A European Defence Budget in an Extralegal Space
This article was published in "Roger Cole (Ed.): The European Union - Democracy or Empire", p. 37 ff. (www.pana.ie/download/EU_Democracy_Empire.pdf).
by Sabine Lösing by Sabine Lösing (DIE LINKE, MEP) and Jürgen Wagner (Informationsstelle Militarisierung e.V.)
Currently, it is the prevalent perception in Brussels that if the EU wants to establish itself as a veritable global player within the group of major powers, the construction of a powerful military establishment is inevitable. Great Britain has blocked such a development for many years. Hence, the then chair of the EU-Parliament’s Committee of Foreign Policy, Elmar Brok, explained immediately after the British EUReferendum: “The Brexit has upsides, too. The Britons have hold us back for many years. Now progress is finally being made.”
Subsequently, the EU advanced indeed a series of initiatives under German-French leadership, which Great Britain had blocked until then. The crown jewel of this military package is supposed to be the firsttime establishment of a multi-billion Euro EU defence budget, the European Defence Fund (EDF).
The following article will consider in particular the question whether the EDF is legal at all. This clarification ought to have top-priority in light of the great scope of the undertaking, which even the Commission highlights: “the Commission is prepared to engage in defence measures to an unprecedented extent [...] It will exhaust the instruments available to the EU, including EU Funding and the full potential of the treaties, aiming to establish a defence union.”
Global Strategic Framework
Only five days after the British referendum, the EU Council approved the Global Strategy, which has been the most important framework document for EU foreign and military policy since. It states that as a “global provider of security” the establishment of “autonomous” intervention capacities are required and that the “the member states [require] in consideration of the high-end military capabilities every important equipment in order to respond to external crises and maintain Europe’s security. [...] A viable, innovative and competitive European defence industry is of essential importance for the strategic autonomy of Europe and the credible CFSP [Common Foreign and Security Policy].”
Already one day before the approval of the EU Global Strategy, the German and French foreign ministers of that time, Frank-Walter Steinmeier and Jean-Marc Ayrault, set out the agenda in the paper “A strong Europe in an uncertain world”. The paper demanded that “Germany and France” should lead the way by “strengthening the efforts in the area of defence” in order to “develop the EU step after step to an independent and global actor.” In September 2016, the defence ministers of both countries published a second German-French paper. Both papers demanded an “improved” funding of EU military policy. Claude Juncker adopted this idea and suggested the establishment of an EU defence budget in his “Speech on the State of the Union 2016”.
Billions for Armament
In November 2016, the Commission suggested to pledge an annual amount of 500 Mio. Euros from the EU budget from 2021 to 2027 to EU defence research and 5 Billion Euros annually to the acquisition of armaments - equating to a total of 38.5 Billion Euros. The Council approved this in the same year. In June 2017, the Commission stated that the fund shall already start 2019 and until the end of 2020, 2.59 Billion Euros shall be allocated. Thereafter, it shall stay at the said 5.5 Billion Euros annually, of which 1.5 Billion would come from the EU budget and the rest from the member states. The Parliament and the Council will most likely pass a corresponding regulation proposal from the commission as a priority project in the course of 2018. Hence, the way is cleared to bring the de facto defence budget on its way under the term: “European program for the industrial development of the defence sector for the purpose of the promotion of the competitiveness and the innovation the defence industry of the EU”.
This title clarifies that the core concerns of the EDF are the promotion of the competitiveness and export capabilities of the local arms industry. However, the predominant purpose is to improve the military capability of the EU. Firstly, this is supposed to be achieved by counteracting the alleged underfinancing of the defence sector through the EDF. Secondly, the EDF shall exclusively finance transnational defence projects, which is supposed to trigger an increase in efficiency through the pooling of the defence sector (“consolidation”) and thus, lead to a higher military capacities.
If the savings potential of up to 100 Billion Euros annually, as predicted by the Commission, are even close to reality remains to be seen. Previous experiences with transnational EU defence projects - keyword Airbus A400M - raise significant doubts. The same applies to the aim of consolidating the EU defence sector through financial incentives: here, too, longstanding experiences from the United States point to the contrary direction.
What EU citizens expect is that the EU accepts the diverse self-inflicted crises inside and outside Europe. However, most citizens probably do not consider an expansion of the military establishment an appropriate measure. Moreover, it is downright dangerous to try to establish exactly this as a “new purpose” and meaningful “integration narrative” for Europe like the “German Institute for International and Security Affairs” does.
Legal or illegal? It doesn’t matter!
The reason why the EU has not already got itself a defence budget can be found in Article 41(2) of the Lisbon Treaty, which clearly states that the EU budget is taboo for expenditures of foreign and security policies with military implications.
Therefore, the Commission uses a trick by choosing Article 173 of the Treaty on the Functioning of the EU (TFEU) as the legal basis. The article states that the EU budget may finance measures to promote the industry’s competitiveness. Therefore, the Commission also assigned the leadership to the Committee on Industry, Research and Energy (ITRE).
However, it is not the case that the Commission can arbitrarily use any legal basis. In 2016, the European Court of Justice emphasized that if a Union act has a twofold component, with a main and an incidental one, the measure must be based solely on the legal basis required by the main one: “If an examination of a European Union measure reveals that it pursues a twofold purpose or that it comprises two components and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component.”
In the regulation, the Commission clearly declares defence policy as its predominant focal point for action: “The European defence policy was identified as a key political priority in President Juncker’s political guidelines of July 2014. […] For Europe to take over more responsibility for its defence, it is crucial to improve competitiveness and enhance innovation across the Union defence industry.” Obviously, the improvement of the competitiveness of the defence sector is seen by the Commission as a means to the end of acquiring “better” military capabilities.
Dubiously, the Commission is shooting itself in the foot with this wording. The matter gets even more bizarre under consideration of the tug war between AFET/ SEDE and ITRE that ensued shortly after the release of the Commission’s proposal. The Committee Chairs David McAllister (AFET) and Anna Fotyga (SEDE) legitimately argued that the undertaking aims to expand the military capacities of the EU, which clearly falls within their competence. Therefore, Article 173 is not applicable as a legal basis and their Committees, not ITRE, should be assigned the leadership. In this case, however, Article 41(2) would have to apply and this would spell the end for the defence fund. At least, this legal opinion has been advocated by the UK for many years. The issue was finally “solved” by Cecilia Wikström, the Chair of the Conference of Committee Chairs, who judged that the ITRE Committee should maintain the lead over the proposal while simultaneously granting AFET (SEDE) a shared competence over the Draft Regulation.
Furthermore, a request by the left political group GUE/NGL to instruct the EU-Parliament’s legal service to review the contentious legal basis of the draft regulation has been blocked by the Parliament’s President Antonio Tajani, who according to the rules should have given his approval. Instead, he referred it to the responsible ITRE Committee. The Chair of the ITRE Committee Jerzy Buzek (EPP) rejected the request. There seems to be no interest in clarifying the controversial legal basis.
This conduct alone should urge caution in relation to further advancements aiming to confer critical competences and money onto an EU level, which handles issues of the division of powers and legality in such a way.
This is a slightly updated and translated version of an article that first appeared in the October issue of the German magazine “Blätter für deutsche und internationale Politik” www.blaetter.de