Select Committee on European Union Tenth Report


External action of the EU


7.1.  Much has been said in the UK press and specialist commentaries about the impact of the Lisbon Treaty in the area of foreign affairs, defence and development policy. Opinions diverge greatly—some feel the Treaty is of a radical and revolutionary nature, while others stress its evolutionary character and do not see it making significant changes in the way the system will work.

7.2.  The Lisbon Treaty sets the framework for decisions on EU foreign policy. The Member States will continue to be the main decision-makers in this field. The principle of unanimity for decisions in the area of the Common Foreign and Security Policy (CFSP) will remain unchanged.

7.3.  However, the Treaty contains a number of institutional innovations, designed to improve the much-criticised effectiveness and coherence of European foreign policy (Q C1). These include the post of High Representative, the External Action Service and greater cooperation and solidarity in defence matters. Much will depend on how these institutions will work in practice, as Professor Dashwood and Charles Grant told us (QQ C41, C42). In many respects, they will provide a framework of an enabling nature, providing the EU with the institutions to allow the Member States to forge common approaches and do things together where they so wish.

7.4.  Professor Wallace expressed some concerns about how different aspects of the Treaty would be implemented in practice and how to ensure that the various aspects of the EU's external relations, including the CFSP, would be made to fit together into a coherent whole (Q S185). Her view was that the Treaty had made things more complicated in the foreign policy and security field than necessary, and that this meant that British voices would not be heard as "clearly and loudly as one might want" (Q S191).


7.5.  As explained by Graham Avery, the Lisbon Treaty seeks to rationalise the external action of the EU, which is currently split between the Community pillar and the intergovernmental CFSP (Q C1). A major problem under the current Treaties is that the CFSP and the external dimension of Community policies are not always coordinated and mutually reinforcing. According to Charles Grant, the "current system is very sub-optimal", although efforts had been made to address its weaknesses (Q C53).

7.6.  Currently the Treaty provisions on external relations are spread across the TEC and the TEU. The TEC gives the Community competence over external action in areas such as trade and development cooperation, whereas Title V of the TEU contains some general provisions on the principles and objectives of external action, and provides the basis for the CFSP.

7.7.  These arrangements will be streamlined to take account of the merging of Pillars One and Three and the maintenance of special arrangements for CFSP. One innovation is the transfer of the provisions on the objectives of the CFSP (Article 11 TEU) into a new chapter called "General Provisions on the Union's External Action", covering the whole of the EU's external action, whereas currently Article 11 only applies to the CFSP. The Lisbon Treaty will add a new Article 21 TEU setting out the principles underpinning EU external action.

7.8.  The first sub-paragraph of new Article 21(1) TEU states that the Union's action on the international scene "shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world …". The principles listed include democracy, human rights and the principles of the United Nations Charter and international law. The second sub-paragraph states that the EU should work towards building closer partnerships and promoting multilateral solutions: "The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations".

7.9.  The new structure clarifies and consolidates the general provisions on the principles and objectives of the external action of the EU into chapter 1 of Title V in the TEU. It also codifies the current practice of the EU by stating that the objectives of the EU include (new Article 21(2) TEU):

7.10.  The Lisbon Treaty also adds the consolidation of the principles of international law and the prevention of conflicts to the objectives that are currently set out in Article 11 TEU.

7.11.  The detailed provisions on the CFSP will remain in the TEU, Title V.

7.12.  Mirroring this new structure in the TEU, a new Part Five will be created in the TFEU, bringing together the main external policy areas that are currently Community competences, plus any new, modified or codified provisions on other external policy matters. New Part Five TFEU—containing all the provisions on external action other than the CFSP—will be as follows:

Title I: General provisions on the Union's external action

Title II: Common commercial policy

Title III: Cooperation with third countries and humanitarian aid

    Chapter 1: Development cooperation

    Chapter 2: Economic, financial and technical cooperation with third countries

    Chapter 3: Humanitarian aid

Title IV: Restrictive measures

Title V: International agreements

Title VI: The Union's relations with international organisations and third countries and Union delegations

Title VII: Solidarity clause.

7.13.  Title I, Part Five, TFEU will make a cross-reference to the new general provisions on the Union's external action as set out in the TEU as amended. This will confirm that there is only one set of principles and objectives guiding the external action of the EU.

7.14.  The new Article 3 of the TFEU states that the Union shall have "exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope." While this was interpreted by David Heathcoat-Amory as a significant extension of the Union's powers (Q S58), this recognition of exclusive competence in areas outside the CFSP is the codification of what has long been established by the case-law of the European Court of Justice.

7.15.  New Article 8 TEU codifies the EU's European Neighbourhood Policy (ENP). It provides that the EU "shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation".

7.16.  These changes to the structure of the Treaties serve to consolidate, streamline and clarify the provisions on the EU's external relations. They do not change the overall objectives of the EU's external policies.

The Common Foreign and Security Policy (CFSP)

7.17.  Under the new Treaties, the CFSP will remain "subject to specific rules and procedures" (new Article 24 TEU). In the view of Professor Dashwood, the result of the Reform Treaty would be to create a two-pillar structure[179] (Q C96), and he expounded the steps which had been taken to preserve the particularity of the CFSP in the new Treaties (Q C43). Although there will no longer be pillars as such, the CFSP will retain its specific nature within the overall EU structure[180]. There is therefore a clear distinction to be made between the CFSP and the other external policy areas, such as trade and development policy. One important difference between the CFSP and these latter policy areas is that different decision-making making procedures apply. In contrast to the CFSP, legislation may be adopted in areas of EU external policy such as trade and development policy. Under the provisions of new Article 209 TFEU, what will be called the ordinary legislative procedure[181] continues to apply to this policy area, but this procedure does not apply to the CFSP.


7.18.  A first question which arises is: does the Lisbon Treaty give the EU any additional powers in the area of CFSP? The general view was that there will be no additional transfer of powers to the EU in the area of CFSP (see for example Dashwood, Q C43). For Professor Dashwood, this is because "the Union's competence under the present CFSP as organised by Title V of the TEU is about as wide as it could be" (Q C43).

7.19.  The Government holds the view, as expressed in para. 23 of its Explanatory Memorandum (EM) of 17 December 2007, that the Lisbon Treaty sets out the scope of the CFSP in the same terms as are already used in the current Treaties.

7.20.  The Treaty will not change the scope of the CFSP or transfer any additional powers to the EU in this area. The new provisions in the Treaty could lead to a more active role for the EU in the area of CFSP, but much will depend on the degree of consensus among Member States regarding such a role.


7.21.  Both the EU and the Member States have powers in the area of foreign and defence policy. This means that where the EU acts, it does not necessarily stop the UK and the other Member States acting. The Lisbon Treaty will not change this. The Government's position—characterised as a "red line"—is that the Treaty will not affect the UK's independent foreign and defence policy (as set out in paragraphs 23 and 24 of the Government's Explanatory Memorandum).

7.22.  Declarations 13 and 14 on the CFSP adopted by the Intergovernmental Conference stress that nothing will change as far as the responsibility of the Member States for their foreign and defence policy is concerned. Declarations are not part of the Treaty itself, but are political documents which can be used to help interpret the meaning of the Treaty text. Declaration 13 concerning the common foreign and security policy states in particular that:

7.23.  The amended Treaties will also make it clear that the Union's competences, including that for the CFSP referred to in article 2(4) TFEU, are conferred by the Member States to enable them to pursue interests that they have in common (Dashwood, Q C110). This principle of conferral is set out unambiguously in new article 5 TEU.

7.24.  The Lisbon Treaty changes very little in the area of decision-making for the CFSP. The CFSP continues to remain "subject to specific rules and procedures" (new Article 24 TEU), i.e. it retains its intergovernmental nature. Currently, under Article 23 TEU, the general rule is that decisions under CFSP are taken by unanimity, which means that every Member State has a veto. This applies to the adoption of Joint Actions (e.g. to launch an operation) and Common Positions.

7.25.  Currently there exists a procedure by which a Member State can abstain from supporting a decision requiring unanimity—including in respect of decisions having military or defence implications—while accepting that "the decision commits the Union" (Article 23(1) TEU). This is known as "constructive abstention". The Lisbon Treaty will have no effect on this procedure.

7.26.  Similarly, the Lisbon Treaty modifies the scope for decision-making by QMV as set out in current Article 23(2) TEU. The new Treaty provides that the Council acts by QMV "when adopting a decision defining a Union action or position, on a proposal which the High Representative … has presented following a specific request from the European Council, made on its own initiative or that of the High Representative" (Article 31(2)).

7.27.  This procedure is analogous to the current provisions on implementing decisions, whereby QMV can be used if a decision implements a previously-agreed Joint Action or Common Position. Therefore the principle that QMV applies only where agreement has previously been reached unanimously will be preserved under the new system. The High Representative is given a useful new tool by the provision, because he can suggest to the European Council that he be tasked with preparing a proposal. But in all cases, the European Council must unanimously agree to make this request, and only on this basis can a further decision then be taken by QMV. Abstentions do not prevent decisions being adopted by unanimity. (New Article 235 TFEU refers to European Council decision-making.)

7.28.  This new procedure allows for decisions defining an EU action or position on a proposal from the High Representative to be adopted by qualified majority voting. However, the European Council must unanimously agree to request a proposal for a decision in a specific policy area.

7.29.  The other cases in which QMV applies will not change, save for consequential adjustments to reflect the simplification of the CFSP instruments (e.g. "decisions" rather than "Joint Actions" and "Common Positions"). The other specificities of decision-making under CFSP have also been maintained. First, as part of the QMV provisions, there is currently an "emergency brake" procedure allowing for the referral of a matter to the European Council in the event that a Member State intends to oppose it[182]. This procedure will be amended slightly to allow the High Representative to attempt to broker an acceptable agreement with the Member State concerned. Secondly, QMV does not apply to decisions "having military or defence implications". These important safeguards will be preserved under the new Treaty.

7.30.  New Article 42 will provide an additional safeguard because it clarifies that decisions relating to the Common Security and Defence Policy (CSDP), including those initiating a mission as referred to in this article, come under the unanimity rule. (Currently called the ESDP, the CSDP is an integral part of the CFSP—see below.) This makes it clear that decisions which may not have military or defence implications, but which could have operational implications in the case of civilian missions under the CSDP, have to be taken by unanimity.

7.31.  There will be a number of other cases where the Council will act by QMV under the new Treaties in the framework of the CFSP:

  • Decisions relating to the new start-up fund (new Article 41(3) TEU)(see Chapter 9);
  • The decision defining the European Defence Agency's statute, seat and operational rules, pursuant to new Article 45;
  • Several types of decision regarding Permanent Structured Cooperation in defence (see below).

7.32.  Apart from the cases discussed in this section, there are no other extensions of the use of QMV under the CFSP. However, the Lisbon Treaty will create a passerelle[183] providing for the extension of QMV to other cases under the CFSP (new Article 31(3) TEU). For this to happen, a decision must be taken by the European Council acting unanimously (i.e. the UK will hold a veto). The European Union (Amendment) Bill provides that the Government must not agree to activate the CFSP passerelle without prior parliamentary approval by both Houses.

7.33.  The CFSP will retain its intergovernmental character based on the principle of unanimity and the search for consensus in decision-making. This does not mean that the CFSP imposes no constraints: the very purpose of reaching agreed positions would be undermined if each of the Member States was unfettered in the way they implement it. Therefore the Member States are legally bound by decisions, to which they have agreed, adopted by the Council under the CFSP[184].

7.34.  This is seen by some commentators as a form of constraint on the UK's independence of action. However, a raft of safeguards will continue to preserve the national sovereignty of the Member States in this area under the new Treaties. First, while decisions under the CFSP are legally binding, Member States must first agree to their adoption in the Council, or to be more precise, no Member State must oppose the decision although it is possible for them to abstain under the constructive abstention procedure[185]. The "emergency brake" procedure allows for a decision to be delayed pending a consultation process in cases where a Member State declares that the decision will affect its vital national interests.

7.35.  A second safeguard is that under CFSP there is no provision for legal sanctions to enforce decisions against the will of a Member State, the CFSP being a policy area which relies on the goodwill of the Member States to implement those decisions. An additional safeguard of Member States' sovereignty in the defence field is that Member States decide on a case-by-case basis whether to contribute military or civilian personnel and assets in support of a mission.

7.36.  The evidence is that the Lisbon Treaty has preserved the independence of the UK's foreign and defence policy, subject to the constraints arising when unanimous agreement does prove possible. The fundamental principles of the CFSP will not change under the new Treaties. In particular, the principle of unanimity and the search for consensus in decision-making will continue to apply to the CFSP.


7.37.  The European Court of Justice currently does not have jurisdiction with respect to the provisions of the CFSP, save for its role in ensuring that the CFSP does not impinge on Community policies (Article 47 TEU). In addition to this, the Lisbon Treaty will give the Court jurisdiction to ensure that non-CFSP policies do not impinge on the CFSP (new Article 40 TEU).

7.38.  The Court will also be given jurisdiction to review the legality of sanctions, as provided for by the second paragraph of Article 275 TFEU: "the Court shall have jurisdiction … to rule on proceedings … reviewing the legality of decisions providing for restrictive measures against natural or legal persons …".

7.39.  Currently economic sanctions under CFSP require Community legislation to implement them (Article 301 TEC), since the Community has competence in the movement of capital and trade matters. Therefore the Court already has jurisdiction to review the legality of sanctions implemented through the first pillar. However, the Lisbon Treaty will now make it possible for natural or legal persons to seek redress through the Court in respect of restrictive measures affecting them under the CFSP.

7.40.  Open Europe expressed scepticism that the Court could be kept out of the CFSP, submitting that "the extent of the [ECJ's] jurisdiction over areas within CFSP remains unclear" (p C39). However, this scepticism was not shared by any of our other witnesses.

7.41.  We conclude that the Lisbon Treaty will provide for safeguards against encroachment of other areas of EU activities into the area of CFSP. This should protect the intergovernmental character of the CFSP. The Lisbon Treaty will also strengthen the system for upholding and protecting the rights of persons who are subject to restrictive measures adopted under the CFSP.


7.42.  Article 39 TEU is a new provision introducing a specific legal basis for data processing by Member States when acting in the context of the CFSP. It requires the Council to "adopt a decision laying down rules relating to the protection of individuals with regard to the processing of personal data by the Member States" in relation to foreign affairs.

7.43.  This provision derogates from the general data protection provision laid down in Article 16 TFEU. That article states that the EU should adopt data protection measures to cover "processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law".

7.44.  We asked for clarification on when the Council would be able to adopt decisions relating to data processing on the basis of Article 39 TEU rather than Article 16 TFEU. The question has significant implications as decisions which are directly concerned with CFSP are a matter for the Council alone, without any involvement of the European Parliament, whereas other data protection rules are for co-decision between the Council and the Parliament.

7.45.  Under both provisions, compliance with the data protection rules is "subject to the control of independent authorities". The Minister for Europe explained that, for the United Kingdom, this would be the Information Commissioner (pp F2-3). Similar arrangements for independent supervision are in place in other Member States. However, none of these independent authorities would be in a position to verify the lawfulness of a Council decision adopted under Article 39 TEU, and since decisions adopted in the CFSP field fall outside the jurisdiction of the Court of Justice there is no way in which a question relating to the interpretation and application of Article 39 could be referred to the Court.

7.46.  Important questions have been raised by our witnesses. Could the Council adopt measures which involve data sharing with third countries but will be subject to a different, lower, set of data protection standards? Mr Geyer gave as examples measures on terrorism financing and terrorist lists (Q E159). However, the European Data Protection Supervisor has highlighted that the processing by the Council of a terrorist list would not even be covered by Article 39 as it refers only to activities of the Member States and does not encompass the institutions.[186]

7.47.  Another case in point would be international agreements relating to the collection of Passenger Name Records (PNR), and we raised this with the Government. So far two successive agreements concerning the transmission of PNR data to the US Department of Homeland Security have been negotiated under the third pillar.[187] Mr Murphy thought that international agreements on the use of PNR data were likely therefore to be brought forward under Article 16 TFEU, and not under Article 39 TEU (pp F2-3). We agree. If the Council attempted to use Article 39 TEU as the legal basis for agreements not relating to the CFSP, the Court of Justice would have jurisdiction to rule that this was not the correct legal basis.

7.48.  The need to reconcile the protection of personal data with the public interest in national security and criminal matters is apparent from the Declarations. Declaration 21 acknowledges that data protection in the fields of judicial cooperation in criminal matters and police cooperation may require provisions specific to this area—a recognition perhaps that the proposed Council Decision on data protection in the third pillar departs significantly from the data protection principles contained in Directive 95/46/EC and Regulation No. 45/2001. These two instruments jointly provide for a general and comprehensive legal framework for the processing of personal data in the course of activities falling within the scope of Community law. Moreover Declaration 20 recalls that this legal framework includes specific derogations when rules on the protection of personal data have direct implications for national security.

7.49.  Given that national security is already exempted from the general data protection framework under the legislation now in force, it is not clear to us what purpose Article 39 TEU is intended to serve. Baroness Ludford MEP expressed concern that it might be used by the Council to bypass the ordinary legislative process, avoiding both consent by the European Parliament and oversight by the Court of Justice, when it adopts decisions on terrorism and crime which involve data sharing with third countries. She told us that the European Parliament would "jump up and down" if this were to happen (Q E422).

7.50.  The new data protection provision in the CFSP field is significant because of its possible repercussion on the area of EU home affairs. Article 39 TEU is conspicuously different from Article 16 TFEU as a Treaty basis for data protection measures because it does not govern the activities of the EU institutions and bodies, and excludes oversight by the European Parliament and the Court of Justice. Clarity is needed as to the scope and purpose of Article 39.

Development Cooperation and Humanitarian Aid

7.51.  The Lisbon Treaty makes several changes in the area of development cooperation and humanitarian aid. It elevates the reduction and, in the long term, elimination of poverty to be the primary objective of the Union's development cooperation policy (new Article 208 TFEU). This is consistent with the International Development Act 2002 in the UK[188].

7.52.  The Treaty also requires the Union to "take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries". This reflects the EU's efforts in recent years to attain policy coherence for development, a major aspect of the Paris agenda on improving aid effectiveness[189]. The non-governmental umbrella organisation British Overseas NGOs for Development (BOND) strongly welcomed these Lisbon Treaty reforms and the placing of poverty elimination at the centre of EU aid policy (p C29).

7.53.  The Government believe that the Lisbon Treaty reforms will enhance delivery of EU development policy and give EU aid greater coherence and effectiveness[190]. For BOND, the implementation of the Lisbon Treaty would be the only opportunity between now and the next EU Financial Perspectives in 2014 to ensure that there was greater coherence in the EU's external action and to improve the effectiveness of EU aid (pp C29-30).

7.54.  The Treaty provides a specific legal basis for the EU's well-established funding of humanitarian aid (new Article 214 TFEU), which is currently carried out on the basis of the development cooperation provisions of the TEC. The Treaty provides for qualified majority voting in the area of humanitarian aid.[191] In this respect, the Government observe that the Treaty "promotes efficient and timely decision-making by extending qualified majority voting to humanitarian aid"[192]. The Treaty makes clear that humanitarian aid operations must be conducted in conformity with the international humanitarian principles of impartiality, neutrality and non-discrimination.

7.55.  The Lisbon Treaty provides for the establishment of a European Voluntary Humanitarian Aid Corps (new Article 214 TFEU), with the purpose of establishing a "framework for joint contributions from young Europeans to the humanitarian aid operations of the Union…". The European Parliament and the Council will determine the rules and procedures for the operation of the Corps "acting by means of regulations in accordance with the ordinary legislative procedure…".

7.56.  The Lisbon Treaty has implications for development cooperation which go beyond the amendment of the legal base for development policy. For BOND, "attempts to consolidate the EU's profile on foreign and security policy risk sidelining commitments on development" (p C29). Another concern was that the reduction in the size of the Commission from 2014 might mean that there would no longer be a separate Commissioner for Development.

7.57.  A further issue is the way that development policy will be made within the Commission and who will control the development, humanitarian aid and external relations budget lines. Currently these funds come under the responsibility of four Directorates-General (DGs): the DG for External Relations (DG RELEX) in relation to Asia, Latin America and the EU's neighbours; the DG for Development and Humanitarian Aid (DG DEV) in relation to the African Caribbean and Pacific (ACP) countries, which receive funding from the European Development Fund (EDF); DG Enlargement; and the DG for humanitarian aid (ECHO). The implementation of the Lisbon Treaty might have implications for the internal organisation of the Commission services dealing with these policy areas and their corresponding budget lines, as well as for the overall coherence of the EU's aid policy.

7.58.  The Lisbon Treaty reforms in the area of development policy will make clear that the primary objective of development cooperation is to reduce and eliminate poverty. This is in line with current UK policy and legislation. The Lisbon Treaty will have implications for the internal organisation of the Commission and its Directorates-General in relation to development policy. The creation of a specific legal basis for the EU's existing humanitarian aid activities aims to improve the efficiency of decision-making in this area and ensure that the EU's humanitarian aid respects international humanitarian principles.

Measures relating to consular protection[193]

7.59.  The Lisbon Treaty will amend the provisions on consular protection currently contained in Article 20 TEC. The current Treaties provide for Member States' missions in third countries to assist each others' nationals on the same conditions as they would their own nationals and to establish the necessary measures amongst themselves (p S80). New Article 23 TFEU will provide that the Council may adopt directives establishing the coordination and cooperation measures to facilitate such protection. Decisions will be taken by QMV. This provision, as amended by the Lisbon Treaty, does not provide for Union delegations to undertake consular activities, an area which falls solely within the competence of the Member States[194].

7.60.  The Lisbon Treaty will allow the EU to adopt directives to facilitate the implementation of the Treaty provisions on consular protection. However, the requirement for Member States' missions in third countries to assist each others' nationals on the same conditions as they would their own nationals already exists under the current Treaties, and this is not, therefore, a significant change.

The Institutional Innovations


The changes introduced by the Lisbon Treaty

7.61.  The Lisbon Treaty considerably strengthens the position of the High Representative, who becomes High Representative of the Union for Foreign Affairs and Security Policy (hereafter "High Representative"), and whose office is separated from that of the Secretary-General of the Council. This post has been described as "triple-hatted", because the incumbent will:

7.62.  A new paragraph has been inserted, stipulating that "The common foreign and security policy shall be put into effect by the High Representative and by the Member States, using national and Union resources" (new Article 26(3) TEU). The Treaty gives the High Representative a role, together with the Council which already carries out this function, in ensuring the unity, consistency and effectiveness of action by the Union (new Article 26(2)). In fulfilling his mandate, the High Representative will be assisted by a European External Action Service (see below; new Article 27 TEU).

7.63.  Under the current system, the High Representative has no right of initiative: this role is principally carried out by the rotating Presidency and the other Member States. This system has gradually reached its limits as Javier Solana has increasingly been mandated by the Council to undertake complex negotiations and dialogues with third parties, such as on the Iranian nuclear question. The Lisbon Treaty will give the High Representative greater flexibility, as he will be able to "refer to the Council any question relating to the common foreign and security policy and may submit to it initiatives or proposals as appropriate", either of his own accord or with the Commission's support (new Article 30 TEU). In the event of a crisis, the High Representative will also be able to convene an "extraordinary Council meeting within 48 hours or, in an emergency, within a shorter period" (new Article 30 TEU).

The case for change

7.64.  The functions given to the High Representative in the Commission reflect the desire for a greater rationalisation and effectiveness of the EU's external action which underlie the changes to the structure of the Treaties in this area. Several witnesses thought that the triple-hatting of the High Representative had the potential to improve the effectiveness and coherence of the EU's external action (e.g. Grant, Q C53), since the High Representative would act as a bridge between the Council and the Commission. For Patrick Child, Head of Cabinet of the Commissioner for External Relations, the new system "will bring significant, potential benefits in terms of the overall coherence of the EU's external action" (Q C34). He also mentioned that the High Representative would be able to enrich the Council discussions on CFSP matters "with more input from the external projection of what we call today 'First Pillar Community Policies'" (Q C34). Examples of the latter would be trade, development policy and enlargement.

7.65.  In the view of the Minister for Europe, the combining of the responsibilities of the Commissioner with those of the High Representative was a "sensible and meaningful reform" which would align the external priorities of the Union with the budgeting process. However, the Government considered that much of the detail of how the High Representative post would work still remained to be worked out (Q S255).

7.66.  A key advantage of the new system is that the EU will be represented by the High Representative in international forums and in dialogue with third countries, whereas under the current system, the "troika" consisting of the Commissioner for External Relations, the High Representative and the rotating Presidency all represent the EU in forums such as the Diplomatic Quartet on the Middle East Peace Process[197]. The Lisbon Treaty could therefore serve to make the EU's external representation more effective.

The High Representative's role in the Commission

7.67.  The relationship between the High Representative, the President of the European Council and the President of the European Commission with regards to the external action of the EU is discussed in Chapter 4. A further question is how the Commission will coordinate its external policies. The challenge is two-fold. First, coordination will be necessary among the High Representative and the various Commissioners with responsibility for external policy areas such as trade (Q C54). The High Representative will have a coordinating role within the Commission in this respect (new Article 18(4) TEU), but this will not allow him to impose decisions on his colleagues. The President of the Commission can also be expected to have a role in overseeing the Commission's external policies.

7.68.  In relation to internal coordination within the Commission, the Minister was unable to give a precise answer as to which Commissioners would come under the coordinating ambit of the High Representative (QQ S257-9). The situation is complicated by the fact that the number of Commissioners will come down to two-thirds of the number of Member States in 2014, unless the European Council decides otherwise (Article 17(5) TEU). The Minister stated that how the issue was resolved would partly be dependent on the decision to be taken as to allocation of portfolios in the reduced Commission. However, there will be a period during which the High Representative / Vice-President is in post but there are still 27 Commissioners. During that period the major role of the High Representative within the Commission will be that of the current External Relations Commissioner. Which other responsibilities will the High Representative have in a reduced Commission? Potentially the High Representative could have a very wide policy remit, covering trade, enlargement, development cooperation and humanitarian aid, in addition to those responsibilities held by the current External Relations Commissioner. The only certainty is that there will be a separate portfolio for the common commercial policy (Q S259, Q S208).

7.69.  In addition to the challenge of internal coordination, the Commission will have to seek agreement with the Council on all policies with a significant external dimension. The presence of the High Representative in the Commission could facilitate this task, but will not be sufficient to bridge any fundamental differences of opinion between the Commission and the Member States, who will continue to take the ultimate decisions in the Council on all matters relating to the CFSP.

An excessive workload?

7.70.  Another challenge identified by witnesses was the sheer workload that would fall on the shoulders of the High Representative due to the weighty responsibilities of his triple-hatted role, a problem which had been underestimated according to Graham Avery (Q C10). For Charles Grant, the post could not work unless the High Representative had two senior deputies, one for his work with the Council and one for that with the Commission (Q C55).

Too much power?

7.71.  Open Europe expressed concern that the new role would serve to "concentrate power in the hands of the High Representative, and increase his/her representation within and access to various EU bodies" (p C33). A similar view was expressed by Mr Heathcoat-Amory, for whom "the new post will be substantially more powerful than the present equivalent, who is a Council representative. He or she will conduct foreign policy; that is a new verb in the Treaty. They will be able to draw on the resources of the External Action Service" (Q S78). According to Mr Heathcoat-Amory, the intergovernmental system underlying the CFSP would be challenged by the new post of High Representative, especially in the light of his responsibilities within the Commission.

7.72.  However, the Treaty contains several checks on the exercise of the High Representative's prerogatives. First, decisions will continue to be taken by the Council, the body representing the Member States. As Sir Stephen Wall explained to us, the crucial point is that the High Representative "can only operate on the basis of instructions from foreign ministers, but we do have a more coherent presentation of policy in the Middle East than we had in the days when individual foreign ministers from individual European countries were going and singing each to a slightly different hymn sheet" (Q S209).

7.73.  Secondly, the High Representative will be accountable to the Council and the European Council. Under new Article 18(1) TEU, the European Council will be able to end the High Representative's term of office. As a Vice-President of the Commission, the High Representative will exercise powers similar to those currently held by the Commissioner for External Relations and will be bound by Commission procedures in this respect (new Article 18(4) TEU).

7.74.  For Sir Stephen Wall, the fact that the High Representative would be accountable to the Council as well as being a member of the Commission would not be a problem in practice. He explained that a difference in opinion between the Commission and the Council was not very likely in "today's climate". Furthermore, if the High Representative was competent, which almost "by definition" he would be, then he should be able to manage relations so that the situation did not arise in the first place. The advantage of the new system was that there would no longer be two people who covered the same policy area while having control over different parts of it. Vesting that control in one person "should make for greater coherence in the way that we manifest our common policy", since "the greatest means by which the European Union exercises influence are through the instruments at our disposal, which include trade and aid matters" (Q S206).

7.75.  The creation of a High Representative for Foreign Affairs and Security Policy/Vice-President of the Commission represents an important institutional innovation of the Lisbon Treaty, which could have a significant impact on the way the EU formulates and implements its external policies. In light of the evidence which is discussed above and in Chapter 4, the post could bring additional coherence and effectiveness to the EU's external action, but much will depend on the way the High Representative exercises his powers, as well as his working relationships with the Member States, the President of the European Council, and the President of the Commission.

7.76.  The post brings together three functions that exist under the current Treaties (the Council Presidency, the Commissioner for External Relations and the High Representative). The chairing of the Foreign Affairs Council by the High Representative is a key innovation which will give the incumbent a further degree of influence over decision-making in the area of CFSP. This could lead to a change in the way the Member States interact with the High Representative and contribute to EU policy-making in this area.

The UN Security Council

7.77.  Some observers in the UK have expressed concerns that the UK will lose its permanent seat on the UNSC, or that the "new High Representative will have an automatic right to speak for the UK in the UN Security Council on issues where the EU has taken a position" (p C33).

7.78.  As regards the first proposition. Sir Stephen Wall commented that "the notion that any British government or any French government would agree to that seems to be very far-fetched; we do not. We will continue to vote in the Security Council as the United Kingdom" (Q S212).

7.79.  A further issue is the role that will be played by the High Representative. Under the current Treaties, there is nothing preventing the High Representative or any other person addressing the UNSC, if the members of the UNSC, including the UK, so wish. According to evidence given by the Foreign Secretary to the House of Commons Foreign Affairs Committee "The European Union has the right to speak [in the Security Council] at the moment … It can speak, but it obviously cannot vote, because votes are reserved for members of the Security Council".[198] Speaking to the same Committee, Professor Christopher Hill of the University of Cambridge explained: "Mr Solana already speaks at the Security Council by invitation, and of course the Presidency does as well."[199]

7.80.  New Article 34 TEU provides that "When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the European Union's position". However, the Security Council as a whole must agree to this request, otherwise the High Representative will not be invited to speak. Diplomats and representatives from various international organisations regularly get invited to present their positions, so this is not something new. As explained by Sir Stephen Wall, what will change with the Lisbon Treaty is that "on occasions where, including with the agreement of the United Kingdom, there is a common European policy, the High Representative can speak to that policy in the UN Security Council, but when it comes to voting, the British Government will have its complete freedom as to how it votes" (Q S212).

7.81.  What will not change is that much of the negotiation behind closed doors leading to the public sessions of the UNSC only involves the representatives of the states that are members of the UNSC discussing among themselves. Since the EU is not a member of the UNSC—which will not change with the Lisbon Treaty—the High Representative will not be a party to these discussions (Q S212).

7.82.  It is clear that the Treaty changes nothing in the UK's right to retain its seat on the UN Security Council, its role as a permanent member, its right to speak, and its individual vote and veto. Where the EU has a unanimous common position, the UK will be required to request that the High Representative present that position; but that possibility does not displace the UK's right to speak and vote.


The case for the Service

7.83.  The rationale for the creation of a European External Action Service (new Article 27 TEU) is two-fold: to support the High Representative in his expanded role (Q C74), and to represent the EU overseas. Currently the High Representative has access to limited resources in terms of analysis and advice. Additionally, the system is characterised by "two separate bureaucratic machines in the Council and the Commission" (Grant Q C71). This results in a degree of overlap and competition, even rivalry in some cases. There is also a lack of consistency between the CFSP and EC external policies managed by the Commission. Charles Grant's view was therefore that it would be "highly desirable to create a single service that contains, as is the plan, relevant officials from the Council, the Commission and the Member States".

7.84.  For John Palmer, the service should improve the quality of information and analysis available to the High Representative in preparing CFSP proposals (p S14). A key advantage of the new Service was that it would provide common analysis, because it was very difficult for Member States to agree on a common policy when they did not share a view of the events and developments on the ground (Q C71).

7.85.  The Service will also ensure greater consistency in the way the Union's positions are presented on the international stage. Currently, others find the multiple voices speaking for the EU—the Commission, the High Representative, the Presidency—confusing, and this undermines the EU's effectiveness. At times the institutions cannot even agree among themselves, which has a negative impact on the EU's credibility. The Service should assist the High Representative in formulating clear unambiguous messages that can be simultaneously conveyed by the EU institutions.

7.86.  Professor Dashwood was very concerned about the current competition and even turf wars across the foreign policy, trade and development cooperation policy areas. In his view the post of High Representative could help resolve this problem: "he will need a cabinet which is strong enough to knock heads together" (Q C74).

7.87.  In addressing the question of why the Service would be of benefit to the UK, Charles Grant noted that "in dealing with Russia for example … it would be useful if the EU speaks with one voice because we have more leverage" (Q C76). His argument was therefore that where the UK decided to work through the EU, then it needed "effective institutions to represent that EU position". The Service would also be very helpful to small countries because they often did not have representations in all parts of the world, so the Service could act as their "eyes and ears" (Q C72).

The organisation and functioning of the Service

7.88.  Most of the details of the organisation and functioning of the European External Action Service still remain to be worked out. The Treaty only clarifies that it will "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". Once the Treaty enters into force, the Service will be established by a decision of the Council, acting by unanimity, i.e. the UK will have a veto. "The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission" (new Article 27 TEU).

7.89.  There are "various scenarios" regarding the structure and functioning of the Service (Q C39), but some ideas have already been put forward. What appears likely is that the Service will be constructed around a headquarters element and an external representation element. A first question that arises is: which elements of the current Council and Commission resources (human resources and other assets), both at headquarters and in external representations, will be integrated into the Service?

7.90.  Within the headquarters of the Commission, the Service will probably incorporate most if not all of what is currently the External Relations Directorate-General (DG) in the European Commission. However, there is much more uncertainty about whether parts or the whole of other DGs, especially the Development and Humanitarian Aid DG and the Enlargement DG, will also form part of the Service. Within the Council Secretariat, it is likely that the DGs dealing with foreign, security and defence policy will be integrated into the Service, but beyond that it is less clear. Other headquarters assets, such as the Council's Situation Centre and Policy Unit, and the Commission's Crisis Monitoring Centre, may also become part of the Service. However, in the view of one witness, the Service is not expected to play a role in intelligence cooperation (Grant, Q C77).

7.91.  There appears to be wide consensus that the Union delegations will form the external representation element of the Service (Q C6, Q C72, p C29), although it is possible that not all staff of the delegations will be members of the Service. The role of these Union delegations will be to represent the EU in third countries and at international organisations, under the authority of the High Representative and in cooperation with the missions of the Member States (new Article 221 TFEU).

7.92.  However, this does not mean that the EU will be creating a vast new infrastructure, since there are currently about 5000 Commission staff[200] working in 128 Commission delegations (QQ C15, C39), who already carry out analysis, aid programming and representative functions. This number is not likely to expand significantly as a result of the Treaty (Q C39). These Commission delegations will be reinforced to become Union delegations. They will have to take on the additional responsibilities set out in the Lisbon Treaty, including putting forward the position for the European Union on matters of CFSP (Q C6) where the EU has adopted such a position (Q C5). (Any such position would have to be adopted by unanimity.)

7.93.  In addition to the existing Commission delegations, Charles Grant explained that the EU Special Representatives (EUSR) and their offices—who report to the Council through the High Representative—would probably play an important role in the Service (Q C72). The double-hatting of Commission heads of delegation with the EUSR posts in Macedonia (FYROM) and Addis Ababa indicates that an integrated EU presence can work in practice and bring practical benefits (a position advocated in our report, Europe in the World)[201].

7.94.  The Council Secretariat also has a small number of delegations to international organisations such as the United Nations, and we expect that they will be incorporated into the External Action Service.

7.95.  The external representation and reporting function of the Union delegations will be important assets for the Service, because at present the High Representative and his team have to rely on a variety of direct and indirect sources of information, each with their own advantages, limits and caveats on use. However, it is still to be established whether all or only some of the staff of the Commission delegations—who at present mainly deal with aid and trade matters—will be integrated into the Service.

7.96.  Professor Dashwood confirmed that he had no legal concerns about the provisions on the External Action Service (Q C79). Charles Grant expressed a political concern, that the "British Government will not seize the opportunity that the establishment of the EAS offers to play a leading role in building it" (Q C79). However, the Minister for Europe confirmed that in his view it would be to the advantage of the United Kingdom to ensure that able and competent people were seconded to the Service and that it was given the resources and political support it needed to be effective (Q S287). There are currently five Foreign and Commonwealth Office Seconded National Experts working in the EU institutions, one of whom is seconded to the Commission, whereas there are 112 Seconded National Experts in total in all EU institutions from all Whitehall Departments (p S78).

7.97.  Although there are uncertainties about the exact shape the service may take, John Palmer emphasised that ultimately much will depend not on the provisions of the Treaty but on the political will of the Member States to make it work. He expressed optimism in this respect, noting the "remarkable degree of consensus" among the 27 Member States about the critical importance of making the new system work (Q S21).

7.98.  The creation of an External Action Service is an important institutional innovation of the Lisbon Treaty. The Service is intended to provide the High Representative and the EU with analysis and support, as well as improve the consistency of the EU's representation in third countries and at international organisations.

7.99.  The Treaty of Lisbon leaves most of the details on the structure and functioning of the External Action Service to be decided upon by the Council acting unanimously after entry into force of the Treaty. The UK has the experience to play a leading role in elaborating a concept for the Service in a methodical and systematic way. And we would expect the Diplomatic Service and the EAS to work closely together.

7.100.  Parliament should have an opportunity to scrutinise the draft concept for this Service well in advance of any political agreement being reached on its structure, functioning and financing. It is a matter that the Committee may want to come back to at a later date. In the meantime, we look forward to being kept informed by the Government of progress being made in the negotiations on the establishment of the Service.

7.101.  The Government are committed to engage positively with the UK's EU partners in building an effective External Action Service. We would welcome assurances from the Government that, where it is in line with UK policy, they will contribute to providing the Service with high quality personnel with the necessary language skills, including secondees, and adequate financial resources.

Holding the Service to account

7.102.  Although it is clear that the Service will support and be accountable to the High Representative, it is not yet clear whether and how far the European Parliament will exercise administrative and budgetary control over the Service, as is currently the case with regards to the Commission delegations. Graham Avery thought that this would probably be the case under the scenario he envisaged (Q C13).

7.103.  Effective mechanisms should be put into place at the appropriate time to exercise parliamentary oversight over the Service at the national level.

Cooperation with Member States' missions

7.104.  Our witnesses clarified the relationship which the Union delegations will have with the diplomatic services of the Member States. Open Europe expressed concern that the Treaty could lead to the establishment of EU embassies and consulates. It has also been argued that the Treaty will provide for the EU delegations to subsume the embassies of the Member States. However, Graham Avery refuted this assertion, explaining that: "The Treaty says, expressis verbis, that the task of these Union delegations is to cooperate with the missions of Member States in non-Member countries. The object is absolutely not to take over their role" (Q C5). In addition, he thought that the creation of these delegations would not in any way prejudice the activities of export promotion of contracts for British firms (Q C4).

7.105.  The Lisbon Treaty states that the Union delegations will work closely with the missions of the Member States, and not replace them. The Government should encourage the Diplomatic Service to engage positively with the External Action Service.

The Common Security and Defence Policy

7.106.  In the area of defence, the Lisbon Treaty introduces two new provisions and codifies two areas of current practice. The other changes are minor and serve the purpose of streamlining and clarification. The European Security and Defence Policy (ESDP) is renamed the Common Security and Defence Policy (CSDP), but this name change does not, of itself, materially change the policy. The CSDP will continue to be an "integral part" of the CFSP.

7.107.  Some of the evidence we received suggested that the defence provisions in the Treaty were not particularly significant. This was the view held by Charles Grant (Q C108). He pointed out that in European defence matters the position of leading countries such as the UK, France and the United States will continue to be more important than the actual text of the Treaties.


7.108.  According to the Government, the Treaty did not introduce changes that could affect the specific character of the UK's defence policy, in particular the central role of NATO. The paragraph in the TEU (Article 17(1)) which recognises the importance of NATO for Member States like the UK will be retained, without substantive amendment, under the new Treaties (Article 42(2) TEU). It specifies in particular that the provisions of the amended TEU on the CSDP "shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO) …".

7.109.  The mutual assistance clause, which is examined below (new Article 42(7) TEU) is even more forthright, as it states that NATO remains the "foundation" of the collective defence of those Member States who are members of it and the "forum for its implementation". It further states that commitments and cooperation under the CSDP "shall be consistent with commitments" under NATO. This is a new provision and represents a strengthening of the reference to the role of NATO in the Treaties.

7.110.  In addition to these Treaty articles, Declaration 13 concerning the CFSP states that "the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States". Although this Declaration is not part of the Treaty itself, it is a political document agreed by the representatives of all the Member States and can act as a guide to the interpretation of the Treaty. The Government's view is that the Treaty meets the UK objectives for the development of a flexible, militarily robust and NATO-friendly CSDP. The Government underline that the principle of unanimity will be preserved for decisions coming under this policy area, and that the Treaty maintains the prerogatives of the Member States for defence and security issues[202].

7.111.  The central role of NATO in the defence policy of certain Member States such as the UK will continue to be recognised under the new Treaties.

Towards a common defence?

7.112.  The Lisbon Treaty, basing itself on language which first appeared in the Maastricht Treaty, also states that "the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides" (new Article 42(2) TEU). The only difference under the new Treaties is that in one case, the wording "this might lead" becomes "this will lead". What will not change is that a unanimous European Council decision will be necessary before the EU moves to establish a common defence. Any such decision will have to be adopted by the Member States "in accordance with their constitutional requirements" (new Article 42(2) TEU), as is already the case under the present Treaties.


7.113.  The Lisbon Treaty introduces a new provision on mutual assistance (new Article 42(7)), which provides that:

    Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation".

7.114.  The provision reflects the assumption that EU Member States would come to the aid and assistance of other Member States in the unlikely event that they were the victim of armed aggression on their territory. EU Member States who are not also members of NATO are now committed to the aid and assistance of their fellow Member States, to the potential benefit of the UK.

7.115.  The Minister for Europe explained the provision in detail (p S82). He stated in particular that:

"The provision does not provide a basis for the development of an EU collective defence organisation to rival NATO. The obligation to provide assistance falls on individual Member States, not the EU. It goes on to provide that for Member States which are also NATO members, NATO remains the foundation of their collective defence and the forum for the implementation of the mutual defence provision. It therefore confirms NATO's role as Europe's only collective defence organisation…".

7.116.  For the Director of the Council Legal Service, Mr Jean-Claude Piris, who acted as Legal Adviser to several inter-governmental conferences, the mutual assistance clause introduces an obligation on Member States to give aid and assistance[204], but it "does not transform the EU into a military alliance". Rather, this provision is "of the utmost symbolic and political importance for the EU" but at the same time "does not amount to a mutual defence clause and does not change anything about the respective position of each Member State vis-à-vis NATO". A similar view was expressed by Charles Grant, who said, "the general view of governments is that European defence policy is about the Petersberg tasks … I have not heard anybody argue that the EU should become a collective defence organisation" (Q C85). He also remarked that "the perception of the clause amongst governments is that what matters is NATO's Article 5 rather than this mutual assistance clause … I think it is desirable that we should help countries that are threatened by attacks … but the one that people really care about is NATO Article 5" (Q C84). The view of Open Europe was that the clause was "essentially a mutual defence commitment" (p C35).

7.117.  Under the new Treaties all the EU Member States, including the six Member States of the EU which are not also members of NATO, will have an obligation to come to each others' aid and assistance if one of them is attacked on their territory. However, this obligation will fall on each EU Member State individually, and not on the EU and its institutions. As regards the EU Member States, such as the UK, which are also members of NATO, the Lisbon Treaty will not change the current situation with regards to their collective defence, which will continue to be organised and implemented in the framework of NATO.


7.118.  Finally, it is worth noting that the Lisbon Treaty also introduces a "Solidarity Clause", according to which the Member States and the Union would offer their assistance to any Member State that was the victim of a terrorist attack or a natural or man-made disaster, at the request of its political authorities. This clause has some defence implications but is dealt with in the section on civil protection (in Chapter 6).


7.119.  The Lisbon Treaty introduces a new provision allowing for a form of institutionalised cooperation between EU Member States, called Permanent Structured Cooperation. Its exclusive focus is the development of the military capabilities of the Member States, which is "a key UK objective". It should not be confused with the provisions on "enhanced cooperation" in the current Treaties (Article 27a-d TEU), which specifically exclude "matters having military or defence implications"[205].

7.120.  As stated in the preamble of the Protocol, the EU should be able to assume fully "its responsibilities within the international community", including in response to requests from the United Nations which have grown more frequent. Despite efforts to improve the capabilities that Member States can make available to the EU, it has struggled to deploy even modest forces to theatres of operations such as the Democratic Republic of the Congo and Chad. The objective of Permanent Structured Cooperation is to improve these capabilities. As set out in Article 2 of the Protocol, Permanent Structured Cooperation covers a number of different areas, such as investment in defence equipment. The European Defence Agency (EDA) will have a role in contributing to the regular assessment of participating Member States' contributions with regards to capabilities (Article 3 of the Protocol), reflecting its current role in capability development.

7.121.  Andrew Mathewson, Head of the Directorate for Policy on International Organisations at the Ministry of Defence, explained that the existing Battlegroups initiative, which provided the EU with a rapid reaction capability, could be considered a form of Permanent Structured Cooperation. The Lisbon Treaty would formalise and build on this initiative by creating specific provisions setting out in detail the conditions of participation, and its objectives and procedures. The new provisions permitted a deepening of cooperation but did not represent a major departure from current practice. Permanent Structured Cooperation was a "device for encouraging nations to do more by way of developing capability" (Mathewson, Q C40). This should serve to improve the military capabilities available to both the EU and NATO.[206]

7.122.  Charles Grant thought Permanent Structured Cooperation would be a good thing if it encouraged other Member States to spend more on defence (Q C80). Nick Witney, formerly a senior MoD official and until recently the Chief Executive of the European Defence Agency, believed that Permanent Structured Cooperation could give a "powerful impetus" to the building of better defence capabilities and a stronger defence technological and industrial base in Europe (p C40). He expressed the view that Permanent Structured Cooperation, by introducing a new political dynamic and creating new small-group combinations, could be a "key means for stimulating a more imaginative and energetic Member State input to the increasingly urgent task of raising Europe's game on defence" (p C40).

7.123.  New Article 46 TEU sets out the rules for the launching and functioning of Permanent Structured Cooperation. The general rule is that decisions will be taken by QMV, including on launching Permanent Structured Cooperation and on determining the list of participating Member States[207]. This has provoked concern in some quarters[208] that the UK could be either sidelined at the outset if it decides not to participate, or outvoted if it does decide to participate. In evidence to the House of Commons Foreign Affairs Committee, Dr Javier Solana, High Representative for the CFSP, expressed the view that Permanent Structured Cooperation "would be inconceivable without the United Kingdom, which is at the core of our security and defence capabilities ... it will not happen without [the UK]. That is very clear to me".[209] Open Europe expressed concern about the provisions on QMV in the Lisbon Treaty, including those on structured cooperation (pp C37-38), but these concerns were not shared by our other witnesses.

7.124.  The Government's view was that the use of QMV in this context was in the interest of the UK since it prevented an individual Member State from blocking the establishment of Permanent Structured Cooperation, from blocking another Member State from subsequently joining, or from blocking the suspension of a non-performing Member State. Capability development amongst EU Member States was a key UK objective and it was "likely that [the UK] would hope to launch [Permanent Structured Cooperation] as soon as practicable after entry into force of the Reform Treaty, in cooperation with other like-minded Member States" (p S82).

7.125.  The possibility of recourse to QMV will ensure that no other Member State, acting on its own, will be able to veto a subsequent UK application to join. Any decisions regarding the substantive implementation of Permanent Structured Cooperation will be by unanimity of the participating Member States.

7.126.  Permanent Structured Cooperation is a form of enabling framework allowing the Member States who so wish to cooperate more closely in the area of defence capabilities development. Permanent Structured Cooperation is not a major departure from current practice. Rather, it represents a continuation and deepening of current forms of cooperation. Its objective is to create a political dynamic among Member States towards the improvement of European defence capabilities. Most of these new capabilities should be available to both NATO and the EU and could therefore serve to strengthen both organisations. While recognising that under Permanent Structured Cooperation some decisions will be taken by qualified majority voting, all decisions of substance will be taken unanimously by the participating Member States. Furthermore, the new Treaties will provide that "national security remains the sole responsibility of each Member State" (new Article 4 TEU).


7.127.  The first area of codification is the introduction into the Treaties of a specific legal basis for the European Defence Agency (EDA) (new Article 42 & 45 TEU). The EDA already exists under a CFSP Joint Action, and the Lisbon Treaty will codify what the Agency is doing on the basis of its current mandate. Decisions regarding the EDA are currently taken by unanimity by the representatives of the Member States, apart at present from Denmark, meeting in the EDA Steering Board. The Lisbon Treaty, of itself, will not have an impact on this. However, the Treaty provides that the Council, acting by QMV, will adopt a decision defining the Agency's statute, seat and operational rules.

7.128.  The Treaty also codifies the scope of the crisis management operations that can be undertaken by the EU (Q C83). In addition to the types of operations that the EU can carry out under the current Treaties the so-called Petersberg tasks)[210], new Article 43 TEU introduces into the Treaty the tasks that were agreed by EU heads of state and government in the European Security Strategy of 2003, namely: joint disarmament operations, military advice and assistance tasks, conflict prevention tasks, and post-conflict stabilisation. The Treaty further stipulates that "All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories". This new language also reflects the evolution of practice in UN peace support operations, which the EU is often called upon to support or implement.

7.129.  The provisions on the European Defence Agency and on crisis management missions are a codification of current practice and will therefore have little impact on the European Security and Defence Policy/Common Security and Defence Policy.

179   Sir Stephen Wall also thought foreign policy would remain a separate pillar (Q S194). Back

180   The Lisbon Treaty also changes the nomenclature of CFSP instruments, but not their legal status. Back

181   Currently "co-decision". Back

182   "If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity" (Article 31(2) TEU, as amended by the Lisbon Treaty, drawing on current Article 23(2) TEU). Back

183   See Chapter 3. Back

184   New Article 288 TFEU (drawing on current Article 249 TEC) states: "A decision shall be binding in its entirety…". The Lisbon Treaty does not change the binding nature of CFSP instruments (e.g. Joint Actions and Common Positions, renamed "decisions"). Back

185   Article 31(1) TEU as amended. Back

186   Peter Hustinx, letter to the Presidency of the Intergovernmental Conference, 23 July 2007. Back

187   See The EU-US Passenger Name Record (PNR) Agreement, 21st Report of this Committee, Session 2006-07, HL Paper 108. Back

188   Jim Murphy MP, Minister for Europe, House of Commons Hansard, column 446W, 8 January 2008. Back

189   The Paris Declaration, endorsed on 2 March 2005, is an international agreement to which over one hundred Ministers, Heads of Agencies and other Senior Officials adhered. They committed their countries and organisations to continue to increase efforts in harmonisation, alignment and managing aid for results with a set of monitorable actions and indicators. Back

190   Jim Murphy MP, Minister for Europe, House of Commons Hansard, column 446W, 8 January 2008. Back

191   Government Explanatory Memorandum, para 16. See also the annex to the EM, point 30. Back

192   Jim Murphy MP, Minister for Europe, House of Commons Hansard, column 446W, 8 January 2008. Back

193   Consular protection comes under the "non-discrimination and citizenship" provisions (Title II, Part II) of the TFEU, rather than under the "external action" provisions of the TFEU, but it is included here because it relates to cooperation between Member States' missions in third countries. Back

194   The Treaty will have no impact on the basis on which the UK Diplomatic Service provides consular assistance to either British Overseas Territories Citizens or unrepresented Commonwealth nationals (p S85). Back

195   Currently the external relations session of the General Affairs and External Relations Council. Back

196   Paragraphs 2 and 3 of Article 18 TEU refer to the High Representative's role in conducting the CFSP and making proposals, and his role in chairing the Foreign Affairs Council. Back

197   The EU and the Middle East Peace Process, this Committee's 26th Report (2006-07), HL 132. Back

198   Q 581, evidence given by the Secretary of State for Foreign and Commonwealth Affairs, the Rt. Hon. Mr David Miliband MP, to the House of Commons Foreign Affairs Committee, 12 December 2007. Foreign Policy Aspects of the Lisbon Treaty, 3rd report of Session 2007-08, HC 120-II. Back

199   Q 454, evidence given by Professor Christopher Hill to the House of Commons Foreign Affairs Committee, 21 November 2007. Op.cit. Back

200   Of which approximately 1000 are based in Brussels at Commission headquarters and 4000 are locally employed in the overseas Commission delegations, according to Graham Avery (Q C15). Back

201   48th Report of Session 2005-06, HL Paper 268. Back

202   Government Explanatory Memorandum, para 25. Back

203   In full, article 51, Chapter VII, reads:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security".  Back

204   Jean-Claude Piris (2006) The Constitution for Europe-A legal analysis, Cambridge University Press, Cambridge, p.161. Mr Piris' analysis is on the mutual assistance clause as it appeared in the European Constitutional Treaty (Article I-41(7)), the text of which is identical to that in the Lisbon Treaty. Back

205   Government Explanatory Memorandum, para 26. Back

206   See also evidence given by Secretary of State Des Browne MP and MoD officials to the House of Commons Defence Committee on 8 January 2008, especially Q 318. Back

207   See the written evidence from the Minister for Europe, Jim Murphy MP, in which he explains the rules on QMV in detail (p S81). Back

208   For example, Bernard Jenkin MP, A Defence Policy for the UK: Matching Commitments and Resources, Conservative Way Forward, London, November 2007. Back

209   Q 616, evidence given by Dr Javier Solana, High Representative for the CFSP, to the House of Commons Foreign Affairs Committee, 8 January 2008. Foreign Policy Aspects of the Lisbon Treaty, 3rd report of Session 2007-08, HC 120-I. Back

210   The Petersberg tasks set out in current Article 17(2) TEU are: Humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking. Back

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