Abstract
The idea of a common policy is, firstly, that it includes all Member States, and, secondly that it should include EU members only. The present contribution aims to assess how the Union has attempted to overcome the tension between the ambition to create a common foreign policy as a clear Union policy, and the need to pragmatically accept the fact that not all Member States are always onboard (and that third states sometimes are). The notion of ‘EU membership’ is thus approached from two different angles: 1. to what extent does EU membership entail the demand that all Member States agree to and implement CFSP decisions; and 2. to what extent is it legally possible for third states to participate in CFSP?
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Notes
- 1.
See https://ec.europa.eu/commission/presscorner/detail/en/ip_20_89. Accessed 8 July 2020; see also Communication from the Commission to the European Parliament and the Council, COM(2020) 27 final, 22 January 2020.
- 2.
See for instance Fabbrini 2019.
- 3.
- 4.
See Wessel 2007.
- 5.
See on the origins and early days of CFSP: Wessel 1999.
- 6.
See Wessel 2019.
- 7.
- 8.
Consolidated Version of the Treaty on the European Union, 2012, OJ C326 (TEU) Article 21(3); see below. See also Lonardo 2018. As argued by Larik 2013, pp. 10–11 “The Lisbon Treaty has both expanded and streamlined the Union’s global objectives. [W]e can see that the EU Treaties codify a range of global objectives both in terms of substance but also specifically harnessing law […] Together, these elements coincide with the idea of the Union as a ‘transformative power’, changing not only fundamentally the relations among its members but also of the world around it.”
- 9.
- 10.
- 11.
Emphasis added.
- 12.
Cf. Blockmans 2014a, p. 46: “More often than not, a common commitment to a shared strategic vision, treaty-based values and norms, is an insufficient basis for policy consensus on what are still perceived as different foreign policy interests and threat perceptions by individual member states.”
- 13.
Koutrakos 2017.
- 14.
The European Intervention Initiative (EI2) is a joint military project between 14 European countries outside of the existing structures. See for instance Zandee and Kruijver 2019.
- 15.
Note that this does not imply that CFSP acts are not binding on Member States; see Wessel 2015.
- 16.
TEU, above n. 8, Article 24(1): “Unanimity continues to form the basis for CFSP decisions, “except where the Treaties provide otherwise”.
- 17.
Cf. also Törő 2005, p. 63.
- 18.
TEU, above n. 8, Article 24(1): “The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.” (emphasis added).
- 19.
- 20.
In fact, so far, constructive abstention has been used only once, by a Member State. See the abstention by Cyprus in 2008 when the Council adopted the Decision establishing the EULEX Kosovo mission; Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX Kosovo, OJ L42/92, 16 February 2008; Final Communication from the Commission to the European Council, the European Parliament and the Council: A stronger global actor: a more efficient decision-making for EU Common Foreign and Security Policy, COM(2018) 647, 12 September 2018.
- 21.
In that respect it is interesting to point to the fact that apart from the previously existing possibilities for QMV under CFSP which mainly related to implementation acts, it is now possible for the Council to adopt measures on this basis following a proposal submitted by the High Representative (TEU, above at n. 8, Article 31(2)). Such proposals should, however, follow a specific request by the European Council, in which, of course, Member States can foreclose the use of QMV. In addition, QMV may be used for setting up, financing and administering a start-up fund to ensure rapid access to appropriations in the Union budget for urgent financing of CFSP initiatives (TEU, Article 41(3)). This start-up fund may be used for crisis management initiatives as well, which would potentially speed up the financing process of operations. In addition, QMV may be extended to new areas on the basis of a decision by the European Council (TEU, above n. 8, Article 31(3)).
- 22.
See also Blockmans 2018.
- 23.
Törő 2005, p. 67.
- 24.
http://europa.eu/rapid/press-release_SPEECH-17-3165_en.htm; 13 September 2017.
- 25.
Communication from the Commission to the European council, the European parliament and the Council, A stronger global actor: a more efficient decision-making for EU Common Foreign and Security Policy, Brussels, 12.9.2018 COM(2018) 647 final (https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-efficient-decision-making-cfsp-communication-647_en.pdf).
- 26.
Ibid., p. 3.
- 27.
Wessel 2021a.
- 28.
Monar 1997.
- 29.
Cf. Koutrakos 2017: “As foreign policy and security and defence lie at the core of national sovereignty, their conduct is in greater need of being attuned to the different interests which Member States have in the area of high politics. This is all the more so in the light of the wide range of diverse Member States – small and large, north and south, new and old, rich and poor.”
- 30.
Wessel 2021b.
- 31.
TEU, above n. 8, Article 13(1), as well as other provisions, including Article 21(3). Cf. also Azoulai 2018, p. 33: “Structural principles are seen as forms of rationalisation of a highly valuable but essential unstable project. To make EU law subject to structural principles is to make it and the EU more resilient”.
- 32.
Emphasis added. As these principles, the Article mentions: “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
- 33.
Nevertheless, Article 22 TEU refers to “the principles and objectives set out in Article 21”.
- 34.
See also Estrada Cañamares 2018, p. 256: “Because of its location under Article 7 TFEU, coherence can be considered a ‘Principle’ of ‘General Application’ to the Union.” Cf. Larik 2014, p. 962, who argues that the EU objectives “provide a sense of purpose as to the exercise of powers through the structures of the constitutionalised legal order”.
- 35.
It provides that: “[…] 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.” Cf. also Consolidated Version of the Treaty on the Functioning of the European Union, 2012, OJ C 326 (TFEU), Article 7: “The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.” The TEU contains four other provisions which pertain to coherence in its material and institutional dimensions. All in their own way, these provisions strengthen the relationship (or in fact, the integration) between CFSP and other external relations policies. See more extensively Wessel and Larik 2020; as well as Hillion 2012.
- 36.
Court of Justice, Commission v Luxembourg, Judgment of the Court (First Chamber), 2 June 2005, C-266/03, para 60; Court of Justice, Commission v Germany, Judgment of the Court, 5 November 2002, C-476/98, para 66. See further on the role of the Court in CFSP: Hillion and Wessel 2018.
- 37.
Cf. Cremona 2009.
- 38.
See also Piris 2010.
- 39.
Blockmans 2014a, p. 53.
- 40.
Keukeleire 2006.
- 41.
Missiroli 2000.
- 42.
Koutrakos 2017. Cf. also Declaration No. 13, indicating that the CFSP provisions: “do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations. […]”. And, Declaration No. 14, that these provisions “will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State’s membership of the Security Council of the United Nations”.
- 43.
Törő 2005, p. 63.
- 44.
Duke 2003.
- 45.
See Blockmans 2018.
- 46.
Emphasis added. See also Törő 2005, p. 70.
- 47.
Article 1 of Protocol No. 10 thus spells out that any Member State wishing to participate in PESCO should:
- 48.
Van Eekelen and Kurpas 2008.
- 49.
Council Decision (CFSP) 2017/2315 of 11 Dec. 2017 establishing permanent structured cooperation (PESCO) and determining the list of participating Member States, OJ 2017, L 331/57.
- 50.
Council Decision (CFSP) 2018/1797 of 19 November 2018 amending and updating Decision (CFSP) 2018/340 establishing the list of projects to be developed under PESCO, OJ L 294/18, 21 December 2018.
- 51.
See also the PESCO Factsheet; https://eeas.europa.eu/sites/eeas/files/pesco_factsheet_november_2018_en_0.pdf.
- 52.
Blockmans 2018, p. 1811.
- 53.
See more extensively Törő 2005.
- 54.
Cf. “We have activated a Permanent Structured Cooperation on Defence – ambitious and inclusive. Member States have committed to join forces on a regular basis, to do things together, spend together, invest together, buy together, act together. The possibilities of the Permanent Structured Cooperation are immense.” Federica Mogherini, High Representative/ Vice-President (December 2017).
- 55.
Törő 2005, p. 67.
- 56.
See already the remarks made by Prime Minister Cameron after the referendum; Tannock 2016: The EU’s negotiating guidelines for Brexit note that, “The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy.”; European Council, ‘Conclusions: Negotiating Guidelines for Brexit’ EUCO XT 20004/17, 7. See also the position paper in HM Government 2017.
- 57.
Ibid. See also the speech by PM Theresa May on 17 February 2018: “Europe’s security is our security. And that is why I have said – and I say again today – that the United Kingdom is unconditionally committed to maintaining it. The challenge for all of us today is finding the way to work together, through a deep and special partnership between the UK and the EU, to retain the co-operation that we have built and go further in meeting the evolving threats we face together.”; https://www.gov.uk/government/speeches/pm-speech-at-munich-security-conference-17-february-2018.
- 58.
See Van der Loo and Wessel 2017.
- 59.
Wessel 2018a.
- 60.
Court of Justice, Commission v Council (Kazakhstan PCA), Judgment of the Court of Justice, 04 September 2018, C-244/17, ECLI:EU:C:2018:662.
- 61.
Emphasis added.
- 62.
Comments on the Council’s Rules of Procedure, 2016, p. 16; https://www.consilium.europa.eu/media/29824/qc0415692enn.pdf. Accessed 8 July 2020. Emphasis added.
- 63.
While the Rules of Procedure of both the Council and the European Council do not address this issue expressly, these Rules imply that only representatives of Member States are present.
- 64.
Comments, above n. 62, p. 39; emphasis added. See also the European Parliament study ‘CSDP after Brexit: the way forward’, Directorate-General for External Policies, Policy Department, May 2018; http://www.europarl.europa.eu/RegData/etudes/STUD/2018/603852/EXPO_STU(2018)603852_EN.pdf.
- 65.
Rules of Procedure of the European Council, Article 4(2).
- 66.
However, despite the fact that for third states being present at European Council meeting might politically be important, the influence of this Institution on key foreign policy issues has been doubted. See Lonardo 2019, p. 51: “[…] while it is true that the European Council is influential in the external relations of the EU, this might be the case only on non-critical issues. Instead, it fails to express an influential position when highly divisive topics are on the table, and there is no evidence of its influence.”
- 67.
Cf. in relation to Brexit: Article 156 WA that deals with the budgetary questions during transition: “Until 31 December 2020, the United Kingdom shall contribute to the financing of the European Defence Agency, the European Union Institute for Security Studies, and the European Union Satellite Centre, as well as to the costs of Common Security and Defence Policy operations […]”.
- 68.
Something for instance suggested by Whitman 2016.
- 69.
- 70.
See also European Commission 2018.
- 71.
Remarks by Mogherini on EU-UK future partnership CFSP, 2018; https://eeas.europa.eu/headquarters/headquarters-homepage/44528/remarks-hrvp-mogherini-eu-institute-security-studies-event-future-eu-foreign-security-and_en.
- 72.
Lis 2017.
- 73.
- 74.
Lis 2017.
- 75.
Piris 2016. The possibility of voting rights for the UK was also excluded by the HR/VP in answering questions by reporters (Remarks by Mogherini on EU-UK future partnership CFSP, retrieved from: https://eeas.europa.eu/headquarters/headquarters-homepage/44528/remarks-hrvp-mogherini-eu-institute-security-studies-event-future-eu-foreign-security-and_en) as well as by the European Parliament in a 2018 Resolution; see European Parliament 2018.
- 76.
See on the EEA in relation to Brexit: Hillion 2018.
- 77.
- 78.
See for instance: EEA Council meetings (46th), 2016; http://www.efta.int/sites/default/files/documents/eea/eea-news/2016-11-15-eea-council-conclusions.pdf. Accessed 8 July 2020.
- 79.
See Hillion 2018.
- 80.
- 81.
Norwegian Ministry of Foreign Affairs 2018.
- 82.
Hillion 2019, p. 5.
- 83.
Cf. EU-Switzerland relations. http://www.consilium.europa.eu/en/press/press-releases/2017/02/28/conclusions-eu-swiss-confederation/. Accessed 8 July 2020.
- 84.
Partnership and Cooperation Agreement between the European Communities and their Member States, and Ukraine (Section II), opened for signature 14 June 1994, OJ L 49/3 (entered into force 1 March 1998).
- 85.
Cf. Đukanović 2015.
- 86.
Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, 2013.
- 87.
2006 EU-Georgia Action Plan; https://library.euneighbours.eu/content/eu-georgia-action-plan.
- 88.
Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, opened for signature 07 August 2017, OJ L 237 (entered into force 15 September 2017).
- 89.
Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Canada, of the other part, OJ L 329 (entered into force 28 October 2016).
- 90.
It has been observed that the ‘European Union Withdrawal Bill 2017-19’ will copy existing EU sanctions measures into UK law and may also provide a legal basis for new sanctions regimes. See Lonardo 2019.
- 91.
See the Council’s Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy (No. 11205/12, 15 June 2012) in which paras 56–57 aim at strengthening restrictive measure by the adoption of similar measures by third countries.
- 92.
- 93.
See Bakker et al. 2017. This report also provides a good overview of the current and past participation of the UK in CSDP missions.
- 94.
- 95.
Agreement between the European Union and the Republic of Turkey establishing a framework for the participation of the Republic of Turkey in the European Union crisis management operations, OJ L 189 12 July 2006, annex II, Sectio 2, Article 6(5).
- 96.
Tardy 2014.
- 97.
See also the European Parliament study ‘CSDP after Brexit: the way forward’, op.cit., at 19: “should London be granted too many privileges, many other countries would go back on the attack to call for similar rights.”
- 98.
Cameron 2017.
- 99.
Koenig 2018.
- 100.
Cf. Koutrakos 2017: “flexibility has been inherent in the conduct of the policy as a matter of practice and quite independently from the legal mechanisms set out in the Union’s primary rules.”
- 101.
See on this argument already Wessel 2007.
- 102.
Cf. Keukeleire 2006: “[U]nder certain conditions, the specialisation and division of labour among EU member states [big and small] can strengthen both the effectiveness and legitimacy of the foreign policy of the EU […].”
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Acknowledgments
Credits are due to Richard Haringsma and Eduard Hoek for their valuable work on this topic in their master theses for the European Studies programme at the University of Twente. These theses are accessible here: https://essay.utwente.nl.
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Wessel, R.A. (2021). The Participation of Members and Non-members in EU Foreign, Security and Defence Policy. In: Douma, W.T., Eckes, C., Van Elsuwege, P., Kassoti, E., Ott, A., Wessel, R.A. (eds) The Evolving Nature of EU External Relations Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-423-5_8
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Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-422-8
Online ISBN: 978-94-6265-423-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)