November 13, 2017
Guest post by Sabine Lösing (MEP, DIE LINKE) and Jürgen Wagner (managing director of Informationsstelle Militarisierung e.V.)
It is the prevalent perception in Brussels that if the EU wants to establish itself as a veritable global player within the group of major powers, the construction of a powerful military establishment is inevitable. Great Britain has blocked such a development for many years. This explains why a number of EU politicians perceive the Brexit as an opportunity rather than as a problem.
In fact, the British EU-Referendum functioned as a kick-off: Under the Franco-German leadership and based on the European Global Strategy (EUGS), a series of initiatives that had so far been blocked by the United Kingdom were pushed forward. Since the referendum, the Commission seems to be prepared to” engage in defence measures to an unprecedented extent”. The crown jewel of this military package will be the first-time establishment of a multi-billion-euro EU defence budget, the European Defence Fund. Of the many problems that this project raises, the prevailing question is whether the Fund is legal at all.
Billions for Armament
In November 2016, the Commission suggested to pledge an annual amount of 500 Mio. Euros from the EU budget from 2021 to 2027 to EU defence research and 5 Billion Euros annually to the acquisition of armaments – equating to a total of 38.5 Billion Euros.
In June 2017, the Commission stated that the fund shall already start 2019 and until the end of 2020, 2.59 Billion Euros shall be allocated. Thereafter, it shall stay at the said 5.5 Billion Euros annually, of which 1.5 Billion would come from the EU budget and the rest from the member states. The Parliament and the Council will pass a corresponding regulation proposal from the commission as a priority project in the course of 2018. Hence, the way is cleared to bring the de facto defence budget on its way under the term: “European program for the industrial development of the defence sector for the purpose of the promotion of the competitiveness and the innovation the defence industry of the EU” (EDIDP).
This title clarifies that the core concerns of the EDF are the promotion of the competitiveness and export capabilities of the local arms industry. However, the predominant purpose is to improve the military capability of the EU. This is to be achieved by counteracting the alleged underfinancing of the defence sector through the EDF. In addition, the EDF only finances transnational defence projects, which in turn should raise the efficiency of the defence sector.
Legal? Illegal? It doesn’t matter!
The reason why the EU has not already gor itself a defence budget can be found in Article 412) of the Lisbon Treaty, which clearly states that the EU budget is taboo for expenditures of foreign and security policies with military implications.
Therefore, the Commission is using a trick by choosing Article 173 of the Treaty on the Functioning of the EU (TFEU) as legal basis. The article is concerned with the competitiveness of the industry and measures to promote it, what could indeed be financed from the EU budget. For the Commission’ it seems thus logical to assign the Industry, Research and Energy Committee (ITRE) as the leading committee in the EP and not to the Foreign Affairs (AFET) or the Security and Defence Committee (SEDE).
However, it’s not the case that the Commission can arbitrarily use any legal basis. In 2016, the ECJ emphasized that if a Union act has a twofold component, with a main and an incidental one, the measure must be based solely on the legal basis required by the main one: “If an examination of a EU measure reveals that it pursues a twofold purpose or that it comprises two components and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component.”
As far as the priority of the measure is concerned, the regulation is quite clear: right from the start it is emphasized that “defense policy” has been declared “a priority” by the Commission. In order to avoid any misunderstandings, the Commission states the purpose and meaning quite clearly: “The basis for the establishment of the program is the provisions of Article 173 TFEU. Its overall objective will be to strengthen the capacities of the Union’s defense policy with regard to competitiveness and innovation by encouraging action at its development stage.“
In the EDIDP-regulation, the Commission clearly declares defence policy as its predominant focal point for action. “[…] For Europe to take over more responsibility for its defence, it is crucial to improve competitiveness and enhance innovation across the Union defence industry.” Obviously, the improvement of the competitiveness of the defence sector is seen by the Commission as a means to the end of acquiring “better” military capabilities.
Similarly, the chairs of the AFET and SEDE committees argued that the undertaking aims to expand the military capacities of the EU, which clearly falls within their competence. Therefore, Article 173 is not applicable as a legal basis and their Committees, not ITRE, should be assigned the leadership. In this case, however, Article 41(2) would have to apply and the defence fund would become superfluous. The issue was finally “solved” by Cecilia Wikström,Chair of the Conference of Committee Chairs, who judged that the ITRE Committee should maintain the lead over the EDIDP-proposal while simultaneously granting AFET (SEDE) a shared competence
A ‘silent revolution in Europe’s defence policy’, a ‘quantum leap’, takes place. It would therefore be all the more important to examine this extremely questionable legal basis. An attempt by the EP left-wing group GUE/NGL to entrust the legal service of the EP was blocked by the armament-friendly President of the EP, Antonio Tajani, as well as by ITRE Chair Jerzy Buzek.
This is a slightly updated, shortened and translated version of an article that first appeared in the October issue of the German magazine “Blätter für deutsche und internationale Politik”
 Court Case C 263/14, 14. June 2016.
 Vorschlag für eine VERORDNUNG DES EUROPÄISCHEN PARLAMENTS UND DES RATES zur Einrichtung des Europäischen Programms zur industriellen Entwicklung im Verteidigungsbereich zwecks Förderung der Wettbewerbsfähigkeit und der Innovation in der Verteidigungsindustrie der EU, Brüssel, den 7.6.2017, COM(2017) 294 final, S. 2 und 6.Blogactiv Team