security community? Bremberg examines this question in view of the basic assumptions and main findings of the research on security communities, in view of the history of the European integration process, and in view of the emergence of EU capabilities for crisis management following the end of the Cold War. He then considers the Union’s response to the Arab Spring of 2011 and to the ongoing refugee situation in the Mediterranean region in light of these theoretical and historical considerations. On the one hand, historically, the EU’s response to crises

reveals the deepening of security cooperation within the Union, which has been seen to this point as primarily crisis-driven. In many ways, crises

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and the growing number of complex security threats

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that the EU has confronted during its integration process resemble those faced by the Union today. On the other hand, they also show how the inability to achieve joint solutions can lead to the disintegration of security communities. On this basis, Bremberg presents three general recommendations for action that reflect the notion that the EU can best contribute to peace and security by encouraging security community-building practices both within and beyond its frontiers. Generally speaking, the Union should seek to strengthen cooperation on security challenges with other regional organizations, not least in the areas of conflict prevention and crisis management. The EU should also look at ways to make it easier for non-members to take part — by supporting their participation financially, for instance — in its military and civil efforts. Finally, the refugee situation in the Mediterranean highlights the increased need for rescue operations at sea. EU programmes for civil protection, Bremberg argues, should therefore be expanded to include such operations too, thereby strengthening the Union’s humanitarian capacities. Conferring Voluntarily, and Promoting Peace Thereby In Chapter 3, ‘After Lisbon: the new legal framework for the EU’s Common Foreign and Security Policy’, Inger Osterdahl asks, from a juridical standpoint, how common is the EU’s Common Foreign and Security Policy (CFSP)? She examines the extent to which the CFSP is ‘juridified’, that is, the importance of legal rules in shaping this policy. Generally speaking, the EU diverges from other cases of international cooperation in its unusually high degree of juridification and its particularly pronounced supranational features. The Union also stands out as a champion of international law at the global level. Osterdahl stresses, however, that the policy process within the framework of the CFSP is not particularly juridified. Although recent judgments by the Court of Justice of the European Union (CJEU) open this to greater judicial involvement, the role of the EU Court in this area remains limited. Nor is the common foreign policy very common: each Member State is free, legally speaking, to conduct its own foreign policy parallel with that pursued by the Union. Moreover, all key decisions taken by the EU in this area require unanimity. The lack of a strict legal framework poses no obstacle to the pursuit of a common policy, should Member States so wish. EU treaties neither require particular policies in this area nor set any substantive limits to policy coordination. There is thus a great deal of flexibility built into the CFSP that can be useful when the EU is faced with new security threats. But a common policy cannot be forced through by legal means. Instead,

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it must be based entirely on the political will of the Member States. In that sense, the Lisbon Treaty entailed no qualitative legal leap towards greater supranationalism in the area of foreign and security policy. Finally, Osterdahl expresses the hope that the EU’s Member States will continue their efforts to elaborate a common foreign and security policy. Such a policy would help the Union uphold its international position and make good on the values that form the basis for its own existence. Continuous interaction on foreign policy issues may also help — notwithstanding their sometimes controversial character — to strengthen cohesion within the Union and can be a good basis for cooperation with the UK after Brexit. Five Geo-economic Challenges for the EU in the Era of Sanctions In Chapter 4, ‘Sanctions and European perspective’, Mikael actor in the area of foreign and use of targeted sanctions. He

the security policy environment from a Eriksson analyses the Union as a global security policy, with a focus on the EU’s reviews how the EU has developed its

sanctions instrument over time, and identifies some of the challenges to

which this instrument is designed to respond. The use of sanctions by the Union, Eriksson argues, must be understood in a geo-economic perspective. Geo-economics refers here to the projection of power in the international system through a form of economic warfare. It involves affecting, undermining or subverting the power base of blacklisted actors. Eriksson shows how the EU has come to use sanctions as a means of leverage on the global stage. He devotes special attention to the shaping of the Union’s geo-economic policy vis-a-vis Russia and Ukraine. Eriksson’s

overall conclusion

is that, while the EU

has made

good

progress by converting geo-economic concepts into a sanctions instrument, several remaining challenges must be met if the effectiveness of this instrument is to be maximized. First and foremost, he argues, the purpose and effect of EU sanctions should be made clearer. The Union must show how sanctions serve to promote European peace and security. Second, the sanctions instrument must be systematically evaluated. Few researchers can say with scientific certainty that EU sanctions work satisfactorily, and this creates a credibility problem. Third, Eriksson further finds that sanctions ought to be designed in an overarching foreign policy context, and that the EU would benefit from clarifying the relation of sanctions to the CFSP and the Common Security and Defence Policy, and from striving to integrate these policy areas. In light of this, Eriksson believes the Union should enunciate a clearer European security doctrine on economic matters, in which sanctions can play a clear role. Finally, he argues that the EU sanctions policy should be monitored and evaluated in national parlia-

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ments. Policy in this area is formulated in Brussels, so there is otherwise a

risk that crucial national dimensions will be neglected. Involving national parliaments in the conduct of sanctions policy will benefit the Union in the long term, as well as its Member States and their citizens. The EU as a peace project will be furthered as well. The EU’s Ability to Meet the New Security Threats

In Chapter 5, ‘The EU’s civilian crisis management

capacity and the

challenge of trust’, Sten Widmalm, Thomas Persson, and Charles Parker assess the EU’s ability to handle serious crises, and they consider some

major challenges that the EU faces in this regard. The chapter starts with a review of some of the most important security threats the EU is experiencing today. The authors then describe the Union’s crisis management mechanism and the new institutional framework in this area, which has

emerged since the Lisbon Treaty. As a has assumed an increasingly central years. In addition, public opinion on puts demands both on Member States

result of this framework, the Union role as a crisis manager in recent the Union’s capabilities in this area and on the common institutions of

the Union. The authors therefore discuss, with the help of data from the

Eurobarometer, the high expectations that citizens in the Member States have regarding the EU’s crisis management capabilities. However, while Member States have an obligation to assist in crisis situations, the rules in that regard tend to be set aside when unforeseen events such as the present refugee crisis arise. The authors show how the capacity to cooperate within and between Member States in such situations reflects how well individual decision-makers know each other, how much they trust one another, and

whether they share norms and values. Another important issue is how well different administrative cultures interact and cooperate when events are moving rapidly. The EU should continue, the authors conclude, to build up a common

crisis management capacity, but this must be done carefully. Many of the crises the Union faces are cross-border in nature, requiring its Member States to help one another. As the three authors of this chapter see it, such cooperation cannot be based only on new institutional arrangements such as organs and agencies, regulatory frameworks, and general policies. A well-functioning system of cooperation is formed through good relations that build on trust, confidence, and common

norms among the agencies

entrusted with civil protection and crisis management. A wholly crucial question here, therefore, is whether it is possible to arrive at a common

basic understanding on humanitarian issues through shared democratic values. As an ever greater number of extremist political parties enter

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The European Union

parliament and government in EU Member States, the risk is that consensus on human dignity and democracy will be undermined. The authors stress that, without shared basic values to bind its different elements, the

EU has bleak prospects as a crisis manager. Without a common view on democracy, the European project may fail. Addressing Substantial and Long-term Threats to Food Security

In Chapter 6, ‘Food security in Europe’, Joakim Gullstrand and Christian Jérgensen describe developments over recent decades within the EU towards an increasingly secure food supply. They show how households’ buffer against unexpected price increases has grown, as an ever smaller proportion of income is spent on food. Moreover, the supply of foodstuffs, seen in an historical perspective, is better than ever in terms of quantity, quality, and number of suppliers, due to technological advances and reductions in trade barriers. Notwithstanding these recent positive developments, however, the authors aver that the issue of food security

remains highly topical. Demand for food is increasing due to global population growth, while future climate changes and shortages of fresh water may inhibit supply. In addition, food security can change dramatically over the short term in parts of Europe as a result of local conflicts or terrorist attacks, while price increases undermine food security for the most vulnerable. As Gullstrand and Jérgensen point out, the EU already has structures that can be expanded in order to handle short-term problems of food supply. For example, the Union and its Member States can develop income-transfer systems to alleviate the situation of poor households faced with price increases. They can extend existing intergovernmental cooperation to deal with outbreaks of disease among farm animals. And they can improve stockpiles of food and of agricultural input products to deal with a temporary isolation. The authors regard such measures as far more effective than attempts to isolate Europe to increase food self-sufficiency, and much more fit for purpose than the imposition of temporary trade measures in order to influence price levels. The EU should instead continue to stimulate trade, so as to ensure better use of

resources and more secure food supply for countries whose food production may be threatened by future climate change. Finally, the authors emphasize stimulating technological advances within agricultural production as an important means by which to ensure secure provision of foodstuffs for the future within the EU. For example, current policy within the Union inhibits the use of genetic engineering — a technology that has great potential for improving yields, water management, the

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nutritional content of food, and the cultivation of crops in less fertile soils.

A More Rapid Pace of Innovation to Avert Threats Against Economic Growth In Chapter 7, ‘The threats against innovation-based growth in the EU’, Roger Svensson analyses threats to innovation-led growth in the EU. Many studies have shown new knowledge and technology to be the key factors of production for achieving growth. In a free market, however, spillover effects and incomplete capital markets lead to underinvestment in research and development

(R&D).

In order to correct these market failures, the

state can stimulate innovation and commercialization. It can do so by protecting intellectual property rights, and by supporting R&D, innovation, and the training of R&D

personnel. If the EU cannot maintain a

high rate of innovation, not just growth but also employment, the welfare of consumers, and the competitiveness of companies will be threatened. Svensson points out that the EU is lagging behind several major competitors (above all the US and Japan) when it comes to patent applications, private investment in R&D, and the availability of R&D

personnel, while

China is rapidly catching up. Serious efforts, according to Svensson, must be made in four areas to

counter the threats and encourage innovation. Underinvestment in R&D, due to spillover effects, is best remedied through tax incentives and direct state subsidies to R&D. The latter should be focused on areas where spillover effects are high, particularly basic research and public needs. Svensson believes tax incentives should be increase-based, meaning that firms should receive more financing when their R&D investments are higher, while so-called patent boxes should be abolished. To deal with incomplete capital markets and the inadequate commercialization of new ideas, the state should concentrate support for innovation in the early stages, where it does the most good. Individuals can also be offered tax rebates to act as angel investors. Continued work on the standardized EU patent process is important for lowering the high cost of patents in Europe. Protection against infringement can be improved by state provision of legal support to smaller patent owners, and by enhanced international cooperation in prosecuting infringements of patents and copyright. Copyright periods, however, should be shortened considerably. Finally, Svensson argues, universities should continue to focus on basic research and the education of scholars. Research efficiency can be enhanced, however, by

subjecting the allocation of research grants to greater competition and increasing the mobility of research personnel. More innovation can also be

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The European Union

stimulated by sharing the ownership of research results between universities and researchers. An EU Law Compass for Data Security

In Chapter 8, ‘Threats to personal data security: how does the EU protect its citizens?’, Cecilia Magnusson Sjéberg looks at threats to security that arise in connection with personal data and modern information and communications technology (ICT), and considers the challenges Europe faces when it comes to protecting privacy within digital networks that know no national borders. She describes the Internet as a catalyst in this trend, where social media such as Facebook and search engines such as Google often serve to exacerbate a difficult conflict: that between the individual’s right to a personal sphere on the one hand, and the efforts of commercial interests and state surveillance agencies on the other. While encroachments on privacy can be legitimized to some extent by reference to security threats to society as such, the EU needs to protect its citizens against violations arising from inadequate safeguards in the handling of personal data. Magnusson Sjéberg examines the EU’s response to this development: the ongoing efforts to reform data protection, which have resulted in an entirely new Data Protection Regulation. The overall aim is to strengthen privacy protection. Rulings by the European Court of Justice confirming the right to be forgotten are important here, while transfers of personal data to countries outside the EU presuppose an adequate level of protection by the recipient country, particularly when it comes to safeguards for privacy. The need is plain, Magnusson Sjoberg argues, for a legal infrastructure that can counter today’s threats to the privacy of personal data. She concludes that efforts to ensure trust and confidence in the daily use of ICT should continue, with EU law serving as a tool. Good examples are also needed of how methods for ensuring privacy can be woven together with legal decisions. Humanitarian Visas as the Liberal Test Case

In Chapter 9, ‘Security in a liberal union: EU asylum and migration control policies’, Gregor Noll relates the book’s theme of new security threats to the current issue of the EU’s handling of refugees and asylum-seckers. According to Noll, EU policy on questions of immigration and asylum ultimately constitutes a protectionist regime, with its starting point in the control needs of the nation-state. Indeed, this regime was already manifest at the Union’s inception in the 1950s. The current rules on immigration and asylum can thus be seen as a product of nation-state protectionism,

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which in a paradoxical way was strengthened during the crisis year of 2015. Noll argues too that the concept of solidarity enunciated in the Treaty on the Functioning of the European Union is wrongly designed, because it is subordinated to the protectionist regime. Noll then charts several possible options, starting from the assumption that the Union cannot — if it takes its liberal identity seriously — deny the rationality and free will of the asylum-seeker. The question is whether today’s protectionist system can be complemented with a recognition of the asylum-seeker’s free will, without at the same time putting utopian or revolutionary demands on the EU in its current form. The author tests a number of ideas for reform against a collection of legal and political criteria, and argues that issuing humanitarian visas at Member States’ missions abroad can complement the EU’s asylum policy in a way that satisfies both these imperatives. In such a system, the asylum-seeker and the Member State meet in a rational dialogue early on — before the asylum-seeker chooses to embark on the journey to Europe. Noll concludes that four measures are necessary to increase the element of solidarity in EU policy on immigration and asylum. The Dublin Regulation should be abolished, and the rights of asylum-seekers must be guaranteed in practice and not just in theory. It is further necessary that the enforcement of these rights be overseen — in a higher degree than at present — by courts and other monitoring bodies. Finally, a subset of the Union’s Member States should

introduce a common system for issuing humanitarian visas, making legal entry possible for persons who meet the system’s criteria. Stimulate Debate, Share Responsibility, Think Long Term and Think Anew In Chapter 10, ‘Europe: take on your responsibilities’, Charlotte Wagnsson asks whether Europe is taking sufficient responsibility for contemporary threats to security. Scholars and politicians increasingly link security with the taking of responsibility, which in turn can reflect both altruistic considerations and national interests. As Wagnsson sees it, it falls more and more on the EU and its Member States to take responsibility, because the dangers are escalating and the US is weakening as a superpower. The pursuit of status in the international system and the need to deal with perceived threats are key motivations for states and other international actors to take responsibility. But for which threats is the Union willing to take responsibility, and what quantity of resources is it prepared to devote to dealing with them? To answer these questions, Wagnsson examines public opinion, political will, and defence spending in the EU, with a particular focus on ‘the big three’: the UK, Germany, and France.

Europeans, Wagnsson shows, are increasingly worried about threats to

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The European Union

security, and they view the threats springing from terrorism and religious extremism as the most serious ones. Russia’s behaviour is another source of concern. Perceptions of the nature and source of threats vary. In southern Europe, people tend to focus on dangers in the Middle East and around the Mediterranean. In northern and eastern Europe, by contrast, Russia is perceived as the primary danger. But the differences are not significant, and the most influential countries are prepared to deal with problems in both the east and the south. In general, moreover, the willingness of EU

Member States to increase defence spending has also increased somewhat. But from a military point of view — and from an American perspective especially — Europe still is not taking enough responsibility. This view has been made blatantly clear after the election of Donald J. Trump as president. Wagnsson points out, however, that strengthening military forces is not the only way to shoulder responsibility. She concludes with a number of recommendations. First, responsibility must be shared among different actors and policy areas. Second, measures should be taken to convince the public of the need to take greater responsibility. This can mean holding national debates on the subject, publicizing strategic documents, etc. Third, taking responsibility in the short term is not the only thing: working out long-term strategies and methods of prevention is necessary too. Nontraditional strategies can also be important: for example, involving women in peace processes and the handling of propaganda. The last-mentioned activity has to do with how security situations are represented and interpreted; it concerns the struggle over perceptions of reality. This is a struggle that is becoming ever more important, at a time when images and messages are spread instantly through social media.

WHAT CAN BE DONE TO CURB THE THREATS? What, then, can the Union and its Member States concretely do to curb

threats and perceptions thereof, and to mitigate the impact of today’s crises? One obvious measure involves strengthening solidarity among the Member

States, both in terms of traditional territorial security and in

regard to the reception of refugees. This will necessitate an overhaul of asylum policy, as well as practical measures to support the countries most immediately affected by the tide of refugees. Another type of solidarity concerns foreign and security policy. Member States need to realize that European positions only have an impact at the international level when they are presented with a single voice. In addition, better cooperation between judicial bodies and national security services must be given the highest priority. The opportunities for coordination that already exist to

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combat terrorism and religious radicalism within the Union must likewise be utilized fully. The Union cannot achieve legitimacy unless citizens feel that its policies and actions serve to improve their lives economically, socially, culturally, and in terms of security. The EU’s institutions and its Member States must therefore give priority to upholding the four freedoms, the importance of which will only increase after Brexit. Among these, those bearing on economic and social conditions stand out as particularly important from a security perspective. Economic growth and social security are fundamental for cohesion and solidarity among the Union’s Member States. Interdependence is far-reaching among these states, as well as between them and the Union’s institutions. No single country can overcome the challenges it faces. Nor can the EU’s institutions conduct any common policy unless the Member States support it and participate in its making. This circumstance alone yields powerful incentives for EU policy-makers to get the better of threats and to move matters in a positive direction. At the same time, however, they must safeguard mutual trust and solidarity.

REFERENCES Beck, U. (1992), Risk Society: Towards a New Modernity, London: Sage. Commission on Human Security (2003), Human Security Now, New York: CHS. European Parliament (2015), ‘Don’t equate refugees with terrorists — boost security instead, urge MEPs’, Press release, Justice and Home Affairs, 25 November, accessed

9 May 2017 at http://www.europarl.europa.eu/news/en/news-room/20151120IPRO 3639/Don%E2%80%99t-equate-refugees-with-terrorists-YE2%80%93-boost-secu rity-instead-urge-MEPs. Giddens, A. (1990), The Consequences of Modernity, Stanford: Stanford University Press.

Hollande, F. (2015), ‘Speech by the President of the Republic before a joint session of Parliament’, France Diplomatie, 16 November, accessed 9 May 2017 at http://www.

diplomatie.gouv.fr/en/french-foreign-policy/defence-security/parisattacks-paris-te rror-attacks-november-201 5/article/speech-by-the-president-of-the-republic-befo re-a-joint-session-of-parliament. The Economist (2015), ‘How to fight back: The battle against Islamic State must be waged on every front’, 21 November, accessed on 9 May 2017 at http://www. economist.com/news/leaders/21678785-battle-against-islamic-state-must-be-wa ged-every-front-how-fight-back. United Nations (2009), Human Security in Theory and Practice: An Overview of the Human Security Concept and the United Nations Trust Fund for Human Security, New York: United Nations.

2.

The EU and the European security community: history and current challenges Niklas Bremberg

Over the past few years, several crises in and near the European Union (EU) have followed one another. The Euro crisis and its Greek aftermath, the popular uprisings in north Africa and the Middle East, Russia’s annexation of Crimea and the conflict in Ukraine, the civil war in Syria,

the refugee situation in Europe — all are examples of the multifaceted and partly linked risks and challenges that the EU and its Member States are facing today. The EU is often seen as a guarantor of peace and stability in Europe, but its behaviour in connection with these crises has hitherto left much to be desired. In view of the growing political conflicts between EU Member States, and not least in light of the UK’s impending withdrawal from the Union, it may be a good time to ask in what direction these crises and challenges are leading cooperation within the EU. This is obviously a question with no simple or unequivocal answer; however, research on the dynamics that distinguish regional ‘security communities’ offers an interesting and relevant basis for tackling the issue. The EU is often depicted as a close-knit security community (hereafter SC), inasmuch as the threat of war between countries has essentially dis-

appeared from the greater part of Europe. The research so far has shown that the EU’s common institutions and policies have helped sustain the European SC, and that deepened cooperation within regional organizations can promote a process whereby national identities become embedded in a larger common identity, thus reducing the risk of violent conflict between the participating states (Adler and Barnett, 1998; Bellamy, 2004; Checkel, 2005; Moller, 2007). Interest among scholars has grown of late in how the

EU’s unique mixture of supranational and intergovernmental policy-making allows its member states to cooperate on a range of cross-border risks and non-military threats (Boin et al., 2013; see also Widmalm et al., Chapter 5 in

this volume). The Union’s foreign and security policy is a prominent example of this, as are its provisions for cooperation on justice and home affairs 18

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19

(Monar, 2006; Howarth, 2014; see also Osterdahl, Chapter 3, and Wagnsson,

Chapter 10, in this volume). The crises of recent years underline the need for greater cooperation within the EU in these policy areas, even as they raise the question of what importance security threats, risks, and challenges have for maintaining, deepening, or possibly splitting the European SC. In this chapter, I discuss this question on the basis of current research on the EU as an SC-building institution. I set out my basic assumptions to begin with, and I review some relevant results within the research on SCs. I then proceed to analyse, from an SC-oriented standpoint, the development of the EU’s military and civilian capabilities, as well as the evolution of

its structures for cooperation in the area of civil protection. I also discuss the Union’s response to the refugee situation in the Mediterranean region. I then conclude the chapter with a reflection, based on the research of

recent years, on the EU as a security-building institution in areas beyond its borders. This also provides the basis for the policy recommendations I present at the very end of the chapter.

WHAT

IS A SECURITY COMMUNITY?

A security community is defined as a group of states that are integrated to the point that there is no doubt they will handle any conflicts between them peacefully, without resort to force. The basic task for researchers interested in SCs is to understand and explain how, why, and under what conditions dependable expectations of peaceful conflict resolution arise. The concept was first developed in the 1950s, by a research team led by Karl W. Deutsch.! Their results were published in the now classic book Political Community and the North Atlantic Area: International Organization in the Light of Historical Experience. The question underlying their inquiry was: ‘How can we learn to act together to eliminate war as a Social institution?’ (Deutsch et al., 1957, p. 3; emphasis added). What

they wanted to understand and explain was why some states no longer seemed to regard war between them as a real threat. During those Cold War years, no global trend was apparent towards peace or the relaxation of tensions, but Deutsch and his colleagues could point to changes at the regional level, particularly in North America and Western Europe. The fact that former enemies like Germany and France were able to undertake far-reaching economic and political cooperation so soon after the Second World War was a sensational development. Explanatory models that stressed US hegemony and the Soviet threat as preconditions for peace between European nations seemed incapable of fully capturing the dynamics of European integration.

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There are also several historical examples of the development as in Scandinavia and North America during the nineteenth and centuries — that point to other explanatory factors as well.” The emerged that SCs should not be seen primarily in terms of the

of SCs — twentieth view thus organiza-

tions that states establish to achieve certain goals, such as cooperation

on economic or security matters. They should instead be understood as political communities held together by some kind of common identity — a ‘we-feeling’ with popular roots. Deutsch described this as ‘the attainment, within a territory, of a sense of community and of institutions and

practices strong enough and widespread enough to assure, for a long time, dependable expectations of peaceful change among its population’ (Deutsch et al., 1957, p. 5; emphasis added). Another important starting

point for the research on SCs is that wars between countries are not to be regarded as inevitable disasters that take place more or less regularly due to the fallen character of human nature or as a consequence of the anarchic quality of the international system. War is understood, rather, as an historically conditioned social institution. Understanding the ways in which this institution changes over time is thus central to the research agenda. A number of scholars have also started taking an interest in how cross-border risks and non-military threats affect the dynamics within SCs. A distinction is also made between ‘amalgamated’ and ‘pluralistic’ SCs (Deutsch et al., 1957, p. 6). Amalgamated SCs arise when independent states join together to make a new state: the US after 1787 was an example, as were newly unified Italy and Germany in the second half of the nineteenth century. In the case of pluralistic SCs, participating states retain their sovereignty, albeit in partly restricted form: the EU Member States are an instance hereof. It is pluralistic SCs that are of particular interest to researchers in international relations, not least because this type of community challenges the prevalent realist understanding of relations between states. Realist theory is based, namely, on the presumption that states can never really trust one each other, inasmuch as — in the absence of a world

government — anarchy prevails in the international system (see, among others, Morgenthau,

[1948]

1993; Waltz,

1979; and Mearsheimer, 2001).

For the study of European and regional integration, the concept of an SC may even be preferable to other definitions of integration. Rather than trying to establish the extent to which power and sovereignty have been delegated to supranational institutions, it focuses on changes in relations between states. As Rosamond points out, Deutsch focused less on Europe than other integration theorists and to this day the idea of ‘security communities’ might have better purchase as a general theory of integration, because its focal point is the transformation of

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international relations and intersocietal exchange, rather than the development of supranational institutions and the demise of state sovereignty. (Rosamond, 2002, p. 41)

The research on SCs captures a phenomenon that many people in the West today would intuitively recognize, but scholars disagree about what the most important factors have been behind the emergence of persistent expectations of peace between nations. Deutsch, for example, put a heavy stress on social transaction and communication. Simplifying somewhat, we can say he proceeded on the hypothesis that the more people from different countries interact with one another, the more likely they will be to expect conflicts to be resolved peacefully. Deutsch’s ‘transactional hypothesis’, however, drew sharp criticism early on. After all, social interaction does

not lead necessarily to greater understanding between different national groups; at times, in fact, it can do the opposite. As Bull (1966) and Haas (1958b) stressed, insults, threats of violence, and the circulation of negative

stereotypes are instances of communication too. In itself, then, the intensity of social transactions is not a good indicator of SC-building. Social transactions are thus necessary but insufficient. Taken together with other factors, however, they may serve as an explanation. Research emphasizes that, where decision-making is concerned, basic political values must be similar or at least mutually compatible. Political elites have to feel confidence in one another, and they must be able to predict each other’s actions. The quite extensive literature on democratic peace (that is, on the relationship between liberal democracy and peace between countries) gives substantial support for the basic assumptions regarding the emergence of SCs (see Russett, 1993, among others). However, the mechanisms captured

by the SC concept are also applicable beyond the sphere of liberal democracies, as, among others, Amitav Acharya (2001) has shown in his research on regional cooperation in southeast Asia. The research on SCs received a boost after the end of the Cold War, not least because European integration grew both deeper and wider within the EU framework — a development at odds with models that predicted a Soviet collapse would mean a return to the state of conflict and balance-of-power politics that characterized Europe before 1945. The year 1998 saw the publication of one of the foremost contributions to research on SCs: the anthology Security Communities, edited by Emanuel Adler and Michael Barnett. Adler and Barnett put particular stress, as a key explanation for why people in certain countries develop persistent expectations that conflicts will be resolved peacefully, on collective identities linked to notions that countries in certain regions (such as ‘Europe’ or ‘southeast Asia’) belong together. They show too how regional organizations

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The European Union

can serve as transnational forums for socializing political and economic elites. Another interesting observation is that regional identities need not out-compete national identities; instead they can function to ‘embed’ them and to give them a partly new meaning — as when, after the Second World War, German identity acquired a strong European aspect (Risse-Kappen, 1996). Adler and Barnett’s perspective on political power within SCs also goes beyond traditional definitions which stress control over material resources and the ability to get other actors to do as one wishes by force or the threat thereof (Adler and Barnett, 1998, pp. 39-40). When different states form part of an SC, this does not mean that conflicts between them cease; rather, it means they refrain from settling them by force. One important dimension of power within SCs is the ability to influence the values that characterize the collective identity; and the exercise of power on this basis, as, among others, Bially Mattern (2005) has shown, involves exerting influence over who is included in the community and who is excluded from it. The always topical debate on where the borders of Europe and the EU go, and what the values distinguishing the ‘European community’ are, illustrates how conceptions tied to geographical origins can be utilized for political purposes (Neumann, 1999). Until recently, the EU’s enlargement to the east in 2004-07 was judged its most successful project in the area of foreign and security policy. At the same time, it is clear that certain states that cannot, or do not wish

to, be included in the EU-based community of Europe — such as Russia — are actively trying to prevent further enlargement of the Union. Both ideas and material elements are involved in this conflict. They combine in ways that not only challenge the security arrangements that emerged in Europe following the Cold War; they also call attention to the limits of the European SC. Inasmuch, moreover, as the fundamental values of the Union are coming under challenge from certain Member States, such as

Hungary and Poland, these limits are being tested within the community as well.

More recently, research on SCs has also focused on practices: that is, on socially defined and meaningful ways of doing things within particular social domains (Adler, 2008; Bremberg, 2015, 2016a).? The aim is to gain a

greater understanding of how expectations of peaceful conflict resolution arise and are maintained among representatives of certain states. Vincent Pouliot has shown that such expectations can be understood as an outcome of daily practices — a result of how diplomats and military personnel, over a considerable period, proceed on the assumption that peaceful conflict resolution is the natural and obvious approach to use when dealing with certain states (Pouliot, 2008, 2010). The focus here is less on studying how

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actors represent themselves and others, and more on understanding what

they do when they interact. Negotiations between the great powers over Iran’s nuclear programme are an instance of diplomacy; regular summits of EU heads of state and government in Brussels are another. Seen as practices, however, these two cases are clearly different. If the object is to ascertain where the boundaries for an SC go, it may be more useful to focus on the ‘communities of practice’ that have evolved than to count up how many states are members of a given regional organization (North Atlantic Treaty Organization (NATO), Association of Southeast Asian Nations (ASEAN), African Union (AU), etc.). However,

focusing primarily on SC-building practices (such as the establishment of multilateral diplomatic forums or regular multinational military exercises) does not mean ignoring the fact that SCs are marked by a common identity, or disregarding the way in which power is exercised within them. Instead it is a way of trying to unravel the everyday processes of socialization through which a shared identity arises and changes, and of understanding power less as an abstract resource and more in terms of the creation of particular arrangements.

THE EUROPEAN SECURITY COMMUNITY HISTORICAL PERSPECTIVE

IN

Characterizing the EU today as an expression of a European SC would appear to be relatively uncontroversial. This does not mean, however, that the arrangements in question are static or unchanging. Various outcomes are of course possible. The European SC may divide and fragment in the future, or it may deepen and grow more robust. In view of this uncertainty, it may be useful to reflect on how this SC came to be, and what the mechanisms are that might maintain it or alter it. To begin with, the forerunner

of today’s EU — the European Coal and Steel Community (ECSC), established in 1952 by West Germany, France, Italy, and the Benelux countries,

was not really an SC. The ECSC was based on the idea that, if the coal and steel industries of the participating countries were placed under a common authority, it would be impossible for the states in question to declare war against each other again (Haas, 1958a). Thus mutual suspicion, together with a disbelief in the prospects for maintaining peace through traditional diplomacy — and of course the shattering experience of two devastating world wars — made it possible for postwar European leaders to take the first steps in the integration process. When the French National Assembly chose, in August 1954, not to ratify the treaty establishing a European Defence Community, French opposition

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The European Union

to the re-militarization of West Germany — which the US favoured, in order to strengthen western Europe’s defences against the Soviet Union — was pivotal. The role of the US as guarantor of western Europe’s security was thereby fixed, and the idea of a common European army was suspended. Yet, over the sixty years that European integration has proceeded, its distinctive blend of supranational institutions and intergovernmental cooperation has strengthened the type of social transactions, socialization of political elites, and predictability in decision-making that Deutsch and other scholars have identified as crucial SC-building mechanisms. Decision-making within the EU today is highly complex, and negotiations are constantly ongoing within its common institutions (Richardson and Mazey, 2015). Union matters are no longer seen as foreign policy, for they directly affect the daily work of administration in the Member States (Hooghe and Marks, 2001). EU treaties and regulations, which have grown

extensively, affect a large part of life for the more than 500 million residents of the Union (McNamara, 2015). Furthermore, Europe is the most ‘institutionalized’ region in the world, with most of its states being members of mul-

tiple and partly overlapping organizations — among them the EU, but also NATO, the Organization for Security and Co-operation in Europe (OSCE), and the Council of Europe (Ziirn and Checkel, 2005; Hofmann, 2009). This

is an important aspect of the European SC, although it should be noted that such organizations do not in themselves constitute the community. A country such as Sweden, for example, is a full member of the European

SC, despite its military nonalignment; whereas Russia, notwithstanding its membership of both the OSCE and the Council of Europe, is not. To a degree, of course, balance-of-power politics in Europe lives on. It found expression, for example, in the demand made by France that a common currency be established with Germany, in exchange for French support for German reunification (Hyde-Price, 2007). The idea was that Germany — now economically stronger than ever — would be ‘tamed’ by being embedded in a common economic-political structure (a structure that later became the Eurozone). However, the lingering distrust among French politicians during the 1990s in the face of Germany’s growing economic strength is less interesting than the fact that German politicians accepted the euro as a way of reassuring their neighbours that the continent’s bloody history would not be repeated, notwithstanding the fact that Germany was now on track to regaining its dominant position at the heart of Europe. The point here is that state representatives seek to promote what they perceive as their national interests even when their country forms part of an SC; however, the way in which they do so is different from

how they do in a situation where war between countries is seen as, if not desirable, then at any rate conceivable.‘

The EU and the European security community

25

At the same time, as current research on European identity shows, EU citizens do not seem to feel any strong common identity. Sociologists and political scientists have shown that support for the Union is unevenly distributed among its Member States, and within them as well, with atti-

tudes on the question varying substantially between different segments of the population, according to educational level and socioeconomic status (Diez Medrano,

2003; Fligstein, 2008; Kuhn, 2014). EU

questions have

also become increasingly politicized since the 1990s, as is clear not least from the electoral success enjoyed across Europe by Eurosceptical parties on both the left and the right (Hooghe and Marks, 2009). Finally, the economic crisis of recent years in Europe, and the political conflicts to which it has led (in the Eurozone especially), may have resulted in lower levels of public support for the EU. As Checkel and Katzenstein have noted, a strong sense of solidarity with the citizens of other EU Member States is not what distinguishes European citizens today. Nor are they ready to die for Europe in the same way that their grandparents, in the event of war, were prepared to sacrifice their lives to ensure the survival of the nation. But the important thing in this context is that, In contrast to the nation, dying for Europe is not a political litmus test; not killing Europeans is. One of the most surprising developments in Europe has been the rapid growth of a European security community, based on a relatively thin conception of collective identity that is lacking in emotional strength. Europeans have made peace in ... a community of strangers. (Checkel and Katzenstein, 2009, p. 12)

Judt describes a similar notion when he writes that, ‘from 1945 to 1989[,]

inter-state war disappeared from the continent of Europe. Two generations of Europeans grew up under the hitherto inconceivable impression that peace was the natural order of things’ (Judt, 2005, p. 750).

THE EUROPEAN SECURITY COMMUNITY AFTER THE END OF THE COLD WAR The EU today plays a different role for European security from that played by its predecessors. A Common Foreign and Security Policy (CFSP), namely, is now formulated within its bounds. By contrast, its predecessors during the Cold War contributed to European security indirectly, by supporting political and economic integration in western Europe. Since 1993, when the Treaty on European Union (TEU; also known as the Maastricht Treaty) entered into force, far-reaching cooperation has been possible on

26

The European Union

foreign and security policy, and on justice and home affairs. Although in the 1970s Member States of the European Economic Community (EEC) were already collaborating informally in the fight against cross-border crime, it is only after the Treaty of Maastricht and, above all, the Treaty

of Amsterdam (1999) that a marked expansion in cooperation has taken place within the Union on civil and criminal matters, on migration, on

border surveillance, on police cooperation, on civil protection, and on counter-terrorism (Trauner and Ripoll Servent, 2015). Article 3 TEU stipulates that the EU ‘shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is

ensured’ at the same time that the Union’s external borders are controlled. That justice and home affairs has become one of Europe’s most dynamic policy areas must be seen against the background of the fact that, to maintain law and order within the Union, its Member States need to cooperate

more and more as European integration deepens. The CFSP was initially marked by the experience of the Yugoslav civil war, when the EU Member States could not agree on a common position and a peace agreement was reached only after US intervention (Howarth, 2014). The military capabilities that had been built up during the Cold War were mainly aimed at supplying European countries with national territorial defence, and this seemed obsolete after the fall of the Soviet Union.

The total superiority in military and technological terms displayed by the US in the Gulf War of 1990-91 also played a role in launching a discussion in Europe on the need to deepen integration in the defence industry sector, so that the gap vis-a-vis the US might be reduced. Dramatic changes have also taken place in security and defence policy at the national level (Kirchner and Sperling, 2007; Mérand, 2008; Haaland Matlary, 2009).

NEW INSTITUTIONS AND PRACTICES WITHIN THE EUROPEAN SECURITY COMMUNITY In December 1998, the leaders of Great Britain and France agreed that the EU should be endowed with military capabilities within the framework of the CFSP, in order to strengthen the Union’s capacity to manage international crises (Howarth, 2014). A major obstacle to greater European cooperation in the security and defence area was thereby removed. For the first time, the UK explicitly endorsed furnishing the EU with military capabilities, while France recognized NATO’s special role in security and defence matters. The origins of what now is known as the Common Security and Defence Policy (CSDP) lay in this agreement between the two most important military actors in the Union.

The EU and the European security community

27

The US, for its part, was initially hesitant about a project that could be seen as a challenger to NATO,

but it soon switched to a posture of

eager support. After all, an enhanced military capacity on the part of the Europeans to manage international crises would offer the US an opportunity to free up its forces in Europe; and the EU would be able to contribute to both military and civilian efforts elsewhere in the world. A further precondition for the CSDP was fulfilled in that the EU Member States felt no fear in the face of each other’s military capabilities; on the contrary, their main worry was that their partners might not be able to handle non-military threats and cross-border risks (Boin et al., 2013). The Member States remain reluctant, however, to relinquish national

sovereignty in matters of security and defence, which means there are nonetheless limits to how far cooperation in this area can go in its current form.

It is important to stress that the EU does not have its own army: it is mainly its Member States which provide military and civilian capabilities. Decision-making for the CSDP takes place on an intergovernmental basis (Article 42 TEU) in the Foreign Affairs Council, which means in effect that no Member State can be forced to participate in EU operations. Individual Member States may also refrain from participating without impeding other Member States from initiating an operation. The Union’s military operations are not funded through the ordinary EU budget (as other measures of foreign and security policy are); instead, they are financed through a special budget or else by individual Member States. In the case of civilian operations, each Member State pays the wages of its own staff; other costs are defrayed through the EU budget. According to the treaties, the Union shall promote multilateral solutions to common security problems. For political reasons, moreover, it is necessary for the EU to obtain support from the United Nations (UN) Security Council for a decision to deploy an operation under the CSDP. The EU has also entered an agreement with NATO so that it can use the latter’s assets and capabilities, and it has done so in Bosnia and Macedonia (Mérand, 2010). Neither the European Commission nor the European Parliament has any formal influence over matters connected with EU military capabilities, but a number of bodies and committees have been set up within the Union to manage the CSDP. It may be said, then, that decision-making under the CSDP has been institutionalized at the European level, not least because a common organizational capacity is needed to lead operations. One change that has been made recently may have the effect ultimately of promoting greater consensus on the CFSP and the CSDP: the High Representative of the Union for Foreign Affairs and Security Policy is now a

vice-president of the Commission, head of the European External

28

The European Union

Action Service, and permanent president of the Foreign Affairs Council. Since 2014, this post has been held by Federica Mogherini. The EU has undertaken, since 2003, some thirty military and civilian

operations within the framework of the CSDP, about half of which are still in progress (Council of the EU, 2016; European External Action Service (EEAS), 2016a). These operations can involve humanitarian, rescue, and peacekeeping missions; military crisis management, including so-called peace-enforcement operations; disarmament missions; military advice and assistance; post-conflict stabilization; and counter-terrorism assistance for countries outside the Union. In the civilian area, the EU can assist with the

creation and training of police forces and other resources for maintaining law and order. Examples of ongoing missions of a relatively limited kind include education and training of the Malian military (EUTM Mali); training of police and law-enforcement authorities in the West Bank (EUPOL COPPS); and support for countries such as Kenya, Somalia, and Tanzania in strengthening their maritime-security capabilities (EUCAP Nestor). More far-reaching missions include peacekeeping in Bosnia-Herzegovina (EUFOR Althea); the use of maritime forces off the Horn of Africa to

combat piracy (EU NAVFOR Atalanta); and support for police, prosecution, and customs authorities in Kosovo (EULEX Kosovo). The EU’s efforts in the area of civil protection may not have drawn as much attention as the CSDP, but they are nonetheless interesting from an

SC standpoint (Ekengren et al., 2006; Bremberg and Britz, 2009). Civil protection refers here to protection of people, property, and the environment in the event of terrorism, natural or human-made disasters, technological, radiological, and environmental accidents, whether occur within or outside the EU (see Widmalm et al., Chapter 5 in volume). Civil protection falls under Justice and Home Affairs (JHA),

and they this and

the ministers for justice and home affairs in the JHA Council formulate EU policy in this area, together with the European Parliament. Article 196 TFEU (Treaty on the Functioning of the EU) states that the ‘Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters’. The aim of EU policy is to support and complement efforts in prevention,

rescue, and relief that are conducted

at national,

regional, and local levels. The EU is also charged with promoting ‘consistency in international civil-protection work’ and ‘swift, effective operational cooperation within the Union between national civil-protection services’. Cooperation on civil protection began on a small scale as early as the 1980s, and EU efforts in this area have successively assumed a higher profile, not least due to 9/11 and the focus on international terrorism over the past fifteen years. After the terrorist attacks in Madrid in 2004, the

The EU and the European security community

29

heads of state and government adopted a declaration of solidarity between the EU Member States, which then formed the basis for the solidarity clause introduced by the Lisbon Treaty (Article 222 TFEU). This has given further political impetus to a policy area that might previously have seemed somewhat technical. The clause stipulates that 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’. It states too that ‘the Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to prevent the terrorist threat’ and to ‘protect democratic institutions and the civilian population’. Finally, the clause enjoins the EU and its Member States to assist any member which is ‘the object of a terrorist attack or the victim of a natural or man-made disaster’. The Civil Protection Mechanism, established in 2001 to support Member States’ efforts in the area of civil protection, includes a centre for coordination of a disaster response (the European Emergency Response Coordination Centre (ERCC)), and support for training and the sharing of expertise. The EU Member States are covered by the Mechanism; and Iceland, Macedonia,

Montenegro, Norway,

and Serbia are also full

members of the Mechanism. The ERCC is the operational heart of the Civil Protection Mechanism; it is to this body that national civil-protection agencies turn for emergency assistance from other Member States when their own resources do not suffice. The ERCC receives several requests for assistance each year. The Union made large-scale efforts in response to the oil spill off the coast of northwest Spain in 2002, the forest fires in Greece

in 2007, and the floods in Hungary and Romania in 2010.

THE CSDP AND CIVIL PROTECTION AS SECURITY COMMUNITY BUILDING PRACTICES The fact that the EU Member States are seeking to enhance their ability to manage non-military threats and cross-border risks can be seen as a sign that they are adapting their efforts to a situation where outright war between states is increasingly rare. Research on civil protection and the CSDP also indicates that working within the EU’s common institutions has drawn the different national representatives closer together in terms of how they view the Union’s objectives in the area of foreign and security policy, even if clear differences of opinion remain about when, where, and how the EU should make use of military capabilities, and how much in the way of common resources should be made available for civil protection (Meyer, 2006; Bremberg and Britz, 2009; Cross, 2010). Other

30

The European Union

bodies meriting particular mention in this context include the Political and Security Committee (PSC), the EU Military Committee, the Committee

for Civilian Aspects of Crisis Management, and the Working Party on Civil Protection. The national representatives on the PSC meet several times a week in Brussels to formulate proposals for the consideration of the Foreign Affairs Council, and to oversee the implementation of agreed measures under the CFSP. The committee’s core task is to plan, prepare, and follow up on policy decisions for EU action (Howarth, 2014). The EU Military Committee is the highest military body within the Union: it leads all military activities, such as the planning and implementation of operations and the development of resources. It also gives military advice to the PSC and makes recommendations to heads of government in the European Council. It consists of the commanders-in-chief of EU Member States, but it is the

permanent military representatives — often the same people who represent their respective countries in NATO — who ordinarily meet. The Union is not, however, a uniform actor; on the contrary, EU decision-making on

matters of international security rests on ongoing negotiation and compromise between partly conflicting interests and partly divergent perceptions of prevalent threats. The practical dimension of the CSDP and of civil protection is particularly interesting from an SC perspective, because it clearly goes beyond the formal borders of the Union. EU efforts in this area are not just a way for its Member States to assist each other in the event of large-scale disasters, they also form an important part of the Union’s humanitarian and emergency assistance. On several occasions over the past decade, the ERCC has coordinated Member States’ civil-protection efforts in regions outside the Union, as in response to the earthquakes in Haiti in 2010 and Nepal in 2015, the tsunami in southeast Asia in 2005, and the Ebola outbreak in west Africa in 2014. It has also done this in connection with military conflicts, as during the Israeli offensive in southern Lebanon in 2006, the

Russian—Georgian conflict in 2008, and the fighting in Libya in 2011. Since the 1990s, moreover, the Union has supported multilateral efforts at civil protection in the Mediterranean, a region of some 450 million inhabitants and more than twenty countries (many of them EU Member States). The Mediterranean region has been struck by several disasters and conflicts in recent years. Multilateral efforts have included exercises, the sharing of experiences, and the creation of common resources, such as a risk atlas for the Mediterranean area (Bremberg, 2010). The long-term goal is to integrate countries such as Morocco, Algeria, and Tunisia into the Civil Protection Mechanism. In the meantime, according to interviews with diplomats and practitioners from both Europe and north Africa,

The EU and the European security community

31

the partnerships serve to build confidence between the different national civil-protection authorities in the region (Bremberg, 2016a). Strengthening the civil-protection systems of the Union’s southern neighbours is one of the objectives here, but the EU also has a clear interest in the matter. When a disaster takes place in the region, that is, the EU Member States often

need to get involved whether they like it or not, according to interviews with representatives of the European Commission and the Council of Ministers (ibid.).

Under the CSDP as well, the Union has a role in supporting cooperative projects that include countries which are not members. The EU has concluded a series of so-called framework agreements, with an eye to enabling non-members to participate in military and civilian operations. In 2011, for example, an agreement of this kind was concluded with the US, allowing American participation in EULEX Kosovo. Similar agreements are in force with Canada, Iceland, Montenegro, Norway, Serbia, Turkey,

and Ukraine. Special arrangements have also been made for involving European non-members, particularly candidates for EU enlargement (although Russia — prior to the crisis in Ukraine — had signed an agreement with the Union on cooperation in this area). Some twenty-five partner states so far — including Albania, Canada, Chile, Macedonia, Montenegro, New Zealand, Norway, Switzerland, Turkey, Ukraine, and the US — have

contributed military and civilian capabilities to sixteen EU operations (EEAS, 2016b). Morocco has taken part in the EU mission in Bosnia, which of course is interesting from a symbolic perspective. While the number of troops it has provided is rather small, this is the first and only time an Arab country has contributed military resources to an EU operation. According to sources in the EEAS, the Moroccan detachment was believed to raise the standing of the EU mission among the Muslim population in Bosnia (Bremberg, 2016a). The Union has an interest in promoting cooperation of this kind. It is not just that the partnering states add their own resources and so reduce the burden borne by the EU Member States; it is also that their participation imparts greater legitimacy to EU operations under the CSDP. Seen from an SC perspective, the close cooperation between the military forces of different states within the framework of EU (and NATO) operations is a concrete indication that the states taking part in the European SC do not just expect conflicts to be resolved peacefully among themselves; they are also seeking more and more to reach common solutions to security challenges with countries outside their own circle.

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THE UNION’S RESPONSE TO THE REFUGEE SITUATION IN THE MEDITERRANEAN Apart from the crisis in Ukraine and the Union’s deteriorating relationship with Russia, the foremost security challenge facing the EU and its Member States today derives from the upheavals in the region south of the Union and the dramatic deterioration in the security situation in north Africa and the Middle East in the wake of the Arab uprisings of 2011. On the one hand, it lies in Europe’s interest for a country like Tunisia to move towards democracy, since opportunities for fuller cooperation on common concerns are likely increased thereby. On the other hand, the civil war in Syria and the instability in Libya have given rise to a humanitarian disaster in and around the Mediterranean. The EU’s response to these challenges highlights how difficult it is for its Member States to reach quick agreement on foreign and security policy; at the same time, it seems to some extent to confirm the results of research on the European SC (Bremberg, 2017;

Bremberg and Britz, 2017). After reacting cautiously at first, the EU’s foreign ministers expressed unanimous support for the democratic demands of the popular protests in Tunis and Cairo. In February 2011, the heads of state and government tasked Catherine Ashton, the High Representative of the Union for

Foreign Affairs and Security Policy, with drawing up a plan for assisting Tunisia and Egypt (European Commission, 2011a, 2011b). As the repression in Libya mounted,

moreover, the European

Council underlined its

support for UN Resolution 1970, which condemned the violence and authorized international sanctions. Later, in spring 2011, acting within the framework of the CFSP, the Union imposed a series of economic sanctions aimed at, among

other targets, members

of the Tunisian and

Libyan regimes (see also Eriksson, Chapter 4 in this volume). According to sources in the PSC and the Middle East/Gulf Working Party who took part in drafting the sanctions in 2011, the EU functioned pretty much as a ‘sanctions machine’ at the beginning of the Arab uprisings (Bremberg, 2016b). However, while the EU Member States were able to agree on sanctions, its response to the Arab uprisings pointed to a lack of unity in several areas. In March 2011, for example, when UN resolution 1973 on

a no-fly zone over Libya was to be adopted, Germany abstained in the UN Security Council vote (Koenig, 2011). NATO then took charge of the military operation, which while aimed at protecting civilians also helped the rebels defeat Gaddafi’s forces. In April 2011, the Union’s foreign ministers approved a military mission in Libya, but no operation under the CSDP was forthcoming, because its Member States could not agree on

The EU and the European security community

33

how to carry it out. In May 2013, a limited operation (EUBAM Libya) was launched in order to assist border management authorities in Libya, but the mission was moved to Tunisia in 2014, on account of the worsen-

ing instability in Libya. Nor was there any EU mission in response to the crisis in Mali in January 2013, when Islamist rebels were about to occupy the capital, Bamako. Instead France intervened, together with military forces from west African countries (Heisbourg, 2013). On the one hand,

the lack of any military operations in Libya and Mali is striking, because these were exactly the kind of crises for which the Union’s rapid reaction forces have been designed. On the other hand, the EU’s Civil Protection Mechanism mobilized a mission in support of the civilian population during the Libyan crisis in 2011, and the Union’s military capacity was used to some extent for coordinating the evacuation of most of the EU citizens who found themselves in that country. It is in the area of humanitarian aid and civilian crisis management,

moreover,

that the EU

can

contribute resources and capabilities that many international organizations lack. As the security situation in north Africa and the Middle East has deteriorated,

humanitarian

needs

have

increased,

as has

the

flow

of

refugees across the Mediterranean. According to the UN Refugee Agency (UNHCR), the number of people displaced worldwide at the end of 2014 (59.5 million) was the highest since the Second World War. The International Organization for Migration (IOM) reports that, in 2015, more than a million people made their way across the Mediterranean to Europe (IOM, 2015), giving rise to a refugee crisis that has left the EU reeling (see also Noll, Chapter 9 in this volume). This can be compared with the figures from 2014, when an estimated 220000 migrants crossed the

Mediterranean,

and

2016,

when

about

390000

migrants

arrived

in Europe (IOM, 2017). According to the IOM, moreover, some 4700 migrants lost their lives in the Mediterranean

in 2016, and about 3700

in 2015 (ibid.). Irregular migration across the Mediterranean is no new phenomenon, but the civil war in Syria has impelled large numbers of Syrian refugees to try to come to Europe, together with people from several African countries who are fleeing war, oppression, and hardship. The law-

lessness in Libya has also opened up refugee routes to Italy and Malta in the central Mediterranean which had previously been closed. Other routes into Europe — taken by many refugees from Syria, Iraq, and Afghanistan — lead through Turkey and the eastern Mediterranean into Greece and the western Balkans. In October 2013, a boat full of refugees capsized off the coast of the Italian island of Lampedusa; 366 people are estimated to have died. Several such disasters have drawn attention in recent years. Shortly after

34

The European Union

the tragedy at Lampedusa, the Italian navy began a far-reaching rescue effort at sea, known as Operation Mare Nostrum, and according to them

the operation, which lasted a year, enabled some 150000 migrants to come ashore. The EU furnished only financial support for the Italian operation. After its completion in October 2014, a limited mission known as Operation Triton was launched under the aegis of Frontex, the Union’s border security agency. The IOM and several human rights organizations have criticized Operation Triton for focusing on border control but not on search and rescue, and thereby returning to the state of things that existed before Operation Mare Nostrum (World Maritime News, 2015).

But the number of migrants trying to cross the Mediterranean did not decline. Another big shipwreck took place in April 2015 between Libya and Lampedusa, in which almost 700 people are feared to have died. In response to this disaster and the ever-increasing flow of migrants into Italy and Greece, the EU’s foreign and home affairs ministers held a special meeting a few days later, at which they agreed that the Union should focus on saving lives at sea and on combatting migrant smuggling. Shortly thereafter, the heads of state and government gathered at an extraordinary meeting of the European Council, where they decided that Operation Triton would receive additional resources and that it would also focus on search and rescue. They also called on the High Representative for Foreign Affairs and Security Policy to prepare a CFSP programme for combatting migrant smuggling networks. In June, EU NAVFOR Med was launched, which in an initial phase would ascertain how such networks operate in the central Mediterranean. Its operative headquarters is located in Rome. In September 2015, the EU foreign ministers instructed the programme to proceed to an operational phase, in which ships could be boarded,

searched, and seized (Bremberg

and

Britz, 2017). In May 2015, the Commission presented a comprehensive package for developing EU migration policy (European Commission, 2015). To a great extent, the proposals contained therein touched on issues with which the Union had long been working, such as establishing a common system for asylum and strengthening cooperation on border control. But there were some new features as well. The Commission proposed, for example, to distribute asylum-seekers among different countries in the Union, and to activate an emergency mechanism — provided for in the Lisbon Treaty (Article 78.3 TFEU) — which would allow provisional measures to be taken in the event of a sudden influx of persons from countries outside the EU. Among other things, 40000 asylum-seekers would be redistributed from Italy and Greece to other Member States, on the basis of specific allocation criteria.

The EU and the European security community

35

Several EU Member States opposed the proposal, in part for reasons relating to national sovereignty, in part because of the way in which the allocation criteria were formulated. In July 2015, the Union’s home affairs ministers agreed on a proposal to redistribute, on a voluntary basis, 32 256 people from Italy and Greece, and to divide 22500 refugees outside the EU among its Member States. Not least, Germany pushed for the other Member States to accept more refugees. In September 2015, a decision was made to distribute 160000 refugees among different states in the EU. Since the Member States could not agree on the matter, the decision was taken by a qualified majority, which is unusual on questions of this kind. Hungary among other countries has refused to comply with the decision, and it has not had its intended effect. As mentioned above, about a million migrants

came to Europe in 2015. When the Member States failed to adopt a common policy on asylum, the Union changed its approach. In March 2016 it made an agreement with Turkey, which means in practice that Turkey has closed its border with Europe. As a consequence, the flow of refugees into Europe has significantly diminished. It is open to debate whether this agreement is consistent with international and European law, and it is furthermore unclear whether it will hold over time, given the unstable situation in Turkey after the failed coup in the summer of 2016 (Greenhill, 2016).

In view of the developments described above, it may be useful to look back. The experience of European countries during the 1990s, when they had proved unable to deal with the civil war in Yugoslavia, accounts in great part for the shape given to EU military and civilian capabilities in the 2000s. Research on EU foreign and security policy suggests that in many respects it is ‘crisis-driven’: that is, it has been formulated in reaction to

crises that took place earlier. A pattern of this kind does not necessarily result in efficiency or coherence, although it does seem to lead to a gradual deepening of integration. It is consistent, however, with the mechanisms identified in the research on the European SC. That said, there is no guarantee that future developments will follow the same lines. In any case, there is clearly much that the EU can do better. Deutsch

drew

the

conclusion

early

on

that,

while

external

threats

can help an SC to develop — through the sense of belonging that they further — such an effect is transitory. The mechanisms that sustain an SC, that is, are different from those that promote military alliances between states (Deutsch et al., 1957, p. 45). The challenges facing the EU and its Member States towards its south can be understood in terms of security, particularly the instability in Libya. By far the biggest challenge, however, is humanitarian in nature, in the form of migrant and refugee flows. The joint operation against migrant smuggling networks in north Africa indicates, as does the extended rescue operation in the Mediterranean, that

36

The European Union

the EU Member States are strengthening their practical cooperation on cross-border risks in yet another area. If the EU Member States are able to devise a common and responsible solution to the refugee situation in Europe, then the European SC may well be strengthened. In light of what occurred in 2015, however, there is a serious risk that they will not do so, not least on account of how

sensitive the issue of migration is in many European countries. Here we discern the contours of what may ultimately pose the greatest threat to the European SC as we know it today: that the principles (among them freedom of movement) on which the Union is founded — and which are supposed to bring its Member States closer together — seem rather to foment political differences between them. There would appear, moreover, to be similar trends in foreign and security policy, inasmuch as differing national approaches to the crises in Ukraine and Syria may have the effect of reinforcing perceptions that the Union no longer serves the interests of its Member States. This illustrates a paradox in the European SC. It has been consolidated over the years, and it is now taken for granted. With

the passage of time, however, the memory of European wars — a memory that gave a strong impetus initially to the emergence of an SC — has faded. European elites have been inclined hitherto to seek compromise. In many cases, moreover, a lack of consensus among the EU Member States earlier

was offset by innovation and creativity. There is much to indicate, however, that this is no longer the case, even if it is too early to say what impact this will have on the European SC.

HOW CAN THE UNION PROMOTE SC-BUILDING BEYOND ITS BORDERS? Must the EU become more like a state if it is to influence its environment effectively and provide leadership on major global issues? Or is it a waste of time and resources trying to muster the degree of concordance necessary for the EU to become a uniform actor in foreign and security affairs? The research on SCs does not give unequivocal support to either argument. But it does offer a different perspective. The starting point for this approach is that, while the Union is certainly far from being a uniform actor in the area of foreign and security policy, it is the world’s most advanced SC-building institution. If the purpose of the foreign and security policy pursued by the Union and its Member States is to contribute to peace and security, then it seems probable from this perspective that the EU best promotes its goals by supporting SC-building practices both within and beyond its borders. Here are three general recommendations for how this might be done.

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37

In general, the Union should seek to strengthen its cooperation on security matters with other regional organizations. An example of this can be seen in the dialogue on preventive diplomacy and conflict resolution which is being conducted between representatives of the EEAS, the UN, the OSCE, the Arab League, and the African Union.

The EU can support the institutionalization of multilateral forums of this kind, not least by providing financial resources and expertise. Further examples include the meetings that take place regularly between PSC ambassadors and representatives of the Arab League, as well as the collaboration between the EU and the Arab League in the area of crisis management (for instance through the support provided by the EEAS for the establishment of a crisis centre in Cairo). It is not enough,

however,

to promote

the institutionalization of

multilateral diplomatic forums. The research suggests that practical cooperation in operations and exercises leads to a greater consensus over time on how cross-border risks and non-military threats are to be handled. Military and civilian operations under the CSDP that involve countries outside the Union are interesting examples. The EU should look at ways to make it easier for such states to participate, for instance by supporting their participation financially (even if this involves sensitive budgetary issues). Relations between the EU and NATO also bear discussing in greater detail, not least because the Union’s Member States rely in practice on NATO assets and capabilities for major military operations. Moreover, the security situation in eastern Europe has prompted NATO to give renewed priority to territorial defence over international crisis management. The cooperative regional effort in the area of civil protection that the EU supports in the Mediterranean is another successful example that should be possible to develop further, for example by giving non-member states better access to the Civil Protection Mechanism, as well as furnishing them with financial support for taking part in

activities coordinated by the ERCC.

The refugee situation in the

Mediterranean, moreover, highlights the increased need for rescue

operations at sea. Besides the fact that the EU’s initial response in this respect left much

to be desired, there is reason to discuss

whether the EU’s operations in the area of civil protection should be extended to include search and rescue at sea. Thus, rather than leaving coordination in this field to Frontex, the Union could

strengthen its capabilities in the area of humanitarian aid.

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The European Union

NOTES 1. 2. 3.

It bears noting that the term ‘security community’ was first coined by Richard W. Van Wagenen (1952). See Raymond E. Lindgren’s study of the peaceful dissolution of the union between Sweden and Norway in 1905, and the emergence of the Scandinavian SC (Lindgren, 1959). For more detailed treatments of the concept of practices, and how it can be applied in the study of international politics, see Neumann (2002), Adler and Pouliot (2011), AdlerNissen (2014), Bueger (2014), Bueger and Gadinger (2014), and Bicchi and Bremberg

4.

(2016). This is a point that Holsti stressed early on: “The concept [of an SC] is thus a tautology. But this criticism fails to acknowledge that some very serious differences have arisen among states in security communities, and that some special characteristics of these relationships have prevented the quarreling governments from adopting forms of behavior typical in conflicts involving the threat or the use of force’ (Holsti, 1974, p. 498).

REFERENCES Acharya, A. (2001), Constructing a Security Community in Southeast Asia: ASEAN

and the Problem of Regional Order, London: Routledge. Adler, E. (2008), ‘The spread of security communities: communities of practice, self-restraint, and NATO’s post-cold war transformation’, European Journal of International Relations, 14 (2), 195-230. Adler, E. and M. Barnett (eds) (1998), Security Communities, Cambridge: Cambridge University Press. Adler, E. and V. Pouliot (eds) (2011), International Practices, Cambridge: Cambridge University Press. Adler-Nissen, R. (2014), Opting Out of the European Union: Diplomacy, Sovereignty and European Integration, Cambridge: Cambridge University Press. Bellamy, A. (2004), Security Communities and their Neighbours: Regional Fortresses or Global Integrators? Houndmills: Palgrave Macmillan. Bially Mattern, J. (2005), Ordering International Politics: Identity, Crisis and Representational Force, London: Routledge.

Bicchi, F. and N. Bremberg (2016), ‘European diplomatic practices: contemporary challenges and innovative approaches’, European Security, 25 (4), 391-406. Boin, A., M. Ekengren,

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Bremberg, N. (2016b), ‘Making sense of the EU’s response to the Arab spring: Foreign policy practice at times of crisis’, European Security, 25 (4), 42341.

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Bremberg, N. (2017), ‘Do regional organizations contribute to security? Perspectives on Euro-Mediterranean cooperation’ in R. Gillespie and F. Volpi (eds), Routledge Handbook on Mediterranean Politics, London: Routledge.

Bremberg, N. and M. Britz (2009), ‘Uncovering the diverging institutional logics of EU civil protection’, Cooperation and Conflict, 44 (3), 288-308. Bremberg, N. and M. Britz (2017), ‘From region-building to crisis management: EU security strategies towards the Southern Mediterranean’, in J. Sperling, and S. Economides (eds), The EU’s Security Strategies, London: Routledge. Bueger, C. (2014), ‘Pathways to practice: praxiography and international politics’, European Political Science Review, 6 (3), 383-406. Bueger, C. and F. Gadinger (2014), International Practice Theory: New Perspectives, Basingstoke: Palgrave. Bull, H. (1966), ‘International theory: the case of a classical approach’, World Politics, 18 (3), 361-77. Checkel, J. (2005), ‘International institutions and socialization in Europe: introduction and framework’, International Organization, 59 (4), 801-26. Checkel, J. and P. Katzenstein (eds) (2009), European Identity, Cambridge: Cambridge University Press. Council of the EU (2016), CFSP Report — Our Priorities in 2016, 13026/16, 17 October 2016, Brussels, accessed 17 January 2017 at http://data.consilium.eur opa.eu/doc/document/ST-13026-2016-INIT/en/pdf. Cross, M. (2010), ‘Cooperation by committee: the EU military committee and committee for civilian crisis management’, EU-ISS Occasional Paper, 82. Deutsch,

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European Commission (2011a), A Partnership for Democracy and Shared Prosperity with the Southern Mediterranean, COM(2011) 200 final, 8 March 2011, Brussels,

accessed 5 September 2016 at http://www.eeas.europa.eu/euromed/docs/com20 11_200_en.pdf. European Commission (2011b), 4 New Response to a Changing Neighbourhood: A Review of the European Neighbourhood Policy, COM(2011) 303, 25 May 2011, Brussels, accessed 5 September 2016 at http://www.eeas.europa.eu/enp/pdf/pdf/ com_11_303_en.pdf. European Commission (2015), A European Agenda on Migration, COM(2015) 240 final, 13 May 2015, Brussels, accessed 15 January 2017 at http://ec.europa.eu/dgs/ home-affairs/what-we-do/policies/european-agenda-migration/background-infor mation/docs/communication_on_the_european_agenda_on_migration_en.pdf. European External Action Service (EEAS) (2016a), Military and Civilian Missions and Operations, accessed 16 January 2017 at https://eeas.europa.eu/headquarters/ headquarters-homepage/430/military-and-civilian-missions-and-operations_en. European External Action Service (EEAS) (201 6b), Partnerships, accessed 16 January 2017 at https://eeas.europa.eu/headquarters/headquarters-homepage_en/5392/ CSDP%20structure,%20instruments,%20and”20agencies.

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Fligstein, N. (2008), Euroclash: the EU, European Identity, and the Future of Europe, Oxford: Oxford University Press. Greenhill, K. (2016), ‘Open arms behind barred doors: fear, hypocrisy and policy schizophrenia in the European migration crisis’, European Law Journal, 22 (3), 317-32. Haaland Matilary, J. (2009), European Union Security Dynamics: In the New National Interest, Houndmills: Palgrave Macmillan. Haas, E. (1958a), The Uniting of Europe: Political, Economic, and Social Forces, 1950-1957, Stanford: Stanford University Press.

Haas, E. (1958b), ‘Persistent themes in Atlantic and European unity’, World Politics, 10 (4), 614-28. Heisbourg, F. (2013), ‘A surprising little war: first lessons of Mali’, Survival, 55 (2), 7-18. Hofmann, S. (2009), ‘Overlapping institutions in the realm of international security: the case of NATO and ESDP’, Perspectives on Politics, 7 (1), 45-52. Holsti, K. (1974), International Politics: A Framework for Analysis, London: Prentice-Hall International. Hooghe, L. and G. Marks (2001), Multi-Level Governance and European Integration, Lanham: Rowman &Littlefield. Hooghe, L. and G. Marks (2009), ‘A postfunctionalist theory of European integration: from permissive consensus to constraining dissensus’, British Journal of Political Science, 39 (1), 1-23. Howarth, J. (2014), Security and Defence Policy in the European Union, Basingstoke: Palgrave. Hyde-Price, A. (2007), European Security in the Twenty-First Century: The Challenge of Multipolarity, London: Routledge. International Organization for Migration (IOM) (2015), Compilation of Migration Flows in 2015, accessed 14 January 2017 at http://doe.iom.int/docs/Flows%20 Compilation%202015%20Overview. pdf. International Organization for Migration (IOM) (2017), Compilation of Migration Flows January 2017, accessed 14 January 2017 at http://migration.iom.int/docs/ Monthly_Flows_Compilation_12_January_2017.pdf. Judt, T. (2005), Postwar: A History of Europe since 1945, London: Vintage. Kirchner, E. and J. Sperling (2007), EU Security Governance, Manchester: Manchester University Press. Koenig, N. (2011), ‘The EU and the Libyan crisis — in quest of coherence?’ The International Spectator, 46 (4), 11-30. Kuhn, T. (2014), Experiencing European

Integration:

Transnational

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McNamara, K. (2015), The Politics of Everyday Europe: Constructing Authority in the European Union, Oxford: Oxford University Press.

Mearsheimer, J. (2001), The Tragedy of Great Power Politics, New York: Norton. Mérand, F. (2008), European Defence Policy: Beyond the Nation State, Oxford: Oxford University Press. Mérand, F. (2010), ‘Pierre Bourdieu and the birth of European defense’, Security Studies, 19 (2), 342-74. Meyer, C. (2006), The Question for a European Strategic Culture: Changing Norms on Security and Defence in the European Union, Basingstoke: Palgrave.

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Moller, F. (2007), Thinking Peaceful Change: Baltic Security Policies and Security Community Building, Syracuse: Syracuse University Press. Monar, J. (2006), ‘Cooperation in the justice and home affairs domain: characteristics, constraints and progress’, Journal of European Integration, 28 (5), 495-509. Morgenthau, H. ({1948] 1993), Politics Among Nations: The Struggle for Power and Peace, New York: McGraw-Hill.

Neumann, I. (1999), Uses of the Other: ‘The East’ in European Identity Formation, Manchester: Manchester University Press. Neumann, I. (2002), ‘Returning practice to the linguistic turn: the case of diplomacy’, Millennium: Journal of International Studies, 31 (3), 627-51. Pouliot, V. (2008), ‘The logic of practicality: a theory of practice of security communities’, International Organization, 62 (2), 257-88. Pouliot, V. (2010), International Security in Practice: The Politics of NATO-Russia Diplomacy, Cambridge: Cambridge University Press. Richardson, J. and S. Mazey (eds) (2015), European Union: Power and PolicyMaking, London: Routledge. Risse-Kappen, T. (1996), “Collective identity in a democratic community: the case of NATO’, in P. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics, New York: Columbia University Press.

Rosamond, B. (2002), ‘Theories of political integration’, in J. Gower (ed.), The European Union Handbook, London: Fitzroy Dearborn.

Russett, B. (1993), Grasping the Democratic Peace: Principles of a Post-Cold War World, Princeton: Princeton University Press. Trauner, F. and A. Ripoll Servent (eds) (2015), Policy Change in the Area of Freedom, Security and Justice: How EU Institutions Matter, London: Routledge. Van Wagenen, R. (1952), Research in the International Organization Field: Some Notes on a Possible Focus, Princeton: Center for Research on World Political

Institutions. Waltz, K. (1979), Theory of International Politics, Reading: Addison-Wesley. World Maritime News (2015), ‘IOM: more needs to be done on saving migrations’, accessed 14 January 2017 at http://worldmaritimenews.com/archives/152296/ iom-more-needs-to-be-done-on-saving-migrants/. Zirn, M. and J. Checkel (2005), ‘Getting socialized to build bridges: constructivism and rationalism, Europe and the nation-state’, International Organization, 59 (4),

1045-79.

3.

After Lisbon: the new legal framework for the EU’s Common Foreign and Security Policy Inger Osterdahl

This chapter focuses on the legal framework for the Common Foreign and Security Policy (CFSP) of the European Union (EU). The legal framework in this case relates largely to forms and structures for policy creation and decision-making. It does not determine the content of policy, except in a general and abstract way — through the guiding principles and overarching objectives it sets out. Where foreign affairs and security policy are concerned, the Lisbon Treaty brought no major changes. While the rules bearing on other areas of EU activity were assembled in or transferred to the Treaty on the Functioning of the European Union (TFEU), the CFSP alone significantly remains in the Treaty on European Union (TEU) Three legal innovations did, however, make their appearance with the Lisbon Treaty. First, the position of High Representative of the Union for Foreign Affairs and Security Policy was established, and the European External Action Service (EEAS) — the task of which is to assist the High Representative — was formed. Second, the EU was empowered to impose sanctions not just against other countries (as earlier), but against individuals and non-state entities as well. Third, a mutual defence clause among the Union’s Member States was introduced (see also Mikael Eriksson,

Chapter 4, and Charlotte Wagnsson, Chapter 10 in this volume). In other respects, where foreign affairs and security policy are concerned, the Lisbon Treaty did little but rearrange already existing provisions. In this chapter, I examine the new legal elements in the Lisbon Treaty, as well as the (not fully so new) overarching legal and institutional structures for policy creation (see also Butler, 2017b). How common, in fact, is the CFSP

from a juridical point of view? Or, to ask the question a little differently: how ‘juridified’ is the CFSP? I begin by reviewing the substantive scope of the CFSP. Which issues is the Union empowered to deal with? I find that, in principle, the EU’s

42

After Lisbon: the new legal framework for the EU’s CFSP

43

powers in this area are very broad. The CFSP in turn constitutes only part of the overall external activities of the Union, which involve much more than just foreign affairs, security policy, or defence. The EU interacts intensively with the outside world in a wide range of policy areas, of which foreign and security policy is only one (although matters relating to the latter can also, of course, be closely connected with issues in other areas). Then we have the various actors — in particular the Union institutions and the Member States — which are involved in the framing of foreign and security policy. To what extent can the Union make decisions which in one way or another override the interests and priorities of its various Member States? Are legally powerful means available to make Member States undertake a foreign and security policy that is common in the real sense of the word? In my analysis of how decisions under the CFSP are made, on the one hand, I find that the Union has little in the way of legal instruments with which to compel Member States to cooperate if for one reason or another they do not wish to do so. On the other hand, the TEU sets few limits on what policies they can enact in common, should that instead be what they choose to undertake. When it comes to sanctions targeted on individuals and non-state entities, the position of the Court of Justice of the European Union (CJEU) has been strengthened, and its powers to protect human rights have been enhanced. In the process, an extensive body of case law has built up. The Court has hereby defended both its own position within the CFSP and the status of fundamental human rights under the policies pursued. It remains to be seen whether the CJEU will succeed in strengthening its position within other areas of foreign and security policy as well, and it is unclear whether fundamental human rights will leave the same decisive imprint there. Lastly, I turn to EU defence policy, which in fact heralds a common defence policy and ultimately a common defence. The mutual defence clause of the Lisbon Treaty would seem, therefore, to imply far-reaching solidarity among the EU Member States in this area.

THE UNION HAS A BROAD MANDATE According to Article 24(1) TEU, the CFSP covers ‘all areas of foreign policy and all questions relating to the Union’s security’. In addition, it involves ‘the progressive framing of a common defence policy that might lead to a common defence’. There are basically no bounds, accordingly, to what the EU can undertake in the way of common policies in foreign affairs, security, and defence. In these areas, as in all others where the Union

acts internationally, certain values are to guide it. Article 21(1) in Title V

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The European Union

TEU states that the ‘Union’s action on the international scene shall be guided by the principles which have inspired its own creation’ — principles which must be ‘advance[d] in the wider world’. These 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 [UN] Charter and international law’. In the world as it looks today, these values

are far from being self-evident. Furthermore,

according

to Article 21(1) TEU,

the Union

shall seek

to develop relations and to build partnerships with countries outside the Union (so-called third countries), as well as with other regional or global organizations that share the EU’s fundamental values. It shall promote multilateral solutions to international problems, and strive in particular to achieve such solutions within the framework of the UN. The EU has long stood for ‘effective multilateralism’, an important slogan since the Union adopted its first security strategy, A Secure Europe in a Better World (EU, 2003). Within the framework

of its external relations, moreover,

the EU

is

active in many other areas besides foreign affairs, security, and defence. International trade is one such obvious and important area. Trade policy is an original area of Union competence,

and after Lisbon the EU

has

expressly held exclusive competence in this area. The Union also gives development aid for the reduction of poverty, and it cooperates on economic and financial matters with countries outside the EU that are not developing countries. Such financial cooperation includes assistance to countries outside the Union in the event of urgent need. Humanitarian aid too figures among the Union’s external operations, for the benefit of people in third countries who have fallen victim to natural or human-made disasters. Environmental policies account for an increasingly important part of the Union’s international activities. EU policies on border control, asylum, and immigration have long made themselves felt in various ways, and have been the subject of hot political debate (see Gregor Noll, Chapter 9 in this volume). The EU’s energy policies can be said to contain a strong external component,

which

has attracted

increased

attention

in recent

years. The Union’s policies for fighting terrorism, finally, have an obvious external dimension. No sharp line can be drawn, substantively speaking, between matters that fall under the CFSP and other issues bearing on the EU’s external relations. From a juridical standpoint, the difference is fundamentally a constitutional one: who makes the decisions — the Member States or the Union? What kinds of decisions can be made — restricted ones in particular cases or generally binding legislative ones? How are decisions

After Lisbon: the new legal framework for the EU’s CFSP

45

made — unanimously or by majority rule? The Union’s foreign and security policies are organized on a clear intergovernmental basis, in accordance with provisions set out in the TEU. By contrast, its other external activities

are organized on a more or less supranational basis, along lines laid down in the TFEU.

According to paragraph 3 of the aforementioned Article 21 TEU, ‘the Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect’. This passage is laden with symbolism, and it is somewhat misleading. The focus is on the external action of the Union — and the Council, the Commission, and the High Representative are key actors in the Union. Where the CFSP is concerned, however, the heads of state

or government assembled in the European Council are at least as central, and possibly more so; and the same can be said of the Member States themselves (cf. Koutrakos, 2017). But they are not mentioned in the grand opening paragraph. Besides the Union actors mentioned, there are twentyeight Member States (or twenty-seven after the UK withdraws), each one

pursuing purposes and representing interests that can conflict with those of the others. In view of this, achieving consistency between different external and internal policy areas can prove difficult. With the advent of the Lisbon Treaty, the ‘pillar structure’ featured previously in the EU’s treaties was officially abolished. In practice, however, this did not affect the CFSP. The framework for both the policy content and the decision-making procedures was kept largely intact. Foreign and security policy now constitutes a single ‘pillar’ of its own within the TEU; all of the other policy areas, by contrast, are regulated in the TFEU. Asa result, foreign and security policy (defence policy included) appears even more exceptional in relation to other policy areas than it did before Lisbon. This may also cause considerable problems when it comes to fulfilling the solemnly proclaimed aspiration to achieve consistency between different external and internal policy areas — especially since, after Lisbon, the TEU stipulates more clearly than ever that foreign affairs and security policy are an area where intergovernmental decision-making prevails.

MANY

DIFFERENT ACTORS SHAPE POLICY

As we have seen, it is characteristic of EU foreign and security policy that many different actors are involved in its creation. Certain EU institutions that are usually central, however, are scarcely involved at all. The European

46

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Council and the Council decide on the content of the CFSP, according to Article 24(1) TEU, Title V, Chapter 2. The European Council, according to Article 26(1) TEU, stakes out the overall direction, while the Council,

according to Article 26(2) TEU, draws up policies on the basis of the general guidelines and strategic direction laid down by the European Council. The Council and the High Representative, also pursuant to Article 26(2) TEU — and in the case of the High Representative, pursuant to Article 18(4) TEU as well — are to ensure the unity, consistency, and effectiveness of the Union’s actions. According to Article 26(3) TEU, finally, the CFSP shall be carried out by the High Representative and by Member States, using national and Union resources.

According to Article 15(6) of the TEU, the President of the European Council represents the Union in the world at large on issues concerning the CFSP. The current holder of this post is Donald Tusk, formerly prime minister of Poland.

The

Council, in turn, consists of the ministers of

Member States in a given policy area. In foreign affairs and security policy, that means in the first instance the foreign ministers. The so-called Foreign Affairs Council — that is, the Council in its foreign policy configuration — thus consists of the foreign ministers of all of the Member States. Depending on the issues to be discussed, the Foreign Affairs Council may also consist of defence ministers, trade ministers, or development aid ministers.

The High Representative at present is Federica Mogherini, formerly foreign minister of Italy. The post of ‘High Representative of the Union for Foreign Affairs and Security Policy’ was introduced with the Lisbon Treaty. The post previously went by the title of ‘High Representative for the Common Foreign and Security Policy’, as originally established under the terms of the Amsterdam Treaty (1997). During the early stages of the process that ultimately resulted in the Lisbon Treaty, it was thought that the formal title of the High Representative would be ‘Union Minister for Foreign Affairs’. But such was not to be. The TEU invests great hopes in the High Representative, as can be seen from Article 18(2). The role of the High Representative, according to said article, is to ‘conduct the Union’s common foreign and security policy’, and to ‘contribute by his [sic] proposals to the development of that policy, which he [sic] shall carry out as mandated by the Council.’ He or she is to do the same in connection with the Common Security and Defence Policy (CSDP). As per Articles 18(3) and 27(1) TEU, the High Representative also presides over the Foreign Affairs Council. He or she does so in all areas bearing on EU foreign policy, save that of trade issues (where the rotating presidency does so instead). According to Article 27(2) TEU, the High Representative shall represent the EU externally on matters relating to the

After Lisbon: the new legal framework for the EU’s CFSP

47

CFSP (thus joining the President of the European Council in this role). The High Representative shall furthermore conduct political dialogue with third countries and with other types of international actors on the Union’s behalf, and he or she shall express the position of the EU in international organizations and at international conferences. The High Representative is also a vice-president of the Commission, pursuant to Article 18(4) TEU. This illustrates the attempt made in the Lisbon Treaty to bridge the gap between foreign and security policy on the one hand and other ‘external action’ on the other, with an eye to creating an integrated and consistent foreign policy in a broad sense for the Union. It was also decided in Lisbon, as seen in Article 27(3) TEU, to establish

the EEAS. The Service is a kind of EU foreign ministry (although that is not the term used). Its task is to assist the High Representative in the execution of his or her duties. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. (Article 27(3)

TEU)

Thus, many different constitutional logics and political interests must work together and balance one another. Rosa Balfour underlines the existence of different working cultures as a complicating factor for the creation of a common EU foreign policy (Balfour, 2015, p. 40). And even after Lisbon, writes Nicola Chelotti for his part, the decision-making process under the CFSP still centres on the Foreign Affairs Council and the national ministers who comprise it (Chelotti, 2016, p. 172). Under Article 32 TEU and Article 221 TFEU, the EEAS operates EU

representations — termed Union delegations — around the world. Union delegations answer to the High Representative, according to Article 221(2) TFEU. Pursuant to Articles 32 and 35 TEU, and Article 221(2) TFEU, diplomatic missions of the Member States and the Union’s delegations should cooperate. They are, furthermore, expected to contribute to formulating and implementing the common approach. Article 35 TEU enjoins them to exchange information and carry out joint assessments to implement decisions made by the Union. Article 34(1) TEU, finally, states that the High

Representative shall organize Member States’ coordination of their action in international organizations and at international conferences. Prior to Lisbon, the Commission conducted the Union’s representations abroad. The conversion of the Commission’s representations into Union delegations entailed a formal upgrading of the EU’s foreign representations, as well as a broadening of the issues that they could

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The European Union

undertake — from the more technical issues within the mandate of the Commission to the foreign and security policy questions under the Council’s purview. Frauke Austermann avers that the delegations have been highly successful since Lisbon in pushing EU diplomacy towards increased centralization, in the sense of ‘speaking with one voice’ (Austermann, 2014, pp. 176, 182). In her analysis of the delegations’ activities, moreover, she finds that — contrary to the current view — the

EU in the world is a ‘political giant’ in the making (not a ‘dwarf’), an “economic power’ (not a ‘giant’), and a ‘normative dwarf’ (not a ‘power’) (Austermann, 2014, p. 174).

Within the narrower field of foreign and security policy, as opposed to the broader area of the Union’s ‘external action’, the Commission plays a subordinate role. This is logical enough, since the Commission is first and foremost a part — an active and instigating part — of the supranational constitutional machinery within the EU. According to Article 27(3) TEU, the Commission was to agree to the decision by which the Council (in 2010) established the EEAS. In and of itself this was important, since it meant the Commission would be able to look after its interests in the organization and functioning of the new service. The Commission can also influence the work of the EEAS indirectly, through the officials the Commission appoints to the EEAS. Otherwise the Commission does not figure either in formulating or in implementing foreign and security policy, except inasmuch as, pursuant to Article 30(1) TEU, it may join with the High Representative in referring any question bearing on foreign and security policy to the Council, and may submit initiatives or suggestions to it. At least in formal terms, then, the Commission does not have considerable

power in this area. Another Union institution that has become signficantly important in supranational policy-making after Lisbon, but which plays at most a marginal role in foreign and security policy, is the European Parliament. According to Article 36 TEU, the European Parliament shall be regularly consulted by the High Representative on the main aspects and basic choices of the CFSP and the CSDP. Furthermore, the High Representative will, as per Article 36, inform the Parliament regularly of developments in the two policies, and shall ensure that the Parliament’s views are given due consideration. Like the Commission, then, the European Parliament

lacks powerful instruments for exerting influence in this area. The initiative lies, moreover, entirely with the High Representative. The level below that of the Council and the High Representative — the ambassadorial level — is the level at which the Political and Security Committee (PSC) operates, as provided for in Article 38 TEU. The task of this committee is to monitor international developments in the areas covered by the CFSP, and to

After Lisbon: the new legal framework for the EU’s CFSP

49

contribute to the formulation of EU policy by delivering opinions to the Council on its own initiative, or at the request of the Council or the High

Representative. It also monitors the implementation of agreed polices, and is chaired by a representative of the EEAS. Last but not least — perhaps most, in fact — the Member States are central actors in the CFSP. Article 26(3) lays down that the CFSP ‘shall be put into effect by the High Representative and by the Member States, using national and Union resources’. The Member States have a strong position, both formally and effectively, and they exert direct influence on the CFSP. This may seem paradoxical, given that the term ‘common’ in an EU context usually suggests supranationalism. The TEU contains various exhortations to the Member States on how they are to act within the framework of the CFSP. Unsurprisingly, however, it creates no formal

mechanisms for sanctioning states that fail to comply with its edicts. According to Article 24(3) TEU, the Council and the High Representative shall ensure that the Member States loyally support the Union’s policies. In a rather typical passage in Title V, Chapter 2 of the TEU — relating to specific provisions on the CFSP — the various roles to be played by the Union on the one hand and the Member States on the other are set out. According to Article 24(2) TEU, the EU ‘shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States’ actions.’ It is not clear here who sets the agenda — the Union or the Member States. For their part, the Member States, Article 24(3) TEU proclaims, ‘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’. They are to ‘work together to enhance and develop their mutual political solidarity’, and they must ‘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’. Article 30(1) TEU, finally, reads as follows: Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it, respectively, initiatives or proposals.

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THE CJEU HAS BEEN LARGELY

MARGINALIZED

Only one important EU institution is expressly excluded from the CFSP: the Court of Justice of the European Union (CJEU). The CJEU shall not, acccording to Article 24(1) TEU,

have jurisdiction over the CFSP.

One of the many problems the CJEU found, in its opinion (from 2/2013) on the draft agreement providing for the EU’s accession to the European Convention on Human Rights (ECHR), was that the European Court of Human Rights (ECtHR) would have jurisdiction over Union action under the CFSP -— that is, a jurisdiction which the CJEU itself lacks. The CJEU held that, if it did not itself have such jurisdiction, then the ECtHR should

not have it either. If the ECtHR were given jurisdiction over the Union’s foreign and security policy, then both civilian and military operations by EU bodies could be scrutinized from a human rights perspective. Actions by the Member States in military missions abroad can be reviewed by the ECtHR (and they already have been). If the ECtHR were granted jurisdiction over the EU as an organization, then the latter too could be held responsible for

human rights abuses that might be committed by personnel taking part in missions with a EU mandate under the CFSP. However, Article 24(1) does

accord the CJEU jurisdiction over two types of question, notwithstanding their connection with the CFSP. Both types of question lie on the border between the (intergovernmental) area of EU foreign and security policy on the one hand, and the (supranational) policy areas under the TFEU on the other. To begin with, pursuant to Article 24(1) TEU and Article 275 TFEU, the CJEU may judge on issues relating to how the boundary line is drawn between the CFSP and other policy areas (stipulated in Article 40 TEU). The central question in these cases concerns the grounds on which, under the TEU or TFEU, a given measure can rightly be based, as well as what decision-making procedures are to apply — and, as a consequence thereof, which EU institutions may take part in the decision-making process. Examples of cases after Lisbon that concern how the line is to be drawn between the CFSP and other areas include C-130/10 (European Parliament v Council) and C-658/11 (European Parliament v Council). In both cases it was the European Parliament that brought the case against the Council before the Court, illustrating among other things the desire of the Parliament to gain greater influence over decision-making in the area of foreign and security policy. Case C-130/10 concerned restrictive measures (in this case freezing of assets) against persons and entities associated with Osama bin Laden, al-Qaeda, and the Taliban upon which the Council — acting within the

After Lisbon: the new legal framework for the EU’s CFSP

51

framework of the CFSP as stipulated in the TEU, and in accordance with Article 215(2) TFEU — had determined. The European Parliament was

of the view that the decision to impose restrictive measures ought to have been taken solely within the framework of Article 75 TFEU. The CJEU ruled, however, that the Council had made its decision regarding sanctions on the correct legal basis. Case C-658/11 concerned a decision by the Council within the framework of the CFSP to conclude, on behalf of the EU, an agreement under

Article 37 TEU with the Republic of Mauritius. The agreement concerned the conditions for transferring suspected pirates and property which had been seized by EU-led naval forces to the Republic of Mauritius, and on the conditions for suspected pirates following such a transfer. The European Parliament sought the annulment of the Council’s decision to conclude this agreement, on the grounds that the decision ought to have been taken on the basis of Article 218 TFEU, which stipulates among other things that the Parliament’s approval is required if international agreements are to be concluded. In this case the Court found that the Council had had the correct legal basis for deciding (on its own) to conclude the agreement, but that the Parliament had not been informed quickly or thoroughly enough at all stages of the procedure. Article 218(10) TFEU requires, namely, that the European Parliament be kept ‘immediately and fully informed’ regarding agreements in all of the EU’s areas of activity, including foreign and security policy. Accordingly, the Court annulled the Council’s decision to conclude the agreement with Mauritius (see further Van Elsuwege, 2015). Furthermore,

according

to Article

24(1)

TEU

in conjunction

with

Article 275 TFEU, the ECJ may rule regarding the legality of decisions on restrictive measures against natural or legal persons taken by the Council on the basis of Title V, Chapter 2 TEU. Article 215 TFEU regulates when

the EU may decide on restrictive measures. Prior to Lisbon, restrictive measures — under the then-applicable Treaty Establishing the European Community — could only be imposed on ‘third countries’. After Lisbon, Article 215(2) TEU made it possible for the Union to adopt corresponding restrictive measures against natural or legal persons and groups or nonstate entities. Even before the Lisbon Treaty entered into force, however,

the EU had imposed targeted sanctions on suspected terrorists (freezing their assets, for example), often on the basis of prior UN Security Council

resolutions. In Sweden,

the case of the so-called Somali Swedes — who were sus-

pected of sympathizing with al-Qaeda — drew a lot of attention. Case T-306/01 (Yusuf and Al Barakaat International Foundation v Council and Commission), together with the similar T-315/01 (Kadi v Council and Commission), entered legal history in 2008 — prior, that is, to the Lisbon

52

The European Union

Treaty’s entry into force. It was in that year that the CJEU, in the joined cases of C-402/05 P and C-415/05 P (Kadi and Al Barakaat International Foundation v Council and Commission), annulled the Union’s decision to

impose targeted sanctions against these persons and entities, on grounds of the need to respect fundamental human rights (particularly in connection with criminal procedures and property). Then, in 2013, in the joined cases of C-584/10 P, C-593/10 P, and C-595/10 P (commonly

known

as

Kadi IT), the Court again disallowed the sanctions against Kadi, which at that point had been somewhat modified — but thus insufficiently — in order to satisfy the requirement that human rights be respected. Through its case law in connection with targeted sanctions against natural and legal persons and non-state entities, the CJEU has substantially strengthened the standing of human rights under the CFSP. Since restrictive measures, prior to the Lisbon Treaty, could only be imposed on ‘third countries’, a provision was inserted into said treaty to the effect that such measures could be imposed on other subjects as well. Thus, in the Kadi case and the Yusuf and Al Barakaat case, the Court was quite generous in its interpretation of the term ‘third countries’ (which could include private individuals and even EU citizens residing in the Union); but it was strict in its assessment of whether human rights had been respected in the decision to impose sanctions. In the cases C-439/13 P (Elitaliana v Eulex Kosovo), C-455/14 P (H v Council and Commission), and C-72/15 (Rosneft), the ECJ confirmed its

(somewhat limited) jurisdiction over certain questions of foreign and security policy. In the Rosneft case, the Court held it to be within its powers to issue a preliminary ruling, under Article 267 TFEU concerning the validity of a decision taken on the basis of the rules governing the CFSP, ‘provided that the request for a preliminary ruling relates either to the monitoring of that decision’s compliance with Article 40 TEU, or to reviewing the legality of restrictive measures against natural or legal persons’ (para. 81; see further Butler, 2017a). Decisions on restrictive measures, according to Article 215 TFEU, shall

be taken by qualified majority by the Council, acting on a joint proposal by the High Representative and the Commission. The Council shall inform the European Parliament of its decision. The Council must have taken a unanimous prior decision on the introduction of sanctions under the TEU’s provisions on foreign and security policy (usually Article 29 TEU). If the CFSP does not need to be engaged, decisions to impose sanctions for preventing and combatting terrorism are taken (under Article 75 TFEU) by the Council, acting on a proposal from the Commission on the basis of legislation jointly enacted by the Council and the European Parliament.

After Lisbon: the new legal framework for the EU’s CFSP

53

UNANIMITY IS THE CHIEF RULE IN DECISION-MAKING The Lisbon Treaty was the culmination of a gradual evolution in the EU towards an increased resort to decision-making by qualified majority. The trend was thus from intergovernmentalism (with unanimous decision-making) towards supranationalism. Let us now consider EU decision-making under the CFSP, both in its own right and as an illustra-

tion of the degree of intergovernmentalism versus supranationalism that prevails in this area. The CFSP, according to Article 24(1) TEU, shall be defined and imple-

mented by the European Council and the Council acting unanimously, except where expressly stated otherwise. Article 31(1) repeats the point: ‘Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise’. Unanimity is thus the chief rule in the field of foreign and security policy. No state can be bound against its will. The legal instruments at the disposal of the Union are enumerated in the TEU. According to Article 25 (a) and (b) TEU, the Union shall conduct the CFSP by ‘defin-

ing the general guidelines’ and by ‘adopting decisions’. Such decisions shall in turn, pursuant to Article 25 (b) (i-iii) TEU, define the actions to

be undertaken by the Union, the positions to be taken by the Union, and the arrangements to be made for the implementation of the two types of decisions. Article 25 (c) TEU, furthermore, stipulates that the Union shall

implement the CFSP by ‘strengthening systematic cooperation between Member States in the conduct of policy’. What instruments the Union is to employ to strengthen cooperation between the Member States is not specified. From a legal point of view, it has no powerful instruments with which to induce them to cooperate. As in the case with the requirement of unanimity in the European Council

and

the Council,

the TEU

stipulates no less than

twice — in

Articles 24(1) and 31(1) TEU — that the adoption of legislative acts in the area of foreign and security policy is excluded. Generally binding legislation is widely adopted in most EU policy areas, including that of ‘external action’, but its adoption in foreign and security policy is excluded. The fact that decisions of the legally highest type — legislative decisions — are excluded in this area illustrates the weakness from a legal point of view of the Union’s formal structure for the making of foreign policy. Nor, as we have seen, is there any judicial machinery at the level of the Union to ensure that legislative decisions in the field of foreign and security policy are carried out — the CJEU being basically excluded from this area, as stipulated in Article 24(1).

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The European Union

As for the decision-making powers of the European Council, they are defined in a similar but not identical fashion in two different provisions of Title V TEU. The first provision, set out in Article 22(1) TEU, bears on the

whole field of EU external action. Citing the principles and objectives set out in Article 21 TEU (‘principles on which the Union itself builds and... objectives for the Union’s international action as a whole’), Article 22(1) TEU states that: 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. The European Council shall act unanimously on a recommendation from the Council. The second provision, set out in Article 26(1) TEU, describes the decision-

making powers of the European Council in connection specifically with the CFSP in terms similar to, but not identical with, how Article 22(1) TEU describes them in relation to the entire field of external action. In the narrower area of the CFSP, Article 26(1) TEU

states, the ‘European

Council shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for the common foreign and security policy, including for matters with defence implications. It shall adopt the necessary decisions.’ The Council in turn, pursuant to Article 26(2) TEU, ‘shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council’. It bears noting that the European Council’s competence covers both the intergovernmental CFSP and the supranational sphere relating to the Union’s external action; and that the Council (as stipulated in Article 22(1) TEU), and both the High Representative and the Commission (Article 22(2)), may be involved in this process. This gives expression to a desire to integrate and merge all foreign policy, in the broadest sense, into a powerful and more effective whole. The same effective mechanisms are not available, however, for the implementation of foreign and security policy (including defence policy) as for other areas of the Union’s external action. Article 28(1) TEU reads: ‘Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions’. Decisions on operational action, according to Article 28(2) TEU, shall be binding on the Member States in the positions they take and the actions they undertake. How binding these decisions really are, legally speaking, can be debated. However, the fact that decisions in this area are taken unanimously should ensure that the Member States abide

After Lisbon: the new legal framework for the EU’s CFSP

55

by them. Decisions on operational action that some Member States are not prepared to follow will not be taken. Article 28(3) TEU states that, whenever ‘there is any plan to adopt a national position or take national action’ pursuant to a Council decision on operational action, ‘information shall be provided by the Member State concerned in time to allow, if necessary, for prior consultations within the Council.’ Article 30(2) explains that, in ‘cases requiring a rapid decision, the High Representative, of his [sic] own motion, or at the request of a Member State, shall convene an extraordi-

nary Council meeting’. Article 29 TEU states that the ‘Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature.’ Decisions on restrictive measures are usually taken on the basis of this article, in combination with Article 215 TFEU. Article 29

TEU further states that ‘Member States shall ensure that their national policies conform to the Union positions’. However, the requirement of unanimity in foreign and security policy has been softened up slightly: pursuant to Article 31(1) TEU, a special rule has been introduced, providing for so-called constructive abstention. Article 31(1) TEU reads: ‘When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration . . . In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union’. Even in the field of foreign and security policy, however, there are cases where the Council may make decisions by qualified majority, as stipulated in Article 31(2) TEU. The Council may do so, for instance, ‘when adopting a decision defining a Union action or position on the basis of a [unanimous] decision of the European Council relating to the Union’s strategic interests and objectives’. The Council may also decide by qualified majority: when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific [unanimous] request from the European Council, made on its own initiative or that of the High Representative.

Finally, the Council may decide by qualified majority ‘when adopting any decision implementing a [unanimous prior] decision defining a Union action or position’; or ‘when appointing a special representative’ with a mandate on particular policy issues. It bears stressing that the Council’s ability to take decisions by qualified majority is highly circumscribed, and that the European Council — which, with its heads of state or government, is a purely intergovernmental body — is always the ultimate authority on foreign and security policy. However,

56

The European Union

notwithstanding this pronounced intergovernmentalism, Marianne Riddervold finds that the Commission exerts considerable influence on foreign and security policy (including defence policy) as a de facto matter — far greater influence than might be expected from the de jure situation (Riddervold, 2016; see also Wessel, 2016).

Under Article 31(3) TEU, the European Council may unanimously decide that the Council shall act by qualified majority in cases other than those enumerated in the TEU as seen above. According to Article 31(4) TEU, the weak rules permitting Council decision-making by qualified majority in some areas of foreign and security policy are not applicable ‘to decisions having military or defence implications’.

A COMMON DEFENCE POLICY UNDER CONSTRUCTION Title V TEU, which contains general provisions on external action of the Union in Chapter 1 and specific provisions on the CFSP in Chapter 2, also contains provisions on the CSDP, in Chapter 2, Section 2. The inter-

governmentalism in this area is, if possible, even more pronounced than in foreign and security policy in general. Even so, the EU has undertaken many missions, both civilian and military, within the framework of the CSDP. Since the start of the first EU Police Mission (EUPM) in Bosnia and Herzegovina in 2003, the purpose of which was to strengthen the rule of law, the Union has carried out more than thirty civilian and military missions. Of these about a third have been military; the rest have been civilian. Most of the missions have been in Africa, the Balkans, and southwest

Asia, including Afghanistan. Sweden has taken part in all EU missions, both civilian and military. The two latest military operations ordered by the Council under the CSDP were the EU Naval Force Mediterranean (EUNAVFOR Med), which combats the smuggling of refugees across the Mediterranean Sea; and the EU Training Mission in the Central African

Republic (EUTM RCA), the aim of which is to reform and rebuild the national army of the Central African Republic. The two most recent civilian missions were the EU Advisory Mission (EUAM) Ukraine, which provides advice on reforms in the area of civil security, and the EU Capacity Building Mission (EUCAP) Sahel Mali, which offers support for the internal security forces of Mali. While the Union’s competence under the CFSP covers all foreign policy areas and all issues relating to the security of the Union, the matters falling under the CSDP are specified somewhat more narrowly. Pursuant to Article 42(1) TEU, the CSDP shall provide the Union with an operational

After Lisbon: the new legal framework for the EU’s CFSP

57

capability drawing on both civilian and military resources. The Union may use such resources on missions outside the Union ‘for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the UN

Charter’, while the ‘performance of

these tasks shall be undertaken using capabilities provided by the Member States’. Despite the TEU’s declaration, then, that the Union can use such

civilian and military resources for its missions, the EU ties of its own in this area. It is instead the Member supply the necessary capabilities. It also bears noting 42(1), only missions outside the Union are included in

is without capabiliStates which (may) that, under Article the CSDP.

The CSDP furthermore includes ‘the progressive framing of a common

Union defence policy’, according to Article 42(2) TEU. ‘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’. Such a unanimous decision, almost certainly, lies well in the future, although the UK’s exit from the Union might facilitate the achieve-

ment of unanimity among the remaining members. As we have seen, the TEU merely mentions a gradual future establishment of a common defence policy for the Union, and then — in a yet more distant future — a unanimous agreement that might be concluded to set up a common EU defence. Yet the very idea of a common defence policy embracing all Member States was so provocative — and the idea of a common EU defence all the more so — that various Member States insisted on reservations. Thus, Article 42(2) makes clear that the Union’s policy

under the CSDP ‘shall not prejudice the specific character of the security and defence policy of certain Member States’ — namely the neutral or (nowadays) nonaligned countries. In addition, it ‘shall respect the obligations of certain Member States, which see their common defence realised

in the North Atlantic Treaty Organisation [sic] (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework’. Both nonaligned states and NATO countries thus, at least in part, could have their reservations regarding a common security and defence policy written into the TEU itself. Under Article 42(3) TEU, Member States shall make civilan and mili-

tary resources available to the Union for the purpose of implementing the CSDP, thereby contributing to the objectives defined (unanimously) by the Council. The Member States shall also undertake ‘progressively to improve their military capabilities’. Pursuant to the same article, an EU body — the European Defence Agency — shall assist Member States to develop and strengthen their military capabilities. Article 42(4) states that decisions relating to the CSDP, including those initiating a mission,

58

The European Union

shall be adopted by the Council — unanimously — on a proposal from the High Representative or at the initiative of a Member State. The High Representative may further, together with the Commission where appropriate, propose the use of both national resources and Union instruments. The European Parliament is not mentioned at all in the TEU’s section on the CSDP, which would appear to mean that the Parliament does not matter in this area. Nevertheless,

Guri Rosén

finds that the European

Parliament’s influence in precisely this policy area is constantly increasing, because the decision-making institutions are dependent on the legitimacy that the Parliament can impart to the policy (Rosén, 2015). As we have

seen, then, the tasks under

the CSDP

performed outside the Union include, according to missions ‘for peace-keeping, conflict prevention and national security’ — missions for which the Union may and military means. As Article 43(1) TEU explains,

which

are to be

Article 42(1) TEU, strengthening interemploy both civilian these ‘include joint

disarmament operations, humanitarian and rescue tasks, military advice

and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and postconflict stabilisation’. All of these tasks, moreover, ‘may contribute to the

fight against terrorism, including by supporting third countries in combating terrorism in their territories’. The rider on terrorism was introduced with the Lisbon Treaty.

This provision concerns aid to third countries for the purpose of combatting terrorism in their territories. The regulatory framework for the CSDP does not directly bear on support for countries that fight terrorism within the Union’s geographical borders; instead another provision — one closely connected substantively and institutionally with the CFSP — regulates it. This is the ‘solidarity clause’, found in Article 222 TFEU. Due to the transnational character of contemporary terrorism, the borderline between terrorism within and outside the Union has been partly erased. The potential powers of the Union under the CSDP may not include ‘everything’ (as they essentially do under the CFSP), but they are still very broad. If the political will is present, the EU can take part in all types of current action for the promotion of international peace — the more vigorous kind (i.e. peacemaking missions) included. The only use of military force which cannot be found among the types of task enumerated in the TEU is a war of self-defence. Since Lisbon, however, there has been a col-

lective self-defence clause (discussed below) in Article 42(7) TEU. According to Articles 42(4) and 43(2) TEU, the Council shall decide on the tasks to be performed by the Union. It shall define their objectives, their scope, and the general conditions for their implementation. The High Representative, ‘acting under the authority of the Council and in close and

After Lisbon: the new legal framework for the EU’s CFSP

59

constant contact with the Political and Security Committee [PSC], shall ensure coordination of the civilian and military aspects of such tasks’. According to Article 38 TEU, the PSC ‘shall exercise, under the responsi-

bility of the Council and of the High Representative, the political control and strategic direction of the crisis management operations’ falling under the CSDP. The same article states that the ‘Council may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation’. The PSC, then, plays an important role under the CSDP. Bart van Vooren and Ramses A. Wessel find in fact that, despite being barely mentioned in the TEU’s chapter on the CSDP, the PSC has become the hub around which all activities under the CSDP revolve (Van Vooren and Wessel, 2014,

p. 406). Furthermore, the TEU’s section on the CSDP features a mutual defence clause, in Article 42(7) TEU. This clause differs from other TEU provi-

sions, in that it does not refer at all to the Union or to the CSDP proper, with the tasks that the latter embraces. It concerns only the Member States and their mutual obligations. ‘If a Member State is the victim of armed aggression on its territory’, it reads, ‘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’. Reservations resembling those introduced in relation to the CSDP have also been inserted in connection with the mutual defence clause. Article 42(7) declares,

for instance,

that the commitment

to collective defence

‘shall not prejudice the specific character of the security and defence policy of certain Member States’. Furthermore, ‘[c]lommitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation [sic], which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation’. Until such time as matters come to a head, it remains unclear what the

commitment to mutual defence set out in the the one hand, in legal terms the commitment unlike all other commitments under the CFSP hand, as a practical political matter, it has so

TEU really amounts to. On is far-reaching and binding, and the CSDP. On the other far seemed rather empty of

content. Article 42(7) TEU was invoked for the first time in 2015, when

France applied for assistance from the other Member States following the terrorist attacks in Paris in November. At a meeting of the defence ministers, all of the other Member States responded affirmatively to the French request. The amount of assistance provided by each Member State was agreed bilaterally.

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The European Union

CONFERRING VOLUNTARILY, PEACE THEREBY

AND PROMOTING

Legally speaking, there is no binding common foreign and security policy in the EU. The only provision in the TEU which is unambiguously binding is the collective defence clause, which so far has not been very significant in practice. In other respects, the CFSP for the most part is not legally binding on Member States, and no legal sanctions are available with which to deter the latter from pursuing their own policies to the detriment of the interests of the Union. In a legal sense the CFSP is ‘soft’ — not in its external form (it is an international treaty), but in its normative content. To what extent, then, is the CFSP juridified? Scarcely at all, save in a few

limited respects. Nor, accordingly, is the CFSP particularly common, from a legal point of view. The CJEU can act in the margins — and it has done so — for increased ‘juridification’, in the sense of greater respect for human rights and for the principle of effective judicial protection; however, the Court still has small room for manoeuvre within the CFSP. In certain cases it has acted as a venue for the efforts of other EU institutions to assert their role in the decision-making process. Each time the Court is given an opportunity to exercise its jurisdiction, its own role in the policy process is indirectly strengthened as well. Judging from experience, we can expect opposition from Member States to any and all steps towards legal deepening in the area of foreign and security policy. It is possible, however, that the UK’s exit from the Union will make it easier for the remaining members to agree on a deeper and more common policy. The Union’s new global strategy, Shared Vision, Common Action: A Stronger Europe (EU, 2016), may also give new energy to common policy creation in this field (see also Common Market Law Review, 2016).

Although many would prefer a more vigorous CFSP vis-a-vis the larger world, there is reason to take heart from the contribution to concord and

consensus among the Member States themselves that arises from the constant interaction and discussion among political leaders in the Union and among officials within the EEAS (see also Niklas Bremberg, Chapter 2 in this volume). Foreign policy too, then, can contribute to peace in Europe (which is the EU’s main objective). The critical thing is to keep conferring with each other, and to hold the banner of liberal democratic values high

both within and outside the borders of the Union. It is hard to imagine a situation where the legal framework for the CFSP in itself induces the Member States to pursue one or another foreign policy line; law in this area is a function of politics, not the other way round.

Policy-making under the CFSP is clearly intergovernmental in char-

After Lisbon: the new legal framework for the EU’s CFSP

61

acter. With the Lisbon Treaty, attempts were made (somewhat from the side) to introduce supranational forms of cooperation in foreign and security policy, through the creation of the post of High Representative (with its broad area of responsibility), and through the creation of the EEAS. Within the latter service, and under the direction of the (on paper) almost all-powerful High Representative, the intergovernmental Council, the supranational Commission, and the Member States themselves would

confer and cooperate. Through their real practical actions, it was thought, officials would merge into a common culture, and from below would piece

together — transnationally and trans-institutionally — a common foreign policy of sorts (a common foreign policy wholly bereft, however, of legally binding or mandatory elements in relation to Member States). At the same time, the Member States all pursue their own independent foreign and security policy — some with a clearly greater impact on world affairs than others (and perhaps greater than the EU itself). Even if the legal structures are weak, a common foreign and security policy can emerge organically all the same, if the Member States allow it. The Lisbon Treaty provides the preconditions, and common interests would seem in spite of everything to unite the Member States. Together with the continuous

interaction at different levels, this should make

a

gradual approach to greater commonality possible, notwithstanding the absence of legal instruments for exerting pressure to that end. The loose legal form may also encourage — in combination with the broad substantive framework for the CFSP — a far-reaching flexibility in the EU. This is important for meeting new security threats.

REFERENCES Austermann, F. (2014), European Union Delegations in EU Foreign Policy: A Diplomatic Service of Different Speeds, Houndmills, Basingstoke: Palgrave Macmillan.

Balfour, R. (2015), ‘Change and continuity: a decade of evolution of EU foreign policy and the creation of the European External Action Service’, in R. Balfour, C. Carta and K. Raik (eds), The European External Action Service and National Foreign Ministries, Farnham and Burlington, VT: Ashgate, pp. 31-44. Butler, G. (2017a), ‘A question of jurisdiction: Art. 267 TFEU preliminary references of a CFSP pp. 1-8.

nature’, European

Papers,

European

Forum,

1 April 2017,

Butler, G. (2017b), Constitutional Limits of the EU’s Common Foreign and Security Policy, University of Copenhagen, University of Iceland, doctoral dissertation not published, on file with author.

Chelotti, N. (2016), The Formulation of EU Foreign Policy: Socialization, Negotiations and Disaggregation of the State, London and New York: Routledge.

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Common Market Law Review (2016), ‘Editorial comments, “We perfectly know what to work for”: The EU’s global strategy for foreign and security policy’, Common Market Law Review, 53 (5), 1199-208.

European Union (EU) (2003), A Secure Europe in a Better World — European Security Strategy, Brussels: European Union. European Union (EU) (2016), Shared Vision, Common Action: A Stronger Europe — A Global Strategy for the European Union's Foreign and Security Policy, Brussels: European Union. Koutrakos, P. (2017), The European Union's Common Foreign and Security Policy after the Treaty of Lisbon, Stockholm: Swedish Institute for European Policy Studies (Sieps), Report No. 3. Riddervold, M. (2016), ‘(Not) in the hands of the member states: how the European Commission influences EU security and defence policies’, Journal of Common Market Studies, 54 (2), 353-69. Rosén, G. (2015), ‘EU confidential: The European

Parliament’s involvement in

EU security and defence policy’, Journal of Common Market Studies, 53 (2), 383-98. Van Elsuwege, P. (2015), ‘Securing the institutional balance in the procedure for concluding international agreements: European Parliament v. Council (Pirate Transfer Agreement

with Mauritius)’, Case C-658/11, European Parliament v.

Council of the European

Union (Pirate Transfer Agreement with Mauritius),

Judgment of the Court (Grand Chamber) of 24 June 2014, EU:C:2014:2025, Common Market Law Review, 52 (5), 1379-98. Van Vooren, B. and R.A. Wessel (2014), EU External Relations Law: Text, Cases

and Materials, Cambridge: Cambridge University Press. Wessel, R.A. (2016), ‘Lex Imperfecta: Law and integration in European foreign and security policy’, European Papers, 1 (2), 439-68. Case Law Advisory Opinion 2/2013, Accession of the EU to the ECHR. Case C-130/10 Parliament v Council, ECLI:EU:C:2012:472. Case C-658/11 Parliament v Council, ECLI:EU:C:2014:2025. Case T-306/01 Yusuf and Al Barakaat International Foundation v Council and

Commission, ECLI:EU:T:2005:331. Case T-315/01 Kadi v Council and Commission, ECLI:EU:T:2005:332. Case C-402/05 P and Case C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, ECLI:EU:C:2008:461, ECLI:EU:C:

2008:30. Case C-584/10

P, Case C-593/10

P, and Case C-595/10

P Kadi v Commission,

ECLI:EU:C:2013:518. Case C-439/13 P Elitaliana v Eulex Kosovo, ECLI:EU:C:2015:753. Case C-455/14 P H v Council and Commission, ECLI:EU:C:2016:569. Case C-72/15 Rosneft, ECLI:EU:C:2017:236.

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Legal Instruments Treaty of Amsterdam, Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, [1997] OJ C 340. Consolidated Version of the Treaty Establishing the European Community [2006] OJ C 321E. Consolidated Version of the Treaty on European Union, [2008] OJ C 115. Consolidated Version of the Treaty on the Functioning of the European Union, [2008] OJ C 115.

4.

Sanctions and the security policy environment from a European perspective* Mikael Eriksson

In 1950, Robert Schuman,

one of the founders of the European Union

(EU), stated that world peace cannot be maintained without creative efforts (Robert Schuman Foundation, 1950). In order to materialize this idea, born as it was in the experience of the horrors of the Second World War, the European Coal and Steel Community was established. A generation later, the majority of European states have been integrated into a security community at a scale that few could have foreseen. Because the world has undergone a number of turning points in security policy since the Second World War — the Cold War (1950-90), the civil wars of the 1990s,

as well as the growing threat of global ‘terrorism’ (2001-15) — the rules of the game in security policy have changed. These epochs have in turn forced the EU to sharpen its foreign and defence policy instruments. This chapter highlights one of the EU’s most important policy instruments for dealing with today’s European security policy challenges: targeted sanctions. The aim of this chapter is to analyse in detail what has led the EU to develop this instrument and how a number of the security threats that have emerged in recent years have been dealt with. The question the chapter addresses is how the EU’s sanctions policy should be understood and what implications the EU sanctions may have on the international arena. The chapter analyses both the opportunities in using sanctions for security policy purposes and the tensions that can entail from the use of this instrument (building on a theoretical framework presented in Eriksson, 2011).

The first section treats the EU’s sanctions from the perspective of security policy. I then provide an overview of the EU’s ongoing sanctions regimes. In the following section, a deeper discussion of EU’s sanctions on Russia ensues. The chapter ends with a discussion of how sanctions can be understood in a geo-economic perspective and how they can contribute to the EU’s security.

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Sanctions and the security policy environment

65

EU SANCTIONS AS A SECURITY POLICY INSTRUMENT Much research has been undertaken on sanctions as political and economic statecraft (Biersteker et al., 2016; Hufbauer et al., 2009; Cortright

and Lopez, 2000). In particular, these endeavours have focused on United Nations (UN) sanctions, whereas comparatively less attention has been devoted to EU sanctions (important exceptions include Eriksson, 2011; Giumelli, 2011; Portela, 2010). One explanation is that imposition of EU

sanctions currently parts of European

is a fairly new practice, if compared with UN sanctions. The EU has about 29 active sanctions regimes focused on crises in various the world (for an update, see the EU’s official sanctions list, Commission, 2017). During 2015, 11 of these sanctions regimes

were directed at actors, entities and organizations based in Africa, as well

as eight in the Middle East, five in Europe, and four in Asia.! The number of sanctions regimes is evidence of the growing weight of the instrument in the security policy arena. A core feature of UN and EU sanctions is that they primarily consist of smart, or targeted, sanctions (Cortright and Lopez, 2002, p.2; Tostensen and Bull, 2002). The difference between comprehensive sanctions and current targeted ones is, fundamentally, the application of an ethical approach (Eriksson, 2013; Cortright and Lopez, 1999). While comprehensive sanctions affect the opposing side more indiscriminately, targeted sanctions

are intended

to hold

specific individuals,

organizations,

and

companies to account for a particular behaviour. At the same time, one should not forget that sanctions as a tool for

military, political, and economic statecraft have been a popular policy tool throughout history. Indeed, they have been in frequent use, even if by other names: punitive measures, sequestration, embargoes, political restrictions, and trade bans. Well-known historical examples of the use of sanctions include sieges and embargoes during the early Peloponnesian wars between Sparta and Athens; the first American continental congress’s

trade boycott against Great Britain in 1774; Napoleon’s continental blockade of British goods during the 1800s; the sanctions against South Africa’s apartheid system in the late 1970s; as well as the newly concluded unilateral US trade blockade against Cuba (1962-2015). Even so-called targeted sanctions can be said to have been used historically, with different names but with similar practices and objectives. During the 1812-15 war against the UK, the US’s finance minister of the time, Albert Gallatin, imposed sanctions against specific British mer-

chant fleets and business enterprises following the UK’s attacks on US merchant ships in the Atlantic (Office of Foreign Assets Control, 2009;

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see also Stenhammar, 2008, p.295). Then, as now, the intention in using

the sanctions instrument has been to protect the political, economic, and security interests of the ‘sender’ by putting pressure on blacklisted targets, the ‘receivers’. The change in how sanctions are designed and how they are applied in contemporary international affairs has received increasing attention in academic research (see, for instance, Biersteker et al., 2016; Eriksson and Wallensteen, 2015). The EU’s targeted sanctions, or restrictive measures as the EU officially

calls them, are among the most important instruments of the Common Foreign and Security Policy (CFSP). The EU’s use of sanctions is also an important component of the Common Security and Defence Policy (CSDP), even if not legally regulated. Although CSDP is more developed, CFSP has yet to hit its stride regarding the tactical, strategic, and operative use of sanctions (on these matters see Portela, 2016; Giumelli, 2013).

The EU’s sanctions measures are formed in three ways (see Osterdahl, Chapter 3 in this volume). First and foremost, the EU can adopt its own autonomous sanctions. These are based on the national interests that Member States strive to protect and are adopted on unanimous grounds. Second, the EU can adopt sanctions on the basis of its obligations to the UN Security Council (usually adopted under Chapter VII of the UN’s Charter). Legally, this means that the EU incorporates decisions based on international law within its own regulations. Finally, the EU can decide

to impose complementary measures, that is, further restrictive measures, as an addition to the UN’s existing decisions on sanctions. Such complementary decisions can be adopted when the EU judges that the Security Council has not gone as far as the EU has within the frame of a particular policy, because, for example, the veto-holding powers have blocked it. Through these additions, the EU can sharpen the sanctions measures and create further pressure on the vulnerable party (this may, however, be less of an option following Brexit). EU sanctions are imposed on third-country actors, primarily against governments, private persons, societal sectors, companies, and goods. Sanctions-like measures have, however, also been imposed on representa-

tives of an EU country (although not within the frame of the common foreign policy). An example is when, in the spring of 2000, sanctions were imposed on Austria’s extreme-right Freedom Party of Austria

(Freiheitliche Partei Osterreichs, FPO), for its hostile policy against immigrants. The sanctions imposed included severing of diplomatic relations and a freezing of political contacts. Another area where the EU has previously imposed sanctions-like measures is in decisions regarding European domestic terrorist movements, for example Euskadi Ta Askatasuna (ETA; for more on the EU’s early challenges in terrorism listings, see Eriksson,

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2009). The EU imposes its sanctions measures by using its official publication channels to publish the name and ‘points of contention’ of the adversary (Cameron, 2013). These ‘blacklists’ go into immediate effect unless otherwise specified. There is usually a certain element of surprise attached to these measures, so as to hinder evasive manoeuvring by those blacklisted. The listings are checked at regular intervals to ensure that they are being implemented effectively and in line with the political dynamic in the country where the actor is operating. The EU can impose several types of sanctions (Portela, 2016; Eriksson, 2011). Travel bans and freezing of assets are the most common. Other measures include weapons embargoes, trade in goods intended for luxury consumption, and equipment used for torture. In several cases, sanctions have been imposed on goods such as so-called conflict minerals and hardwoods because of their lucrativeness for warlords. Blacklists can include everything from political representatives of governments to generals, warlords, business leaders, and terrorists. In recent years, sanctions have also been imposed on actors that recruit child soldiers or use sexual violence as a weapon in conflict, as has been the case for the Democratic Republic of Congo (DRC).

The EU has different strategies for its sanctions decisions (Giumelli, 2011; and on UN sanctions practice and strategic thinking, see Charron, 2011). Even if these strategies are often tacit, the intention of the sanctions can be deterrent, coercive, limiting, or preventive. They can also be applied for signalling purposes (for example, as political signals that convey disapproval). Sanctions also must be understood within the overarching foreign policy framework wherein they are integrated with other common security strategies, a dimension that is often overlooked in discussions about the effectiveness of sanctions. For example, the EU can use sanctions policies as a part of or complement to classical diplomacy and negotiations, the use of political and economic isolation, breaking contacts, or withdraw-

ing recognition, as well as ‘positive’ bribes in the form of rewards (for example, through investment and partnership), if a certain behaviour ceases (Eriksson, 2011, pp. 26-33).

The factors behind sanctions decisions vary from case to case, but the sanctions are often a response to particular threats to the EU and the interests of its Member States. The EU’s national and government leaders frequently decide to impose sanctions to demonstrate displeasure or initiative before an international or domestic audience (their own voters, for

example). Typical situations that have triggered EU sanctions are human rights violations, democratic shortcomings, repression, torture, genocide, terrorism, and illegal annexation of territory (see Portela, 2016). The over-

riding objective has always been to maintain European security and the national interests of the Member States.

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The European Union The basis of all the EU’s sanctions is, as noted above, the idea of the

rule of law and the desire to minimize unintended consequences of the measures taken, both for those who have been blacklisted and for the EU

and its Member States, which risk being affected economically (by, for example, interrupted trade). Especially important in the implementation of sanctions is that respect for human rights and fundamental freedoms, as well as the right to an effective judicial system and the principle of the rule of law, are upheld. This is particularly important in circumstances where those who are blacklisted or affected wish to contest the rationales behind the measures. In fact, a substantial part of sanctions research deals with the unintended consequences of sanctions (Eriksson, 2010, 2016). Occasionally, sanctions decisions have been almost intentionally unlaw-

ful, although deemed to be required in the heat of the moment to meet the threat at hand. This has from time to time been reflected in the EU’s listing procedures. The EU has often been forced to cobble the legal grounds for the various sanctions it has decided on under political pressure. The Court of Justice of the EU has occasionally rejected parts of sanctions measures adopted by the European Council and the Commission when they have been considered to contravene certain fundamental legal principles (Heupel, 2017). Similar tendencies can be seen in the US, another frequent user of targeted sanctions. In US sanctions policy, it was long considered that an 80 per cent ‘probability’ sufficed to determine that the blacklisted violence-promoting individuals and organizations were guilty of the violations for which they were suspected (Zarate, 2015). Even the UN Security Council’s decisions on sanctions have, on certain occasions, been legally doubtful when it comes to decisions about listing procedures. In recent years, both UN and EU sanctions instruments have been drastically improved and clarified through extensive evaluations, among other things. The EU’s sanctions policy can even be said to have matured. Like other areas of policy, the usage and communication of the EU’s sanctions has been subjected to criticism. Above all, what is sought is a unified and clear communication that conveys how the EU thinks, as a global actor, about the use of sanctions and how they can be used strategically. As a result of the Treaty of Lisbon, the European External Action Service (EEAS) was formally established, on 1 December 2010, to assist

the High Representative for Foreign Affairs and Security Policy (see also Osterdahl, Chapter 3 in this volume). The EEAS was able to formulate this voice in a good way, that is to say, explain in a clear manner how the sanctions instrument constitutes an integrated part of its work. What is missing is not a separate sanctions policy from the EEAS, since that would contradict the current division of power between the EEAS, the Commission, and the Member States, but a more unified explanation of what sanctions

Sanctions and the security policy environment

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policy entails in terms of strategic, operative, and tactical aims (insights the author gained through informal dialogues with EU officials in 2016). To understand the main features of the EU’s sanctions policy, two important documents are available: Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common

Foreign and Security Policy, and the so-called Best Practices document, EU Best Practices for the Effective Implementation of Restrictive Measures (Council of the European Union, 2012, 2015). These documents provide a description of both the EU’s general ambitions regarding sanctions and how they should be formulated. However, while these documents certainly

contribute a good description of the aims of sanctions, they naturally cannot address all aspects of developments in international politics. As such, they have more of a technical than a dynamic status. Still, the documents should more clearly highlight and take into account the flexibility that the instrument’s user requires. What the EU needs, as indicated above,

is a clearer voice that can articulate the role of sanctions in its overall foreign policy, as well as how it can be harmonized with other actions of a political-, economic-, defence-, and aid-related character. A clearer voice

that describes the EU’s sanctions policy could also strengthen the EU as a global actor and thereby have greater impact. The EEAS should be able to shoulder this responsibility, along with other directorates (compare with the US Office of Foreign Assets Control). Along with the introduction of sanctions against Russia, the discus-

sions and process surrounding the EU’s sanctions tool have seen a positive intensification. Although highly welcome, this occurs at the last moment, since research on the topic has long observed and drawn attention to the need to make the EU’s sanctions system more efficient. The discussions have become directed at several aspects that seldom receive attention when sanctions regimes are being set up, or change, especially how one achieves increased effectiveness for the sanctions, how their aims can be achieved,

and what their consequences might be.

THE EU AS A GLOBAL ACTOR IN THE AREA OF SANCTIONS As mentioned above, the EU has nearly 30 active sanctions regimes. With

the exception of sanctions that are especially directed at terrorists, these are geographically defined. One of the questions addressed in this section is whether any specific patterns emerge in the EU’s use of sanctions. This section also aims to describe which types of measure are imposed and where.

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The trend in sanctions is generally clear. The number of sanctions regimes continues to increase, as do the listing procedures. Important security policy events in recent years — the Arab Spring, the war in Syria, negotiations with Iran, and the Russian annexation of Crimea — all point to this. Approximately half of all sanctions regimes can be considered EU-autonomous,

while

the rest are UN-based

EU

sanctions.

Among

existing autonomous sanctions regimes, most have been in place for decades, for example those imposed against the governments of Belarus and Zimbabwe,

which I have examined

in several earlier studies. Other

sanctions regimes are relatively new, not least those established during the so-called Arab Spring (Libya, Tunisia, and Egypt). The sanctions regime that has received most political attention recently is that against Russia and Ukraine. The majority of all current sanctions regimes include blacklists of selected individuals, companies, and goods. Usually, restrictions and the

freezing of assets are applied. In several cases, weapons embargoes have also been imposed. These are usually applied against the country as a whole and, less frequently, against just one party in the conflict. Another trend is that in recent years several long-lasting EU-autonomous sanctions regimes have removed a number of individuals from blacklists. For example, individual sanctions against Myanmar decreased in 2011-13, implying that many actors (government representatives, generals, and companies) were delisted in one fell swoop. The reason was the country’s clear development towards democracy. The same applies to blacklists of different categories of regime representatives in Zimbabwe (government officials, ZANU-PF representatives, and Zimbabwean companies). On the

other hand, the decline was compensated for by new or continued listing procedures within other sanctions regimes, primarily against leaders in Russia and Ukraine. An important reason why several sanctions regimes have changed character, besides being a response to political developments, is that both international law and EU law have in recent years demanded that the standard procedures used in the listings must be of high legal quality. Such was not the case when targeted sanctions were first used. In sum, it can be ascertained that the sanctions instrument continues to

have a central role in the common foreign policy. There is no sign that the EU’s Member States hesitate to use sanctions. To the contrary, both in the procedures for listing and in the establishment of sanctions regimes, there is an interest in maintaining a relatively steady level of activity and steady pressure against those listed. Concluded listings have until now been balanced by new blacklisting. Where and against whom is the EU imposing autonomous sanctions? In general, restrictive measures are adopted against those countries or

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71

actors that in one way or another challenge or undermine the interests of the EU’s Member States. These interests are defined by the policies of the respective governments, which are in turn influenced by domestic political and economic lobbying, national security deliberations, and international obligations. In several cases, targeted sanctions have been imposed against countries where several Member States have specific interests; for example,

the sanctions against Zimbabwe clearly reflect the UK’s interests in the country (Eriksson, 2005). In other cases, autonomous sanctions have been imposed against countries that should have been targeted by UN sanctions but where impasses in the Security Council have either blocked them, or where a UN decision has been impossible to obtain (such as the decision in principle on a weapons embargo against China). The EU also adopts sanctions on the basis of its own global ambitions, such as when there is the possibility of influencing relations in the balance of power. In several geographical and political contexts, however, the EU does not have a traditional presence. It can therefore be difficult for the EU to directly influence the political situation in a region. The sanctions instrument, then, can itself constitute an entry into such a context. Sanctions

policy is also affected, as mentioned above, by lobbyism in the respective Member States. For example, several Burma groups in various EU countries have pursued successful lobby campaigns for long periods of time in order to persuade the EU to apply pressure on the generals in Myanmar (see Eriksson, 2005). It must nevertheless be emphasized that every sanctions regime is unique, follows its own dynamic,

and, ultimately, is the

result of a complicated negotiation among all the EU’s Member States. One of the EU’s most important means for fighting international terrorism is the creation of a sanctions list of terrorist movements and individuals (a sanctions list that in the context of the UN and EU is considered a sanctions regime of its own). The list’s purpose is to officially declare which individuals, groups, and supporting actors the EU maintains are involved in terrorism (Cameron, 2003). In practice, blacklisting implies that those listed are seen as equivalent to pariahs and that any exchange with these actors is prohibited. In addition to stigmatization, the assets of the listed

actors are frozen and travel sanctions applied. The EU’s terror list is based on two sanctions regimes established by the UN Security Council, and is therefore legally binding for its Member States. The two regimes are usually called 1267/1989 and 1373, respectively. These were developed from the sanctions that the UN Security Council adopted in connection with the war in Afghanistan during the 1980s, and after the terror attacks against the US in 2001. It is worth noting that the 1267 list has been updated, with the addition and deletion of individuals, more than 200 times. Resolution 1267 was adopted in 1999, and established a sanctions com-

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mittee, mostly against the Taliban and members

of al-Qaeda.

In 2011,

Resolution 1267 was divided into one list for the Taliban and one for al-Qaeda (including persons, groups, companies, and other entities that have contact with this movement).

Other terrorist movements

are listed

according to decisions by the UN’s anti-terrorism committee (the so-called 1373 regime, established in 2001). Every listing procedure requires that the respective parties are informed of the decision at the same time as they receive a justification that is sufficiently detailed, and legally robust, so that they understand why they have been blacklisted. The challenge for the EU has been that the UN’s lists are often more political than legal (which creates fundamental contradictions between international law and EU law). They have also raised questions regarding how terror groups that are active within the EU’s borders should be handled. Because of the blacklisting, these fall, in practice, outside the frame of the common foreign policy (as in the case of the Spanish ETA movement). The EU has imposed a range of global sanctions. Below follows an overview, based on the EU’s official sanctions lists, of sanctions against

actors that operate on the African continent (see also cases presented in Eriksson,

2011; Giumelli,

2011;

Portela,

2010;

Kreutz,

2005;

Hazelzet,

2001). Two such sanctions regimes are EU-autonomous: that against the Republic of Guinea [Conakry], and that against Zimbabwe. EU sanctions against African countries have often been imposed against situations resembling civil war, such as in the DRC and the Central African Republic. These sanctions have been UN-based. In several of the existing sanctions regimes, conflicts on the ground have eventually ebbed (for example, in the Ivory Coast and Liberia) and the EU has gradually even applied sanctions against individuals who disturb the transition to peace. In certain cases, sanctions regimes have been established for preventive reasons, such as in the weapons embargo against Eritrea. The EU’s sanctions against the Republic of Guinea were imposed in late 2009, to indicate disapproval with the country’s military regime and its violence against peaceful protests. Sanctions measures included travel sanctions and a weapons embargo, as well as a ban on trade in goods that could be used for internal repression. EU sanctions against Zimbabwe were imposed in early 2002. The primary official reason was flaws in the national elections at the time, as well as the

occurrence of internal repression and violence against peaceful demonstrators. An unofficial basis for the imposition of targeted sanctions against the country was its approval of the expropriation and nationalization of areas of land (mostly agricultural land owned by white landowners, many with British backgrounds). From 2002, ever more members of the regime received travel sanctions and had their assets frozen, but since 2013 the

sanctions regime against the country’s leader has been relaxed.

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In the Middle East, the EU has for many years, via UN-based decisions, targeted sanctions against representatives of several states in the region. One of the oldest sanctions regimes is the restrictive measures targeted against the colleagues and friends of the late president of Iraq, Saddam Hussein. Sanctions against the earlier regime, which have occasionally been extensive, will probably be phased out in the near future, not least since more and more individuals have been imprisoned or have died. However, the possible connection between the previous regime and the establishment of the Islamic State in Iraq and Syria (ISIS) in the region could motivate sustained sanctions. One of the most complex sanctions regimes is the one against Iran. The sanctions policy builds on the Security Council’s judgement that the country has long been in the process of developing a programme for weapons of mass destruction. In mid-2015, however, an international agreement with Iran’s government was signed, which means that the sanctions will gradually be lifted and eventually cancelled. The sanctions against Iran should be seen in the light of a broader geopolitical dynamic, where Iran is viewed as being involved in several conflict zones (Lebanon, Syria, Saudi Arabia, and Yemen) and has regularly expressed threats against Israel. The EU’s sanctions against Iran have been more extensive than those adopted by the Security Council. In contrast to Iran, the sanctions regimes against entities in Lebanon have been much less extensive, since they have essentially regarded the circumstances surrounding the murder of a specific politician, Rafiq Hariri, on 14 February 2005. The main objective of the sanctions has been to direct political pressure against specific individuals. After the so-called Arab Spring in 2014, the EU introduced a number of sanctions regimes against Libya, Yemen, Syria, Egypt, and Tunisia. The latter three are EU-autonomous. The sanctions are intended to exert pressure on both representatives of the previous regimes and persons who undermine stability in the countries. In the case of Egypt, the autonomous regimes have the objective of supporting a peaceful and orderly transition to a civil and democratic government, in addition to putting pressure on those individuals who have embezzled government funds. In Tunisia, assets

of members of the former leader Ben Ali’s regime have been frozen. In Syria, sanctions against the Assad regime, including the freezing of assets, travel sanctions, and a weapons embargo, were established in 2011.

Four

EU

sanctions

regimes

are in place

Afghanistan, North Korea, Burma/Myanmar,

against

actors

in Asia:

and China. The sanctions

maintained by the EU against Afghanistan and North Korea are based on UN decisions. Targeted sanctions have been directed against Afghanistan, primarily in order to create political pressure against members of the Taliban movement, and to deal with threats against the country’s stability.

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Measures include travel sanctions, freezing of assets, as well as a broader

weapons embargo. The sanctions vary depending on developments in Afghanistan and comprise an important component of the overarching Western security policy towards the country, not least to communicate which actors are to be considered security threats and which are partners to the rest of the world. As regards North Korea, the EU has chosen to com-

plement the UN sanctions that have been applied to the country’s leader. The EU’s sanctions thus go further and are sharper than those of the UN. The sanctions have several motives, but they essentially address the threat to international peace and security that North Korea represents, among other things as a result of its development of weapons of mass destruction (by producing and testing nuclear arms). The measures imposed include: a weapons embargo; a ban on the export and import of dual-use goods; a ban on trade in gold, other precious metals, and diamonds; restrictions

on financial services and trade in securities; a ban on export of luxury goods; monitoring of transactions with North Korean credit and finance institutes; surveillance of shipping to and from North Korea; and denial of certain flight clearances, travel restrictions, freezing of assets, as well as

restrictions on various kinds of education. The range of these sanctions also reflects how several parts of the EU’s organization must be engaged in order to effectively maintain pressure against the country. Two of the EU sanctions against actors operating in Asia, in Burma/ Myanmar and China, are entirely EU-autonomous. The sanctions regime against Myanmar has been highly comprehensive for several years, because of internal repression and an on-going civil war. During 2011-13, however, a suite of reforms was adopted in Myanmar, which opened the way for democracy, civil rule, and increased respect for human rights (and which was crowned by a democratic election, in 2015). As a result of these devel-

opments, the EU decided to suspend the majority of the measures, with the exception, however, of the arms embargo and certain bans on trade

in products that can be used for internal repression. The EU’s sanctions against China include an arms embargo, although it largely has the character of a decision in principle, and was imposed in 1989 following the violence in Tiananmen Square. The weapons embargo may be interpreted and implemented by the EU’s Member States, which has implied that individual countries make a more or less generous interpretation of which types of equipment may be traded with China. The embargo nevertheless has an important symbolic role. Finally, the EU has five sanctions regimes against actors operating in Europe. These include Bosnia and Herzegovina, Moldova/Transnistria, Belarus, Russia, and Ukraine (the sanctions on Russia are treated in

depth in a separate section below). The sanctions against Bosnia and

Sanctions and the security policy environment

75

Herzegovina include the freezing of assets and travel sanctions against several individuals whose activities contribute to undermining the country’s sovereignty, territorial integrity, and constitutional order, as well as individuals who threaten to undermine the Dayton-Paris Agreement. The sanctions against the Transnistrian leaders in Moldova were imposed as early as 1992, to put pressure on the region’s leaders after the fall of the Soviet Union. Transnistria had attempted to secede from Moldova, with the support of the Russian army. Sanctions have been successively lightened, though, with the aim of attaining a political solution. Given the context, one can question how effective these sanctions have been. In my previous research, I interviewed several of the people who were placed on the sanctions list. By their own admission, several of them were unaware

that they had been listed. The sanctions against Belarus have been in place for many years, but have changed shape depending on the political situation in the country; for example, the sanctions have comprised an arms embargo, travel restrictions, and freezing of assets. Approximately 275 persons and entities are today implicated by travel restrictions and freezing of assets. The categories of people on the list include those who have been judged responsible for participating in four prominent cases of disappearances during 1999 and 2000, as well as entities that supported the Lukashenko regime in these cases; and those participating in electoral fraud, human rights violations and repression of peaceful demonstrations in 2004, 2006, 2010, and 2012.

SANCTIONS AGAINST RUSSIA AND UKRAINE Russia is said to constitute one of the most serious conventional threats to the European security order. This threat perception is based on the gradually worsening of Russia’s domestic political situation under the Putin administration, as well as Russian military behaviour against its neighbours. These security-related developments in the EU’s eastern neighbourhood have thereby forced the EU to institute an array of foreign and defence policy measures. To counter Russia’s behaviour, especially its military seizure of Ukrainian territory, the EU adopted a number of sanctions in March 2014 (Sjursen and Rosén, 2017). That the EU acted on this

threat perception with sanctions, instead of conventional military means, is symptomatic of hybrid warfare in modern times. Sanctions, naturally, cannot completely replace conventional military force but are an important strategic complement. Even if the economic pressure against Russian representatives and pro-Russian separatists in Ukraine, and against specific individuals and

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companies working in those countries, is extensive, the EU’s sanctions are

not in principle aimed at ruining Russia economically (although Russia’s defence, financial, and energy sectors have been hurt). Instead, they make a clear political statement against entities that are in principle considered to be responsible for the political and security developments in Ukraine. The Russia sanctions have had a double effect. On the one hand, a number of economic analyses indicate that the sanctions have had a pronounced effect on the Russian economy. These economic effects of the sanctions are nevertheless complex and cause and effect are not entirely clear. For example, some observers consider that falling global oil prices have had an important role in the decline of the Russian economy. Another reason for the negative trend in the Russian economy relates to its structural problems, which existed before sanctions were imposed. The Russian regime, meanwhile, has publicly maintained that sanctions are to blame. The explanation proffered is that the country has been unfairly punished by the West and is under pressure. This is thus an example of how sanctions can be taken advantage of for propaganda purposes. This observation finds support in theory, not least the literature that is based on Johan Galtung’s classic, On the Effects of International Economic Sanctions, With Examples from the Case of Rhodesia (Galtung, 1967). How, then, has the EU dealt with the Ukraine crisis? It is clear that the

crisis created monumental pressure on the EU and its Member States to unite quickly and comprehensively on a political and economic response to Russia’s political and military behaviour (Eriksson et al., 2014). The unusually intensive political process that led to the Russia sanctions entailed that this sanctions regime is one of the most ambitious and well-prepared. The Russia sanctions, in other words, are exceptional in comparison with

other sanctions. At present, Russia and Ukraine are targeted by three EU-autonomous sanctions regimes (for a good overview of sanctions on Russia, and their potential impact, see Moret et al., 2016; Oxenstierna and Olsson, 2015).

The original sanctions regime is directed at persons in Ukraine who are considered to be responsible for embezzling Ukrainian government funds and for human rights violations within the country. The blacklisting includes Ukraine’s former president Viktor Yanukovych along with several of his associates. In a second step, the EU has imposed sanctions in connection with threats to Ukraine’s territorial sovereignty. Underlying the sanctions are Russia’s policies, which have violated Ukraine’s integrity, autonomy, stability, and security. Sanctions against Russia include blacklisting of individuals and companies, as well as sectorial sanctions. The EU

even has a third leg of sanctions, which comprises bans on the import and export of goods and on investments that can be connected to Crimea and

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77

the city of Sevastopol. These have been broadened by further export and investment restrictions. Apart from the extent of the Russia sanctions, it is above all the preparations behind the sanctions regimes that make them exceptional (see, for example, Orenstein and Kelemen, 2016). This is in turn based on the

fact that the EU chose to take the threat from Russia seriously. Russia is a major military power that is considered to have broken a security order that has been central for Western powers. This demanded a resolute response. Russia, however, is also a major economic power that trades, invests, and owns assets in Europe. The negative consequences for the EU and its Member States needed to be examined carefully so as not to create disproportionate side-effects. Moreover, the EU is a security policy actor with strong legal principles. It was therefore important that, to avoid unintentional consequences with negative legal ramifications, the sanctions were prepared with care. A series of preparatory analyses were performed by the Commission and the EEAS, to study all imaginable effects of the targeted sanctions (based on my discussions with EU officials). These concerned both the listed entities on the ‘receiving side’, where the question of legal certainty was especially important, and identifying the costs and possible negative consequences for the EU’s Member States and private actors on the ‘sending side’ that might be affected by the sanctions measures in various ways. The ‘back of the envelope’ analysis, which was so sensitive that its results had to be communicated by letter among the Member States, aimed at anticipating all conceivable negative effects for the EU. In retrospect, the systematic a priori analysis was thus exceptional, in comparison with other occasions when sanctions were contemplated. In too many cases, the EU has avoided undertaking an impact analysis of proposed sanctions regimes. A hope shared by many sanctions experts is that the systematic precedent that the Russia sanctions created will also lead to more comprehensive strategic preparation of other sanctions. Yet, so far it appears that other sanctions regimes have remain unaffected. Naturally, this lack of attitudinal change is problematic for the EU, which in principle strives to act with force and substance. This is not least since sanctions, which are de facto a geo-economic instrument, should require as much planning and thoughtfulness as military operations. How, then, can the Russia sanctions be assessed? It is clear that the EU’s

sanctions against entities and sectors in Russia and Ukraine constitute a weighty security policy response to Russia’s actions (Karolewski and Davis Cross, 2017; Moret et al., 2016). This is especially the case since all EU Member States were ready to play with high economic stakes, both for the states themselves and for their domestic companies. The sanctions against

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Russia can be assessed on the basis of how great an economic price one is prepared to pay to maintain one’s geopolitical interests as well as democratic and liberal principles. The sanctions can also be assessed according to how large a risk of receiving countermeasures one is willing to accept in the moment of insecurity. The EU’s Member States depend heavily on Russia for energy imports (approximately one-third of all imported oil and coal, and one-quarter of all imported natural gas, comes from Russia). Yet sanctions were pursued regardless of the uncertainty about Russian countermeasures, for example in the form of gas sanctions. Three years later, by March 2017, one of Russia’s main counter-sanctions has been a food import/export prohibition (Deutsche Welle, 2017). In spite of preparatory estimates of how much the EU’s Member States stood to lose financially from interrupted trade relations and Russian countermeasures, the Russia sanctions have proven to be expensive and their consequences unevenly distributed among the EU’s Member States. The foremost enthusiasts of sanctions in the EU — Estonia, Latvia, and

Lithuania — have been affected most severely, especially with regard to gas and trade. In addition, the UK’s financial sector has been hit hard,

since many Russian financial investors have been targeted by the sanctions regimes. France has been affected by the severing of defence contracts (for example, regarding the aircraft carrier Mistral), reduced agricultural exports as a result of Russian counter-sanctions, as well as problems for

the country’s energy giants in the Russian market (for example, for Total, a petroleum and chemicals company). Before the sanctions decision, several German commercial lobby groups demonstrated how many of the hundreds of German companies with operations in Russia would be negatively affected by sanctions (according to some experts, the German lobbyists were the most vocal, compared with those in other countries, in opposing broad EU sanctions against Russia, which was natural since they had much to lose). Greece, Spain, and Italy were not affected by the first phase of sanctions, but their agricultural sectors suffered from Russia’s countersanctions. The EU’s DG Agri, on the other hand, claims that during 2015

the EU succeeded in converting close to 80 per cent of those agricultural exports that previously went to Russia into exports to the Asian market. Czech Republic, in turn, was against sanctions, with regard to dual-use products (civil-military), early on, since it exports a range of products of this kind to Russia. The various costs are unevenly distributed across the EU’s Member States (for more on the cost aspects, rejection arguments, and means of support, see Giumelli, 2017; Portela, 2015).

The impact of the sanctions on Russia can be assessed either through political behaviour or measurements of the economic impact. While assessments of political behavioural change will always be subject to

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debate, analysis of economic statistics can provide tangible indicators of potential impact. Yet, a debate is emerging on the difficulties of disentangling the specific economic impact of Western sanctions from Russia’s vulnerable economic situation in general at the time sanctions were introduced. Despite the combined economic weight behind the sanctions, estimated to be nearly USD 42 trillion, it is difficult to ascertain that sanctions

are leading to a negative effect on the Russian economy (Cashen, 2017). At the time Western sanctions were imposed, during 2014 and 2015, Russia felt the brunt of capital flight, exclusion from capital markets, and inflation. Oil prices fell and caused significant budgetary pressure on the Russian economy (Nelson, 2017). The general negative development of Russia’s economy has partly been used by the Russian leadership for propaganda purposes, in claiming that the West has used sanctions to target Russia and its people. Such sentiments have also been measured in different value surveys (Russel, 2016). Furthermore,

Russian officials

have argued that sanctions led to costs amounting to 2 per cent of GDP (USD 40 billion, not including revenue loss from declining oil prices) in November 2014; with similar figures for 2015 (Russel, 2016). However, the

argument that the sanctions have had a causal effect in creating a generally negative Russian economy cannot be supported. Although the sanctions remain in place, Russia’s economy seems to be recovering, partly as a result of higher oil prices, a flexible exchange rate regime, and growing foreign exchange reserves (Nelson, 2017). Moreover, some estimates suggest that during the period 2014-15 exports to Russia increased by more than USD

49 billion (Avdeeva,

2017). The causality

question aside, what can be observed in the nexus of politics and economics are a number of sector specific impacts. For instance, Russia’s defence industry and armed forces are under pressure to replace Western imports; Russian energy companies are suffering from technology transfer; and Russia has had to bail out different companies. More generally, an impact can also be seen in a Russian pivot to Asia. The pivot has taken place as Russian businesses have had to make use of adaptive survival strategies as a result of profit losses from Western sanctions (see inter alia Russel, 2016). Aside from the negative impact of sanctions on Russia, there is also the

dimension of negative economic impact on European trade with Russia. For instance, as a result of several years of EU sanctions on Russia, there is a growing concern that sanctions are having a negative impact on European companies. Such scepticism though, does not tally with any de facto figures. For instance, one estimation by the European Commission argues that the impact of sanctions on the EU economy has led to a trade decrease with Russia amounting to only 0.3 per cent in 2014 and 0.4 per cent in 2015 (Avdeeva, 2017; Dugulin, 2016). Adding to this figure, though,

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it can be mentioned that such negative impacts on European companies are not evenly distributed. Some companies in certain countries bear a higher financial burden than other companies and countries (see Giumelli, 2017). That European and ‘Western’ countries are severely suffering from sanctions on Russia is simply not correct. In sum, the tradition of using economic sanctions in connection with

war, and in this case to counter the actions of the Russian military in Ukraine, gives witness to the fact that, historically, the sanctions instru-

ment has been closely linked to a military way of thinking. Sanctions represent a fundamental part of the EU’s response, in terms of security policy, to Russian foreign and defence policy. The Russia sanctions can eventually even influence decisions about the introduction of sanctions regimes, and thereby be seen as a step on the way to a grand geo-economic strategy for the EU. The preparations in advance of these sanctions, as well as the decisiveness with which they were introduced, can hopefully serve as an important prototype for the design and execution of future sanctions regimes. As of late 2017, the EU’s sanctions on Russia remain an important

policy for applying pressure cooperation between the EU of using tough sanctions still ences over Ukraine and other

on the leadership in the Kremlin. While and Russia is not entirely frozen, the policy suggests that relations are troubled by differgeopolitical affairs (Deutsche Welle, 2017).

EU’S SECURITY, THE LOGIC OF SANCTIONS, AND THE GEO-ECONOMIC PERSPECTIVE Since the Second World War, the notion of security has been gradually broadened. The trend has been to move from the narrow, hard, and conventional view of security, with its focus on the state, to including several

perspectives and objects of analysis: societal security, individual security, and so on. These have also become complementary to a great extent. What remains central to security analysis, however, is power, networks of power,

power projection, and the ability to change an opponent’s behaviour, or alternatively to create credibility for one’s own ‘story’, or to change the story promoted by the opponent. The view of sanctions has also been affected by the debate about security. Sanctions can be understood and used in different ways depending on the notion of security one holds. The historical examples mentioned earlier in this chapter included strategic, tactical, and operative uses of sanctions. An approach to understanding the EU’s sanctions and their role in the Union’s current security thinking can best be viewed through a geo-economic perspective. Economic warfare, or geo-economics, comprises various kinds of political, economic,

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81

and technical methods for influencing an opponent’s political behaviour. In today’s global economic system, which interconnects most economic flows, the majority of actors are economically vulnerable. This creates possibilities

for

influencing

blacklisted

individuals,

governments,

and

companies via such a method. Most major powers, and not least the US and the EU, currently practise the politics of finance and security, even if the geo-economic weapon per se is seldom mentioned by name. Thus, someone who seriously wishes to be somebody in the geopolitical arena cannot ignore this dimension. Simply speaking, geo-economics entails the use of the open international financial system to advance national economic and security policy interests. Typical procedures used include analysis of financial intelligence, filtering of financial flows and screening procedures, as well as scrutiny of strategic trade patterns. It is not unusual that key financial hubs, such as the Society for Worldwide Interbank Financial Telecommunications (SWIFT), are used to exert influence. Exchanges even occur between global financial actors such as the International Monetary Fund (IMF), G7, and the World Bank. Even smaller private actors are becoming more important components of the financial war. By means of clear foreign policy goals, in combination with strong legislation and threats of heavy penalties, actors such as the EU persuade financial operators to shoulder responsibility for maintaining a particular kind of sanctions policy (for example, bans on transactions involving the accounts of blacklisted actors, freezing of assets, or screening of blacklisted actors who remain at large). Under

the threat of fines, or prosecution,

or both, private actors have

taken on the often costly responsibility of creating filter and surveillance systems. The world of finance is therefore very much woven into that of security policy. The three-step sanctions ladder that the Western powers imposed against Russia is a typical example of geo-economics. It is thus characteristic of our time that geo-economics has come to play an important role, when Russia’s occupation of Crimea was not met by weapons, but by the influence of euros and dollars and the trade restrictions of the Western powers. Geo-economics in the EU usually involves a large number of ministries, agencies, and institutes within each Member State (although not all are involved in each and every sanctions regime). Even at the EU level, coordination occurs between different departments, that is, the EEAS

close cooperation with other EU directorates. Trade (DG Trade), for example, has a highly tions against Russia. It is mainly through trade identify how sanctions can affect Russia more In practice, geo-economics is a complicated

in

The Directorate General for important role in the sancrestrictions that the EU can directly. equation to solve within the

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EU, where, on the one hand, negotiations take place between the national interests of different Member

States, and, on the other hand, different

parts of the EU bureaucracy must unite around a shared view. The effect, credibility, and maintenance of geo-economics is thus a result of the accommodation between these interests. The equation that Brussels’ officials attempt to solve when sanctions are being introduced is how one can best optimize the balance between political goals (“behavioural change’ on the part of the receiver) and simultaneously minimize the economic costs for the EU’s Member States (the ‘sacrifices’ of the senders). The equation is not easy to solve. First and foremost, the political value has no monetary value. It is therefore difficult to measure the value of attaining the political aims in terms of actual costs for the EU’s Member States. That the consequences of Russia’s policy against Ukraine, which implies a geopolitical pull towards the European idea of a particular security architecture, cannot be measured monetarily is obvious. And, second, to calculate how much it should cost in lost income, for EU Member States and companies that operate in Ukraine and Russia, to establish the Russia sanctions is

considerably more difficult. All actors wish to minimize their own risks, losses, and costs, all of which can emerge when trade sanctions on goods and services are imposed. This equation is not unique to Russia. All sanctions regimes cost money. At the same time, for the sake of solidarity, this is the price that all must pay to preserve peace and stability. It is worth noting that different costs arise under different sanctions regimes. Although the Russia sanctions are noteworthy in the sense that they have a high security value (‘peace in Europe, or ‘continental stability’), the EU’s Zimbabwe sanctions, for example, are not at all equally costly for all Member States. Nor do all the Member States share the same threat perception of Zimbabwe. The Zimbabwe sanctions primarily have an important function for the UK. The economic costs of the sanctions are greater for the British than for other Member States, and arise on several levels. First, the British want to establish a sanctions regime, which in itself costs time, money, and resources. Second, the UK can itself suffer countermeasures from Zimbabwe, since numerous British companies have

a presence there. Third, the British can be forced to make costly political concessions to other EU countries in exchange for their support for a sanctions regime that they perhaps in practice do not wish to have. But precisely because the common foreign policy is common, the equation model is basically the same. A number of examples indicate that the EU’s Member States are willing to rise in solidarity in support of sanctions regimes even when they have no direct interest in the issue, and risk losing large export incomes and market share. The fact that certain sanctions decisions can have negative side-effects,

Sanctions and the security policy environment unforeseen consequences,

83

and costs, has led to a discussion at the EU

level and among certain Member States about the need to create an economic compensation fund. The purpose of the fund would be to provide economic support to those Member States who are particularly hard hit by the consequences of sanctions. The idea of a compensation fund has nonetheless proven to be extremely controversial. It has also proved to be a legally, technically, and politically complicated question. Who will have the right to the fund’s resources and under which circumstances? To summarize, it can be said that the ‘market value’ that the EU and its Member

States are ready to pay to establish a sanctions regime is determined in part by the economic and political calculations of the Member States (which in turn are influenced by voters and corporate lobbyists), and in part by the level of political investment one is willing to settle on to establish, out of solidarity, the European security community.

FIVE GEO-ECONOMIC CHALLENGES IN THE AREA OF SANCTIONS

FOR THE EU

Based on my own research and my interpretation of others’ research in the area, I present here five challenges and recommendations that can eventually strengthen the sanctions instrument and thereby lead to a more secure Europe. First, the EU’s sanctions policy could be much clearer. Here, EEAS has an important and fundamental responsibility. But, while sanctions and the modern form of geo-economy are relatively technical, all of the EU’s institutions should harmonize

and, together, clarify the

explanation of sanctions’ political and security policy goals. Questions that might be considered include: in what way sanctions benefit European peace and security? When, where, and how should EU sanctions be intro-

duced? Second, a substantial and systematic evaluation of this instrument is required, with the objective of strengthening the EU’s sanctions policy. Currently, few experts can state with scientific certainty that sanctions function.

Since evaluations,

however,

are politically sensitive, a consor-

tium within the scientific community may be of assistance. Questions to be posed include: do sanctions achieve their ends? What are the EU’s strengths and weaknesses? What can be improved? Third, the EU could clarify the relation between sanctions, the CFSP, and the CSDP, and strive

to integrate these policy areas. At the moment, regarding the use of sanctions, there is an uneven balance between them. How can these link to each other in a better way and how can this create added value for sanctions? Fourth, the EU could develop a clearer European economic security doctrine. Reasonably speaking, the geo-economic aspects of sanctions should

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be given a clear role in the new European security strategy that EEAS is in the process of designing. Finally, the EU’s sanctions policy could be monitored and evaluated to a much greater extent in national parliaments. There is a risk that important national dimensions are lost when sanctions policy is formulated in Brussels. In the long run, engaging the legislative assemblies of the Member States in this work benefits the EU, its Member

States and its citizens, and, ultimately, even the EU as a peace project.

NOTES * 1.

The author wishes to acknowledge the Nordic Africa Institute (www.nai.uu.se) and the Swedish Defence Research Agency (www.foi.se) for their support of the research that led to the publication of this chapter. The EU also has one general list of sanctions against designated terrorists and terrorist organizations.

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Policy Issues Concerning Restrictive Measures, Cambridge: Intersentia, pp. 1-39. Cashen, E. (2017), ‘The impact of economic sanctions’, World Finance, accessed 28 April 2017 at https://www.worldfinance.com/infrastructure-investment/govern ment-policy/the-impact-of-economic-sanctions. Charron, A. (2011), UN Sanctions and Conflict: Responding to Peace and Security Threats, Abingdon: Routledge. Council of the European Union (2012), Guidelines on Implementation and Evaluation of Restrictive Measures

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Cortright, D. and G. Lopez (with J. Wagler, R. Conroy W.,, and J. Dashti-Gibson) (2000), The Sanctions Decade: Assessing UN Strategies in the 1990s, Boulder, CO: Lynne Rienner.

Deutsche Welle (2017), ‘EU stands firms on Crimea sanctions against Russia’, accessed 24 April 2017 at http://www.dw.com/en/eu-stands-firms-on-crimea-sanc tions-against-russia/a-38561241. Dugulin, R. (2016), ‘2017 will see more EU divisions over Russia sanctions’, Global Risk Insights, accessed 28 April 2017 at http://globalriskinsights.com/201 6/1 1/ 2017-eu-russia-sanctions/. Eriksson, M. (2005), ‘Implementing EU sanctions: experiences from Belarus, Burma and Zimbabwe’, in P. Wallensteen and C. Staibano (eds), International Sanctions: Between Words and Wars, New York: Frank Cass, pp. 108-25. Eriksson, M. (2009), In Search of a Due Process: Listing and Delisting Practices of the European Union, Research Report, Uppsala: Department of Peace and Conflict Research, Uppsala University. Eriksson, M. (2010), ‘Security governance and unintended consequences of targeted sanctions’, in C. Daase and C. Friesendorf (eds), Rethinking Security Governance: The Problem of Unintended Consequences, London: Routledge, pp. 157-75.

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and Effectiveness of United Nations Action, Cambridge: Cambridge University Press, pp. 190-219.

Eriksson, M. and P. Wallensteen (2015), ‘Targeting sanctions and ending armed conflicts: first steps towards a new research agenda’, International Affairs, 91 (6), 1387-98. Eriksson,

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Agency, pp. 71-80.European Commission (2017), ‘European Union Restrictive measures (sanctions) in force (Regulations based on Article 215 TFEU and Decisions adopted in the framework of the Common Foreign and Security Policy)’, accessed 17 April 2017 at http://ec.europa.eu/dgs/fpi/documents/restric tive_measures-2017-01-17-clean_en.pdf. Galtung, J. (1967), ‘On the effects of international economic sanctions: with examples from the case of Rhodesia’, World Politics, 19 (3), 378-416.

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5.

The EU’s civilian crisis management capacity and the challenge of trust* Sten Widmalm, Thomas Persson and Charles Parker

The refugee crisis in Europe has put solidarity among the European Union (EU) Member States to the test. Some EU Member States have clearly stated that they do not welcome the crush of refugees fleeing war and terror in the Middle East, and oppose the EU’s system for jointly distributing refugees among all of them. Instead, the responsibility for managing the largest flow of refugees in Europe since World War II has been left to just a few willing Member States. The lack of shared responsibility for the refugee crisis has led to increased tensions in the EU and forced a gradual tightening of national regulations for accepting refugees (Trauner, 2016). In addition, horrific terrorist attacks, such as those in 2015 and 2016 in

Paris and Brussels, have hindered opportunities to find common solutions to the ongoing waves of refugees, which some increasingly associate with a growing security threat in Europe (Greenhill, 2016, p. 332). This has prompted the reintroduction of internal border controls within the EU and an effort to strengthen the Union’s external borders. The

refugee

crisis is, therefore,

emblematic

of the question

that

is

central to this book: can the EU manage serious crises of this type while surviving as a cohesive union with a common set of values? The European integration project has faced several different crises over the years that have been extremely serious in nature and challenged the solidarity of the EU Member States. Everything from the conflicts in former Yugoslavia to the recent economic and financial crisis and to the refugee crisis has tested the integration project’s ability to reconcile differences and tackle difficult challenges. These problems have called into question whether all Member States are equally committed to the fundamental values that underpin the European integration project and the principle of solidarity. The referendum on the withdrawal of the UK from the European Union —

Brexit — illustrates the disruptive force that issues such as migration have had for EU cooperation (Hobolt, 2016).

88

Civilian crisis management capacity and the challenge of trust

89

This chapter cannot offer a comprehensive description of the consequences of the refugee crisis. The crisis continues to unfold and it is still too early to say whether the EU Member States will be able to reconcile the differences that have emerged in its wake. However, there is no doubt

that the refugee crisis illustrates the EU countries’ difficulties in responding to serious crises and mobilizing support for shared responsibility when it is most needed. The EU has also in recent years assumed an increasingly central role as a crisis manager (Boin et al., 2013), and the EU Member States have undertaken an obligation to support each other in the event of natural disasters, terrorist attacks and other unforeseen circumstances that

lead to major crises (the so-called ‘solidarity clause’, Article 222 Treaty on the Functioning of the European Union (TFEU)). The question is, what common

commitments

have emerged since the

Treaty of Lisbon to safeguard Europe’s ability to manage crises? And what expectations do the EU’s citizens have about national- and European-level crisis management capabilities? What are the obstacles to making this cooperation work in light of the differences in trust and common norms among the EU’s crisis management authorities and the many different administrative cultures represented in these agencies? These questions, which are the focus of the PERSONA research project funded by the Swedish Civil Contingencies Agency (MSB), are key to understanding the EU’s ability to tackle the new security threats, in terms of both legitimacy for the crisis management organization and for the capacity to manage crises such as natural disasters, pandemics, terrorist attacks and, not least,

the current refugee crisis. This chapter thus aims to, first, describe the EU’s common crisis man-

agement mechanisms; second, to analyse the opinions and expectations of European citizens regarding the EU’s crisis management capability, based on surveys from the European Commission’s Eurobarometer; and third, based on our interviews with top officials from eighteen European civil protection services, to address and discuss the European crisis management capability in light of the differences in social capital and administrative cultures of the EU Member States (cf. Persson et al., 2017). Although EU Member States have an obligation to provide assistance in the event of an overwhelming crisis, regulatory systems are often thrown out of balance in the face of unforeseen events. Factors related to how well individual decision-makers know and trust each other and whether they share the same norms and values are crucial for the effectiveness of cooperation. The ability to cooperate is also dependent on how well administrative cultures allow themselves to come together and mix in a rapid sequence of events. In addition, the opinions of citizens on the EU’s crisis management

capability places demands on both EU Member States and on EU-wide

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institutions. This chapter therefore aims to shed light on the conditions of crisis management capability based on two points of view — the citizens’ point of view and the crisis management authorities’ point of view. The views presented here are obviously limited, but still illustrate the basic con-

ditions for the EU’s legitimacy and capacity as a crisis manager. The chapter begins with an overview of some of the key security threats the EU is currently facing. Following this is a presentation of the EU’s crisis management capacities and the new institutional framework that has emerged for crisis management since the Treaty of Lisbon. The third section discusses the expectations of the citizens of EU Member States of the EU’s crisis management capacity based on data from the Eurobarometer.

Next,

utilizing our

interview

material,

challenges facing Europe’s crisis management capacity differences in social capital and administrative cultures in States. The chapter concludes with general observations on policy that should be taken into consideration in the Europe’s crisis management capacity.

we

outline

the

stemming from the EU Member and reflections development of

CRISIS MANAGEMENT AND CIVIL PROTECTION CHALLENGES FACING THE EU In the wake of events such as the terrorist attacks in London in 2005 and Madrid in 2004, the tsunami disaster in 2004, the bird flu from 2005 to

2006, the Ebola epidemic in west Africa in 2014 and previous food supply crises such as ‘mad cow disease’, the EU has become increasingly involved in crisis management and civil protection. Various capacities have been developed, primarily in the form of the EU Civil Protection Mechanism, to manage severe crises such as floods, fires, landslides, volcanic eruptions

or earthquakes. The terrorist attacks in Paris in January and November 2015 and the bombing in Brussels in March 2016 have further contributed to increased cooperation among the EU’s crisis management authorities, such as collection of passenger data for flights, measures against weapons smuggling including strengthened cooperation among police, strengthening of controls at the EU’s external borders including checking biometric information and actions against terrorist financing. While the EU asserts that the main responsibility for managing the immediate consequences of a crisis or disaster rests with the country in which it occurs, the EU

recognizes that disasters, whether natural or

human-made, can overwhelm national response capabilities and require outside assistance. Moreover, in a world characterized by complex interdependence, crises that begin in one country can quickly spread over borders,

Civilian crisis management capacity and the challenge of trust

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which increases the risk that they will have major regional and even global effects. The EU Member States have therefore determined that a disaster may become far too extensive for the affected country to manage on its own. The most dramatic example of a transboundary crisis in recent years is, as mentioned above, the major refugee crisis that developed in 2015 and 2016. Mirjana Milenkovski, the United Nations (UN) High Commissioner for Human Rights, said in an interview with Bloomberg Business that the refugee crisis is the most extensive in Europe since World War II (Cerni and Savic, 2015). At the same time, the refugee crisis has led to great internal divides among the EU Member States and within the countries themselves. Families who have survived the flight from war and terror have ended up in an EU with widely varying attitudes on what assistance should be given. Individual destinies are thrown into a chaotic existence in which coordination efforts are set against refugee quotas and political clashes. The intra-EU migration issue and the refugee crisis were decisive factors in the Brexit campaign gaining strong support (Wilkinson, 2016). In response to the wave of migrants pouring into Europe, the EU has nevertheless attempted to manage the situation by, among other things, offering countries such as Hungary crisis management support. In this particular case, however, this offer of support was, according to those we interviewed, rejected by Hungary, with the exception of a certain amount of aid in the form of tents, cots and blankets for the refugees. Views on

what type of problem the refugee crisis constitutes vary enormously within the EU, which we will discuss later in the chapter. One example of a transboundary crisis of an entirely different type, and which did not cause divisions within the EU as we have seen with the refugee crisis, was the 2010 Icelandic ash cloud event. This event had all

the features of a cascading crisis and had profound consequences across the EU. It severely disrupted air traffic, paralysed the European aviation system and required a coordinated EU response to resolve the crisis (Parker, 2015). Transboundary events of this kind or national events that exceed the capabilities of a single country to handle alone are some of the principal reasons why the EU has assumed an increasingly central role in the management of crises. In recognition of this need, the Treaty of Lisbon incorporated these changes into a new solidarity clause (Article 222 TFEU) that expresses the EU’s obligation to assist Member States in the event of natural disasters, terrorist attacks or other major crises

that have occurred as a result of human action. However, if the EU is to better contribute to the protection of its citizens and be able to assist in crisis management, it faces both important ‘hardware’ challenges (putting in place well-functioning formal structures, a coherent legal framework,

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resources and capabilities, and technical equipment and supplies) as well as important ‘software’ challenges (such as leadership, training, network building, organizational culture, and trust in the procedures, people and systems that have been built up) (Ansell et al., 2010; Boin and ‘t Hart,

2010). In this chapter, we focus on the interaction between hardware and software factors in an EU context, with an emphasis on the relatively overlooked importance of software factors. Studies on crisis management have increasingly taken an interest in social capital and how its components (trust, shared norms, networks and administrative culture) can both facilitate and impair crisis management (Ansell et al., 2010; Boin and ‘t Hart, 2010; Boin et al., 2010, 2014; Persson et al., 2017).

Today’s crises increasingly exceed organizational and sectorial boundaries (Boin et al., 2006, 2010). Moreover, crises increasingly mean that a number of organizations must coordinate efforts and cooperate, sometimes periodically and sometimes permanently in various areas, and often at different administrative levels. In light of these realities, there is clearly a potentially productive role for the EU. However, the EU must overcome a number of challenges if it is to be an effective crisis manager. Arjen Boin and Paul ‘t Hart point out in an overview of previous studies on crisis management that the importance of hardware factors tends to be overrated (Boin and ‘t Hart, 2010). They believe that too much focus on these aspects can divert attention from software factors, which are often more important as well as more cost-effective. These insights suggest that attempts to improve crisis management by trying to build the perfect organization are not likely to work well. Boin and ‘t Hart concluded that it is not formal structures but rather the quality of communication, coordination and cooperation within, over and outside the individual countries’

rescue services that has the most impact on the quality of crisis management. As Charles Parker, Eric Stern and colleagues have shown

in the

warning response failures related to the terrorist attacks on 11 September 2001 (Parker and Stern, 2002) and Hurricane Katrina (Parker et al., 2009), coordination and cooperation problems were central to the suboptimal outcomes of these cases. These and other findings show that it is software factors, rather than organizational hardware, that often make the biggest difference. In The European Union as Crisis Manager, Arjen Boin, Magnus Ekengren and Mark Rhinard have investigated the development of the EU’s crisis management capacity from an institutional perspective (Boin et al., 2013). In this chapter, we go a step further by looking more closely at the often overlooked importance of social trust and administrative cultures in different EU Member States. The trust of citizens in public authorities is particularly interesting to study in the EU, where the capac-

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ity to handle crises is increasingly shared between the Member States and the supranational level. In the next section, we discuss the organizational

‘hardware’ and the mechanisms the EU has introduced for crisis management and civil protection.

THE EU’S INSTITUTIONAL FRAMEWORK FOR CIVIL PROTECTION AND CRISIS MANAGEMENT As previously mentioned, the TFEU contains, since the reforms introduced by the Lisbon Treaty, a solidarity clause, Article 222 TFEU, which expresses a legal obligation of the EU and its Member States to assist each other when one of them is the victim of a natural disaster, terrorist attack

or other major human-made crisis. Interestingly enough, however, France opted after the terrorist attacks in Paris in November 2015 to request assistance under Article 42(7) TEU, in which the EU Member States undertake to assist each other with all available funds if a Member State’s territory is subjected to an armed attack. Under the treaty, the EU must also support and coordinate systems for the Member States’ civil-protection services (Article 196 TFEU) and establish measures necessary for their implementation. It also calls for the EU to provide assistance and protection to victims of natural disasters or human-made disasters around the world (Article 214 TFEU). Various arrangements have been made among the EU Member States to coordinate crisis management efforts. The EU Civil Protection Mechanism was established in 2001 in order to promote cooperation between national authorities and civil-protection services in Europe. In late 2013, the mechanism was reinforced with new legislation aimed at promoting greater EU cooperation regarding disaster prevention, improved preparedness and planning, and the ability to coordinate a faster response when disaster relief is needed (European Commission, 2013). Over the years the Civil Protection Mechanism has monitored more than 300 disasters worldwide and received more than 200 applications for assistance, including for the earthquake in Haiti in 2010, the disaster in Japan in 2011, the Ebola outbreak in west Africa in 2014, the floods in the western Balkans in 2014

and the earthquake in Nepal in 2015 (European Commission, 2016, p. 2). The revised legislation has led to the creation of the European Emergency Response Capacity (EERC) and the establishment of a voluntary common resource with response capacity and experts who can be available for immediate response if necessary. This operative hub in the mechanism is the Emergency Response Coordination Centre (ERCC), which was established in May 2013 and coordinates responses from the participating countries in

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the event of a crisis. The ERCC provides 24/7 capacity to monitor, to deliver real-time information and to respond to disasters by providing needed information, expertise, financial assistance or the mobilization of resources

from the voluntary pool (European Commission, 2016, p. 2). The Civil Protection Mechanism and the EERC are designed to be the concrete manifestations of European solidarity in the field of civil protection. At the Commission level, a warning system embracing all sectors —- ARGUS — has been set up. ARGUS is designed to link all specialized systems for emergencies and a central crisis centre to bring together all relevant European Commission services during an emergency (Boin et al., 2013, pp. 106-07). In addition the EU’s European External Action Service has its own Crisis Response System, which covers crises outside the EU that may affect EU security and interests (European External Action Service, 2016). This also includes crises that occur within the EU if they

have an external dimension. As the EU builds up the institutional framework for crisis management and civil protection, the Union and its Member States confront several important challenges in terms of software, such as coordination, implementation, awareness, trust and legitimacy. Overcoming these challenges is essential if the new crisis management arrangements are to improve the management of future crises.

CITIZENS’ EXPECTATIONS OF THE EU’S CRISIS MANAGEMENT CAPACITY What do the EU’s citizens think about the national and European crisis management capability? In this section we examine the risk perceptions and attitudes of EU citizens regarding threats to their safety as well as how much confidence they have in the ability of their own country and the EU to manage crises. This section is based on information about citizen opinions collected in a number of recent Eurobarometer surveys (European Commission, 2011, 2015a,b).

Citizens’ perceptions of the EU’s crisis management capacity are crucial both for assessing the risks EU citizens feel they currently experience and for understanding existing expectations of the EU’s capacity to handle crises. Public opinion can influence politicians’ and officials’ willingness to take joint action in a crisis situation affecting one or more EU Member States and sets the limits for how politicians and officials act within the framework of the existing EU crisis management capabilities. In a Member State where confidence in the national authorities is high but significantly lower for the EU’s institutions, there is generally less cause

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for national authorities to seek help from the outside. Similarly, a Member State with a low level of confidence in the national authorities but a high level of confidence in EU institutions will have reason to seek support from the EU.

So, how do EU citizens perceive the security situation in their own country and in the EU? What do they see as the main security threats? Data from the Eurobarometer show great differences between how citizens of the EU’s twenty-eight Member States assess public security in their own country and in the EU. On average, 79 per cent of EU citizens feel that the EU is a safe place to live, while 82 per cent feel that their own country is safe. Citizens of northern European Member States in particular perceive their public security as high. In the Nordic Member States, and in the Netherlands, Austria and Luxembourg, 90 per cent of citizens feel that public security is high. What is also striking is that in these Member States, public security is considered to be higher in their own country than in the EU in general, even if the level of security in the EU is assessed to be quite high as well. The opposite picture can be found in several of the EU’s new Member States from central and eastern Europe (e.g. Bulgaria, Romania, Lithuania and Hungary), as well as in Italy. The citizens of these countries assess the level of public security to be much lower in their own country, and security is generally considered to be higher in the EU than in their own country.

To assess whether citizens judge public security to be higher or lower in their own country in comparison with other Member States, we created a trust index that measures the difference between citizens’ perceived security in their own country versus that in the EU (Figure 5.1). Positive values indicate that the citizens of a given country assess the security in their own country as higher than in the EU, and negative values indicate the reverse. As Figure 5.1 shows, citizens in the majority of EU Member States believe that security is higher in their own country than in the EU. The reverse is true primarily in the new Member States from eastern and central Europe. Although an overwhelming majority of EU citizens feel that public security in Europe is relatively high, they identified several potential threats to their safety. In 2011 and 2015, the Eurobarometer asked EU citizens

what security threats they perceived there to be, and the results were striking. Figure 5.2 illustrates the perceived threats to security perceived by citizens in 2015 (before the dramatic development of the migration crisis and November 2015 terrorist attacks in Paris), and the corresponding assessment made in 2011. By far the most common security threat perceived by Europeans is terrorism, which has also increased in significance in recent years. This development is hardly surprising given the Charlie Hebdo terrorist attacks in Paris in January 2015 and earlier attacks such

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Figure 5.2.

EU citizens’ perceptions of the main security challenges in 2011 and 2015

as those in London and Madrid. Following the horrific terrorist attacks in Paris in November 2015, Brussels in April 2016, Nice in July 2016, Berlin in December 2016, London in March 2017 and Stockholm in April 2017, it

is likely that even more Europeans now perceive that terrorism is a serious threat to public safety. The second most common security threat identified by EU citizens is economic and financial crises, which is also not particu-

larly surprising given the deep recession the EU has experienced in recent years. The differences among the Member States (not shown in Figure 5.2) are also striking. In fifteen Member States, terrorism is the most frequently mentioned security challenge. The percentage of respondents who see terrorism as the main challenge varies from 62 per cent in Malta and 60 per cent in Denmark to 22 per cent in Latvia and 25 per cent in Slovenia. The Netherlands (38 per cent), Denmark (32 per cent) and Belgium (30 per cent) have the highest percentage of citizens who believe

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that religious extremism is the EU’s most important challenge to security. Estonia (36 per cent) and Finland (31 per cent) are the only two countries where the economic and financial crisis is the most mentioned security challenge for the EU. In six countries, corruption is the most mentioned

security challenge for the EU, namely Spain (57 per cent), Romania (57 per cent), Portugal (50 per cent), Slovenia (47 per cent), Croatia (38 per cent) and Lithuania (38 per cent). Austria (39 per cent) is the only Member State where organized crime was the most frequently given answer. Irregular migration had the highest percentage in Malta (46 per cent), Italy (40 per cent) and Greece (33 per cent) — all countries of the Mediterranean. Poverty is given as an important security challenge in five Member States: Greece (55 per cent), Hungary (46 per cent), Croatia (38 per cent), Slovakia (37 per cent) and Latvia (25 per cent). It is easy to see the connection between the security threats EU citizens perceive and the crises the EU has faced, while more traditional threats such as war, natural disasters and

nuclear accidents are further down the list. How much confidence do EU citizens have in the authorities responsible for handling the new security threats in Europe? In the Eurobarometer, citizens were asked if they thought that the authorities, in both their own country and in the EU, have sufficient resources to manage crises.

Figure 5.3 illustrates how respondents assessed their own country’s ability to handle major disasters on their own. The results show that in no country do a majority of citizens feel that a// major disasters can be managed on their own, but that coordinated action is instead necessary. However, there are considerable differences among the Member States. In the Netherlands, Austria and Hungary, for example, nearly half of the citizens feel that their own country has sufficient resources to handle major disasters, while only about one-tenth of the citizens in Latvia, Lithuania and Malta agree with this statement. This is striking, considering that smaller Member States would seem to have greater need of outside help. EU citizens also expressed a strong expectation of receiving assistance from other Member States in the event of a disaster. When asked if citizens expect help from other EU Member States in the event of a disaster in their country, an average of 90 per cent of all respondents said they expected assistance. Variation among the countries is also significantly less on this question, even if the percentage is at the very highest in the small Member States of Luxembourg and Malta (Figure 5.4). Also, 88 per cent of EU citizens believe that the EU needs a joint crisis management capacity because major disasters have transboundary consequences. To assess whether citizens rate preparedness to be higher or lower in their own country in comparison with other Member States, we created a trust index that measures the difference between citizens’ perceived

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EU citizens’ confidence in their own country’s crisis management capacity in relation to the EU’s

preparedness in their own country versus that in the EU (Figure 5.5). Positive values indicate that citizens of a given EU Member State assess the security in their own country as higher than in the EU, and negative values indicate the reverse. As Figure 5.5 shows, citizens of the northern European EU Member States generally feel that their own country does more to prevent or prepare for disasters than does the EU. In some of the Member States — primarily new Member States from central and eastern Europe — the reverse is true. Considerable differences are also present

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among individual Member States. In countries such as Bulgaria, Malta and Cyprus, confidence in the EU’s capacity to manage crises is significantly higher than the confidence respondents expressed in their own national government’s emergency preparedness. In countries such as Austria, the Netherlands and Germany, the reverse is true, with citizens tending to have

greater confidence in their national authorities than they do with the EU. These findings reinforce previously known patterns regarding the major differences between new Member States from central and eastern Europe, as well as those from southern Europe and the more economically secure and well-organized Member States in northern Europe (Veen, 2011). Some countries, however, deviate from the usual pattern. The Irish, for example,

feel a greater confidence in the EU’s crisis management capability than their national capability, while the reverse is true among Estonian and Czech citizens. In summary, we can conclude that, on average, an overwhelming major-

ity of EU citizens believe that the EU is a safe place to live and to an even greater extent that their own country is safe. Although an overwhelming majority also feel that public security in the EU is relatively high, they also feel that there are a number of threats to security. These findings imply a dividing line between countries with healthy economies compared with countries that are worse off economically and that in many cases belonged to the former Eastern Bloc. It is also striking that EU citizens expect help from other EU Member States in the event of a disaster in their own country. EU citizens therefore also believe that the EU needs a joint crisis management capability because major disasters often have transboundary consequences. This naturally places great demands on the authorities responsible for managing crises, at both the EU and national levels. But what conditions exist for effective cooperation between these authorities in Europe? Citizens of the wealthy countries appear to have a greater tendency to believe that their own resources are sufficient for responding to and managing crises on their own. Citizens of countries with weaker resource bases tend to place more hope on the EU’s role in crisis management. We discuss this issue in the next section.

WHAT IS REQUIRED FOR EFFECTIVE CRISIS MANAGEMENT? THE IMPORTANCE OF SOCIAL CAPITAL AND ADMINISTRATIVE CULTURE As pointed out by, among others, Boin and ‘t Hart (see above), crisis management research has been far too focused on the formal structures

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and technical solutions — which they call ‘hardware’ factors. They therefore advocate that the discipline should remain more open and include more studies on leadership, the content of education and training, and network

building and organizational culture. Their challenge is in line with new comparative studies of crisis management in the EU (Persson et al., 2017; Christensen et al., 2016; Kuipers et al., 2015). Two perspectives in particular seem to be especially beneficial to combine and integrate with crisis management research. One of these is the scholarship on social capital, which emphasizes the relevance of studying trust, norms and networks. The other is studies examining administrative cultures, which in many respects intersects with the work on social capital. We will first explain why we consider these approaches to be valuable and how they can enhance crisis management research — particularly as it affects the EU’s capacities. We then present some research findings from studies applying these perspectives. The results presented give an indication of how these types of study can provide valuable information on opportunities for cooperation and crisis management within the EU. In line with the findings of the Eurobarometer studies, we will present further

evidence of seemingly identifiable core administrative cultural spheres in Europe in which expectations and approaches to cooperation vary. In the countries we examined in more depth, the EU’s crisis management bodies are perceived as a solution for coordination challenges only up to a point and for certain limited purposes. Instead, levels of trust, and thus the prospects for cooperation, are considered greatest among countries from similar administrative cultural spheres. Let us start with social capital, an area of research that has been at the forefront for over two decades. In social science research, earlier studies

recognized that what today is called social capital was important for good societal development. In his study of democracy in America, Alexis de Tocqueville ({1835 and 1840] 1994), wrote about how the new country’s customs and practices were the key to a more stable democratic development. A century later, researchers Gabriel Almond and Sidney Verba described the same thing in their groundbreaking study published in The Civic Culture (Almond and Verba, [1963] 1989). A few decades later, Robert Putnam published his landmark books Making Democracy Work (Putnam, 1992) and Bowling Alone (Putnam, 2000). He showed how social capital could contribute to both economic growth and the strengthening of democracy. However, he also sent out a warning for steadily declining levels of social capital in the United States in the post war era. Some crisis management research has focused on social capital. But these studies have mostly dealt with the role social capital plays on the individual and local levels in various types of disaster or the role it plays in disaster

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recovery (Aldrich, 2012; Adger, 2003). Some of the questions that have

been addressed include: how well can societies and individuals prepare for crises? What role does the level of social capital have in the capability to handle crises? To what degree does social capital determine how quickly a recovery can occur after a flood or terrorist attack? Knowledge on the importance of social capital has not, however, been applied in studies of

elite actors within administrative structures dealing with crisis management. A significant proportion of the research has unfortunately only focused on how policy documents and action plans are formulated, what procedures should be ‘looked at’ if a particular crisis has been managed poorly, and so on. This despite the fact that management research in a broader scope, for example Michael Power’s The Audit Society (Power, 1997), has taken an interest in how social capital affects cooperation and the extent to which it is effective. Thus, research has an important role in contributing to knowledge on the importance of these factors in building an effective EU crisis management capacity. In the management of crises, the level of trust and common norms can significantly affect the outcomes of attempts to cooperate. However, it should be pointed out that cooperation and consensus are not always an end to themselves — particularly in times of crisis. There are many examples of how closeness, friendship, trust and solidarity can

impede information and assessments, particularly if they are critical or inconvenient, but that later proved to be of crucial importance. Hypotheses about the nature of social capital that can contribute to cooperation therefore must be proven with empirical evidence. Where is the line between the support that improves effectiveness and contributes to a healthy esprit de corps versus a stifling false consensus that leads to groupthink and suboptimal outcomes?

When looking at our second area of focus — administrative cultures — we can see that it is closely related to, and sometimes even overlaps with, what

is generally considered to be social capital. For example, when discussing the kinds of norms that characterize a group of individuals who happen to work in administrative public authorities, it does not take long before

the discussion will turn to the norms and structures that characterize the workplace. If social capital has rarely been taken up in crisis management research, the perspectives offered by focusing on administrative culture have also been underexplored (for a few key exceptions see, however, Boin and Lodge, 2016; Christensen et al., 2016; Boin et al., 2013).

However, Guy Peters argues that it is currently possible to distinguish four major administrative traditions in the EU Member States and these traditions play a central role in explaining outcomes and variations regarding EU policies both centrally and at the country level (Peters, 2000). The

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Anglo-Saxon tradition is based on the idea of the minimalist state and change occurs in incremental steps. The Germanic tradition that characterizes parts of continental Europe emphasizes federalism, in which central level government bureaucracies tend to be lean and much autonomy is vested in subnational institutions. The French Napoleonic tradition is characterized by strong cohesion and hierarchical structures. Finally, the Scandinavian model is a kind of mixture of Anglo-Saxon and Germanic traditions, in which Max Weber’s idea of rule-based governance has a central place. In Four Main Administrative Traditions, which was compiled for the World Bank, Peters argues that these traditions have great significance for the ability to cooperate: ‘Outwardly similar administrative reform projects may have different meanings and different prospects for success when applied in countries with distinct national administrative traditions’ (Peters, 2000).

This variation further increases if you also look at the extent to which different administrations have implemented new public management (NPM) reforms (Ahlback Oberg and Widmalm,

2016). The NPM

model empha-

sizes a decentralized accounting and budget structure as well as competition. It is precisely these factors, argues British administration researcher Michael Power, that tend to counteract cooperation (Power, 1997). Peters further argues that administrative traditions differ throughout Europe and a prerequisite for achieving trust and effective cooperation is to recognize how the various traditions differ. Peters’s analysis shows that it is difficult for a highly decentralized management model to work with a strict hierarchical management model — at least if the actors who will implement cooperation are not themselves prepared for these differences. The conclusion here appears to be that to examine the role that social capital plays in facilitating effective crisis management in the EU, you must consider the frictions that can arise when different administrative cultures meet. However, there are problems with Peters’s account. It is based primarily on his and other researchers’ impressions (Peters, 2010; Peters and Painter, 2010; Peters and Pierre, 2007; Peters, 2000; Pierre and Peters, 2000) rather than on systematic

studies specifically aimed at mapping administrative cultures. Against this background, we will now highlight some new findings from the on-going PERSONA research project on social capital and administrative cultural factors affecting civil protection authorities in seventeen EU Member States. The aim is to describe how social capital and administrative cultures differ within and among countries, and to show

how these factors affect cooperation and outcomes in crisis management situations. These insights, which are based on interviews and surveys with

senior management in crisis management authorities in a number of EU Member States, reveal attitudes that are significant for understanding the

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possibilities and potential limits of the EU’s crisis management capacity and are emblematic of the integration challenges the EU is facing. In the European public civil protection authorities in which the study was conducted (Austria, Denmark,

Ireland, Sweden,

Lithuania,

Latvia,

Hungary, Germany, Portugal, Finland, Slovenia, Czech Republic, France, Croatia, Bulgaria, Spain and Greece), we find, quite encouragingly, a high degree of trust among individuals working in crisis management authorities. Moreover, the activities of these authorities are in most cases

perceived to be effective. During the interviews, officials commonly cited the attacks against the United States on 11 September 2001 and the subsequent al-Qaeda and ISIS attacks in Europe as a kind of ‘awakening’ that drove cooperation. Also, most civil protection authorities had a national orientation and saw their main interests as national ones. When looking for help, most countries tended to look to trusted neighbours before looking to the EU. However, most senior staff see EU cooperation as important

and the civil protection mechanism and voluntary pool as valuable or potentially valuable. In all examined cases, it was mentioned that cooperation has improved among the countries in the respondent’s own region and to some extent with the EU’s central crisis management bodies. However, as mentioned

above, it is primarily one’s closest ‘neighbours’ that are often described as the most attractive partners for cooperation. While most respondents found cooperation, particularly among partners they saw as ‘like-minded’, to be valuable, these interactions produced some criticism, with some partners, as well as the EU’s central level, sometimes described as rigid, formalistic and too bureaucratic. Some of the interviewees, for example, com-

plained about the tendency of the EU and some countries to produce long and somewhat meaningless texts (mainly because many did not bother to read them or because they had such a short lifespan) in the form of guidelines, policy documents, evaluations, etc. But it was stressed such concerns

could be trumped or overridden by shared cultural values and trust across borders that extended at least to the immediate neighbours. In Hungary, the value of cooperation with, for example, Croatia was emphasized, even if the two countries organized activities in different

ways. In the extension of discussions of that nature, a description emerges in which the United Kingdom, Ireland, the Nordic countries, Benelux and

Germany seem to form a kind of sphere of ‘like-minded’ countries. And similarly, a sphere of like-minded countries seem to exist in eastern and central Europe,

including Hungary,

Croatia,

Slovenia,

Czech

Republic,

Slovakia, Romania and also Austria. For Hungary, what primarily ties all of these partners together is the River Danube. The recurrent flooding motivates all the countries along the river to keep in close contact with one

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another. Similarly, the Baltic countries stress the value of close cooperation, as do Spain and Portugal on the Iberian Peninsula. While our interviewees commonly reported that they thought their organization could cooperate with anyone in the EU civil protection family, it was easier to cooperate with organizations with similar organizational structures and cultures. The desire and willingness to closely cooperate with countries outside their core group of ‘like-minded’ countries varied. For those that were less enthusiastic, other countries were consid-

ered uninteresting, irrelevant and distant, or even incomprehensible. Being ‘like-minded’ includes being able to trust that the other party will stick to rules, agreements and regulations. But it can also mean that they quite simply ‘think like’ the other party. In many discussions trust was often used synonymously with ‘like-minded’. One that is like-minded can be trusted and vice versa. However, issues also matter. Working groups on particular issues, such as risk assessment, prevention, flooding or radiological threats, brought people together from various like-minded groups and they found that they could effectively work together. Most respondents saw value in EU civil protection cooperation and thought that the EU, through the Commission’s Humanitarian Aid and Civil Protection department (DG ECHO) and the ERCC, was useful for coordination, information-sharing,

training, providing monitoring and event updates, providing access to scarce or tight resources,

and

as a standard

setting mechanism

and

a

source of knowledge for best practices, which was useful for benchmarking and self-evaluation. However, some scepticism and complaints were also directed at the EU. The EU and its crisis management authorities are often considered slow and overly bureaucratic. The tensions that were sometimes expressed towards the EU can be attributed to two closely related factors. The first explanation has to do with the reality that for some countries, while it is desirable to coordinate with others in a crisis, it is often sufficient

to have direct contact with crisis management authorities within one’s own ‘sphere’. Why go through an intermediary who is often considered to be slow and bureaucratic? Frustrations of such kind have been a classic dilemma as long as the advanced states have been in existence. The South Asian bureaucrat Kautiliya noted 2300 years ago that a major challenge for establishing effective management was the difficulty in developing trust in large organizations. Resignedly, he declared that ‘It is possible to know even the path of a bird flying in the sky, but not the ways of officers moving with their intentions concealed’ (Kangle, 1972, p.91). We encounter the same issues today, and the dilemma is often referred to as

‘the agency problem’. What is required for an actor to dare to hand over responsibility and resources to someone else? How does one know that

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the party assuming responsibility is acting in your best interests or has the same priorities as you do? How do you avoid corruption? These questions are particularly crucial in the EU today. These are also central issues for the Quality of Government project based at the University of Gothenburg. There, researchers point to institutional trust as one of the most crucial factors allowing cooperation to flourish across borders (Rothstein and Teorell, 2012;

although

Rothstein,

we have good

2011;

Rothstein

understanding

and Teorell, 2008).

of how

However,

trust operates within

countries, less is known about what creates bridges that build trust across

borders between countries. In the countries we examined, we find some preliminary answers. Respondents’ attitudes towards the EU are mixed, but a considerably more positive attitude towards cooperation with partners is found among counterparts from neighbouring countries, who often know each other on a personal level. They know not only who they should call, but can also put a face to a person they trust and want to contact in a crisis. It is easier and more effective to trust personal contacts rather than being forced to begin with figuring out which part of the EU machinery is coordinating what. Or as an interviewee in Hungary noted: It’s important to find the right person who can supply all the sandbags you need when the riverbeds flood. And it has to be a person that you can not only trust to deliver what is needed — it also needs to be a person who speaks up when something is not working.

The impression therefore given is that it can be difficult to distinguish between trust and common administrative culture. But further discussion with the respondents about the nature of the problems reveal that personal trust (social capital) is considered to be more important than the way of organizing and doing things (administrative culture). In other words, trust is deemed to trump administrative culture. This should obviously be of great importance in the EU’s coordination capacity, which brings us to the next factor. Second, the EU is considered by some to have a sluggish bureaucracy. It consists of a huge number of authorities and bodies, which leads to obvious problems with coordination and legitimacy. Some of those interviewed were outspoken about the negative images they had of the EU: ‘colossus with feet of clay’, ‘Bureaucrat Empire’ and ‘lack of democracy’. According to some, integration with the EU comes at a high price due to the regulations and structures to which one’s own administrative system must adapt. These are serious obstacles to integration and pose real challenges to achieving more effective crisis management in the EU. It would be wrong to exaggerate these challenges, but the cultures and traditions of

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the various EU countries’ administrative systems are considered by many to be different from their own, and trust in the EU as a central coordinator is not uniform among the Member States.

The EU, in the form of DG ECHO and the civil protection mechanism, has several features that should be particularly attractive to crisis management authorities in the northern European sphere: rule-based governance, combination

of integration

and

decentralization,

and

the tradition

of

enacting changes in an incremental fashion. It is therefore easy to regard the northern European sphere as a type of ‘most likely case’ if you want to find EU-leaning actors and proponents of more central crisis management via the EU. Our study provides partial support that this is the case. The opinions of about half of the respondents in the surveys conducted fell at this end of the spectrum, indicating confidence in the EU and its

crisis management capacity. But others seem to regard the EU as ‘hanging in the air’ — without being clearly anchored in shared principles and sometimes lacking a sufficiently clear mandate. This somewhat divided view of the EU could quickly grow into a wider conflict during an acute crisis, especially if Member States do not share a common view of the situation. It would, however, be wrong to speak of a crisis of confidence. The survey shows that there is support for a central role for the EU in future crisis situations, albeit with some reluctance and reservations. The most

obvious opposition was expressed in an interview conducted with the crisis management authority in Hungary. There, it was clearly stated that the refugee crisis, which in Hungary is primarily referred to as a ‘migration problem’, should be exclusively handled by the Hungarians themselves. EU offers of help, not only with logistics but also with a number of expert advisers, had been firmly rejected. The involvement of the EU was considered counterproductive and was unwelcome. In the refugee crisis issue, however, this discussion also took up factors other than the EU’s effectiveness. The basic problem was that they did not even share the view of the refugee situation as a humanitarian crisis. In other words, what emerges

here is an even greater problem. The very definitions of crisis and disaster are based on parties sharing views on a current course of events and being prepared to act according to common values. In this respect, there are wide and seemingly growing divides in today’s EU (c.f. Trauner, 2016).

THE EU’S ABILITY TO MEET THE NEW THREATS

SECURITY

In this chapter, we have described the increasingly central role that the EU has as a crisis manager. To deal with transboundary crises such as natural

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disasters, terrorist attacks, and not least the major refugee crisis, different

institutional arrangements have been established between the EU Member States in order to achieve effective coordination of the various crisis management responses. This is expected by EU citizens. And although EU citizens in general feel that Europe is a safe place to live, they also perceive a variety of threats. By far, the most common security threat is considered to be terrorism, which has also grown in importance in recent years. Particularly in light of the wave of recent terrorist attacks, there is reason to believe that these security threats are perceived to be even more urgent today. Irregular migration, religious extremism and insecurity on the EU’s external borders are also described as significant security challenges and together help us understand the unease of some citizens regarding the on-going refugee crisis, although there are wide variations among Member States.

In many Member States, the citizens also express support for a higher degree of EU coordination through centrally organized efforts. In other words, the picture is different in that respect from more pessimistic accounts that focus on the EU’s so-called democratic deficit. In fact, the

views of the citizens are much in line with the intentions expressed in the Treaty of Lisbon, which stipulates that EU countries have an obligation to support each other in the event of natural disasters, terrorist attacks and other unforeseen circumstances that cause extensive crises. But several factors obstruct achieving well-functioning cooperation regarding crisis management and civil protection. Our own research shows that like-mindedness with regard to social capital and the administrative culture among the EU’s crisis management authorities can provide a lubricating element for good cooperation within particular regions in Europe. However, it seems that just such a working relationship is associated with a certain degree of scepticism towards the EU as a central coordinator among relevant authorities in the Member States. Authorities often want to coordinate with other ‘like-minded’ neighbouring countries in the event of a crisis, rather than turning to the EU. An important conclusion is that there seems to be a core of northern European authorities and, correspondingly, a core group of central and eastern European authorities that work closely together in crises. In many respects, these findings are in line with those presented by, among others, Asa Casula Vifell (2011) and Paolo Graziano, Sophie Jacquot and Bruno

Palier (2011). These works show it is clear that the problems concerning differences in administrative cultures and sluggishness in the EU system are deep and serious. Furthermore, the EU is viewed by some as consisting of a variety of excessively bureaucratic authorities and bodies. This EU bureaucratic jungle can be difficult to comprehend and navigate, which can

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hinder rapid and well-coordinated responses to crises. It is also clear from our own research that obstacles to cooperation can spring from profound disagreements regarding what is considered to be a humanitarian crisis or disaster. What we describe here is therefore something of a paradox, because it is EU citizens, more than representatives of the crisis management authori-

ties, who are seeking cooperation to address crises and the new security threats. In no EU Member State do the majority of citizens feel that all significant disasters can be managed by themselves, but that coordinated EU action is necessary. When asked if citizens expect help from other EU Member States in the event of a disaster in their country, an average of 90 per cent of all respondents said they expected this. An overwhelming majority of EU citizens also believe that the EU needs a joint crisis management capacity because major disasters have transboundary consequences. EU citizens would thus seem to have — in general — great confidence in the authorities charged with handling the new security threats facing Europe. EU citizens also do not think that enough is being done to prevent and prepare for disasters. There thus appears to be a shortage of crisis preparedness and civil protection according to EU citizens, which is not particularly surprising in light of the many threats to security perceived by them. At the same time, we note that the Eurobarometer did not ask any

questions about who should pay for this preparedness and the efforts to assist other Member States in the event of a crisis. And as we move higher up in the ranks among the national authorities that are responsible for emergency preparedness issues, enthusiasm for the EU has limits for the many reasons we have outlined.

CONCLUSIONS: POLICY IMPLICATIONS AND FINAL THOUGHTS Claims of crisis, dark times and threats of dissolution are often used in

a clichéd manner. However, we do not think that it is an exaggeration to speak this way of the EU’s future these days. As extremist political parties increasingly find their way into parliaments and governments across Europe, democracy and the wider European project, one based on shared fundamental values of human dignity, are at risk of being fatally undermined. Without a common view on democracy and human rights, the EU project is not likely to survive in its present form. Crisis management research reveals that the EU has enormous potential as a crisis manager and public opinion polls show EU citizens support the EU’s efforts to fulfil this function. But to be an effective crisis manager, the EU

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requires shared principles and a shared vision. For an EU-level collective responsibility for protecting its citizens to work, the EU Member States must unite over the fundamental values needed to guide these efforts. Otherwise, solidarity risks becoming an empty slogan. Unfortunately, the current refugee crisis has exposed the EU’s inability to deliver on its espoused commitment to solidarity. Against this background, we conclude that the EU should continue to build a common European crisis management capacity, but that, obviously, this must be done with great thought and care. Many of the crises discussed here are cross-border in nature and require EU Member States to help each other. Our main point is that this cooperation cannot be achieved solely through the creation of new institutional arrangements such as authorities and bodies, legal regulations and public policies. In response to the refugee crisis, there have been proposals for an EU refugee redistribution mechanism, tightened internal and external border controls, and regulations for the reception of refugees. The growing security threat and the risk of new terrorist attacks have also prompted a discussion on police cooperation and combating terrorism. But well-functioning cooperation is shaped primarily by good relationships based on common norms, trust and confidence among the authorities dealing with civil protection and crisis management. A crucial question is whether it is possible to maintain a common view on human rights and democratic values. The lack of basic principles for shared responsibility in responding to major humanitarian crises shows that such a consensus is lacking today. This then constitutes a first-order problem. If it cannot be solved, it is also not likely that the necessary legitimacy for the EU’s coordinating functions will evolve or survive — no matter how many institutional arrangements and rules are added to the EU’s joint cooperation on humanitarian and civil protection. A heavy responsibility thus falls on today’s leading EU politicians. The challenges facing Europe require the drafting of binding agreements that determine the type of shared responsibility EU Member States have when crises and disasters occur. Such an agreement should be based on fundamental values such as democracy and human rights, and establish that EU Member States have a common responsibility to bear costs and provide solutions to major crises they face. Such responsibilities should be applicable in several potential contingencies, such as, the spread of infectious diseases, natural disasters, nuclear accidents, terrorist attacks, and, not least, to deal with the refugee crises. The European Commission,

as the primary body responsible for looking after the EU’s general interests, should develop such agreements and then anchor them among the Member States via the Council and the European Parliament. Only when this has been accomplished will the EU’s potential as a crisis manager be

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realized and achieve true legitimacy — not only among EU citizens but also among authorities, politicians and bureaucrats. Strong, fair and responsive crisis management can be an important solution even for many other problems of legitimacy facing the EU today. Thus the first step towards a more cohesive Europe must be taken very soon, or there is a risk that the European integration project will fail.

NOTE *

The authors express their gratitude to the Swedish Civil Contingencies Agency (MSB) and to the Department of Government at Uppsala University, which are funding the Persona research project.

REFERENCES Adger, W.N. (2003), ‘Social Capital, Collective Action, and Adaptation to Climate Change’, Economic Geography, 79 (4), 387-404. Ahlback Oberg, S. and S. Widmalm (2016), ‘Att gora ratt-aven nar ingen ser pa’, Statsvetenskaplig Tidskrift, 118 (1), 7-17. Aldrich, D.P. (2012), Building Resilience: Social Capital in Post-Disaster Recovery, Chicago, IL: University of Chicago Press. Almond, G.A. and Verba, S. ({1963] 1989), The Civic Culture — Political Attitudes and Democracy in Five Nations, Newbury Park, CA: Sage Publications.

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Graziano, P., S. Jacquot and B. Palier (eds) (2011), The EU and the Domestic Politics of Welfare State Reforms, New York, NY: Palgrave Macmillan. Greenhill, K.M. (2016), ‘Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the European Migration Crisis’, European Law Journal, 22 (3), 317-32. Hobolt, S.B. (2016), ‘The Brexit Vote: A Divided Nation, a Divided Continent’,

Journal of European Public Policy, 23 (9), 1259-77. Kangle, R.P. (ed.) (1972), The Kautiliya Arthasastra, Delhi: Motilal Banarsidass Publishers. Kuipers, S., A. Boin, R. Bossong and H. Hegemann (2015), ‘Building Joint Crisis Management Capacity? Comparing Civil Security Systems in 22 European Countries’, Risk, Hazards & Crisis in Public Policy, 6 (1), 1-21. Parker, C. (2015), ‘Complex Negative Events and the Diffusion of Crisis — Lessons from the 2010 and 2011 Icelandic Volcanic Ash Cloud Events’, Geografiska Annaler, Series A, Physical Geography, 97, 97-108. Parker, C. and

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6.

Food security in Europe Joakim Gullstrand and Christian Jérgensen

The issue of food security has acquired particular relevance in recent years, both in public debate and among academics and politicians, and it is clearly a complex topic. The cornerstone of food security is, of course, the prevention of hunger and malnutrition, but by extension these questions are also linked to social issues concerning human nature, safety, and overall security. On a global scale, as many as 815 million people are estimated to be chronically undernourished, pushing them to humiliating activities such as begging, as well as long-term or recurring illnesses (Food and Agriculture Organization of the United Nations (FAO), 2017). If the number of hungry people grows to make up a critical part of the population of a given country or region, they can resort to desperate measures that have the potential to weaken states through social unrest, outbreaks of disease, and human migration. Research strongly supports that access to food is strongly linked to conflicts and migration. Food security is thus a matter not only of personal security but also of national security. Food insecurity has, for instance, contributed in recent years to food riots and weakened states in Africa and the Middle East, which has in turn affected

European security and stability. Efforts in securing global food security are, therefore, also a matter for European security, especially since a lack of food in other parts of the world may spill over into migration as a last resort to avoid hunger. At the same time, the preconditions for food security are bound up with other security issues such as access to water and energy, and the impact of climate change. Food security is thus closely linked to many of the major and challenging security issues on which contemporary media are often focused. A number of reasons are responsible for the issues receiving such exposure. One is the rise in food prices combined with price spikes in the world market for staple crops such as maize, rice, and wheat throughout

the 2000s, which followed a long period of relatively low prices. An increasing share of imports in domestic consumption has also prompted concerns about food security because an increase in imports entails dependency on other countries for the supply of food. The current global temperature rise 116

Food security in Europe

and recurrence of extreme weather events an increased anxiety about food security. emphasised in a report that has attracted water scarcity fuelled by climate change is security, and economic growth and social

117

are additional reasons behind The World Bank has recently much attention that worsening expected to further stress food stability in Asia, and not least

in the Middle East and North Africa (World

Bank

Group,

2016). The

potential negative effects of a changing climate on food security may also be aggravated by conflicts and terrorism, as the developments in several African and Middle East countries during 2016 and 2017 show. The Financial Times recently underlined this interaction between climate and conflicts under the headline, “Why is the world facing worst humanitarian

crisis since 1945?’ (Pilling, 2017), a crisis that may influence Europe by migration and nearby conflicts. A more globalised world with manifested water scarcity and climate change gives rise to concerns that present — and not least, future — food security is threatened on a global, European, and national scale. In the present chapter, we therefore analyse the state of European food security and the challenges ahead, and we show how the issue of food security has

developed since World War II to understand the current situation. The chapter begins with a definition of the concept of food security, after which we discuss food production and consumers’ access to food within Europe in the present day. We then examine the turnaround that has taken place in Europe regarding the production and trade in food, and following this, how future challenges may come to affect food security. In the final two sections, we discuss how political decisions can address potential threats to food security.

WHAT IS FOOD SECURITY? The basis of our definition of the concept food security is that of the Food and Agriculture Organization of the United Nations (FAO). This definition includes the crucial albeit limited element food safety, which states that the production and preparation of food should not expose the consumer to short-term or long-term risk as a consequence of contaminants and a lack of adequate food hygiene. Thus, food safety is included in the broader concept of food security. The FAO’s definition is derived from an action plan that aimed to at least halve the number of malnourished individuals by 2015 — a goal that formed part of the United Nations’ Millennium Development Goals (MDGs). In 2009, the FAO convened the World Summit on Food Security with the aim of strengthening efforts to reduce world hunger, and at that time the definition of food security that is

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used in the present chapter was specified as: ‘Food security exists when all people, at all times, have physical, social and economic access to sufficient, safe, nutritious food to meet their dietary needs and food preferences for an active and healthy life’ (FAO, 2009). Food security thus rests on four principles (see also e.g. Naylor, 2014): the quantity of food produced; individuals’ access to food; individuals’ consumption of food; and stable access to food over a period of time. This definition entails that food security rests on the entire chain of food production, from primary production through to the individual’s consumption of the foodstuff produced. The first principle is commonly linked to national (or global) food security, since food must be available to all members of the community and is therefore a supply issue. The second principle refers to the safeguarding of food security from the perspective of the household or the individual, because the population of a given country must have the buying power to purchase a sufficient quantity of food and thereby satisfy demand. The third principle focuses on the quality of foodstuffs, emphasising that everyone must have the opportunity to eat healthy and safe food. The fourth principle — the dimension of time — is of most significance with respect to the first two principles, given that a short period without food or water can have dramatic consequences, while a lack of balanced nutritional content can have long-term adverse health consequences. According to the FAO’s definition, the concept of food security encompasses the dimensions of supply and demand, in terms of purchasing power. A more formal analysis of food security that focuses on supply can be traced back as far as Thomas Malthus’s essay at the end of the 18th century (Malthus, 1798). In Malthus’s view, a combination of population

growth and the finite nature of agricultural land will lead to a situation in which, from a long-term perspective, the demand for food will begin to exceed supply, since it is not possible for the crop yield per hectare to expand at the same rate or to the same extent as population size. This interaction between population size, agricultural land, and productivity continues to be a core element in discussions about food security. In the 1980s, analyses of the issue of food security carried out by Nobel Prize winner Amartya Sen revitalised and broadened the debate, pointing out that the chief reason for many famines in the preceding century was not a lack of food production but rather the allocation and distribution of food (see Sen, 1981). In this way, Sen introduced the second principle of food security by emphasising the disparity between different individuals’ and groups’ opportunities to gain access to food. Food security thus indirectly comprises the resources invested in and used within agriculture, the manufacturing industry, and distribution

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119

Resources in the form of energy and environmental conditions, together with various production factors

Refuse, wastage, and

: : environmental impact

Agricultural enterprise

Consumers

Manufacturing industry

Wholesalers and retailers

Figure 6.1

Preconditions for food security

channels — all of which are necessary to produce and ultimately distribute food to the consumer. Moreover, this supply chain must be placed within a framework that includes the social, economic, and environmental

dimensions. In this way, it ought to be possible to describe the bases of food security as shown in Figure 6.1. The basic resources must be present for the subsequent two links in the supply chain (agricultural enterprises and the manufacturing industry) to be able to produce food. The classical view of food security proposed by Malthus examines the first three stages of this supply chain, which taken together form the first principle of food security. This view focuses entirely on the extent to which there is an adequate supply of food, or whether there is the basic potential to meet future demand. This view has also seen a revival in the debate surrounding whether climate change, water shortages, and population expansion will have an influence on food security.

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The final three stages in this model can in part be linked to Sen’s studies of historical famines, which emphasise that the weak link in many famines is not that the supply of food at the primary stage of the supply chain is reduced, but rather that there are shortcomings in the distribution channels, which is to say, individuals or groups of individuals do not have access to existing stocks of food. Other perspectives on food security have also been put forward in the past two decades as a result of changes to consumers’ purchase patterns and the ever more palpable effects of globalisation. In particular, emphasis is placed on potential new threats to the supply of food due to current overconsumption,

rather than a shortage of and

increased dependency on food imports. These developments can be linked to the two last principles of food security — consumers’ consumption of food and the need for stable access to food over a period of time. Food security is thus a highly complex issue in which a wide range of deficiencies, behaviours, and circumstances that for various reasons cannot

be planned for by the market can threaten food security. Thus, discussions on food security often revolve around market failures. Sudden, unexpected events, for example, can affect the market’s ability to supply sufficient food and thereby result in famine, and certain consumer behaviour pat-

terns can generate costs for society. In his work for the Organisation for Economic Co-operation and Development (OECD), Winters (1990) puts forward the argument that food security can be regarded as a collectively owned commodity;

for instance, on the basis of the implications it has

for national security and the security of the European Union (EU). Thus, political intervention may be justifiable to the extent that the market fails to maintain this security. The public good dimension of research and the uncertainty of various events call for some sort of public intervention. The

question,

however,

remains

as to what interventions are the most

appropriate.

IMPROVED AVAILABILITY AND ACCESS Until the 20th century, widespread famine due to crop failure and poverty was a regular occurrence in Europe. The Irish potato famine of 1845 is probably one of the most famous famines in modern European history. However,

there are also examples

from

the 20th century

of malnutri-

tion and famine as a consequence of poverty: for instance, the Great Depression of the 1930s had a negative impact on public health in parts of Europe. Nonetheless, it is neither crop failure nor financial crises but rather the two world wars that stand out as the most significant threats to European food security in the 20th century. War severely inhibits access

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to production resources and food by cutting off supply lines between countries and decimating food production in war-torn areas. However, countries which were neutral during the wars, such as Sweden, along with countries involved in the conflict that were nonetheless spared ground fighting on their own territory, such as the United Kingdom, suffered no famine during World War II and, in fact, periodically experienced improved national health, in contrast to occupied countries such as the Netherlands and Greece, in which the national infrastructure was

largely destroyed (Molander, 1988). Europe has by and large experienced food security since World War II, with the exception of some territories in the former Soviet Union. The supply of food in Europe has far exceeded critical levels at least since 1961, when the FAO introduced coordinated documentation of food production and consumption of food. Productivity growth in agriculture has improved food security over a long period due to an increased supply of food and lower prices in real terms. This trend was, however, broken in the 1990s

when food prices began to rise due to underlying changes in the structure of demand (a larger population and higher incomes), links between food and fuel production (amplified by the subsidisation of biofuels), and stagnating productivity growth in agriculture (see e.g. Naylor, 2014). How, then, have these price increases affected food security in Europe? A formula used by the FAO to measure food security is ‘the supply of calories (kilocalories) per capita per day’. We, however, wish to emphasise that this formula in no way reflects the highest possible supply since it is measured as net trade plus the production of food, and hence reflects the amount of supply that clears the market. In 2013, the average European consumed 3367 calories per day, which by far exceeds the food security threshold level of 2500 calories per person per day set out by the FAO. Figure 6.2 shows that the supply of calories has increased since 1961, which is in line with the increased productivity in agriculture (crop yield per hectare). The supply of calories on a global scale has, in parallel, increased even more. The moderate growth of calorie supply in Europe may be seen as an expression of consumption saturation in both a literal and a figurative sense. The proportion of household expenses spent on food further entrenches the progress in food security; the lower the proportion of household expenses spent on food, the greater the level of food security because the household has room to expand food consumption by reducing less-necessary consumption. In the EU, approximately 13 per cent of total household expenditure is spent on food and non-alcoholic beverages. In other words, the population of Europe has considerable buying power to satisfy its demand for food. In the 1950s, the corresponding expenditure on food

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3500 +

3000 + oT 7

cess

2500 +

yor Serr 7

“

7

a

Europe ————

World

2000 + T

T

T

T

1960

1970

1980

1990

T

2000

T

2010

year

Figure 6.2

Total supply of calories per capita per day (1961-2013)

was over 30 per cent in relatively prosperous nations such as Sweden, the United Kingdom, and West Germany. As incomes have risen, a larger proportion has been spent on ‘luxury’ goods and services instead of necessities such as food. This development in is line with Engels’s Law, which states that the income elasticity of food is less than one. Expenditure on food in terms of fixed prices has nonetheless risen significantly, and is explained by consumers’ demand for higher quality items such as meat, fruit, and value added food, with their increased incomes. For instance, according to FAO

data, the consumption of animal protein in Europe has increased by about 30 per cent since the 1960s. A higher income results in consumers increasing their demand for a more varied and healthy diet, a development that is referred to as Bennett’s Law. At the same time, the consumer becomes

even more receptive to other attributes isolated from the product’s physical qualities, such as the geographical origin of the product and the type of production (for example, organic versus conventional). In addition, when consumers’ incomes rise and the price of food falls, the relative cost of

preparing food (the time spent planning, purchasing the ingredients for, and cooking the meal) increases and consumers therefore more frequently purchase semi-prepared meals or food that is ready-made. The pursuit of time-saving and convenience also explains why household food wastage is higher in wealthy nations than in poor nations. A study by the European Commission estimated that as much as 76 kg of edible food was wasted at the household level in the EU (European Commission, 2010). The high

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level of food wastage reinforces the proposition that households have a significant buffer to purchase food. Despite the development sketched above, food security in Europe has been threatened by several unforeseen food crises. Poor food monitoring in Europe has also led to so-called ‘food scandals’ such as the bovine spongiform encephalopathy (BSE) crisis, the horsemeat scandal, and the dioxin scandal, which threatened food security by hurting food safety. A consequence of the food scandals of the 1990s was the establishment of the European Food Safety Authority (EFSA) in 2002 and comprehensive and more wide-ranging legislation to enhance food safety at the EU level. Four global food crises in terms of global price spikes have occurred since the 1950s (Hansen, 2013). The first of these was the food crisis of 1950-51,

which was linked to the Korean War and fuelled the highest agricultural commodity prices (i.e. fixed prices) of the past 80 years. This was caused by a growing fear of food shortage, leading to speculation and the buildup of national food reserves. The second crisis spanned the years 1972-74 and was the result of an energy crisis and low grain stocks, combined with unexpectedly high demand and a low crop yield. The last two global food crises occurred in the past decade. In the period 2007-08, food prices rose dramatically due to low grain stocks and high energy prices. The most recent crisis, which occurred in 2010-11, was likewise the result of a nega-

tive supply shock that originated from drought and heatwaves in major producers of grain — Russia, Ukraine, and Kazakhstan.

These food crises have, however, merely caused ripples in Europe’s food security; the main reason for this is that a rise in the price of primary products barely influences the consumer prices. For instance, between 2006 and 2013, although the price in euros of wheat on the global market increased 115 per cent, the consumer price index for food in the 28 EU Member States in the same period increased by a more modest 4 per cent, and the share of household expenses spent on food rose by a mere half per cent. The explanation for this modest impact of prices of primary goods on consumer prices is that the latter mostly emanates from costs for innovation, processing, transport, and storage in the manufacturing and distribution stages of the production process. In addition, the even smaller impact on consumer expenditure share on food may be explained by a 10 per cent increase in the average EU household’s disposable income over the same period. These statistics, however,

give a picture of the situation of only the

‘average EU consumer’ and do not indicate the extent to which there are segments of the population that have poorer access to food as a result of economic vulnerability. Developments in the EU Member States since the 2008 financial crisis differ significantly from country to country: according

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to Eurostat, in Poland, the level of disposable income adjusted for purchasing power parity increased between 2008 and 2015 by around 36 per cent, while it fell by 22 per cent in Greece. Households with low incomes become proportionally more impoverished, even with moderate price increases in food. Also, according to Eurostat, the population in the EU that is at risk of poverty or social exclusion is approaching 25 per cent of the total population, corresponding to approximately 120 million EU citizens. These citizens either have a level of disposable income (after social transfers) that is lower than 60 per cent of the Member States’ median income and are unable to purchase goods or services that the majority of citizens regard as essential, or live in a household that is affected by unemployment.

FOOD PRODUCTION IS BECOMING INCREASINGLY MARKET-ORIENTED AND INTERNATIONALISED Given that Europe is such a large economic actor, the EU’s Common Agricultural Policy (CAP) establishes the framework for the chain of food production and influences prices on the global market. Its agricultural policy has always held a unique position among EU policies, which can partly be linked to experiences during and immediately following World War II — an era characterised by food shortages in parts of Europe, widespread poverty in rural areas, and neglect of agricultural production (see e.g. Swinnen, 2009). Until the 1990s, the CAP was focused on increasing

the level of self-sufficiency by supporting and sheltering EU agriculture with the help of tariffs and subsidies that increased agricultural prices and thereby stimulated production. Production increased so dramatically that it gradually led to a surplus, which was exported to the world market with the help of export subsidies in order to prevent food prices in Europe from falling. The consequence of this was that the prices on the world market were kept down by Europe’s agricultural policy because customs duties discouraged imports, while exports were simultaneously subsidised. Another consequence was the extensive intervention stocks of food, the renowned ‘milk lakes’ and ‘butter mountains’, which resulted from the EU’s interven-

tion to buy surplus production. In the 1990s, however, a reform process was initiated that was aimed

at making the agricultural policy more market-oriented. In short, this entailed phasing out market interventions over a ten-year period so that the link between support and production weakened considerably. The majority of support for agriculture was decoupled from agricultural production and instead chiefly focused on maintaining the land in a ‘condition suitable for agriculture’. Agricultural prices within the EU, therefore, now

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follow the price on the world market instead of driving it. Agriculture in the EU is thus considerably more market-oriented than before, and intervention stocks of agricultural goods have been significantly reduced (for more details regarding the CAP, see Ackrill et al., 2008; Swinnen, 2014).

In addition to agricultural policy — and thereby agriculture — becoming more market-oriented, the chain of food production has become increasingly internationalised, which has resulted in a focus on the increasingly recurrent issue of where our food comes from. External EU trade in agricultural and food commodities has traditionally ranked somewhat lower than other industrial goods, due to relatively high political trade barriers and transport costs. The increasing internal and external EU trade can be traced back to the abolition of non-tariff barriers within the EU and work within the World Trade Organization (WTO). In parallel, trade has

increased as a result of technological advancements in the past 20-30 years, which have facilitated the division and geographical distribution of food production. The potential effects of this increased trade are bound up with a complex web of static and dynamic effects that are often also linked to other political measures such as industrial or education policies. In spite of the difficulty in assessing the effects of international trade, the general picture is that it results in better utilisation of resources on a global scale by means of specialisation, which is driven by countries’ relative endowments of key production factors or individual companies’ relatively high levels of productivity. In other words, one can liken trade to a technological advancement that increases the productivity of agriculture, since trade implies that production is to a greater extent carried out by the countries (or firms) that have the best conditions (for an overview, see Lewer and van den Berg, 2003).

In addition to better utilisation of resources detailed studies carried out in the past decade tion of resources within a given industry is also because increased competition makes productive

on a global scale, more indicate that the utilisaimproved on a local level firms prosper, while less

productive firms contract or exit (for an overview, see Redding, 2011; Bernard et al., 2012; and for a Swedish case, Gullstrand and Jorgensen,

2008). The reallocation of production within industries allocates resources more efficiently, at the same time as increased competition erodes firms’ margins. If all these effects are realised and not neutralised by other policies, trade generates a range of positive effects with respect to food security at both a global and a regional level. Lower prices and productivity gains increase purchasing power and production, at the same time as more efficient production minimises the use of water and land (see also the discussion in Brooks and Matthews, 2015).

Figure 6.3 shows how important various countries — both EU and

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The European Union Import value 2010, processed products

Source: Note:

Own calculation from Comtrade data. The darker grey shade indicates a more important source of imports.

Figure 6.3

Map illustrating the significance of different sources of imports in terms of volume, 2010

non-EU — are as sources of the EU’s total imports of processed food and agricultural commodities that are used as raw materials in food production (here termed primary products). The darker the shade of a given country on the map, the more important it is as an import source for the EU. Figure 6.3 thereby illustrates that other EU Member States comprise by far the most important import source of both processed and primary products. Although trade with the Americas and China is significant, the lion’s share of all food trade — around 65 per cent — takes place between EU Member States. In the case of processed food products, around 70-80

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per cent of Member States’ imports comprise intra-EU trade. If we then compare the value and volume of Member States’ total exports with total imports over the past ten years, we see a stable ratio of around 1.1 (i.e. a net exporter) and 0.7 (i.e. a net importer) for processed food and primary products, respectively. A major reason why the EU is a net importer of primary products is that a significant amount of animal fodder for EU livestock production is imported from Argentina and Brazil. If we consider the patterns of trade at a product level, about 70 per cent consists of an exchange of different products, which reflects the improved utilisation of resources due to specialisation. The remainder can be accounted for by an exchange of varieties within the same product categories, which promotes both competition and consumer choice. However, the EU’s current policy on genetically modified crops and foodstuffs — so-called GM crops and GM food — not only hinders possible technological breakthroughs in EU production but also limits access to new potential sources of imports. GM crops are cultivated to an increasing extent in North and South America, and now make up a cultivation area corresponding to the EU’s combined agricultural land. The EU’s approval process and tracing and labelling directive for ‘genetically modified’ products both restricts and increases the cost of imports from important trade partners (see e.g. Barrows et al., 2014; Swinnen, 2014).

A high degree of self-sufficiency is often promoted as fundamental for food security. However, the degree of self-sufficiency depends on domestic production minus domestic consumption, which implies that one has to account for the extent to which exports could adequately compensate for absent imports. Noleppa and Cartsburg (2015) attempted this, and their estimation indicates that the EU’s level of self-sufficiency stands at around 92 per cent (in terms of carbohydrates). If the total consumption per capita is approximately 3400 calories, this means that the EU is able to produce over 3000 calories per capita per day — a level that is significantly higher than the minimum level of daily calorie intake that the FAO has stipulated as a requirement for human beings to be guaranteed food security. The present level of EU food production is therefore estimated to be sufficient to meet the needs of the EU population.

CHALLENGES

AHEAD

The above discussion underlines that Europe has experienced a high level of food security for a long time, according to all four fundamental principles. The range of available food is broad, purchasing power is high, and the available food is safe to eat. Market disturbances such as food scandals and

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price spikes have only slightly deteriorated access to and the availability of safe food; it is overconsumption rather than a lack of consumption that has

posed a problem. Furthermore, the food supply chiefly originates from the EU or third countries with relatively high levels of political stability. Nevertheless,

there are both concrete and more

abstract threats and

challenges to future food security stressed by new circumstances reflected in a more populated and globalised world, climate change and water scarcity, and new types of conflict. Some of these challenges are more substantial, long-term, and gradual. Fish stocks are increasingly fully utilised or over-exploited (FAO, 2014). The global population and individual demand will likely continue to grow, at least over the next 50 years. As the population grows and per capita incomes rise, the demand for food will increase at a faster rate than the population. FAO (2011) has estimated that the demand for food on a global scale will grow by 70 per cent from 2009 until 2050. The demand for other goods will increase in parallel, and thereby bring about increased competition from other sectors regarding common inputs such as water, land, and energy. For example, a general increase in the demand for energy in other sectors would not only increase the competition for energy in the production of commercial fertilisers, but also increase the competition for land from energy crops. The upshot of this would be a rise in the price of agricultural land, water, and energy, which would in turn reduce the available food, a reduction manifested in

higher food prices. Another gradual, long-term forecasted challenge is climate change (see e.g. FAO, 2015). A warmer climate alters the conditions for farming, either

negatively or positively. There is in any case a clear risk that the conditions suitable for farming in the future will deteriorate or disappear in certain areas due to water shortages. Furthermore, greenhouse gas emissions hurt fisheries and aquaculture due to higher temperatures and acidification, and have the potential to significantly decimate food production in certain areas, thereby severely limiting access to food. It is, therefore, essential that food supply chains are efficient both nationally and internationally, the alternative being major regional shortages. Simulations demonstrate that southern Europe would suffer significant negative effects from any future long-term drought, while northern Europe would see increased crop yields as a consequence of the longer growing season that milder winters would allow. In total, however, the impact on agriculture from climate change would equal a welfare cost of approximately 18 billion euros (European Commission, 2014). In Europe’s proximity, countries in the Middle East and North Africa (MENA) are predicted to be strongly negatively affected by climate change (Lelieveld et al., 2016). There are also fears that humus content will diminish in the future.

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Humus content is crucial for the size of crop yields, the nutritional content of the crops themselves, and the ability of the soil to retain water and resist soil erosion (Lal, 2010). Higher humus content also increases carbon sequestration, thereby mitigating the consequences of the greenhouse effect by retaining water following torrential precipitation; likewise it reduces levels of carbon dioxide in the atmosphere by allowing the soil to act to a greater extent as a carbon sink.

All in all, long- and medium-term challenges have led the FAO to state that ‘the accumulation of environmental impacts in key land and water systems has reached the point where, in some cases, production and livelihoods are compromised’ (FAO, 2011, p. 4). The problems are most promi-

nent in low- and middle-income countries, which are also experiencing the fastest growth in demand. Although Europe is relatively spared from deteriorations in food production, deteriorated food security in less-fortunate

countries has consequences for overall security in Europe. For example, food price levels and price volatility have been found to have caused social unrest globally during the period 1990-2011 (Bellemare, 2014). Empirical work also supports the notion that food security has played an important role — which will increase — in conflicts in the Arab world (Maystadt et al., 2014). Long-term drought and flooding directly lead to both long-term and acute migration (Mitchell et al., 2015), and deprived food security may by extension weaken states in the region. This will have repercussions for overall security in Europe due to large-scale migration and the creation of havens for terrorist groups that weak states in the Middle East have proven to generate. There are other abstract and less certain threats to food security, the consequences of which are even more difficult to predict reliably; for example, gauging the likelihood of scenarios such as the escalation of terrorism and conflicts on European soil — developments that to a greater or lesser extent may have negative consequences for food security, depending on their scope and nature. The current situation, involving a capricious and territorially expansive Russia and increased radicalisation, has, however, given

these issues increased relevance in Europe. Terrorists or foreign powers may, for instance, directly target the food supply chain and/or the water supply. Sudden interruptions in food supply can also result from weather events or outbreaks of animal disease. In the event of any of these scenarios there is a risk of leaving stores and households out of deliveries of food for short periods because the modern food production chain is highly fragmented with centralised storage facilities distributed across a large geographical area. Another threat of a more short-term nature is the risk of spikes in food prices due to droughts, as in 2011. Substantial food price spikes combined with economic recessions could thereby threaten food

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security in Europe, although previous research shows that most European citizens enjoy a substantial buffer zone.

COPING WITH UNFORESEEABLE DISRUPTIONS TO SUPPLY As food security is a fundamental human need and should be treated as a public good, there is a clear incentive to implement some form of intervention to ensure a resilient supply of food. Even though the market can in many instances ward off threats to food security, it is nevertheless prudent to consider putting in place common contingency plans. Such interventions should ideally be targeted at specific problems and thus may consist of stockpiles of crucial raw materials, implementing transfers to households whose food availability is threatened, and preparation for dealing with outbreaks of foodborne illnesses. Private actors have provided a partial answer to these potential threats by introducing various standards to guarantee the quality of food (Carlsson and Johansson, 2013). Also, producers tend to make use of many suppliers of individual raw materials to minimise supply interruptions. With the creation of the EFSA, the public sector has in turn implemented a set of regulations to increase the transparency of the food production chain (for instance, with regulations regarding traceability) as well as to assess and address various threats to food security at different points of the chain of food production. The EU has also introduced a crisis fund that is intended as a safety net for farmers to counteract economic slumps during shortterm crises. Despite

these measures,

there have been calls to increase the degree

of self-sufficiency in order to cope with sudden isolation arising from war or conflicts. However, such a focus raises several questions. Firstly, it seems unlikely that either the EU or its individual Member States would become completely isolated. Findlay and O’Rourke (2007) argued that even if international trade between the major blocs was disrupted during the world wars in the twentieth century, trade within blocs ‘probably increased’, although it took a different form compared with peacetime trade. In addition, complete isolation presupposes a major conflict between several countries, whereas current prospective threats to European security take the form of small-scale conflicts or agro-terrorism. Secondly, present EU production as a whole far exceeds the minimum levels of food supply proposed by the FAO. Instead, the focus should be on securing latent food provision in the case of an emergency. The experience of World War II shows that even in difficult circumstances, the price

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mechanism continues to be of great importance in reallocating resources for food production, while government authorities have a prominent role in securing inputs for food production. A potential intervention in line with these ideas is stockpiling, which creates less economic disturbances

than the stimulation of agricultural production to achieve self-sufficiency. A more efficient strategy would hence prioritise the maintenance of agricultural land and maintaining emergency reserves of agricultural inputs and food. A latent production capability in terms of land could therefore be mobilised by means of stockpiling important inputs. The total amount of agricultural land in the EU is relatively stable and current agricultural subsidies mandate that the land is maintained in a condition suitable for agriculture. Emergency reserves in addition to scarcity intervention stocks are, however,

a matter

for individual

Member

States

to administrate,

and

European countries have opted to pursue different policies in this regard. For example, Finland has a stockpile of food equivalent to six months’ national food consumption, Switzerland’s stocks cover four months, while

Germany has a stock limited to grains that would feed its population for several weeks (Swedish Defence Research Agency, 2015). Estimated costs per capita vary from about 4 euros (Switzerland) to roughly 0.2 euros (Germany).

Other countries such as Sweden, Norway,

Iceland, and the

United Kingdom have implemented no such contingencies. Thus, existing stocks would at best be of only marginal significance in the event of a pan-European food supply crisis at the same time as a regional crisis, and emergency plans may require help from other EU Member States. In the event of price spikes, import countries have typically responded by adapting their trade policy so as to facilitate imports, while export countries attempt to achieve the same goals by setting export restrictions. These policies tend to be ineffective or downright counterproductive since increased demand from importers has coincided with a fall in supply from exporters, which tends to increase world market prices yet further. Addressing increasing domestic food prices by means of trade policies simply amounts to countries spreading the problem and thereby negatively affecting others’ welfare. The virtues of the market are then set aside. In order to avoid entering a negative spiral, cooperation within the global trading system should instead focus on preventing the use of trade policies to stabilise domestic prices. A more successful strategy for stabilising domestic prices might make use of domestic food stocks (as has been done in several Asian countries).

One problem with this policy is that it risks crowding out private actors. This could add to uncertainty within the food sector, given that changes to food stocks administered via governmental bodies can easily be used in the

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service of political goals that have nothing to do with price rises. Perhaps the most effective measure for addressing price spikes is to subsidise households whose food security is threatened (for more details, see Anderson et

al., 2013). Within Europe, the already existing transfer system could possibly be used to administer additional transfers in the event of dramatic rises in the price of food.

ADDRESSING SUBSTANTIAL AND LONG-TERM THREATS Long-term, foreseeable, and gradual developments can to a significant extent be mitigated by the work of the market, since the price mechanism contributes to the optimisation of production on the basis of future conditions. Foreseeable increased demand for inputs such as energy, water, and agricultural land, paired with a low elasticity of demand for food, will provide incentives to invest and improve efficiency in the food production chain. Food supply will, therefore, be able to respond partly by mobilising greater resources and partly by making production more efficient. At the same time, rising food prices fuel households’ incentive to minimise food wastage and switch to cheaper and less resource-intensive products. Climate change places greater demands on logistics and trade agreements to safeguard the supply of food in regions that are temporarily or chronically hit by slumps in food production. In the EU, with a free market and well-functioning logistics, such problems can be easily bridged by increased trade volume. There are also other means of circumventing or at least mitigating the negative consequences of climate change, shortages of agricultural land, and less fertile soil. Research and development in the

area of primary production benefits agricultural productivity and thereby increases food production. Some research and development is entirely privately funded, but basic research in agriculture science can, however, be viewed as a public good, and may need public funding. However, current EU policy concerning the approval process for GM crops is more politically than scientifically motivated and obstructs potential technological improvements. The de facto moratorium on the approval of GM products for cultivation closes the door to research and development that has great potential to overcome future challenges such as climate change and reduced access to water via the introduction of new and hardier grain variants. A less-restrictive policy regarding genetic engineering could have several positive effects on food supply. Firstly, it would have a positive effect on the EU’s possibility of securing a supply of food from tertiary countries (that is, countries outside the

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EU) where GM crops are common. Secondly, a more affirmative attitude to genetic engineering would not only remedy the effects of climate change but also mitigate the greenhouse effect both by increasing carbon sequestration in soil and reducing greenhouse gas emissions. The greenhouse effect is thus not exogenous to food production; rather, there is potential to influence the climate in a positive direction via more scientifically motivated regulations in Europe. Sounder European legislation regarding genetic engineering and related technologies in development could in this way mitigate the consequences of the greenhouse effect in southern Europe, while at the same time increasing the global supply of food (Barrows et al., 2014). At present, this technology is applied to crops that are primarily used as animal fodder, but more GM applications are being developed for crops directly intended for human consumption, which only serves to accentuate the EU’s stance on the issue. Furthermore, research indicates that it is beneficial for national econo-

mies to stimulate agricultural methods that have a positive influence on the humus content of the soil. This would have a positive effect both globally and within Europe itself, in particular in southern Europe. This would not only increase crop yield but also possibly exert a positive influence on the climate. That is, once again, crop yields would increase while greenhouse gas emissions are mitigated. By the same token, food security would increase globally and by extension in Europe if consumers to a large extent opt for a healthier diet containing a lower proportion of animal products and sugar. This is because such a diet is more resource-efficient and reduces the release of greenhouse gases in agricultural and food production. Dedicating a larger proportion of crop cultivation to human consumption instead of animal consumption reduces the need for arable land, reduces deforestation, and increases access to calories. A healthier diet is,

of course, compatible with increased food security in the sense that the use of food is improved. Providing consumer information and taxing food items has the potential to influence food consumption in the right direction, but knowledge regarding the effects of such measures is limited and uncertain. A liberal trade policy will in the long run continue to be vital to the production and redistribution of food globally and within Europe in a way that utilises resources efficiently. However, positive commercial effects cannot be generalised as beneficial for all, and thus food supply will continue to be precarious for certain groups of individuals due to negative income effects from trade as the demand for their services is reduced (see e.g. Autor et al., 2014; Caliendo et al., 2015). Expanded international

trade can also influence the food supply indirectly through its influence on the climate. A general increase in income leads to increased economic

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activity, and more trade leads to more transportation of products, which can affect the climate and by extension food production. However, it is important to weigh these potential negative effects against positive ones: individuals who are negatively affected by trade could be made beneficiaries through already established transfer systems and matching initiatives (employer-employee matching); more efficient production (and use of scarce resources such as land and water) as well as the proliferation of technology counteracts the negative effects of increased economic activity; and nearly 90 per cent of transportation in the international food trade employs vessels that are the most efficient mode of transportation with respect to climate impact. The complex links between trade and the climate are underlined by several studies of lifecycles, which indicate, for instance, that it may be

more climate-friendly to purchase lamb from Australia or New Zealand and particular vegetables or cut flowers from east Africa than purchasing corresponding products produced within the EU. Lifecycle studies also demonstrate that within the food production chain, transportation is of minor significance in the total release of greenhouse gases, at least compared with greenhouse gas emissions from agriculture. Reduction of greenhouse gases should, therefore, primarily target agricultural production by employing best agricultural practice in the best agricultural conditions (for an overview, see Hoolohan et al., 2013).

There are important avenues for policies to secure food security and national security that go beyond stimulating European food production per se. Firstly, the economic management of the world’s captive fishery resources has to be improved by an international legal framework, due to the common pool nature of the resources (Bjorndal and Munro, 2012). Secondly, public funds can be efficiently used by improving infrastructure and raising agricultural productivity in third countries that are experiencing — and may do so even more in the future — major challenges in the production and distribution of food, particularly the MENA countries. Agricultural development and food security go hand in hand, and in addition to reducing human suffering in terms of malnutrition reduce the risk of conflicts, major migrations, and terrorism. Finally, it is important to stress that investments in the production and use of energy as well as in water management in general improve food security, just as investment in political institutions has a positive effect because it secures food accessibility and improves food availability by preventing the mismanagement of resources. As the World Bank (2016) notes, current

water mismanagement explains much of the water scarcity today. Without credible political institutions there will be no effective planning and regulation or enforcement of market signals through implementation of pricing

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and permits to optimise the management of vital resources such as land and water. In addition, investments in third countries may mitigate climate change, adding to food security across the globe. Falcon and Naylor (2005) show a decrease in investments in agricultural development in lessfortunate countries from institutions such as the Consultative Group for International Agricultural Research (CGIAR) and the World Bank, as well as individual industrialised countries;

these investments are small com-

pared with other aid schemes, although the potential gains are substantial.

CONCLUDING REMARKS Food security should be viewed as an integral part of national security. In addition to causing human suffering, the lack of access to food creates

political turmoil and weak policy institutions which deteriorate food security. It is also emphasised that food security in third countries is a matter of European security. Although food accessibility and availability in Europe have been abundant and increasingly so over the past 50 years, the challenges ahead because of changing circumstances risk ending the prosperous development of food security. Hurdles include substantially higher global demand at the same time as production possibilities are becoming limited due to finite production factors, with agricultural land and fresh

water expected to become even scarcer with climate change. Weak political institutions may amplify food scarcity in Europe’s proximity and, by extension, hurt European security. Both Amartya Sen’s and Thomas Malthus’s reflections on food security are hence becoming more relevant in a more populated and globalised world facing climate change, water scarcity, and new types of conflict. The problems are many, interlinked, and multifaceted, and so are the

remedies. Investments in technological advancements to, once again, sidestep potential future Malthusian traps should not be confined solely to food production, but should apply to the provision of essential agricultural inputs and better utilisation of water and energy in general. A more science-based approach to biotechnology in the EU has a potential to increase and secure yields in an era of significant climate change. The EU should also work to solve the problems of water management, and hence enhance the efficiency of production, through property rights and better pricing schemes to internalise water scarcity. Both investments in new technology and better water management are policies that should be diffused to third countries since improving food security in other countries improves the security of Europe. It should also be stressed that the future should not rely on isolationist

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policies; policies should rather strengthen the global food production chain. International trade contributes to saving resources through more efficient production and it helps countries suffering from natural catastrophes and the consequences of future climate change. The virtue of trade between countries also applies to European economic integration: regions within Europe are more vulnerable than previously to unexpected and sudden disruptions because of low private sector stocks and scarce public stocks of food and agricultural inputs. Land suitable for farming is still promoted by the CAP but public emergency reserves can be increased, depending on threats and the scope of conflicts on European soil — risks that have to be continuously assessed and related to the comparable low costs of keeping food and agricultural inputs available.

REFERENCES Ackrill, R., A. Kay, and W. Morgan (2008), ‘The common agricultural policy and its reform: The problem of reconciling budget and trade concerns’, Canadian Journal of Agricultural Economics, 56 (4), 393-411. Anderson, K., S. Jha, S. Nelgen, and A. Strutt (2013), ‘Re-examining policies for

food security in Asia’, Food Security, 5 (2), 195-215. Autor, D.H., D. Dorn, and G.H. Hanson (2014), ‘Trade adjustment: worker-level

evidence’, Quarterly Journal of Economics, 129 (4), 1799-860. Barrows,

G., S. Sexton,

and

D. Zilberman

(2014),

‘The impact

of agricultural

and bio-technology on supply and land-use’, Environment and Development Economics, 19 (6), 676-703.

Bellemare, M.F. (2014), ‘Rising food prices, food price volatility, and social unrest’, American Journal of Agricultural Economics, 97 (1), 1-21. Bernard, A.B., J.B. Jensen, S.J. Redding, and P.K. Schott (2012), ‘The empirics of

firm heterogeneity and international trade’, Annual Review of Economics, 4 (1), 283-313. Bjorndal, T., and G.R. Munro (2012), The Economics & Management of World Fisheries, Oxford: Oxford University Press. Brooks, J. and A. Matthews (2015), “Trade dimensions of food security’, OECD

Food, Agriculture and Fisheries Papers, No. 77, accessed 31 May 2017 at http:// dx.doi.org/10.1787/5js65xn790nv-en. Caliendo, L., M. Dvorkin, and F. Parro (2015), The Impact of Trade on Labor Market Dynamics, NBER Working Paper No. 21149, Cambridge, MA: The National Bureau of Economic Research. Carlsson, C. and H. Johansson (2013), Private Standards — Levelling the Playing Field for Global Competition is the Supply Chain? Vellinge: Agrifood Economics Centre, JMS Mediasystem AB.

European Commission (2010), Preparatory Study on Food Waste Across EU 27, Technical Report-2010-054, DG ENV — Directorate C.

European Commission (2014), Climate Change in Europe: The JRC PESTA II project, Joint Research Centre, JRC Scientific and Policy Reports, Luxembourg: Publications Office of the European Union.

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Falcon, W.P. and R.L. Naylor (2005), ‘Rethinking food security for the twenty-first century’, American Journal of Agricultural Economics, 87 (5), 1113-27. FAO (2009), Declaration of the World Summit on Food Security, Rome: Food and Agriculture Organization of the United Nations. FAO (2011), The State of the World’s Land and Water Resources for Food and Agriculture (SOLAW) — Managing Systems at Risk, Rome: Food and Agriculture Organization of the United Nations and London: Earthscan. FAO (2014), The State of World Fisheries and Aquaculture — Opportunities and Challenges, Rome: Food and Agriculture Organization of the United Nations. FAO (2015), Climate Change and Food Systems: Global Assessments and Implications for Food Security and Trade, Rome: Food and Agriculture Organization of the United Nations. FAO (2017), The State of Food Security and Nutrition in the World, Rome: Food and Agriculture Organization of the United Nations. Findlay, R. and K. O’Rourke (2007), Power and Plenty: Trade, War, and the World Economy in the Second Millennium, Princeton, NJ: Princeton University Press.

Gullstrand, J. and C. Jérgensen (2008), ‘Deeper integration and productivity: the Swedish food and beverage sector’, Food Economics — Acta Agriculturae Scandinavica, Section C, 5 (1), 1-13. Hansen, H.O. (2013), Food Economics: Industry and Markets, London: Routledge. Hoolohan,

C.,

M.

Berners-Lee,

J. McKinstry-West,

and

C.N.

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(2013),

‘Mitigating the greenhouse gas emissions embodied in food through realistic consumer choices’, Energy Policy, 63, 1065-74. Lal, R. (2010), ‘Beyond Copenhagen: mitigating climate change and achieving food security through soil carbon sequestration’, Food Security, 2 (2), 169-77. Lelieveld, J., Y. Proestos, P. Hadjinicolaou, M. Tanarhte, E. Tyrlis, and G. Zittis

(2016), ‘Strongly increasing heat extremes in the Middle East and North Africa (MENA) in the 21st century’, Climatic Change, 137 (1), 245-60.

Lewer, J.J. and H. van den Berg (2003), ‘How large is international trade’s effect on economic growth?’, Journal of Economic Surveys, 17 (3), 363-96. Malthus, T.R., (1798), An Essay on the Principle of Population, as It Affects the Future Improvemements of Society, London: J. Johnson. Maystadt, J.-F., for transition Mitchell, D., D. and conflict’,

J-F.T. Tan, and C. Breisinger (2014), ‘Does food security matter in Arab countries?’, Food Policy, 46, 106-15. Hudson, R. Post, P. Bell, and R.B. Williams (2015), ‘Food security Frontiers of Economics and Globalization, 15, 211-25.

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Naylor, R.L. University Noleppa, S. Union —

(ed.) (2014), The Evolving Sphere of Food Security, Oxford: Oxford Press. and M. Cartsburg (2015), ‘The agricultural trade of the European consequences for virtual land trade and self-sufficiency’, HFFA

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Sen, A. (1981), ‘Ingredients of famine analysis: availability and entitlements’, Quarterly Journal of Economics, 96 (3), 433-64. Swedish Defence Research Agency (2015), Krisberedskap for Livsmedelsforsérjning i ett Internationellt Perspektiv — en Férstudie, FOI Memo

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Winters, L.A. (1990), ‘The so-called “non-economic” objectives of agricultural support’, OECD Economic Studies, 13. World Bank Group (2016), High and Dry: Climate Change, Water and the Economy, Washington, DC: World Bank Group.

7.

Threats against innovation-based growth in the EU Roger Svensson

INTRODUCTION In a more globalized world with increased international trade, competition among firms and countries becomes fiercer. In the second half of the 2010s, value-added chains are global and have production stages that are located in different countries to increase cost efficiency. Thus, to maintain its competitiveness and growth, the European Union (EU) requires extraordinary measures within the areas of innovation and technology development. Here, intellectual property rights (IPR), expressed through patents and copyrights, have an important role, as they incentivize the creation and commercialization of new knowledge. Most countries have an adequate IPR background, and the rules of IPR have been regulated by the World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for the past 20 years. However, this system is at risk, particularly from the BRIC (Brazil, Russia, India, China) countries, where IPR regulations are less enforced

and obeyed than in traditional Organisation for Economic Co-operation and Development

(OECD)

countries. These violations may cause firms

in the EU to abandon the establishment of production or sales in BRIC countries, resulting in decreased growth (OECD/EU Intellectual Property Office (EUIPO), 2016). Threats against innovation-based growth are an even larger concern than these IPR issues. If the EU is unable to maintain a high level of innovation with respect to competing regions, then these welfare factors could be threatened: Increased economic growth Improved products and higher consumer surplus Employment Competitive firms Increased productivity to compensate for an ageing population. 139

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New knowledge and technology created through research and development (R&D) is regarded as the most important growth-stimulating production factor. Several literature reviews in recent decades have shown that R&D has a significant role in growth and productivity (see, for example, Wieser, 2005; Hall et al., 2010). However, applying this knowledge to artistic works or inventions is insufficient; it must also be commercialized. In

particular, entrepreneurs — innovative firms and individuals — who take the risk of introducing new ideas, works and inventions as innovations in the market are crucial (Schumpeter, 1911). The resulting commercialization will allow consumers to gain from more efficient production processes that will lead to lower consumer prices and new and improved products. Acs and Audretsch (1988) demonstrate that small, young, fast-growing firms are particularly important for economic growth and employment because they develop more innovations per employee than large firms. The research literature agrees that firms in a free market will invest less in R&D than what is socially optimal, which is partly due to the existence of spillover effects and the non-exclusive characteristics of technology (Arrow, 1962). Firms conducting R&D are unable to monopolize the profits from their new knowledge because excluding others from using that knowledge is extremely difficult. The firms conducting R&D do not take spillover effects into account when deciding the level of R&D investment. The underinvestment in R&D is also caused by asymmetrical information about the project’s potential, resulting in incomplete capital markets for small, early and risky projects (Kaplan and Strémberg, 2001; Carpenter and Petersen, 2002). Here, a financial gap arises. Government authorities intervene in the market to address these failures. Through legislation, governments award exclusive rights to inventors and artists in the form of IPR (particularly patents and copyrights), which aim to stimulate knowledge creation, commercialization and knowledge

transfer. Other government policy instruments include: financing R&D in universities or private firms; offering favourable loans or venture capital in early phases to entrepreneurs; providing a pool of highly educated scientists; and/or improving the conditions and environment for entrepreneurship. These policy instruments are intended to help consumers gain from new and improved products and to increase technology transfer. Thus, welfare is expected to increase, given that the costs are lower than the total

positive effects. The European Commission vations for economic growth. were the main reasons that the strategy in 2000 as a plan to knowledge-based region in the

has addressed the importance of innoStagnating growth and low productivity European Council presented the Lisbon make the EU the most competitive and world by 2010 (European Communities,

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141

2006). Objectives within the EU included ensuring that R&D expenditures’ share of gross domestic product (GDP) increased to 3 per cent. However, several of the strategy’s objectives were never fulfilled. The financial crisis in the past decade has been mentioned as one of the causes of this failure. However, a new strategy had already been presented in 2008 — EU Horizon 2020 (European Commission, 2012c, 2014). This strategy focused not only on the supply side of innovations (for example, financing, education and patents) but also on the demand side (for example, modernized procurement rules, standardization across national borders and innovation environments).

One problem with the EU’s common strategy is that the Member States themselves decide whether and how they will accomplish its objectives. Some of the key objectives, such as the education of scientists, tax incentives for R&D, government financing of R&D and venture capital support, are decided nationally. In principle, only the rules of EU patents and the structural and financing funds of the EU are centrally determined. In the present chapter, I will analyse some problems that the European Commission must handle in order to increase innovation and growth. The chapter focuses on government R&D strategies, government support for innovation, the design of IPR, and expenditures and efforts in the univer-

sity sector. The last section summarizes the policy recommendations.

HOW IS ECONOMIC THREATENED?

GROWTH

IN THE EU

As a point of departure to understand the threats against economic growth in the EU, I compare the EU with its most important competitors (the US, Japan, China) over the past 20 years with respect to levels and trends in R&D investments as per cent of GDP, and R&D personnel, innovations and productivity. Figure 7.1 presents the total R&D intensity in the EU and some other OECD countries. While the intensity of R&D in the EU has increased from 1.7 to 2.0 per cent of GDP over 20 years, it remains lower than the EU goal of 3.0 per cent of GDP. Unfortunately, the EU lags the OECD average as well as important competitors, such as the US and Japan. Furthermore, China has improved to match the EU in

recent years. An examination of government expenditures on R&D reveals that the EU has remained at the same level as other OECD countries over the past 20 years — almost unchanged at 0.68 per cent of GDP. The EU’s business sector is where the lag occurs; here, R&D

expenditures are 1.05 per cent

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—-—Japan

—=—

aeeeeees EU (15 countries)

Sweden

terre — Source:

EU (28 countries)

United States —

OECD

—--— China

- average

Main Science and Technology Indicators (OECD, 2016).

Figure 7.1

Total R&D intensity 1995-2013 (per cent of GDP)

of GDP in 2012 (0.83 per cent in 1995) compared with 1.40 per cent for the average of OECD countries (1.18 per cent in 1995). The EU’s business sector also lags China (1.47 per cent). As regards the share of the labour force working in R&D in the EU and other OECD countries (Figure 7.2), the EU is at approximately the same level as the OECD average and has reduced the lead of Japan and the US. The Innovation Union Scoreboard annually constructs an innovation index based on multiple indicators of innovation, including educa-

tion, scientific publications, R&D expenditures, patents and innovations, and

knowledge-intensive

exports

(European

Commission,

2012c,

2014;

European Union, 2014). This index can be used to determine how competitive the EU is compared with other OECD countries as well as to determine the strengths and weaknesses of individual EU Member States. Figure 7.3 compares the EU with some important global competitors.

J

— aN

143

— N 1

Number of R&D personnel per 1000 employees

Threats against innovation-based growth in the EU

0

T

T

S?_ SOS _ SP _?_ PD GDM GP FG PT TTT SSP HK HP HK

$

FP

4

Year —-—Japan

—=—— eeveeeee EU (15 countries)

Sweden

Source:

EU (28 countries)

weeeee

United States

—

OECD

—

—--— China

- average

Main Science and Technology Indicators (OECD, 2016).

Figure 7.2

R&D personnel per 1000 employees 1995-2013

The US, South Korea and Japan are on a considerably higher level than the EU average. In particular, the EU lags with respect to business R&D investments, cooperation between universities and the business sector, global patent applications, and the share of university-educated people in the labour force. The differences among EU Member States are considerable, with Sweden,

Denmark,

Germany

and Finland as the top-ranked

countries. Edquist and Zabala-Iturriagagoittia (2015) have criticized the index. They argue that input and output factors of innovation should be separated and then compared with each other to measure the productivity of R&D

investments. In this case, Sweden would still be top ranked with

respect to input factors, but it would have a considerably lower ranking when focusing on output or productivity. If we turn to the growth depicted by the index over the period 2006-13 (Figure 7.4), the picture changes. Specifically, South Korea and China have improved their innovation index values. Meanwhile, the EU has reduced its gap with the US and Japan, and it has left Australia and

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South Korea

Countries/regions

United States Japan EU (28 countries) Canada Australia China T

0

0.2

0.4

0.6

0.8

Innovation index

Source:

Innovation Union Scoreboard (European Union, 2014).

Figure 7.3

Innovation index 2010-11

Canada behind. The differences among individual EU countries have converged over time. Sweden has one of the lowest growth rates of OECD countries. Business R&D investments differ between the EU and the US. Innovation Union Scoreboard (European Commission, 2012c) reveals middle-high-intensity R&D

also the The that

sectors (automobiles, aircrafts, defence, elec-

tronics and chemistry) and high-intensity R&D sectors (pharmaceuticals, biotechnology and information technology) account for 50 per cent and 37 per cent, respectively, of total R&D investments in the EU. Comparable figures for the US are 25 and 69 per cent. Thus, the EU lags in highintensity R&D sectors. The EU’s inability to match the US with respect to labour productivity since the mid-1990s is a well-documented phenomenon. Several causes are mentioned for this gap, including EU industries being worse at integrating information technology, the EU’s low share of information technology-producing firms and an inflexible labour market with numerous rigid rules. To summarize, business R&D expenditures are lower in the EU compared with the OECD average. The EU also lags the OECD with respect to cooperation between universities and the business sector, global patent

Threats against innovation-based growth in the EU

145

South Korea

China § Dd £ 3

EU (28 countries) 4

i

: :

:

Japan

i

E

:

8

Australia

:

United States Canada 3

4

5

6

7%

Per cent

Source:

Innovation Union Scoreboard (European Union, 2014).

Figure 7.4

Growth in the innovation index 2006-13 (per cent)

applications and the share of university-educated people in the labour force. More concerning is that China has reduced the gap to the EU with respect to several strategic innovation parameters.

PUBLIC FINANCING OF R&D CONDUCTED IN THE BUSINESS SECTOR Spillover effects are the primary motivating factors in government financing of R&D. In some R&D areas, the social return is significantly higher than the private return (that is, high spillover effects), which motivates government financing and possibly government performance of R&D. Society as a whole will gain the most from government financing of the following types of R&D. e

Basic research — research without direct commercial potential — is not protected by patents (which require applications) and therefore needs subsidies. This type of research is usually performed in universities or in government laboratories.

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e

e@

The European Union

Projects that will benefit society as a whole (defence, the environment, energy and health care) cannot always find individuals who will directly fund them and thus need government support. Governments should finance and conduct R&D when the results need to be spread freely.

Direct versus Indirect Public Financing of Business R&D

Governments should finance R&D projects carried out by firms when they both have commercial potential and create spillovers. This can be accomplished either through direct financing or through tax incentives (indirect financing). Direct financing to firms in the form of grants or subsidies is often selective, that is, government authorities determine which kinds of

R&D projects will receive financial support. R&D grants often include specific requirements, such as cooperation with universities or other firms or that the recipient increases employment by a specific number (Svensson, 2013). A government can stimulate R&D through indirect tax incentives. Tax incentives can be linked either to the income or to the expenditure side of the firm. Subsidies linked to the income side (for example tax credits or patent boxes) have a discriminating effect. They are seldom available to new start-ups or to firms that have larger investments than incomes, that is, firms that are considered the most innovative and crucially need external financing (Hall and Van Reenen, 2000). Tax incentives on the expenditure side may be extended tax deductions of R&D costs from taxable income, or R&D costs may be deducted directly from income taxes. A disadvantage of expenditure-side subsidies is the risk of firms trying to reclassify other costs as R&D expenditures to utilize subsidies. In general, direct R&D financing is regarded as the most efficient method when the return on the R&D project is highly uncertain and if it will take a substantial amount of time to get a finished product. Direct R&D support is also appropriate when high spillovers can be identified or if the project serves the public interest (energy, the environment). Tax incentives are regarded as more suitable for applied R&D and when a product can be finished in a short amount of time because these incentives stimulate R&D projects that are profitable on the margin. An apparent disadvantage of direct R&D financing is that competition is distorted. The awarded firms will be the primary beneficiaries of the support. Tax incentives are competition neutral and are usually available to all firms in a sector. In the case of direct R&D support, government authorities may not be able to identify projects that are profitable or places in which the spillover

Threats against innovation-based growth in the EU

147

effects are large. Here, the market is regarded as a more efficient selector of projects that have a commercial potential. By requiring co-investments from the awarded firms, a government can more efficiently utilize the market when allocating direct R&D resources. In the case of tax incentives, the firms themselves determine which R&D projects should be undertaken irrespective of the size of the spillover effect. However, these incentives are

risky because firms could choose projects that they would have undertaken anyway. This is particularly true in the case of volume-based tax incentives, that is, R&D financed from its initial steps (David et al., 2000). I recommend that governments use a combination of direct and indirect R&D financing in the business sector. Direct R&D financing should be granted in sectors with qualities beneficial to the public (the environment, energy and defence sectors). Preferably, the firm conducting the R&D should own the R&D result to ensure that the incentives guarantee a substantial effort. Tax incentives should be increase-based, meaning that firms should receive more financing when their R&D investments are higher. Thus, deadweight losses will be minimized. However, these types of tax incentives are administratively costly. Furthermore, the tax incentives should be linked to the expenditure side — such as the costs of R&D personnel — to ensure that a maximum number of firms (also start-ups) will be able to utilize the subsidies. Suitable Level of Government R&D Support A major problem for the EU is that its Member States determine the level and orientation of government R&D support (Figure 7.5). They lack both cooperation and international agreements to regulate R&D support, which may cause a subsidy race within the EU. By contrast, the design of IPR is regulated through international agreements, which prevents competitive races. Which level of government support is the most efficient? Based on statistical estimations, Guellec and Van Pottelsberghe (2003) argue that the effect of government support is strongest when it accounts for up to 10 per cent of total business R&D;

thereafter, the effect shrinks. The

effect of government financing of R&D carried out in firms is similar to an upside-down U-curve. Countries that spend too few or too many resources on government R&D financing stimulate less business R&D than countries that support R&D at a suitable level (approximately 10 per cent). If government financing accounts for as much as 20 per cent of total business R&D,

then it tends to crowd out or take the place of

private financing. As Figure 7.6 illustrates, most OECD countries have a R&D financing level of 5—7 per cent of business R&D, indicating space

Foc

eee

eee

eters

G R&D

tax incentives

Germany

Finland

Australia (2006)

Netherlands

Denmark (2008)

Sweden

Ireland

Norway (2008)

United Kingdom (2008)

Spain

Japan

Austria

Belgium

France (2008)

United States (2008)

Canada (2008)

South Korea (2008)

M@ Direct R&D

financing

Switzerland (2008)

0.35

The European Union

Italy

148

Per cent of business R&D financed by government Source:

Measuring Innovation: A New Perspective (OECD, 2010).

Figure 7.5

Government direct and indirect financing of business R&D 2007 (per cent of GDP)

for more government R&D support in the business sector without risking crowding-out effects.

LACK OF FINANCING IN THE COMMERCIALIZATION PHASE Small, young, fast-growing firms are highlighted as particularly crucial for innovation and economic growth. Even if internal resources (including financing from family members and friends) account for a significant

Threats against innovation-based growth in the EU ccc

enn

een

tne

teeter

eee

eee

Per cent

LBarc

149

weeeee

United States

—

OECD

—

Source:

—

seeeeeee EU (15 countries)

- average

EU (28 countries)

Sweden —-—

Japan

Main Science and Technology Indicators (OECD, 2016).

Figure 7.6

Share of business R&D (in per cent) financed by the government

part of their total financing, innovative firms often have limited resources and almost non-existent profits for reinvestment, which creates a need for external financing. However, inventors and entrepreneurs possess an

information advantage (asymmetrical information) regarding the project’s potential (adverse selection) and usage of financing (moral hazard) vis-a-vis external financiers (Akerlof,

1970; De Meza

and Webb,

1987).

This motivates external financers to require an extra risk premium in exchange for supplying financial capital. The risk premium is higher for

small firms, as they have limited assets that can be used as collateral for loans and they have a higher probability of bankruptcy (Myers, 1984; Audretsch and Stephan, 1996). Empirical studies have revealed that external financing for small firms is more frequently provided through loans than equity capital (see, for example,

Berger and Udell,

1998; Robb

and Robinson,

2014).

However, loans usually require assets as collateral. Thus, start-ups and

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The European Union

technology-based firms have difficulty obtaining loans until they have demonstrated commercial success. The risk of bankruptcy is substantial, resulting in external lenders requiring extremely high interest rates on successful projects to cover their losses on failed projects. Furthermore, technology-based firms have intellectual properties that are more difficult to use as collateral than physical assets. Therefore, these firms are dependent on external equity financing. The two primary private external suppliers of equity financing are business angels and private venture capital firms (PVC firms) (Lerner, 2009; Svensson, 2014). Both invest in non-listed firms with active engagement. Thus, they contribute not only through financing but also through their competence and expertise. These private finance suppliers have a few important differences. Business angels often invest their own capital, whereas PVC firms obtain their capital from external institutions and investors. Business angels also invest smaller amounts of capital and invest in earlier phases. Statistics show that PVC firms in the EU invest only 3-4 per cent in the seed phase, whereas 50 per cent and 46 per cent are directed at the startup and expansion phases, respectively (European Commission, 2012b). In the period 2007-11, PVC firms invested 0.3 million euros per portfolio company in the seed phase, whereas the average amount invested in the start-up phase was 1 million euros. In later phases, the average was 2 million euros. Few PVC firms in the EU invest less than 1 million euros in the first investment round, regardless of the phase of the project. This relatively high amount depends on asymmetrical information about the project’s commercial potential (European Commission, 2012b). High transaction costs in the form of fixed costs to evaluate projects/firms results in small and risky projects/firms being shunned. Instead, PVC firms focus on fewer and larger investments. Due to the financial crisis, between 2008 and 2012 investments by PVC firms in the EU decreased by 45 per cent. Therefore, government venture capital funds (GVC funds) (for

example the European Investment Fund) have supplied equity capital. In 2012, GVC funds accounted for 55 per cent of all venture capital investments in the EU (European Commission, 2012b). Business angels could fill this financial gap for the early phases of small, risky projects. In particular, business angels have local knowledge that leads to lower transaction costs compared with PVC firms when seeking promising investment projects (Avdeitchikova, 2008). The importance of business angels’ activities is difficult to estimate since statistics are seldom available. However, unofficial statistics reveal that investments by angels are five times higher in the US than in the EU despite the EU’s higher GDP. In the UK and the US, approximately 56 per cent of angels’ portfolio

Threats against innovation-based growth in the EU

151

investments fail. Despite this, the annual return on their investments is 20 per cent, which depends on a few very profitable portfolio-firms. Loans to these types of project would naturally result in a negative return, as the most successful projects have no upside. How can governments intervene to fill the financial gap? One investment method applied in many countries (such as Israel) is to raise a venture capital fund in which government and private investors co-invest (each often taking 50 per cent). The fund is administered by the private investors. To stimulate private investors to supply capital, the risk-return ratio is adjusted in favour of the private investors. This method has been successful when the economy lacks private venture capital. Another investment method is having GVC funds invest in early phases. Co-investments from private investors are then required in each individual portfolio firm. Lerner (2009) argues that this is partly to use the market signals regarding which projects are promising and partly to activate private financing in a project’s early phases. Milestone-financing can often be applied to incentivize entrepreneurs. The entrepreneur who receives equity financing must reach specific milestones to receive more financing. Lerner (2009) shows that irrespective of method, funds often try to minimize risks by investing in relatively large projects and at late phases, because no fund wants to show losses. This problem may be solved by limiting the amounts that can be invested in individual portfolio firms (including follow-up investments). Research presents positive results in Sweden for this type of investment ceiling by ALMI-Invest, which invests during seed and start-up phases (Svensson, 2014). As a third investment method to stimulate private investments in their early phases, governments can offer individuals who act as business angels tax deductions if they invest in non-listed firms. These tax deductions have been applied in the UK for more than 20 years (Enterprise Investment Scheme) (Cowling et al., 2008), and this taxation policy implies that investments up to a specific amount can be partly deducted against taxable working income. It also allows capital income from these investments to be excluded from taxation when portfolio investments are kept for a longer period or the profit is reinvested in other non-listed firms. The EU Commission has been sceptical of these tax deductions, as they do not stimulate cross-border investments by business angels. However, this scepticism is built on flawed reasoning. The big advantage of business angels is their local knowledge, and they should therefore stay in their local markets to remain as effective as possible. All three investment methods detailed above are based on external financiers investing equity capital. As a result, the entrepreneur loses some control of the firm, which is one reason that entrepreneurs are reluctant to

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The European Union

consider business angels or venture capital firms (Berger and Udell, 1998). A complementary government strategy might be a supply of soft loans in the early phases, which can be written off if a project fails (Svensson, 2014). However, experience show that these types of loan are characterized by moral hazard and that the government will get back a maximum of 40-50 per cent of the loan stock due to the high failure rate. This system has been applied and evaluated in the Netherlands and Sweden.

THE NEED FOR REFORMED INTELLECTUAL PROPERTY RIGHTS Governments have three main reasons to offer IPR to firms and individuals in the form of patents and copyrights (Lévéque and Méniére, 2004): e @ e

To offer incentives to create and commercialize new products, processes and artistic works To disclose, spread and standardize new knowledge To facilitate contracts for the licensing and ownership of knowledge, allowing the most efficient agent to bring an invention to the market.

While inventors and artists are incentivized to create and commercialize,

patents and copyrights also aim to spread knowledge that allows more innovations to be introduced into the market. This gives consumers more product alternatives and lower prices, increasing welfare. Van Pottelsberghe (2009, 2010) demonstrates that the patent system in Europe has been significantly costlier and more fragmented than in the US and Japan. @

@

When a patent has been granted by the European Patent Office (EPO), it must be translated into the languages spoken in the countries where the owner wants the patent to be valid. These translation costs are high. Renewal fees must be paid in each country. An EPO patent that is renewed in 13 Member States over 10 years costs seven times more than a US or Japanese patent.

e

There is no single European court for patent litigation. Patents with a particularly high value are often litigated. If parallel litigations occur in different European countries, then the litigation result can

e@

also differ. When a patent is granted by the EPO, national patent offices must follow the decision. However, if an EPO patent is refused or no EPO

application has been delivered, then the inventor may have the patent

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granted in individual EPO countries if the applications have been posted to national patent offices within the priority year. This fragmented process has created substantial uncertainty for owners of EPO patents, which has a negative effect on both R&D investments and innovation in Europe. The fact that individual patent offices also grant patents independent of the EPO implies that the quality standard of patents may differ across countries. Therefore, a ‘unitary patent’ has been proposed, for which all applications are accepted in English, French or German. Translation across the three languages should be automatic via a computer program, making it free of cost. The unitary patent will have a single renewal fee, a single ownership right and a single court for litigation (Unified Patent Court). The proposal has been ratified by the European Council and the European Parliament, but some countries (Spain and Italy) have challenged the proposal. The EU has rejected those claims and chosen to continue with the proposal. Proposals for the renewals fees of the unitary patent indicate that patent costs will be reduced by 80 per cent for the inventors — conditional on the patent being applied in all Member States. Several legal scholars have been sceptical of the unitary patent (for example, Ullrich, 2015). They argue that litigation may become more fragmented when some countries choose to participate in the new system while others remain outside. The new court’s jurisdiction is incomplete, and the litigation rules are therefore considered tricky. Those holding IPR certainly wish to have protections that are as strong as possible, whereas consumers want weak protections. Since consumers and producers have different agendas, designing strong IPR that have the desired effects is often a balancing act for government (Lévéque and Méniére, 2004). A government has three main instruments in managing IPR: length, breadth and height. With a few exceptions, patents have a length of 20 years, creating a self-regulated mechanism. Patents are only valid if the owner pays the renewal fees. The development of copyright is far more intimidating and alarming (Lévéque and Méniére, 2004; Svensson, 2012). Through intense lobbying by large media corporations, the length of copyright in the US was extended from 50 to 70 years after the death of the artist (practically 100 years after the creation of the artistic work) in the 1998 Copyright Term Extension Act. Europe has followed suit and extended the length of copyrights. In 2003, the prolonged protection was tested in the US Supreme Court in decision 537 U.S. 186 (Eldred v. Ashcroft). Although 17 well-known economists (including Akerlof, Coase and Arrow) strongly argued against the prolonged protection, the court affirmed the law, which had been backed by the

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media firms. The economists argued that incomes far in the future would have a low present value and therefore offer few incentives for new creation. The long protection would result in substantial welfare losses in the form of higher consumer prices and fewer product alternatives. Artistic works that are protected too strongly (for too long) restrict other individuals from improving existing works, which otherwise would benefit society as a whole. Other scientists (Liebowitz and Margolis, 2005) later supported the prolonged copyright, but their arguments are weak. Patents versus copyrights have other issues as well. Copyrights certainly have narrower protections that are only valid for how the idea is expressed, but copyrights are also valid for derivates and applications. Furthermore, artistic works often require less investment than patented inventions. Finally, digitalization has allowed producers to confine consumers to exclusive user contracts, which prevents ownership transactions of the products. These facts motivate weaker copyright protections than are currently in place. IPR are only effective when monitoring and enforcement work (Svensson,

2012):

rules,

laws

and

institutions

are

required.

However,

the owners of IPR have the responsibility of monitoring and detecting infringement. While a dispute over a detected infringement may result in litigation in court, empirical observations reveal that this occurs in only a small fraction of reported patent violations. This is primarily due to the high costs of litigation. In the US, a patent litigation costs between | and 3 million US dollars. The costs in Europe are lower, ranging between 50000 and 500000 million US dollars, but litigation may occur in several coun-

tries. In other words, the litigation may cost more than the value of the patent. Unsurprisingly, amicable settlements are common. Small firms and inventors — the most innovative agents — are particularly disadvantaged visa-vis large firms due to these high litigation costs. Empirical research has shown that the probability of an infringement resulting in court litigation is higher if the patent is owned by a small firm or an individual inventor. Many infringers expect that small patent owners will be unable to cover the high litigation costs. General insurance against infringement does not currently exist in the market, as the premium would be too high. Thus, there is a demand for government protection of small firms and individuals. Several problems with IPR arise as trade and investments are globalized. Most countries have adequate legal protections, and these rights have been protected internationally by the WTO TRIPS agreement for the past 20 years (OECD/EUIPO,

2016; Frontier Economics, 2017). However, many

countries (for example, China) have little or no enforcement of IPR laws. This may cause firms based in the EU to avoid sales or investment in these countries, resulting in lower growth in the EU.

The development of artistic works has partly left the legislation behind

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since the TRIPS agreement was signed 20 years ago (Svensson, 2012; OECD/EUIPO, 2016). Most artistic works are currently produced in digital form and can easily be illegally copied almost cost-free to maintained quality. Furthermore, the innovation of the internet has made the distribution of this type of pirated material cost-free. These problems exist both within and outside the EU. The piracy of goods and the infringement of brands have also become more advanced and less costly. Piracy and brand infringement accounted for 2.5 per cent of world trade, or 461 billion US dollars, in 2013 (EUIPO, 2016). This is an increase of more than 80 per cent since 2008 (Frontier Economics, 2017). Therefore, increased

sanctions should be passed against countries that do not enforce IPR rules from the TRIPS agreement. Other remedies could include increased cooperation between customs authorities in different countries and improved coordination between countries and their authorities.

THE UNIVERSITIES AND THE SUPPLY OF COMPETENT R&D PERSONNEL Governments can undertake R&D at their own laboratories or in universities, which are mainly financed by public sources. One of the main purposes of laboratories is to conduct R&D in public good sectors (defence, environment and energy). These institutes (for example, the RISE institutes in Sweden) also perform R&D on behalf of private firms for a subsidized cost. Universities primarily perform basic research, which can be used by others later. They have a more independent agenda than government laboratories, making them less useful in handling government directives. In most OECD countries, 35-65 per cent of government R&D financing is directed to universities. However, some countries (for example, Sweden, Denmark, Switzerland, the Netherlands and Ireland) allocate as

much as 70-85 per cent to universities. Research has been unable to determine the optimal level. R&D at universities may affect economic growth through several channels (Salter and Martin,

1999). An important function of universities is

to spread R&D results freely. This is accomplished through international scientific journals that are available to everyone. Thus, new R&D

results

and methods are spread to other scientists and to the business sector. Furthermore,

when

undertaking

R&D,

university scientists are further

educated, and their ability to absorb new knowledge is improved. This absorptive capacity is particularly important for the ability to utilize others’ research results. Perhaps the most important role of universities is to educate a pool of scientists and students who can be employed by

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the business sector. These scientists then bring their knowledge to other sectors (outside the university sector). Empirical research has shown that both government spending on university education and the number of university graduates per capita have a positive and significant impact on the number of scientists in the business sector. The R&D results developed at universities can also be patented or sold/licensed to external firms, which in turn increase their productivity. Alternatively, university scientists themselves can start a firm to exploit their new knowledge.

In both cases, the university scientists need assis-

tance. At many universities, technology licensing offices offer support in patenting applications, networking with firms and licensing contracts. The ownership structure of university R&D results is often crucial in supplying the scientists and/or the university with incentives to attempt commercialization. Exclusive ownership for the scientists (as in Sweden) does not nec-

essarily offer the best incentive for commercialization because universities will be less motivated to assist in that process. Some general conclusions about EU universities are offered here (European Commission, 2012a). Scientists often move from universities to the business sector, but the movement in the opposite direction is rare and needs to be improved. Although mobility of students across borders has increased, too few universities employ professors and scientists applying from outside their own country. In addition, universities do not allow their own scientists to gain experience at universities in other EU countries. One obstacle to mobility is that many research grants can only be awarded to domestic scientists and require that the R&D be performed domestically. Thus, many research grants are not mobile. Governments also need to start allocating their financing of university research more competitively (Svensson, 2009). They should establish requirements for international publications, and establish cooperation with other EU universities as well as the business sector. This will improve R&D quality, create internationally competitive universities and direct university R&D to sectors with a high social return. Advantages of this include possible increases in cost efficiency, incentives to produce high-quality research, university flexibility, government

oversight and incentives for

universities to assist in commercialization. Only a handful of EU countries have used this method to incentivize universities to perform. Too many EU countries allocate R&D resources to universities without any success criteria. Therefore, university scientists have few incentives to participate in European networks or to produce world-class R&D. Increased competition favours large and established universities. However, increased compe-

tition also brings disadvantages. Applications are time consuming for both government administrators and university scientists. More importantly,

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long-term and risky R&D is not favoured. Evaluations with short intervals give scientists incentives to produce ‘salami R&D’,

that is, the results of

R&D are divided up across many publications.

A MORE RAPID PACE OF INNOVATION TO AVERT THE THREATS AGAINST ECONOMIC GROWTH New knowledge and technology created through R&D is the most important production factor for economic growth. Entrepreneurs play a crucial role in this growth by introducing works and inventions as innovations in the market. Thus, consumers are offered more product alternatives (product innovations) and lower prices (process innovations). However, in

a free market, firms will underinvest in R&D due to spillover effects and incomplete capital markets. Governments have several instruments to solve these problems, such as IPR, government R&D

financing and innovation

financing (loans, venture capital) to the business sector as well as their own basic research at universities and government laboratories. The EU has fallen behind some competitors (for example the US and Japan) both with respect to the input side (R&D investments and R&D personnel) and the output side (patent applications) of innovation. Some other countries (for example China) are quickly nearing the EU. If the EU cannot match the pace of innovation in competing regions, then growth will not be the only thing at risk; firms in the EU could lose competitiveness and both employment and productivity could fall. Despite the European Commission’s ambition to coordinate the efforts of Member States in innovation and growth through EU Horizon 2020, the substantial fragmentation in policy efforts among the countries is a major problem when trying to avoid threats to economic growth. This is particularly applicable to public financing of both R&D and innovation, which vary substantially between individual countries. The rules governing the ways in which research grants are allocated to universities and the ambitions of the universities to commercialize R&D results also vary.

A POLICY FOR INNOVATION AND TECHNOLOGY DEVELOPMENT IN THE EU This chapter has shown that for the and growth, extraordinary measures and technology development. I have which measures are necessary: public

EU to maintain its competitiveness are required regarding innovation identified four important areas in financing of R&D performed in the

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business sector, public financing sity R&D. To solve the problems to spillover effects, governments should be designed according to

of business innovation, IPR and univerrelated to underinvestment in R&D due can finance business R&D. This support the following guidelines.

Public financiers should offer a combination of direct and indirect R&D support to the business sector. Direct R&D support should be offered in sectors with qualities in the public interest (environment, energy and defence). The projects should partly be financed by the private sector to indicate to government which projects are commercially promising. Tax incentives should be increase-based to avoid deadweight losses, and they should be linked to the expenditure side of the firms to maximize the number of firms that can utilize this type of support. Patent and innovation boxes should be removed. They are expensive and no evidence exists that they stimulate more R&D or innovation in the host countries. A government should finance approximately 10 per cent of total business R&D. Today, most EU countries are below this level. Thus,

increasing public R&D support in the business sector is still possible without risking serious crowding-out effects. To solve the problems associated with incomplete capital markets for risky projects, governments can assist by financing small, innovative firms and stimulating individuals to act as business angels in several ways. GVC funds should focus on early phases. Co-financing from private investors should be required. The purpose of co-financing is partly to utilize market signals about which projects are commercially promising and partly to activate private capital in early phases. Alternatively, a hybrid VC fund can be created that is financed by both government and private investors (often with each contributing 50 per cent). The fund is then administered by the private investors. The purpose is to stimulate private investors to supply capital by adjusting the risk-return ratio in favour of the private investors. This method is recommended when an economy lacks PVC firms. To prevent both these fund types from investing in late phases, a ceiling amount per portfolio firm can be established, for example, a maximum of 1 million euros. Governments could offer tax deductions to individuals investing in non-listed firms. Investments up to a specific amount should be

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deductible against taxable income. Capital income could be excluded from taxation if the portfolio investments are kept for a specific period or if the profit is reinvested in other non-listed firms. A final complementary method in the seed phase is government offering inventors/entrepreneurs soft innovation loans that are written off if the project fails. Because the design of patent rights and copyrights is regulated by international agreements, individual countries have difficulty deviating from those IPR rules. However, some problems need to be corrected.

The European patent system is fragmented and costly. The new unitary patent is a step in the right direction. All litigation will be processed in one court, and the costs for patenting will be significantly reduced. The length of copyright (70 years after the death of the artist) should be shortened considerably. This long protection results in higher consumer prices, fewer product alternatives and hampers the improvement of existing works while offering only small incentives for new creation. High litigation costs mean that small firms and inventors seldom can protect their IPR. Some form of public guarantee is desired. Piracy and its diffusion has increased alongside globalization, digitalization and the innovation of the internet. Countries that do not enforce the international agreements regarding IPR need to face more sanctions. More cooperation between custom authorities and other authorities is also needed. Also in the future, the main functions of universities should be, firstly, to

produce basic research results and new research methods that are spread freely and, secondly, to educate a pool of scientists and students who can then be employed in the business and government sectors. However, both efficiency in R&D and the probability of creating innovations (from university R&D) could be increased in the following ways. Public research grants to the universities should be exposed to competition to increase R&D productivity, create internationally competitive universities and direct R&D to sectors that serve the public interest. Scientists require greater ability to move across borders and between the academy and the business sector. This is possible through mobile research grants.

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The ownership of research results should be shared between scientists and their university. This will give both parties an incentive to commercialize the R&D results.

REFERENCES Acs, Z. and D. Audretsch (1988), ‘Innovation in Large and Small Empirical Analysis’, American Economic Review, 78 (4), 678-90.

Firms:

An

Akerlof, G.A. (1970), ‘The Market for Lemons: Quality Uncertainty and the Market Mechanism’, Quarterly Journal of Economics, 84 (3), 488-500. Arrow, K. (1962), ‘The Economic Implications of Learning by Doing’, Review of Economic Studies, 29 (2), 155-73.

Audretsch, D. and PE. Stephan (1996), ‘Company-Scientist Locational Links: The Case of Biotechnology’, American Economic Review, 86 (3), 641-52. Avdeitchikova, S. (2008), ‘On the Structure of the Informal Venture Capital Market in Sweden: Developing Investment Roles’, Venture Capital, 10 (1), 55-85. Berger, A.N. and G.F. Udell (1998), ‘The Economics of Small Business Finance: The Roles of Private Equity and Debt Markets in the Financial Growth Cycle’, Journal of Banking and Finance, 22 (6-8), 613-73. Carpenter, R.E. and B.C. Petersen (2002), ‘Capital Market Imperfections, HighTech Investment and New Equity Financing’, Economic Journal, 112 (477), F54-F72. Cowling, M., P. Bates, N. Jagger and G. Murray (2008), ‘Study of the Impact of the Enterprise Investment Scheme (EIS) and Venture Capital Trusts (VCTs) on Company Performance’, HM Revenue & Customs Research Report 44, Brighton: University of Sussex. David, P., B.H. Hall and A. Toole (2000), ‘Is Public R&D a Complement or Substitute for Private R&D? A Review of the Econometric Evidence’, Research

Policy, 29 (4-5), 497-29. De

Meza,

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and

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European Communities (2006), Creating an Innovative Europe, accessed 14 March 2017 at: http://www.eua.be/Libraries/research/aho_report.pdf?sfvrsn=0. European Union (2014), Innovation Union Scoreboard 2014, accessed 16 September

2016 at: https://bookshop.europa.eu/en/innovation-union-scoreboard-2014-pbN BAY 14001/;pgid =GSPefJ MEtX BSR0dT6jbGakZDO0000EjW60X4G;sid=dqW eWBKAPyyeWUukW_4A_3ClcXaYil_jaNc=?CatalogCategoryID=GjOKAB stSF4AAAAEjsZAY4e5L. Frontier Economics (2017), The Economic Impacts of Counterfeiting and Piracy, accessed 12 September 2016 at: https://cdn.iccwbo.org/content/uploads/sites/ 3/2017/02/ICC-BASCAP-Frontier-report-2016.pdf. Guellec, D. and B. Van Pottelsberghe (2003), ‘The Impact of Public R&D Expenditure on Business R&D’, Economics of Innovation and New Technology, 12 (3), 225-43. Hall, B.H. and J. Van Reenen (2000), ‘How Effective are Fiscal Incentives for R&D? A Review of the Evidence’, Research Policy, 29 (4-5), 449-69. Hall, B.H., J. Mairesse and P. Mohnen (2010), ‘Measuring the Returns to R&D’,

in B.H. Hall and N. Rosenberg (eds), Handbook of the Economics of Innovation. Vol. 2, Amsterdam: Elsevier-North Holland, pp. 1033-82. Kaplan, S.N. and P. Strémberg (2001), ‘Venture Capitals as Principals: Contracting, Screening, and Monitoring’, American Economic Review, 91 (2), 426-30.

Lerner, J. (2009), Boulevard of Broken Dreams. When Public Efforts to Boost Entrepreneurship and Venture Capital have Failed — and What to Do About It, Princeton, NJ: Princeton University Press. Lévéque, F. and Y. Méniére (2004), The Economics of Patents and Copyright, Berkeley Electronic Press, accessed 23 October 2016 at: http://services.bepress. com/cgi/viewcontent.cgi?article= 1001 &context=leveque. Liebowitz, S.J. and S. Margolis (2005), ‘Seventeen Famous Economists Weigh In on Copyright: The Role of Theory, Empirics, and Network Effects’, Harvard Journal of Law and Technology, 18 (2), 435-57. Myers,

S.C. (1984),

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573-92. OECD (2010), Measuring Innovation: A New Perspective, Paris: OECD.

OECD (2016), Main Science and Technology Indicators, accessed 13 November 2016 at: http://stats.oecd.org/Index.aspx?DataSetCode=MSTI_PUB. OECD/EUIPO (2016), Trade in Counterfeit and Pirated Goods: Mapping the Economic Impact, Paris: OECD Publishing, accessed 14 March 2017 at: http:// www.keepeek.com/Digital-Asset-Management/oecd/governance/trade-in-counter feit-and-pirated-goods_9789264252653-en#.WQh4idwlF9M. Robb, A.M. and D.T. Robinson (2014), ‘The Capital Structure Decisions of New Firms’, Review of Financial Studies, 27 (1), 153-79. Salter, A. and B. Martin (1999), ‘The Economic Benefits of Publicly Funded Basic

Research: A Critical Review’, Research Policy, 30 (1), 509-32. Schumpeter, J. (1911), The Theory of Economic Development, Cambridge, MA: Harvard University Press. Svensson, R. (2009), ‘Konsekvenser av konkurrensutsatt statlig finansiering universitet och hégskolor’, Ekonomisk Debatt, 27 (2), 28-32.

av

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Svensson, R. (2014), Statlig finansiering till smaféretag?, Stockholm: Timbro. Ullrich H. (2015), ‘The European Patent and Its Courts: An Uncertain Prospect and Unfinished Agenda’, International Review of Intellectual Property and Competition Law, 46 (1), 1-9. Van Pottelsberghe, B. (2009), Lost Property: the European Patent System and Why It Doesn't Work, Brussels: Bruegel Blueprint. Van Pottelsberghe, B. (2010), ‘Europe Should Stop Taxing Innovation’, Bruegel Policy Brief 2010/02. Wieser, R. (2005), ‘Research and Development, Productivity and Spillovers: Empirical Evidence at the Firm Level’, Journal of Economic Surveys, 19 (4), 587-621.

8.

Threats to personal data security: how does the EU protect its citizens? Cecilia Magnusson Sjoberg

This chapter is about how European Union (EUV) law can protect personal integrity by ensuring that personal data is handled in a secure fashion. This is of particular importance nowadays, as the digitalization of society brings with it an increasing number of problems relating to information security (see Andersson and Nordén, 2015). The EU plays a crucial part in this development, taking on two partially contradictory roles. One appears in EU legislation regarding the protection of integrity as a human freedom and right. The other relates to the fact that the EU, in parallel, is

promoting protection of integrity on purely commercial grounds. A wellfunctioning — digital — single market requires that protection of integrity is harmonized between the Member States, so that variations in the level of

protection do not hinder e-commerce or e-government. Protection of personal integrity may be highly significant to individuals, which can be apparent in both everyday situations and more rare ones (see, e.g. Lundblad, 2008; Blume, 2016). Being allowed to fly into a foreign

country can require, for example, electronic transfer of passenger information between different nations, as well as physical security checks. This chapter does not focus on the protection of bodily integrity, but rather on integrity in the moral sense.! The chapter thus focuses on how authorities, businesspeople and individuals process personal data within the legal framework of the EU. This delimitation of the topic means among other things that the particular questions relating to crime prevention and defence intelligence operations are only touched on briefly.* The delimitation is necessary, but should not be seen as a marginalization of the effect of states’ supervision of each other, and surveillance of individuals, on

protection of personal integrity (Schartum, 2010). Dealing primarily with informational moral integrity, as in this case, could be seen as highlighting a micro-perspective only. However, this is not the case. Protection of integrity in the processing of personal data is a critical success factor for the entire Union and must therefore be investigated also from a macroperspective in relation to the EU’s legislative development. In more 163

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tangible terms, this has its explanation in the fact that secure digital information provision is a cornerstone of a well-functioning modern society and that information often contains some form of personal data. Expressed in a different manner, the background to the choice of topic and perspective is that “big brother’, in the form of authorities and other bodies granted executive powers, is increasingly keeping track of citizens, for instance through usage of sensors, joint processing of personal data from different data registries and analysis of larger amounts of data (big data) (Greenstein, 2017), while ‘little sister’ is monitoring private activi-

ties in social media and the ‘cousin from the big city’ offers various ‘apps’ based on automated customer profiling through ‘data mining’ (Colonna, 2016). This picture should include an awareness that what can be called ‘the modern family’ need not concern itself with national borders to more than a limited extent, as activities often take place in global networks. The internet is naturally a digital foundation in this context, both through the web as such and in the form of so-called cloud computing.’ Of course, this is also true of various other information and communication technology (ICT) services that make use of the benefits of digital networks, and their

dynamics, flexibility and scalability, regardless of geographical location. The rough status description above highlights a need for information security. Without technical and organizational security measures, we are left with a vulnerable society that cannot protect the personal integrity of individuals against the threats that ICT carries with it. It makes no difference how many rules there are requiring purpose limitation, proportionality and authenticity, if information handling as such is not secured through the use of access control, encryption, logging and incident reporting. The initial reasoning in this chapter can be summarized in the research question: how does the EU protect its citizens’ personal data against the threats of the digitalized society? The answer is, as has already been implied, highly nuanced and requires consideration of personal integrity, digitalization and law. The research question of this chapter relates to the overall theme of the book regarding the EU and the new threats to security, by focusing on one of the most sweeping changes of the present day: the development and usage of modern ICT in cross-border digital networks. This development is obviously not occurring in a vacuum, but rather in a society whose openness is being challenged by unrest from both near and afar. Cyberattacks are just one example of when vulnerability of a society is directly connected to digitalization. However, deliberate attacks are not the

only problem. Interruptions and various incidents can also occur as a consequence of incompetence, carelessness or unforeseeable events of other kinds. When basic societal functions, such as power grids or healthcare and

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connected prescription systems, are paralysed, it not only affects individual citizens, but also the possibilities of an entire country to defend itself. On the back of this, various initiatives aimed at increased control often seem

justified. The price to be paid is an expanding surveillance society. While the EU’s citizens gain from protective mechanisms within civil society, its Member States must also ensure that there are adequate mechanisms for control over various information

streams,

both nationally and interna-

tionally. Thus, there is a need for a holistic perspective or comprehensive approach (Svantesson and Greenstein, 2013). The chapter first focuses on personal integrity in cross-border digital networks. Thereafter, information security is discussed as crucial for integrity protection. This part of the chapter is arranged so that it largely focuses on the EU’s legislative development, with its shift from the Data

Protection Directive (95/46/EC) to the General Data Protection Regulation (GDPR) (EU) 2016/679 applicable as of 25 May 2018. Next, the chapter highlights the Data Retention Directive (2006/24/EC). A summary policy recommendation based on the EU’s legislative development is presented in the concluding section.

PERSONAL INTEGRITY IN CROSS-BORDER DIGITAL NETWORKS One is easily surprised by the amount of discussion and debate there has been on personal integrity, in light of the fact that no-one has succeeded in drawing up a satisfactory definition. The term is positively charged for most people. At the same time, one must not forget that protecting the integrity of one person can infringe on the freedom of information for another.

Still, within the EU,

it is uncontroversial to consider personal

integrity as a value based on democratic foundations and protected in all Member States. In attempting to pinpoint and describe the meaning of personal integrity, reference is often made to the sphere theory, which states that everyone has the right to a personal sphere in which they are protected and should not have to tolerate trespasses. It is important to adapt integrity protection to the type of personal data or data category that is being processed. Information about disease and health, for instance, is often seen as more

sensitive than information regarding a person’s address or phone number. For people living with protected identities, the opposite could be true. The so-called contingency theory is yet another way to understand protection of integrity. According to this theory, the need for integrity protection is largely dependent on events in work life or private life, for instance.

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While protection of personal integrity seems desirable, it can also be onerous. This is the case for both authorities and commercial parties, the operations of which can sometimes benefit from avoiding costly measures for protection of integrity. At an EU level, there are explicit needs to establish provisions on the protection of individuals, as a commercial prerequisite to the free movement of personal data on the single market. This is apparent, for instance, in the EU decision of 27 April 2016 on a data protection regulation to replace the Data Protection Directive currently in force, that is, Directive 95/46/EC of the European Parliament and

of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. One consequence of this is that the Swedish Personal Data Act (SFS 1998:204), which implements the Data Protection Directive,‘ will also be repealed on 25 May 2018. This is because the GDPR has direct effect in the Member States, that is, without requiring any implementation in national legislation. The issue now facing the EU is the creation of mechanisms to protect personal integrity in cross-border digital networks. Even without understanding the technology behind the information streams of today, it is clear that the geographical boundaries that formerly characterized society have gradually been loosened. The internet is not tied to any particular geographical area or any specific sector in society. Digitalization thus entails challenges for personal integrity, in contexts relating to both public and private law. The digitalized government is gradually becoming more mobile, with service suppliers providing multinational support. Digital information exchange between authorities and externally, to individuals within a Member State, between Member States and to countries outside the EU or the European Economic Area (EEA), often brings to the fore

questions relating to protection of integrity. For instance, when citizens themselves initiate matters requiring information exchange between authorities, which might relate to anything from taxes or social insurance to establishing a business or the administration of justice. Today, it must be seen as a matter of course that authorities also need routines for direct access to the databases of other authorities. Given this development, it is not surprising that there are conflicts of interest, particularly in regard to costs, between efficiency and protection of integrity. This relates to the legal prerequisites at hand simply for being allowed to process personal data, for meeting requirements on data quality, access, electronic identifi-

cation, authentication and so on. The significance of the duty of information as a basic principle of data protection is apparent from the preliminary ruling of the Court of Justice of the EU (CJEU, Third Chamber) of 1 October 2015 in case C-201/14

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(Smaranda Bara and Others v Casa Nationald de Asigurdri de Sdndtate, CNAS and Agentia Nationala de Administrare Fiscala, ANAF). The case relates to the exchange of personal data between authorities in Romania, without sufficient information to the data subjects. In its judgment, the CJEU firstly makes clear the obligation of authorities to inform data subjects about the transfer of personal data to other authorities, which in turn process these data, for instance through joint processing of person registries (Magnusson Sjoberg, 2013). Secondly, the CJEU states that any exception to the obligation of information must be specifically regulated in national legislation. Within the private sector, it is obvious that many of today’s commercial digital networks are at the very least international if not global in their reach. For instance, Facebook is a service provided by an American company, which means that disputes with account holders and others often fall under American jurisdiction and under the law of the state of California. The company, however, is established in Ireland and must also therefore adhere to that country’s national legislation, including its implementation of the EU Data Protection Directive. In the final reckoning, the national legislation of the Member State in which legal problems may have arisen will also be applicable. In more purely business-related contexts, the new digitally based business models, for instance for online payment, give rise to legal questions that are already well known, relating to jurisdiction, choice of law, recognition of judgments and enforcement. This does not preclude that interpretation and application of the legislation in force will increasingly occur in cross-border digital environments that are new to lawyers, not least in the administration of justice in courts. Connecting a line of reasoning on societal development to occurrences in either the public or the private sector is, of course, a simplification of

actual circumstances. It could even be debated whether a legally oriented analysis regarding protection of integrity would be better served by focusing on what occurs in the intersection between the public and the private, with national borders as a central starting point. The EU legislation on data protection starts from the processing of personal data in society as such, regardless of whether the person in charge has a position in the public or the private sector. Further, it may be the case that certain provisions are relevant only to commercial

applied only by those active in Protection Directive as well as legal act thus contain extensive ries of controllers. This reasoning shows that tects its citizens’ personal data

parties, while others are to be

the public sector. This is true for the Data the GDPR. Both the current and the new and complex provisions for various categothe overall question of how the EU proagainst the threats of the digital society is

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challenged by not only cross-border information streams, but also by the fact that the societal platform in itself could be called ‘priblic’. Authorities produce their own data, gather data from individuals and companies, and process such data in parallel or sequentially. In this context, yet another dimension to protection of integrity becomes clear. It is not always obvious which considerations should be the basis for (commercial) re-use

of documents from the public sector as open data. The framework given within EU law is the so-called PSI Directive (2003/98/EC, ‘Public Sector

Information’) and its Swedish counterpart in the Act (2010:566) on re-use of documents from the public sector (the PSI Act). The main question in this first section has focused on the effects of cross-border digital networks in ‘priblic’ societal sectors. In regard to EU citizens’ personal data protection, the analysis reveals the importance of gaining trust for the new applications that modern ICT brings about. How this is achieved in legal practice is a question that originates in the legislative bodies of the EU, the CJEU and ongoing administration of justice within the Member States (see Bakardjieva Engelbrekt et al., 2017).

INFORMATION SECURITY AS A PREREQUISITE TO PROTECTION OF INTEGRITY When discussions take place in English, there is often some confusion between those with an Anglo-Saxon language background and others as regards the terms ‘privacy’, ‘data protection’ and ‘integrity’. Without venturing into deeper analyses here, it is useful to have some guidelines to assist navigation among the many terms. The fact is that the structure and language used in legislation on protection of integrity and the substantive provisions connect the overall purpose, to protect personal integrity, with requirements that the person in charge must take appropriate technical and organizational security measures. Information security is thus a prerequisite to protection of integrity, while security measures are obviously needed to achieve data protection in and of itself. This is true for both personal data and information that cannot be connected to any individual. Data protection is, in other words, a prerequisite to personal integrity and is also used in reference to various legal regulations. But the word integrity, when used in purely security-related contexts, usually refers to the correctness of data: a particular aspect of data quality. We can conclude that despite different starting points the various terminological paths converge. Personal integrity can be interpreted as the right to a personal sphere. When it comes to personal integrity in the moral rather than the bodily sense, correctness of data is a crucial factor

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to prevent (unlawful) infringement. One way to achieve this is through various kinds of data protection. Data protection is also the foundation of security efforts. It is on the back of this that the EU legislation in regard to ‘(personal) data protection’ has crystallized, with the overall purpose of achieving protection of personal integrity — ‘privacy’ — in processing of personal data, for example through prescribing different kinds of security measures. The reasoning thus far reveals that there is a set of core questions in which the protection of moral integrity faces the need for information security and vice versa. Given that this chapter is focused on legal aspects, the question of how to regulate becomes central. No advanced investigations are needed to understand that requirements on security are a recurrent element in recent EU legislation. When it comes to legal security aspects connected to protection of integrity in processing personal data, such legislation does not primarily focus on technical specifications regarding firewalls or the length of encryption keys. The regulatory approach is usually much more general and thus independent of the technology in question. One example is Article 17 in the Data Protection Directive, which regu-

lates security of processing. The provision includes the requirement that the controller implements appropriate security measures that are both technical and organizational in nature. The assessment of what is appropriate should be based on state-of-the-art technical protection and implementation costs, alongside a risk analysis of the nature of the data that are processed and need protection. When the controller permits someone else, a processor, to process data on his or her behalf, this must be specifically regulated and followed up. In the GDPR, the corresponding provision is found in Article 32, although in more extensive and specific wording. Taking into account various factors in the surroundings, the controller and the processor shall take security measures to ensure a security level that is appropriate in relation to the risk. According to Article 32.1, these measures can entail:

pseudonymization and encryption; the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services; the ability to restore availability and access to personal data in a timely manner in the event of a physical or technical incident; or a process for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures meant to ensure the security of the processing. According to Article 32.2 GDPR, in assessing the appropriate level of security, account shall be taken of the risks that are created by processing, in particular through accidental or unlawful destruction, loss, alteration,

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unauthorised disclosure of, or access to personal data transmitted, retained

or otherwise processed. One way for the controller and processor to demonstrate compliance with the requirements in Article 32.1 is, according to Article 32.3, through adherence to an approved code of conduct under Article 40 or an approved certification mechanism under Article 42. Finally, Article 32.4 makes clear that the controller and processor shall take steps to ensure that any natural person acting under the authority of the controller or the processor and who has access to personal data does not process them except on instructions from the controller, unless he or she is required to do so by EU or Member State law. While the provision presented above is not reader-friendly in its structure, the language used is relatively comprehensible even for a layperson. This does not mean that an IT specialist can use the text above as the basis for a technical implementation aimed at personal data protection. The need for further specifications is obvious. Given the challenge faced by the legislator in keeping up with fast technical developments and connected e-applications, a certain level of vagueness and ambiguity is necessary in describing the requirements of security related to processing, so that current security solutions do not become outdated before they are even put to use.

Cloud computing serves to illustrate here how IT has paved the way for various new business models. Leaving aside the discussion about whether this kind of solution is a technical innovation, there is no doubt

that it is a modern type of outsourcing, often with international elements (offshoring). There are several kinds of cloud services on the market. The most common entail connecting a cloud service solution to some kind of service function, often categorized as ‘software as a service’ (SaaS), ‘platform as a service’ (PaaS) or ‘infrastructure as a service’ (IaaS). Another

characteristic of cloud services is what is often described as ‘IT on tap’ or ‘elastic IT usage’, meaning that the client pays only for actual usage of the technology. Hardware does not need to be physically located in the client’s offices, with the relevant software installed on computers. The ideas that permeate this technology usage are mainly streamlining, rationalization and economization. Here, the Commission has, in a communication from

2012, stated that it aims to enable and facilitate faster adoption of cloud computing throughout all sectors of the economy, to boost productivity (European Commission, 2012). Economic incentives are, in other words, a driving force in choosing solutions for information management online. In this context, cloud ser-

vices seem particularly attractive as they, by their very nature, remove the requirement of determining in advance which data are to be processed, where (geographically), by whom and when. However, this leads to some

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legal challenges in matters of information security connected to processing of personal data. As the legal status is partially uncertain, some suppliers avoid being classified as parties offering this kind of service. Others see benefits to adopting this trend on the information market. Cloud computing is used in both the public and private sectors. A distinction is sometimes made between so-called public and private clouds, but this should not be confused with what is a public or a private task. Rather, the term ‘public’ in this context refers to a standardized solution offered under commercial conditions. That is, the idea is not to offer tai-

lored IT solutions, but to attract larger client segments. Examples of such public cloud services are: Dropbox, Google Apps for Education, iCloud, Microsoft Azure and ProjectPlace. Private clouds are adapted to the specific needs of a client or clients. Cloud services can also be joint, by being limited to a group of clients. Furthermore, there are many hybrid solutions. Practical experiences and theoretical analyses show that the legal aspects of cloud services vary slightly, depending on whether the services are related only to running systems, or serve as support for everyday office work. If the services run IT systems, provisions on procurement,

intel-

lectual property rights and contractual aspects regarding the conclusion and termination of agreements must be taken into account. When services are related to document management at a user level, legislation and provisions relating to protection of personal integrity and confidentiality, for instance, take centre stage.

Security becomes a central matter when a legal need arises to determine how the actual usage of cloud services is applied in practice as regards processing of personal data. National supervisory authorities, such as the Swedish Data Protection Authority, have both individually and within the

framework of the so-called Article 29 Working Party reviewed the usage of what are also called computer clouds (see, for example Opinion 5/2012 of 1 July 2012). The name of this working party has its basis in Articles 29 and 30 of the Data Protection Directive, which state that there shall be

such an independent advisory group of representatives from the supervisory authorities of the Member States. When the GDPR comes into force, an entirely new system for control of and collaboration on data protection will be implemented.

For instance, the Article 29 Working Party will be

replaced by the new, independent European Data Protection Board, which will be responsible for several tasks under the management of a chairperson (see Articles 68-76 GDPR). The guidance which has and will be drawn up by the Article 29 Working Party before the GDPR comes into force can be assumed to remain relevant, although to varying extents. As regards the usage of cloud computing, the following questions have been highlighted by the Article

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29 Working Party and national supervisory authorities. Data protection legislation (here used synonymously with integrity protection legislation) is based on a strict division of roles primarily between the controller and the processor, as well as with regard to who is seen as a data subject and as a data protection assistant tasked with representing the data subject’s interests (see Articles 2, 18.2 second indent and 20.2 second indent in the Data Protection Directive, and Articles 4 and 37-39 GDPR).

The controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data. The processor means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller. Who is to be seen as the data subject is explained indirectly through the definition of personal data as any information relating to an identified or identifiable natural person (the data subject). One problem here is the tendency towards a reversed division of roles between the controller and the processor. The actual relationship between, say, a large commercial party with an American background and a small municipality in Sweden does not easily fit with the legislative requirements. In practice, suppliers of cloud services to an overly large degree set the conditions for information processing. This has related, for instance, to determining retention times, data usage

for their own product development and having the possibility of unilaterally changing contractual terms. A fundamental principle for protection of personal integrity in processing of personal data is fulfilment of the duty to provide information to the data subject (Articles 10-12 in the Data Protection Directive and Articles 12-15 GDPR). The duty to provide information consists of two parts: firstly, such information that the controller is to provide without prompting, and, secondly, such information that the controller is to provide fol-

lowing a request from the data subject. Here too, flaws are apparent in practice. For instance, the controller of the cloud service has not ensured that the information is complete as regards who performs the personal data processing or as regards the possibility for the data subject to demand rectification. Another circumstance to be mindful of is that processing of personal data may occur in countries outside the EU/EEA. So-called third-country transfers (Kuner, 2013) require particular assessments, for instance regarding the adequacy of the level of protection in the receiving country (Articles 25-26 in the Data Protection Directive and Articles 44-50 GDPR). The effect of this provision is that the business benefits of cloud computing, which are based on geographical flexibility as regards the place of processing, are the subject of limitations in EU legislation (see further

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below). Another factor that is at least equally crucial is the security of processing (Articles 10-12 in the Data Protection Directive and Articles 32-34 GDPR), in particular when someone else, primarily a processor, processes personal data on behalf of the controller. Aside from the basic requirement that the processor takes appropriate technical and organizational security measures, he or she must also sign a written contract.

This contract shall make clear that the only personal data processing permitted is that which is performed in accordance with instructions from the controller. The controller must also have the possibility to actually follow up on observance of the security requirements. This does not necessarily mean that controllers must travel the world to visit server halls, but when follow-up reviews cannot be performed on site, other solutions must

be used. These might entail access to and review of access control logs, for instance. If a controller hires more than one processor, contracts must be

concluded with all suppliers. From a contractual point of view, national supervisory authorities allow a main supplier to enter into contracts with one or more subcontractors, using a power of attorney. However, both the main supplier and any subcontractors are seen as processors in the eyes of the law, with the controller responsible for the accompanying duties. Of course, this does not preclude the existence of pure business agreements regarding division of responsibilities between different suppliers, which must be regulated in accordance with civil law, in the usual way.

The question of the business relationship between the main supplier and any subcontractor(s) can be seen as overly detailed to warrant special attention here. Insight into the legal division of responsibility among those processing personal data in computer clouds is, however, important if this increasingly common business model is to function in accordance with the law. On the whole, usage of cloud computing can be fitted into EU legislation, but the regulations do not work in a satisfactory manner in practice. One reason that the new business models with attached technology cannot be used to their full extent is found in dated legal attitudes from the time before the internet. There is a demand for new legal instruments that enable management of the need for security measures in processing personal data. At the same time, the EU data protection legislation appears to be technology-neutral as regards certain basic principles of data protection; that is, it does not regulate or prioritize certain types of technical infrastructure above others. This is positive in itself, as overly technical provisions would run the risk of quickly becoming outdated. A problem in this context is that certain cornerstones in regard to division of responsibility in processing personal data remain but must now fit into a completely different context from when the provisions on controllers and processors were drawn up. For this reason, among others, the existing technology-neutral

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legislation cannot be applied in full. This complex of problems, it can be assumed, will persist even after the GDPR becomes applicable. Some technologies, mainly in the field of information security, such as pseudonymization and encryption, have certainly left their marks in the regulation. However, some matters relating to the balancing of a more permissive technology-neutral approach and a more technology-specific, tangible one with a shorter ‘best before date’ remain pending.

AN EU LAW APPROACH What, then, might constitute an appropriate EU law approach, based on the legislation in force, but still forward-looking? This could also be expressed as there being certain components in the current legislation that might work as building blocks for legal development, when new conditions and methods for protecting personal integrity are being created. Here, a pyramid-like structure begins to crystallize. If the base consists of well-established general principles in a society resting on democratic foundations, the top consists of more topic-specific aspects of a system for integrity protection. The approach can be described, more exactly, as a layered collection of values with a gradually increasing degree of concreteness. At the base of the pyramid, thus, are several (practically obvious) values in the form of human freedom and rights, including protection of personal integrity, which in this context also works as a lever for the freedom of movement for goods, services, people and capital on the EU single market (layer 1). Realizing these overall goals requires the rule of law, efficiency and commercial dynamism (layer 2). Next, the security perspective comes into play (layer 3). This pertains to counteracting, ameliorating and repairing the consequences of vulnerabilities and insufficient security. Violations of integrity, defamation, identity theft and insufficient consumer protection are just a few problems. Among the vital security components are confidentiality, correctness (data integrity) and availability. In this context, it is also common to refer to the need for traceability, non-denial and responsibility. With security as a sounding board, the next layer (layer 4) consists of a number of internationally recognized data protection principles, with basic requirements on processing of personal data (Article 6 Data Protection Directive and Article 5 GDPR).

Here, we find reflected

the central principles of purpose limitation, finality, proportionality and, not least, security in processing of personal data. In brief, the principle of purpose limitation means that the controller must have a purpose with the planned personal data processing. Such a

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purpose may not be overly general in its wording, rather it must be clearly specified. It is, in other words, not enough to give as the purpose, for instance: ‘processing of personal data connected to employment’ or ‘future research’. The

latter has, however,

led to general debate and garnered

the attention of the Swedish legislator in connection with the so-called LifeGene project. The project is managed by the Karolinska Institute and is a longitudinal research study of the relationship between genetics, environment and health. Ahead of the new rules from the EU, the legal

status is uncertain as regards the level of specificity required in a purpose limitation.’ In this context, it can be noted that Recital 33 in the GDPR

through the following wording opens for wider scope of consent than can be assumed to exist today: It is often not possible to fully identify the purpose of personal data processing for scientific research purposes at the time of data collection. Therefore, data subjects should be allowed to give their consent to certain areas of scientific research when in keeping with recognised ethical standards for scientific research. Data subjects should have the opportunity to give their consent only to certain areas of research or parts of research projects to the extent allowed by the intended purpose.

From the finality principle, in turn, follows that personal data may not be processed for a purpose that cannot be reconciled with the purpose for which the personal data was originally gathered. A data subject’s data on the need for competence development may not suddenly be used as grounds for setting wages, for instance. The proportionality principle provides a framework for the amount of data, so that only the amount

needed for the purpose in question is processed. At the top of this data protection pyramid, we find various categories of personal data in a general sense (layer 5) — that is, data not related to a certain individual. According to the legal definition in Article 2 of the Data Protection Directive, which is slightly modified in Article 4 GDPR, personal data means any information relating to an identified or identifiable natural person. This definition might seem self-explanatory at first glance, but on closer inspection proves to require the drawing up of complex limitations. That

names

and

personal

identification

numbers,

for instance,

are

directly identifying personal data, while apartment numbers or customer numbers are indirectly identifying personal data, is understandable. What is, in practice, much more complicated is drawing the line between, on the one hand, indirect personal data in the form of, for instance, unidentifiable

personal data and, on the other hand, completely anonymous personal data. The first category consists of various types of personal data that have

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been encoded, for instance based on encryption or pseudonymization. In the second category, the information is no longer personal data in the legal sense, given that anonymous personal data cannot, even indirectly, be connected to a natural, living person. This means it is not personal data and the Data Protection Directive and GDPR therefore do not apply. It should be noted that the terminology used varies widely, so that the meanings of the terms ‘unidentifiable’ (still personal data) and ‘anonymous’ (no longer formally personal data) are sometimes inverted in legislative contexts, legal scientific studies and other aspects of legal practice. The importance of clarifying the distinction between different degrees of identifiability cannot be overemphasized.° Another categorization to be observant of is that distinguishing (regular) personal data from sensitive personal data, as defined in Article 8 of the Data Protection Directive and Article 9 GDPR. This provision states that the main rule, from which several exceptions are made, is the prohibition of processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, data concerning health or data concerning a natural person’s sex life. According to the new GDPR provision, special categories of sensitive personal data also include genetic data, biometric data for the purpose of uniquely identifying a natural person, as well as data concerning a natural person’s sexual orientation.’ Yet another categorization targets the sensitivity of the integrity of personal data. This aspect is brought to the fore, for instance, in relation to reviewing the security of processing. Factors relevant to such assessments include safety measures in the form of technically based access control as well as management of authorization within a certain organization. Another factor relevant to the context is the amount of personal data processed and the sensitivity of their integrity in general.

DATA RETENTION Of course, some data that are not personal data in the meaning of the law might still be worthy of protection from a security perspective. This is true not least for data connected to trade secrets being managed in the digital business systems of the private sector. In such contexts, including when retention of traffic data comes to attention, the perspective on protection of personal integrity changes as the state becomes a central stakeholder with suppliers of electronic communications as its ‘henchmen’. One example that clearly illustrates the complex connections between EU law with its legislation on the one hand and the freedom for national

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legislation in Member States on the other hand, is related to data retention

and integrity. The circumstances surrounding the EU legislation, in the form of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, open the field for discussion. The question at hand, regarding the apparently legal conditions for retention of traffic data, has for a long time been characterized mainly by various legal standpoints regarding the balance between security and protection of integrity. More precisely, this relates to the conditions under which telecommunications operators can be charged with retaining traffic data, and for how long, with a connected duty to present in the future such data to authorities for purposes of crime prevention. In particular, the fact that the CJEU, in the joined cases C-293/12 and

C-594/12 (Digital Rights Ireland and Seitlinger and Others), declared the Data Retention Directive invalid, also changes the conditions for legal development at the national level. The stance of the CJEU originates in a request from the High Court of Ireland and Verfassungsgerichtshof (the Austrian Constitutional Court) to review the validity of the Data Retention Directive, given how it had been implemented in national legislation, especially in relation to the fundamental right to respect for private life and the fundamental right to protection of personal data, in accordance with what is guaranteed through the Charter of Fundamental Rights of the European Union. Certainly, EU law is part of Swedish law and should in principle take precedence over conflicting national legislation. Although the Court’s determination that the EU has not considered the requirements of proportionality in designing its legislation does not rule out other reasons for measures serving to fight serious crimes or keep general order. However, the scope of national regulatory freedom in this respect is still to be determined. In Sweden, this complex of problems was the subject of analysis for the governmental Datalagringsutredningen [Commission of Inquiry on Data Retention]. Already in the Commission’s introduction to its report (SOU 2015:31), it is obvious how the development of the digital information society and its need for security leads to particular balancing of interests in relation to protection of personal integrity. There is an almost built-in conflict of interests between the incentives for surveillance in various forms on the one hand and the importance of protecting the personal integrity of individuals on the other. This makes it difficult — if at all possible — to take a stance based on legal starting points regarding various considerations, which ultimately must be the subject of political assessments. It could,

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however, be argued that the Inquiry Commission makes an overly narrow interpretation of the consequences of the Court’s invalidation of the Data Retention Directive on integrity protection. Given the recent legal development within the EU, the extent of the telecommunication operators’ duty to retain data will in all likelihood be limited. The same tendency can be seen in the latest addition to the legal development, which is the preliminary ruling of the CJEU in the joined cases C-203/15 (Tele2 Sverige AB v Post-och telestyrelsen) and C-698/15 (Secretary of State for the Home Department v Tom Watson and Others). The CJEU makes clear that EU law prevents general and indiscriminate retention of traffic and location data. Member States may, however, under certain circumstances permit so-called targeted retention of such data as a preventive measure. This requires that the purpose is to fight serious crime and that the retention of data is limited to what is strictly necessary, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted. The CJEU also concludes that the access of national authorities to the retained data must be subject to prior review on the part of an independent authority and the data concerned must be retained within the EU. For Swedish concerns this means, as a consequence of the judgment of the Administrative Court of Appeal of 7 March 2017 (case no. 738014), which led to the preliminary ruling within the EU, that operators are no longer obliged to retain traffic data for the purpose of fighting crime. For this reason, Post- och telestyrelsen [The Swedish Post and Telecom Authority] had to reverse its earlier injunction against Tele2 regarding required data retention. By extension,

this has also led to the Swedish

government appointing a committee on Data Retention and EU law (dir. 2017:16). An inquiry chair has been tasked with reviewing the freedom for national legislation on the duty of telecommunication operators to retain data on electronic communication in various contexts, taking into account

the development of EU law. The relationship between EU law and national legislation is an observandum unto itself. The current Swedish rules on processing of traffic data, as well as protection of integrity and more tangible retention and other processing of traffic data, for the purpose of fighting crime, are found in the Electronic Communications Act 2003:389 and the Electronic Communications

Ordinance

2003:396.

Of

course,

it is hard

to assess

and make a definitive statement regarding whether all the data categories that are encompassed by the retention duty are truly necessary for crime-fighting operations. Unsurprisingly, representatives for the police have a positive attitude toward retention, while researchers, human rights

activists, representatives for the media and others are more questioning

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of the types and amounts of data needed in order to fulfil the purpose of legislation. In future, the question of requirements on data retention within the EU will likely be a common problem, particularly in relation to the transfer of data from countries outside the EU/EEA. This is apparent in the ongoing reforms on data protection, for instance. Furthermore, the growth of cloud

computing and the usage of social media give rise to uncertainties regarding the legal status of cross-border information streams. Hopefully, the previous Committee on Data Retention is correct in its assessment (2015) that Post- och telestyrelsen can also conduct appropriate supervision of service suppliers that choose to retain personal data outside the EU, so that the requirement of independent authority review is met. Here, it is interesting to note that EU Member States have differing views on the topic. Regardless of the formal choice of legal solution, there is a need to draw

up practically oriented guidelines for assessment of whether the general requirement of an adequate level of protection is met by third countries, that is, countries outside the EU/EEA. Yet another way for the EU to protect its citizens’ personal data against the threats of the digital society is to improve the coordination of supervision performed by national supervisory authorities. Measures at the national level should also serve to promote a more cohesive view of data retention. The Swedish government’s initiative for ‘A focused responsibility for supervision of personal integrity’ (“Ett samlat ansvar for tillsyn 6ver den personliga integriteten’, dir. 2014:164) can be said to constitute a step in this direction (SOU 2016:65).° The main question in the above sections has related to the challenges associated with making manifest and realizing legal security measures as a prerequisite to the protection of personal integrity in digital networks. To achieve this, adopting technology-neutral legislation still seems a wise course of action. However, it is important to find the right legislative method and to prioritize between the often contradictory interests of parties with a legitimate need to process personal data and the interests of the data subjects. The need for a comprehensive approach is thus apparent. Otherwise, the consequence will be seemingly harmless IT solutions risk becoming actual security threats. In this context, the EU’s continued

work with the European Cloud Computing Strategy, within the framework of the Digital Agenda in the Europe 2020 Strategy, appears to be a crucial factor for success.’

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FROM DATA PROTECTION DIRECTIVE TO GENERAL DATA PROTECTION REGULATION There is no doubt that EU law plays a central role in the efforts to protect citizens’ personal data against the threats of the digitalized society. At the same time, opinions differ as to whether the legal development is moving in the right direction. Some perceive personal data protection as being too strictly enforced, while others express concerns that too little is being done at the EU level. One factor that enhances the impression that personal integrity is strongly protected is that the CJEU does not hesitate to reject the work of the legislative bodies, declaring the Data Retention Directive

invalid (see above). The CJEU judgment in the matter of whether the Google search engine could infringe upon personal integrity is another example (judgment 2014-05-13 in case C-131/12). The case with Google began when a Spanish newspaper published an advertisement for the sale of a property at a compulsory auction following the personal bankruptcy of Mario Costeja Gonzalez. Two newspaper editions were later published online. The fact that a Google search using the data subject’s name resulted in a list including links to Spanish news sites was seen by him as defamatory. In its preliminary ruling, the CJEU found that there is, under certain circumstances, a right to be forgotten. In such cases, search engine suppliers have a duty to remove links that infringe on personal integrity. One point that in this context appears to be a milestone in EU’s legislative development is the data protection reform initiated several years ago, with the goal of creating a general data protection regulation to replace the Data Protection Directive.'° After many years’ work, the final negotiations began in June 2015 in a so-called trilogue (Commission, Council and

Parliament), with the aim of facilitating the earliest possible decision on a new general data protection regulation. This occurred on 27 April 2016, when the decision was made to adopt Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR). It can be mentioned here that there is an ongoing follow-up in the form of a review of the so-called e-Privacy Directive — the Directive on Integrity and Electronic Communication — through the proposal (COM(2017) 10 final) for a regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications). By choosing to create an EU regulation on personal data protection, to replace the

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Data Protection Directive currently in force, the legislation is given a new weight, as it is directly applicable and has direct effect in all Member States, in the same way as national legislation. The overall purpose of the Data Protection Reform is, in general terms, to reinforce protection of personal integrity through adaptation to the digital networks of today, to decrease bureaucracy,

to increase harmonization

within the EU

and

to achieve

better technical adaptation.!! It is still too early to make any statements on the practical consequences of the adoption of the GDPR, which will be applicable as of 25 May 2018. If we take Sweden as an example, three questions with a national connection seem particularly pressing. The first question is of almost constitutional character and relates to the Swedish principle of public access to official records, and more specifically the right to study official records, as given in Chapter 2 of the Freedom of the Press Act (see Magnusson Sjoberg, 2015). Without going into greater detail regarding the relationship between the Freedom of the Press Act and EU legislation, it can still be said that the current Swedish legislation provides fundamental right to access, but with some room for secrecy in certain circumstances. It is significant in this context that Article 86 GDPR,

under the heading

‘Processing and public access to official documents’, gives the legal conditions for taking account of a Member State’s national law in this respect: Personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation.

The

provision above

Protection

can be compared

with Recital 72 of the Data

Directive, which instead states that: ‘Whereas

this Directive

allows the principle of public access to official documents to be taken into account when implementing the principles set out in this Directive ...’. An explanation to the difference in wording can be found in the differing natures of the different legal acts, as the current act has the form of a directive, while the future act is a regulation.

One provision in the Swedish legislation that cannot remain following the EU Data Protection Reform is the so-called abuse rule in Section 5a of the Personal Data Act. The Swedish legislator has implemented this rule with the aim of facilitating everyday processing of non-defamatory personal data. More specifically, this relates to processing of personal data in unstructured forms, such as text on a website or digital images that are not

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tagged based on personal data. The GDPR contains no equivalent to the exception from other detailed processing rules that follow with the nationally implemented abuse rule. Despite this, the government of Sweden and those of some other Member States have, in various negotiations, tried to

gain support for a provision that primarily aims at suppressing such processing of personal data that in itself constitutes abuse. Instead, the rules now remain focused on detailing which categories of personal data can be processed for various purposes, when and by whom. It can also be noted that the Swedish legislator must review several hundred

so-called register ordinances,

which at a higher or lower level

of detail regulate the processing of personal data, mainly by authorities. Furthermore, a national general supplementary legislation is being drawn up, which has in the first stage been the task of the so-called Data Protection Committee (Dataskyddsutredningen, dir. 2016:15, SOU

2017:39).'? It is beyond the scope of this chapter to provide a detailed run-through of the GDPR. To provide the reader with some orientation, however, the main elements of the regulation are outlined below. The regulation contains general provisions on its overall purpose, its scope as regards both substance and territory, and central legal definitions of terms that are at the heart of the regulation. Of particular note is the extension of the territorial scope to encompass processing pertaining to data subjects living within the Union and performed by a processor not established within the Union, if the processing is connected to the sale of goods or services or pertains to surveillance (Svantesson, 2014). Personal integrity in the moral sense, as has already been discussed, is surrounded by a number of data protection principles, originating from international agreements, EU law and national legal developments. The GDPR also includes well-known principles on purpose limitation and legality, as well as provisions regarding children’s special need for protection and that consent, in order to be valid, must be explicit.

The data subject is granted rights that, to a large extent, correspond to the duties stated for the controller or, where applicable, a processor. A central theme is transparency and a duty for controllers to take a more active approach to the processing of personal data, for instance by drawing up an easily accessible policy. This part of the regulation also establishes the right to be forgotten, with the connected duty for controllers to, under certain circumstances, delete personal data. In the same part of the GDPR, we find the provisions on the right of data portability, which garnered much attention in discussions on the reform efforts. Simply put, the purpose of this right for data subjects, to move personal data along with themselves, serves to decrease the risk that the data subject will be locked into a certain system or application, such as certain social media.

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The fact that personal data protection cannot be achieved without information security is fundamental to all efforts serving to protect personal integrity. This cornerstone also characterizes the GDPR, which explicitly mentions the importance of technical and organizational security measures. The regulative approach remains technology-neutral, as the provisions are not aimed at any particular type of security solution to achieve information security, primarily in the form of confidentiality, correctness (undistorted data) and availability. This does not preclude the need for,

and even duty to perform, risk analyses taking into account personal data is the subject of processing, to what extent it is whom and where. The weight attached by the EU to the idea ing of personal data constitutes a potential security threat clear by the introduction of what is called a personal data means:

what type of processed, by that processis also made breach. This

a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted,

stored or otherwise processed.

Almost as a legal version of a common form of risk analysis in the security field, the GDPR requires that the controller performs a data protection impact assessment. This applies when the processing in question entails certain risks. This might be the case when processing data of a genetic or biometric type. Authorities also have the duty to designate a so-called data protection officer. Under certain circumstances, this also applies to companies and other organizations, when the personal data processing requires regular, systematic and large-scale supervision of the data subjects (Articles 37-39). The GDPR also deals with security threats in processing personal data through the introduction of provisions encouraging the creation of codes of conduct and mechanisms for certifications. Given that an overall goal with the EU Data Protection reform is to achieve better adaptation of legislation to technical development, it is not surprising that transfer of personal data to so-called third countries (outside the Union) or international organizations is specifically regulated. Foreseeability in this aspect of the personal data legislation must be seen as a prerequisite to make use of the potential associated with, for instance, cloud computing. The systematics of the GDPR are familiar from the Data Protection Directive, as third-country transfer can be permitted through a Commission decision that the requirement of an adequate level of protection in the recipient country is met. If there is no such decision, the transfer can still be permitted through the use of a legally binding instrument in the form of, for instance, standard clauses approved by the

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Commission or if the transfer is performed in accordance with binding corporate rules. In some cases, such guarantees are not needed for an adequate level of protection. This might be the case if the data subject has consented to the transfer. The transfer of personal data to a third country can, as already stated, be permitted after a Commission decision that the requirement of an adequate level of protection is met by a certain nation. This has been the case for third-party transfers to the US. It has been permitted to transfer data from the EU to a party in the US that has adopted the so-called Safe Harbour principles on data protection. Through a preliminary ruling from the CJEU

of 6 October 2015 in case C-362/14 (Maximillian Schrems v

Data Protection Commissioner) the legal situation changed dramatically. The Court rejected the Safe Harbour principles and declared invalid the Commission’s decision that these principles ensured an adequate level of protection. The background to the case was Austrian student Schrems, who had been using Facebook since 2008 and had reported to the national supervisory authority in Ireland (where the company is established in Europe) that Facebook could not protect data subjects in the EU given the manner in which US authorities could access information stored on servers located in the US. Another piece of the puzzle is Edward Snowden’s disclosure in 2013 on how the National Security Agency (NSA) in particular monitors various information streams. The situation that thus arose was that the CJEU found that Safe Harbour did not provide adequate protection for personal integrity. Consequently, among other things, national supervisory authorities were forced to conduct independent reviews of the permissibility of a thirdcountry transfer. The situation that arose was worrisome, as it became uncertain if it was at all permitted to transfer personal data from the EU for processing in the US. This was, of course, not tenable in the long term and intense efforts to renegotiate the Safe Harbour agreement began. The result was a new agreement between the EU Commission and the US enabling transfer of personal data to recipients in the US encompassed by the Privacy Shield.'3 Legal support for transfer of personal data to businesses in the US now exists, based on the EU Commission’s decision of 12 July 2016 on the adequacy of the protection provided by recipients of personal data in the US encompassed by a series of security mechanisms. These mechanisms focus on various principles for handling the personal data itself, with connected mechanisms for compliance control. Yet another requirement for being included in the Privacy Shield is that the company responsible must have reported to the US Department of Commerce.'* In order for the security efforts to work, support is needed from some

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form of organization. This also applies to management of personal data protection. Given all this, the national supervisory authorities, with their independent position, will likely come to have an increasingly central role, as also intimated by the provisions in Chapter 6 GDPR. A similar direction can be seen in the provision in Chapter 7 GDPR on the collaboration between supervisory authorities in order to achieve harmonization. This last goal will be achieved primarily through a new, independent European Data Protection Board, consisting of the director of a supervisory authority from each country, along with the European Data Protection Supervisor. In order for GDPR not to remain a paper tiger, the new provisions are surrounded by comparatively strong legal remedies, clearly delineating liabilities and legal and administrative sanctions in Chapter 8 GDPR. This means, for instance, that the data subject can present a complaint to the national supervisory authority if he or she finds that certain personal data processing is in breach of the GDPR and/or a decision from the supervisory authority. EU Member States must also ensure that there are legal remedies giving data subjects a right to bring action, not only against a controller, but also against a processor. Anyone who does not comply with the GDPR must be ready to pay a hefty fine. Roughly speaking, the range of administrative sanction fees is up to EUR 20000000, or for companies up to 4 per cent of annual net sales, depending on which is higher. What Chapter 9 GDPR hides under the humble heading ‘Provisions relating to specific processing situations’ are central questions relating to freedom of expression and information and the GDPR in regard to the processing of personal data for journalistic purposes or for academic, artistic or literary expression. Much like in the Data Protection Directive, processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is specifically regulated. The final Chapters 10 and 11 GDPR pertain to the possibility of further supplementary or amending legal acts, with the EU Commission as a central party, also in regard to follow-up and evaluation of the provisions of the regulation. The main question in this section has been focused on the EU’s regulatory response to the new security threats that the digitalization of society entails. Protection of personal integrity in processing of personal data is an obvious concern for the EU, made apparent by the ongoing Data Protection Reform. In this context, information security crystallizes as a critical success factor for balancing the vulnerability that digital environments give rise to, with a connected need for risk management. To a certain extent, it seems paradoxical that the very concept of the EU requires the possibility of setting up borders between what is inside

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and what is outside the Union. The digital networks of today are, however,

international — even global. They cross borders, thus leading to a loosening of the traditional, national infrastructure. This makes the new GDPR seem

almost a pioneer, as it represents a new legal infrastructure for protection of personal integrity. The approach as regards the territorial scope of the regulation is just one example of this.

AN EU LAW COMPASS FOR DEVELOPMENT As the title itself of this chapter indicated, there are security threats to personal data and the EU has a responsibility to protect its citizens. The need for an EU law compass is based on the insight that protection of personal integrity can work as a lever to create general trust in the development of the Union, not least taking Brexit into account. In other words, it is impor-

tant that the EU can show it is driven and can succeed in handling the new security threats that will indubitably follow with the widespread and increasing usage of ICT. This reasoning could be taken even further: to see personal integrity as a resource in itself, that there is reason to protect, refine and perhaps even monetize on the single market. The usage of the compass as a metaphor in the section heading also shows that while the direction may be clear, the route is not yet set in every detail. For this, legal competence is needed, as well as extensive knowledge of the technical and social modalities that condition information security. Counterbalances are needed for the vulnerability that is associated with modern technology use in cross-border digital networks. The main question boils down to that the EU needs to realize a basic protection of integrity that to a sufficient extent can balance the new security threats. On the back of this, three policy-oriented recommendations aimed at representatives of the legislator and legal practices within the EU can be made: e

Based on EU law, the EU should instil trust in the everyday applica-

e@

The EU should make manifest legal security measures facilitating integration of secure processing of personal data into digital networks. By establishing a new legal infrastructure, the EU should create purely legal protection of personal integrity.

tions of modern ICT, such as cloud services and social media.

e

While there is an obvious need for detailed steering through traditional rules, adjudication and administration of justice, flexibility will be required

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in future. In discussions on the topic, concepts that are mentioned more and more often include agile legislation with a connected need for soft law and interacting rules (see Schartum, 2016). Technological development and dissemination are, by their very nature, hard to predict. Dealing with this unpredictability will require some kind of EU law compass, to set the course for the journey into the post-digital information society, where mobility is increasingly becoming the basis for various societal functions. Legal developments in the EU, with a new general data protection regulation that has already made an entrance, will lead to a paradigm shift. Through the EU, the societal view on the importance of personal data protection will be reinforced. The fact that sanctions against those who take personal integrity too lightly have been made much stronger gives a clear indication of where the Union is headed in this matter.

NOTES 1.

2.

3. 4. 5.

In Sweden, governmental committees have, for many decades, had the recurring task of taking on integrity protection from various angles. Some examples from recent years include: the Information Management Committee (Informationshanteringsutredningen, Ju 2011:11); the Integrity Committee (Integritetskommittén, Ju 2014:09); the Data Retention Committee (Datalagringsutredningen, Ju 2014:25); the Crime Data Committee (Brottsdatautredningen, Ju 2016:18); the Data Protection Committee (Dataskyddsutredningen, Ju 2016:04); and the Research Data Committee (Forskningsdatautredningen, U 2016:04). On this topic, see further Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences, or the execution of criminal penalties, and on the free movement of such data and repealing Council Framework Decision 2008/977/JHA. A proposal for implementation has been presented by the Committee on the Data Protection Directive of 2016 (Utredningen om 2016 ars dataskyddsdirektiv, SOU 2017:29, Brottsdatalag). For the legal perspective on this technology and business models, see Edvardsson and Frydlinger (2013); Millard (2013). On this act, see Oman and Lindblom (2011); Magnusson Sjoberg (2014). Here, it can be mentioned that the Swedish legislator, pending more long-term legislation, has established the Act on Certain Registers for Research Regarding the Significance of Genetics and Environment on Human Health (lagen (2013:794) om vissa register for forskning om vad arv och milj6 betyder for manniskors hilsa). This act is the subject of an ongoing review under the Government Commission of Inquiry on Personal Data Processing for Research Purposes (Utredningen om personuppgiftsbehandling for forskningsaindaméal, dir. 2016:65), of which the author is in charge.

6.

7.

It is worth noting that the GDPR explains anonymization in the following way in Recital 26: ‘The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.’ Itis debatable whether any expansion has been made compared with the provision in the

188

8.

9. 10.

11. 12.

13.

14.

The European Union Data Protection Directive on data relating to a person’s sex life through the addition of the term ‘sexual orientation’ in the GDPR. Here it could be mentioned that difficulties in drawing the line between supervisory responsibility regarding ethical vetting on the one hand, and protection of integrity on the other, have led the government to approve an additional assignment to the Inquiry on Review of Ethical Vetting (Utredningen om 6versyn av etikprévningen, dir. 2017:52). For more details, see European Cloud Strategy 2012 (https://ec.europa.eu/digital-singlemarket/en/european-cloud-computing-strategy) and the European Cloud Initiative (https://ec.europa.eu/digital-single-market/en/“%20european-cloud-initiative). One important aspect in the process to achieve new EU legislation is the European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (COM(2012)0011 — C7-0025/2012 — 2012/0011(COD)). Not everyone is convinced of the potential of the data protection reform. See, for instance, Koops (2014). For Swedish concerns, it could also be mentioned in this context that the Information Management Committee, taking the EU’s legislative development into account in its final report SOU 2015:39, has presented a proposal for a special Act on Data Processing within Authorities. The Committee does not at present seem to have given rise to any particular legislative efforts. Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (http://eur-lex.europa.eu/ legal-content/EN/TXT/PDF/?uri=OJ:L:2016:207:FULL). For more information regarding the Privacy Shield, see: https://www.privacyshield.gov/ welcome.

REFERENCES Andersson, H. and A. Nordén (2015), ‘Saker informationshantering i digitala milj6er’, in C. Magnusson Sjéberg (ed.), Rattsinformatik, Juridiken i det digitala informationssamhdillet, Lund: Studentlitteratur, pp. 55-142. Bakardjieva Engelbrekt, A., A. Michalski and L. Oxelheim (eds), Europaperspektiv 2017: Tilliten i EU vid ett vagskal, Falun: Santérus.

Blume, P. (2016), Den nye persondataret: Persondatafordningen, Copenhagen: Djof Forlag.

Colonna, L. (2016), Legal Implications of Data Mining, Dissertation, Stockholm: Ragulka. Edvardsson, T. and D. Frydlinger (2013), Molntjdnster: Juridik, affar och stkerhet, Stockholm: Norstedts Juridik. European Commission (2012), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee on the Regions: Unleashing the Potential of Cloud Computing in Europe (COM(2012) 529 final, 27 September). Greenstein, S. (2017), Our Humanity Exposed: Predictive Modelling in a Legal Context, Dissertation, Stockholm University.

Koops, B.-J. (2014), ‘The trouble with European data protection law’, International Data Privacy Law, 4 (4), 250-61.

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Kuner, C. (2013), Transborder Data Flows and Data Privacy Law, Oxford: Oxford University Press. Lundblad, N. (2008), Law in a Noise Society, Goteborg: Studies in Informatics, Report 41. Magnusson Sjéberg, C. (2013), Administrative data protection in global networks’, in A.-S. Lind and J. Reichel (eds), Administrative Law Beyond the State: Nordic Perspectives, Stockholm: Liber, pp. 143-61. Magnusson Sjéberg, C. (2014), Kommentar till personuppgiftslagen, published online in Lexino, Stockholm: Karnov.

Magnusson Sjoberg, C. (2015), ‘Safeguarding freedom of information in a privacy protection society — the interplay with public records management’, in A.-S. Lind, J. Reichel and I. Osterdahl (eds), Information and Law in Transition: Freedom of Speech, the Internet. Privacy and Democracy in the 21st Century, Stockholm: Liber, pp. 100-114. Millard, C. (ed.) (2013), Cloud Computing Law, Oxford: Oxford University Press. Oman, S. and H.-O. Lindblom (2011), Personuppgiftslagen: En kommentar (4th edition), Stockholm: Norstedts Juridik AB.

Schartum, D.W. (2016), ‘Making privacy by design operative’, International Journal of Law and Information Technology, 24 (2), 151-75. Schartum, D.W. (ed.) (2010), Nordisk arsbok i réttsinformatik 2009, Overvaking i en rettsstat, Oslo: Fagbokforlaget. SOU 2015:31, Betankande av Datalagringsutredningen, Datalagring och integritet, Stockholm: Justitiedepartementet [Data retention and integrity. Report from the Data Retention Committee]. SOU 2015:39, Informationshanteringsutredningen, Myndighetsdatalag, Stockholm: Justitiedepartementet. SOU 2016:65, Utredningen om tillsynen dver den personliga integriteten, Ett samlat ansvar for tillsyn 6ver den personliga integriteten, dir. 2014:164, Stockholm: Justitiedepartementet [A focused responsibility for supervision of personal integrity]. SOU

2017:29,

Utredningen

om

2016

ars

dataskyddsdirektiv,

Brottsdatalag,

Stockholm: Justitiedepartementet [Committee on the Data Protection Directive of 2016]. SOU 2017:39, Betankande av Dataskyddsutredningen, Ny dataskyddslag: Kompletterande bestimmelser till EU:s dataskyddsforordning, Stockholm: Justitiedepartementet [New Data Protection Act: Supplementary provisions to the EU Data Protection Regulation. Report from the Data Protection Committee]. Svantesson, D.J. (2014), Extraterritoriality in Data Privacy Law, Copenhagen: Ex Tutu.

Svantesson, D.J. and S. Greenstein (eds) (2013), Nordic Yearbook of Law and Informatics 2010-2012, Internationalisation of Law in the Digital Information Society, Copenhagen: Ex Tuto. Case Law C-201/14 Smaranda Bara and Others v Casa Nationala de Asigurari de Sanatate, CNAS and Agentia Nationala de Administrare Fiscala, ANAF, ECLI:EU:C:2015:638. C-203/15 Tele2 Sverige AB v Post-och telestyrelsen, ECLI:EU:C:2016:970.

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C-293/12 and C-594/12 ECLI:EU:C:2014:238. C-362/14

Maximillian

Digital Schrems

Rights v

Data

Ireland Protection

and

Seitlinger

Commissioner,

and

Others,

ECLI:EU:

C:2015:650. C-698/15 Secretary of State for the Home Department v Tom Watson and Others, ECLI:EU:C:2016:970. Judgment 2014-05-13 incase C-131/12 Google Search Engine, ECLI:EU:C:2014:317. Legal Instruments Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L 105. Swedish Personal Data Act (SFS 1998:204). Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information [2003] OJ L 345. Act (2010:566) on re-use of documents from the public sector (the PSI Act). Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [2002] OJ L 201. Electronic Communications Act 2003:389. Electronic Communications Ordinance 2003:396. Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA [2016] OJ L 119. Act on Certain Registers for Research Regarding the Significance of Genetics and Environment on Human Health [lagen (2013:794) om vissa register for forskning om vad arv och milj6 betyder for manniskors hilsa].

9.

Security in a liberal union: EU asylum and migration control policies Gregor Noll

Is it reasonable to write about asylum seekers and refugees in a context dedicated to European Union (EU) security issues? The Council of the European Union and the European Commission seem to suggest so. EU policy documents regularly refer to the fight against illegal immigration and human smuggling. FRONTEX, the EU border management agency, has the resources and the mandate to coordinate Member States’ civilian and military resources in the joint exercise of border control. In 2015, there was a drastic move towards militarization: to check the inflow of asylum seekers, the Council of the European Union decided to allocate military resources against human smugglers and their property outside EU territory, in analogy with operation Atalanta directed against armed pirates off the coast of Somalia (Council Decision (CFSP) 2015/972). Taking operation Atalanta as a role model for the management of the 2015 crisis marked a qualitative shift as it implicitly equated unarmed migrants with armed pirates. To be sure, the smuggling of migrants is clearly beyond the scope of piracy as defined in international law.' It appears that the increased levels of migration by asylum seekers and refugees has strengthened associations to security, both conceived as military defence and as

human security, concerning societal safety as a whole. Depicting asylum seekers as a security threat to the EU and its members is, of course, grossly reductive. After all, asylum seekers are fleeing deterioration of security in their home countries. Thus, it would be inappropriate to foreground EU security while backgrounding the security of the asylum seekers. However, we could choose to accept the security language for a moment to consider the ideological architecture behind EU asylum and border control policies. As Anne Orford points out, ‘[t]loday, European integration has been so thoroughly re-imagined as a technical project that it is difficult to comprehend the political forces and choices that have shaped its unfolding’ (Orford, 2012, p.277). 191

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So, how should we discuss the relation between the EU and asylum seekers? I suggest that we think about it through the prism of protectionism — a term borrowed from liberal economic theory. Usually, it describes the measures taken by a state or a group of states to stop third party actors from selling goods or services within their borders. What protects the actors within the borders creates barriers to trade for those outside the borders. Liberal thinkers have polemicized against protectionism and suggested alternative orders to hinder it. The Austrian liberal economist Friedrich Hayek’s comment that ‘the abrogation of national sovereignties and the creation of an effective international order of law is a necessary complement and the logical consummation of the liberal program’ in his 1939 text on “The Economic Conditions of Interstate Federalism’ is gaining new currency today (Hayek, [1939] 1949, p.269). Hayek’s observation supposes that the ‘effective international order of law’ will realize itself when ‘national sovereignties’ are abolished. ‘Indeed’, he writes, ‘this readiness to have no legislation at all on some subjects rather than state legislation will be the acid test of whether we are intellectually mature for the achievement of suprastate organization’ (Hayek, [1939] 1949, p. 266). The federation will be a delicate interim stage on the way to the abolition of the state and the consummation of legal order, joining together remnants of state sovereignty with a federal structure centred on a market that freely regulates itself. But what nation-state attributes are needed to give strength to the emerging federation? And will the perseverance of these state attributes hinder the full emergence of a supranational legal order a la Hayek? This is the essence of the EU’s dilemma: nationalist protectionism could re-emerge in a new and more powerful institutional form in the guise of supranational cooperation. Is the EU of today an incarnation of Hayek’s federal order? This is famously claimed by Wolfgang Streeck (2014, reintroducing Hayek’s 1939 article quoted above). But Hayek might stand in the way of seeing the Union

for what it is (Deutschmann,

2014, arguing contra Streeck

that the EU’s prioritization of state solvency during the 2007-08 financial crisis made it fail a Hayekian test). I believe that liberalism offers a prism to understand how a particular form of protectionism can thrive in a supranational setting bent on augmenting the freedom of the markets.” However, we should not assume that liberal thought is unequivocally in support of migration. Ludwig von Mises, another famous exponent of the Austrian school of liberalism, concluded in 1935 that ‘white European

workers should have the right of immigration into the largest and most productive lands, the climates of which are suitable for’ them and made this

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a precondition for world peace (von Mises, 1935 [1978], p.22). Von Mises liberalizes migration to serve colonial needs and conditions the right to immigrate on race. Also, Hayek is on record to have supported the British Conservative leader Margaret Thatcher in her call for stringent immigration controls in 1987. Hayek declared: While I look forward, as an ultimate ideal, to a state of affairs in which national boundaries have ceased to be obstacles to the free movement of men, I believe

that within any period with which we can now be concerned, any attempt to realize it would lead to a revival of strong nationalist sentiments. (Hayek, 1987, cited in Ebeling, 1995, Chapter 17, n.p.)

When it comes to migration, the 1987 Hayek adheres to ordoliberalism, which seeks to offer an orderly legal frame for the forces of the market to unfold within. This is a far cry from the radical liberalism expressed by Hayek in 1939. Or does any semblance of contradiction go away as soon as we consider that Thatcher’s immigration control was geared against non-whites and non-Europeans — the very group that von Mises failed to include into his right to immigration? In this contribution I argue that the asylum and migration control policies of the EU are usefully analysed as an expression of liberal thought. I will show how this order manifested itself with the creation of the Union in the 1950s, illustrate how it affects the prevailing rules in the areas of migration and asylum, and highlight the paradox of how the order was strengthened during the crisis of 2015 and 2016. I will also explain how the concept of solidarity in EU law is poorly constructed due to its subordination to the protectionist order of the EU. Thereafter I will map possible solutions. If the EU is serious about its liberal identity it cannot completely deny the rationality and free will of the asylum seeker. The question is whether there is a reformist alternative: a complement to the present protectionist system which acknowledges the rationality and free will of the asylum seeker without demanding utopian or revolutionary wonders of the Union in its present form. I test whether humanitarian visas could constitute such a complement, where the asylum seeker and the EU Member State meet in a rational discourse before the asylum seeker has decided to travel to Europe. As the Court of Justice of the European Union (CJEU) has practically written off this option, I inquire whether this might tell us something of how the particular form of liberalism that the EU represents can be articulated.

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1957: A CONSTITUTIONAL STRUCTURE OF EXCLUSION The historical background to the migration policies of the EU can be found in the treatment of the rights of third country nationals as a sacrificial pawn to ensure Member States’ acceptance for free movement of EU nationals (Chatty, 2015). The Treaty of Rome of 1957 is at the root of this order. It privileged those foreigners who were nationals of another Member State, while the fate of third country nationals was left to the discretion of national governments. Member States have ever since carefully guarded their sovereignty in relation to third country nationals, also within the institutions of the EU. The weight of this constitutional shift in 1957 cannot be overestimated in the migration and asylum policy crisis of today. Developments within this policy area should to quite some extent be understood as a collective replication of domestic migrational protectionism at the EU level. If what we want is for European integration to be something more than a reproduction of nation-state structures on a more complex level, this transfer entails significant legitimacy problems. The nation-state does not seem to disappear in step with the emergence of a supranational legal order. On the contrary: this supranational legal order is directly dependent on a growing measure of nation-state components in the form of protectionist policies. It is in the area of migration and asylum that the Member State prerogative is at its strongest, both in daily policy-making and in the foundational documents of the EU. Hayek’s conviction that federalism will decrease state protectionism seems at odds with concrete EU examples. While the EU has enabled its nationals to move freely between Member States at great cost, the Commission complains that this expensive freedom is underused by Union citizens (Chatty, 2015). The liberal foundation of the EU has not inhibited the emergence of a protectionist border control cartel created by the Union to compensate for the abolition of control over the internal borders. As has been shown by the 2015 and 2016 asylum crisis, the border control function and the defence of it through individual Member States is a central part of the Union’s construction. Market liberalization comes at the cost of an escalating supranational protectionism. This cost is a real one, most starkly manifested in the risks to life and limb imposed on those who question the protectionist order by travelling to the EU without permission.

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1987 AND ONWARDS: THE SUBORDINATION ASYLUM TO A BORDER CONTROL LOGIC

OF

As we have seen, EU immigration and asylum policies have their base in the 1950s’ attempts at liberalizing free movement of EU citizens. Measures to abolish border controls within the EU,

however, gained momentum

with the signing of the Single European Act in 1987. The measures were informed by the fall of the Wall and the fact that the authoritarian east European governments, which had previously carried out rigorous border controls along the eastern border of the Union,

no longer existed. EU

border control became a matter of utmost concern in the realization of the last of the four fundamental freedoms at the core of the Union’s identity. For this reason we cannot view the EU asylum acquis as isolated from the EU border control acquis. In fact, the EU asylum acquis, known as the Common European Asylum System (CEAS), is critically dependent on the EU border control acquis. Where border controls fail to reduce numbers of asylum seekers below a particular threshold, the CEAS becomes dysfunctional and its rules are no longer implemented in practice. CEAS norms are not altogether to the detriment of the asylum seeker. On the contrary, the CEAS contains rules that force Member States to review and upgrade the protection offered in domestic law and practice. That said, many central CEAS norms remain much too vague and contain overly extensive mandates for the Member States (see the contributions in Bauloz et al., 2015). The main issue, however, is that the CEAS is framed

in a way that supports EU border control policies. Border control rules are, in turn, subservient to immigration policies. EU immigration policies are essentially formulated to promote economic interests and do not focus on humanitarian considerations. A known example of this is EU visa rules which prescribe visa requirements for states whose nationals are seen as potential asylum seekers. The Dublin Regulation and the Schengen acquis can be seen as the hinges between the asylum acquis and border control acquis. The latest Dublin Regulation from 2013 counts as part of the asylum acquis and is listed as an important element of the CEAS. This regulation sets down the rules as to which EU Member State shall be responsible to assess an asylum application in substance. According to the most used rule in the Dublin Regulation, an asylum application is to be assessed by the state that enabled entry into the EU, regardless of whether that entry was legal or irregular. In reality, the Dublin Regulation creates a system that places the responsibility to process an asylum application on the Member States with the borders that are most difficult to guard.

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Consequently, it is no surprise that exposed Member States, such as Italy, are known to evade that responsibility by not registering newly arrived asylum seekers or by discouraging them with substandard reception conditions, or both, contrary to EU

law. It is the law itself which

creates the disproportionate reception responsibility, in turn leading to the circumvention of the law. The destructive effects of the present order have been well known since the 1990s, but Member States rejected fundamental

amendments when the possibility to reform the Dublin Regulation was given in 2000 and 2012.

PROTECTIONIST SOLIDARITY IN ASYLUM RECEPTION That a sort of nationalist protectionism has informed EU immigration and asylum policies is obviously to the detriment of third country nationals. But it also harms the unity between Member States. This is clear from the inability of Member States to create a solidarity-informed migration and asylum policy vis-a-vis the asylum seeker. The reception crisis in 2015 and 2016 also shows that nation-state protectionism made states act upon their own interests rather than community interests. An amendment to the Treaty of Lisbon added a peremptory rule, regarding solidarity among Member States, to the Treaty on the Functioning of the EU (article 80 TFEU). The provision concludes a chapter regulating the EU’s authority over border control, asylum and migration and it reads as follows: The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.

I have described in my earlier work how the actual policies are headed towards de-solidarization in refugee reception. Nonetheless it is justified to ask whether the solidarity rule could have been a meaningful counterweight, had it been taken seriously. The prevailing interpretation of article 80 TFEU is that it concerns solidarity merely between Member States and not between Member State and refugee, or Member States and other recipient states in crisis regions (such as Lebanon and Jordan, which are carrying a disproportionate burden in the reception of Syrian refugees). But the very term ‘solidarity’ does point in the opposite direction. The term has its roots in Roman civil law, refer-

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ring to the relationship between a creditor and a group of persons responsible for a debt — the debtors. In joint and several liability cases the creditor can demand payment of the whole debt from any one of the debtors at any time, not just that particular debtor’s share of the debt. Solidarity thus increases the chance of a debt being paid. How debtors should handle the situation when the creditor has demanded payment from one of them is a separate, and indeed secondary, question. How is a historically informed concept of solidarity to be applied in EU asylum and immigration policies? The use of the term ‘solidarity’ is only meaningful if you consider Member States to be equally responsible for fulfilling a legal claim brought by an asylum seeker, as is usually the case in contemporary forms of joint and several liability. This protection claim is founded in human rights and refugee law, which stipulates that states cannot return persons in need of protection to states where they face certain risks or threats. The interesting aspect of joint and several liability is that it provides both the creditor and in turn the asylum seeker with a freedom of choice. The claim can be directed at any member state. This contradicts the coercive measures of the Dublin Regulation where factors other than the preferences of the individual are guiding. In order for there to be solidarity among Member States naturally there has to be some sort of compensation for the state that is subject to the asylum seeker’s claim of solidarity. My point is not that article 80 TFEU should be reinterpreted in this historically informed way. My point is that article 80 TFEU is so contradictory in its legal construction that it cannot lead to any practical results — either in policy or before the CJEU. What would happen if the EU’s weak solidarity concept were to be applied to market transactions? Let us have a look at an example: ten owners of a particular business want to take up a joint loan to fund one of its projects. Let us assume that the bank will only lend money if each of the owners accepts joint and several liability, implying that the bank can demand payment of the whole debt from any one of them. An agreement is signed and the money collected, but the owners somehow forget to agree between them what to do if the bank shows up one day and terminates the loan, demanding payment from only one of the owners. What happens if the remaining owners of the business do not have the money or have other reasons not to pay their share to the partner that the bank happened to target? And how should they calculate the share they owe? This is clearly not an option a person who is serious about her or his business would consider. It would be foolish to skip such an important step as the signing of an agreement between business owners since it creates an unnecessarily messy situation that might jeopardize the cohesion and finances of the common

business. Unfortunately, this is the situation we

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have within the EU. As the bank in our example, an asylum seeker knocks at the door of a single Member State with her claim. However, while the bank can choose whether it will claim payment of the loan from the whole group of owners or just one of them, an asylum seeker can only rely on a single Member State for a substantive assessment of her claim. What if multiple asylum seekers claim fulfilment of international law obligations from one and the same Member State, despite the Union having 26 other

members (Denmark having opted out) that have committed to these obligations collectively in EU law? This is exactly the case in point. A majority of asylum seekers arriving in the EU in 2015 and 2016 sought asylum in Germany and Sweden. States such as Italy and Greece are highly affected due to being countries of first entry to the EU; many asylum seekers and other migrants enter the EU

through these states, often after having risked their lives on the

Mediterranean. But asylum seekers rarely remain there, largely due to poor reception conditions. Both first countries of asylum, like Italy and Greece, and final countries of asylum, such as Sweden and Germany, find

themselves under considerable pressure by the growing number of asylum seekers. Both groups of states experience lack of adequate assistance from other EU Member States. In 2015 the European Commission proposed a mandatory system for a more even distribution of asylum seekers among Member States. Hardly surprising, this proposal was met with heavy criticism by the United Kingdom and a number of central European Member States. After all, mandatory distribution would force these states to receive more asylum seekers. Reverting to our business example, it is clear that this was too late a point in time to make an agreement within the group of business owners. We need to have crystal-clear solidarity agreements in place well in advance before solidarity is claimed, not when we are in the middle of a crisis. The

inequitable distribution of asylum processing and protection has led to high tensions among governments and unusually unruly meetings in the Council of the European Union. The idea of a united Europe seems to be at risk. This crisis was foreseeable, however. The war in Syria and precarious living conditions in parts of Africa are hardly new. To operate a dysfunctional solidarity concept under such conditions is a recipe for trouble once the number of asylum claims starts to rise. We should consider the possibility that the solidarity clause in article 80 TFEU was never meant to make use of the full potential of the solidarity concept and enable better protection of asylum seekers and refugees. Its contradictory character is an important element in understanding the mechanisms at work in EU law. Had article 80 TFEU been constructed so that refugees, asylum seekers and the Member States hosting many of

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them could benefit from it, a European community of solidarity would have been put in evidence. This kind of community is exactly what Hayek wanted to eradicate with his liberal federalism.

THREE DIMENSIONS OF SOLIDARITY AND EU PRACTICE A comparison of EU solidarity to the Roman model of solidarity as joint and several liability is problematic in one respect. In Roman civil law, as in our example of business owners loaning from their bank, transactions

relate to money. The good thing about money is that it is abstract and therefore maximally exchangeable. Our business owners will presumably not worry about whether one euro they loaned from the bank is equal in worth as one euro paid back. The complex relations that a state and an individual asylum seeker have cannot be transposed into a monetary value, because they are so concrete and individualized. While great precision can be achieved in monetary transactions, we need to factor in many non-monetary aspects to the question of who owes whom how much in a multilateral system of asylum. So how should we think about longterm solidarity in asylum and refugee policies? In an earlier text, I have proposed looking at three dimensions that may contribute to solidarity: sharing norms, distributing funds and distributing people — here asylum seekers and refugees (Noll, 2000, p. 270). Sharing norms within the EU means that all Member States offer asylum seekers and refugees similar rights and benefits, that the asylum procedure is based to the same extent on the rule of law and that reception conditions are equivalent to those of other states. If all states apply the same norms there is less reason for asylum seekers to choose certain Member States over others as their final country of asylum. This is the very point of harmonizing domestic asylum legislation through the supranational CEAS. It is, however, a problem that the ambition is set so low in the CEAS, too

low to make a significant difference in evening out the unequal reception of migrants in the EU. Also, perhaps more importantly, decision-makers and judges across the EU assess evidence and credibility of asylum seekers very differently, which ultimately results in widely varying recognition rates. To the limited extent an asylum seeker can choose among EU states as destination countries for her claim, a comparison of recognition rates for her nationality would be a rational way to organize that choice. Another issue is the feeble monitoring of rule compliance. It might take years before the European Commission, CJEU or European Court of Human Rights deal with issues

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of non-compliance in a state, if they deal with them at all. In all, and as of

today, the sharing of norms on asylum has not made a tangible contribution to solidarity in refugee reception. The next dimension of solidarity is the distribution of funds between EU Member States. There are two ideas behind this. One is to help Member States with weak reception systems or large inflows of refugees and asylum seekers to improve reception conditions and protect those in need of protection. The other idea is that states that receive fewer asylum seekers and refugees compensate those that receive more asylum seekers and refugees. This distribution policy will of course raise the question of whether money and refugees are economically comparable; can a sufficient number of euros purchase hospitality in another state and consequently buy off one’s own responsibilities? The reception of asylum seekers and the integration of refugees cannot be readily monetized. Refugee reception is a social and political question as much as one of demography, finances and planning. Thus the mere redistribution of funds cannot itself solve the problem of uneven distribution among certain Member States, it will only be a small contribution to a more comprehensive solution. There is today an EU-orchestrated economic redistribution in the asylum area. Between 2014 and 2020, funds have been allocated in the

EU’s budget for Member States to draw money from. For example, Sweden could be granted up to 118.5 million euros, Spain 257 million euros, Greece 259 million euros and Italy 310 million euros. The sums are hardly trivial, but they are still not likely to affect the political will of a government, a parliament or a population of voters. An extreme example is that of the 2016 agreement between Turkey and the EU, where a package including up to 6 billion euros in transfers, a resettlement mechanism and the speeding up of visa liberalization for Turkish citizens bought Turkey’s cooperation in stemming the inflow of asylum seekers to the EU (EU-Turkey Statement, 2016, para 6). Even so, I would think that the truly dominant factor was

the visa dimension, suggesting how hard it is to ‘monetize’ asylum seekers in isolation from other factors. One might feel that it is insufficient to share norms and distribute funds and that the EU must also deal with the distribution of people — the third dimension of solidarity. It is also the most sensitive and incisive dimension — forced displacement of people in history is not a happy memory. Asylum seekers often have good reasons to choose a certain country of asylum, not necessarily linked to the asylum procedure. The language, access to the labour market, presence of family members, the existence of a diaspora, the state’s reputation with regard to human rights — all of this can affect the decision. And many of these factors are directly related to possibilities of integration: finding a job, paying taxes, learning the language and

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becoming part of the community. If we were to create a mandatory distribution system which ignored these preferences we would probably end up with a large number of asylum seekers still trying to bypass their assigned country of asylum instead of trying to move to or stay in their preferred country of asylum. The use of coercive measures would increase, meaning more resources to the police force bringing candidates eligible for transfer into detention or forcing them onto planes. Detentions and forced returns are costly both from an economic perspective and considering the risk for traumas, self-destructive behaviour or human rights violations. Are there any examples of distributing asylum seekers within the EU? Yes, the instrument known as the Dublin Regulation offers some. As men-

tioned, its formal purpose is to identify the Member State responsible for considering the substance of an asylum claim filed somewhere in the EU. Its rules were clearly not created to accomplish a more even distribution of asylum seekers and refugees but to give further incitement to stronger control of external borders. This means that states with external land and sea borders that are difficult to guard are burdened under the Dublin Regulation while states whose external borders are airports or harbours (such as Sweden and Denmark) are relieved. In theory, the latter can trans-

fer asylum seekers to the more southern Member States if they can prove the asylum seekers’ registration there after entry to the EU. In practice, the system is falling apart since the reception systems in many southern European states are so poor that the European Court of Human

Rights

and the CJEU have prevented transfer of asylum seekers there in a number of high-profile cases, among others MSS v Belgium and Greece from 2011 and Tarakhel v Switzerland from 2014. Some Southern European states have stopped registering newly arrived asylum seekers and are rather content that they are migrating further north. These states do not consider themselves capable of dealing with two tasks at once: being both first and final country of asylum, which entails both saving lives on the sea and offering long-term care for the rescued. The Dublin system is a compulsory system. With its failure being apparent (Guild et al., 2015), patches are considered that would add a layer of distributive justice to it. But an additional compulsory system aimed at evening out the unequal distribution Dublin has created would entail further bureaucracy, expense and human suffering. Compulsory redistribution is problematic not only for the individual affected but also for Member States. In June and September 2015, the Council of the European

Union decided on a redistribution system affecting 160000 asylum seekers arriving in Italy and Greece over a two-year period. The debate preceding the decision was unusually harsh despite the redistribution mechanism’s limitation in both time and numbers. The implementation of the decision

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also caused trouble. Due to practical issues, only 116 people were redistributed up to the beginning of November 2015. Among the reasons were some Member States’ continued unwillingness to accept the system as well as asylum seekers’ opposition against losing even more autonomy when choosing country of destination. The CEAS kindles a fire and then calls on solidarity to extinguish it. The asylum and immigration acquis is too dysfunctional for a weak redistributive practice to offset. Are there policy options for the EU that might overcome this lockdown?

REFORM OPTIONS The asylum crisis of 2015 solutions. The control of tories and the expansion the panoply of proposals control theme dominates:

and 2016 has fostered quite a debate on reformist asylum seekers’ ability to access European terriof protection capacity were dominant themes in made. Let us look at four proposals in which the

increased funding to refugees’ region of origin, making asylum claimable only in regions of origin, directing additional resources towards migration control, and increasing resettlement. I will test each proposal against three criteria: e e e

Legality: is the proposal implementable without violating international law? Acceptance among EU nationals: can the proposal receive enough support from EU nationals? Acceptance among migrants and asylum seekers: can the proposal affect migrants’ and asylum seekers’ behaviour to the desired extent?

A proposal that is often resorted to is the increase of EU and Member State funding to the refugees’ region of origin. At times this solution is linked, explicitly or implicitly, to demands for decreasing refugee reception in the EU and its Member States. Syrian refugees may serve as an example to think this through. This proposal obviously does not meet any impediments in international law, and my assessment is that EU nationals would support such an increase within certain limits. But the proposal fails in that it would not affect migrants’ and asylum seekers’ behaviour. More than 4 million Syrian refugees are in the neighbouring areas (Turkey, Lebanon, Jordan, Iraq and Egypt). Before

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the inflow of 2015, around 124000 Syrians had sought refuge in Europe, making up 4 per cent of the total number of Syrians in flight. The EU and its Member States are already the second largest donors to refugee reception in Syria’s neighbouring countries. Not even a substantial increase in economic support to the neighbouring countries would compensate for the flaws in reception conditions caused by one-fourth of a state’s inhabitants being refugees (as is the case in Lebanon). The possibility of reaching the EU will continue to be more appealing than staying in a slightly upgraded camp. It is also proposed from time to time that asylum in the EU should be claimable only from the region of origin. The aim is to take away the incentive to reach the EU. The current UK prime minister Theresa May made this argument in October 2015 when she was Home Secretary. I have previously demonstrated at length that this type of proposal is incompatible with international law (Noll, 2003). The point of this proposal is to deny those asylum seekers reaching the territories of the European Union an assessment of their claim and point them back to the region of origin. However, the European Convention on Human Rights and other international legal instruments give such asylum seekers the right to have the risk of human rights violations upon return assessed in substance. If Member States were to deny that right and return an asylum seeker to regional processing centres, they would be in breach of the European Convention on Human

Rights. From this follows that EU Member States cannot implement this proposal and continue to be members of the Council of Europe and the EU. Additionally, they would have to withdraw from certain international treaties. As soon as this becomes clear to EU citizens, opposition against such a proposal is likely to grow. Finally, migration to Europe would likely continue but result in a status as undocumented and not as refugee. Could additional funds allocated towards migration control be a solution? Tougher migration control tends to increase the risk for human rights violations. It is no coincidence that the European Court of Human Rights has found the immigration control systems of Italy and Greece to be in violation of human rights obligations. Furthermore, experts agree that increasing control on one route means migration — including refugee migration — chooses another route. To control effectively all outer borders would demand an increasingly totalitarian practice of border monitoring and would, unacceptably to many EU nationals, change the identity of the EU. Near draconian measures would be needed to change migrants’ behaviour and my assessment is that the price paid by home affairs and foreign policy would be too high. Instead, increasing resettlement offers itself as a fairly sympathetic idea. Resettlement means that a receiving country provides entry and residence

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permits to certain refugees who do not enjoy necessary protection in their region. Resettlement does not entail a legally claimable right: states have no legal obligation towards the individual to offer resettlement. Today about one in 1000 of the world’s refugees receives protection in this way. Increasing resettlement would be compatible with international law and it would probably be supported by at least the northern and western parts of the EU. As resettlement is a form of plan economy characterized by much demand and little offer, refugees cannot be certain that their need for pro-

tection correlates to the probability of being chosen for resettlement. My assessment is that even a great increase in the number of resettled refugees will not change asylum seekers’ and refugees’ behaviour. The reason is that resettlement systems are too unpredictable from their point of view. Let us now leave the protectionist proposals and move on to two proposals that seek to open up access to Europe beyond the piecemeal engineering of resettlement. The first one is the abolition of visa requirements and carrier sanctions. These measures could be directed at certain nationalities which are deemed to have a general need for protection. It means that these nationals could travel legally to the EU and that carriers enabling their journey would no longer risk fines and economic liability. International law poses no obstacle to such proposals, but EU law and Member States’ domestic legal systems would need to be reformed. I do not believe that these two measures would gain sufficient support among EU nationals in the current climate. The reason is that they not only benefit refugees. All migrants of the nationality that benefits from waived visa demands and carrier sanctions could enter, not just those in need of protection. This

might not seem an issue for Syrians or other nationalities where protection needs can be assumed. But on closer thought, it implies that persons having committed war crimes or crimes against humanity during the conflict in Syria could travel legally to the EU. Second, I would like to address the proposal of free migration which is occasionally raised in the debate. Obviously, free migration would face the same counterarguments as waiving visa demands and carrier sanctions. However, any further assessment would depend on what specific meaning the concept of ‘free migration’ is thought to have. The phrase has different meanings depending on how freedom of migration is related to the existence of the nation-state. Maintaining the nation-state and a capitalist economy while deregulating migration completely would move global income gaps into the nation-state. This was the type of globalization we had in the nineteenth century, where migrants from peripheral European

economies emigrated to the New World without twentieth century-style migration control barriers. Quite logically, while the twentieth century was characterized by the inequality between states as the driver of

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global inequality, the reverse was true for nineteenth-century globalization (O’Rourke, 2001, p. 17).

We may expect starker domestic income differences if movement were deregulated under conditions of capitalism. We should therefore expect a boost in authoritarian night-watchman features of the state in the form of surveillance and policing. A class of underprivileged migrants would risk being excluded from minimum rights and might come to live outside the social protection system we have today for the least-privileged citizens and denizens. These changes would raise issues under international human rights law. It is unlikely that EU nationals, asylum seekers or refugees would find them acceptable. If free migration were taken as a shorthand to achieve abolishment of the nation-state and a new form of economic redistribution, that would be revolutionary. Then it would be

pointless to apply international law criteria or consider the legitimacy of that measure on the basis of democratic processes taking place within the nation-state that we are about to abolish. But are we capable of creating a more solidarity-based successor to the nation-state? The less we trust in the system of refugee protection today the more we are confronted with this issue. And if we were to devise such a successor, is there a reformist

proposal that might point the way? If there is, what ideological issues does it raise?

HUMANITARIAN CASE

VISAS AS THE LIBERAL TEST

Cosmopolitan liberal thought would seem to invite us to give reasonable leeway to migrants’ preferences and seek to minimize constraints on them. Any attempts to foster a more equitable distribution of asylum seekers across the EU would need to take this into account, provided that it is ideologically liberal. This can take a very simple expression. Why do asylum seekers not remain in Greece or Italy where they entered the EU? ‘Clearly good quality first reception is the key to equitable distribution of asylum seekers’, Elspeth Guild wrote in 2015 (n.p.), referring to the poor conditions in Greek and Italian asylum reception systems. Consequently distributing people is primarily about sharing norms; the rights of the asylum seekers have to be guaranteed in reality, not just in law, so that they de facto have more states to consider as potential protectors. Here much work remains to be done. Even before the substantive increase of asylum seekers during 2015 and 2016 it was clear that the reception systems of many Member States displayed serious deficiencies. As Steven Peers pointed out, insufficient implementation of EU standards

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contributes to the emergence of crisis situations such as the one in Calais (Peers, 2015). Guild’s comment implies that we must take seriously the rationality and free will of the asylum seeker. If the level of rights protection reaches the prescribed legal standard all across the EU this will be known to future asylum seekers. These asylum seekers will then have less reason to try to reach certain states while avoiding others. An ideology that keeps intrusions into personal liberty at a minimum level will entail further changes. In the next step, Member

States would

strive to set up communication with potential asylum seekers much earlier in the migration process than is the case today. Currently the diaspora, human smugglers and informal information sources influence the individual’s choice of route and goal, and shape the expectations of protection prospects. Contact with the authorities is not initialized until late in the process — generally not until the asylum seeker has reached the country where she intends to seek asylum. By then it is too late to correct erroneous impressions that affected the initial choice of country of destination. A future system must provide an incentive for the asylum seeker to reach out to the authorities as early as possible. Then proper information about the chances to be granted asylum can be offered. Information from the diaspora, human smugglers and informal sources would no longer be the dominating factor in decision-making. The importance of the latter cannot be overestimated. What can Member States do concretely to offer information early on? The established network of Member State embassies is the basic asset here. Persons who are considering leaving their region of origin to seek asylum in Europe should be given the opportunity to start the asylum procedure in an embassy. On the one hand, in case of a rejection in the embassy procedure the asylum seeker might realize that she should not invest a fortune and risk her health to travel irregularly to the territory of the embassy she has contacted. A positive prima facie decision, on the other hand, would come along with a humanitarian visa enabling the asylum seeker to pursue the remainder of the asylum procedure in the Member State of the embassy she has visited. In this way the asylum seeker can travel legally to the EU avoiding the perils of the Mediterranean and other smuggling routes. The resources that would have gone to smugglers can then be used in a better way. A system of humanitarian visas would be a further step towards equitable distribution of asylum seekers. First, a fairly big number of contact points with the asylum process would be made available all over the world. Today geography and smugglers’ routes and resources decide what Member States the asylum seeker will come into contact with. Second, well-resourced Member States usually have more embassies than less-

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resourced states. This in turn creates a proportional distribution. With this system it seems unlikely that for example the UK could continue benefitting from its geographic location and only receive four per cent of all asylum applications in the EU, as it did in the first quarter of 2015. The point is not to abandon the territorial asylum system of today (that would be in contravention of international law). Rather, the humanitarian visa system would complement it. Together with Jessica Fagerlund and Fabrice Liebaut I proposed a system based on humanitarian visas in a 2003 report to the European Commission (Noll et al., 2003). We had studied the practice of a number of Western states and found good examples which were almost unknown. Switzerland crystallized itself as having the most advanced system, which was well-functioning during two decades with high rule of law ambitions. However, in 2001, Switzerland, Denmark and

Spain abolished their systems instead of coordinating them. The reason was the increased influence of nationalist parties over asylum policies. It is worth considering whether the steps taken by these states were in the right direction for Europe. Newer research confirms our conclusion that there is a qualified legal obligation to protect asylum seekers at embassies. Sanderijn Duquet and Jan Wouters (2015) recently noted that this obligation also extends to the EU when an asylum seeker turns to its diplomatic missions, triggering a duty to protect asylum seekers in certain cases. The finding of a thin international law obligation to grant a humanitarian visa was confirmed in the opinion of Advocate General Megozzi in the 2017 case C-638/16 (X and X v Belgium) before the CJEU. Nonetheless, the Court decided not to follow Megozzi’s lead and held that granting a humanitarian visa was beyond the confines of EU law. Politically, this judgment is the death knell for the proposal for a comprehensive humanitarian visa regime under the auspices of the EU. We may read this as an empirical test case for the ideological preferences at work. The CJEU otherwise usually uses every opportunity to extend its own powers for the good of the integration project. In the X and X judgment, however, it chose to place the power over human rights with Member States alone, knowing full well that Member States are unwilling

to grant humanitarian visas to avert human rights violations. To the extent the EU is a liberal project, this shows that it is not a cosmopolitan one. Its market liberalism comes with a form of border control that the CJEU confirmed to be ostentatiously illiberal. There is no question of a gradual dismantling of protectionist remnants or the gradual reduction of Member States’ powers. Going back to Hayek’s 1939 text, this would imply that the federation is in continued need of its Member States as armed guards of market integration.

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CONCLUSION My analysis has shown that it is impossible to accomplish a more even distribution of asylum seekers using authoritarian measures to force sceptical asylum seekers to relocate. The restrictive proposals accounted for in an earlier section also appear problematic from a rights- and legitimacybased perspective. A gradual worsening of the situation could be avoided if Member States devote themselves to a package consisting of three parts: e@

e

e

The Dublin Regulation must be abandoned and asylum seekers shall gradually be granted free movement within the EU. The Dublin system is poorly functioning and asylum seekers are already moving between Member States. To patch up Dublin by adding a planeconomic redistribution system will lead to further complications, further violence and further attempts at circumvention. Rights protection must be strengthened in most EU Member States’ reception systems. The cost for this is likely to be high and it is doubtful that the southern European Member States can finance it on their own, with Greece being the most extreme example of a state with great needs and small resources. Other states must step in and funds must be redistributed at the EU level to a greater extent than today. Monitoring rights compliance must be intensified through domestic courts, the CJEU, international courts and supervisory agencies. Today certain states benefit from setting aside basic rights for some time, fully aware that they might get a slap on the wrist by a court — but only after a number of years. The message conveyed during this time is clear: this state implements a tough and restrictive approach.

All this could well be handled within the present structure without changes to the treaties or a major change in EU policies. But is it likely to happen? Experience gained since the 1992 Maastricht Treaty shows that the reformist agenda is doomed to stay on the sidelines. At worst it legitimizes rights violations and interstate tensions caused by the disproportionate allocation of asylum seekers and refugees. I have also explained how humanitarian visas might work to open up access to the Union for persons in need of international protection. The CJEU seems to have removed this option from the table for the time being, however. This might invite us to reflect on the type of liberalism undergirding the EU. In the beginning of this chapter, Hayek acted as a prototypical liberal thinker launching the federation as a strategy to conquer the inherent pro-

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tectionism of the nation-state. It is clear that protectionism remains strong in the EU’s approach to international mobility. We might use that fact to claim that the EU is not a liberal-federative project after all. Or we might use EU asylum and immigration policies as an invitation to inquire what its particular form of liberalism might be. The failure to address responsibility sharing and the Union’s clinging to a border control regime with disastrous effects for both asylum seekers and host states suggests that we are not dealing with ordoliberalism, which seeks to offer an orderly legal frame for the forces of the market to unfold within. While the post-2007 interventions by the European Central Bank to maintain Member State solvency during the financial crisis might be explained in ordoliberal terms, post-2015 asylum and migration control policies were more a maintenance of chaos than a resurrection of order. Hayekian neoliberalism invites us to accept a larger dose of chaos, perhaps an infinitesimally larger one. A particular form of chaos, after all is a prerequisite for the self-organizing cosmos of pricing by the market and is supposed to be minimally reined in with essential night-watchman tasks shared by state and federation. What we see in this policy area is the manifestation of the night-watchman. As we saw in the introductory section, the function of a night-watchman keeping non-white and non-European immigration at bay is well in line with von Mises’s and Hayek’s liberal thinking. With such foundational structures, any reformist practice will remain mar-

ginal. This is why I believe that it is most urgent to discuss what democracy really is in a world where people migrating is the new normal. After all, I am a jurist for a reason. When the law leads to people drowning I must be prepared to re-evaluate the law and seek new content for it. I also support democracy for a reason. When democracy is claimed to need a deadly policy to survive I have to be prepared to seek a new form for democracy.

NOTES 1.

2.

The definition of piracy in article 100 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) contains a requirement of violence, detention or depredation, which will regularly not be met in cases where migrants consent to being transported. The term ‘piracy’ might cover qualified cases of trafficking, but it is not applicable where migrants are smuggled rather than trafficked. Hayek’s treatment of colonial possessions might offer some guidance as to how the relation to less powerful entities beyond the member states of the federation should be considered: ‘the question . . . whether colonies ought to be administered by the states or by the federation, would be of comparatively minor importance. With a real open-door politics for all members of the federation, the economic advantages derived from the possession of colonies, whether the colonies were administered federally or nationally, would be the same to all the members of the federation. But, in general, it would undoubtedly be preferable that their administration should be a federal and not a state matter’ (Hayek

210

3.

The European Union [1939] 1949, p. 269). Economic advantages drawn from colonial possessions would be automatically rendered mobile through the forces of the federation’s single market. Put otherwise, they would be federalizing themselves. Hayek does not consider the costs of maintaining colonies, for example by allocating military or other resources to them. Yet Hayek must undoubtedly have been aware of these costs. Why, then, would he suggest administering them at the federal level? Would he have thought this to be part of the minimal package of federal duties? If so, why? Would it not be more in line with a Hayekian logic to see them as cause for taxation and redistribution, hence to be maintained at member state level, if only to make them part of the competition among states seeking to attract resourceful market actors? 3rpsyriacrisis.org, the webpage of the UNHCR and UNDP, continuously updates on economic needs and approved funding.

REFERENCES Bauloz, C., M. Ineli-Ciger, S. Singer and V. Stoyanova (eds) (2015), Seeking Asylum in the European Union, Leiden: Brill.

Chatty, M. (2015), ‘A Citizenship for the Migrants: EU Citizenship Making from the Rome Treaty Negotiations to the Present’, dissertation published by Orebro University: Repro. Deutschmann,

C. (2014),

‘The Future of the European

Union:

A “Hayekian”

regime?’, European Journal of Social Theory, 17 (3), 343-58. Duquet, S. and J. Wouters (2015), ‘Seeking Refuge in EU Delegations Abroad: A Legal Imbroglio Explored’, European Law Review, 40 (5), 722-43.

Ebeling, R.M. (1995), ‘The Case Against the Immigration Laws’, in R.M. Ebeling and J.G. Hornberger (eds), The Case for Free Trade and Open Immigration, The Future of Freedom

Foundation,

first edition, accessed

1 June 2017 at www.

amatecon.com/etext/cftoi/cftoi-ch17.html. Guild, E. (2015), ‘Responsibility Sharing of Asylum Seekers in the EU: Good Quality First Reception is the Key’, Verfassungsblog, 26 August, accessed 15 May 2017 at http://verfassungsblog.de/responsibility-sharing-of-asylum-seekersin-the-eu-good-quality-first-reception-is-the-key/. Guild,

E.,

C.

Costello,

M.

Garlick,

V.

Moreno-Lax

and

S.

Carrera

(2015),

‘Enhancing the Common European Asylum System and Alternatives to Dublin’, European Parliament, accessed at 11 November 2017 at https://www.ceps.eu/ system/files/CEPS_LSE_83_0.pdf. Hayek, F. ({1939] 1949), ‘The Economic Conditions of Interstate Federalism’, reprinted in F. Hayek (ed.), Individualism and Economic Order, London: Routledge and Kegan Paul. Noll, G. (2000), Negotiating Asylum. The EU Acquis, Extraterritorial Protection and the Common Market of Deflection, The Hague: Martinus Nijhoff. Noll, G. (2003), ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, European Journal of Migration and Law, 5 (3), 303-41.

Noll, G., J. Fagerlund and F. Liebaut (2003) ‘Study on the Feasibility of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure’, European Commission. Orford, A. (2012), ‘Europe Reconstructed’, Modern Law Review, 75 (2), 275-86.

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O’Rourke, K. (2001), ‘Globalization and Inequality: Historical Trends’, NBER Working Paper 8339, June, accessed 1 June 2017 at http://spazioweb.inwind.it/

uwcades/papers/glob_ineq_history.pdf. Peers, S. (2015), ‘The Calais Crisis: Which Member State is Responsible?’, EU Law Analysis, 31 July 2015, accessed 31 May 2017 at http://eulawanalysis. blogspot. se/2015/07/the-calais-crisis-which-member-state-is.html. Streeck, W. (2014), Buying Time: The Delayed Crisis of Democratic Capitalism, London: Verso. von Mises, L. ({1935] 1978), ‘The Freedom to Move as an International Problem’, in R. Ebeling (ed.), The Clash of Group Interests and Other Essays by Ludwig von Mises, New York: The Center for Libertarian Studies.

Case Law Court of Justice of the EU, C-638/16 (PPU) X and X v State of Belgium, ECLI:EU:C:2017:173. European Court of Human Rights, MSS v Belgium and Greece (2011) 53 EHRR 2. European Court of Human Rights, Tarakhel v Switzerland (2015) 60 EHRR 28. Legal Instruments Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C 115/47. Council Decision (CFSP) 2015/972 of 22 June 2015 launching the European Union military operation in the southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L 157. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L 180/31. Single European Act [1987] OJ L 169/1.

Treaty Establishing the European Economic Community (Mar 25 1957), 298 UNTS 11. Treaty on European Union [1992] OJ C 191/1. United Nations Convention on the Law of the Sea (adopted 10 Dec 1982, entered into force 16 Nov 1994), 1833 UNTS 3. Statement EU-Turkey Statement, 18 March 2016, Press Release 144/16, accessed 1 June 2017

at www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-state ment/.

10. Europe: take on your responsibilities Charlotte Wagnsson The notion of ‘taking responsibility’ is increasingly putting its imprint on the debate on international security. The US has long been pushing the European North Atlantic Treaty Organization (NATO) member states to take on more responsibility within the organization. In 2010, the then US Secretary of Defense, Robert Gates, complained about a ‘demilitarization’

of Europe that ‘has gone from a blessing in the 20th century to an impediment to achieving real security and lasting peace in the 21st’ (Knowlton, 2010). The following year he asserted that European states had to take responsibility for their collective defence to avoid NATO becoming irrelevant from a military perspective (Strauss, 2011). With the election of Donald J. Trump as the US president in November 2016, the pressure on Europe has intensified. Even before his election, Trump had indicated that

the US would not stand up for NATO members that did not meet their obligations to the alliance (Sanger and Haberman, 2016). At the Munich Security Conference in February 2017, the US Secretary of Defense, Jim Mattis, cautioned that ‘America will meet its responsibilities, but if your nations do not want to see America moderate its commitment to the alliance, each of your capitals needs to show its support for our common defense’ (Lamothe and Birnbaum, 2017).

The issue of responsibility taking in the security sphere, however, goes far beyond the internal NATO debate. Most actors want to be seen as responsible players in world affairs. Political leaders tend to frame themselves and their own solutions to security problems as responsible. British leaders and policy documents link their state’s role as a nuclear power and membership of NATO and the United Nations (UN) Security Council to an obligation to act as a responsible power on a range of issue areas (Cameron, 2012; Hague, 2013; May, 2016). The British Strategic Defence

and Security Review (HM Government, 2010, p. 3) for instance states that: ‘Our country has always had global responsibility and global ambitions’. German politicians in turn have in recent years asserted that Germany will take more responsibility for international security (Merkel, 2013; Gauck, 2014; Steinmeier, 2014). In the foreword to the German defence White

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Europe: take on your responsibilities

213

Paper, Minister of Defence Ursula Von der Leyen underlines Germany’s determination to assume responsibility: ‘In the current crises, Germany has shown that it is willing to take responsibility for security policy. We have also shown that we are prepared to take the lead’ (German Government, 2016, p. 8). Sweden’s Minister of Foreign Affairs, Margot Wallstrém (2016), has framed Sweden’s temporary seat on the UN Security Council as an opportunity to ‘take our share of responsibility for international peace and security ...’. President Vladimir Putin has stated that Russia’s actions in the Middle East have always been ‘very responsible’ and argued that they will remain so (Westcott, 2015).

Scholars also take a keen interest in issues of responsibility in the security realm, for example debating whether emerging powers will take responsibility for international institutions and norms (e.g. Larson and Shevchenko, 2010) and whether it is responsible to interfere in sovereign states in order to protect people against genocide (e.g. Pape, 2012; Bellamy, 2013). All this reflects what Bukovansky et al. (2012, p. 1) call a new phenomenon -— that political rhetoric is now ‘permeated with references to responsibility’. It is arguable that the more the labels ‘responsibility’ and ‘responsible’ are used in the security sphere, the greater the expectations will be on actors to act responsibly. Expectations of responsible action will influence policy: but is Europe willing to take responsibility? Shouldering responsibility might indeed result in increased security, but it might also lead to costly and risky commitments. What does responsibility taking encompass? Is it looking after the needs or protecting the interests of European citizens, caring for suffering people beyond European borders, upholding the global order or something new? This chapter presents some tentative answers to questions such as these. To provide a broader view of responsibility taking in Europe, it focuses on public opinion in the European Union (EU) Member States, in particular the most significant ones, and to some degree on NATO. While it

focuses primarily on hard or military security, it also views responsibility taking from the perspective of human security. The debate on human security began in the late 1990s (Paris, 2001; Kaldor et al., 2004) in connection with the scholarly ‘widening debate’, which served to broaden

the view of security from a strictly state-centred perspective to include a wider range of threats and referent objects of security. Hard security and human security complement one another. In Europe, the EU and NATO have created a kind of burden sharing to avoid wasting resources. NATO focuses primarily on military threats and hard security, and has not developed civilian capabilities on a large scale. The EU has a ‘larger toolbox’ for addressing human security but has limited military resources and largely lacks the ability to undertake strategic planning from a permanent

214

headquarters.

The European Union

In this sense, NATO

has focused more

on hard security

while the EU, being better able to address human security, has put more effort into that. Nonetheless, both actors are forced to think about human

as well as hard security to forge a stable and secure environment in and around Europe. The next section discusses three driving forces for responsibility taking. There follows a brief account of the scholarly debate on responsibility in the field of security studies. The section highlights the scholarly preoccupation with states’ responsibilities for suffering populations, for the world order and for turbulent hotspots. With this in mind, the remaining sections analyse how European leaders and citizens view threats and the need to assume responsibility, as well as the distribution of responsibilities between the EU and NATO. Finally, the chapter suggests that Europe needs to think anew about responsibility taking in the security sphere, paying increased attention to issue areas such as information warfare and the security of women. The conclusion makes recommendations on how to strengthen the EU as a responsible security actor.

WHY WOULD EUROPE WANT TO ASSUME RESPONSIBILITY? This section discusses three separate drivers of responsibility taking: US pressure, threat perceptions and the pursuit of status in international affairs. First, with regard to US pressure, the US has questioned whether Europe is taking adequate responsibility for meeting contemporary security threats. During NATO’s Libya intervention in 2011, the US demonstrated its willingness to remain in the background, ‘leading from behind’, in order to force those European states participating in the intervention to manage more on their own (Engelbrekt and Wagnsson, 2014, p.7). The US took command at the outset, but the Obama administration was clear that responsibility for the operation should be transferred to the European NATO states as soon as possible (Michaels, 2014, p.21). The US was only willing to play a supporting role in what was seen as a conflict in which primarily European vital interests were at stake. Several critical situations arose during the intervention as a result of the US unwillingness to resolve problematic situations that occurred as a result of European NATO members not allocating sufficient resources. The most serious crisis arose when the US, in spite of pressure from key NATO

member states, refused to contribute more fighter

jets, even though these were seen as essential (Michaels, 2014, pp. 28-30). The US was critical of both the participating member states for not

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contributing enough and the member states that did not participate at all (Michaels, 2014, p. 27). In the years that followed, European leaders signalled a move towards greater responsibility taking. Von der Leyen, for example, painted a picture of a more responsible Germany in the military arena (Pfister and Repinski, 2014). This trend should partly be seen against the background of Germany’s passivity during the Libyan intervention. Not only did Germany decline to participate, but its UN representative even abstained in the vote on the UN Security Council resolution that legitimized it. Analysing this decision, Adler-Nissen and Pouliot (2014, p. 903) argue that

Germany had to compensate or even ‘overcompensate’ in the years that followed by taking more responsibility in global affairs: One close partner stamped Germany as incompetent, arguing that the abstention ‘showed a delay in assuming responsibility for a country that has claimed greater responsibility in the maintenance of international peace and security’. In order to make up for their bad posture, German diplomats took a number of steps in both Brussels and New York. ... One close ally concurred that Germany had to ‘overcompensate’ for its abstention, in an attempt to regain its lost authority and, potentially, its influence.

Germany was not alone in expressing its intention to take more responsibility for common security. At the NATO summit meeting in Wales in 2014, European members that had not lived up to NATO’s goal of spending 2 per cent of gross domestic product (GDP) on defence pledged that they would do so by 2024 at the latest. The summit declaration stated that these states ‘aim to move towards the 2% guideline within a decade with a view to meeting their NATO Capability Targets and filling NATO’s capability shortfalls’ (NATO, 2014, para. 14). Second, the pressure on European states to take more responsibility is not just coming from the US. Russia’s assertive actions in Ukraine and Crimea, the threat of terrorism, the violent ravages of the Islamic

State (IS) group and the instabilities in the Middle East all put strain on European armed forces. Terrorism in particular highlights the fact that Europe must take responsibility not only by way of hard security measures, but also through preventive measures, development aid and so on. From a human security perspective, there are many other acute problems to take care of, such as environmental concerns and the vulnerable posi-

tion of women in the security sphere. The pressure on Europe to take more responsibility for human security can be illustrated by the problem of migrants drowning in the Mediterranean. A number of boats capsized in the Mediterranean in 2015, in which hundreds of people died in a short space of time, leading the editorial writer of The Economist to question

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whether the EU could still be seen as a ‘force for good’ (The Economist, 2015). Third, the pursuit of status in international affairs could be an additional driving force for assuming more responsibility. Responsibility taking can be analysed from an array of starting points. Political arguments for or against responsibility taking do not always correspond with legal or moral arguments, and vice versa. A political decision to assume responsibility can, for example, be obstructed by international law on the issue. Political and moral considerations in turn are often closely related. Politicians can be motivated to take responsibility because they want to do the right thing from a moral perspective; but moral arguments can also be used instrumentally in politics. In the latter case, leaders might frame their actions as moral and thus come to appear responsible or even admirable. The ‘real’ driving force, however, might be to gain something for their own sake — such as a reputation for their state as a responsible power, which in turn may yield a stronger position in the international arena. For example, scholars have argued that the EU has a particular ambition and the capacity to be a normative power that spreads its norms and values across the world (e.g. Manners, 2002). However, norm spreading is not the only way forward for an actor that wants to appear ‘good’; shouldering responsibility is another way to claim a role as a guardian of morality. Research

on

status among

great powers

asserts that the pursuit

of

status is an important driving force for state leaders (Paul, Larson and Wohlforth, 2014, pp. 3-29). States with high status are given greater responsibilities than other states. The five permanent members of the UN Security Council serve as the primary example. States might gain status not only by way of their material resources but also by demonstrating the kind of behaviour that is in line with the prevailing norms of the inter-

national system. Neumann and Carvalho (2014) show that the pursuit of status can be important for smaller states too. In the absence of material capabilities and opportunities to attain great power status, they could aim to be regarded as a ‘good’ power that is reliable and attracts recognition from the international system. This requires ‘symbolic capital’, which can be accumulated through means other than material resources, such as successful diplomacy or a good reputation in the cultural sphere, as a provider of economic aid, or for participation in peacekeeping missions or humanitarian aid projects. The study shows that Norway has succeeded in deploying such capital and has thus gained status in the international arena. In conclusion, politicians can undertake actions that they frame as responsible because they genuinely want to act appropriately from some kind of moral standard, or because they want to appear admirable from a moral point of view, thereby gaining status — and power — in the inter-

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national arena. The EU’s and European states’ pursuit of status is thus one answer to why they would want to assume greater responsibility for security, despite the fact that it may be costly in terms of expenditure, the lives of soldiers and complex commitments to problematic state-building processes.

THE SCHOLARLY DEBATE ON RESPONSIBILITY: PROTECTION, THE WORLD ORDER AND SHARING The wide scholarly interest in the notion of responsibility provides yet another indication that the question of taking responsibility in the security sphere is an urgent one. Wagnsson (2015) found 160 scientific articles about responsibility in the top-ranked scholarly journals on security in the previous five-year period. An analysis of these articles shows that scholars principally approach the question of responsibility from three perspectives. Even though these perspectives partly overlap, it is clear that the debate on responsibility deals with far more than just the ‘responsibility to protect’. The three major themes that interested scholars are: e

Responsibility to protect. This norm originated in a 1996 book by Francis Deng, Donald Rothchild and William Zartman. It spurred a large body of academic literature in the journal Global Responsibility to Protect. A UN document (United Nations, 2005) recognizes the

e

responsibility of states to intervene in another sovereign state’s domestic concerns in cases of, among other things, genocide. The basic idea is that a state has a responsibility towards its own population and if that state fails in this responsibility, it is the duty of other states to intervene. The norm has been invoked once — in the NATO intervention in Libya in 2011 —and is the source of continuing pollitical and scholarly discussion (Wagnsson, 2015, p. 53). Responsibility for the world order. Scholars take great interest in the special responsibilities of great powers for the global order. The major themes are the decline of the US, the transformation of the

global order and attempts to maintain the status quo (Wagnsson, 2015, pp. 53-5). Furthermore, scholars question whether great powers on the rise, especially China, will develop into responsible powers that will help maintain the current system of liberal global norms and their institutions (e.g. Ikenberry, Mastanduno and Wohlforth, 2009; Acharya, 2011; Etzioni, 2011).

e

Shared responsibility. Many scholars focus on the problems and opportunities linked to the division of responsibilities ‘in the field’.

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They treat such problems and opportunities by dividing responsibilities between actors that work in fixed alliances and those that work in more temporary or loose coalitions (Wagnsson, 2015, pp. 55-6). The focus is on who has responsibility for what in an aspect of a military

intervention

or in a military

organization;

that is, how

to determine who bears the responsibility for war crimes and the need for responsible handling of weapons of mass destruction (e.g. Andrieu, 2009; de Coning, 2010; Walker, 2010). Scholars also take an

interest in how private sector actors and individuals are being given greater responsibility in the security sphere (e.g. Berndtsson and Stern, 2011; Krahmann, 2012). Also analysed is the distribution of

responsibilities in the management of conflicts that involve a great variety of actors, such as states, regional organizations

and civil

society actors (e.g. Crocker et al., 2011). Previous research therefore has examined areas that are central to taking responsibility, in essence, for suffering populations, for the world order and for turbulent hotspots. With this in mind, the following sections seek to

identify the arenas and threats that Europe’s citizens and their leaders wish to prioritize. This section has demonstrated that it can be complicated to define responsibility and distribute it among actors. We return to the question of how responsibility can be distributed between the EU and NATO towards the end of the chapter.

EUROPEANS INCREASINGLY WORRIED ABOUT TERROR, RELIGIOUS EXTREMISM AND RUSSIA This section investigates what Europeans consider to be threats, and whether threat perceptions diverge or converge across Europe. The more they converge, the easier it should be to reach agreement on Europe taking greater responsibility. The Special Eurobarometer of 2015 focused specifically on European respondents’ perceptions of security. The results of the survey were compared with the results of a similar one in 2011 (European Commission, 2015). One general conclusion was that European respondents had become more concerned about security since 2011. Respondents increasingly prioritized security problems over other problems. The environment was an exception: the proportion of EU citizens expressing concern about the security-related aspects of environmental policy decreased from 12 per cent in 2011 to 7 per cent in 2015. Nonetheless, EU citizens paid increased attention to security issues and above all to terrorism and instability.

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In 2011, respondents were largely as worried about the economic and financial crisis as they were about international terrorism. By 2015, however, respondents saw terrorism as the most serious problem. The proportion of respondents who identified international terrorism as the biggest challenge to the security of EU citizens increased from 33 per cent in 2011 to 49 per cent in 2015. Moreover, a large majority believed that the threat would become even more severe. In 2016, the results of a Pew Research Center survey of 10 European states (France, Germany, Greece, Hungary, Italy, the Netherlands, Poland, Spain, Sweden and the UK)

confirmed that Europeans worry a lot about terrorism. The survey showed that about 70 per cent of respondents saw the IS group as a major threat (Stokes, Wike and Poushter, 2016). Nonetheless, terrorism is not the only threat on European minds. In the

2015 Eurobarometer survey, respondents could select three issues as ‘the most important challenges facing the security of EU citizens’. Terrorism aside, the challenges mentioned by more than 10 per cent of respondents were the economic and financial crisis (27 per cent), poverty, crime and corruption (23 per cent each), religious extremism (20 per cent), irregular immigration (19 per cent) and cybercrime (12 per cent). In the 2016 Pew Center survey, over half the respondents indicated that they saw climate change as a major menace. These surveys indicate some divergence in the threat perceptions of citizens in the different EU Member States, but concerns about international terrorism and IS seem to work as a uniting force. Over 50 per cent of respondents in 24 Member States mentioned terrorism as the greatest challenge to the security of EU citizens in the 2015 survey and about 70 per cent or more in each country surveyed identified IS as a major threat in the 2016 survey. Many also viewed religious extremism — a problem that many see as related to terrorism — as a major problem. The proportion of respondents who acknowledged religious extremism as the greatest threat of all increased from 6 per cent in 2011 to 20 per cent in 2015. These surveys did not list Russia as a potential threat. The Transatlantic Trends survey of 2014, however, demonstrates that a majority of European respondents are willing to take some responsibility for Ukraine by supporting it politically and economically, even if there is a risk of continued conflict with Russia (Transatlantic Trends, 2014). This could indicate that a large number of European citizens see Russia’s actions in its near neighbourhood as threatening or at least problematic. Across 10 EU Member States, 58 per cent of respondents believed that Ukraine deserved support. Respondents in northern Europe showed the strongest support for Ukraine: 73 per cent in Sweden, 67 per cent in Poland and 65 per cent in Germany. A majority of respondents in the UK and France were also

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The European Union

Table 10.1

After Ukraine, how much of a military threat is Russia to its neighbours? ( Percentage of those agreeing with the following statements ) Major threat

Minor threat

Not a threat

No answer/ do not know

Poland UK France

Spain Italy

Germany Source:

70 53 51

19 36 40

4 7 8

6 4 0

49

38

10

4

44

34

15

7

38

48

13

1

Spring 2015 Global Attitudes Survey, question 27, Pew Research Center.

willing to support Ukraine: 59 per cent of British respondents and 58 per cent of French respondents. The support was somewhat weaker in a few countries in southern Europe: 44 per cent in Greece, 48 per cent in Spain and 52 per cent in Italy. A research report in June 2015 (Pew Research Center, 2015) examined

whether the public in the major NATO member states regards Russia as a threat to neighbouring states other than Ukraine. A majority of respondents in all these states viewed Russia as either a major or a minor threat (Table 10.1). Polish respondents were most likely to view Russia as a major threat to its neighbours (70 per cent), while German respondents were least likely (38 per cent). Finally, the 2016 questionnaire provides some information about the willingness to assume responsibility for human security (Stokes, Wike and Poushter, 2016). Opinions on engagement to protect human rights vary across the 10 states surveyed. Whereas over half of respondents in Germany, Sweden, the Netherlands

and Spain see human rights as a top foreign policy priority, respondents in Hungary, Greece, Poland and Italy place less priority on the issue. In the UK and France, respondents were almost evenly divided. However, a majority of respondents in seven countries were in favour of increasing foreign aid for development — Greece, Hungary and the UK being the exceptions. In conclusion, the main finding of this section is that European public opinion is becoming increasingly concerned about security. Respondents view terrorism and the IS group as particularly troublesome. Large proportions of respondents in the major EU Member States also viewed Russia as a threat to its neighbouring states, and a majority expressed a will to support Ukraine even if it meant continued conflict with Russia.

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Respondents were to some extent split on assuming responsibility for human security in terms of human rights, but largely expressed a willingness to invest in aid for development. Overall, this indicates some diver-

gences among European respondents, but the general tendency is one of increasing anxiety, particularly with regard to terrorism. There are also some indications that respondents are inclined to view European engagement on security — whether in support of Ukraine or in terms of aid for development — in a positive light. What then about the leadership?

“THE BIG THREE’ WANT TO ASSUME RESPONSIBILITY FOR THE MIDDLE EAST AND UKRAINE To answer the question of how willing Europe as a whole is to take greater responsibility, it is useful to examine the level of political will among the ‘big three’. Thus, moving from the citizens to the leaders: how do the big three, which have a major influence on European security policy, regard threats and taking on more responsibility? Among

the EU

Member

States, the UK

is the ‘keenest’ responsibil-

ity taker. It has a long tradition of taking on expeditionary tasks and a truly global outlook on security. It has a great potential for responsibility taking: a historical legacy of acting as an imperial global force; a self-image as an internationalist power; multiple capabilities, military, economic, cultural and administrative; and a history of acting unilaterally, bilaterally or jointly with NATO and the EU. Miskimmon (2004, p.399) concludes that “The UK remains a highly engaged international actor, whose colonial past, combined with its multilateral links, give it a global reach and relative influence that few states can match’. Moreover, the ‘special relationship’ with the US generates special expectations. British leaders are prone to express a willingness to assume responsibility. To name just a few examples, both the then foreign secretary, William Hague, and the then prime minister, David Cameron, early on proposed responsibility taking behaviour in the light of the Syrian crisis. Hague (2011) called for the UN Security Council to take responsibility in facing up to the Assad regime. When it became known that chemical weapons had been used on the outskirts of Damascus, Cameron (2013) called on the governments of

the world to take responsibility in confronting the threat. on the Libyan intervention, Hague (2013, n.p.) was careful that the UK had ‘never shirked our responsibilities in NATO peace and security’. France is also a potential responsibility taker and has

Commenting to point out and to wider displayed a

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willingness to intervene militarily in hotspots, such as Mali and Libya. It is also prone to share responsibility with other EU states. For a long period, France has regarded conventional military threats to French territory as unlikely (e.g. French Ministry of Defence, 2013) and the focus has been on terrorism and other problems. These threats are more difficult to predict than traditional state-to-state conflicts. Both the UK and France have focused on prevention and stabilizing the near neighbourhood in order to reduce the risk of such threats emerging. The French Defence White Paper (French Ministry of Defence, 2013) also acknowledges that Russia has acquired more economic and military means through aggressive rearmament and its energy policy. Finally, from an economic perspective, it is not far-fetched to argue that Germany is the most likely responsibility taker. Moreover, Germany has recently signalled a willingness to assume more responsibility and, for example, taken special responsibility with France for negotiating with Russia over the crisis in Ukraine. At the Munich Security Conference in 2017, Chancellor Merkel (2017) acknowledged the obligation to reach NATO’s military spending guideline of 2 per cent of GDP, stating that ‘Germany is fully aware of its responsibility in this context’. Germany has long seen countering territorial threats using conventional means as a low priority, which explains past reductions in military personnel. Instead, Germany has highlighted the contemporary transnational threats emerging from weak and failed states and from international terrorism. Like France and the UK, Germany views weak states as greater problems that contribute to civil wars,

regional instabilities, humanitarian

crises and

related phenomena such as radicalization and large-scale migration. It is commonly argued that the threat perceptions of the leaders and citizens of eastern Europe diverge from those of the leaders and citizens of southern Europe. The former focus more on the threat from Russia and on territorial defence while the latter are more concerned about instabilities in north Africa and the Middle East, and on crisis management beyond the EU’s borders. The big three states, however, at least in their rhetoric,

display a readiness to take responsibility and handle threats from both geographical directions. Although politicians have for a long time placed most emphasis on the threats emerging from the south, all three states retain a focus on both Russia and terrorism and its related instabilities. An indication of this was given by Frank-Walter Steinmeier when he was asked about the greatest threat to Germany. While acknowledging threats from both the south and the east, he said that, whereas Ukraine is geographically closer and demands more of Germany in terms of responsibility taking, the crisis in the Middle East represents the breakdown of order in an entire region and involves fighters from Europe, including Germany (Steinmeier,

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2014). As demonstrated above, the views of political leaders on this matter

converge with public opinion. Respondents widely view both terrorism and Russia as challenges that require Europe to take on more responsibility. This bodes well for future European cooperation on taking responsibility for potential challenges from both the south and the east. Nonetheless, there are still reasons to worry. European states have not always taken responsibility in practice. Moreover, the political will to assume responsibility for common security problems might decline if Europe were to experience even greater strains linked to the problems in the Middle East or as a result of migration, if it became more divided on

political responses to Russia or if the economic realities were to become more severe. In view of the already harsh economic realities, responsibility needs to be effectively shared among actors in order to avoid duplication and inefficiency. This is the topic of the next section.

RESPONSIBILITY SHOULD EFFECTIVELY

BE SHARED

The complexity of the contemporary security environment calls for burden sharing, coordination and cooperation between different actors and on different issue areas to make responsibility taking effective. Diplomacy, the military dimension,

strategic communication,

and trade and aid all

need to be coordinated in order to build long-term security. The creation of the British Stabilization Unit is an example of institutional reform at the national level that aims to stimulate interdepartmental thinking and joint working on conflict management from different institutional perspectives. This cross-government, civil-military-police unit aims to support the British government’s efforts to tackle instability abroad (UK Foreign and Commonwealth Office, 2013).

The EU and NATO also need to agree on a rational division of labour. Germany, France and the UK have traditionally diverged in their views on which security organization is the best fit to organize out-of-area missions. The UK has always seen NATO as the obvious choice for the projection of hard power and after Brexit it will not form part of the EU. Germany

acknowledges the pros and cons duplication. A former German (2013), highlighted that NATO ‘origin, organizational structure

of both organizations and wants to avoid defence minister, Thomas De Maiziére and the EU are completely different in and procedures’:

In the future, we Europeans should be able to contribute something that others (NATO, for example) are not able to provide, as a complement to NATO,

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avoiding a duplication of effort. I am, in particular, thinking of civilian cooperation and civil-military cooperation . . . (De Maiziére, 2013, p. 8, emphasis in original)

France was not part of NATO’s integrated military structures between 1966 and 2009, but it has been active within the alliance since rejoining it. Moreover, according to the 2015 Pew Center survey, the French were most

positive about NATO: 64 per cent of the French, 60 per cent of the British and 55 per cent of Germans expressed a positive or very positive view of NATO

(Pew Research Center, 2015). In turn, 58 per cent of German

respondents had a positive or very positive view of the EU, compared to 55 per cent of French and 51 per cent of British respondents (Pew Research Center, 2015). This indicates that there are only minor differences in the

views on NATO and the EU among the public in Germany, France and the UK, which should provide politicians with a degree of room for manoeuvre when delineating responsibilities. British politicians have continued articulating and demonstrating a will to assume responsibility for global and European security after the ‘Brexit’ vote in 2016. Soon after the vote, Secretary of State for Defence Michael

Fallon assured that in line with its historic legacy Britain would remain a responsible actor in the sphere of global security: ‘Like Churchill, we believe Britain, like the US, has a responsibility not just to defend its own

security but the global system itself’ (Fallon, 2016). The Prime Minister has affirmed Britain’s special responsibilities in the global sphere of security (Almasy, 2017). Britain also demonstrated resolve by promising to stand by NATO’s 2 per cent goal; by contributing to the strengthening of NATO’s eastern flank — including taking the lead of NATO’s Very High Readiness Joint Task Force in 2017 — and by remaining engaged in EU missions, including Operation Sophia in the Mediterranean (UK Ministry of Defence, 2017). Moreover, British General Sir James Everard was assigned as NATO’s Deputy Supreme Allied Commander Europe (DSACEUR). Michael Fallon reaffirmed the British commitment to remain a leading force in European security in March 2017, arguing “We are leaving the EU but we will continue to cooperate with our European partners on defence and security’. In the same speech, he called on the EU to work even more closely with NATO in the future in order to facilitate this (UK Ministry of Defence, 2017).

After Brexit, NATO and bilateral European relations in the sphere of security will thus become more important. Still, given that Britain has prioritized NATO and given limited support to the EU’s security dimension during the past decade, Brexit will have rather limited practical consequences on the EU security policy (Heisbourg, 2016). However, it has

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a symbolic impact, substantially weakening the EU as a security actor. Moreover, the EU was a much weaker actor in the sphere of security than NATO even before Brexit. In a formal sense, the EU has similar responsibilities to NATO since its adoption of a mutual defence clause. The clause reads: 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. (Article 42(7) Treaty on European Union)

The EU has also adopted a solidarity clause, according to which: 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. (Article 222 Treaty on the Functioning of the European Union)

The EU, however, is much weaker than NATO in terms of military capabilities. The EU has focused primarily on economic sanctions in response to Russia’s actions in Crimea and Ukraine. NATO’s military response includes new military bases in eastern Europe and a rapid reaction force capable of being deployed within 48 hours. However, NATO also has 28 member states and finds it difficult to make decisions quickly. The EU, however, is much weaker as a strategic actor (Chappell, Mawdsley and Petrov, 2016, pp. 210-11). This indicates that NATO remains better suited to shoulder responsibility for ‘hard security’, while the EU is better at assuming responsibility for challenges such as environmental security, civilian crisis management and the use of non-military means, including sanctions. Nonetheless, the EU

cannot completely abandon its clause on mutual defence. It must retain some credibility in this regard, even though this should not be its primary focus. Duke and Vanhoonacker (2016, p. 164) suggest a division of tasks in which NATO takes primary responsibility for the military dimension of security, whiles the EU focuses on crisis management and a more comprehensive approach. According to Duke and Vanhoonacker (2016, p. 164), their strategies would ‘partly overlap but have different emphases’. The EU’s global strategy (European Commission, 2016, p. 19) is largely in line with this solution and indicates how such a distribution of responsibilities might look. The section on security and defence begins by arguing: ‘As Europeans we must take greater responsibility for our security’. The document states that European security and defence efforts should enable the EU to both act autonomously and contribute to and undertake actions

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in cooperation with NATO.

Nonetheless, the basic idea seems to be that

NATO will take primary responsibility for territorial takes responsibility for protection and security. The mentions ‘terrorism, hybrid threats, cybersecurity organized crime and external border management’. role in protecting Member States, some of which

defence, while the EU document specifically and energy security, It highlights the EU’s are not members of

NATO, at their request. Nonetheless, it acknowledges that NATO remains

the primary framework for collective defence for ‘most member states’. The document instead concentrates on areas where the EU wants to invest, elaborating in separate sections on counterterrorism, cybersecurity, energy security and strategic communication. Moreover, the EU launches the concept of ‘societal resilience’ in this document, which is seen as ‘the ability

of states and societies to reform, thus withstanding and recovering from internal and external crises’. The EU aims to invest in creating societal resilience in the states on its southern and eastern borders. This is a strong signal that preventive work aimed at promoting long-term security and stability will become still more important to the EU’s responsibility taking in the security sphere.

TAKE RESPONSIBILITY BY THINKING ANEW: TO HANDLE INFORMATION WARFARE

HOW

Thus far, this chapter has argued that Europe must spend more resources on defence in order to stand up to US demands, but NATO

and the EU

need to share responsibilities in a rational manner. However, taking responsibility is not just about traditional military capabilities or about rational divisions of labour. New ideas and thinking, including the preventive work on societal resilience mentioned above, can pre-empt possible threats, resolve problems and save resources. The EU’s mission EUNAVFOR MED operation Sophia is described as ‘one element of a broader EU comprehensive response to the migration issue, which seeks to address not only its physical component, but also its root causes as well including conflict, poverty, climate change and persecution’ (European External Action Service, 2017a, p. 1). This is indicative of the kind of broader approach to security that the EU should promote. Another example of the need for ‘new’ security thinking is strategic communication. Russia’s multifaceted strategy of information warfare does not require a primarily military response, but a carefully calculated strategy that includes other means. Russia’s strategy involves a wide range of efforts, such as support for extremely Eurosceptic political parties and movements such as the Front Nationale in France, the purchase of

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227

Western news agencies and state support for Russian news agencies such as RT, which spread the Russian narrative (Shevtsova, 2015; Holehouse, 2015; Robertson, 2015; Herpen, 2016). A central technique is to spread

a wide range of messages or versions of an event with varying degrees of truth, with the goal of promoting a diffuse image of an event and creating doubts about what really happened or how to interpret the political situation in a state (Pomerantsev, 2015).

The European Council stated in March 2015 that it is necessary to challenge Russia’s ongoing disinformation campaigns (Strupcezewski, 2015). In June the same year, the EU published an action plan on strategic communication (European External Action Service, 2015) and in September it set up an agency for engaging with Russian propaganda, the ‘East StratCom Task Force’ (European External Action Service, 2017b). The agency, which has around 10 employees, will coordinate the EU’s communication with its eastern neighbourhood (European External Action Service, 2015). It issues a weekly digest that monitors Russian media and exposes false information. It will also wage ‘proactive strategic communications campaigns, based on focused analysis that explains key policy areas and creates a positive EU narrative’ (European External Action Service, 2017b, n.p.). The

idea is to use traditional methods and social media to counter the ‘myths and lies’ produced by Russian-backed media in Europe and to nurture resistance to propaganda through examples of best practice on strengthening critical thinking (or media literacy) among EU citizens. In essence, the EU is attempting to take responsibility for the narrative by trying to control how security is framed in traditional and social media. There is a fine line, however, between ‘decent’ strategic communication and

‘unethical’ propaganda. (On the distinction between black, grey and white propaganda, see, e.g. Jowett and O’Donnell, 2006, pp. 16-21.) By engaging in proactive strategic communication campaigns, the EU runs the risk of being accused of using similar methods to its opponent. Moreover, the EU risks involuntarily giving credibility to Russian disinformation by reacting to it in its weekly digest. Taking responsibility in the sphere of information is thus a complex task (see Hellman and Wagnsson, 2017). It is even more difficult for a composite actor like the EU, since its Member States do not

keep to the same message, which erodes the EU’s chances of projecting a strong, coherent narrative. (On the importance of keeping to a coherent narrative, see Jakobsen and Ringsmose, 2015.)

Nonetheless, public broadcasting institutions such as Deutsche Welle and Radio France Internationale could be strengthened as vehicles for public diplomacy, aiming to disseminate accurate news and a correct image of the EU in the eastern neighbourhood (Dempsey, 2015). From a long-term perspective, disseminating knowledge of Russia in Europe and

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vice versa, and cultivating relations between European and Russian civil

society organizations, might nurture a climate in which mythmaking fails to thrive. Above all, investment in media literacy among EU citizens will be important to cultivate resistance to ‘fake news’ or disinformation. These are examples of ‘new thinking’ on security that require not military means, but a much broader range of measures.

STIMULATE DEBATE, SHARE RESPONSIBILITY, THINK LONG TERM AND THINK ANEW This chapter has argued that US pressure, as well as threats and problems in the spheres of hard and human security, are compelling Europe to take more responsibility. The pursuit of status might be an additional driver. The analysis indicates that threat perceptions are shared to a reasonable degree in Europe, and that there is the political will to handle threats and instabilities in both its southern and eastern neighbourhoods and the Middle East. Nonetheless, most EU Member States have not yet reached NATO’s goal of spending 2 per cent of GDP on defence. From a military viewpoint and the US perspective, the answer to the main question of this chapter is therefore no — Europe has not assumed enough responsibility. Calling on Europe to ‘wake up’ to realities in the security sphere, Howorth and Menon (2015) remark that many EU Member States completely lack national security strategies, while the strategies of others are inadequate. They propose that each EU Member State should publish a strategic document based on scenarios that clarify how they would act at the EU level to achieve national security goals. Experts on foreign, defence and security affairs need to discuss threat perceptions and attempt to engage the public in order to decide what threats should be prioritized and how they should be handled. A public process similar to NATO’s strategic concept process of 2009-10, including seminars and open debates, chats on relevant homepages, and so on, would stimulate public engagement in security affairs. This will be needed in order to legitimize expenditure on different areas, ranging from defence to media literacy to developmental aid. Departing from this analysis, Europe should take more responsibility to strengthen common security with the following in mind: e

Anchor the insight nationally that Europe has to take more responsibility in the security sphere. Politicians should highlight the idea that taking responsibility can provide a state with enhanced status in

Europe: take on your responsibilities

e

229

international affairs, and that the national interest might be served by providing for the collective European interest. Share and distribute responsibility effectively among different political areas and actors, including between the EU and NATO,

e

so that

burdens and resources are distributed in a rational and just manner. Think of security from both a short- and a long-term perspective, and invest in and use both military and other means. The EU needs to contribute to extinguishing acute fires, often using military means; but the EU also needs to engage in long-term measures using non-military means. The latter include promoting societal resilience, providing aid for development and working to include women in peace processes. It would serve the EU well if it launched education campaigns to improve media literacy and sourced critical insights from among its citizens. In order to strengthen the European output of information and views on the world, support for the news media sector at both the national and the European level should be increased.

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Index Adler, E. 18, 21-2, 38 administrative culture and ability to cooperate 89, 110 differences in 110-11 importance of 104-9 Afghanistan 33, 56, 71, 734 African Union (AU) 23, 37

agency problem 107-8 agricultural policy 124-8, 131-6 al-Qaeda 50-52, 72, 106 Arab League 37 Arab Spring 32-3, 70, 73 ARGUS warning system 94 Ashton, Catherine

32

asylum seekers distribution 34-5, 112 EU practice 34-5, 199-202

impact of terrorist attacks 88 joint exercise 191 logic 195-6 as ostentatiously illiberal 207 protectionist cartel 194 Bosnia 27-8, 31, 56, 74-5 bovine spongiform encephalopathy (BSE) 90, 123 Bremberg, N.

22, 28-32, 34, 38

Brexit 5, 8, 17, 60, 66, 88, 91, 186, 223-5 Britz, M. 28-9, 32, 34 Brussels attacks 3, 88, 90, 97 business angels 150-52, 158-9

business sector public financing of R&D 145-9, 158

141-2,

historical background to migration policies 194-5 humanitarian visas 205-8 protectionist solidarity in reception of 196-9

Cameron, David

relation with EU 192 resettlement 200, 202-4

CFSP see Common Foreign and Security Policy (CFSP)

as security issue 191 solution proposals 202-5, 208-9 subordination to border control 195-6 asymmetric threats 6 asymmetrical information 140, 149-50 Bakardjieva Engelbrekt, A.

168

Barnett, M. 18, 21-2 Belarus 70, 75 Bennett’s Law 122 Berlin attack 3, 6, 97

Boin, A. 18, 27, 89, 92, 94, 102-4 border control EU working on strengthening cooperation 34

scientists’ move to

156, 159

university R&D spread to 155-6 5, 212, 221

China

as competitor 141, 157 EU sanctions 74 innovation index IPR laws 154

143-5

R&D intensity 141-2 R&D personnel 143 scholarly debate on responsibility 217 trade with 126-7 UN weapons embargo 71 citizen expectations and perceptions country’s ability to handle disasters alone 98-9 EU coordination 110-11 EU’s crisis management capacity 94-5 235

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feeling no strong common identity 25 main security challenges 95, 97-8, 102, 110 own country’s crisis management capacity in relation to EU 98, 101-2 public security compared to other EU Member States 95-6, 102 receiving assistance in event of disaster

98, 102

shortage of crisis preparedness and civil protection 111 of terror, religious extremism and Russia 218-21 civil protection challenges facing EU 90-93 citizen perception of lack of 111 cooperation on

28-9, 37, 93-4, 107,

112 EU’s institutional framework 93-4 factors obstructing 110-12 Justice and Home Affairs 28 as security community building practice 29-31 trust among individuals 106 working party 30 Civil Protection Mechanism 29-30, 33, 37, 90, 93-4, 106, 109 civilian crisis management

EU ability to meet new security threats 109-11 better at assuming responsibility for 225

challenges facing 90-93 citizen expectations of capacity for 94-102, 111 institutional framework 93-4 hardware factors

91-2, 102-3

importance of social capital and administrative culture 102-9 joint capacity 1, 98, 102, 111 policy implications and conclusions 111-13 refugee crisis 88-9 software factors 91-2, 94 CJEU see Court of Justice of the European Union (CJEU)

climate change addressing

132-3, 135

citizen perception as security challenge 97, 219 as food security challenge 128, 135 fuelled with water scarcity 117 cloud computing

164, 170-73, 179

Cold War 6, 8, 19, 21-2, 25-6, 64 Commission on Human Security 6 Committee for Civilian Aspects of Crisis Management 30 Common Agricultural Policy (CAP) 124-5, 136 Common

European Asylum System

(CEAS) 195, 199, 202 Common Foreign and Security Policy (CFSP) CJEU excluded from 50-52 common defence policy under construction 56-9 decision on human smugglers 191 different actors shaping policy 45-9 economic sanctions

32, 66, 83

extent of juridification 42, 60-61 formulated within EU’s bounds 25 and High Representative 27-8, 34 legal framework for 42-61 origins 26 role of PSC 30 scope

42-5

unanimity as chief decision-making tule 53-6 see also foreign and security policy; security policy environment Common Security and Defence Policy (CSDP) decision-making 27 EU’s use of sanctions

66, 83

military and civilian operations 28, 32-3, 37 origins 26-7 role of High Representative 48 role of PSC 59 scope

56-9

as security community building practice 29-31 tasks performed outside EU 58 Copenhagen attack 6 copyright 153-4, 159 Council of Europe 24, 203

Index

Council of Ministers 31 Council of the European Union 28, 45-59, 69, 191, 198, 201 Court of Justice of the European Union (CJEU) asylum seekers 201 excluded from CFSP 50-52, 60 humanitarian visas 193, 207-8 monitoring rights compliance 199-200, 208 personal data security 166-7, 177-8,

180, 184 strengthening of position 43 Crimea 1, 70, 76-7, 81, 215, 225 crises affecting EU in recent years 1-5, 18 EU’s reactions to recent 4-5, 18 potential effects 5-6 sources of 4 crisis management see civilian crisis management

cross-border digital networks counterbalances to vulnerability associated with 186 leading to loosening of national infrastructure 186 personal integrity in 165-8 CSDP see Common Security and Defence Policy (CSDP) cyberattacks 164-5 Data Protection Directive Articles 169, 171-6 decision to replace 166 Facebook 167 move to General Data Protection

Regulation 180-87 data retention 176-9 decision-making under CFSP 47 under CSDP 27 for EU 24, 30, 50, 53-6, 58, 60, 67-8 intergovernmental 45 requirements

21

on sanctions 67-8 unanimity as chief rule in 53-6 defence policy 56-9 see also Common Security and Defence Policy (CSDP) ‘demilitarization’ of Europe’ 212

237

Deutsch, K.W.

19-21, 24, 35

Digital Rights Ireland and Seitlinger and Others 177 Dublin Regulation 195-7, 201, 208 Ebola outbreak 30, 90, 93 Economist, The

7, 215-16

Elitaliana v Eulex Kosovo 52 Engelbrekt, K. 214 EPO (European Patent Office) patents 152-3 Eriksson, M. 64-8, 71-2, 76

EU Military Committee EUAM Ukraine 56 EUCAP Nestor

30

28

EUCAP Sahel Mali 56 EUFOR Althea 28 EULEX

Kosovo

28, 31, 52, 62

EUNAVFOR Atalanta 28 EUNAVFOR MED (Operation Sophia) 56, 211, 224, 226 EUPM Bosnia 56 EUPOL COPPS 28 Euro crisis 2, 5, 18

European Coal and Steel Community (ECSC) 23, 64 European Commission

addressing importance of innovations

140

ambitions to coordinate innovation and growth 157 asylum seekers

191, 198-200

decision to trigger Article 7 of Lisbon Treaty

5

humanitarian visas 207 impact of sanctions on EU economy 79 influence over military

capabilities 27 involvement of EU Member States in disasters 31 potential tasks for 112 president of 6 publications

32, 34, 65, 93-4, 122,

128, 141-2, 144, 150, 156, 170, 218, 225 role in legal framework for CFSP 45, 47-9, 51-6, 58, 61 European Convention on Human

Rights (ECHR)

50

238

The European Union

European Council

30, 32, 34, 45-7,

53-7, 68, 140, 153, 227 European Court of Human Rights (ECtHR) 50 European Economic Area (EEA) 164-5 European Economic Community (EEC) 26 European Emergency Response

Coordination Centre (ERCC) 29-30, 37, 93-4, 107 European External Action Service (EEAS) 28, 31, 37, 42, 47-9, 60-61, 68-9, 77, 81, 83-4 European Food Safety Authority (EFSA) 123, 130 European Parliament and the Council 112, 166, 180, 187-8, 190, 211 European security community as close-knit 18-19 historical perspective 23-5 limits of 22

decision-making

threats 4-8, 89, 109-11

24, 30, 50, 53-6,

58, 60, 67-8 defence policy 56-9 as expression of liberal thought 192-3 food security 130-36 food trade

125-7, 132

as having sluggish bureaucracy 108, 110-11 household expenditure on food 121, 123-4 innovation-based growth fallen behind competitors 157 global competitors comparison 142-5 IPR 154-5 level of government support

new institutions and practices 26-9 paradox within 36 post-Cold War 25-6 European Union ability to respond to security

147-9

policy for development 157-60 PVC firms and business angels 150-51 strategy and objectives 141 threats against 141-5 unitary patent proposal

citizen perceptions of 94-102, 111 agricultural policy 124-5, 136 broad mandate for foreign policy and security 43-5 as close-knit security community 18-19 conferring voluntarily 60-61 crisis management challenges facing 90-93 citizen expectations of capacity for 94-102, 111 importance of social capital and administrative culture

to General Data Protection Regulation 180-86 and data retention 176-9 as technology-neutral 173-4, 179, 183

102-9

institutional framework for 93-4 policy implications and debate 111-13 data security legislation approach 174-6 compass for development 186-7 from Data Protection Directive

153

universities 156 migration control policies comprehensive package for 34-5 night-watchman analogy 209 in practice 199-202 reform options

202-5, 208-9

military operations 27 policies besides foreign affairs, security, and defence

44

promoting SC-building beyond its borders 36-7 recommendations for taking more responsibility 228-9 response to refugee crisis 5, 32-6, 112 sanctions basis of all 68 documents regarding 69 entities imposed on 66-7 formed in three ways 66 geo-economic challenges for 83-4

239

Index

as global actor in area of 69-75 logic of 80-83 against Russia and Ukraine 75-80 as security policy instrument 65-9 strategies for decision-making 67 targeted, as important policy instrument

64

types of 67 usage and communication of 68-9 security 80-83 security threats, growing number of

Organization (FAO)

105, 192, 194, 199, 209-10 128, 134

Food and Agriculture Organization (FAO) 116-18, 121-2, 127-31 food security addressing threats 132-5 challenges climate change 128-9 demand for food

drought

127

humus content 128-9 terrorism and conflicts

129

as collectively owned commodity 120 coping with disruptions to supply private actors 130 self-sufficiency 130 stockpiling 130-32 subsidies 132 European

food wastage 122-3 history 120-21 household expenditure

1214

117-18

genetically modified crops 127, 132-3 imports in terms of volume 125-7 improved availability and access

120-24

32

as exceptional in relation to other policy areas 45 purpose

36

solidarity required for 16-17 successful project in area of 22 see also Common Foreign and Security Policy (CFSP); security policy environment four freedoms France

8, 17

affected by sanction regimes 78 balance of power politics 24 citizen perceptions

129-30

FAO’s definition food crises 123

27-8, 30,

46-7

agreements

Facebook 7, 167, 184 FAO see Food and Agriculture federalism

Foreign Affairs Council

foreign and security policy as ‘crisis-driven’ 35 difficulty in reaching quick

14

unanimity 53-6 EUTM Mali 28 EUTM RCA 56

fish resources

isolationist policies 135-6 market-orientation and internationalisation 124-7 as matter of national security 116, 135 measurement of 121 media exposure 116-17 preconditions for 116, 118-19 principles 118-19 supply chain 118-20, 128-9

96, 99-101

cooperation after Second World War 19 Front Nationale 226 government financing of business R&D 148 handling information warfare 227 intervention in Mali

33, 221-2

Napoleonic tradition 105 as potential responsibility taker 221-2 recognition of NATO’s role 26, 224 response to Paris attacks 3, 59, 93 ‘unitary patent’ 153 view of EU 224 willingness to support

Ukraine Frontex

119-220

34, 37, 191

General Data Protection Regulation

(GDPR) Articles 169-76, 181

240

The European Union

containing extensive and complex provisions 167 direct effect in Member States 166 main elements of 182-6 move from Data Protection Directive to 180-87 genetically modified (GM) crops 127, 132-3 geo-economic challenges 83-4 geo-economic perspective 80-83 Germany affected by sanction regimes 78 as amalgamated SC 20 asylum seekers 35, 198 balance of power politics 24 business R&D investments

143,

148 citizen perceptions 96, 99-102 cooperation after Second World War

19

federalism tradition 105 food expenditure 121-2 food stockpile 131 as ‘like-minded’ country 106

potential investment strategies 151-2 strategies for 158 intellectual property rights instruments for managing reasons for offering to

153

firms 152 Swedish, and personal data security 177-9, 182, 187

government venture capital (GVC) funds 150-51, 158 Greece

affected by Russia’s countersanctions 78 asylum reception systems 205 citizen perceptions 96, 99-101 disposable income levels 124 economic redistribution for asylum 200-202 effects of World War II 121 flow of migrants into

2, 33-5, 198

re-militarization of 23-4

forest fires 29 immigration control systems 203 on increasing foreign aid for development 220

response to Arab uprisings 32 responsibility

poverty 98 sovereign debt crisis 2, 5, 18

for international security

212-13,

215 as most likely taker of 222 sharing of 223-4 show of military solidarity 3 ‘unitary patent’ 153 willingness to support Ukraine 219-20

Google search 180 government addressing failures in innovation

140, 157-9

digitalized 166 financing of R&D in business sector 145-8 direct v indirect 146-7 efficient levels of support

147-9

global 141-5 need to be more competitive 156-7 percentage directed to universities 155

as state with great needs and small resources

208

willingness to support Ukraine 220 Gullstrand, J. 125 Hv Council and Commission

52

Haiti earthquake 30, 93 Hayek, F. 192-3, 199, 208-10 High Representative for Foreign Affairs and Security Policy 27-8, 32, 34, 42, 45-9, 52, 54-5, 58-9, 61, 68 Hollande, Francois 3, 5-7 Humanitarian Aid and Civil Protection

(DG ECHO)

107, 109

humanitarian crisis 2-3, 109, 111, 117 humanitarian visas 205-8 humus content 128-9, 133 Hungary

as challenging fundamental values of EU 22 citizen perceptions floods in 29

95-6, 98-101

241

Index

on human rights as top foreign policy priority 220 on increasing foreign aid for development 220 poverty 98 refugee crisis 5, 35,91, 109

River Danube 106-7 value of cooperation with Croatia 106 Icelandic ash cloud event 91 information duty of, as principle of data protection 166-7 security, as prerequisite to protection of integrity 168-74 information warfare

7, 226-8

innovation-based growth lack of financing in commercialization phase 148-52 need for more rapid pace of innovation

157

need for reformed intellectual property rights 152-5 policy for 157-60 R&D public financing of in business sector

productivity

139, 141-5, 157

universities 155-7 integrity see personal integrity intellectual property rights (IPR) 139-40, 147, 152-5, 157, 159 intergovernmentalism

18, 24, 27, 45,

50, 53-6, 60-61 International Organization for Migration (IOM) 33-4 23, 70, 73

Islamic State in Iraq and Syria (ISIS) 3, 7, 73, 106 Israel Italy

2, 33-5, 98,

198 government financing of business R&D 148 on human rights as top foreign policy priority 220 immigration control systems 203 unitary patent proposal

124

willingness to support Ukraine 220 Japan as competitor 141, 157 disaster in 93 innovation index 144-5 patents 152 R&D investments 141-4, 157

joint crisis management capacity 102, 111 Jorgensen, C. 125 Juncker, Jean-Claude

1, 98,

6

Justice and Home Affairs (JHA) 190

28,

Kadi v Council and Commission

51-2

140, 157

supply of competent personnel 155-7

Iran

flow of migrants into

145-9

role in growth and

threats against

as amalgamated SC 20 asylum reception systems 196, 205 citizen perceptions 95-6, 99-101, 220 economic redistribution for asylum 200-202

30, 73, 151

affected by Russia’s countersanctions 78

Lebanon

30, 73, 196, 202-3

liberalism 1, 192-3, 205-9 Libya 30, 32-5, 70, 73, 214-15, 217, 221-2 like-mindedness 106-7, 110 Lisbon Treaty 5, 29, 34, 42-61, 68, 91,

110, 196 see also Treaty on European Union (TEU); Treaty on Functioning of EU (TFEU) London attacks

3, 6, 90, 97

Maastricht Treaty see Treaty on European Union (TEU) Madrid attack 28-9, 90, 97 Magnusson Sjéberg, C. 167, 181, 187 Mali 28, 33, 56, 222 Malthus, T. 118-19, 135 Manchester attack 3, 6

242

The European Union

Maximillian Schrems v Data Protection Commissioner 184 May, Theresa 203, 212

Mediterranean region multilateral efforts at civil protection in 30-31 Operation Sophia (EUNAVFOR MED) 56, 211, 224, 226 refugee crisis in 2-3, 32-7, 98, 198,

206, 215 Michalski, A. 187 Middle East assuming responsibility for 221-3, 228 climate change predictions 128 deterioration in security 32-3 focus on dangers in 16 food insecurity 116-17, 129 instabilities in 215 popular uprisings 18 Putin on Russia’s actions in 213 refugees

3, 33, 88

sanction regimes 65, 73 migration control policies border control logic 195-6 comprehensive package for 34-5 constitutional structure of exclusion 194 dimensions of solidarity and EU practice 199-202 as expression of liberal thought 193 humanitarian visas as liberal test case 205-7

night-watchman analogy 209 protectionist solidarity 196-9, 209 reform options

202-5, 208

Milenkovski, Mirjana 91 Mogherini, Federica

27-8, 46

Moldova/Transnistria 74-5 Morocco

30-31

MSS v Belgium and Greece 201 Myanmar (Burma) 70-71, 73-4 NAVFOR Med 34, 56, 211, 226 Nepal earthquake 30, 93 new public management (NPM) 105 Nice attack 3, 6, 97 Nilsson, N.

Noll, G.

187

199, 203, 207

North Africa 18, 30-33, 35, 117, 128, 222 North Atlantic Treaty Organization (NATO) 2, 7, 23-4, 26-7, 30-32, 37, 57, 212-15, 217-18, 220-26, 228-9 North Korea 73-4 Operation Mare Nostrum

34

Operation Sophia see EDNAVFOR MED Operation Triton 34 Organization for Security and Cooperation in Europe (OSCE) 24, 37 Paris attacks 3, 6-7, 59, 88, 90, 95, 97 Parker, C. 91-2

patents boxes

146, 158

copyright v 154 European Patent Office (EPO) 152-3 as output side of innovation problems with 159 unitary 153, 159 university applications 156 violations

157

154

peace promotion 60-61 PERSONA research project 89, 105 personal data security ‘big brother’ and ‘little sister’ 164 cloud computing 164, 170-73, 179, 183, 186, 188 cyberattacks 164-5 from data protection directive to general data protection regulation 180-87 data protection reform 180-81, 183, 185 data retention 176-9 e-Privacy Directive 180-81 EU law approach 174-6 EU law compass for development 186-7 Freedom of the Press Act 181 information security as prerequisite to protection of integrity 168-74 moral integrity 163, 169

243

Index

need for 164 personal integrity in cross-border digital networks 165-8 third-country transfer

172, 183

personal integrity in cross-border digital networks

support

165-8

information security as prerequisite to protection of 168-74 significance to individuals 163 Persson, T.

personnel working in 142-3 public financing of direct v indirect 146-7 potential strategies 158 suitable levels of government 147-9

types of 145-6 role in growth and productivity 157 ‘salami’ 157 spillover effects

89, 92, 103

Poland

140,

140, 145-7, 157-8

supply of competent

citizen perceptions

96, 99-101

disposable income levels 124 on human rights as top foreign policy priority 220 indicating rift between EU Member states 5

support for Ukraine 219-20 undermining fundamental values of EU 5, 22 Political and Security Committee (PSC) 30, 32, 37, 48, 59 political selfishness 5 populist parties 5, 7 private venture capital (PVC) firms 150-51, 158 protectionism 192-4, 196-9, 207-9

PSC see Political and Security Committee (PSC) Putin, Vladimir

75, 213

refugee crisis crisis management capabilities 88-9 EU response to 5, 32-6, 112

as great challenge for EU 2-3, 91 Hungarian perspective 109 Paris attacks impact towards 7 putting EU solidarity to the test 88, 91, 112 Russian media reporting on 7 sea rescue operations

34, 37

smuggling 34-5, 56, 191, 206-7 see also asylum seekers Republic of Mauritius 51 research and development (R&D) EPO patents’ negative effect on 153 EU and global competitors comparison 142-5 intensity 141-2

personnel 155-7, 159 underinvestment in 140, 158 in universities 155-7, 159-60

responsibility for crisis management 112-13, 225 drivers of pursuit of status 216-17, 228-9 threat perceptions 215-16, 228 US pressure

212, 214-15, 226, 228

effective sharing 223-6, 229 for information warfare

226-9

for Middle East and Ukraine France

221-2

Germany 222 UK 221 need for new security thinking 226-9 political leaders framing themselves as responsible 212-13 scholarly debate to protect

217

shared 217-18 for world order

217

thinking from long-term perspective 229 threat perceptions divergence of 221-3 general security issues 218 religious extremism 219 Russia 219-20, 222-3 terrorism 219, 221-3 Rosneft 52 Russia annexation of Crimea 1, 18, 70, 81,

215, 225 army support for Transnistria 75 citizen perceptions of military threat posed by 219-20, 222-3

244

The European Union

conflict in Ukraine

1, 18, 70, 215

cooperative projects 31 EU Member States’ differing views on 2

EU’s deteriorating relationship with

32

and food security 123, 129 Georgian conflict 30 information warfare

7, 226-8

not member of European SC 24 perception as source of danger 16 Putin on Middle East 213 sanctions regime

2, 5, 69-70, 75-82,

225 as trying to prevent EU enlargement 22 sanctions against asylum carriers 204 EU as global actor in area of 69-75 geo-economic challenges 83-4 as geo-economic instrument 77 geo-economic perspective 80-83 historical use of 65-6 and IPR rules

155, 159

logic of 80-83 personal data security 187 against Russia and Ukraine 75-80 as security policy instrument 65-9 targeted, as important EU policy instrument

64

as tool for military, political and economic statecraft 65 Schengen

7, 195

SCs see security communities (SCs) Secretary of State for the Home Department v Tom Watson and Others 178 security communities (SCs) ‘amalgamated’ and ‘pluralistic’ 20 concept of 19-23 CSDP and civil protection as building practices 29-31 definition 19 European 23-37 focus on changes in relations between states 20-21 mechanisms sustaining 35 political power within 21-2 practices 22-3

regional organisations 21-2 social transactions 21 security policy environment EU as actor in 77 EU sanctions in 64-9, 80, 83

geo-economic perspective 80-83 Germany taking responsibility for 213

impact of Brexit 224-5 recent events 70 see also Common Foreign and Security Policy (CFSP); foreign and security policy security threats ability of EU to respond to 4-8, 89,

109-11 citizen perceptions of 94-102, 111 challenging capacity for defence and counterattack 6 citizen perceptions of 218-21 currently facing EU 90 food 120-21, 123, 128-30, 132-5 growing number of 1-4 against innovation-based growth

139, 141-5, 157

leader perceptions of 221-3 non-military

18, 20, 27, 29, 37

to personal data 163-87 recommendations for EU responsibility 228-9 self-sufficiency 124, 127, 130-31 Smaranda Bara and Others v Casa Nationala de Asigurari de Sdandtate, CNAS and Agentia Nationalé de Administrare Fiscald, ANAF

167

social capital components

92

importance of 102-9 like-mindedness with regard to 110 social transactions 21, 24 societal resilience 226, 229

solidarity among Member States clause (Article 222)

3, 29, 58, 89, 91,

93, 225, 233 divisions within EU regarding

as EU principle 44 importance in building crisis management capacity

104

5

Index

manifestations in field of civil protection 94 mutual defence clause implying farreaching 43

mutual political 49 protectionist, in asylum

reception 196-9 question of strength 3, 25 refugee crisis challenging 88-9 risk of becoming empty slogan 112 sanction regimes 82-3 three dimensions of and EU practice 199-202 Spain affected by sanction regimes 78 citizen perceptions 96, 98-101 economic redistribution for

asylum 200 ETA movement 66, 72 Google and personal data use 180 government financing of business R&D 148 humanitarian visas 207 oilspill 29 stressing value of close cooperation 107

245

suspected al-Qaeda sympathizers 51-2 willingness to support Ukraine 119-20

‘symbolic capital’ 216 Syria 3, 5-7, 18, 32-3, 36, 70, 73, 196, 198, 202-4, 221 Taliban 50, 72-3 Tarakhel v Switzerland 201

technology counterbalances to vulnerability associated with 186-7 EU policy for development 157-60 food 133-5 information 166, 170, 173 legislation neutral to 173-4, 179,

183 Tele2 Sverige AB v Post-och telestyrelsen 178 terrorist attacks 3, 6-7, 28-9, 59, 88-93, 95, 97, 110, 112 Thatcher, Margaret 193 ‘transactional hypothesis’ 21 Treaty on European Union (TEU) Article 24(1), foreign policy and

views on human rights 220

willingness to support Ukraine 220

security 43, 46, 50-51, 53

Article 42(7), mutual-defence

spillover effects 140, 145-7, 157-8 Stockholm attack 3, 6, 97

stockpiling

130-32

and CFSP

supranationalism 5-6, 18, 24, 45, 48, 50, 53-4, 61, 192, 194, 199 Svensson, R. 146, 150-56 Sweden

asylum seekers 198, 200-201 citizen perceptions 96, 99-101 EU missions undertaken 56 food expenditure 121-2 food stockpile 131 innovation investment

151-2

member of SC 24 neutrality during world wars 121 personal data security 166, 168, 171-2, 175, 177-9, 181-2, 187-8 R&D

investments

clause 233

142-4, 148-9

R&D personnel 155-6 research project 89 responsibility 213

3, 5, 43, 58-9, 93, 225,

42-3, 49-54, 60

and CSDP 56-9 enabling far-reaching cooperation 25-6 other Articles 5, 26-7, 44-59

policy areas 45, 50 Treaty on Functioning of EU (TFEU) Article 80 and asylum seekers 196-9 Article 222, solidarity clause 3, 29, 58, 89, 91, 93, 225, 233 other Articles 28, 34, 47, 50-52, 55, 93 policy areas 45, 50, 93 rules transfer 42 Trump, Donald J. 2, 16, 212 trust

challenge of 104-9, 112 citizen, in public authorities 92-3 as component of social capital 92

246

The European Union

differences among EU crisis management authorities 89 index 95-6, 98, 101 need to safeguard mutual 17 in new ICT applications 168, 186 state 20 tsunami, southeast Asia

30, 90

Tunisia 30, 32-3, 70, 73 Turkey 31, 33, 35, 200, 202, 211 Tusk, Donald

46

UK (United Kingdom) asylum seekers

198, 207

bombing of ISIS in Syria 3 Brexit 5, 8, 60, 88, 91, 223-5 business angels 150-51 citizen perceptions 96, 99-101 endorsing endowing EU military capabilities 26 food expenditure 121-2 food stockpile 131 foreign aid for development 220 government financing of business R&D 148 as ‘like-minded’ country 106 minimalist state tradition 105 national health during World War II 121 responsibility 212, 221 sanctions historical use of 65 Zimbabwe 82 ‘special relationship’ with US 221 view of EU 224 willingness to support Ukraine 219-20 Ukraine

Security Council

27, 32, 51, 66, 71,

73, 212-13, 215-16, 221 see also Food and Agriculture Organization (FAO) unanimity 53-6 US (United States) as amalgamated SC 20 attacks against

7,71, 106

business angels as competitor

150-51 141, 157

cooperative projects 31 doubts regarding commitment to European security 2 hegemony 19 innovation index

144-5

intellectual property rights 152-5 intervention towards peace agreement

26

military capabilities 26 practising politics of finance and security 81 R&D investments 141-4, 148-9, 157 as responsibility driver 212, 214-15,

civilian mission 56 conflict with Russia

Article 51 59, 225 respect for principles of 44 Convention on Law of the Sea 209, 211 document on global responsibility 217 High Commissioner for Human Rights 91 identification of security threats 6 Millennium Development Goals 117 refugee agency (UNHCR) 33 sanctions 65

1—2, 18, 215

cooperative projects 31 differing national approaches to crisis in 36, 80

European citizens’ willingness to support 119-20 European responsibility for 219,

222-3 as major grain producer 123 sanctions against 70, 74-7, 80 UN (United Nations) Charter

226, 228 role as guarantor of Europe’s security 24 sanctions historical use of 65 legal doubt 68 scholarly debate on decline of 217 ‘special relationship’ with UK 221 transfer of personal data 184 view of EU military capabilities 27 venture capital (VC) fund 151, 158 Von der Leyen, Ursula 213, 215 von Mises, L. 192-3, 209

Index Wagnsson, C. 214, Wallstr6m, Margot wars 20, 23, 36, 64, water scarcity 117, Widmalm, S. 105

217-18, 227 213 97, 120-21, 130 128-9, 132, 134-5

World War II 19, 22, 64, 88, 120-21, 124, 130-31 X and X v State of Belgium 207

247

Yanukovych, Viktor 76 Yugoslav civil war 26, 35, 88 Yusuf and Al Barakaat International Foundation v Council and Commission 51-2

Zimbabwe

70-72, 82