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After the Brussels fiasco - an ESDP without a Constitution, a CFSP without a Foreign Minister?

15 January 2004

<b>I. The paradox of 2003</b>
2003 was a difficult year for the EU - and so was its epilogue at the European Council held in Brussels in mid-December. Paradoxically, however, 2003 was a positive year for ESDP. This is true for the actual operational record (EUMP, Concordia, Artemis, and now Proxima); for the Security Strategy, especially after the intra-European crisis over Iraq; for the decision to set up a EU Agency in the field of defence capabilities development, research, acquisition and armaments; and also for the deal reached in December on the military planning headquarters for EU missions. Accordingly, there will both a formal and mutual liaison arrangement with NATO's SHAPE, and autonomous options based on multi-nationalised national headquarters and also, whenever deemed necessary, a EU-own civil-military planning cell. Further deals are also in the pipeline, namely on a `permanent financial mechanism' for military operations (to be finalised by next March) and on the practical details concerning the Agency (to be finalised, too, during 2004).
<b>II. The achievements of the IGC</b>
Moreover, in the domain of security and defence policy, the Intergovernmental Conference (IGC) did reasonably well. After a difficult start, when the reverberations of European divisions over Iraq still influenced negotiations among the member states, some sensible solutions were put on the table and basically accepted. This applies both to the mutual assistance clause (Art. III-214) and to the article regarding `structured cooperation' on defence (III-213):
- regarding the former, the latest wording finalised right before the Brussels summit seemed to dispel the fears of the `Atlanticists' - who considered the draft version proposed by the European Convention as potentially undermining NATO - as well as those of the non-allied EU members, who rejected any backdoor and compulsory military commitment. Explicit caveats or implicit waivers, in fact, now apply to both NATO and non-allied members, although the jury is still out on the foreseeable scope of the aid and assistance obligation, which applies to &quot;all the means in their power&quot;;
- as for the latter (`structured cooperation', now defined as &quot;permanent&quot;), the new and almost identical formulations proposed by the Italian Presidency and, jointly, by France, Germany and the UK helped clarify all the fuzzier elements in the original Convention article - including the entry criteria to be enshrined in the relevant protocol - and respond to the objections of latent discrimination and poor legitimacy raised by some (present and future) EU members. In other words, the functional requisites and procedures for a better performing common ESDP were essentially laid down, if not formally agreed.
<b>III. Before (or without) the Constitution</b>
Finally, the 2003 balance sheet is fairly positive also because some or even many of the new ESDP provisions tentatively agreed upon at the IGC could well be put in place before, and if necessary also without, a new Constitutional Treaty. In fact, the enlarged Union may decide to put into practice whatever the Nice Treaty does not explicitly forbid - and arguably even more, particularly if operational realities and strategic imperatives call for it.
This applies, first and foremost, to the Agency (Art.III-212 of the draft Treaty). Formally open to every member state, it is expected to constitute an `umbrella' for different undertakings in this field, from the identification of shortfalls in assets and capabilities (addressed to all) to the management of specific industrial projects of a more exclusive nature, up to some degree of market liberalisation. It remains to be seen to what extent its provisions and spin-offs will be fully compatible with the relevant restrictions that the Nice Treaty still enshrines (Art.27 and Art.296).
This applies also to the Convention's Art. III-211, whereby the Council &quot;may entrust the implementation of a [ESDP] task to a group of member states having the necessary capability and desire to undertake&quot; it. In truth, this is already the prevailing format of actual operations, as the 2003 record shows. ESDP arrangements entail no obligation for all the member states to participate actively in ground missions. In fact, coalitions of the willing tend to vary in size and numbers according to the geographical location and functional nature of each mission, let alone its strategic relevance: from EUPM to Concordia, from Artemis to Proxima, the Union's crisis management operations conducted so far have already translated into very different formats and formations. To a certain extent, therefore, Art. III-211 could be considered almost superfluous, though certainly welcome in terms of legitimacy. Moreover, if &quot;a group of member states&quot; is willing to develop a specific policy (albeit without &quot;military or defence implications&quot;) towards, for instance, a given neighbourhood of the Union - from the Caucasus to the Mediterranean - the Nice Treaty's Art. 27 would already provide a legal basis for such `enhanced cooperation' in external policy and civilian crisis management.
This could also apply to 'structured cooperation', although the same Art.27 explicitly rules out 'enhanced cooperation' on defence and military matters. In fact, if everybody was ready to subscribe to the revised Art. III-213 and attached protocol, why not incorporate the key elements of that in the new Headline Goal for 2010 and make them common policy targets for all EU members? After all, they include general benchmarks - in terms of expenditure on equipment, participation in defence industrial projects, and availability and readiness of forces for high-end operations, especially in response to requests from the UN - that could be met by many countries within a reasonable time frame. While they should rather be kept general in the Constitutional Treaty's protocol, they could be further qualified - in quantitative terms, for instance, and possibly by specifying the nature of the relevant &quot;main European equipment programmes&quot; - in the new Headline Goal. In doing so, the Union would also kill the claims of exclusion ex ante that marred the IGC debates. In a few years' time, if only some EU members end up meeting those specific requirements, there will be a very solid case for shifting to some form of `structured cooperation' - but this time ex post, i.e. after having exhausted the other (= collective) option.
The push for implementing ESDP outside of any treaty - let alone a `constitutional' - framework is stronger than one may believe at first sight and is hardly new, as the treaty developments of the past years (including Nice) have shown. This is not necessarily a bad thing in that certain arrangements may need testing before being `codified' (and, one may add, before being submitted to ratification, especially when this entails a popular vote). In this domain, one could argue that institutional `big leaps forward' are not forcibly the best way ahead: they are difficult to achieve politically, and may backfire. However, a certain degree of transparency and accountability is needed in order also to give more credibility to the policy itself. This is why it could be sensible to adopt a twin-track strategy of immediate implementation and testing, coupled with an appropriate `constitutional' framework to enter into force, as now envisaged, by 2009.
<b>IV. The missing link</b>
The one element of the Convention's draft that seems hardest to put in place before the Constitutional Treaty is finalised and ratified is the Union's &quot;Minister for Foreign Affairs&quot;. On the one hand, it is not unlikely that the IGC still revisits some of the relevant provisions. On the other, it is unlikely that the member States decide to appoint as early as the summer of 2004 one and the same person as both High Representative for CFSP and Commissioner for External Relations: it is improbable politically, and questionable institutionally and functionally. Such a `double-hatted' figure avant lettre would have a fuzzy mandate and an even fuzzier legal and bureaucratic underpinning. S/he would lack the advantages of a `codified' personal union as laid down in the Convention's draft, while s/he would presumably have the Commission and Council services fighting each other for turf and resources, and no superior instance to resort to for arbitration: indeed, the &quot;President of the European Council&quot; will not be there and, in any case, the European Court of Justice does not have jurisdiction over CFSP/ESDP.
This said, the European Council that is due to appoint the next President of the Commission could well approve some transitional recommendations - to be enforced through simple Council decisions - aimed at bridging, once again, the time gap between 2004 and 2009 by establishing some procedures for cooperation and interaction (if not gradual integration into the &quot;European External Action Service&quot; envisaged by the Convention) between the two `arms' of the Union's foreign policy that would support its further development and prepare the ground for the future.