\nA Rejoinder to Fabbrini and Mayer\n<\/p>\n
Can the 1952 European Defence Community (EDC) be revived to supranationalize European defence in 2026? My earlier post<\/a> had raised serious doubts about the legal feasibility of this idea championed by ALCIDE<\/a>; and these doubts have now been scrutinized<\/a> by the project\u2019s two senior jurists: Federico Fabbrini and Franz C. Mayer. This rejoinder addresses their counterarguments and, therefore, briefly returns to the international and European law obstacles that the \u201clate\u201d ratifications of the 1952 EDC Treaty by Italy and France face. It also questions, once more, the political wisdom of reviving the NATO-led executive organization today, especially when alternative \u2013 and better \u2013 forms of European defence integration are currently explored. The European Parliament\u2019s 2023 proposal on a \u201cEuropean Defence Union<\/a>\u201d, in particular, shall be discussed in this context, as it would simultaneously offer a more \u201cautonomous\u201d, \u201cdemocratic\u201d and \u201cpragmatic\u201d solution than a revived 1952 EDC.<\/p>\n More International (and National) Law: The EDC Is Dead<\/p>\n Are the Benelux countries as well as Germany still bound by their EDC ratifications from over 70 years ago? My main objection to ALCIDE\u2019s core idea was that it unjustifiably omits the 1954 Western European Union<\/a> (WEU) in combination with Article 59 of the Vienna Convention on the Law of Treaties (VCLT).<\/p>\n This objection is countered by Fabbrini and Mayer repeating that States must always explicitly revoke their consent. As an example of how this should be done, they point to the 2007 European Council<\/a> \u201cabandoning\u201d the 2004 Treaty establishing a European Constitution (TEC) that had, as is known, failed to get ratified by France and the Netherlands. Yet can the European Council, which forms part of an autonomous legal organization independent of the Member States, withdraw the consent of Italy (and of all those other Member States that had already ratified the TEC<\/a>)? Under international law, hardly so. But if Italy\u2019s ratification legislation<\/a> for the 2004 TEC is still \u201ceasily accessible in the online law books\u201d and continues to be unrepealed, does this mean that Italy is still bound by the 2004 TEC; or has the 2007 Lisbon Treaty here taken over \u2013 in the same way as the 1952 EDC was taken over by the 1954 WEU?<\/p>\n In this context, Article 59 VCLT offers \u2013 I think \u2013 a powerful \u201csmoking gun\u201d in the form of an a fortiori argument. Because as regards international treaties not yet ratified by all parties, Article 18 VCLT<\/a> leaves an element of doubt when merely obliging a signatory state, pending the entry into force of the treaty, \u201cto refrain from acts which would defeat the object and purpose of a treaty \u2026 provided that such entry into force is not unduly delayed\u201d. For even if one overcame the doubt that the provision applied to \u201cnormative<\/a>\u201d treaties, what is \u201cunduly delayed\u201d? Is 10 years enough, or 70 or 200 years? Luckily, Article 59(1) VCLT puts an end to that debate as regards the 1952 EDC, because \u201cin any case\u201d the 1954 WEU replaced the earlier organization since all the parties to the older treaty considered the matter of European defence, the \u201cGerman question\u201d as well as NATO collaboration to be now governed by the newer treaty and a simultaneous application of both treaties was legally impossible.<\/p>\n Has the death-through-EU-integration of the WEU in 2011 made a revival of the 1952 EDC possible? Fabbrini and Mayer seem to think so; and they now employ a bootstrapping argument in that context. Fresh talk about the EDC in Italy has itself revived it, as States \u201care the relevant interpreters of whether a treaty is dead or alive\u201d. Yet can the \u201crecent political developments\u201d in Italy revive the EDC Treaty despite, or even against, the \u2013 present day \u2013 wishes of the other signatory states? For Germany, the authors<\/a> indeed appear to see this as an advantage: \u201cThe fact that nothing depends on Germany for the time being \u2026 would also have the advantage that the usual German constitutional objections \u2026 would be irrelevant for the time being.\u201d But alas, these objections would undoubtedly be there. The German Constitutional Court has, especially in its 2009 Lisbon judgment<\/a>, insisted on strict limits to EU defence integration (ibid., esp. paras. 249, 254, 316, 384), as \u201cmilitary sovereignty\u201d, regained after the 1955 Paris Treaties and fortified in a 1956 constitutional amendment (Article 87a GC), is today seen as a fundamental aspect of German \u201cstatehood\u201d.<\/p>\n One can disagree with this sovereigntist stance (as I do), but the EDC\u2019s general prohibition of national armies (Article 9 EDC) may raise similar constitutionality questions in the Benelux countries too (de Waele<\/a>, 9). ALCIDE\u2019s rather limited comparative constitutional focus on the potential validity of the \u201clate\u201d EDC ratifications by Italy and France, therefore, skips over an important legal problem that was already alluded to in my earlier post. Indeed: even if one were to believe that Germany and the Benelux countries were still bound by their respective ratifications under international law, their original consent might have become illegal \u2013 in the last 70 years \u2013 under their respective national constitutional laws (with the consequence that their governments would be under a domestic obligation to un-ratify). In the German case, for example, the 1954 amendment that had made EDC accession constitutionally possible via a newly inserted Article 142a GC<\/a> was itself repealed in 1968. And quare: did the national ratification laws for the 1954 WEU Treaty and the 2007 Lisbon Treaty not already implicitly repeal, under national law, the earlier 1952 EDC ratifications?<\/p>\n More European Law: The EDC Violates Primary and Secondary Law<\/p>\n Is the EDC incompatible with EU law today? My original post here concentrated on the institutional aspects of this question \u2013 mainly arguing that the supranational character of the EDC could not be inserted into the Union\u2019s intergovernmental Common Foreign and Security Policy (CFSP).<\/p>\n In response, Fabbrini and Mayer point to several CFSP-related inter-se agreements (Aachen, Lancaster, Strasbourg). But none of these treaties establishes a \u201csupranational\u201d authority or employs the European Court of Justice! The Aachen Treaty<\/a>, for example, allows France and Germany to \u201chold regular consultations at all levels prior to major European meetings\u201d (Article 2) and has the aim to \u201cincreasingly converge their security and defence objectives and strategies\u201d (Article 4(1)). Yet the \u201cFranco-German Defence and Security Council\u201d, created for that purpose, is a purely intergovernmental body (Article 4(4)); and the same purely intergovernmental features characterise the other two CFSP-related agreements mentioned by the authors. The example of the ESM Treaty<\/a> \u2013 concluded within the scope of the supranational TFEU \u2013 is, in this context, highly misplaced because the \u201cborrowing\u201d of supranational institutions can constitutionally be done, once the Pringle<\/a> criteria are fulfilled, in those parts of the EU Treaties that are themselves supranational. Yet, unlike what especially Fabbrini claims, this logic cannot \u201ca fortiori\u201d be extended to the CFSP, where Article 24 TEU expressly limits the role of the supranational institutions.<\/p>\n But let us also look more closely at the substantive incompatibilities of the EDC Treaty with EU law. On the level of EU primary law, the Union\u2019s Common Security and Defence Policy (CSDP) is today based on the assumption that national armies survive. For example: Articles 42 and 46 TEU as well as the Protocol on Permanent Structured Cooperation<\/a> essentially ask each Member State \u201cto develop its defence capacities through the development of its national contributions and participation\u201d (ibid., Article 1(a), emphasis added); and a revived EDC that generally abolished national armies would surely not be compatible with that CSDP feature. \u00a0This does not necessarily mean that there cannot be a proper European standing army under the current CSDP. While controversial (von Achenbach<\/a>, 240), Article 42(1) TEU might here offer a textual base that could, despite a later qualification, be used to justify the creation of such a supranational force. Yet to comply with the present CSDP arrangements, as well as Article 4(2) TEU<\/a>, this European army could never be an \u201cexclusive\u201d EDC-like army; it would have to be a \u201ccomplementary\u201d Union force in the way it has been suggested by some<\/a>.<\/p>\n On the level of EU secondary law, finally, a revived EDC would also cause major substantive incompatibilities. For in the last decade in particular, the Union has found the courage to increasingly use its supranational competences<\/a> (internal market, industrial policy, technology development) to enter into defence territory; and because inter-se agreements between the Member States are \u2013 just like national law \u2013 subject to the primacy of all EU law<\/a>, including secondary law, these Union legislative acts would have to be repealed before the EDC could come into force. Take, for example, Directive 2009\/81<\/a> 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; or, the more recent Regulation 2023\/2418<\/a> on establishing an instrument for the reinforcement of the European defence industry through common procurement (EDIRPA). Both Union laws seem clearly incompatible with Article 101-111 EDC, which are based on a completely different \u2013 centralised \u2013 procurement approach.<\/p>\n More European Politics: Autonomy and Democracy as a Minimum<\/p>\n For those favouring (external) strategic autonomy for the Union and (internal) democratic control of the Union, the two cardinal sins of the 1952 EDC were its NATO-dependency and its supranational-executive character. As regards the former, Article 2 EDC firmly committed it to operate \u201cwithin the framework of the North Atlantic Treaty\u201d with Article 18 EDC subjecting it, especially in wartime, to NATO control. As regards democracy (or lack thereof), the EDC had, by contrast, adopted the European Coal and Steel Community\u2019s technocratic format, with both Communities giving virtually no significant role to the European Parliament (Scheffel<\/a>, 79). That striking lack of democratic legitimacy was immediately perceived as a major flaw to be addressed in the future (Article 38 EDC).<\/p>\n Should today\u2019s European defence integration not do better than that? In the last decade, the Union has been pushing hard \u2013 very hard \u2013 to regain some external autonomy<\/a> from third States, especially under the TFEU. Within the intergovernmental CSDP, matters have been less successful, with three institutional ideas currently being discussed. The first idea, championed by EU Commissioner Kubilius under the banner of \u201ca genuine European Defence Union<\/a>\u201d, appears to favour a \u201cWestern European Union 2.0<\/a>\u201d based on an intergovernmental treaty and centred around a \u201cEuropean Security Council<\/a>\u201d. The second idea proposes a \u201cPESCO 2.0<\/a>\u201d that reactivates a Permanent Structured Cooperation with much fewer Member States participating than those that currently do (26 out of 27). Finally, there is the idea of a \u201creal\u201d supranational European Defence Union, proposed by the European Parliament and already analysed here<\/a>.<\/p>\n Each of these three options tries to develop and enhance today\u2019s CSDP organically. Yet only the second option allows for its activation through a qualified majority decision by the Council (Article 46 (2) TEU), whilst it returns to unanimity voting for all participating Member States subsequently (Article 46 (6) TEU). Unanimity among the participating states would, presumably, also apply to Kubilius\u2019 intergovernmental proposal \u2013 though clear institutional contours have yet to emerge out of his 2026 publicity blitz<\/a>. The European Parliament\u2019s proposal alone would solve that decision-making problem, albeit it would require prior EU Treaty amendment. The Parliament has, therefore, suggested the following amendment to Article 42 TEU (with the suggested textual changes in bold):<\/p>\n \u201c3. The Union shall establish a Defence Union with civilian and military capabilities for the implementation of the common security and defence policy. That Defence Union shall include military units, including a permanent rapid deployment capacity, under the operational command of the Union. Member States may provide additional capabilities. (\u2026)<\/p>\n 4. Decisions relating to the common security and defence policy shall be adopted by the Council acting by a qualified majority on a proposal from the Union Secretary for Foreign Affairs and Security Policy or an initiative from a Member State, and after obtaining the consent of the European Parliament. The Union Secretary for Foreign Affairs and Security Policy may propose the use of both national resources and Union instruments, together with the Commission where appropriate.\u201d<\/p>\n Like the EDC, the EDU would have clear supranational advantages over WEU 1.0 and WEU 2.0. But unlike the EDC, it would be under the operational command of the Union \u2013 not NATO; with majority decisions being taken by the two chambers of the EU legislature instead of a supranational executive (the \u201cCommissariat\u201d). The proposed EDU also acknowledges the continued ability of the Member States to have national armies; and the sharing of military \u201csovereignty\u201d, an anomaly in the Weberian nation state, would here be another expression of the cooperative federalism<\/a> that is already a constitutional hallmark of the Union. In contrast to the radical federalism of the EDC, the EDU thus adopts a much more \u201cpragmatic\u201d approach that is \u2013 nonetheless \u2013 not unprincipled in its choice in favour of a \u201cparliamentary\u201d Union force that is also strategically autonomous from the United States.<\/p>\n Parliament\u2019s EDU will, however, unlike the WEU 2.0 or PESCO 2.0 proposals, require Treaty amendment; and differentiated defence integration may, thus, ultimately still represent the Union\u2019s immediate future. But does this make the EDU a red herring when compared to the idea of reviving the 1952 EDC? No. The EDC is dead; and even if it were not dead, it would be illegal under the existing EU Treaties (and thus require their amendment to become legal); and even if it were not illegal under the EU Treaties, it would be unsuitable in light of what European defence integration should strive for in 2026, namely: external autonomy and internal democracy.<\/p>\n Why should the Member States agree to a supranational EDU? Because they should remember, as after the Second World War (or after the fall of Eastern European communism), that the best way to \u201crescue<\/a>\u201d themselves is within a stronger European Union.\u00a0Indeed, the insight of a great French comparativist still holds true today: \u201c[i]f a republic is small, it is destroyed by a foreign force; if it is large, it is destroyed by an internal vice\u201d (Montesquieu<\/a>, 131); and to overcome this geopolitical dilemma, smaller states should form a \u201cfederal republic\u201d in which internal virtue is combined with external force. That external force needs, today, no longer be an exclusive Union force to protect Europe from a remilitarised Germany. Yet the Union of 2026 must learn to stand on its own feet; and it must stand on them in the present \u2013 not the past. For the past is a time that cannot be revived outside one\u2019s imagination \u2013 even if one searched very hard.<\/p>\n","protected":false},"excerpt":{"rendered":"A Rejoinder to Fabbrini and Mayer Can the 1952 European Defence Community (EDC) be revived to supranationalize European…\n","protected":false},"author":2,"featured_media":8010,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[39,17862,11495,22059,22975,40,481,22061],"class_list":["post-58010","post","type-post","status-publish","format-standard","has-post-thumbnail","category-eu","tag-eu","tag-eu-law","tag-europa","tag-european-defence-community","tag-european-defence-union","tag-european-union","tag-nato","tag-vienna-convention-on-the-law-of-treaties"],"_links":{"self":[{"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/posts\/58010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/comments?post=58010"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/posts\/58010\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/media\/8010"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/media?parent=58010"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/categories?post=58010"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/europe\/wp-json\/wp\/v2\/tags?post=58010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}