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Section 3. International law
https://doi.org/10.29013/EJLPS-21-2-16-21
Mironova Margarita Anatolievna, PhD in Political Sciences, Associate Professor Jean Monnet Centre of Excellence Taras Shevchenko National University of Kyiv, Ukraine E-mail: mironova_margarita@yahoo.com
THE EU'S PERMANENT STRUCTURED COOPERATION: PROSPECTS FOR EUROPEAN DEFENCE
Abstract. The article examines the main achievements and challenges for the EU cooperation in defence and security issues. Special attention is paid to the perspectives of the Permanent Structured Cooperation (PESCO) mechanism, position of the EU institutions and EU member-states.
Keywords: The EU Common Security and Defence Policy (CSDP), Permanent Structured Cooperation (PESCO), strategic autonomy, defence, capability development.
The Common Security and Defence Policy, as an fence: discussion between the 'Europeists' and 'At-
integral part of the broader EU Common Foreign and Security Policy (CFSP), was designed in 1999 to set up the frameworks for the EU activities in such spheres as defence policy and crisis management. And from its very beginning intergovernmental nature of cooperation and lack of consensus between the EU member-states were the main challenges for its successful implementation.
In the debates over the division of competence between the EU and its member-states the national security and defence have turned out to be too sensitive policies for states to delegate their sovereignty to the supranational level. But there was a need to 'facilitate decision-making in an ever larger Union, even without moving towards qualified majority vote in a policy area where the acquis was still minimal and consensus deemed essential' [1, P. 11].
On the other hand, there were difficulties in combining different levels of ambition of the EU member-states in the spheres of security and de-
lanticists', position of neutral and non-aligned states. The case of Denmark with its 'opt-outs' according to Edinburg Agreement 1992, pro-Atlanticist attitude of the UK and Central and Eastern Europe required tailor-made arrangements. As a result the ideas of flexibility and differentiation, closer/enhanced cooperation were transformed into such practical measures as softening of the unanimity rules in CFSP by inserting 'constructive abstention' clause (Amsterdam Treaty 1997), introducing mechanisms of 'enhanced cooperation' in CFSP (Nice treaty 2001), entrusting CSDP operations to 'a group of member-states' (Lisbon treaty 2007).
Similar are the roots of the 'permanent structured cooperation' mechanism (PESCO) - closer cooperation in the security and defence policy, which go back to the debates at the Convention on the Future of the European Union at the beginning of2000s. Despite the rejection of the Treaty establishing a Constitution for Europe at Dutch and French referendums
in 2005, PESCO provisions were incorporated into the text of the Lisbon Treaty 2007 nearly unchanged. Now the provisions on PESCO are defined by Articles 42 (6), 46 and Protocol 10 of the Treaty on European Union (TEU).
According to Article 42 (6) of the TEU, PESCO is to be established within the Union framework by the 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' [2]. The objectives of PESCO were stipulated in Art.1 ofthe Protocol 10:
a) to develop the defence capacities of member-states through the development of their national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the European Defence Agency in the field of defence capabilities development, research, acquisition and armaments;
b) to have the capacity to supply 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 [2].
PESCO mechanism was supposed to give the rapid progress in defence cooperation by using specialisation and advantages of each state, decreasing the number of different weapons' systems in Europe, strengthening operational cooperation, interoperability and industrial competitiveness, in particular in the case of small states with limited capacity and niche industries (f.e. Estonia, specialized in cyber security issues). It was envisaged to provide the rational use of the military potential of the EU members on the basis of their respective industrial specialisation. The main idea of cooperation within the PESCO was to increase efficiency through the joint implementation of what each country is now doing independently. The idea received further pursue in 2010 in the Ghent initiative of Pooling & Sharing,
when defence ministers agreed to draw up an inventory of projects where member-states could cooperate by pooling and sharing military capabilities in order to avoid duplication and cut costs [3].
However, it has taken nearly 10 years for the EU to launch the PESCO. First, when Lisbon Treaty entered into force in 2009, the EU institutions and member-states were engaged in solving the sovereign debt crisis in the eurozone. Second, the EU member-states defence cooperation was mostly focused at that time on bilateral agreements such as the Franco-British Lancaster House treaties of 2010 or French-German-Polish initiative 'Weimar Triangle'. Third, the main priority in implementing Lisbon provisions on CFSP/CSDP was to establish a special diplomatic tool for the EU High Representative for Foreign Affairs and Security Policy - the European External Action Service. The conclusions of the European Council meeting in December 2013 were rather indicative in this regard: a special meeting devoted to the defence cooperation didn't mention PESCO at all.
The approach has been changed dramatically in recent years and, finally, led to reactivation of initiative in 2017. The member-states presented a list of common commitments such as defence investment, capability development and operational readiness. On December 11, 2017 the EU Council adopted a decision to launch PESCO, though only 25 of 28 member states decided to join the PESCO mechanism in 2017 (Malta and Denmark refused, the UK was in process of leaving the EU).
The reasons for revitalizing the EU defence agenda were as follows:
• The deterioration of regional and international environment: the recent crisis of liberal international order and the return of Realpolitik, the rise of populism and Euroscepticism, traditional and new threats and challenges in the EU's neighbourhood in Eastern Europe and Eastern and Southern Mediterranean (the ongoing conflicts in Ukraine, Syria and
Libya, the migrant crisis of 2015-2016, terrorism);
• The consequences of the 'Brexit' referendum in the UK.
On the one side, the UK was traditionally regarded at the main obstacle to deeper EU defence cooperation and the EU's most Atlanticist member-state. Following its decision to leave the Union the UK no longer had political capital to block initiative it opposed. On the other side, the departure of one of the biggest European military powers from the EU had significant consequences for the EU military capacity. Together four member states (UK, France, Germany and Italy) accounted for 71,3% of the total defence expenditure in the EU in 2016. In absolute terms, the United Kingdom spent the most on defence (EUR47 billion in 2016), which represented around a quarter (23,7%) of the total EU expenditure on defence (i.e. around EUR200 billion in 2016). France was the second with around EUR40,7 billion or 20,4% of the EU total; Germany - EUR32,7 billion or 16,4%; Italy EUR21,5 billion or 10,8% [4, P. 2].
• The changes in the US European Strategy after the election of Donald Trump as the president of the USA in November 2016. His tough attitude towards European allies and even questioning America's defence commitments in NATO, deterioration of German-US relations convinced the EU leaders to take more responsibility for European security and make further steps in deepening integration in military and defence sphere.
In June 2016 the High Representative for Foreign Affairs and Security Policy Federica Mogherini presented an updated version of the EU vision of its role in international system and its foreign policy's ambitions - 'A Global Strategy for the European Union's Foreign and Security Policy: Shared Vision, Common Action - a Stronger Europe. The document stresses the existential crisis within and beyond the EU which puts the European project into question and the increased linkage between internal and external secu-
rity challenges - 'internal and external security are ever more intertwined: our security at home depends on peace beyond our borders' [5, P. 7].
One of the leading guidelines for the EU Foreign Policy proposed in the Global Strategy is the concept of 'strategic autonomy', however, not clearly defined. Some of the researchers consider that the main idea of strategic autonomy is to avoid external dependencies in a new geopolitical context [6]; the others define it as 'the ability to act autonomously, to rely on one's own resources in key strategic areas and to cooperate with partners whenever needed' [7, P. 2]. Nonetheless, the strategic autonomy is seen as a balance between geopolitical, socioeconomic and environmental dimensions.
The central element of the 'strategic autonomy' in defence and security spheres is the 'capability development' component of the CSDP. And PESCO is one but not the only element of a comprehensive defence package which also includes the European Defence Fund (EDF) established in 2017; the Coordinated Annual Review on Defence (CARD), run by the European Defence Agency to analyse the needs, coordinate defence spending and identify priority projects; the off-budget European Peace Facility for financial support of peace-keeping activities both of the EU itself and in cooperation with partners. All these instruments are complementary and mutually reinforcing tools contributing to the goal of enhancing EU member-states defence capabilities: PESCO develops capability projects, identified notably through the CARD process in priority areas; while eligible projects may benefit from financing under the EDF (the EU co-financing could amount to 30%).
The difference between the PESCO and other forms of cooperation within the CSDP is the binding nature of the commitments undertaken by participating member-states: 20 specific defence policy commitments, including meeting agreed defence spending targets, the harmonization ofrequirements and greater collaboration in capability development. Nevertheless, despite ambitiousness of PESCO initiative which
was regarded as 'a big step toward creating an eventual EU Army' [8, P. 99], it still remains a member state-driven process and mostly a technical initiative.
PESCO is a voluntary framework and does not change existing TEU provisions on security and defence cooperation. The participating states preserve the sovereignty on their armed forces and the decision-making process is traditional unanimity (except decisions regarding admission of new members or suspension of membership, which are taken by the Council by qualified majority).
PESCO has a two-layer structure:
• Council level: responsible for the overall policy direction and decision-making, including the assessment mechanism to determine if member-states are fulfilling their commitments;
• Projects level: the individual projects are run by different groups of participating member states, in line with general rules for project management.
A Secretariat function for PESCO is provided by the European Defence Agency and the European External Action Service (including the EU Military Staff). At the same time, PESCO initiative can by characterised as a 'game-changer' in EU defence integration. The attempts to involve the European Commission into security and defence initiatives are quite promising, despite the fact that security and defence issues remain within the competence of the EU Council and the Member States. This is largely attributed to the involvement of the European Commission's new Directorate General for Defence Industry and Space, in offering funding for both research in innovative defence products and technologies, and the development and procurement of key capabilities [9, P. 23].
By now PESCO participants have agreed a list of 47 collaborative projects in capability development and operational dimension, dividing into the following 'clusters': a) training and facilities; b) land and formation systems; c) maritime; d) air systems; e)
cyber capabilities; f) enabling and joint capabilities, g) space systems, ranging from the establishment of a European Medical Command, an EU Training Mission Competence Centre, Cyber Rapid Response Teams and Mutual Assistance in Cyber Security to Military Mobility, Military Disaster Relief and an upgrade of Maritime Surveillance.
The first package of 17 PESCO-branded projects approved in 2017 mainly consisted of the existing EDA and NATO projects such as cooperation on a European secure software defined radio or upgrading maritime surveillance. The most popular project which includes all PESCO states except Ireland is Military Mobility, the so-called 'Schengen of defence'. Developed within NATO and incorporated into PESCO mechanism the project is aimed at facilitating the cross-border movement of troops, services and goods for military exercises by harmonising custom rules and creating trans-European transport networks.
So far, member states from the so-called 'old Europe' participate in PESCO projects more actively comparing with the Central and Eastern Europe. Countries of the EU's eastern flank traditionally are more pro-US and pro-NATO oriented. The leading contributors as well as beneficiaries from PESCO projects are Germany, France and Italy following by Spain and Portugal. However, the German and French visions of PESCO differ [10, P. 132]. French vision is focused on project ambitions and includes high entry criteria and strong operational commitments. Germany, to the contrary, insists on the project inclusivity and participation of a wider group of EU members.
France, to the contrary, is implementing the idea of European strategic autonomy with no limitations to the EU structures and initiatives. The European Intervention Initiative proposed by the French President Emmanuel Macron in 2017 goes beyond both NATO and EU and is not restricted to the provisions of the founding treaties. Currently 13 European countries have joined the initiative, two of them, Norway and the United Kingdom, not being the EU members. Such flexible framework of interstate cooperation
beyond the institutional framework of the EU and NATO seems to be significant advantage of involving the UK into the military-political projects of continental Europe after the Brexit. The project also provides an opportunity for Denmark with its opt-outs in security and defence and enforced non-participation in the PESCO and EDA initiatives.
Potential engagement of third states into initiative has been debated for several years. The US used to express concern over EU industrial protectionism and restriction of US participation in PESCO projects, while the UK officials announced possible involvement in specific PESCO projects, but on a case-by-case basis. Finally, the Council of Ministers agreed in November 2020 the general conditions for third states' participation in PESCO projects stressing that 'third state that can add value to a PESCO project may be invited to participate if they meet a number of political, substantive and legal conditions' [11]. They must not contravene the security and defence interests of the EU and its member states; must provide substantial added value to a project, for example technical expertise or additional capabilities, including operational or financial support; participation must not lead to a dependency on a third state or allow third state to impose restrictions on the use of developed capabilities; a third state must have sign an agreement to exchange classified information
with the EU and an Administrative Agreement with the European Defence Agency.
The third states may participate in the decision-making process within a specific PESCO project, but have no decision-making power in the overall governance of PESCO. In May 2021 the Council adopted positive decision on participation of the US, Norway and Canada in the PESCO project Military Mobility. These countries are the first third states to be invited to participate in PESCO projects. The experience could be useful for EU candidate countries and Eastern Partnership partners, such as Serbia and Ukraine that have already signed agreements with the European Defence Agency.
The EU cooperation in security and defence areas is a complex multifaceted network of initiatives and institutions with flexible commitments of the participating states. The Lisbon Treaty established the legal and political framework for deepening cooperation in the field of foreign policy, security and defence, including PESCO mechanism. Though, there are still many legal grey zones to be clarified so the future of CSDP and PESCO, in particular, will depend greatly on its empirical development, further agreements and consensus between EU members. The success of PESCO is related to the ability to find the right balance between 'ambition' and 'inclusiveness' of the initiative and on participants' readiness to fulfil the commitments.
References:
1. Permanent Structured Cooperation: What's in a Name?/ by D. Fiott, A. Missiroli and T. Tardy // Chail-lot Paper - No. 142. Paris: EU Institute for Security Studies,- November, 2017.
2. Consolidated version of the Treaty on European Union and the Treaty on Functioning of the European Union. Available at: URL: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ: C:2016:202: TOC
3. EDA's Pooling and Sharing, Brussels: European Defence Agency. Available at: URL: https://eda.europa.eu
4. Mathis A., Defence: Member States' Spending, Directorate-General for Internal Policies, European Parliament,- May, 2018.
5. Shared Vision, Common Action: a Stronger Europe. A Global Strategy for the EU's Foreign and Security Policy, Brussels, June 2016. Available at: URL: https://eeas.europa.eu/archives/docs/top_stories/pdf/ eugs_review_web.pdf
6. 'Strategic autonomy' is now an EU catchphrase. Available at: URL: https://www.bruegel.org/2021/03/ letter-strategic-autonomy-is-now-an-eu-catchphrase
7. Mehtap Akgug. Europe's Open Strategic Autonomy. Striking a Balance between Geopolitical, Socioeconomic and Environmental Dimensions, ETUI Policy Brief, 2021.09. Available at: URL: https://www. etui.org/publications/europes-open-strategic-autonomy
8. Novaky N. The EU's Permanent Structured Cooperation in Defence: Keeping Beauty from Snoozing // European View,- Vol. 17(1). 2018.- P. 97-104.
9. Blockmans S., Macchiarini Crosson D. Differentiated integration within PESCO - clusters and convergence in EU defence, CEPS Research Report,- No. 04.- December, 2019.- 28 p.
10. Nocon J., Dorosh L., Ivasechko O. PESCO as the Modern Defense Initiative of the European Union: Positions ofWestern European Countries Vs Positions of Eastern European Countries/ EJTS European Journal of Transformation Studies,- Vol. 7.- No. 2. 2019.- P. 128-141.
11. Council Decision (CFSP) 2020/1639 of 5 November 2020 establishing the general conditions under which third States could exceptionally be invited to participate in individual PESCO projects/ OJ L 371, 6.11.2020.- P. 3-9. Available at: URL: https://eur-lex.europa.eu/eli/dec/2020/1639/oj
