Challenges, risks and threats for security in Europe E-Book

• Herausgeber: buch & netz
• Kategorie: Fachliteratur
• Serie: EIZ Publishing
• Sprache: Englisch

Seitenzahl: 305

Veröffentlichungsjahr: 2019

Beschreibung

This publication brings together talks from the 11th Network Europe conference. The conference explored the conditions for security in 21st-century Europe and the key elements of an appropriate security architecture. Discussions focused on major security challenges such as cybercrime and migration, as well as institutional aspects, including the concept of a European army and the role of neutral states in an evolving security landscape. The publication features contributions from Vadym Barskyy, Tobias Baumgartner, Jelena Ceranic, Viorel Cibotaru, Aleksei Dolzhikov, Alena F. Douhan, Darina Dvornichenko, Itay Fishhendler, Andreas Kellerhals, Verena Murschetz, Przemyslaw Saganek, Jürgen Scheffran, and Attila Vincze. Network Europe was founded in 2003 by the Europa Institute at the University of Zurich with support from the Swiss government. It serves as a forum for scholarly exchange on legal and political aspects of European integration, bringing together researchers from across Europe.

Leseprobe

Challenges, risks and threats for security in Europe Copyright © by Europa Institut an der Universität Zürich is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License, except where otherwise noted.

© 2019 – CC BY-NC-ND

Editors: Andreas Kellerhals, Tobias Baumgartner – Europa Institut an der Universität ZürichPublishing & production: buchundnetz.comCover: buch&netzISBN: 978-3-03805-246-3 (Print – Hardcover), 978-3-03805-245-6 (Print – Softcover), 978-3-03805-305-7 (PDF), 978-3-03805-306-4 (ePub), 978-3-03805-307-1 (mobi/Kindle)DOI: https://doi.org/10.36862/eiz-246Version: 1.20-20250303

This work is available in print and various digital formats. Additional information is available at https://eizpublishing.ch/publikationen/challenges-risks-and-threats-for-security-in-europe/.

1

Preface

The conditions for security in Europe in the 21st century differ fundamentally from those in the second half of the 20th century. The consequences of the East-West conflict no longer determine the security agenda. Due to the pan-European process of integration and cooperation, European countries have for the first time in history the chance of a future together in an “area of peace, freedom, security and justice”. However, the security situation in Europe is determined by new challenges, risks and threats that appear more complex and less predictable. Security policy became a cross-cutting issue that needs to be thought along in various areas of politics and life. Comprehensive security means that external and internal as well as civilian and military security aspects are closely linked. It goes beyond the traditional security issues and includes, inter alia, instruments of economic, social, environmental, media and health policy.

In addition, today’s risks and threats are global in nature, conventional attacks have become unlikely in the foreseeable future. All the more challenges arise from phenomena which cannot be managed on the national level: attacks on the security of IT systems; international terrorism; illegal migration, unsuccessful integration; environmental catastrophes; pandemics; organized crime; scarcity of resources like energy, food and water; climate change.

Given the complexity and cross-border nature of the challenges existing security risks appear to be solvable mainly through international cooperation. The role of international organizations is becoming increasingly important. Concerned with the security in Europe are the European Union, the Council of Europe, the United Nations, the North Atlantic Treaty Organisation and the Organisation for Security and Co-operation in Europe.

The 11th Network Conference of Network Europe analysed the cornerstones of an appropriate security architecture for Europe. The conference included presentations on central security issues such as cybercrime and migration as well as on institutional issues such as the concept of a European army and the role of neutral states in the 21st century. This publication comprises the conference contributions.

September 2019

Andreas Kellerhals and Tobias Baumgartner

2

Authors

Ass. Prof. Dr. Vadym Barskyy, Odessa I. Mechnikov National University, Ukraine

Dr. Tobias Baumgartner, Europe Institute at the University of Zurich, Switzerland

Dr. Jelena Ceranic, Institute for Comparative Law Belgrade, Serbia

Dr. Viorel Cibotaru, European Institute for Political Studies, Moldova

Prof. Aleksei Dolzhikov, St. Petersburg State University, Russia

Prof. Dr. Alena F. Douhan, Belarusian State University, Belarus

Ass. Prof. Dr. Darina Dvornichenko, Odessa I. Mechnikov National University, Ukraine

Prof. Itay Fishhendler, Hebrew University of Jerusalem, Israel

Prof. Dr. Andreas Kellerhals, Europe Institute at the University of Zurich, Switzerland

Prof. Dr. Verena Murschetz, Leopold-Franzens-Universität, Austria

Prof. Dr. Przemyslaw Saganek, Polish Academy of Sciences, Poland

Prof. Dr. Jürgen Scheffran, Institute for Peace Research and Security Policy, Germany

Prof. Dr. Attila Vincze, Andrássy University Budapest, Hungary

3

Table of Contents

Concept of a European Security and Defence Union (ESDU)

Viorel Cibotaru

EU-NATO Cooperation Today and Tomorrow

Attila Vincze

East meets West – The Idea of European Integration and Security

Przemysław Saganek

Migration and European Security – with a Special Emphasis on Serbia as a Transit Country

Jelena Ceranic

Taking Public Interests Seriously? Security as a Legitimate Aim in Constitutional Adjudication in Russia

Aleksei Dolzhikov

Human Rights Dimension of Cybersecurity

Alena F. Douhan

Impact of the Annexation of the Crimea on Security Policies in Europe

Darina Dvornichenko/Vadym Barskyy

How Energy Dependency Becomes a Punitive Mea-sure in Foreign Policy: The Case of Israel and Gaza

Aleksei Dolzhikov

Cross-Border Cooperation in The Fight Against Terrorism and Organised Crime

Verena Murschetz

Climate Security and Environmental Conflict: European Perspectives

Jürgen Scheffran

Combating Cybercrime: Challenges and Strategies on the International and EU Level

Tobias Baumgartner

Concept of a European Security and Defence Union (ESDU)

Viorel Cibotaru

Table of Contents

Security Situation in EuropeEuropean Security and Defence UnionCurrent discussionPurpose of the EDSUPermanent Structured CooperationDeepening defence cooperation among EU member statesStructure and GovernanceRelevance for the security of the EU and its citizensPart of a comprehensive defence package

Security Situation in Europe

Defense matters’ has become a well-established mantra in capitals across Europe. After more than two decades of ‘strategic time-out’ characterized by budget cuts and limited expeditionary crisis management abroad, European leaders are once again pressed to focus on how to defend their territories, citizens and open societies.

The security environment in and around Europe has worsened and become more complex. Threats have multiplied. Terrorism, hybrid threats, cyber-attacks or armed conflicts in Europe and our neighbourhood can have a direct impact on the security of European citizens. When it comes to security the core interests of all EU Member States are inseparably linked.

Today’s threats do not know borders and no EU Member State can tackle them alone. A European Union that protects is what citizens expect the EU and all Member States to deliver.

French President Emmanuel Macron’s recent call for the creation of a  ‘true European army’  was dramatically echoed by German chancellor Angela Merkel  in mid-November and has brought the debate over a shared European military back into the public eye. This may mark a watershed moment in European politics. The debate has  never been far from media headlines during the European Commission Presidency of Jean-Claude Juncker, but as the past four years have seen seismic changes in global and European politics, the advent of a true European military now seems to be more likely than ever before. With the United Kingdom’s imminent departure from the Union,  increasing instability in the transatlantic relationship , the fear of  Russian military encroachment, and a worsening EU-Turkey relationship, the question in EU institutions increasingly seems to be not ‘if’ a European army ought to exist – but ‘when’ and ‘how’.

European Security and Defence Union

Current discussion

The current discussion is driven by a recognition that the EU needs to do more in the area of security and defence. Three developments in particular have pushed ESDU to the top of the Union’s agenda. Firstly, its failure to deal with the 2011 Libya crisis and the 2014 Ukraine crisis without the United States (US).

Secondly, the United Kingdom’s (UK’s) decision to leave the EU, or ‘Brexit’, which means that the Union will lose its strongest military power and the main obstacle for deeper defence cooperation.

Thirdly, concerns about America’s willingness to defend its European allies under President Donald Trump in all circumstances.

ESDU is not a new idea. It was first discussed during the Convention on the Future of Europe (CFE), which drafted the EU’s failed constitution in 2001-2003. During the CFE, France and Germany called for developing an ESDU on the grounds that ‘a Europe fully capable of taking action’ was not feasible without  ‘enhancing its military capabilities’.

The current ESDU discussion differs from the 2002-2006 one because there is now much broader support for it. Since 2016, the European Commission, the European External Action Service (EEAS), the EP, the Council of the EU, and various EU member states have expressed support for the ESDU.

The European People’s Party (EPP), which has been leading the debate on EU defense since 1992, called for an ESDU ‘worthy of that name’ in June 2015. Germany’s 2016 security policy white paper also mentioned that achieving ESDU is Berlin’s ‘long-term goal’. Furthermore, Commission President Jean-Claude Juncker’s 2017 State of the Union address stated that the EU needs  ‘a fully-fledged European Defence Union’  by 2025.

The call by Macron for a ‘true European army’ marks a significant shift in tone in French attitudes toward the idea of a shared European military. Whilst European military cooperation has existed since the Union’s foundation, the concept of a single, unified military was considered something of a taboo subject. However, with Merkel’s statement on 13 November in Strasbourg seeming to intentionally echo the language used by Macron, Europe could be seeing the first unambiguous signs of a much more cohesive Franco-German approach to a European military project than has historically been the case.

There were indications that a significant sea change in European attitudes toward shared defence was coming; the  signing  of the Permanent Structured Cooperation (PESCO) agreement by twenty-three of the twenty-eight European Union Member States was a watershed moment in European history and politics. In brief, whilst PESCO did not directly establish a European army, it did create unprecedented binding obligations for formal security cooperation between Member States, and contained pledges for increased defense spending across the Union that might ultimately lay the foundation for a European army in all but name. The groundwork for “permanent structured cooperation” between Member States in military affairs has existed  since 2009 , and since 2003 thirty-four joint missions by EU Member States have taken place under the auspices of the Common Security and Defence Policy (CSDP). However, PESCO’s signing into effect may well be seen by future generations as  the harbinger of a European army  given the unparalleled cooperation in security and defense to which it aspires. Enshrined within PESCO are  binding plans  to develop joint rapid reaction forces, new state-of-the-art European drones and armoured vehicles, and the creation of centralised European military logistics and medical command centres among other shared projects.

It should also be noted that PESCO is not the only avenue for developing military cooperation above and beyond the usual joint missions taking place under the CSDP framework. In February 2017, the Czech Republic and Romania contributed soldiers and material to a growing multinational military division led by Germany. This was not an unprecedented development – the Netherlands had previously contributed two army divisions to the same multinational brigade under the Bundeswehr. However, the fresh expansion of the multinational military unit led by Germany sparked media controversy for appearing to silently constitute and assemble  a European army in all but name  under German control. Naturally, this development gave fuel to another controversial issue at the heart of the European army concept: the issue of sovereignty.

Purpose of the EDSU

As the 2016  EPP Paper on Security and Defence  states, this is the purpose of the EU’s Common Security and Defence Policy (CSDP). Given that it should also be the main purpose of ESDU, it should be created around two main deliverables that would boost the EU’s ‘defence’ dimension: (1) an unqualified mutual defence commitment, and (2) a military Schengen area.

First, given that not all EU members are NATO members and therefore not under the protection of Article 5 of the North Atlantic Treaty, ESDU participants should commit to defending each other through all means in their power, including military force, in the event that one of them becomes subject to armed aggression.

Although this sounds similar in tone to Article 42(7) of the Treaty on EU (TEU), the so-called mutual assistance clause, it is not. Article 42(7)’s mutual assistance commitment is rendered hollow by its second paragraph, which states that it ‘shall not prejudice the specific character of the security and defence policy of certain Member States’. This means that the Article 42(2) can be interpreted in a highly subjective way. Thus, a genuine ESDU should include an unqualified mutual defence commitment.

Second, in ESDU, there should be minimal to no obstacles to moving military forces and equipment from one state to another. At the moment, such movement is hindered by various bureaucratic requirements, such as passport checks at some border crossings.

Furthermore, infrastructure problems, such as roads and bridges that cannot accommodate large military vehicles, create additional obstacles to the movement of military personnel and equipment in Europe. This is something that has also been called for by NATO, which means that it would also further boost EU-NATO cooperation.

ESDU should be created around an unqualified mutual defence commitment and a military Schengen area. These would form the core of the new defence core group, or the “Euro” of a “Defence Eurozone”.

In addition, ESDU could include looser commitments, such as a commitment by the participating EU member states to invest a certain percentage of their Gross Domestic Product (GDP) in defence; and a commitment to improve the EU’s existing rapid response capabilities, particularly the battlegroups. However, given that such commitments could eventually be ignored, they should not form the backbone of an ESDU.

Permanent Structured Cooperation

Deepening defence cooperation among EU member states

In light of a changing security environment, the EU Global Strategy for Foreign and Security Policy (EUGS) started a process of closer cooperation in security and defence. The EU Member States agreed to step up the European Union’s work in this area and acknowledged that enhanced coordination, increased investment in defence and cooperation in developing defence capabilities are key requirements to achieve it. This is the main aim of a Permanent Structured Cooperation on Security and Defence (PESCO), as outlined in the Treaty of the EU, Articles 42 (6) and 46, as well as Protocol 10. Through PESCO, Member States increase their effectiveness in addressing security challenges and advancing towards further integrating and strengthening defence cooperation within the EU framework.

This will thus enhance the EU’s capacity as an international security actor, contribute to the protection of EU citizens and maximise the effectiveness of defence spending. The difference between PESCO and other forms of cooperation is the legally binding nature of the commitments undertaken by the participating Member States. The decision to participate was made voluntarily by each participating Member State, and decision-making will remain in the hands of the participating Member States in the Council. This is without prejudice to the specific character of the security and defence policy of certain EU Member States.

On 13 November 2017, as the first formal step towards setting up PESCO, Ministers signed a common notification on the PESCO and handed it over to the High Representative and the Council. The notification sets out a list of 20 more binding common commitments in the areas of defence investment, capability development and operational readiness. It also contained proposals on the governance of PESCO and its principles. Based on this notification, on 11 December 2017, the Council took the historic step to adopt a decision establishing PESCO and its list of participants. A total of 25 Member States decided to participate in PESCO.[1]

Structure and Governance

PESCO has a two-layer structure:

• Council Level: Responsible for the overall policy direction and decision-making, including as regards the assessment mechanism to determine if participating Member States are fulfilling their commitments. Only PESCO members are voting, decisions are taken by unanimity (except decisions regarding the suspension of membership and entry of new members which are taken by qualified majority).

• Projects Level: PESCO’s effectiveness will be measured by the projects it will develop. Each project will be managed by those Member States that take part in it, under the oversight of the Council. To structure the work, a decision on general governance rules for the projects has been adopted by the Council.

PESCO Secretariat: The European Defence Agency (EDA) and the EEAS, including the EU Military Staff, are jointly providing secretariat functions for all PESCO matters, with a single point of contact for the participating Member States. Implementation of PESCO: On 6 March 2018, the Council adopted a Recommendation which sets out a roadmap for the further implementation of PESCO.

PESCO projects: A Member State owned process > PESCO projects must have a clear European added value in addressing the Union’s capability and operational needs, in line with the EU Capability Development Priorities and CARD. The projects contribute to fulfilling the more binding commitments and to achieving the EU Level of Ambition. > On 6 March 2018, the Council formally adopted the first set of 17 different projects and the project members for each of them. A second set of another 17 projects is was adopted by the Council on 20 November 2018.

The 34 projects in the areas of capability development and in the operational dimension range from the establishment of a European Medical Command, an EU Training Mission Competence Centre, Cyber Rapid Response Teams, Mutual Assistance in Cyber Security, Military Disaster Relief or an upgrade of Maritime Surveillance to the creation of an European Military Space Surveillance Awareness Network, a joint EU Intelligence School, specialised Helicopter Training as well as co-basing, which would allow the joint use of national and overseas bases.

Third States participation in PESCO projects While membership of the Permanent Structured Cooperation is only for those Member States who have undertaken the more binding commitments, third States may exceptionally participate at the level of PESCO projects. In principle before the end of 2018, the Council will agree on the general conditions under which third states may exceptionally be invited to participate in PESCO projects. It is first up to members of individual projects to consider inviting a third State that meets the general conditions. The Council will decide whether a third State meets these requirements. Following a positive decision, the project may then enter into administrative arrangement with the concerned third State, in line with procedures and decision-making autonomy of the Union. PESCO is both a permanent framework for closer cooperation and a structured process to gradually deepen defence cooperation within the Union framework. It will be a driver for integration in the field of defence. Each participating Member State provides a plan for the national contributions and efforts they have agreed to make. These national implementation plans are subject to regular assessment. This is different from the voluntary approach that is currently the rule within the EU’s Common Security and Defence Policy. PESCO is designed to contribute to making European defence more efficient and to deliver more output by providing enhanced coordination and collaboration in the areas of investment, capability development and operational readiness. Permanent structured cooperation in this domain will allow for decreasing the number of different weapons’ systems in Europe, and therefore will strengthen operational cooperation among Member States, connect their forces through increased interoperability and enhance industrial competitiveness. PESCO will help reinforce the EU’s strategic autonomy to act alone when necessary and with partners whenever possible. Whilst PESCO is underpinned by the idea that sovereignty can be better exercised when working together, national sovereignty remains effectively untouched. Military capacities developed within PESCO remain in the hands of Member States that can also make them available in other contexts such as NATO or the UN.

Relevance for the security of the EU and its citizens

On 25 June 2018, the Council adopted a Decision establishing the common set of governance rules for the PESCO projects. It includes an obligation to report on progress to the Council once a year, based on the roadmap with objectives and milestones agreed within each project. – Each year by November, the process to generate new projects will be launched in view of updating the list of projects and their participants by the Council. Assessment criteria have been developed by the PESCO secretariat to inform the evaluation of the project proposals by the participating Member States.

Part of a comprehensive defence package

PESCO is closely connected to the new Coordinated Annual Review on Defence (CARD) and the European Defence Fund (EDF). They are complementary and mutually reinforcing tools supporting Member States’ efforts in enhancing defence capabilities: CARD, run by the European Defence Agency, through the systematic monitoring of national defence spending plans, will help identify opportunities for new collaborative initiatives.

The EDF provides financial incentives for Member States to foster defence cooperation from research to the development phase of capabilities including prototypes through co-financing from the EU budget. PESCO projects may benefit from increased EU co-financing, which could amount to 30% – instead of 20% – for prototypes.

PESCO will develop capability projects responding to the EU priorities identified by EU Member States through the Capability Development Plan, also taking into account the results of the Coordinated Annual Review on Defence. Eligible projects could also benefit from financing under the EDF, as explained above.

The participating Member States are: Austria, Belgium, Bulgaria, Czech Republic, Croatia, Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Spain and Sweden. ↵

EU-NATO Cooperation Today and Tomorrow

Attila Vincze

Table of Contents

IntroductionA Historical OverviewLegal Framework: The Bonds That TieCo-operation: Capabilities, Command and TrustThe B-WordConclusions

Introduction

The EU and NATO have 22 members in common, which makes a co-operation not only reasonable but to some extent also necessary. In this sense, the 2016 NATO summit welcomed an enhanced co-operation between NATO and the EU. The conclusions of this summit recognised „the importance of a stronger and more capable European defence, which will lead to a stronger NATO, help enhance the security of all Allies, and foster an equitable sharing of the burden, benefits and responsibilities of Alliance membership”.  The NATO also encouraged further mutual steps in this area to support a strengthened strategic partnership.[1]

On 8 July 2016, the President of the European Council and the President of the European Commission, together with the Secretary General of NATO signed a Joint Declaration in Warsaw in order to reinvigorate the EU-NATO strategic partnership. Based upon this declaration a number of further actions and proposals were endorsed by the EU and NATO. On 10 July, 2018, the President of the European Council and the President of the European Commission, together with the Secretary General of NATO signed a second Joint Declaration in Brussels calling for swift and demonstrable progress in implementation.

As the Delors Institute persuasively put it, complex threats call for smart division of labour, as “neither NATO nor the EU has the toolkit to address these increasingly complex threats alone”.[2] And indeed there is considerable ongoing practical co-operation between the EU and NATO: the EU has considerable soft power and economic tools to contribute to the aims of NATO, and NATO has the capabilities to support the EU as happened during the migration crisis as ships were deployed on the Aegean Sea to assist Greece and Turkey, as well as the European Union’s border agency FRONTEX. The EU also supported NATO’s manoeuvres in Afghanistan with its diplomatic and economic capabilities. Nonetheless, it would be hard to overlook the tensions between (and within) the NATO and the EU: earlier Iraq, later Libya and most recently Iran are probably the most obvious examples.

Moreover, it is an ongoing issue since the 1960es that Europe has to develop its own defence capabilities, and cannot rely on the US. President Kennedy claimed in 1963 that the US cannot „continue to pay for the military protection of Europe while NATO states are not paying their fair share and are living off the fat of the land.” President de Gaulle also emphasized that Europe has to take its defence into its own hands.[3] Not only did Mr. Trump tweet furiously a very similar message after his election victory, but European leaders have also questioned America’s commitment during the few last years. This worry was voiced most obviously by Mrs. Merkel in the European Parliament in November 2018. There is even some detachment of the US from the defence of Europe, and there is also an observable wish for Europe to assume responsibility for her own defence, as the 70 years of NATO alliance created a kind of path towards dependency in co-operation. The following essay will firstly take a historical look at the defence co-operation, set out the legal framework of the co-operation, and consider the political context of it.

A Historical Overview[4]

Today’s hotchpotch relationship between NATO and the EU goes back to the founding years, and it is hard to understand without taking the historic events into account.

Just as the economic integration among the founding Member States of the ECSC and EEC were forged by historic pathways, amongst long-term interests and the at that time obvious threats from the Soviet Union, the military alliance was born under the very same conditions. As the Soviet threat became imminent, Harry S. Truman, the then President of the US expressed his concerns regarding Greece and Turkey in a speech to Congress on 12 March 1947 and said that “it must be policy of the United States to support free people who are resisting attempted subjugation by armed minorities or by outside pressure”. This doctrine, which required and offered economic and military assistance, framed the US policy during The Cold War.

A first European military alliance after World War II begins with the Treaty of Dunkirk between France and the UK, which later encompassed the Benelux States and so formed the WEU. This Treaty was established on the principle of mutual defence similarly to NATO, but its members were solely Western European countries.

As the first proxy war between the capitalist West and the communist East broke out in Korea, the French Prime Minister René Pléven made an unofficial proposal for a European Defence Community (hereinafter EDC) with the participation of the six ECSC Member States. The EDC Treaty had a supranational character, established common institutions, common armed forces and a common budget, something which is nowadays still trying to be achieved.

All six governments of the ECSC signed the EDC Treaty in May 1952. The German, Dutch, Belgian and Luxembourg parliaments had also ratified it by summer 1954, and, as it is well-known, the French Parliament declined its consent. After this debacle, an alternative was sought for addressing the German contribution to the defence of Western Europe, thus Germany and Italy had been inclined into a revised Brussels Treaty establishing the Western European Union (hereinafter WEU), and Germany was also admitted into NATO.

A duplication of the military alliance, a WEU in addition to NATO has been criticized as a waste of resources, a critique which is also brought up nowadays regarding the European Common Defence Policy which is that it would result in an unnecessary duplication of existing NATO capabilities.

Nonetheless, the WEU was a reaction to the failure of the EDC. As political integration had been cooled down, and European integration was focused on the Common Market, defence integration was not a central topic anymore. Besides Ireland, which has been neutral in international relations since the 1930s,[5] all EEC Member States were members of NATO as well, and hence the unsolved question of military alliance did not make too much trouble: defence and military questions were dominated by the conflict with the Soviet Union, and the common enemy overshadowed the existing tensions within the alliance.

This modus vivendi was ended by the collapse of the communist regime, which required some new objectives of the European integration as well. The reference to the WEU was repealed by the Treaty of Nice signalling the wish of the EU to assume direct responsibility for its own defence and operational capabilities.

Besides establishing European citizenship and launching the new European currency, defence integration was also supposed to be reinvigorated by the Maastricht Treaty. The Maastricht Treaty was concluded with the aim „to implement a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world”. The last 26 years did not suffice to live up to this promise and expectation, and the EU still lacks military capabilities.

Security questions were defined very narrowly however, and they included merely the so-called Petersberg Tasks: “humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peace-making.”[6] Furthermore a possibility for co-operation in the field of armaments was mentioned,[7] which does not mean the same thing as common capabilities.[8]

The EU was also obliged to respect the obligations of certain Member States, which see their common defence realised in NATO, and the CFSP had to “be compatible with the common security and defence policy established within the NATO framework”.[9] Moreover, the common defence should “not prejudice the specific character of the security and defence policy of certain Member States” which was intended to take into account the neutrality of Ireland, and later that of Austria, Finland, and Sweden. Moreover, it could have also been constructed in favour of the special status of the United Kingdom and France as nuclear powers and as permanent members of the UN Security Council.

The Treaty of Amsterdam somewhat broadened the powers of the EU, and enabled it to conclude international agreements with one or more states or an international organisation, which also might have included NATO.

The Lisbon Treaty, which in essence kept the former pillar structure regarding the Common Foreign and Security Policy,[10] widened the scope of possible enhanced co-operation to cover the whole CFSP field, including defence,[11] and added a new inbuilt closer cooperation: the ‘permanent structured co-operation’ in the field of defence,[12] and in doing so significantly modified the provisions of the TEU on European Security and Defence Policy (ESDP).[13]

Legal Framework: The Bonds That Tie

It goes without saying that every EU measure must be grounded upon a legal base set out in the Treaty.[14] A legally binding, formal co-operation between NATO and the EU would request an international agreement. This could be eventually concluded by invoking Art 37. TEU.[15]

According to Art 37 TEU, the Union may conclude agreements with one or more States or international organisations in areas of Common Foreign and Security Policy. As The Common Security and Defence Policy is an integral part of the Common Foreign and Security Policy according to Article 42 para 1 of the TFEU, international agreements might be also signed in the areas of The Common Security and Defence Policy. The aims of The Common Security and Defence Policy are peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter, which are by and large compatible with the purpose of the NATO-Treaty, as it was agreed with the intention „to unite […] efforts for collective defence and for the preservation of peace and security”. Thus, the EU has the necessary power to conclude international agreements with NATO.

Contrary to the earlier version of the Treaty on the European Union, Article 37 TEU does not contain any specific procedural rules regarding the treaty-making, which makes Art 218 TFEU and Art 31 TEU applicable and requires basically unanimity[16] of all Member States except for Denmark which opted out of common defence policy.

Reaching this unanimity might be difficult for different reasons: first, Member States who consider themselves neutral might be constitutionally barred[17] from underwriting defence agreements with NATO, and second, the very different (geo)political interests of the Member States might hinder achieving unanimity.

Ireland, Finland, Sweden, Austria, Malta and Cyprus are neutral states which is either constitutionally safeguarded or they pursue neutrality as a longstanding policy. This neutrality, irrespectively its practicality in modern times, is defined in international law as the status of a state which is not participating in an armed conflict between other states.

Therefore, a neutrality might bar member states of the EU from participating in some forms of military co-operation, especially with NATO: if neutrality bars them from being a member of NATO, it might also hinder them from co-operating with NATO. Art 42 TEU Para (2), the so-called ‘Irish Clause’ intends to address this tension within EU foreign policy,[18] according to which the policy of the EU „shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and can be compatible with the common security and defence policy established within that framework.”

It would be hard to conceive more Delphic words. Basically, it says that both a membership in NATO and a non-membership will be tolerated and is compatible with the EU membership: every European country irrespective of its membership in NATO or its neutral status may join the EU. This is of course to welcome countries, but the question at hand is whether this flexibility is compatible with an even deeper military co-operation within the EU. If the EU evolves common military capabilities, and a defence concept similar to Art V of the NATO Treaty, those EU member states which are not members of NATO will be de facto members of the alliance.[19]

Considering that all those Member States of the EU which did not opt out from CFSP are entitled to vote in CFSP issues, including any forms of co-operation with NATO, and are obliged to take a fair share of the financial and probably military burdens, it is easy to foresee some forms of tension in the case of a more and more intensive co-operation between the EU and NATO. A substantial pooling of capabilities and military command might cause tensions of constitutional significance hindering some Member States from participating similarly to the deepening of the monetary union: as too was needed in order to beef up European financial capabilities and to expand monetary powers by quantitative easing, many Member States worried as to whether these measures are compatible with their own constitutions and the powers transferred to the EU. A very similar scenario is possible in military co-operation, as well.

A further obvious challenge is of course the unanimity on which The Common Foreign and Security Policy is based, requiring all Member States (except Denmark) to agree. Putting aside legal and constitutional complications following from eventual neutrality, there are obvious political obstacles too, namely the veto power of a minority of EU Member States. The qualified majority voting, which was adopted for the single market by the Single European Act and step by step expanded to further areas, offers some useful lessons in this respect. The Ioannina Compromise of 1994,[20] which was also overtaken by the Lisbon Treaty in an updated form, shows that some Member States might find it hard not to make use of the veto power in case of essential interests. Moreover, even if there is only one Member State opposing EU policy, this Member State might challenge the decision made in the Council before the CJEU,[21] or may simply ignore a decision, as some central European states did with the refugee quotas in 2015, and refused to accept the allocated migrants.

Besides those Member States of the EU which might not be fully interested in a co-operation with NATO, NATO Member States which have eventual political conflicts with some EU Member State may create a further obstacle. It is worthwhile to look at the conflict regarding the name of the country which was called Macedonia earlier and is Northern-Macedonia. This conflict blocked any integration of Northern-Macedonia for a very long time very effectively. Turkey, a member state of NATO, is one obvious open wound, a country which is officially a candidate for EU-Membership but accession did not come nearer during the last years. In a similar situation, signing an international treaty or blocking the ratification might be used as leverage in other areas of political co-operation.

These issues, of course, raise our attention to the political dimension of co-operation.

Co-operation: Capabilities, Command and Trust

A sincere co-operation with the NATO presupposes “a stronger and more capable European defence” according to the NATO Warsaw Summit Communique. A stronger and more capable defence requires a meaningful European Army based upon economies of scale comparable to the US, Russia or China. It is remarkable that the EU has as many citizens as the USA and Russia combined, but its military capabilities are far from either of them because the EU lacks economies of scale. This, of course, cannot be achieved as long as every European national army disposes of every kind of capabilities. Therefore pooling and sharing capabilities is also needed, and the building up of European defence capabilities.

This idea is also part of a Franco-German plan called “permanent structured co-operation”, or PESCO[22] that aims to allow a kind of enhanced co-operation towards greater integration of their military capabilities. It is based upon a reactivated provision of the Lisbon Treaty that allows groups of EU countries to make progress on policies led by a vanguard of states.[23]