21-7-2017
Brexit and the
CSDP
Daniela C. T. Haverkamp dacoteha@hotmail.com University of Amsterdam 10003227
International and European law: European Union Law
Dhr. prof. dr. S.F. Blockmans
Brexit and the
CSDP
Contents
Abstract ... 1
Abbreviations ... 2
1. Introduction ... 3
2. Why is an enhanced partnership between the European Union and the UK on defence policy important? ... 4
2.1. Introduction ... 4
2.2. The UK’s contribution to the CSDP ... 4
2.3 The role of the United Kingdom in the Union’s cooperation with NATO ... 6
2.3.1. Leading US ... 7
2.3.2. Comparing NATO and CSDP ... 8
2.3.3. The CSDP’s capability gap ... 9
2.3.4. Cooperation ... 10
2.4. Consequences for the UK of leaving the CSDP ... 10
2.5. Conclusion ... 12
3. What are the possibilities for the UK to participate within CSDP decision-procedures? .... 12
3.1. UK’s possible participation and influence in CSDP in the planning phase of decision-making procedures ... 13
3.2. UK’s participation in the other two phases ... 14
4. Other legal possibilities for the UK ... 15
4.1. International agreements ... 15
4.1.1. Participation agreements ... 16
4.2. Permanent Structured Cooperation with the UK? ... 18
4.2.1. PESCO +1? ... 18
4.2.2. Cooperation through a mixed committee: Schengen Agreement + Norway and Iceland ... 19
4.2.3. A PESCO-association agreement with the UK ... 20
4.3. Administrative arrangements between the UK and the European Defence Agency ... 20
4.4. The European Union’s Defence and Security Procurement Directive ... 22
4.5. European Union Bill ... 23
4.6. Conclusion ... 23
5. Cooperation between the UK and the EU through NATO: The Berlin Plus Agreement as a substitute for lost military capabilities from Brexit ... 24
5.1. The EU-NATO relationship ... 24
6. Responsibility of the EU and UK ... 25
6.1. Draft Articles on the Responsibility of International Organisations (DARIO) ... 26
6.2.1. Jurisdiction of the European Court of Justice ... 27
6.2.2. Attribution ... 27
6.2.3. The participation agreement and PESCO + UK ... 28
6.3. Dispute settlement in Status of Forces Agreements (SOFAs) and Status of Mission Agreements (SOMAs) and responsibility of EU personnel ... 29
6.3.1. Immunities and privileges of European Force (EUFOR) and EU Mission personnel ... 30
6.3.2. Claims for death, injury, damage and loss ... 31
6.4. Liability of the EU and Member States. ... 31
6.4.1. Effective control test ... 32
6.4.2. Case-by-case assessment ... 33
6.5. Human rights ... 34
7. Conclusion ... 34
Bibliography ... 37
1
What are the legal possibilities for a close cooperation of the
Common Security and Defence Policy and the United Kingdom
after Brexit?
Abstract
This Master thesis explores the legal possibilities for a close cooperation between the United Kingdom (UK) and the European Union (EU) post-Brexit in the Common Security and Defence Policy (CSDP). The current situation of the UK will be compared with the situation after it has left the EU. Cooperation in crisis management is important for both as they share the same values and common threats, and they can complement each other in many ways. Efficiency and effectiveness of crisis management are one of the main conditions for successful operations which can be accomplished through cooperation. In addition, the UK functions as a bridge between the EU and NATO, which allows the two organizations to coordinate and adapt their policies to face their (mostly common) challenges more effectively. Through many different types of international agreements, a cooperation can be established which will be elaborated in this thesis. The most important is the association agreement that can create the right for the UK to influence the decision-shaping of an EU act by participating in the meetings of the European committees. The UK will have no veto right once it has left the Union, because the EU does not allow third states to have any decision-making power, because of its decision-making autonomy. I conclude however, that the UK can have a de
facto veto since the EU struggles with a capability gap which. This gap will extend without
2
Abbreviations
DARIO Draft Articles on the Responsibility of International Organisations CFSP Common Foreign and Security Policy
CivCom Committee for Civilian Aspects of Crisis Management COREPER Committee of Permanent Representatives
CSDP Common Security and Defence Policy ECJ European Court of Justice
EDA European Defence Agency
ESDP European Security and Defence Policy
EU European Union
EUFOR European Force
EUMC EU Military Committee
ICJ International Court of Justice NATO North Atlantic Treaty Organization PESCO Permanent Structured Cooperation PSC Political and Security Committee
SACEUR Supreme Allied Commander Europe
SOFA Status of Forces Agreements SOMA Status of Mission Agreements
UK United Kingdom
US United States
TEU Treaty on the European Union
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1. Introduction
In an ever-changing world, in which European unity once was the ultimate goal to avoid war, and in which intense cooperation within the western world was considered important, society now wants to return to individuality and diversity. There is a trend towards nationalism that wants nothing to do with ‘Brussels’ politics, and this resulted in a referendum in the United Kingdom in which a slight majority voted to leave the European Union. But what about the other half, the half that did want to stay in the EU? We are living in a world in which the majority rules, in which even a large minority has no voice when it is outvoted. Unity switched places with uniqueness and individuality.
What will happen to the rest of the European Union without Great-Britain? This is the question everybody is asking now that negotiations for the Brexit have started under the much-discussed article 50 TEU. However, this is too broad a question to answer in a Master thesis, which is why it will be narrowed to one of the most contested subjects of the European Union: the Common Security and Defence Policy (CSDP).
This is a relative young policy that is one of Europe’s extensive policy and therefore an
intergovernmental one. One reason that defence remains in the hands of Member States is fear of the Union becoming a federal state with its own army. This would affect state sovereignty, because handing the execution of its defence and security policy to an international
organisation like the EU would mean giving up a large part of the sovereignty. The solution for collaboration on a military and civilian EU level has thus taken the form of cooperation in missions that members choose to join, based on their willingness.
This research argues that a partnership between the European Union and Britain is important for both of them. The question then arises: what are the legal possibilities for close
cooperation and what are the limits of the UK’s participation within the Union’s Common Security and Defence Policy (CSDP)? The CSDP decision process consists of three phases, they will be examined individually to determine whether there is a possibility for Britain to participate or influence policy during these phases. Outside that framework, there lies another possibility for the UK participation: international agreements. By concluding a Participation Agreement, the UK can participate in the individual EU CSDP missions. In addition,
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incorporating the UK in a future Permanent Strategic Cooperation and in the European Defence Agency are other possibilities for cooperation through international agreements between the UK and EU, one that will be examined in chapter four. The EU-NATO
relationship, including the Berlin Plus Agreement, will be assessed in chapter five and chapter six examines accountability during CSDP missions with the participation of the UK.
2. Why is an enhanced partnership between the European Union and the
UK on defence policy important?
2.1. Introduction
At the 1998 the Saint-Malo summit, the United Kingdom, together with France, pronounced the importance of a more integrated European Security and Defence Policy (ESDP). It stressed that the Union must have the capacity of autonomous action and a powerful military force to respond to international crisis. The significance of having such a ESDP, in which the EU could act effectively, became clear after the conflict in Yugoslavia. European states’ inability to act independently in that conflict resulted in the interference of NATO, and in particular the United States, to end the conflict. Defence was a policy field in which the UK could have a leading role, since it was, and still is, a powerful military force. Britain is one of
the few countries that has a nuclear arsenal and spends 2% of its GDP on defence.1 Its special
relationship with the United States has always been an important feature of the UK’s foreign relations policy, which has of course influenced European defence.
In this chapter, the UK’s military capabilities will be further elaborated to demonstrate its importance in the CSDP. Then the benefits for the UK will be addressed. Finally, the UK’s special relationship with NATO will be assessed, given the UK’s close cooperation with NATO.
2.2. The UK’s contribution to the CSDP
The United Kingdom is one of the five EU member states that has set its headquarters
available to CSDP operations like to Operation Atlanta. Those headquarters are one of five in total and provide the European Union with command and control facilities to run a military
1 Eurostat, ‘Government expenditure on defence’,
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operation which is composed of a multinational staff.2 With 2.1% of its GDP spent on
defence, the UK spent the second largest percentage of its GDP on defence, which represents one fifth of the total income of the European defence.3 In addition, the UK contributes to individual civilian and military missions by providing CSDP personnel, as the Union has no ‘EU army’. The UK contributed to Operation Althea, the European Union Police Mission in Bosnia and Herzegovina, the EU Training Mission in Mali and Operation Sophia.4
The UK is ranked the second military power in the world, behind the US5, but does not contribute accordingly to CSDP operations. Between 2004 and 2014, it was only the
designated leading state in seven out of 34 CSDP missions, meaning: it either had operational
control or contributed the most personnel in missions with a military or police component.6
And when taking a closer look at the civilian field of the CSDP, Britain, as one of the global military powers, ranks seventh among the EU Member States that seconded staff to civilian operations.7
The CSDP enables the EU to take a leading role in peace-keeping and military operations in which it can establish cooperation between its Member States. It is the Union that gives unity to a policy so divers as the CSDP. With its intergovernmental character, the CSDP’s progress depends on the Member States’ willingness to participate in individual missions. Britain leaving the Union will send a message to the world that the Union is unstable and will prejudice to coherence that it has established throughout the years. It will weaken Europe's crisis management and therefore make Islamic State stronger: its attacks were aimed to weaken Europe's coherence. It will not contribute to the EU being an autonomous defence
power, which was the initial aim of a European Defence. Ironically, by exiting the Union the
creator helps tatter what it ones founded. The EU will lose one of its biggest military power and therefore, its credibility will diminish increasingly.
2 European External action (June 2015), ‘Common Security and Defence Policy, EU Operations Centre Horn of Africa &
Sahel’, p.2.
3 Eurostat, ‘Government expenditure on defence’,
<http://ec.europa.eu/eurostat/statistics-explained/index.php/Governmentexpenditureondefence>, accessed 4 April 2017.
4 Operation Sophia is a military operation against human trafficking, also called the European Union Naval Force
Mediterranean
5 The National Interest, ‘Europe’s 4 Deadliest Military Powers’,
<http://nationalinterest.org/feature/europes-4-deadliest-military-powers-12214>, 10 April
6 Whitman, R.(2016), ‘The UK and EU foreign, security and defence policy after Brexit: integrated, associated or detached?’,
in: National Institute Economic Review 238(1), p. 10.
7 Stabilisation Unit (2014). ‘Working in European Union Common Security and Defence Policy Missions’, (Deployee
6
In practice, the CSDP will lose a country that provides a modest amount of personnel: 4.19% of the total personnel for civilian missions, which ranks the UK seventh as a contributor of personnel in civilian operations. It ranks fifth as a contributor of military personnel8, but the UK has one of the highest share of the Union’s military equipment (see figure 1). Moreover, it
contributes to the common costs of the CSDP9 and it is one of the five EU Member States that
has set its headquarters available to CSDP operations.
Figure 1
UK’s share of total EU military assets
Source: Rand Europe (2017)
2.3 The role of the United Kingdom in the Union’s cooperation with NATO
From its first role as one of the initiating countries of cooperation in the European Defence and Security Policy, the UK has subsequently moved towards more United-States oriented politics and tends to vote against strengthening the integrated defence policy, which is seen to
8 Faleg, G.(2016). ‘The Implications of Brexit for the EU’s Common Security and Defence Policy’, CEPS.
9 The costs of the CSDP are separated from the EU’s budget. There are divided in the common costs, which is arranged by
the Athena Mechanism and where all member states except for Denmark have to contribute to the costs of the individual operations that are financed by the members that are involved in those missions.
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undermine NATO.10 Britain has opposed the establishment of a Permanent Structured Cooperation and it prevented a budget increase for the European Defence agency. As a result of its history and strategic position, the UK fills the position of a transatlantic bridge between the United States and the Union.
The United States and Britain have, what is called in the literature ‘a special relationship’. This relationship involves military and intelligence connections in particular, and working
closely together.11 It will be argued here that this is a very important part of the CSDP-NATO
cooperation, because the United States has a leading role in NATO. It is the military super power and therefore the EU and its Members rely on it when they come short in military assets. In addition, 22 of the 28 EU Member States are part of NATO and close cooperation is important since the CSDP is only allowed to act where NATO has decided not to act.
2.3.1. Leading US
The US has the highest defence budget, spending the largest percentage its GDP on defence,
in comparison with other NATO Allies.12 As a result, the US is the most important influent
Ally. Moreover, the Supreme Allied Commander Europe (SACEUR), which is one of NATO’s two strategic commanders and is head of Allied Command operations, is an American. He is responsible for the conduct of all NATO military operations. Guillaume Parmentier even argues that the negotiations between NATO members are just a formality: in
all the changes made in the Alliance, the US was involved and took the most initiatives.13
10EU observer, ‘UK to veto EU ‘defence union’, <https://euobserver.com/institutional/135134>, accessed 4 April 2017. 11 See literature about that ‘special relationship’: Gamble, Andrew, ‘Between Europe and America: the future of British
politics (London: Palgrave Macmillan, 2003) and Dumbrell, John (2004) The US–UK 'Special Relationship' in a world twice transformed, Cambridge Review of International Affairs, 17:3, 437-450.
12See figure 2.
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Figure 2
Source: economist.com
http://www.economist.com/blogs/graphicdetail/2017/02/daily-chart-11
2.3.2. Comparing NATO and CSDP
NATO’s primary aim is the collective defence of its members.14 Secondarily, article 2 of the
founding treaty states that: ‘The Parties will contribute toward the further development of
peaceful and friendly international relations by strengthening their free institutions, by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well-being. They will seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.’
The CSDP, on the other hand, was created to fulfil the Petersbergs Tasks, which include humanitarian and evacuation tasks, peacekeeping and crisis management including restoring the peace. It prefers humanitarian tasks or evacuation measures over military measures.15 In
addition, Article 3(5) TEU states: ‘In its relations with the wider world, the Union shall
14 Article 5 of the founding Treaty, Washington DC, 4 April 1949 states:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all, and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually, and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain
international peace and security.
15 Helsinki European Council (10–11 December 1999), ‘Annex: Progress Report on Strengthening the Common European
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uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security,….’
Article 42(1) TEU states: ‘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’.
Article 43(1) TEU adds: [The tasks of article 42(1) TEU] 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 stabilization. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
The main focus of the two defence agencies is quite different: the CSDP is focused on peace
building and crisis management operations, whereas NATO’s aim is collective defence. With
article 2 of the NATO Treaty, however, one can see more overlap with the aims of the CSDP. Additionally, 22 of the EU Member States of the European Union are Allies of NATO as well.
2.3.3. The CSDP’s capability gap
While there is overlap between NATO and the CSDP, the latter is missing a big defence spender like the US. The overall expenditures of EU Member States on defence declined from
2006 until 2013,16 and in 2016 the European Commission found it necessary to propose a
European Defence Fund to boost Members’ research and to spend funds more efficiently on joint defence capabilities. CSDP operations suffer from insufficient political support, while they are dependent on the capabilities of the participating Member States. As a result, there is a capability gap that permits the Union to operate only small missions and the bigger ones are left for NATO.
Consequently, in 2003 the two international organisations signed the Berlin Plus Agreement, which allows the EU to use NATO assets during CSDP operations when NATO has decided
16 European Defence Agency(2015), ‘Defence Data 2013’,<
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not to act.17 EUFOR Althea is such an operation in which NATO assets were used, and it has
been considered a success in most literature.18 This is in contrast to EUFOR Chad/RCA,
which was marked by a lack of resources and division between members, which led to a
handover to the United Nations. These were two of the CSDP’s biggest military operations
and are a good example of the CSDP’s dependence on NATO assets because of the capability
gap. It also became clear from EUBAM, a CSDP civilian mission in Libya, that the US is indispensable as a leader and because of its capabilities.19
2.3.4. Cooperation
Cooperation between NATO and the CSDP is necessary to accomplish both their aims,
establish smaller and bigger operations and have real influence in a global world. NATO
Secretary-General Jens Stoltenberg has also stated that Britain is key and functions as a bridge.20 Britain is NATO’s voice in Europe:it tries to prevent the duplication of NATO in the CSDP and ensure the cohesion of the Western world. The latter, in combination with commitment, is key to maintain cooperation and successful missions in crisis management. When the UK leaves the EU, it will be more difficult to find cohesion in NATO as well: common ground in NATO on urgent matters is hard to reach when cooperation between European countries is lacking. Losing the UK could also mean a more European-focused defence policy and less of an Atlantic one, which will influence the NATO-EU relationship.
2.4. Consequences for the UK of leaving the CSDP
The consequences for Great Britain of leaving the CSDP are rather uncertain. Because it is the first country ever to leave the European Union, there are no references. The overall
expectations, however, are not very positive. Britain must regain its credibility in NATO and in the rest of the world: once in a very strategic position between the EU and the US, it now
stands on its own. Cooperation on defence between the EU and the US, as described above, is
very important as they share the same values. Furthermore, the NATO-EU relationship is
17 The Berlin Plus Agreement is a classified document, only summary information is available to the public.
18 See for example: Ivana Boštjančič Pulko, Meliha Muherina, Nina Pejič, ‘Analysing the Effectiveness of EUFOR Althea
Operation in Bosnia and Herzegovina’, European Perspectives – Journal on European perspectives of the Western Balkans Volume 8 No. 2 (15), October 2016, pp 87-116.
19 Heisbourg, F, Ischinger, W, et al (2011), ‘All alone? What US retrenchment means for Europe and NATO’ London: Centre
for European Reform, p. 9.
20 Dailymail.com, ‘NATO urges Britain to remain as ‘bridge’ between US and EU’,
<http://www.dailymail.co.uk/video/news/video-1301453/Nato-urges-Britain-remain-bridge-EU.html>, accessed 13April 2017.
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undergoing changes. Members try to cooperate more closely as they are seeing more
possibilities to complement each other.21 The UK plays a big role in enhancing this
cooperation and functioning as a negotiator, but after Brexit, this role will probably be taken
over by another EU member; the US will probably communicate directly with the other big European military power, such as France or Germany. This could be a breach in the UK-US ‘special relationship’.
Common security threats between the EU and the UK will continue to exist, including the Islamic State, Russia and terrorism. ‘Together we are strong’ applies here, because those threats are significant and cannot be effectively dealt with alone. Therefore, the EU’s and Britain’s security policies have led to close cooperation throughout the years and have become intertwined. ‘Breaking up’ the two will mean losing the UK one of the most important Allies in the fight against those threats.
Leaving the Union risks of lower economic growth as well: Brexit comes with high costs in changing politics and building trust with the rest of the world. A lower GDP means lower investment in defence, which can damage the UK’s global credibility as a military power. On
the other hand, Britain’s contributions to CSDP operations are modest, which implies that the
UK’s defence policy is less focused on Europe’s defence than on NATO.
When looking at financing the CSDP missions, there is a difference between civilian and military missions: civilian missions are financed by the EU budget and the military missions are not (art. 41(2) TEU). Third states normally contribute to the operational budget of the EU civilian crisis management operation the same as Member States.22 The costs of military operations are arranged by the Athena Mechanism. Member States and third states pay for their participation costs. In addition, the Mechanism introduced common costs of the military operations that are financed by all EU Members, except for Denmark. The contribution is based on their gross national income.23 Participation framework agreements with third states oblige third states too to contribute to these EU common costs.
21Drent, M, Robert, E, Hendriks, J, and Zandee H. (2015).’New threats, new EU and NATO Responses’. Clingendael,
Netherlands Institute of International Relations, pp. 52-53.
22 See for example article 8 of the Participation Framework Agreement between the EU and Norway.
23 Article 24 Council Decision(CFSP) 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of
the common costs of European Union operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP.
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The implications of Brexit for Britain seem to come down to its global credibility as a military power and the loss of a very important ally with common interests in dealing with security threats. It does not look good on the international stage to go from being part of the EU to an individual state with no European backbone that cuts its spending on defence. However, the UK is one of the world’s biggest military powers, which probably will not change
dramatically with Brexit. This remains a risk that it takes, which can be limited by
cooperation between the UK and the EU. Participating in the CSDP missions will financially not change much for both the UK and EU.
2.5. Conclusion
Even though the UK’s contribution to the CSDP is below average, given its unwillingness to move towards greater European defence integration, leaving the CSDP could cause many negative consequences for both the CSDP and Britain. The CSDP will lose one of its biggest military powers, a provider for missions and its most important link to the US. It will, like the UK, lose its credibility vis-à-vis the rest of the world, which is key in the contemporary world. Cooperation makes the UK and the EU a stronger military and civilian power that is more capable of facing international threats. Of course Britain will remain an Ally of NATO, but as described above, they are different in essence from each other. And when NATO decides not to act, only then the Union can act. Partnership is key, and the next chapter will assess whether the UK can still influence the legal procedures of CSDP operations.
3. What are the possibilities for the UK to participate within CSDP
decision-procedures?
Now that it is clear that close cooperation between the Union and Britain is important for both of them, it is necessary to assess how it can be established. This chapter will examine whether such cooperation could be possible on a legal level. Article 42(4) TEU states that the Council, acting unanimously can adopt CSDP decisions. When the UK leaves the Union, it will no longer be a member of the Council, which means that it will no longer have any legally decisive influence. To assess whether cooperation is possible, the Norway-CSDP alliance will be taken as an example: Norway is a NATO Ally, but is not a member of the EU. This will be the same situation as the UK when it leaves the Union. Norway is also a country which is
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willing to cooperate with the CSDP and searches for a close cooperation with EU Member States.
3.1. UK’s possible participation and influence in CSDP in the planning phase of decision-making procedures
The mission-planning process of the CSDP is long and complicated and involves different institutional bodies. It consists of three phases. The first phase involves the development of a Crisis Management Concept and the Political and Security Committee (PSC)24 plays an important role. It identifies a crisis, decides whether it is appropriate to act and assigns the High Representative of the Union of Foreign Affairs and Security to design a Crisis Management Concept. The PSC discusses this Concept and requests advice on the civilian and military aspects from the Civilian Committee and the EU Military Committee. When the PSC agrees on the concept, it presents it to the Council, which has to approve it. In the ordinary course of business, members come to a consensus in the Committee of Permanent Representatives (COREPER), which is based in Brussels.25
What is left for third countries to influence or at least have a say during this decision-making phase? Article 27(2) TEU entrusts the High Representative to conduct political dialogue with third parties. This political dialogue can be held with the UK during the first phase of the decision-making procedure where the High Representative must make a Crisis Management Concept and the UK can influence the decision-shaping. A political dialogue can also be held at the format of the Political and Security Committee where the UK can cooperate with the identification of the crises and shares its concerns and relevant information.26 These are the so called ad hoc meetings.
24 The Political and Security Committee is responsible for the CFSP and the CSDP. Article 38 TEU states that it shall
monitor the international situation, contribute to the definition of policies by delivering opinions to the Council, monitor the implementation of agreed policies and that it shall ensure political control and strategic direction of crisis management operations
25 Zif. Center for international peace operations. (2010, April). ‘Common Security and Defence Policy’,
<http://webcache.googleusercontent.com/search?q=cache:dsnvKtVk6eAJ:www.zif-berlin.org/fileadmin/uploads/analyse/dokumente/veroeffentlichungen/ZIF_Guide_CSDP_2010.pps+&cd=4&hl=nl&ct=clnk &gl=nl>, accessed 14 June 2017.
26 The EU, its Members and Ukraine have concluded an association agreement together that obliged the parties to have
political dialogues at Summit level, including at in the format of the PSC and at the level of high officials and of experts of the military institutions.
Association Agreement between the European Union and its Member States, of the one part, and Ukraine of the other part, Official Journal L161, 29-05-2014, article 5.
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In the Nice European Council of December 2000 it was decided that there would be a planned two joint meetings of the PSC and allied non-EU members during each EU presidency
period.27 To stay with the example of Norway, that means that they meet four times a year, as the presidency rotates every six months and PSC is obligated to consult Norway. For Great-Britain, this could be a way to stay connected with the institutions of the CSDP. However, it does not seem to be a very effective way for a close cooperation. The aim of these
consultations with non-EU members is to exchange views and discuss any concerns and interests raised by them. It is up to the EU-Members whether to take those views into
consideration.28 There has been much research about the cooperation between Norway and the CSDP, and it has been argued that Norway has been excluded from information and debates about CSDP issues and that its main difficulty has been to really be heard by the EU and its Member States.29
3.2. UK’s participation in the other two phases
The second phase of the planning process consists of developing strategic options. The Council assigns the PSC to develop strategic options based on the Crisis Management Concept. If the mission includes a civilian operation, the Committee for Civilian Aspects of Crisis Management (CivCom)30 must advice the PSC. This Committee is composed of
representatives of the EU Member States. In the case of a military operation, the PSC is given advice by the EU Military Committee (EUMC).3132
In the third phase, the PSC plays a key role too. It functions as a bridge between the Council and the EU Military and Civilian Committees. It guides them to work out a directive for the operational planning and must approve it before it goes to the Council. Than the final operational planning has to be made through the same way as its predecessor.33
27 European Council, ‘ESDP: „Implementation of the Nice Provisions on the Involvement of the Non-EU European Allies’,
Presidency Conclusions, Annex II (October 24-25, 2002).
28 Ibidem.
29 Graeger, N.(2005), ‘Norway between NATO, the EU, and the US: A Case Study of Post-Cold War Security and Defence
Discourse’, Cambridge Review of International Affairs, 18:1, p. 94.
30 CivCom is an EU body that prepares planning documents for new missions and makes recommendations to the political
and security committee deals with the development of strategies for civilian crisis management and for civilian capabilities.
31 The EUMC is composed of the Chiefs of Defence of the EU Member States who are represented on a regular basis by
their permanent military representatives in Brussels.
32 Zif. Center for international peace operations 33 Ibidem.
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When looking at the association agreement between the EU and Ukraine, regular meetings with the PSC are thus possible. This type of international agreement between the EU and a third state creates special privileged links with the third country, which must, at least to a certain extent, take part in the community system according to article 217 TFEU.34 An association agreement is a proper way to make the political dialogues obligated rather than optional. These dialogues will give the UK influence in all three phases in which the PSC plays a key role. In addition, given that the UK is a major power in the field of security and defence, it will probably be necessary for the Union to involve the UK in these meetings in order to come on the same level about an operation to get the UK’s participation.
In short, the UK’s role as a decision-maker will be lost as it has no veto power anymore in the Council. Its influence as a decision-shaper can continue through the political dialogues in the different formats, but especially in the PSC. The EU is however, not obligated to take the UK’s input and concerns into account, according to its decision-making autonomy (see section 4.1.2), but if it does not, it takes the risk that the UK will not participate or contribute to missions.
4. Other legal possibilities for the UK
4.1. International agreementsThis chapter will assess whether the European Union and the United Kingdom have other possibilities for cooperating in EU crisis management. Since the Treaty of Lisbon, the EU has legal personality. This means that it has rights and obligations under international law and it can negotiate international agreements on behalf of the Union. Because of its legal personality and the power conferred by article 37 TEU, the EU can conclude international agreements with international organisations or with one or more states in the field of Common Foreign and Security Policy (CFSP), of which the CSDP is an integral part. Article 218 TFEU sets out the procedure: in the field of CFSP, the High Representative submits recommendations to the Council about the initiation of negotiations. It is the latter, acting unanimously, that concludes the agreement, without the consent of the Parliament.35
34 European Court of Justice, case 12/86, Demirel v Stadt Schwäbisch Gmünd, para. 9. 35 Article 218 (6) and (8).
Important to underline is that is the agreement has to be exclusively or principally relate to the Common Foreign and Security Policy in order to be compatible with that procedure. When other policies are regulated too, a centre of gravity has to be done
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From the Helsinki Summit in 1999 to the Bratislava Summit in 2016, strengthen ESDP through cooperation between NATO and third countries has always been high on the agenda. Third states and the EU can cooperate by participating in European missions. The Council invites them to join missions in which NATO resources are not used,36 or when those resources are relied upon, the EU allows NATO-Allies to support the mission.37
4.1.1. Participation agreements
To establish cooperation in a specific civilian or military EU operation, an international agreement with the third state must be concluded. Article 218(6) TFEU assigns the conclusion to the Council. For example, the EU concluded a general framework for participation with Norway38, which consists of the general terms for the participation of missions. When the Council decides to start a mission, another agreement must be concluded with Norway and other third countries to ensure their participation is based on the same conditions as the EU-Members. By concluding this bilateral agreement between the EU and third state, the latter commits to obligations and create a legal basis for the status of personnel and forces, financial arrangements and the exchange of classified information. This participation is possible after the Council’s invitation (when the assets relied upon are not NATO’s) and thus after the decision-making procedure. They must implement provisions of the Joint Action as well without the possibility to amend it.3940
4.1.2. The EU’s decision-making autonomy
Cooperation with the UK through international agreements could be an effective method, although there are a few points that will make it less attractive for the UK as a third country. Inherent in every participation agreement, is the Union’s decision-making autonomy, which may not be prejudiced. The decision-making autonomy is part of the autonomy of the
to figure out which procedure has to be followed. Problematic situations can arise when there is no policy that is predominant and the other requires the consent of the Parliament and the European Commission as the negotiator.
36 Santa Maria Da Feira European Council (19 and 20 June 2000), Conclusions of the Presidency, Annex II. 37 NATO (2002), ‘The NATO-EU strategic partnership’,
<http://www.nato.int/docu/comm/2004/06-istanbul/press-kit/006.pdf>, p. 4.
38 Agreement between the European Union and the Kingdom of Norway establishing a framework for the participation of the
Kingdom of Norway in the European Union crisis-management, Official Journal of the Euroepan Union, 14-03-2005.
39 Agreement between the European Union and the Kingdom of Norway establishing a Framework for the participation of the
Kingdom of Norway in the European Union crisis management operations (2004), article 2(1).
40 A Joint Action, based on Articles 43 and 28 TEU, prior to the entry into force of Lisbon and now a Decision of the
Council, is a conclusion of the Council in the second phase of the decision-making procedure of the CSDP which contains provisions on the strategic options: the objectives, mandate, financial arrangements, command and control relations, financial arrangements, the participation of third states and whether NATO assets will be relied upon.
17
European Union which has developed throughout the years. In the famous case Costa ENEL the ECJ said that ‘The EEC Treaty has created its own legal system’.41 In the Kadi and Al
Barakaat- case, the ECJ stated: ‘the validity of any Community measure […] must be
considered to be the expression […] of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system’.42 The ECJ reconfirmed the autonomy of the EU legal
order in Opinion 2/13 and is keen on defending it in every possible way. The importance of the EU’s autonomy lies in its legitimacy: the political justification. The decisions made by the EU are legitimized by its democratic procedure; when a third country interferes in the
decision-making procedure, it prejudices the democratic decision-making procedure and thus the EU’s legitimacy.43
In addition, the UK must adopt the strategic specifications made in the second phase of the decision-making procedure and it must ensure that its personnel acts in conformity with the Council Decision. It will be invited to join after decisions are made and thus must adapt to what has already been decided. Only in the previous phase it could have had influence on the decision-shaping. This is a significant disadvantage with respect to the current situation as it is now part of the decision-making procedure.
4.2. Exchange of letters
Another form of international agreement to establish cooperation between the UK as a third state and the Union is the exchange of letters. The main actor in this highly contested method of law-making is the High-Representative.44 The ‘Berlin Plus Agreement’ was established through this method.45 Another example of an agreement in the form of an exchange of letters is between the EU and the Central African Republic on the status of the European Union CSDP Military Training Mission in the Central African Republic in 2016. This form of an international agreement could be a way for the UK to collaborate on individual basis with the
41 Case 6/64 Costa v E.N.E.L. (1964)
42 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v. Council and Commission,
2008 ECR I-6351, para. 282
43 Eckes, C. (2016), ‘International Rulings and the EU Legal Order: Autonomy as Legitimacy?’, CLEER, Asser Institute. 44 This way is highly contested because researchers are not on the same page whether those letters are in fact binding. See for
example Aurel Sari ‘The conclusion of international agreements by the European Union in the context of the CSDP, Ramses Wessel ‘The EU as a party to international agreements: shared competences, mixed responsibilities’ and Martin Reichard, ‘Some legal issues concerning the EU-NATO Berlin plus agreement.’
It is important to underline, however, that the Council is not involved as the letters are signed by the High Representative of the EU.
45 Reichard, M. (2004), ‘Some legal issues concerning the EU-NATO Berlin plus agreement.’ Nordic Journal of
18
Union that probably has more space for negotiation, but likely not to gain credibility on a global scale.
4.2. Permanent Structured Cooperation with the UK?
In Article 42(6) TEU, the Treaty gives a group of Member States the possibility of speeding up the integration process in the defence field. This ‘Permanent Structured Cooperation’ (PESCO) allows the willing Member States that fulfil higher military capabilities to intensify defence cooperation by taking systematic steps towards a more uniform CSDP. Article 2 of Protocol 10 lists five requirements for the participating Member States to establish a PESCO: They must:
- cooperate to achieve the agreed-upon targets on the level of investment expenditure on defence equipment and to review those targets on a regular basis
- bring their defence apparatus into line with each other by harmonizing their military needs
- take concrete measures to improve the availability, interoperability, flexibility and deployability of their forces
- work together to make up the shortfalls, perceived in the ‘Capability Development Mechanism’
- take part in the development of European equipment programmes in the framework of the EDA.
It is one of the most enhanced ways to integrate the defence of Member States and has meaningful advantages for national capabilities. By integrating and merging their defence capacities, costs can be saved by specialisation, sharing and increasing effectiveness.46 Whether the UK can take part in the PESCO will be examined in the next sections.
4.2.1. PESCO +1?
The group that can participate in a PESCO must consist of EU Member States (art. 42(6) TEU). Soon, the UK will no longer be a Member, and it will no longer be legally possible for it to join PESCO through that article. Nevertheless, there could be a way to circumvent this
19
requirement, namely through an association agreement. A good example is the Schengen Association Agreement with Norway and Iceland.47
Member States that wish to participate in a PESCO notify the High Representative and the Council, and the Council then adopts the decision to establish the PESCO.48 After the adoption, it is possible to conclude an association agreement through the process of article 218 TFEU. However, it is not an easy way to accomplish such an agreement: it requires the unanimity of the Council and consent of the Parliament.49
4.2.2. Cooperation through a mixed committee: Schengen Agreement + Norway and Iceland Luxembourg in 1996, thirteen Member States agreed to abolish passports and all other types of border control at their mutual boarders. This was an Agreement outside the treaties, but it was later integrated into the Treaty of Amsterdam adopted by two non-EU members: Norway and Iceland.50 These two adopted the Schengen acquis into their national legal systems by concluding this Association Agreement. They established a mixed committee51 outside the
framework of the European institutions. The function of this committee can be seen as a decision-shaper: it is a forum for discussion at the level of ministers, senior officials and experts, and it includes representatives of Norway and Iceland.
It differs from the earlier mentioned opportunities for consultation, because Norway and Iceland have the right to make suggestions in the mixed committee, which must be discussed among the Member States. Any Member State or the European Commission can decide to make a proposal or to take an initiative in response to these suggestions. The measure must be concluded according to the rules of the European Treaties.
Furthermore, the two non-EU members have the opportunity to explain their problems and express themselves on any question in this mixed committee. They must be informed about the preparation within the Council of any acts and measures and during the drafting of a proposal of the Commission, the latter must seek informally advice from Norway’s and
47 Agreement in the form of an Exchange of Letters between the European Union and the Central African Republic on the
status of the European Union CSDP Military Training Mission in the Central African Republic (EUTM RCA), Official Journal of the European Union L 274/33, 11-10-2016.
48 Art. 46 TEU.
49 Art. 218(8) and Art 218(6)(a)(i) TFEU.
50 The Council of the European Union and the Republic of Iceland and the Kingdom of Norway (1999), ‘Agreement
concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis’, Official Journal of the European Union, L176/36.
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Iceland’s experts, in the same way it seeks advice from experts of the Member States when drawing up its proposals.52
As mentioned in the previous chapter, the Council decisions are mainly based on the
recommendations of the COREPER, which is normally influenced by the working parties of the Council. In this situation, the latter is now influenced by the mixed committee as well, which includes two non-EU members.53 This means that they do have a voice in the decision-shaping procedure and that the Union has an obligation to consider that voice. However, it is important to note that the non-EU members do not have the right to change the act or
measure, and the only way not to accept it is by ending the whole association agreement.54 The principle of the Union’s decision-making power is thus that the EU has still the final say.
4.2.3. A PESCO-association agreement with the UK
A similar agreement is also possible when the ‘Member States whose military capabilities fulfil higher criteria’ establish a PESCO. Protocol (no. 10) on permanent structured
cooperation established by article 42 of the Treaty of the European Union does not however provide for such a participation of the UK. The UK must therefore conclude an association agreement according to article 217 TFEU outside the framework of the PESCO to establish a mixed committee which would allow it to influence the decision-making phase. It would allow the UK and the participating EU Members to cooperate and integrate on their military capabilities, without the UK losing its voice. However, comparing it to the current situation, the UK must give up some of its sovereignty, as it has no say in drafting the proposal or amending it. Rejecting the decision will probably lead to termination of the association agreement to ensure the decision-making autonomy of the Union. The question is whether the UK would accept such an agreement when it has to give up its sovereignty in order to
cooperate, especially when one of the reasons for leaving the EU was to regain its sovereignty.
4.3. Administrative arrangements between the UK and the European Defence Agency An integral part of the Common Security and Defence Policy is the European Defence
Agency (EDA), which was created to ‘improve the Union's defence capabilities in the field of
52 Ibidem articles 4,5,6.
53Cullen, P.(2001), ‘The Schengen agreement with Iceland and Norway: Its main features’, ERA-Forum. Vol. 2. No. 4.
Springer Berlin/Heidelberg, p. 74.
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crisis management and to sustain the European Security and Defence Policy’.55 The aim of
this intergovernmental agency is to harmonize and contribute to cooperation in the defence policies of the Member States. It is open for those EU Members that want to participate, as cooperation is on a voluntary basis and is ‘subject to the authority of the Council’.56 The
Treaty on the European Union57 and the Council Decision58 codify its operational rules and tasks. In short, it must contribute to integration and harmonization in defence cooperation and to improve the military capabilities of the Member States. It plays an important in the
European Defence, but it has limited power: it cannot make binding regulations.59 In order to fulfil its tasks, the EDA develops policies, evaluates national capability commitments and stimulates joint defence technology research.
The EDA has started many projects to support the Member States’ defence capabilities. The Steering Board, composed of representatives of the Member States, is the decision-making body. When shortfalls in capabilities are brought to light during CSDP missions, it is the Steering Board that determines the actions to fix it. To improve the shortage of capabilities, the EDA started a project entailing three ‘work strands’ that:
- aims to optimize the existing capabilities through increasing interoperability, organizing trainings and standardizing the processes
- creates an acquisition programme where Member States can sign a contract to jointly buy assets that causes efficiencies.
- monitors the acquisition of extra refuelling pods.60
In addition, if a Permanent Structured Cooperation were established, the EDA would have an important role in assessing the contributions of the participating Member States,61 supporting the implementation of such a cooperative agreement and facilitating major joint or European capability development initiatives.62
55 European Defence Agency, ‘Mission’, <https://www.eda.europa.eu/Aboutus/Missionandfunctions>, accessed 28 May
2017.
56 Article 45(1) TEU. 57 Article 42(3) TEU.
58 Council Decision no. 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European
Defence Agency, article 5.
59 Marrone A., Ungaro A. (2014), ‘Actors in the European defence policy area: roles and developments.’, Torino, Centro
studi sul federalismo CSF, p. 17.
60 European Defence Agency, ‘Air-to-Air Refuelling’,
<https://www.eda.europa.eu/what-we-do/activities/activities-search/air-to-air-refuelling>, accessed 28 May 2017.
61 Protocol 10 on permanent structured cooperation established by Article 42 of the Treaty on European Union, article 3. 62 Council Decision (CFSP) 2015/1835, preamble and art. 5(f)(i).
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The United Kingdom has committed itself to the EDA, and continuing this participation could be a meaningful aspect of close cooperation. It could diminish the capability losses of the EU when the UK leaves and improve their international credibility. It would be a good basis for a partnership in CSDP missions. Administrative arrangements between the European Defence Agency and third states are possible according to article 26 of the Council Decision 2015/185. Norway is a third state that has received an associate status with the EDA.63
These ‘administrative arrangements’ with Norway are, according to RAND Europe,64 the
most likely type of cooperation between the EU and the UK in the EDA. It will give the UK an associate status and a seat in a Consultative Committee where an exchange of information on issues of common interest can take place and the UK still can present its views on topics related to the EDA’s programmes. It will give Britain the opportunity to cooperate with its programmes and benefit from efficiencies, but the level of integration in the EDA depends on the willingness of the Agency Members. Attending EDA meetings and participating in projects depends on invitations from participating EU Member States that can veto the UK.65
According to Pernille Rieker, there is disagreement among Member States on the integration level of third states, which may result in very strict frameworks.66 Disagreement has already been present among EU leaders during negotiations over post-Brexit Europe and will probably carry through to the Agency.67 Here too the EU has decision autonomy, which allows the UK no voting powers.
4.4. The European Union’s Defence and Security Procurement Directive
Directive 2009/81/EC on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security provides a framework for cross-border defence procurement
63Ghez, Jeremy, et al. (2017), ‘Defence and security after Brexit.’, RAND EUROPE, p. 45. 64 Ibidem, p. 45.
65 Ibidem, p. 59.
66 Rieker, P. (2006), ‘Norway and the ESDP: Explaining Norwegian Participation in the EU's Security Policy’, in: European
Security, p. 290.
67 Rand Europe also points a research of Nick Witney out that assessed the Letter of Intent (LoI) Framework of Agreement
Treaty, which is a non-EU cooperative instruments. ‘The LOI aims to harmonise military requirements between the members, as well as promoting defence industrial collaboration and consolidation. Though this mission was subsequently taken up by the larger EDA, the LOI does offer a potential ‘legal frame for continued cooperation until some wider relationship between Britain and the EU on defence and security issues is sorted out’ – potentially including some sort of role for the EDA as a secretariat, or at least a political move towards additional consultation between this group and smaller EU members.’ This is, however, a bilateral agreement between States where the EU is excluded. Therefore, it will not be discussed in this research.
23
within the EU. Its aim is to facilitate the development of an EU defence equipment market that will increase industrial competition, reduce duplication and lower prices. It opens a market of defence equipment procurement and offers a framework for an open market and against protectionism with more transparency for cross-border defence procurement in the EU. This will lead to more competition and standardizing of defence capabilities. It will improve the technological and industrial basis for the European Defence and the development of the military capacities of the CSDP. Such an open market facilitates the aims of the EDA improving the Union’s defence capabilities. A study of the European Parliament however, shows that the Directive is not very effective and most Member States’ suppliers, including the UK’s, are based on national territory.68 Article 346 TFEU has been often invoked to continue to protect the national defence market.69 If the UK remains in the European Free Trade Market, it can stay as a party of the directive.70
4.5. European Union Bill
On the 13th of July 2017, the House of Commons introduced the European Union Bill to have
a smooth exit. The bill states that EU law that is already implemented in UK law will remain in place and will have the same effect after BREXIT.71 The UK Parliament has then the
possibility to amend and revoke domestic EU law. This will make cooperation in the CSDP much easier as EU law is already implemented in UK law.
4.6. Conclusion
There are many possibilities for cooperation between the European Union and Britain through international agreements. Now even more with the introduction of the European Union Bill which can make the implementation easier. The establishment of additional committees is a way to give the UK a voice. The only issue for the UK will likely be the fact that it will lose its vote, and thus will no longer have any decision power. It can occasionally give the UK a
de facto veto when the EU needs the UK to cooperate in individual missions. Even though the
CSDP was not a big issue during the Brexit debate, British sovereignty was. Losing its vote
68 European Parliament (2015), ‘The impact of the 'defence package' Directives on European defence’, p. 6.
69 Furter D.(2014), ‘The influence of legislation and government policy on patterns of international defence trade and future
markets: the case of offset and Directive 2009/81/EC’, Brunel University, p. 12.
70 Young S. (2016) ‘The United Kingdom’s 2015 strategic defence and security review- economic, procurement and Brexit
implications, 11th Defence and Security Economics Workshop’,
https://dspace.lib.cranfield.ac.uk/bitstream/1826/11501/1/UK%20SDSR%20-%20Implications%20%284%29.pdf, p. 2.
71 Statewatch, ‘European Union (withdrawal) Bill. Explanatory Notes’,
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means giving up its sovereignty more than being a Member of the EU did. The question remains whether the UK wants to do that.
5. Cooperation between the UK and the EU through NATO: The Berlin
Plus Agreement as a substitute for lost military capabilities from Brexit
Before the creation of the CSDP, the EU established the Western European Union (WEU) which would act as the European pillar of NATO and introduce joint positions in the consultation process in NATO.72 It would be complementary to NATO and soon the possibility of drawing on NATO assets was introduced. In the Malo Summit in 2002, when the WEU was integrated into the Amsterdam Treaty, the EU and NATO concluded the Berlin Plus Agreement73 which allowed the EU to use NATO assets during CSDP operations whenNATO has decided not to act. One reason for concluding such an agreement was to avoid
duplication74 and, as explained in chapter 1, those NATO assets became very important in a
few missions, because the Union is dealing with a capability gap. The latter will become larger when Britain leaves the EU. Because the UK will continue to be member of the NATO Alliance, it is possible in theory for the Union to rely on the UK assets through NATO. This chapter explores the question of whether the Berlin Plus Agreement could be used as a substitute for the lost military capabilities post-Brexit.
5.1. The EU-NATO relationship
The primacy of NATO is legally set in both the European Treaties and the Washington Treaty.75 It implies that it is first up to NATO to decide to act in crisis management. Only when NATO decides not to act, the EU can begin a military operation with or without invoking the Berlin Plus Agreement and using NATO’s assets, which confirms NATO’s primacy. However, there are difficulties that come with invoking the Berlin Plus Agreement that constrain its use. The last, and only the second, operation when the EU used NATO’s assets was thirteen years ago.76 The EU’s priority in its CSDP is gaining strategic autonomy and strengthening its security policy, in which it should be acting autonomously while
72 North Atlantic Council, Final Communiqué, Brussels, 19 December 1991, para. 12.
73 The Berlin Plus Agreement is classified as it is a formal decision of the North Atlantic Council.
74 NATO, ‘NATO and the EU: Time for a New Chapter. Keynote speech by NATO Secretary General, Jaap de Hoop
Scheffer’, < http://www.nato.int/docu/speech/2007/s070129b.html >, accessed 25 May 2017.
75Reichard, M. (2013), ‘The EU-NATO relationship: a legal and political perspective’, Ashgate Publishing, Ltd., pp.
148-149.
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contributing and cooperating in actions with NATO.77 Its aims is to be a strong and credible global actor in crisis management.78 This is a result of a tendency of the last few years, in which the EU had no prior consultations with NATO before starting missions like Operation Artemis.79
In addition, tensions between the EU and NATO have increased since 2004 when Cyprus joined the European Union. Turkey, a NATO Ally, refuses to recognise the Cyprus’ government and therefore it lacks legal authority to represent itself in NATO. Turkey has blocked any attempt at cooperation with Cyprus that would make concluding security agreements between NATO and Cyprus possible.80 Cyprus is therefore excluded from any formal meeting on matters of strategic cooperation. On the other hand, Cyprus stopped the EU from discussing issues other than those relating to the Berlin Plus Agreement in these
meetings. Topics relating to terrorism are therefore excluded. It is hard to imagine that from such an unstable relationship a flourishing cooperation between the UK and EU can arise.
6. Responsibility of the EU and UK
After assessing what the legal possibilities are for a close cooperation, the remaining question is who is accountable for damages or losses of the host state. And what about the protection of human rights? When the UK and the EU begin cooperation in a CSDP mission, who can be held accountable for losses or breaches of human rights? Is the EU responsible because it is a European operation, concluded by an EU institution, to which the UK has committed itself under EU command? The High Representative, representing the Union as a whole in foreign affairs, has much influence in the adoption of CSDP missions: it has a seat in the Council, it makes recommendations to the Council when concluding international agreements81 and it designs a draft Crisis Management Concept. Or are the Member States individually
accountable, since the Commission’s role is limited and the Members play a key role in the authorization of the operations? Is it the Council, consisting of the national ministers, together with the PSC, consisting of ambassadorial-level representatives from the EU Member States,
77 European Union Global Strategy, ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the
European Union’s Foreign and Security Policy’, June 2016.
78 Whether these intentions prejudice the primacy of NATO is a subject of debate.
79Wessel, R. Blockmans S. (2013), ‘Between Autonomy and Dependence: The EU Legal Order Under the Influence of
International Organisations’, TMC Asser Press, pp. 259-260.
80 Yost, D.S. (2007), ‘NATO and International Organizations’, NATO Defense College, Rome, Forum Paper no. 3, p. 93. 81 Article 218(3) TFEU.
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which adopt the important decisions concerning the missions? The Council sets out the
mission and the mandate, appoints the operation commander and the headquarters and decides about participation of third states. Are third countries that adopt those decisions through an international agreement also individually accountable? These questions are examined in this chapter.
6.1. Draft Articles on the Responsibility of International Organisations (DARIO)
The codification of the legal personality of the Union in the Treaty of Lisbon (art. 47 TEU) in conjunction with art. 340 TFEU covers the EU’s international liability for wrongful acts in EU crisis management. This is also a basic principle in international law, which acknowledges the responsibility of international organizations for an internationally wrongful act.82 DARIO sets out the conditions for the responsibility for an internationally wrongful act of
international organization and states that acts in connection with the conduct of an international organization.83 The European Court of Human Rights determined in the
Al-Jedda case that the DARIO effective control test must be applied when examining the
responsibility of an international organization.84
DARIO defines the conditions for when an international organization is responsible for an internationally wrongful act:
Article 4 DARIO:
‘There is an internationally wrongful act of an international organization when conduct consisting of an action or omission:
(a) is attributable to that organization under international law; and
(b) constitutes a breach of an international obligation of that organization.’
The next articles specify when those conducts are attributable.
Article 6 DARIO states: ‘The conduct of an organ or agent of an international organization
in the performance of functions of that organ or agent shall be considered an act of that
82 International Law Commission, ‘Draft Articles on the Responsibility of International Organisations’, in: Yearbook of the
International Law Commission, 2011, vol. II, Part Two, art. 3.
83 Ibidem, art. 1(1) and (2).
27
organization under international law, whatever position the organ or agent holds in respect of the organization.’
In light of these articles, the organs of the Union are the institutions, bodies, offices, agencies and their servants. In the field of the CSDP, this includes the Council, the PSC, the High Representative and the civilian and military mission once these can be regarded as extensions of bodies of the EU.85 The conduct of a state’s organs or agents of an international
organization’s organ or agents that are placed at the disposal of another international organization is also considered to be an act of the international organization when the organization has exercised effective control over that conduct.86
6.2. Disputes arising from international agreements 6.2.1. Jurisdiction of the European Court of Justice
When legal issues of interpretation or application arise in the field of the CSDP between the UK as an EU Member and another Member State or the EU, the European Court of Justice (ECJ) has limited jurisdiction according to article 24(1) TEU. This article states that the ECJ shall not have jurisdiction over the provisions of the CFSP, but the article excepts monitoring compliance with article 40 TEU and reviewing the legality of certain decisions according to article 275 TFEU.87 Article 218(11) TFEU only gives the ECJ the power to assess the
compatibility of the international agreement with the EU treaties. In short, this means, the ECJ has no jurisdiction over actions concerning compliance with CSDP provisions. In order to ensure Member States’ compliance with the obligations and principles under the CFSP, the Treaty designates the Council and the High Representative to monitor them.88
6.2.2. Attribution
The ECJ will however lose its (limited) jurisdiction over the UK once it is a third country.89 The EU becomes an international actor concluding international agreements and it therefore must adhere to international legal norms like the DARIO. As described above, the EU can be
85Wessel, R. (2011), ‘Division of International Responsibility between the EU and Its Member States in the Area of Foreign,
Security and Defence Policy.’ Amsterdam LF 3, p36.
86 DARIO, art. 7.
87 See for further information about the Court’s jurisdiction Christophie Hillion ‘A powerless Court? The European Court of
Justice and the Common Foreign and Security Policy’, in in M Cremona and A Thies (eds) The European Court of Justice and External Relations Law - Constitutional Challenges, forthcoming, Hart Publishing.
88 Article 24(3) TEU.
