The future regulation of the European Defense Agency. What a lost opportunity!

19th October, 201011th May 2018 Nicolas Gros Verheyde

(Editorial) The text of the (quasi-final) draft regulation of the European Defense Agency - which I was able to read at length (1) - strangely resembles the previous one. And, just as much in 2003-2004, this text could seem daring, because it was drawn up without a real legal basis, just as today in the light of the new institutional (Lisbon Treaty) and economic context, it may seem shy. There are some advances, minimal, and some nuances, which can also appear as setbacks. But in the end, there is a very clear lack of ambition and a lack of momentum. While everyone believes that there should be more cooperation at European level, if only for budgetary reasons (2). But there is worse...

The evolution of the Agency blocked by unanimity

Throughout this text, the principle of unanimous decision-making has been retained, including for budgetary aspects. We know full well that this is the permanent sticking point that repeatedly hinders the functioning of the Agency. For several years, one or two countries have blocked any development of the agency. They thus prevent the few necessary recruitments (not much: 15 people! (3)) and the increase of the budget (the budget of the agency is a little more than... 30 million euros! (4 )). But above all, they don't want to hear about a multi-year budget. This would, however, be the most elementary principle of good management since the agency works on long-term projects, planned in a multi-annual work program. To be clear, there are 25 countries out of 26 (Denmark does not take part in the decisions) which are for this multiannual budget: only the United Kingdom is against. The rule of unanimity therefore obliges to align with the lowest bidder.

The new deal of the Lisbon Treaty

The opportunity was however given to revise this rule, the Treaty of Lisbon facilitating this development. This - in its article 45 - provides, in fact, that the decision establishing the agency is adopted... by a qualified majority. It was therefore quite logical to reproduce this mode of decision within the rules. If my legal memories are correct, it would have been not only logical but slightly obligatory, if only to respect the parallelism of forms and respect for the hierarchy of standards. Lawyers will discuss it... In any case, it was quite possible politically. Of course, it wouldn't have been easy. A strong discussion in particular of the State(s) placed in a minority. But that would have put pressure on those who brake rather than those who want to move forward.

Ultimately, this decision seems to me contrary to the spirit, even to the letter, of the Treaty of Lisbon. And would have deserved to be decided by the Court of Justice of the EU, if the Treaty had allowed it (A general provision declares the incompetence of the Court for most of the provisions of the CFSP).

The addition of petty national selfishness to political short-sightedness

How did we get here ? Undoubtedly, by a conjunction of elements. First of all let us specify that the functioning of the agency escapes any democratic control of the European Parliament as of the national parliaments (it is my opinion that if the Parliament had interfered in it, we would not be there). Then the national administrations, which are always afraid of losing a little power, are not unhappy to see the operation at European level of any pooling body such as the Agency frozen. Finally, the political level is paralyzed or has its mind elsewhere.

Everyone has, therefore, for good reasons that are not very avowable... For the High Representative Cathy Ashton - who is behind this decision and chairs the Agency - going to oppose the Member States head-on would have been exposing unnecessarily when she already has a lot of difficulties with them to let her set up the diplomatic service (we understand her). Moreover, it will not escape anyone that she does not belong to the ruling coalition in London and is therefore particularly under surveillance as soon as British interests are at stake. As for the Belgian presidency, it is mired in problems internal policies. And in the other capitals, it is no better. Many countries have internal political problems (the Netherlands or Italy), or serious economic problems (Greece, Ireland, Spain, Portugal...). Finally, in Paris, we dream of a honeymoon with London while trying (as best we can) to set up joint projects on a bilateral basis. In short, it was urgent not to do anything really daring... Or how to lose an opportunity to move forward.