UK/EU Security Cooperation After Brexit: the UK Government’s Future Partnership Papers

Professor Steve Peers

The Prime Minister’s big speech in Florence has received the most attention in recent weeks, but it’s also worth looking at the UK government’s recent papers on its planned EU/UK close partnership after Brexit.  I’ll look here at the papers on two aspects of security – external security (foreign policy and defence) on the one hand, and internal security (police and criminal law cooperation) on the other. Both of them are impacted in the short term by the Florence speech, since the Prime Minister called for the current UK/EU security arrangements to apply for a period of around two years, followed by a comprehensive EU/UK security treaty. Assuming that such a transition period is agreed, the issue is what happens after that. In other words, what will be the content of that future comprehensive security treaty?

External security: Foreign policy and defence

The UK government's foreign policy paper devotes much of its space – the first 17 pages – to explaining the UK's major commitments in this field, including via its EU membership. A Martian reader would assume that the UK was applying to join the Union. Only the last few pages discuss the government’s preferred policy – which is both rather vague and highly resembles EU membership.

   

In short (although there’s no long version), the government seeks to maintain a relationship with the EU in this field that’s closer than any other non-EU country – although without offering many specifics. The government does, however, state that it wants to contribute to EU defence missions and to align sanctions regimes with the EU. The point about sanctions is particularly relevant, since the UK provides intelligence to justify their imposition and some of the individuals concerned have placed their assets in the UK.

For instance, in the recent ECJ judgment in Rosneft (discussed here), which followed a reference from the UK courts, the sanctioned company tried to reopen the case to argue that the referendum result already meant that EU sanctions ceased to apply in the UK. The ECJ simply replied that the Russian company had not explained how the Brexit vote altered the jurisdiction of the Court or the effect of its judgments.

Of course, the legal position will certainly change from Brexit Day: the UK government plans to propose a new Bill regulating post-Brexit sanctions policy in the near future, following a White Paper on this issue earlier this year (see also the government response to that consultation). One key question will be whether that Bill already attempts to regulate the UK’s post-Brexit coordination with the EU on sanctions, or whether that will be left to the Brexit negotiations to address.

This brings us to the issue of the ECJ, which is a difficult question as regards many aspects of the Brexit talks. In principle, in the area of foreign policy and defence, Brexit talks should not be too complicated by ECJ issues, since the Court has only limited jurisdiction. However, as the case of Rosneft illustrates, it does have jurisdiction over sanctions issues. In fact, there are frequent challenges to EU sanctions and many challenges are successful, so there will be a risk of divergence between EU and UK policy after Brexit that may need to be discussed. Such divergence could lead to a knock-on complication with capital movement between the UK and EU.

The paper also covers development and external migration policy, where the UK again seeks something which is both vague and much like membership – collaboration on coordinating policy. While the EU has its own development policy, Member States are free to have their own policies, subject to loose coordination – which is what the UK is aiming for as a non-member.

This was, perhaps, a missed opportunity here to touch on the most difficult issue in the talks: the financial liabilities upon leaving in the EU. Some of the EU’s spending in these areas is not part of the ordinary EU budget (as the ECJ has confirmed), although it is part of the EU negotiation position. So the UK could have addressed that issue to move talks along and to make links between ‘upfront’ and ‘future’ issues to get around sequencing problems in the Brexit talks. (The Prime Minister’s subsequent speech in Florence did not explicitly mention these funds). Furthermore, the UK government could have used this paper to reassure some febrile people that it will have a veto on what it chooses to participate in, as well as on the ECJ.

Internal security: Criminal Law and Policing

In many ways, the government paper on criminal law matters is similar to the foreign policy paper. It also starts out by saying how useful the current relationship is, for instance as regards data on wanted persons and stolen objects uploaded into the Schengen Information System, the use of the European Arrest Warrant for fast-track extradition, and the EU police intelligence agency, Europol.

What happens after Brexit? The UK paper correctly points out that the EU already has agreements in this area with many non-EU countries, particularly as regards the exchange of policing data but also as regards some forms of criminal justice cooperation. But as with foreign policy and defence, the UK wants a distinctive relationship after Brexit, given the existing close links.

Again, however, the actual content of what the UK wants is vague. Which of the current EU laws in this field which the UK has signed up to (for a summary of those laws, see my referendum briefing here) would it still like to participate in? The only clear point is that the government doesn't want direct ECJ jurisdiction. In principle, that should be fine for the long term, since the EU27 negotiation position only refers to the ECJ during a transition period. There’s no insistence on using it afterward, which is consistent with EU treaties in this field with non-EU countries.

However, some of those treaties refer to taking account of each other’s case law, and dispute settlement or (in some treaties) possible termination in the event of judicial or legislative divergences. The UK paper gives no idea of how it will tackle those issues, whereas the recent paper on the parallel issue of civil litigation (discussed here) at least indicated a willingness to require UK courts to take account of relevant ECJ rulings.

Comments

The contrast between the importance of these issues and the vagueness with which they are treated is striking. Imagine a television viewer aching to watch Tenko or Broadchurch – but having to settle for Last of the Summer Wine. It is fair to assume that the government has more detailed plans than this but doesn't want to release them; but presumably anything more specific would have opened division in the cabinet or run the perceived risk of making the government look awkward by disclosing an ultimately unsuccessful negotiation position (what the government refers to as undermining negotiations). Increasingly these papers look like an attempt to respond to poor polls about negotiations rather than a contribution to the talks.

The government does have a point, however: the UK and EU have significant shared interests in this area, and the UK has a lot to offer, in terms of its defence contribution, supply of intelligence and round-up of fugitives from other Member States, for instance. Of course, the UK benefits in turn from having swifter access to other countries’ intelligence, as well as fast track extradition and transfer of criminal evidence.  The Brexit process might also be an opportunity to address the civil liberties concerns that sometimes arise about these measures, but there is no detailed discussion of that.

It will likely be awhile before these issues are discussed in detail in the talks, and it remains to be seen how interested the EU27 side is in the UK government’s position. But at first sight, it seems possible that the future of the EU/UK relationship on security issues will not be vastly different from the present.

Barnard & Peers: chapter 25, chapter 27

JHA4: chapter II:3, II:7

Photo credit: EUobserver

Judicial control of EU foreign policy: the ECJ judgment in Rosneft

Two takes on yesterday’s ECJ ruling in Rosneft, on the challenge to EU sanctions against the Russian oil company.

Stian Øby Johansen, PhD fellow at the University of Oslo Faculty of Law*

Yesterday the Court of Justice of the European Union (the CJEU) delivered its judgment in the long-awaited Rosneft case (C-72/15, ECLI:EU:C:2017:236). The judgment clarifies some aspects of the CJEU's jurisdiction over the Common Foreign and Security Policy (CFSP). Moreover, it is an important precedent in the field of EU sanctions law generally, and also resolve some questions of interpretation that are particular to the Russian sanctions.

In this blog post I will focus on what the judgment in Rosneft adds to the existing case-law on the review of CFSP decisions. Thus, I will not be discussing any of the more specific questions of EU sanctions law nor summarize the full 197 paragraph judgment. For those looking for a quick summary of the case, I refer to the succinct post by Maya Lester QC at the Sanctions Law blog.

CFSP sanctions: decisions and implementing regulations

I have already sketched out the background of the case in considerable detail in a blog post I wrote here following the oral hearing, and I co-wrote a blog post (with Alexander Arnesen) on Verfassungsblog on the Opinion of Advocate General Wathelet.  I will not repeat all this background here. But there is a couple of details that are essential to understanding the issue at hand here and the Rosneft judgment more broadly.

Recall that EU law sanctions (also known as "restrictive measures") are enacted through a two-step process. First, the Council adopts a decision under TEU Title V, Chapter 2. This decision is then implemented in Union law (and thus domestically in the EU member states) by virtue of a regulation adopted under TFEU article 215. In the case of the Russia sanctions, as in most sanctions regimes, the wording of the respective decisions and regulations are virtually identical.

The use of two legal instruments with different legal bases -- one decision with a CFSP legal basis, and one regulation with a legal basis in the TFEU -- complicates matters when it comes to the jurisdiction of the CJEU. With regard to the regulation, the judgment in Rosneft confirms the obvious: any regulation adopted on the basis of the TFEU article 215 is within the jurisdiction of the CJEU (Rosneft paras 105-106). That is so irrespective of whether the regulation merely restates the decision.

On the other hand, the decision is a act adopted under the CFSP. The CFSP treaty provisions and acts adopted under them are carved out of the CJEU's otherwise general jurisdiction over Union law (see TEU article 24 and TFEU article 275). To this carve-out there are two exceptions, a.k.a  claw-backs: the CJEU has jurisdiction to monitor compliance with TEU article 40 and to decide on the legality of decisions concerning "restrictive measures against natural or legal persons" (emphasis added). As I will come back to, both claw-backs were at play in Rosneft.

The remainder of this blog post focuses on the CJEU's jurisdiction over such CFSP decisions, notably on the clarifications and contributions the Rosneft judgment offers to the ever-expanding case law in this field. (Key judgments in the previous years that have discussed these issues include Case C-155/14 P H v. Council et al  [2016], Case C‑439/13 P Elitaliana SpA v. EULEX Kosovo [2015], and Opinion 2/13 EU Accession to the ECHR [2014].)

The general scope of the CJEU's jurisdiction over CFSP decisions

With regard to the general scope of the CJEU's jurisdiction over CFSP decisions, the Rosneft judgment further cements the approach that has emerged in the case-law over the last couple of years.

First, the limitations on the CJEU's jurisdiction and the two claw-backs explicitly provided for in TEU article 24(1) and TFEU article 275(2) have to be taken seriously. In relation to CFSP acts, the CJEU only has jurisdiction to (1) monitor compliance with TEU article 40, and (2) decide on the legality of restrictive measures against natural or legal persons. (Rosneft para 60.)

Second, while recognizing the explicit limitations on its jurisdiction in the treaties, the CJEU reiterates that those limitations must be interpreted narrowly (Rosneft para 74-75). Or, put differently, the provisions clawing back jurisdiction must be interpreted expansively.

What is new in Rosneft is the application of these starting points to a new issue: do the claw-backs apply in the context of preliminary rulings? This question must be answered separately for the each claw-back provision (Rosneft para 61).

Preliminary rulings and the legality of CFSP decisions in light of TEU article 40

One of the easier questions before the CJEU in Rosneft was whether the validity of CFSP decisions in light of TEU Article 40 could be determined in a preliminary ruling. The identical claw-back provisions in TEU Article 24(1) and TFEU Article 275(2) simply provide that the CJEU has jurisdiction to "monitor compliance with Article 40 [TEU]".

There is nothing to suggest that such monitoring may only happen e.g  in actions for annulment. In other fields of EU law, it has long been clear that the CJEU has jurisdiction to declare Union acts invalid in preliminary rulings (see e.g. Case 314/85 Foto-Frost [1987]). Thus, due to the lack of an express and specific limitation, the CJEU concluded that its jurisdiction extended also to monitoring compliance of CFSP decisions with TEU article 40 in preliminary rulings (Rosneft paras 62-63).

Preliminary rulings and the legality of CFSP decisions concerning restrictive measures

The key jurisdictional question that the Grand Chamber had to deal with in Rosneft was whether it had jurisdiction to decide on the validity of a CFSP targeted sanctions decision in a preliminary ruling procedure. Due to the CFSP carve-out and the peculiar wording of the claw-back provision for restrictive measures in TEU article 24(1) and TFEU article 275(2), there has been significant uncertainty as to the correct answer to this question.

The relevant part of TEU article 24(1) reads as follows (emphasis added):

"The [CJEU] shall not have jurisdiction [over the CFSP], with the exception of its jurisdiction [...] to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the [TFEU]".

The relevant part of TFEU article 275(2) reads as follows (emphasis added):

"the Court shall have jurisdiction [...] to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons [adopted under the CFSP]"

In other words: TEU article 24(1) limits the jurisdiction to "certain decisions as provided for" by TFEU article 275(2), which in turn refers to "proceedings" that are "brought in accordance with the conditions laid down" in TFEU article 263(4). The latter provision provides that actions for annulment can be brought against acts of the EU institutions before the CJEU:

"Any natural or legal person may [...] institute proceedings against an act addressed to that person or which is of direct and individual concern to them and does not entail implementing measures."

The combined text of these provisions arguably suggests that the jurisdiction to determine the validity of CFSP targeted sanctions decisions only extends to actions for annulment brought by individuals. TFEU Article 263(4) ostensibly provides for the institution of proceedings for annulment; the types of acts that may be annulled are listed in TFEU Article 263(1)-(2). Conversely, then, the CJEU would lack jurisdiction to determine the validity of such a decision in a preliminary ruling. Against this, one may argue that jurisdiction to rule on the validity of Union acts is inherent to the complete system of legal remedies that the Union treaties establish.

How to solve this conundrum? AG Wathelet essentially suggested that the Court should interpret TFEU article 275(2) in the context of TEU article 24(1). In particular, he emphasized the use of the term "certain decisions" in TEU article 24(1), which suggest that the reference in TFEU article 275(2) to TFEU article 263(4) concerns the type of act (“restrictive measures”), and not the type of proceedings (i.e. actions for annulment). See AG Wathelet in Rosneft, para 61 et seq. Consequently, the validity of CFSP decisions can be determined in any kind of proceedings -- also in preliminary rulings.

A further point is that the French language version of TFEU article 275(2) differs from the English in a crucial respect. It provides that the CJEU has jurisdiction "pour controller la légalité de certaines decisions visées à l’article 275, second alinéa  [TFUE]". This seems to suggest an interpretation in line with that of AG Wathelet. Although  AG Wathelet does not discuss the language discrepancy directly, French is the "langue de travail" at the CJEU, and one may speculate that AG Wathelet relied more heavily on the French version of the treaty text than the English.

In Rosneft the CJEU reaches the same conclusion as AG Wathelet; the CJEU has jurisdiction to determine the validity of CFSP decisions in preliminary rulings. In doing so, the CJEU recognizes the textual discrepancy between the otherwise identical claw-back provisions in TFEU article 275(2) and TEU article 24(1), but not (explicitly) the linguistic discrepancy  However, it is slightly more careful than AG Wathelet in grounding its argument in other sources than (con)text -- perhaps because the Court is indeed aware of the discrepancy between the language versions.

There are in particular two supporting arguments that the CJEU relies on. First, it puts forward a systemic argument. According to the CJEU, it is "inherent" in the Union's "complete system of legal remedies or procedures that persons bringing proceedings must, when an action is brought before a national court or tribunal, have the right to challenge the legality of provisions contained in European Union acts" (Rosneft paras 67-68).

Second, the CJEU  emphasizes the fundamental rights dimension of judicial protection (Rosneft paras 69-75). As usual in cases on jurisdiction on CFSP acts, it refers in passing to the concept of the "rule of law" (Rosneft para 72). But it also refers extensively to article 47 of the Charter of Fundamental Rights (Rosneft paras 73-74). While the Charter has been mentioned in passing before in cases concerning CFSP decisions (notably in Case C-455/14 P H v. Council et al. [2016]), the emphasis has usually been on the nebulous concept of the rule of law. In Rosneft we see the reverse: an emphasis on the fundamental right of effective judicial protection, which is laid down in positive primary law in CFR article 47.

The conclusion that the CJEU draws is thus built on a principled and even more solid ground than that of AG Wathelet. The question of whether the validity of CFSP decisions can be determined in preliminary ruling proceedings must therefore be regarded as settled following the Rosneft judgment.

Graham Butler, Assistant Professor of Law, Aarhus University, Denmark

The Question

Can the Court of Justice of European Union (‘the Court’) assert jurisdiction and provide a national court with an interpretation of Union law in a case referred to it from a national court under an Article 267 TFEU preliminary reference, when the subject matter is in regard to the Common Foreign and Security Policy (CFSP)? This was one of a number of questions referred to the Court of Justice from the High Court of England and Wales in Rosneft (C-72/15). This week, the Court meeting in a Grand Chamber formation, answered this jurisdictional question in the affirmative. Given the significance of this judgment for the law of the Common Foreign and Security Policy (CFSP), and previous discussion of the Opinion of the Advocate General in 2016, yesterday’s judgment was hotly anticipated given its implications for the ‘specific rules and procedures’ that are applicable to the law of CFSP. As the Court continues in a line of case law to clarify its jurisdiction in CFSP, it is ultimately a question of constitutional importance for the Union’s external relations.

Ambiguity of the Treaties: Jurisdiction

Rosneft concerns the EU’s restrictive measure regime, more popularly known as sanctions. The governance scheme surrounding sanctions is a developed body of case law, in which individuals subject to them have the possibility to challenge them directly before the EU’s General Court, the administrative court of the Union. Given that the locus standi (standing) of taking actions to the Court is a narrow right, the use of preliminary references, otherwise known as referrals from national courts, also functions as an indirect means for legal entities to access the Court for adjudication on matters of Union law. What makes the Rosneft case noteworthy, in comparison to other aspects of CFSP and sanctions case law, is that it is the first case on the Court’s jurisdiction to rule on sanctions not taken directly to the EU General Court. Rather, the Rosneft case arrived at the Court of Justice through the preliminary reference procedure from a national court, in this case, the High Court of Justice (England and Wales) in the United Kingdom, upon the basis of Article 267 TFEU.

Sanctions have a peculiarity in their procedural sense. Firstly, it requires a CFSP Decision, done on an Article 29 TEU legal basis. Secondly, a subsequent Regulation is decided upon an Article 215 TFEU legal basis, which allows sanctions to be implemented throughout the Union. Accordingly, in Rosneft, on the table was Council Decision 2014/512/CFSP, Council Decision 2014/659/CFSP, and Council Decision 2014/872/CFSP (collectively, ‘the Decision’). Furthermore, there was Regulation 833/2014, Regulation 960/2014, and Regulation 129/2014 (collectively, ‘the Regulation’). The Decision taken by the Council, where Member States as a general rule act unanimously, were directly in response to the alleged actions of Russia in Ukraine. Substantively, the applicant contested the implementation measures by way of Regulation taken by the British Government as a result of the CFSP Decision, of which it too was part of, on the grounds that it contained ambiguities. Accordingly, the substantive question was whether the CFSP Decision was one the one hand sufficiently clear, or on the other, imprecise?

In Rosneft, both the Decision and accompanying Regulation were challenged. Yet, it is unclear whether the Court has the jurisdiction to fully answer the questions asked of it, given the first legal act is adopted on a CFSP legal basis (the Decision), and the second legal act on a non-CFSP legal basis (the Regulation). The Court’s jurisdiction in the latter is undisputed given its adoption on Article 215 TFEU, however, much more speculative and up for question is the Court’s jurisdiction on the Decision, given its adoption on a CFSP legal basis. Prior to recent treaty revision, questions surrounding the Court’s jurisdiction rumbled for decades. However, the Treaty of Lisbon, saw a flipping effect, in that jurisdiction of the Court was to be assumed, unless specifically derogated from by the Treaties. One of these derogations was acts adopted upon a CFSP legal basis, which is elaborated in Article 24(1) TEU and Article 275 TFEU.

Firstly, Article 24(1) TEU, inter alia, states that, ‘The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions [CFSP], with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’ Secondly, Article 275 TFEU states that the Court has the jurisdiction to, ‘...rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’

This consequently points to Article 263 TFEU and its fourth paragraph stating, ‘Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.’ The first and second paragraphs in Article 263 TFEU do not appear to envisage the possibility for the Court to have the ability to answer questions on preliminary references from national courts. The leading academic material of EU procedural law previously acknowledged that the Court ‘may afford possibilities’ in this area (Lenaerts et al. 2014:458), recognising that it is by no means a settled question. This is, until the right opportunity arose to address it, which was Rosneft.

So what did the Advocate-General say firstly? AG Wathelet said the Court did have the jurisdiction to answer the substantive questions of it by the national court. Yet how did he reach this view in light of the treaties, and their apparent formulation to exclude the Court in such matters? Whilst acknowledging the Court’s jurisdiction in CFSP matters appears to be limited by Article 24(1) TEU and Article 275 TFEU ‘at first sight’ (para. 39), he skirted a narrow interpretation of Article 263 TFEU and its apparent lack of foresight for seeing preliminary references in the equation. For the aforementioned Article 24(1) TEU and Article 275 TFEU, it can be assumed there was there a need for them to have the intended same effect. However, they are worded differently, and thus, the Advocate-General said, might put out the ‘false impression’, that the Court had no jurisdiction. Thus, he said, the two articles enable the Court ‘to review the compliance with Article 40 TEU of all CFSP acts’, (para. 65), regardless of what way the question ends up at the Court, that is, through a direct action, or a preliminary reference.

The Opinion of the Advocate-General is a demonstrative example of how the restatement of certain constitutional provisions within primary law have the ability to be read differently, despite the intentions of the drafters may have been for such restatements to have the same meaning. Given this part of the Opinion of the Advocate-General on jurisdiction, which was non-binding, what did the Court say, and did it reach the same conclusion?

Judgment

In the judgment issued on 28 March 2017, the Grand Chamber, before going onto matters of substance, had to handle the important question of jurisdiction, and furthermore grapple with the admissibility of the question of jurisdiction. The Council had queried whether the questions referred by the national court could have been answered in respected of the Regulation alone (non-CFSP), rather than contesting the validity of Decision (CFSP) (para. 48). Thus, along this line of thinking, the Court would then not have to assert any jurisdiction on the CFSP legal basis, for which the Council has always viciously defended against any judicial incursion by the Court (Cases C-455/14 P, H v. Council; C-439/13 P Eulex Kosovo; C-263/13 Tanzania; Opinion 2/13; and C-658/11, Mauritius). The Court rejected this Council viewpoint, stating that it is up to national courts alone to ask questions of the Court on the interpretation of Union law (para. 49). The Court was therefore only in a position to not answer a reference when it fails to have a legal question in need of answering, or is only a hypothetical question (para. 50).

The Court furthermore in its judgment stated that only focusing on reviewing the legality of the Regulation (non-CFSP), and not the questions asked of it as a whole by the national court, which would not be adequately answering questions asked of it (para. 53). Moreover, despite the sharp distinction between a CFSP act and a non-CFSP act, in order to impose a sanction within the EU legal order, the Court noted that they are inextricably tied. Given how sanctions are imposed in the EU legal order, it is a perfect demonstration of the possibility of close-knit relations between CFSP and non-CFSP legal bases, given the Court in Kadi I said the link occurs when it has been made ‘explicitly’ (Joined Cases C-402/05 P and C-415/05 P, para. 202). The Court in Rosneft however hypothesized that even if the latter Regulation implementing a CFSP Decision was to be declared invalid, that would still mean that a Member State was to conform to a CFSP Decision. Thus, in order to invalidate a Regulation following a CFSP Decision, the Court would have to have jurisdiction to examine that CFSP Decision (para. 56).

 Once the admissibility of the question of jurisdiction was answered, the Court progressed onto answering the jurisdictional questions raised, in which it concluded that, ‘Articles 19, 24 and 40 TEU, Article 275 TFEU, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Court of Justice of the European Union has jurisdiction to give preliminary rulings, under Article 267 TFEU, on the validity of an act adopted on the basis of provisions relating to the Common Foreign and Security Policy (CFSP)...’ (Ruling 1 of 3). Yet, Court’s assertion of its jurisdiction was not completely unqualified. Rather, it must be meet one of two conditions. The first condition that it may meet, is that it must relate to Article 40 TEU on the Court having the jurisdiction to determine the boundary between CFSP and non-CFSP in its border-policing role. The second condition that the Court’s allows for the assertion of its jurisdiction, is when it involves the legality of restrictive measures against natural or legal persons.

 The remark on Article 40 TEU is significant from the Court (paras. 60-63). From some corners, the Court has been subject for some remarks for not properly utilising this Article for elucidating what the precise boundaries for a CFSP and non-CFSP. To date, it has shunned such possibilities provided to it to determine the fine lines of this providing, underling the fact that CFSP is an obscure area of the treaties, legally speaking. Rosneft perhaps elucidates some reasons why Article 40 TEU has not been used by the Court to date, namely that it does ‘not make provision for any particular means by which such judicial monitoring is to be carried out’ (para. 62). Thus, given this lack of guidance, the Court finds itself falling back on Article 19 TEU to, ‘ensure that in the interpretation and application of the Treaties the law is observed.’ (paras. 62 and 75).

It was advocated nearly a decade ago that rule of law concerns could be used to provide justification for the Court’s jurisdiction in CFSP cases upon a preliminary reference (De Baere 2008:186). Whilst this can be a common phrase with large recourse in a number of situations to justify Court actions, the Court instead of utilising this argument alone here (para. 72), went one-step further. alluded to the EU’s Charter on Fundamental Rights (CFR), selected Article 47 CFR, the right to an effective remedy and a fair trial, ensuring who has ‘rights and freedoms guaranteed by the law of the Union…the right to an effective remedy’. (para. 73), as a basis for clarifying this position on its jurisdiction.

From the Court’s perspective in CFSP-related cases, it certainly does not want the possibility for national courts to test the possibility for them to attempt and try invalidate Union legal acts in whatever form (paras. 78 and 79). It it long-standing jurisprudence of the Court stemming from Foto-Frost (314/85), that it alone has the ability to invalidate Union law, which the national courts cannot do. Thus, national courts only have the possibility to invalidate implementing national measures subject to their own constitutional requirements, and not the Union legal acts themselves. The most recent example of the Court clarifying (ie. extending) its jurisdiction into the CFSP arena was H v. Council (C-455/14 P). Unlike H v. Council however (Butler 2016:677 and on this blog), in which the Court asserted jurisdiction, it then proceeded to fling the substantive matter back to the General Court for adjudication. The Court here in Rosneft had to proceed and answer the substantive questions itself, which conclusively, upheld the sanctions in question.

Analysis

The Court and the Opinion of Advocate-General on its jurisdictional points can be commended for not allowing a legal lacuna to be created by further disenfranchising CFSP as a particular sub-set of Union law, and ensuring it was kept as close of the normal rules surround preliminary references as possible. Such a situation, where jurisdiction were not asserted, could have lead national courts to not send preliminary references to the Court in further questions seeking clarification on points of Union law. This potential chilling effect would most certainly hamper not just the nature of sanctions, but also the coherent interpretation of Union law as a whole, for which the Court is the ultimate adjudicator. By coming to the conclusion that the Court did have the jurisdiction, empowering itself with the ability to answer the substantive questions, AG Wathelet acknowledged he was breaking with the view of his colleague, AG Kokott, from her view provided in Opinion 2/13 on the EU’s accession to the ECHR. AG Wathelet said that without the Court having jurisdiction, it would undermine under Articles in the Treaties, namely, Article 23 TEU, which guarantees access to a Court and effective legal protection (para. 66), which albeit by an alternative method, the Court broadly arrived at the same conclusion.

Jurisdictional questions are not just inconsequential matters in the exercise of EU foreign policy, but have ramifications for EU procedural law, and the constitutional framework in which Union law operates. The Court’s judgment, clarifying jurisdiction for itself, when it was in doubt, further widens the potential for its scope for a role in EU foreign policy. Hence, how broad a deference is there at the Court to questions that ultimately hinge upon ‘sensitive’ areas of policy? Do Member States want the Court to have jurisdiction in CFSP? The Treaties do their best to prevent it, and five of the intervening six Member States and the Council in Rosneft pleaded that the Court did not have the ability to rule on the validity of CFSP acts. Yet the Court is no stranger to such questions, as it has dealt with jurisdictional questions on sensitive areas before, albeit in a slightly different context. The Area of Freedom, Security, and Justice (‘AFSJ’ or ‘Justice and Home Affairs’)). The Gestoras (C-354/04 P) and Segi(C-355/04 P) cases here provide us with suitable examples. In a pre-Lisbon context, the Court said to interpret the cases as falling outside the scope of the then Article 35(1) TEU because they were preliminary references would not be in ‘observance of the law’. Thus, the Court ruled in both Gestoras and Segi that jurisdiction for the Court in that field was permissible.

Given the Court’s judgment here in Rosneft, there is no doubt that it had to be slightly inventive to overall what was clearly a shortcoming in the drafting of the Treaties. For the Court to have not asserted jurisdiction in Rosneft would have seemed contrary to the overall premise upon which the Union is a ‘complete system of legal remedies’, which again it cited in Rosneft (para. 66), stemming from Les Verts (294/93). Do the Treaties allow vacuums to be created where judicial review is excluded, or does it by reasonable means provide for judicial review? The latter was not only an easy choice, but also the more logical one. Article 19(1) TEU states that the Court, ‘ensure that in the interpretation and application of the Treaties the law is observed’, and that, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

This, coupled with the Court’s own ‘Declaration by the Court…on the occasion of the Judges’ Forum organised to celebrate the 60th anniversary of the signing of the Treaties of Rome’ made the day before the Rosneft judgment was published, commenced with restating the premise that the EU is, ‘is a union governed by the rule of law’. Yet such spirited measures are always dampened by other events, and it is hardly in fitting with recent developments at the General Court. The NF and Others v. European Council cases, and the Orders by the General Court on 28 February 2017 (T-192/16, T-193/16, and T-257/16), stated that it did not have jurisdiction on the question of the legal basis upon which an ‘EU-Turkey statement’ was reached. The likelihood is therefore that such questions about the scope of the Court’s jurisdiction in non-CFSP matters will rumble on.

Whilst this Rosneft judgment has clarified the scope of the Court’s jurisdiction on preliminary reference cases dealing with CFSP-related matters, one has to ask why the litigant did not instead seek to go straight to the EU’s General Court with an action for annulment claim, seeking the annulment of the sanctions applying Union-wide. The Court said that the basis for actions for annulment through direct actions from the treaties do not constitute the only means for which sanctions are challengeable (para. 70). Thus, from this, we can deduce that Rosneft opens the basis for future forum shopping when legal entities are subjected to the Union’s comprehensive sanctions regime under the auspices of CFSP in the future.

Remaining questions on the legal limits of CFSP as a special area of area are yet to be fully answered in a categorical way. One example of such is the doctrine of primacy, with lingering questions on its applicability to CFSP. Even with this, jurisdictional questions in CFSP remain. In a recent Order of the General Court in Jenkinson v. Council (T-602/15), it found it did have the jurisdiction to deal with a staffing case stemming from a CSDP, under the wing of CFSP. This demonstrates the caution of the General Court on leading the way on jurisdictional matters, preferring to let the Court of Justice lead the way.

Nonetheless, Rosneft clarifies that CFSP is one (small) step towards wider integration with the rest of the EU legal order. Former Judge at the Court, Federico Mancini said once in a speech at the Danish Supreme Court (Højesteret) in Copenhagen that without the system of preliminary references, that the ‘roof would collapse’ (Mancini and Keeling 1991:2). Indeed, this week’s Rosneft judgment, ensuring that Article 267 TFEU preliminary references in cases involving CFSP can be heard, upholds this notion rather tightly.

Barnard & Peers: chapter 10, chapter 24

Photo credit: The Hill 

The Court of Justice and EU Foreign Policy: what jurisdiction should it have?

Luigi Lonardo, PhD student, King’s College London

The second paragraph of Article 24(1) Treaty on the European Union explains that “the Common Foreign and Security Policy (CFSP) is subject to specific rules and procedures”, and ends with the rather explicit sentence “the Court of Justice of the European Union shall not have jurisdiction with respect to these provisions”.

Lawyers are currently discussing whether the sentence “the CJEU shall not have jurisdiction” means “the Court has some jurisdiction”. Seriously. AG Wahl elegantly phrased it this way: “The main question could be framed as follows: does the exclusion from the CJEU’s jurisdiction cover, in principle, all CFSP acts or only certain categories of CFSP acts?” (Case C‑455/14 P H v Council and Commission AG Opinion, Par 52).

The question is of fundamental constitutional importance because an answer will enable lawyers to understand with clarity what EU foreign policy acts are excluded from the Court’s judicial review – a legal issue that the Court has not yet had the opportunity to adjudicate upon. While Art 19 TEU confers on the Court jurisdiction to ensure that in the interpretation and application of the Treaties the law is observed, Article 24, as recalled, introduces an exception. The scope of this exception, however, has not been fixed. In Case C- 658/11 the Court said that the exception “must be interpreted narrowly” because it introduces an exception from a general rule (par 70). In Opinion 2/13 (on ECHR accession), it only concluded, without further specification, that “as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice” (par 252). To further complicate the issue, however, Article 24 TEU also introduces an exception to the exception: the Court has jurisdiction to monitor compliance with Article 40 TEU (the division between foreign policy and other EU measures) and to review the legality of sanctions.

So, when does the Court of Justice of the European Union (CJEU) have jurisdiction? Two cases may offer guidance with respect to this issue. One case, H v Council and Commission, was decided by the Court in July, and another, Rosneft, is currently pending.

H v Council

In H, an Italian magistrate sought annulment, before the General Court (Order in H v Council and Others, T‑271/10), of the decision of a Head of an EU Mission established under CFSP. The contested decision concerned the transfer of H, a seconded Legal Officer of the EU Police Mission in Sarajevo, to the post of Prosecutor in another regional office of the same country. The General Court (GC) held that it lacked jurisdiction to hear the complaint and therefore found that the action was inadmissible. The GC reasoned that the exclusion of jurisdiction under Art 24(1) TEU only encounters two exceptions: monitoring compliance with Article 40 TEU (ie the division of competence between CFSP and non-CFSP external measures) and the review of the legality of sanctions under the second paragraph of Article 275 TFEU.

The General Court took the view that the appellant’s situation did not fall under one of the exceptions to the general rule that EU Courts do not have jurisdiction in CFSP matters (it was not, therefore, one of the two “exceptions to the exception”). The General Court considered that the contested decisions were adopted by the Head of Mission pursuant to powers that had been delegated to him by the Italian authorities. It thus concluded that it was for Italian courts to review the legality of the contested decisions and to hear the action for damages. It finally added that, should the Italian court having jurisdiction consider the contested decisions unlawful, it could make that finding and draw the necessary conclusions, even with respect to the very existence of those decisions.

The applicant appealed the decision before the ECJ. Applicant, Council, and Commission all wanted to set aside the GC’s order, albeit each for different reasons, which will be briefly outlined below with regards to the issue of the extent of the Court’s jurisdiction on CFSP matters.

The position of the Applicant

The Applicant took the view that the exclusion of the Court’s jurisdiction does not cover merely administrative measures (such as the decision at stake in the present case) but only the acts provided for in Article 25 TEU: general guidelines, decisions on actions and positions to be taken by the EU (and implementation thereof), and acts of systemic cooperation between Member States

The position of the Council

Par 32 of the Advocate General opinion explains that “The Council is of the view that the statement of reasons in the order under appeal does contain two legal errors. First, in deciding to relocate H, the Head of Mission did not exercise powers delegated to him by the Member State of origin, but by the competent EU institution (the Council itself). Second, the national court hearing the case does not have the power to annul the act challenged. Nevertheless, those errors do not — in the opinion of the Council — invalidate the conclusion reached by the General Court”

The position of the Commission

The Commission argued that the Court lacks jurisdiction only on acts that are “expression of sovereign foreign policy”, thus leaving the Court empowered, for example, to review the lawfulness of (a) acts of implementation, or (b) adopted in the framework of the CFSP when the alleged invalidity stems from a possible infringement of non-CFSP provisions. The Commission took the view, nonetheless, that the contested decision was not an implementing act.

The findings of the Court

Somewhat unsurprisingly, the Court reversed the order of the GC and found that the circumstance that the decision was a CFSP measure “does not necessarily lead to the jurisdiction of the EU judicature being excluded” (par 43).

The Court interpreted the exclusion of jurisdiction very narrowly. It gave a systematic reading of the general provisions of EU law (Article 2) and of CFSP (Articles 21 and 23 TEU) to recall that the EU is founded, in particular, on the values of equality and the rule of law ( Segi and Others v Council; Opinion 2/13). It stated that “The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (Schrems)” (par 41).

In the current case, the Court considered that the decision of the Head of Mission was subject to legal scrutiny because under Article 270 TFEU the EU judicature has jurisdiction to rule on all actions brought by EU staff members having been seconded to the EUPM. They remain subject to the Staff Regulations during the period of their secondment to the EUPM and, therefore, fall within the jurisdiction of the EU judicature, in accordance with Article 91 of those regulations (even though H was seconded by a Member State, the two situations were considered similar). The decision of the Head of Mission was considered to be merely “staff management”.

Therefore, the Court concluded, “the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is laid down in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission” (par 55).

The ECJ concluded that “[the] jurisdiction stems, respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union” (par 58). It therefore referred the case back to the GC.

Rosneft

A similar question recurs in Rosneft, the first request ever for a preliminary ruling on a CFSP act, currently pending before the Court. The case stems from a Russian gas company, Rosneft, challenging sectorial measures (not target sanctions) prohibiting EU natural or legal persons, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.

A central question is the admissibility, as discussed at the hearing and in paragraphs 32-76 of AG Wathelet’s opinion.

The AG believes that the measure can be reviewed if it meets these cumulative two conditions: if (a) it relates to Articles 23 to 46 TEU (the foreign policy rules) and or EU acts adopted on the basis of those provisions; and if (b) its substantive content also falls within the sphere of CFSP implementation.

The first condition is derived, for Wathelet, from the consideration that the last sentence of the second subparagraph of Article 24(1) TEU excludes the Court’s jurisdiction only ‘with respect to these provisions’, and the reference thus made is to Chapter 2 of Title V of the EU Treaty, entitled ‘Specific provisions on the common foreign and security policy’, of which Article 24 forms part.

In the AG’s opinion, in particular, the court should have jurisdiction to hear actions for annulment and preliminary rulings on decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the EU Treaty – and not, therefore, regulations implementing them. For the AG, therefore, the Court has jurisdiction, but the challenged decision, to the extent that it is directly addressed to Rosneft, is not invalid. The very long opinion explains in detail why, but here we limit the scope of the analysis to the question on jurisdiction.

Comment

Judicial protection and uniformity of interpretation of EU law

The decision of the ECJ in H should be welcomed because it avoids the potential deterioration of the protection of fundamental rights which would derive from each national court being able to monitor CFSP decisions in the absence of a centralised mechanism. If national Courts had jurisdiction when the CJEU does not, this might lead to diverging and potentially even conflicting interpretations of the same CFSP measure.

Uniformity of interpretation of EU law would be further guaranteed if the Court affirmed jurisdiction to hear requests for preliminary rulings (and AG Walthelet in paras 61-62 of his opinion in Rosneft suggests that the Court can rule on CFSP preliminary rulings). The importance of judicial dialogue between the CJEU and national courts has been repeatedly affirmed in the Court’s case law (Opinion 1/09; CILFIT; Adeneler; Kamberaj). Moreover, absence of the Court jurisdiction to hear on preliminary rulings would be at issue with the third paragraph of Article 267 and the CILFIT doctrine.

The prohibition of judicial dialogue and cooperation between national and EU courts in CFSP may very well be a breach of the right to effective judicial remedy as enshrined in Article 47 EU Charter of Fundamental Rights. Article 47 Charter creates what has been described as a “composite, coherent, and autonomous” standard of EU judicial protection. Pursuant to Article 19(1) TEU, national Courts shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, with the standard set and as determined by the CJEU (which has the final saying on interpretation and application of the Treaties). Completely excluding the Court’s jurisdiction from an area of EU law such as CFSP would seriously hinder the system of judicial protection (see to a similar effect  Gestoras Pro Amnistía and Others v Council par 53; Segi and Others v Council par 53).

Even though it is left to the discretion of national courts to decide whether to make a reference for a preliminary ruling as well as the questions to be referred, completely ruling out the opportunity for an applicant (or the national court) to make such a request may indeed be against Article 47 Charter. All the more so if one accepted the reading proposed by the Council in its appeal in H, that is, that the national court does not have the power to annul the CFSP decision. This would leave a legal vacuum in the annulment of the provision (unlike what happened in C-583-11 Inuit, where the Court found that existence of alternative legal remedies allowed for a restrictive rule on judicial remedy).

Political questions doctrine

The preferable option seems to be that only genuinely political acts of CFSP cannot be subject to the Court’s substantial judicial review, although the Court should be able to monitor compliance with the procedural rules of the Treaty and compliance with fundamental human rights. This position is very similar to that expressed by the Commission in H, where it said that only sovereign acts of foreign policy cannot be scrutinised by the Court – without saying anything of formal control.

In H, the Court seemed to conclude that if there was any other reason for the which the Court should have jurisdiction, that reason takes precedence over the exclusion of Article 24, and then the Court does have jurisdiction. This is too broad an understanding of the Court’s powers.

In its judgment in Manufacturing Support & Procurement Kala Naft v Council, the CJEU ruled that it does not have jurisdiction on a CFSP provision which is not a restrictive measure against natural or legal persons pursuant to Article 275 TFEU, and the substantial result might be similar in Rosneft (par 85 AG opinion).

For the reasons explained above, the Court should accept the request on the preliminary ruling in Rosneft, but should then take the opportunity to draw a clear distinction: on one hand, (a) EU acts which are purely political and diplomatically sensitive acts of sovereign foreign policy; on the other hand, (b) all remaining CFSP decisions, all acts of implementation, and provisions of general application.

On (a), which I submit should be assessed on a case by case basis and on their substantial content: the Court should recognise it lacks power of judicial review. Those acts, determined with a “substance over form” rule (see Les Verts par 27; AG Wathelet seems to be taking this position in paras 49-50 of his opinion in Rosneft; see also Gestoras Pro Amnistía and Others v Council par 54; Elitaliana v Eulex Kosovo par 48-49) will have too indirect an effect on individuals (as the case law on Article 263(4) TFEU now stands)

Such acts also have such a discretionary content that courts should defer to the decision of the political actors who adopted them. The latter element, which American constitutional lawyers refer to as the “political question doctrine” is present in many jurisdiction (see par 52 AG Opinion in Rosneft): deference toward the so called “actes de gouvernement”. The Commission proposed this thesis in its written submission and at the oral hearing in Rosneft. The “political question doctrine” is the attitude of courts not to review issues which are inherently political, are best left to the discretion of the actor who took the decision, and are ultimately non-justiciable.

In the leading case on the issue, Baker v Carr, the US Supreme Court held that a question is eminently political if it presents some characteristics such as “a textually demonstrable constitutional commitment of the issue to a coordinate political department”, or “an unusual need for unquestioning adherence to a political decision already made”. While in some cases involving foreign policy decisions the need for adherence to a political decision is evident (ie the ECJ could hardly decide that the EU cannot prohibit commerce with certain Russian companies involved in Crimea at all), arguably the retention of CFSP provisions in the TEU, the preference for intergovernmental institutions in that domain, the scant role of the European Parliament in the decision-making process, not to mention the exclusion of the Court’s jurisdiction, all militate in favour of a strong constitutional preference for CFSP to be resolved by purely political departments. The doctrine could very well be embraced for the first time by the ECJ in deciding Rosneft.

On the other hand, as regards category (b), which includes the case of the “decision on staff management” in H, the Court should exercise its powers of judicial review.

Barnard & Peers: chapter 24

Art credit: The Economist, Peter Schrank

Is the EU planning an army - and can the UK veto it?

Steve Peers

Is the EU planning to create an army? If so, can and should the UK veto it - up until Brexit? The issue has been much debated in recent days. But this is the classic example of a debate that has created much heat but shed little light. The purpose of this post is to clear up misunderstandings. In short, the recently announced plans do not amount to an EU army – and so the UK is not able to veto the EU’s plans.

Background

Initially, the EU’s foreign policy had little to do with defence, in deference to Irish neutrality and the UK’s strong support for NATO. This has changed gradually over the years as the Cold War ended, US troops left Europe, and the parallel non-EU defence organisation (the Western European Union) was wound down.

Since the Treaty of Lisbon, the rules on EU defence policy are set out in Articles 42-46 of the Treaty on European Union (TEU). I have included the full text of these Articles in an Annex to this post. The starting point (Article 42(1)) is that the EU has an ‘operational capacity’ to use on non-EU missions ‘for peace-keeping, conflict prevention and strengthening international security’, consistently with the UN Charter, as explained further in Article 43. These actions shall use ‘capabilities provided by the Member States’, meaning that they each retain their own armed forces. There’s a reference to using ‘multinational forces’ too (Article 42(3)), but it’s clear that it’s optional both to set up such forces and to contribute them to support the EU defence policy.

However, there is also a long-term objective. Article 42(2) TEU says that the EU includes ‘the progressive framing of a common Union defence policy’, which ‘will lead to a common defence’. But this policy must ‘respect’ the obligations of those Member States who are parties of NATO, and be ‘compatible’ with NATO policy. Equally it ‘shall not prejudice the specific character’ of some Member States’ defence policy: this is an oblique reference to neutrality. (Six Member States are neutral).

Most importantly, it will only happen when the European Council (consisting of Member States’ presidents and prime ministers) ‘acting unanimously, so decides’.  That decision then needs to be ratified by Member States ‘in accordance with their respective constitutional requirements.' For the UK, that would require a referendum, as set out in section 6(2) of the European Union Act 2011. It would need a referendum in Ireland too, since Article 29(4)(9) of the Irish Constitution rules out Irish participation in an EU common defence, and the Irish Constitution can only be amended by referendum.  Other Member States may also have stringent constitutional requirements to this end.

What happens in the meantime, before this rather mythical notion of a common defence is achieved? Article 42(3) says that Member States must ‘undertake progressively to improve their military capabilities’. A ‘European Defence Agency’ (see further Article 45) is set up to this end. It’s possible for a group of Member States to take on an EU-wide task (Article 42(5), as set out in more detail in Article 44). Member States have an obligation of ‘aid and assistance’ to each other, if one of them is ‘the victim of armed aggression’, in accordance with the UN Charter (Article 42(7)). Finally, certain Member States which meet higher standards as regards their ‘military capabilities’ and ‘which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation’ within the EU (Article 42(6), referring to Article 46).

New EU plans

What are the EU’s new military plans? Some newspapers and commentators have referred to plans for an ‘EU army’, which at first sight implies a ‘common defence’. In turn, the UK’s defence minister is quoted as saying he would veto these plans, as long as the UK is part of the EU.

As we saw above, any Member State can indeed veto an EU ‘common defence’. But still, it’s striking to hear a supporter of the Leave side acknowledge that the UK can veto an EU army, since many of them suggested during the referendum campaign that this scary prospect was unavoidable if the UK remained part of the EU. Having said that, there’s a misunderstanding here. According to the information available, the proposal is not to create an EU army, and therefore the UK can’t veto it.

In fact, the ‘State of the Union’ speech by Commission President Juncker proposed four things: a joint headquarters for EU military missions; common procurement to save on defence costs; a Defence Fund for the EU defence industry; and the development of ‘permanent structured cooperation’, as referred to briefly above (and see below). It did not propose merging armies to create a common army. Some press reports suggest that the recent EU summit discussed a ‘common military force’, but the ‘Declaration’ and ‘Road Map’ issued after the summit make no mention of such a thing.

So what exactly is ‘permanent structured cooperation’? It’s described in Article 46 TEU, as well in as a Protocol attached to the Treaties. Article 46 sets out the process: it’s set up by willing Member States only. Any unwilling Member States can simply choose not to take part. There’s no veto on setting it up, but that’s because participation is voluntary. Member States can join once it’s underway – and leave at any time, with no conditions attached. If more EU policies were this flexible, EU participation would be less controversial – although in a post-truth world some people would undoubtedly deny that those policies were flexible in the first place. (If the current EU plans go ahead, I expect to read somewhere that the soldiers are inspired by Hitler, and armed with Muslamic ray guns).

As for the substance of ‘permanent structured cooperation’, it’s explained fully in the Protocol (also reproduced in the Annex).  The criteria to join are development of defence capacities, and in particular supplying forces to support EU operations within a short period. Participating countries must aim to achieve approved levels of domestic spending, align their equipment and operability of their forces, fill capability gaps, and take part in joint procurement. That’s significant – but that’s it. It’s not an EU army.

Conclusions

Plans can always change. But the recent Commission plans, and the EU summit declaration, don’t amount to an EU army.  And if there’s no EU army, the UK can’t veto one.  It’s arguable whether a veto threat is a good negotiating strategy; but it’s indisputable that an empty threat is simply ridiculous.

A more rational approach to the issue would be to acknowledge (as a number of calmer voices on the Leave side have advocated) that the UK and the EU might well benefit mutually from continued defence and foreign policy cooperation after Brexit. In that light, the best way for the UK to spend its remaining time as an EU Member State as regards defence issues is to offer constructive criticism of the EU plans – and align that with sensible proposals for how post-Brexit EU/UK cooperation could go forward in this field.

Barnard & Peers: chapter 24

Photo credit: http://www.lowyinterpreter.org/post/2015/03/16/A-European-Army.aspx

Annex – Treaty on European Union, defence clauses

Article 42

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. 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.

The policy of the Union in accordance with this Section 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 be compatible with the common security and defence policy established within that framework.

3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as “the European Defence Agency”) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.

4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 44.

6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 46. It shall not affect the provisions of Article 43.

7. 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. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

Article 43

1. The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall 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 post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.

Article 44

1. Within the framework of the decisions adopted in accordance with Article 43, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.

Article 45

1. The European Defence Agency referred to in Article 42(3), subject to the authority of the Council, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

Article 46

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 42(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.

The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.

6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

PROTOCOL
ON PERMANENT STRUCTURED COOPERATION

ESTABLISHED BY ARTICLE 42 OF THE TREATY ON EUROPEAN UNION

THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article 42(6) and Article 46 of the Treaty on European Union,

RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 43 of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;

RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;

CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union’s assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;

RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

The permanent structured cooperation referred to in Article 42(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 43 of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union’s international responsibilities;

(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;

(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;

(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ’Capability Development Mechanism’;

(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3

The European Defence Agency shall contribute to the regular assessment of participating Member States’ contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 46 of the Treaty on European Union.