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The Reform Treaty and Europe's security and defence - reply to the annual report of the Council

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Document A/1979

4 December 2007

The Reform Treaty and Europe's security and defence
- reply to the annual report of the Council

REPORT¹

submitted on behalf of the Political Committee
by Jean-Pierre Masseret, Rapporteur (France, Socialist Group)

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RECOMMENDATION 812²

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ORDER 126³

The Assembly,

(i) Determined to make its expertise and practical experience of scrutinising European security and defence policies available to the national parliamentarians of all the European countries;

(ii) Aware that the present provisions governing the different categories of national delegations participating in its activities, based on Assembly Decisions 27, 28 and 29 lack transparency;

(iii) Considering that it is necessary to simplify the existing categories of status along the following lines:

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EXPLANATORY MEMORANDUM

1. Nobody can deny that the last few years have been an intensive period for the European Union.
2. First there was a major round of enlargement, a logical consequence of the preamble to the Treaty of Rome and made inevitable by the course of history: the absorption of 12 new full members necessarily changed the political culture within the European Union.
3. Secondly and narrowly linked with the enlargement and the ever-expanding competences of the Union, there was the decision to proceed to a major institutional overhaul, which led in October 2004 to a Constitutional Treaty, ratification of which provoked the crisis with which we are all familiar. Much ink has been spilt on the reasons for that crisis and its consequences: your Rapporteur does not think that this is the time or place to discuss that issue, which is now a matter for political analysts or historians.
4. Since June 2006, the European Council has been seeking the best possible way to take the Union forward without that Constitutional Treaty. The result of those efforts today is the Reform Treaty which it adopted at its Lisbon Summit on 18-19 October 2007.
5. This report aims to discuss succinctly the new situation created by that treaty for the common foreign and security policy and the european security and defence policy and its consequences for the WEU Assembly's policy.

6. The Reform Treaty was adopted by the European Council at its Lisbon summit of 18-19 October 2007 and in view of the circumstances which brought it about, it appears very likely that the institutional debate is now closed for the foreseeable future - well into the next decade at least. The Treaty will be signed in Lisbon on 13 December and the aim is to have it enter into force on 1 January 2009, after ratification by all member states⁴.
7. The Reform Treaty does not have the characteristics of a constitution, neither does it make reference to any state symbols such as a flag, an anthem or a foreign minister of the Union, and it does not fundamentally change the relationship between the EU and its member states.
8. The Reform Treaty is clearly an effort to make citizens forget the idea of a European super-state, by respecting national identities and sovereignties and codifying the principles of subsidiarity and proportionality.
9. It has been welcomed by many, in particular because it may put an end to a serious European identity crisis which has damaged the EU's self confidence and its authority. The EU, it is thought, will be better able, following adoption of the Reform Treaty, to get back to business.
10. But others have criticised the fact that the Reform Treaty is in fact substantially equivalent to the Constitutional Treaty. They add that it is quite illegible, with so many protocols and declarations appended to the main text that only lawyers will be able to make something of it. This is not without consequences for the future.
11. Those critics have also issued a warning: by avoiding referendums and making the Treaty a complicated document amending earlier treaties, the EU "will reinforce the idea among European citizens that the European construction is a mechanism organised behind their backs by lawyers and diplomats"⁵. Anything that might go wrong in the future could be blamed on the EU.
12. Chapter 2 of the new Treaty on European Union stipulates the specific provisions on the common foreign and security policy. In addition to Section 1 containing common provisions, it includes a section 2 with provisions on the common security and defence policy.
13. The main thrust of these provisions is not very different from that of the provisions of the Constitutional Treaty which have been thoroughly discussed in previous reports of the Political Committee⁶.
14. Suffice it here to mention a few articles of the Treaty on European Union as amended by the Reform Treaty. A basic article which clearly defines the respective competences of the different institutions is Article 11, paragraph 1:

15. Article 13, paragraph 2, sub-paragraph 1 stipulates that: "The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council".
16. Article 13a stipulates that: "The High Representative of the Union for Foreign Affairs and Security Policy, who shall chair the Foreign Affairs Council, shall contribute through his or her proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the decisions adopted by the European Council and the Council."
17. Article 17, paragraph 1, sub-paragraph 1 requires unanimity for all CFSP and ESDP decisions: "Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded". That same article now makes it possible to block a decision with qualified abstention: "If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted".
18. The role of the European Parliament is defined in Article 21:

19. It should be noted here that the High Representative for the Common Foreign and Security Policy will at the same time be the EU's External Relations Commissioner and Vice-President of the European Commission. This high official is supposed to take up his or her duties on the entry into force of the Reform Treaty on 1 January 2009.
20. The European Council will provisionally nominate the High Representative in 2008 after having duly consulted the European Parliament. However, since elections for the European Parliament are to take place in June 2009, the new European Commission, including the double-hatted CFSP High Representative/Vice-President of the European Commission will not be nominated or confirmed by the European Parliament before the summer/autumn of 2009. The provisionally nominated CFSP High Representative will therefore not necessarily be the same person as the one appointed following the June 2009 elections.
21. Whatever the case may be, the High Representative will be assisted in the accomplishment of his mandate by a European External Action Service. New Article 13a, paragraph 3 of the Treaty on European Union stipulates that: "This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States". As the Commissioner for External Relations, the High Representative will also be assisted by the thousands of officials working for the External Relations Directorate.
22. One may wonder how effective coordination and management of the efforts and policies of these two services are to be ensured. There can be little doubt, however, that foreign and security policy will remain strictly under the control of national governments and that, in the words of one analyst: "a single, harmonious European foreign policy remains little more than a distant dream"⁸.
23. In Section 2 containing the provisions on the common security and defence policy, a new Article 27 now defines the role of this policy:

24. Permanent structured cooperation in the field of security and defence is possible under specific conditions:

25. Paragraph 7, sub-paragraph 1 introduces a solidarity clause subject to certain conditions:

26. Finally, sub-paragraph 2 of the same paragraph clearly indicates that for the time being NATO remains the reference for Europe's collective defence:

27. One should be aware, however, that these provisions are strongly limited by two Declarations which the European Council adopted together with the text of the Reform Treaty.
28. The texts of these Declarations are far less ambiguous than many of the articles of Chapter 2 of the new Treaty on European Union and your Rapporteur thinks that they deserve to be quoted in full:

29. These two declarations make it crystal clear that the member states are not prepared to give up their sovereign rights in the field of foreign and security policy in the foreseeable future. These will remain within the intergovernmental sphere for some time to come, even if the member states are prepared to conduct them under the flag of the European Union, which already exists despite the abandoned Constitutional Treaty.

30. In the Reform Treaty, a dedicated effort has been made to strengthen the role of national parliaments in EU decision-making. The amended Treaty on European Union will include a new Title II with "Provisions on democratic principles" which are stipulated in Article 8. Further details on the way in which the greater involvement of national parliaments in the activities of the European Union is to function can be found in Protocol (no. 1) on the role of national parliaments in the European Union and in Protocol (no. 2) on the application of the principles of subsidiarity and proportionality.
31. New Article 5 of the Treaty on European Union stipulates that under the principle of subsidiarity "the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States". Under the principle of proportionality "the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties".
32. It should be noted, however, that the new Treaty on European Union offers little or no improvement as regards the role of national parliaments in scrutinising the common foreign and security policy and the common security and defence policy.
33. It is referred to between the lines in the clause on interparliamentary cooperation in Article 8C (f) and in the Protocol on the role of the national parliaments. However, although Article 10 of the Protocol on the role of the national parliaments makes provision for organising interparliamentary conferences on the common security and defence policy, it does not give the national parliaments anywhere near the same degree of participation they have in the area of freedom, security and justice. They are also given more means of involvement in checking compliance with the principle of subsidiarity than they are given in the field of the CFSP and ESDP.
34. Yet even though Declaration 31 stressed that the European Parliament's role with regard to the CFSP would not be increased, the European Parliament will benefit from the new text of Article 21 which makes provision for it to be regularly informed and consulted on CSFP and ESDP matters and for its views to be taken duly into consideration by the competent EU authorities. The European Parliament will also continue to be consulted on the basis of the interinstitutional agreements and "twice a year it shall hold a debate on progress in implementing the common foreign and security policy including the common security and defence policy". Furthermore, the relevant EP committees are to be kept regularly informed.
35. However, there is no provision in the Reform Treaty for a mechanism for informing and consulting a body composed of representatives of the national parliaments, or for direct information to be provided to the national parliaments on these subjects, notwithstanding the fact that they are the ones to have the last word when it comes to launching and funding a military operation. Hence, although the role of the national parliaments is generally strengthened by its being incorporated into Article 8C of the Reform Treaty, this does not remedy the fact that they have an extremely weak position with regard to the CFSP and ESDP and that a democratic deficit remains in this area.
36. It remains to be seen how far this situation might improve when Articles 9 and 10 of the Protocol on the role of the national parliaments are implemented.
37. Article 9 of the Protocol leaves it up to the European Parliament and the national parliaments together to define and organise their interparliamentary cooperation. That cooperation with the European Parliament could lead indirectly to the representatives of the national parliaments being better informed collectively about the CFSP and ESDP, but this will depend entirely on the good will of the European Parliament. Neither the governments nor the EU executive bodies are bound by cooperation agreements drawn up between the EP and the national parliaments on the basis of Article 9 of the Protocol.
38. Nonetheless, such interparliamentary cooperation may, for example, enable the representatives of the national parliaments regularly to participate in meetings of the EP committees and subcommittees at which the latter are informed and consulted about CFSP and ESDP matters. It will also be necessary to examine whether new Article 21 of the Reform Treaty will allow the representatives of the national parliaments to participate in the European Parliament's half-yearly debates about the progress achieved in the area of the CFSP and ESDP. Up until now, the European Parliament's rules of procedure have not permitted national parliamentarians to participate in its plenary sessions. Another possibility that should be explored is that of including the national parliaments in the interinstitutional agreements between the Parliament and the other EU institutions.
39. Article 10 of the Protocol on the role of the national parliaments makes provision for organising a Conference of Parliamentary Committees for Union Affairs which would be authorised to "submit contributions" for the attention of the EU bodies. As soon as the Reform Treaty enters into force that Conference will replace the current COSAC set up in 1989 on the basis of the Protocol on the role of the national parliaments that was appended to the Amsterdam Treaty.
40. The current COSAC fulfils specific functions pertaining to the legislative acts of the Union in the community sphere, in particular as regards application of the principle of subsidiarity, the area of freedom, security and justice and fundamental rights issues. It does not have any competence for purely intergovernmental and non-legislative areas such as that of security and defence policy.
41. The competence of a new Conference of Parliamentary Committees for Union Affairs to be set up on the basis of Article 10 of the Protocol covers all areas of Union activity. No distinction will be made any more between the Community and intergovernmental pillars, which means that this Conference will be entitled to submit contributions concerning the ESDP for the attention of the Council of the European Union and organise interparliamentary conferences on that specific subject or on any other topic in any other area.
42. Those broader competences will necessarily have an impact on the structures, composition, organisation and working methods of the Conference. Article 10 of the Protocol is extremely flexible in that respect, since the Conference is totally free to decide on its configuration (national parliaments only or a mixed composition involving national parliamentarians and MEPs).
43. In order to contribute to all areas of EU activity, the Conference will need to set up working groups, or even numerous committees, in order to be able to monitor the EU's activities on a permanent basis. This also implies the creation of a reinforced secretariat and even the presence of experts, not only in the legislative field but also in all areas of intergovernmental cooperation, including security and defence.

44. As said earlier, the Reform Treaty provisions do not leave any doubt that both the CFSP and the CSDP will remain an intergovernmental process, quite distinct from other EU policy areas, and that the prerogatives of the member states on these issues will continue to be respected.
45. The Reform Treaty provisions do not give any new powers to the Commission to initiate decisions in this area and neither do they increase the role of the European Parliament.
46. As far as parliamentary scrutiny of the CFSP including the CSDP is concerned, it is clear that the European Parliament will not acquire any further competence. Under the new treaty provisions it will, however, be regularly consulted on the main aspects and basic choices of the common foreign and security policy and the common security and defence policy, and it will be kept informed of how they evolve.
47. The Assembly of Western European Union, which is actively engaged in interparliamentary cooperation, has for many years affirmed both in its reports and its dialogue with the governments of the member states that, in the interest of democratic legitimacy, European foreign, security and defence policy must be subject to democratic scrutiny exercised collectively by national parliamentarians meeting in a European interparliamentary assembly. This would not be a second chamber alongside the European Parliament. In security and defence matters intergovernmental policies have always been subject to interparliamentary scrutiny (mainly by the WEU, NATO and OSCE parliamentary assemblies). This has been considered essential to help national parliamentarians meet their constitutional obligations at home. It is national parliamentarians who vote defence budgets and decide whether to deploy troops for European or international missions. This will continue to be the case under the new EU Reform Treaty.
48. The new Treaty provides an opportunity to remedy the problem of the democratic deficit from which the CFSP is suffering and which the 2004 IGC did not solve. Article 10 of the Protocol on the role of national parliaments in the European Union contains the suggestion that a Conference of Parliamentary Committees for Union Affairs "may also organise interparliamentary conferences on specific topics, in particular to debate matters of common foreign and security policy, including common security and defence policy". The question is whether such a provision is considered acceptable by national parliamentarians or by the members of the European Parliament.
49. The Assembly of WEU, also called the European Security and Defence Assembly, believes that the simplest solution would be for the Assembly to continue to exercise its activities for the democratic scrutiny of European security and defence questions. It would like the European Parliament and the Assembly of WEU to work together productively. Arrangements for enhanced cooperation between them could be drawn up in the specific area of the CFSP.
50. If the EU member states are concerned not to alienate European citizens and national parliaments from a CFSP which has a high profile in the media and which can be a determining factor of European identity, in the world and at home, they must do whatever is necessary to discourage nationalist tendencies. For the EU to function properly, it is essential for citizens and the national parliaments to be more closely involved in European political life.
51. Despite the limitations of its power in this specific field of intergovernmental policy, the European Parliament now has sufficient treaty-based and practical possibilities for being informed about CFSP/ESDP and expressing an opinion on them without the support or assistance of any other parliamentary body. It seems therefore that main thrust of the WEU Assembly's efforts to make available its experience of scrutiny in this area must be directed towards the national parliaments and offering them the interparliamentary cooperation that will enable them to follow and understand those policies from beyond the purely national angle.

52. The perspectives for a common European security and defence policy now offered by the Reform Treaty only increase the urgency and importance of having a well-structured and transparent institution for conducting an all-European security and defence dialogue.
53. Your Rapporteur therefore proposes to simplify the different categories of status that currently exist for the parliamentary delegations participating in the work of the WEU Assembly, as follows:

54. This category would include the present full members (Belgium, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom), the affiliate members (Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia), permanent observer members (Austria, Denmark, Finland, Ireland and Sweden) and affiliate permanent observer members (Cyprus and Malta). The delegations of these countries, all of which are EU member states, would all have the same rights with the proviso that until such time as the Assembly's budget is funded by the 27, only members of delegations of the 10 signatories of the modified Brussels Treaty (MBT) would be able to vote on the budget, be president or vice-president of the Assembly and have their language recognised as an official language.
55. In nominating representatives and substitutes, national parliaments participating in the work of the WEU Assembly should make sure that chairmen or members of their defence committees in particular are an integral part of their delegations.

56. Members of these delegations would have the same rights as the members of delegations of non MBT signatory states of the previous category, with the additional proviso that, while they could be co-rapporteurs, they could not be members of the bureau of the Assembly or of the bureau of a committee and that they could vote only in committee meetings.

57. This category would include Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, the former Yugoslav Republic of Macedonia, Moldova, Montenegro, the Russian Federation, Serbia and Ukraine.
58. The members of these delegations would be able to participate in plenary sessions and in all colloquies and seminars organised by the Assembly. They would also participate automatically (without a formal invitation) in all ordinary meetings of the Political Committee, the Defence Committee and the Technological and Aerospace Committee in Paris.
59. In all these meetings, they would have the right to speak and propose amendments, but they would have no right to vote.

60. The President of the Assembly would be able, subject to the approval of the Enlarged Presidential Committee, to invite delegations from other parliaments and interparliamentary assemblies to attend sessions of the Assembly as parliamentary observers.
61. Subject to the discretion of the President, parliamentary observers would be able to participate in plenary debates of the Assembly. They would be entitled to speak but not to vote or move amendments.
62. Subject to the discretion of chairmen of committees, parliamentary observers would be able to participate in ordinary meetings of the Assembly's Political, Defence and Technological and Aerospace Committees in Paris. They would be entitled to speak but not to vote or move amendments.
63. It goes without saying that the abovementioned proposals would demand a revision of the Rules of Procedure in order to reflect the new situation.

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AMENDMENTS 1-4¹⁰

tabled by MM Clappison, Evans and Chope (United Kingdom, Federated Group)

1. Delete recital (i) of the preamble to the draft recommendation.
2. In the preamble to the draft recommendation, at the end of recital (ii) add "with the result that the institutions of the Union will become even more remote from the citizens of Member States;".
3. In the preamble to the draft recommendation delete recital (iv) and replace by:

4. In the preamble to the draft recommendation, at the end of recital (viii) add "and that it would be better if those responsible for the Treaty came clean with the citizens of Member States and admitted that the Reform Treaty is substantially the same as the previously proposed Constitution;".

Signed: Clappison, Evans, Chope

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MEMBERS OF THE COMMITTEE

Chairman
Mr	AGRAMUNT FONT DE MORA Pedro		Spanish
Vice-Chairmen
Mr	PANGALOS Theodoros		Greek
Mr	HANCOCK Mike		British
Members of the Committee				Alternates
MM	AGRAMUNT FONT DE MORA Pedro		Spanish	MM	PUIG CORDON
	ARNAUT José Luis		Spanish		MOTA AMARAL
	AUSTIN John		British		CLAPPISON
	BERLUSCONI		Italian	Mrs	BONIVER
	BOCCHINO		Italian	MM	STUCCHI
Mrs	BOCCIA Maria Luisa		Italian		KHALIL
	...		Belgian		HENRY
Mrs	DÄUBLER GMELIN Herta		German		PFLÜG
	...		Dutch		JONKER
Mr	De PUIG Lluis Maria		Spanish	Mrs	FERNANDEZ SORIANO
Mrs	DURRIEU Josette		French	MM	DREYFUS-SCHMIDT
MM	FASSINO Piero		Italian		GALEAZZI
	FRANCESCHINI Dario		Italian		FORMISANO
	GOERENS Charles		Luxemburg		GLESENER
	GOUTRY Luc		Belgian		Van OVERMEIRE
	HANCOCK Mike		British		LAXTON
	...		Belgian		GORIS
	HÖFER Gerd		German		STRÄSSER
	HÖRSTER Joachim		German		GÖTZ
Baroness	KNIGHT		British		WALTER
MM	LINTNER Eduard		German		SCHMITT
	MacSHANE Dennis		British	Mrs	WILLIAMS
	...		French	MM	LONCLE
	PANGALOS Theodoros		Greek		VRETTOS
Mrs	PAPADIMITRIOU Elsa		Greek		VARVITSIOTIS
	...		Spanish		JAUREGUI ATONDO
MM	PUCHE RODRIGUEZ Gabino		Spanish		PADILLA CARBALLADA
	REISS Frédéric		French		LE GRAND
	ROCHEBLOINE François		French	Mrs	GROSSKOST
	RODRIGUES Ricardo		Portuguese	Mrs	de BELÉM ROSEIRA
	SCHNEIDER André		French	MM	NACHBAR
	SKANDALAKIS Panagiotis		Greek		DENDIAS
	Van der LINDEN René		Dutch		...
	...		Dutch		PLATVOET
	VERA JARDIM José		Portuguese	Mrs	FERTUZINHOS
	VIS Rudi		British	Lord	TOMLINSON
	...		German	Ms	EYMER
To be nominated: Germany (1) France (1) Belgium (2) Spain (1) The Netherlands (2)
Ex officio member
Mr	MASSERET Jean-Pierre		French
Affiliate members				Alternates
MM	ANDON		Romanian	MM	TERINTE
	BENTU		Romanian		UNGUREANU
	CWIERZ Andrzej		Polish		KAWECKI
	EÖRSI Matyas		Hungarian		...
	JELINÇIÇ Zmago		Slovenian		...
	KAFKA David		Czech		...
	KASAL Jan		Czech		...
	KÕUTS Tarmo		Estonian		...
Ms	KRUK Elzbieta		Polish		ZELICHOWSKI
MM	KUBOVIC Pavol		Slovak		BURIAN
	MANNINGER Jenö		Hungarian		...
	MERDJANOV Atanas		Bulgarian		CHACHEV
Mrs	MOGENIENÈ Laima		Lithuania		MATULEVICIUS
MM	NEAGU Nicolae		Romanian		LAMBRINO
	OSMAN Remzi		Bulgarian		ATANASOV
	ROUBICEK Vaclav		Czech		...
	STRAZDINS Janis		Latvian		...
	SZABO Zoltan		Hungarian		...
	WIERZEJSKI Wojciech		Polish		CEPIL
Associate members				Alternates
MM		...	Turkish		...
		...	Icelandic		...
		...	Turkish
MM		ÇAVUSOGLU Mevlüt	Turkish		KARSLI
		CEBECI Aslan Erol	Turkish		ÇERÇI
		DØRUM Odd Einar	Norwegian		...
		LANGELAND Hallgeir H.	Norwegian		...
To be nominated: Iceland (1), Turkey (2)
Permanent observer members				Alternates
MM		...	Irish	MM	DURKAN
		LAUKKANEN Markku	Finnish		...
		MURAUER Walter	Austrian		...
		...	Swedish		FORSLUND
To be nominated: Austria (1), Denmark (2), Finland (1) Ireland (1), Sweden (2)
Affiliate permanent observer members				Alternates
Mr		NICOLAOU Ionas	Cyprus
To be nominated: Malta (1),
Affiliate associate partners				Alternates
MM		NIKOLOSKI Aleksander	Former Yugoslav Republic of Macedonia	MM	KONDARKO
		MARKOV Ante	Croatia		PUPOVAC
Secretary to the Committee: Mr Michael HILGER
Assistant Secretary to the Political Section : Mr Kostas PANAGIOTOPOULOS
Committee Assistant: Ms Isabel de TARAZONA

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¹ Adopted unanimously by the Committee on 6 November 2007.

² Adopted by the Assembly on 4 December 2007 at the 8^th sitting.

³ Adopted by the Assembly on 4 December 2007 at the 8^th sitting.

⁴ The Czech Republic has already expressed the view that the 12-month period for ratification is too ambitious, unrealistic even. The average period thus far has been 18 months (Prague will be holding the Presidency of the Union as of January 2009).

⁵ Valéry Giscard d'Estaing, as quoted in the Financial Times, 18 October 2007.

⁶ Assembly documents 1835, 1878, 1915 and 1937.

⁷ One might note the ambiguity and non-forceful nature of this wording.

⁸ Tony Barber: "A Europe of exclusion clauses", Financial Times, 17 October 2007.

⁹ Article 28 concerns the extended "Petersberg Missions".

¹⁰ See 8^th sitting, 4 December 2007 (Amendments not adopted).