The EU’s response to Russia’s invasion of Ukraine: a new direction in EU defence policy or a reinforcement of military interdependence?

The EU has responded relatively fiercely to Russia’s military aggression, with the Council’s decision to deliver weapons to Ukraine even coined a ‘watershed moment’ in European integration. The EU’s involvement in the military domain is expanding rapidly. In this blogpost, Nathan Meershoek argues that the EU’s engagement should not, however, be considered ‘new’ or fundamentally different from previous defence policies. EU defence policy and military procurement regulation should, he insists, be understood and further developed as a reinforcement of national sovereignty and an addition to NATO cooperation rather than their replacement.

The post is the second in a series drawing on a RENFORCE expert seminar on the EU’s response to the war in Ukraine, held online on 8^th March 2022. Click here to read Dr Salvatore Nicolosi’s take on the EU’s response to the migratory flow from Ukraine, and stay tuned to RENFORCE Blog for further analysis of the EU’s neighbourhood policies and Ukraine, the EU’s economic sanctions against Russia and the Ukraine war in the media.

War is back on the European continent. The recent invasion of Ukraine by the Russian military has confronted the EU and its Member States with the Hobbesian purpose of their existence: their survival. As we live in a world where military force is used as a means for conflict resolution, states and their values ultimately only survive if sufficiently armed for effective (collective) self-defence. Much of the EU’s engagement in the area of military defence is therefore aimed at changing the military procurement policies of its Member States.

After decades of exploiting some sort of ‘peace dividend’, Putin showed Europe the limitations of economic interdependence as a stabilizing factor in international relations. In a few weeks, Germany substituted its self-proclaimed ‘pacifism’ and the Nord Stream 2 pipeline to Russia for a 100 billion euros investment in its military, probably including the procurement of F-35 fighter planes from the US. War might be less likely between economically interdependent states, but the rationale for engaging in interdependence fundamentally differs between democratic and autocratic states. Whereas the wealth created by trade liberalisation can greatly serve the economic growth of democratic states, for autocratic states – such as the Russian Federation – that same wealth and economic dependency can serve to finance and support their military aggression.

The EU’s response to the war

The EU has responded relatively fiercely to Russia’s military aggression. Although, for now, it appears (politically) impossible to immediately shut down oil and gas imports, the Member States and their allies have imposed heavy economic sanctions. Moreover, on 28^th February, the Council decided for the first time to directly supply a third country with military equipment by pledging to deliver 450 million euros worth of arms designed to deliver lethal force to the Ukrainian Armed Forces. As peace and security within the EU have traditionally been based on internal economic interdependence and external military protection by NATO (i.e. the US), the decision to deliver weapons to Ukraine has been coined as a ‘watershed moment’ in European integration. High Representative Borrell proclaimed before the European Parliament that ‘‘this is the moment in which the geopolitical Europe is being born’’ and that it is now time for the EU to ‘‘become a hard power’’. A few weeks later, on 21^st March, European leaders agreed on ‘A Strategic Compass for Security and Defence’, including the development of an EU Rapid Deployment Capacity which should be able to swiftly deploy up to 5000 troops (possibly similar to NATO-based intergovernmental capabilities).

Undoubtedly, these are important developments for EU defence policy; but do they represent a truly unprecedented turn? Is the EU about to take up the role of NATO in defending European countries?

The EU’s engagement in the military domain is expanding rapidly, but should not in my view be considered ‘new’ or fundamentally different from previous policies. Ever since the Treaty of Maastricht (1992), there has been a legal basis for a Common Foreign and Security Policy (CFSP), including a Common Security and Defence Policy (CSDP) which has over the years been used to cooperate more closely in the area of military defence. The urge to become less dependent on the United States in security politics has been present in EU policies since its Global Security Strategy of 2016 and is usually referred to as ‘Strategic Autonomy’.

In the last decades, the EU has been seeking to enhance this Strategic Autonomy in military affairs both through intergovernmental policies of the Council and the Member States within the CSDP as well as through supranational policies of the European Commission focusing on the industrial aspects of military security. While the intergovernmental CSDP emphasises the need for military solidarity through military interdependence based on national capabilities, the supranational measures aim for the integration of military-industrial capabilities. I will discuss these different frameworks in turn in the two sections below.

The constitutional embedding of the EU’s Common Security and Defence Policy: towards military solidarity?

When it comes to national security, the Treaty of Lisbon (2007) emphasised in Article 4(2) TEU that this remains the ‘‘sole responsibility of the Member States’’. The EU’s CSDP is therefore based on intergovernmental decision-making and its operational actions depend, in accordance with Article 42(3) TEU, on the deployment of national military capabilities and thus on the willingness of national political leaders. The CSDP does not transfer competences from the Member States to the Union but only facilitates cooperation and coordination. Cooperation within the CSDP frameworks is, following Article 24(2) TEU, based on the ‘‘development of mutual political solidarity among Member States’’. Like the North Atlantic Treaty, the EU Treaties also include a collective self-defence clause in Article 42(7) TEU. All actions taken within the CSDP should, however, also be in accordance with the obligations and commitments of NATO as expressed in Article 42 TEU as well. This is no coincidence, as for all the states which are members of both alliances the commitment to the North Atlantic Treaty precedes the CSDP commitments. This approach is further underlined by the recent Strategic Compass, stressing that the EU defence policy should be ‘‘complementary to NATO, which remains the foundation of collective defence for its members’’.

Much progress on the CSDP has been made since the Maastricht Treaty. Already in 2004 the European Defence Agency was established to coordinate the development of military capabilities and in 2017 a legal framework for Permanent Structured Cooperation (PESCO) was established. The latter includes a large intergovernmental project on military mobility which also third countries such as the US can participate in. Different industrial PESCO projects also facilitate joint development and procurement by the Member States of military equipment. More recently, in 2021, the European Peace Facility was created, based on which the EU recently supplied arms to Ukraine. The Facility is an intergovernmental fund outside the EU’s regular budget which can be used to finance EU military operations and military assistance to third countries. In theory, it seems that the Facility could even be used to procure military equipment itself for the purpose of supplying third countries, which would be a significant novelty in the EU’s military instruments. In current practice, Member States deliver the weapons to Ukraine and receive the money from the Facility.

The failure of the internal market logic in the EU’s military procurement regulation

In addition to the CSDP instruments, the Commission has been seeking to foster the competitiveness of European military industries through economic integration policies based on the EU’s supranational competences such as internal market and industry. The EU Treaties have, however, included since the Treaty of Rome (1957) an exception to EU law for essential security interests related to the production of and trade in military equipment in Article 346 TFEU. Like all exceptions to EU law, the Court of Justice has clarified over the years that also the exception for armaments has to be interpreted narrowly and that for reliance on the exception a Member State ‘‘must show that such derogation is necessary in order to protect its essential security interests’’. At the same time, the Member States have complete discretion in defining their ‘essential security interests’ and determining whether security measures are necessary.

Based on the Commission’s legislative initiative, in 2009 the Council and the European Parliament adopted a Directive to regulate public procurement in the fields of defence and security, aiming to foster the EU’s strategic autonomy through internal market-based (Article 114 TFEU) procurement liberalisation. This Directive imposes obligations on the Member States to organise public tenders for their military procurement based on the principle of non-discrimination between domestic and foreign (but EU-based) suppliers, thereby aspiring to foster the competitiveness of European military industries based on economic-integration logic. More competitive European military industries should decrease the dependency on the US (or other third countries) for imports of military equipment and thereby increase the EU’s autonomy.

However, the Directive on public procurement in the field of defence and security has largely been ineffective in liberalising European military industries. According to the 2020 Implementation Assessment, within the time period 2016-2018 only 11,71% of the value of all military procurement was awarded based on the procedures of the Directive. The majority of military procurement thus still seems to be awarded based on the exception. As I have argued in a previous academic contribution, this is not so strange when considering that the military procurement activities of the Member States are based on the security logic of military power and military interdependence, whereas the internal market – in which the regulation is embedded – is based on the logic of cross-sectoral economic interdependence. Member States are consequently more likely to seek the maintenance of domestic industries or the promotion of intergovernmental cooperation through their procurement policies than pursuing economic integration for this sector.

Perhaps dissatisfied with the lack of progress in procurement liberalisation, the Commission has in recent years shifted its focus somewhat towards funding Research & Development in the defence sector itself through the European Defence Fund (2021), hoping to indirectly affect the procurement policies of the Member States as well. In its most recent policy paper, the Commission did not speak of market integration at all, but instead emphasised the need for more cooperation, including joint procurement. Both its own funding (around eight billion euros for the budget period 2021-2027) and national investments – which are increasing rapidly in light of recent events – can be used to foster such military cooperation in a spirit of ‘‘mutual solidarity’’.

Why military security in Europe should be based on military interdependence, not on a European army

European states are being confronted with their Hobbesian purpose, but we do not live in Hobbesian times. Globalization and the – shockingly present – fear of nuclear war drastically changed the conditions under which states can effectively defend themselves against military aggression. Military security has become a more complex exercise of capabilities, alliance and strategy. Within this exercise, the relevance of sovereignty and territorial integrity remained unchanged. In addition to strengthening national capabilities, EU Member States therefore need to cooperate more closely in the area of defence, including the area of military procurement. As the Cold War days of the bipolar world order are long gone, the EU needs to establish its role as a military alliance alongside NATO if it wants to live up to its own ambition of military solidarity between its Member States.

We should, however, not forget that military power is no goal in itself, but can legitimately only be a means for external peace and security – as prescribed by the UN Charter – and internal sustainment of values such as democracy and human rights – on which the EU has been founded. Expansive accumulation or centralisation of military power has rarely been a force of good by itself; especially not within a Union that has so far been unable to effectively sustain its values – such as the rule of law – throughout its own Member States. Military security within the EU should thus be based on the power balance provided by military interdependence between sovereign states. It should not be based on supranational integration of military capabilities; ultimately resulting in some sort of European army. To my mind, both the ineffectiveness of the supranational attempt to liberalise military procurement as well as the fierceness of the EU’s intergovernmental response to the Russia-Ukraine war show that this is still the case.