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Differentiation in EU Foreign, Security, and Defence Policy: Between Coherence and Flexibility

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... A relatively small but recently growing body of scholarly literature exists on differentiation in EU foreign, security and defence policy. As we shall illustrate below, these works tend to focus on the treaty-based and informal mechanisms of differentiation (e.g., Aggestam and Bicchi 2019, Biscop 2008, Blockmans 2014, Howorth 2019, Groenendijk 2019, Wessel 2007. This paper contributes to and complements this literature by discussing the accountability, legitimacy and, most notably, by assessing the effectiveness of differentiation in European foreign, security and defence policy. ...
... The main focus of these studies has been on whether DI is and will be a feature of the EU's Common Foreign and Security Policy (CFSP). Some scholars have highlighted that differentiated cooperation in foreign policy raised objections from its inception (Wessel 2007). However, recent scholarship is unanimous in arguing that DI is deeply rooted in the foreign and security policy of the EU (cf. ...
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Differentiation is a frequent modus operandi in European foreign, security and defence policy. EU treaties have introduced legal frameworks for various types of formal differentiated integration in this policy area. However, they have rarely been used in the field of foreign policy and were only recently launched in the field of defence policy. On the other hand, empirical analyses show that EU member states have engaged in a range of informal practices of differentiation, such as regional groupings, contact and lead groups, and various defence initiatives. This article reviews the scholarly literature and recent empirical analyses of differentiation in EU foreign, security and defence policy. In doing so, it assesses their legitimacy and accountability, and calls for a more explicit focus on effectiveness. Drawing on case studies of differentiated cooperation with non-member states, the article argues that effectiveness depends on shared interests rather than on the level of institutionalisation of the partnership. In a second step, the paper focuses on EU foreign policy in the Western Balkans, the Middle East and the Eastern neighbourhood. It contends that differentiated cooperation has had largely positive outcomes when it has adhered to common EU values and positions. Conversely, when this has not been the case, differentiation has undermined EU foreign and security policy.
... The main focus of these studies has been on whether differentiation is and will be a feature of the EU's CFSP. Some scholars have highlighted that differentiated cooperation in foreign policy raised objections from its inception (Wessel 2007). However, recent scholarship is unanimous in arguing that differentiation is deeply rooted in the foreign and security policy of the EU (see Aydın-Düzgit et al. 2021;Grevi et al. 2020;Koutrakos 2017). ...
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European Union (EU) treaties have introduced legal frameworks for differentiated integration in European foreign and security policy, but they have rarely been used. Instead, member states have engaged in informal practices of differentiated cooperation. Based on an analysis of effectiveness, accountability and legitimacy of differentiated cooperation in the Western Balkans, the Middle East Peace Process, negotiations on Iran’s nuclear programme and the Ukraine crisis, we argue that differentiated cooperation has had positive outcomes when it has adhered to common EU values and positions. When this has not been the case, differentiation has undermined EU foreign and security policy.
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This Working Paper explores the current legal basis and governance structures of the EU's Common Security and Defence Policy (CSDP) and other areas with defence implications. It provides a summary of ground rules to address the boundaries of enhancing the functioning of the CSDP and reveal the possibilities that are offered by the existing legal framework. The paper emphasises that the current Treaty framework allows the use of the so-called "sleeping beauties", including the potential use of Article 44 of the Treaty on European Union. The latter may contribute to achieving the EU's strategic objectives by allowing a group of Member States to perform a task in the EU's interest. The paper also highlights recent actions taken to increase defence collaborations and industrial activities, which are expected to boost the coordination and effectiveness of EU defence policy and to foster the competitiveness of the European defence industry.
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For the founding fathers the establishment of the European Communities was a foreign policy project. It is therefore not surprising that internal and external Community policies are governed by comparable regimes. In its landmark judgment on implied external powers the Court of Justice paradigmatically rationalises the wide understanding of EC competences with the impact of international rules on internal policies: Whenever European laws are promulgated “the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope.” Also, concurrent activities of the Member States cannot be tolerated, “since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the Common Market and the uniform application of Community law.” To this date, the constitutional foundations of European foreign affairs are characterised by the assumption of supportive parallelism between external and internal policies. In view of the constant expansion of European foreign affairs their analysis however requires a partial detachment from the internal perspective by taking on board the particularities of international relations. Objectives and themes of European foreign affairs nowadays transcend their supplementary character as an instrument for the protection and projection of internal rules with the dynamic evolution of the Common Foreign and Security Policy (CFSP) as an alternative point of reference. Its progress is not dominated by supranational law-making; rather the CFSP is typified by the identification of strategic goals and the constant adjustment of methods for their realisation. This condition of international relations explains the legal and institutional regime governing the CFSP, thereby establishing the constitutional dichotomy of European foreign affairs between intergovernmentalism and supranationality (section IV). Irrespective of the novelty of foreign policy and defence integration the supranational Community policies under the current EC Treaty remain the historic starting point and continuous centre of gravity of the legal analysis of European foreign affairs. In the supranational arena the parallelism between the constitutional foundations of internal and external action is most tangible – even if the decision-making procedure and the substantive constraints exemplify a variation on the supranational model. These particularities of international relations law explain the deviations from the orthodoxy of the Community method (section III). It remains a challenge for European foreign affairs to guarantee the coherence and complementarity of the different fields of external action in the daily decision-making practice. This concerns the coexistence of the intergovernmental and the supranational spheres just as much as the cooperation with the Member States’ national foreign policies. Existing legal obligations mandate and support the horizontal and vertical cooperation between the Community, the Union and the Member States; one step further the reform project of the Lisbon Treaty sets sight on the pragmatic connection of the different level of foreign policy formulation and articulation with the ultimate objective of uniform external representation (section V). Coexistence and cooperation of the Community, the Union and the Member States is one particularity of European foreign affairs; their wider constitutional analysis therefore requires a reflection about the background and assumptions of our constitutional argument. They are presented in the preliminary section on the constitutional foundations and particularities of foreign affairs, which cannot ignore the continuous transformation of the international legal and political context.
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Art. 44 TEU provides the MS of the EU with a new opportunity to use flexibility in the framework of CFSP. It gives some indications on the procedure that should apply to the launching and the management of flexible action. A group of States shall be in charge of implementing one of the tasks referred to in Art. 43.1 TEU, on the basis of the decision taken by the Council (Art. 44.1 TEU) and with the condition that the Council shall be kept regularly informed (Art. 44.2 TEU).
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In its aim to become a global security actor, the European Union (EU) is increasingly engaged in civilian and military crisis management missions all over the world. According to its comprehensive approach to crisis management, these missions are not the only means by which conflicts can be addressed. The EU has a long-standing tradition of using instruments such as trade agreements, development aid and economic sanctions to promote its values to the outside world. However, this comprehensive approach to crisis management can only be successful if the EU is able to provide coherent international action. This chapter will assess whether the new institutions of the High Representative for Foreign Affairs and Security Policy that will be assisted by the European External Action Service, and the permanent President of the Council will be able to provide the EU with more effective and coherent external relations. It will be argued that although the High Representative from now on links the Council with the Commission which appears to be the key to a more efficient policy, some serious problems still lie ahead. These problems are likely to arise due to the continuing difficulties in the delimitation of competences between different policy fields of the European Union that have foreign policy implications.
Article
The 'Berlin Plus' agreement of 16 December 2002 now allows the EU to draw on some of NATO'smilitary assets in its own peacekeeping operations.The exact legal nature of the agreement, however, appears doubtful. Yet - given that political actors often resort to legal arguments in case of a dispute - the question of whether it is binding under international law is likely to be raised in the future. First, a short historical overview is given of the development of relations between the EU and NATO. In some respects, these are a mirror image of the co-operation NATO previously entertained with the Western European Union. However, since the French-British meeting of St-Mâlo these relations have assumed features of their own, for instance equal status for the EU. The text of the 'Berlin Plus' agreement is then tested against the constitutive characteristics of a treaty in international law. In conclusion, the 'Berlin Plus'is nothing but a non-binding agreement.The most important reason for this is that the EU manifestly lacked treaty-making competence, as the agreement was concluded by its High Representative for the Common Foreign and Security Policy, not by the statutory organ provided for in such cases in the Treaty on European Union. Nevertheless, as the parties proceed to implement the 'Berlin Plus' according to its stated terms, legally binding force may arise for some of its contents through estoppel.
⁴⁵ See M Reichard, 'Some Legal Issues Concerning the EU-NATO Berlin Plus Agreement With regard to the EU Police Missions, however, it was also agreed that certain costs will be financed out of the community budget; see Council Joint Action
December 2004, 68 and by Council Decision 2005/68/CFSP of 24 January 2005, OJ L-27, 29 January 2005, 59. ⁴⁵ See M Reichard, 'Some Legal Issues Concerning the EU-NATO Berlin Plus Agreement' Nordic J of Intl L (2004) 37–68. ⁴⁶ Conclusions of the General Affairs Council of 17 June 2002. With regard to the EU Police Missions, however, it was also agreed that certain costs will be financed out of the community budget; see Council Joint Action 2003/141/CFSP of 27 January 2003, OJ L-53, 28 February 2003.
European armaments cooperation: core documents, Chaillot Paper No 59 (Paris: Institute for Security Studies
  • See Burkardt Schmidt
See Burkardt Schmidt, European armaments cooperation: core documents, Chaillot Paper No 59 (Paris: Institute for Security Studies, 2003).
Convergence Criteria: Measuring Input or Output Eur Foreign Affairs Rev 397–417; as well as the NATO Parliamentary Assembly Interim Report 'Building European Defence: NATO's ESDI and the European Union's ESDP', Rapporteur Van Eekelen On financing, see also for the Athena mechanism: Council Decision
  • De Wijk
⁴³ See on the feasibility of this headline objective, for instance R de Wijk, 'Convergence Criteria: Measuring Input or Output' (2000) Eur Foreign Affairs Rev 397–417; as well as the NATO Parliamentary Assembly Interim Report 'Building European Defence: NATO's ESDI and the European Union's ESDP', Rapporteur Van Eekelen, 5 October 2000. ⁴⁴ Conclusions of the External Relations Council, 17 May 2004. On financing, see also for the Athena mechanism: Council Decision 2004/197/CFSP of 23 February 2004, OJ L-63, 28 February 2004, 68, as amended by Council Decision 2004/925/EC of 22 December 2004, OJ L-395, 31
Eur Foreign Affairs Rev 397-417; as well as the NATO Parliamentary Assembly Interim Report 'Building European Defence: NATO's ESDI and the European Union's ESDP', Rapporteur Van Eekelen
  • For Instance R De Wijk
⁴³ See on the feasibility of this headline objective, for instance R de Wijk, 'Convergence Criteria: Measuring Input or Output' (2000) Eur Foreign Affairs Rev 397-417; as well as the NATO Parliamentary Assembly Interim Report 'Building European Defence: NATO's ESDI and the European Union's ESDP', Rapporteur Van Eekelen, 5 October 2000. ⁴⁴ Conclusions of the External Relations Council, 17 May 2004. On financing, see also for the Athena mechanism: Council Decision 2004/197/CFSP of 23 February 2004, OJ L-63, 28 February 2004, 68, as amended by Council Decision 2004/925/EC of 22 December 2004, OJ L-395, 31