THE STATE OF THE EUROPEAN UNION Towards a new legislative term

EUROPEAN DEFENCE IN THE AFTERMATH OF THE WAR IN UKRAINE: IS STRATEGIC AUTONOMY A GENUINELY SHARED AND REALISTIC OBJECTIVE? 51 The treaties since Maastricht include the possibil- ity that the EU might develop a Common Foreign and Security Policy, “including the progressive framing of a common defence policy that might lead to a common defence” (art. 24 TEU) in a gradual approach which, in its final stage, must be ratified by Member states in accordance with their internal constitutional rules. It is designed as an intergovernmental policy, which im- plies that the EU does not have its own competency in this area but instead acts as a forum in which Mem- ber states coordinate their national policies and decide on joint actions. It thus follows the traditional rules of intergovernmentability: unanimity of the Council, 5 non- participation of EU institutions, decisions that are not le- gally binding, and prohibition on the funding of military spending through the EU budget. The clearest consequence of its being an area of co- operation is the decision not to provide the EU with its own military capabilities but instead for actions to be implemented through joint operations based on “ca- pabilities provided by the Member States” (art. 42.1). The Treaty also reflects the variety of the security and defence policies of Member states, embodying both the commitment to “respect” the obligations deriving from the NATO Treaty for those Member states which belong to that organization (art. 42.2), and the desire to include neutral and non-aligned states in a policy which also provides for the use of civilian capabilities (art. 42.3). The Treaty of Lisbon, which arose out of the politi- cal initiative of the European Convention, represented a step forward in so far as it overcame the crisis manage- ment approach of previous treaties, implemented since 2003. The new turn towards a defence policy aimed both to promote cooperation between Member states to deliver excellence in military capacities and to pro- cure mutual aid and defence (Guinea 2011: 655). With respect to the first of these aims, the Treaty established a European Defence Agency with the goal of determining operational requirements, strengthening the industrial and technological base, and participating in defining a European policy on capabilities and arms. It sought to 5 It is important to note that this unanimity is an insuperable require- ment, as TEU article 30.4 expressly prohibits the possibility of applying a qualified majority to any decision which has repercussions in the military or defence sphere. tackle both the problem of fragmented expenditure and planning conducted solely at the national level, and also the lack of investment in key technologies (Common Action 2004/551/CFSP). In light of the obvious need, Member states did not wait until the Treaty came into force, and instead created the agency in 2004, embark- ing from the early years on collaborative projects to promote innovation and implement a common defence market. With the same aim, article 42.6 of the TEU creates permanent structured cooperation for “[t]hose Member states whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area”. This institution was designed with the idea of permitting variable groupings of Mem- ber states who would cooperate on a pragmatic basis to develop specific projects to enhance their capabilities. It introduces a degree of shared obligation in so far as, once the project has been established, participants take decisions by qualified majority and, in the event that a Member state fails to comply with its commitments, it can be expelled, which constitutes a sanction of a kind. Article 42.7 also includes a mutual aid and assistance clause between Member states in the event of armed aggression, which could convert the EU into a defensive alliance. So far, however, this clause has been nothing more than fine words as Member states have not devel- oped it legislatively and nor have they established the institutional procedures or political capacities necessary for its implementation. It appears that they do not wish to compete with NATO, instead preferring to respect that organization’s monopoly in guaranteeing the col- lective defence of Member states, in a kind of division of labour (Guinea 2023). Finally, it should be noted that on separate occasions two Member states obtained exceptions in defence is- sues, due in both cases to the rejection of treaty rati- fication at the referendum stage. These were Denmark in 1992, as part of the Maastricht Treaty ratification process (European Council 1992: Part B), and Ireland in 2008, to implement the Treaty of Lisbon (European Council 2008: Annex I). Both countries obtained ar- rangements not to be bound by Treaty obligations in this regard, although there is nothing to prevent them from voluntarily adhering to specific institutions or CSDP