16. Toward an Authentic European Defence Research Strategy: Legal Aspects

See Court of Justice of the EU (2008). This judgment was based on the interpretation of Article 47 TEU which was the predecessor of Article 40 TEU in its version resulting from the Treaty of Lisbon. Article 47 read as follows: ‘Subject to the provisions amending the Treaty establishing the European Economic Community with a view to establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Community Atomic Energy and these Final Provisions, none of the provisions of this Treaty (the EU Treaty) affects the Treaties establishing the European Communities or the subsequent Treaties and Acts which have amended or supplemented them’.

Article 40 of the TEU contains a second subparagraph which did not exist in the previous Treaty and aims at protecting acts taken on the basis of the TEU from possible incursions by the Commission. See Piris (2010: 263). For an application of this article, see Court of Justice (2017).

European Parliament and Council of the European Union (2013), Art 19(2): ‘The research and innovation activities carried out under Horizon 2020 focus exclusively on civil applications’.

For the definition of technological readiness levels (technological readiness level or TRL), as used by EDA, see European Parliament (2016: 13), and on the specificities of defense research, see European Parliament (2016: 31ff.).

This fund would be composed of two separate funding structures (or ‘windows’), complementary and progressively implemented: (I) a ‘research window’ to finance collaborative research projects in the field of defense at Union level and (Ii) a ‘capability window’ to finance the joint development of defense capabilities decided upon by the member states. It would be financed through the pooling of national contributions and, as far as possible, supported by the EU budget. The ‘research window’ and the ’capability window’ will be complementary but separate in terms of their legal nature and sources of funding. The ‘windows’ will be supplemented by a coordination mechanism, which will take the form of a coordination council bringing together the Commission, the High Representative, the member states, EDA and industry as appropriate. The main task of this coordination council will be to ensure coherence between the ‘research window’ and the ‘capability window’ in order to better support capability development agreed by member states. These capabilities are defined by separate processes, in particular those of EDA and the annual coordinated defense review (CARD) conducted by the member states, to be proposed by the HR/VP in accordance with the Council conclusions (European Commission 2016: 6ff.).

In this respect, it may be questioned whether the ‘general budget’ of the EDA, which is composed exclusively of administrative expenditure, is funded largely by contributions from member states, should be funded exclusively from the EU budget and that only operational expenditure, i.e. project expenditure, should be financed by the latter (Council of the European Union 2015b: Art. 13.9).

To the best of our knowledge, the treaties do not define ‘operating expenditure’ nor do they define ‘administrative expenditure’. Nor is it the case of the financial regulation of the Union budget. In the silence of the texts, it can be inferred intuitively that ‘operating expenditure’ is related to the realization of Union policies or programs, while ‘administrative expenditure’ is related to the functioning of the administrative and political structures deemed to implement these policies.

In this regard, it is interesting noting the divergences between the translations of the treaty, especially the German version.

‘The Council (...) (b) Invites member states, working through the EDA and in close coordination with the EU Military Committee (EUMC), to specify and complement the identified preliminary capability priorities on the basis of the level of ambition and in the framework of the forthcoming review of the Capability Development Plan (CDP) by spring 2018, taking also into account member states’ priorities’ (Council of the European Union 2016b: Par. 12b).

It should be noted that the day after the adoption of the Foreign Affairs Council conclusions, the Ministerial Steering Board of the EDA, under the chairmanship of HR/VP in her capacity as Head of the EDA, defense ministers tasked EDA to review the CDP (European Defence Agency 2016).

‘The Council (...) (c) Tasks to review the military requirements stemming from the EUGS and the level of ambition and to develop the related illustrative scenarios, in line with the agreed procedures and as a contribution to the CDP review, while ensuring coherence of outcomes and timelines with the NATO defence planning process, where requirements overlap’ (Council of the European Union 2016b: Par. 12c).

The Council (a) invites the High Representative/Head of the European Defence Agency, in full consultation with member states, to present proposals to ministers in spring 2017 for their decision on the detailed scope, methods and content of a member state-driven co-ordinated annual review on defense. In full respect of member states’ prerogatives and commitments in defense, including, where it applies, in collective defense, and their defense planning processes, such a review would foster capability development addressing shortfalls, deepen defense cooperation and ensure more optimal use, including coherence, of defense spending plans. Building on the Policy Framework for Systematic and Long-Term Defence Cooperation, the objective of the review would be to develop, on a voluntary basis, a more structured way to deliver identified capabilities based on greater transparency, political visibility and commitment from member states (Council of the European Union 2016b: Par. 13a).

The Commission, in its Communication ‘Towards a more competitive and efficient defence and security sector’ of 24 July 2013, encouraged this type of collaboration in the following terms: ‘These dual systems have allowed new forms of collaboration among member states to emerge for the exploitation of satellite imagery whereby the acquisition takes place either on the market or through bilateral agreements. This successful approach, combining civil and defence user requirements, should be pursued’ (European Commission 2013: Art. 6.3 second indent).

In the case of the Single European Sky ATM (Air Traffic Management) (SESAR) project, it seems to appear that the EDA had measured military constraints only in the course of the process.

Article 9(2) of Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operating procedures of the European Defence Agency considers the qualified majority vote as the normal mode of vote (Council of the EU 2015b).