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8.2.3.  Common security and defence policy

    According to the treaty of Lisbon, the common security and defence policy (CSDP) is an integral part of the common foreign and security policy. It includes the progressive framing of a common Union defence policy, which will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements. Decisions relating to the common security and defence policy are adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State (Article 42 TEU).

    The CSDP provides the Union with an operational capacity drawing on civilian and military assets, which it may use on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter (Article 42 TEU). These tasks (known as ''Petersberg tasks'' under the Western European Union, now absorbed by the EU) include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories (Article 43 TEU).

    For the implementation of the CFSP, Member States make civilian and military capabilities available to the Union, to contribute to the objectives defined by the Council. The Council established a mechanism, called "Athena" having the necessary legal capacity for the financing of EU operations with military or defence implications [Decision 2008/975]. Those Member States which together establish multinational forces may also make them available to the common security and defence policy (Article 42 § 3 TEU). The Council may entrust the execution of a task, within the Union framework, to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task (Articles 42 § 5 and 44 TEU).

    Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework (Article 42.6 TEU). Such cooperation shall be governed by Article 46 of the TEU and by the Protocol on permanent structured cooperation. The latter specifies that such cooperation shall be open to any Member State which undertakes to: (a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the European Defence Agency, and (b) have the capacity to supply by 2010, at the latest, targeted combat units for the missions planned, structured at a tactical level as a battle group capable of carrying out the tasks referred to in Article 43 of the Treaty on European Union. To achieve these objectives, Member States participating in permanent structured cooperation shall undertake, in particular, to: cooperate with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment; bring their defence apparatus into line with each other as far as possible; and take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces.

    The Eurocorps may be seen as a forerunner of permanent structured cooperation. In fact, on 5 November 1993, France, Germany and Belgium took the important initiative of placing under common command certain units of their armies. Spain joined the Eurocorps in 1994 and Luxembourg in 1996. In 2002 and 2003, Greece, Poland, Turkey and Austria integrated personnel into the Eurocorps staff. The Eurocorps, which is placed under the authority of a "Common Committee" made up of the Heads of Staff and political directors of the participating countries, is now a rapid reaction corps at the disposal of the EU and NATO. It has participated in several joint missions of the two organisations. Approximately 1000 soldiers are stationed in Eurocorps headquarters in Strasbourg, while up to 60000 troops are pledged for deployment in EU or NATO rapid-response missions.

    The European Defence Agency (EDA) was set up in 2004 in order to develop projects and programmes aimed at supporting the development of European security and defence policy [Joint Action 2004/551]. It has as its task to: identify operational requirements, promote measures to satisfy those requirements, contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, participate in defining a European capabilities and armaments policy, and assist the Council in evaluating the improvement of military capabilities. The EDA is subject to the authority of the Council and is open to all Member States wishing to be part of it (Articles 42.3 and 45 TEU).

    The treaty of Lisbon, copying the draft constitutional treaty, introduced a solidarity clause and a mutual assistance clause. The solidarity clause affirms that the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to: (a) prevent the terrorist threat in the territory of the Member States, protect democratic institutions and the civilian population from any terrorist attack and assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; and (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster (Article 222 TFEU). According to the mutual assistance clause, if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter (Article 42 § 7 TEU).

    Article 42 (TEU) underlines that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States, respects the obligations of certain Member States under the North Atlantic Treaty Organisation (NATO) and is compatible with the common security and defence policy established within that framework. For the Member States concerned, this means that the actions and decisions they undertake within the framework of EU military crisis management will respect at all times all their Treaty obligations as NATO allies. The Member States of the EU have agreed to have permanent and continuing consultations with the non-EU European allies, covering the full range of security, defence and crisis management issues. In the case of an EU-led operation using NATO assets and capabilities, non-EU European allies will, if they wish, participate in the operation, and will be involved in its planning and preparation in accordance with the procedures laid down within NATO. In the case of any EU-led operation not requiring recourse to NATO assets and capabilities, non-EU European allies may be invited, upon a decision of the Council, to participate.  In fact, a framework agreement defines the conditions of the participation of the United States of America in European Union crisis management operations [Framework agreement and Decision 2011/318].

    The Organisation for Security and Cooperation in Europe (OSCE) is also called upon to play a key role in pan-European security and cooperation. 52 States participate in the OSCE: all the EU Member States, the countries of Central and Eastern Europe, the members of the Commonwealth of Independent States (CIS), the United States and Canada. The OSCE charter, known as Helsinki II, includes provisions for conflict prevention and crisis management. It also provides for the establishment of a security forum. The European Commission takes part in the OSCE's activities, contributing to its work on the economic and human dimension of the security model.

    The Stability Pact in Europe, signed the 21 March 1995 in Paris, is a European Union initiative launched by the Brussels European Council of October 1993 [Decision 1993/728 and Decision 94/367]. This Pact is designed to foster peace and stability in Europe, by resolving the problem of minorities, reinforcing the inviolability of frontiers, strengthening the development of democracy and regional cooperation in Central and Eastern Europe. The OSCE was entrusted with the follow-up and the implementation of the Pact. The stabilisation effort is currently centred on south-eastern Europe [see section 25.3].

    On the basis of previous versions of the treaty on the European Union, the following permanent political and military bodies have been established for the implementation of the common security and defence policy:

    (a)    a standing Political and Security Committee (PSC) in Brussels, composed of national representatives of senior/ambassadorial level, deals with all aspects of the CFSP, including the common European security and defence policy [Decision 2001/78]. In the case of a military crisis management operation, the PSC will exercise, under the authority of the Council, the political control and strategic direction of the operation;

    (b)   the Military Committee (EUMC), composed of the chiefs of defence or their military delegates and a Chair appointed by the Council on the Committee's recommendation, gives military advice, makes recommendations to the PSC and provides military direction to the Military Staff [Decision 2001/79];

    (c)    the Military Staff (EUMS), composed of military personnel seconded from Member States to the General Secretariat of the Council, provides military expertise and support to the ESDP, including the conduct of early warning, situation assessment and strategic planning for Petersberg tasks including identification of European national and multinational forces [Decision 2001/80].

    A Green Paper of the Commission aims at the gradual creation of a European defence equipment market (EDEM) which is more transparent and open between Member States [COM/2004/0608]. In fact, a Directive simplifying terms and conditions of transfers of defence-related products within the European Union intends to contribute to the development of a single market for defence products and equipment, thereby reinforcing the competitiveness of Europe's defence industry [Directive 2009/43, last amended by Directive 2016/970]. The general transfer licence published in conformity with the Directive for transfers of defence-related products to armed forces could greatly increase security of supply for all Member States which would choose to procure such products within the EU. A parallel directive on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security aims to reduce the regulatory fragmentation and increase competition and transparency in these fields [Directive 2009/81, last amended by Directive 1336/2013, see section 6.3].

    The European Security and Defence College (ESDC) is a network dealing with security and defence policy issues in the European Union [Decision 2013/189, last amended by Decision 2015/2310]. This college aims to provide training in the field of ESDP and to promote a common understanding of European security and defence policy among civilian and military personnel. In order to improve the deployment and functioning of its civilian crisis management missions the Union has established a warehouse with a capacity to store new and used equipment for such missions [Decision 2012/698].

    In the light of the terrorist attacks in Madrid on 11 March 2004, the Brussels European Council (25-26 March 2004) decided to revise the EU's action plan to combat terrorism, setting the following objectives: deepen the international consensus and enhance international efforts to combat terrorism; reduce the access of terrorists to financial and other economic resources; maximise capacity within EU bodies and Member States to detect, investigate and prosecute terrorists and prevent terrorist attacks; protect the security of international transport and ensure effective systems of border control; enhance the capability of the European Union and of Member States to deal with the consequences of a terrorist attack; address the factors which contribute to support for, and recruitment into, terrorism. Moreover, the European Council declared that in the spirit of the solidarity clause laid down in Article I-43 of the draft Treaty establishing a Constitution for Europe, the Member States and the acceding States shall act jointly in a spirit of solidarity mobilise all the instruments at their disposal, including military resources, if one of them is the victim of a terrorist attack.

    In conclusions on international terrorism adopted on 8 October 2001, the Council welcomed the adoption of Resolution 1373 (2001) by the United Nations Security Council and reiterated the Union's determination to attack the sources which fund terrorism, in close cooperation with the United States. In fact the EU imposed certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [Common Position 2002/402 and Regulation 881/2002, last amended by Regulation 2015/2245]. The Council affirmed that the provision or collection of funds to be used for terrorist acts should be criminalised, and that consequently, these financial assets or economic resources should be frozen [Common Position 2001/930, Common Position 2001/931, last amended by Decision 2015/2430]. A Regulation created a legal instrument for combating the funding of terrorism [Regulation 2580/2001, last amended by Regulation 2017/965]. The EU has set up basic principles and minimum standards of security for protecting EU classified information (EUCI) [Decision 2011/292] and has established security rules for protecting EUCI, concerning notably Council activities [Decision 2015/444]. It has concluded agreements on the security of classified information with NATO [Decision 2003/211], with the United States of America [Agreement and Decision 2007/274] and with the Russian Federation [Decision 2010/348 and Agreement]. An agreement between the EU and the USA on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security aims to prevent and combat terrorism, whilst ensuring an equivalent level of protection of passengers' personal data in line with European standards on fundamental rights and privacy [Agreement and Decision 2012/472, see also section 9.3]. Another agreement concerns the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program [Decision 2010/412 and Agreement].

    In the framework of the EU strategy against proliferation of weapons of mass destruction, the EU supports the aims of the Organisation for the Prohibition of Chemical Weapons (OPCW) [Joint Action 2007/185] and the implementation of the United Nations Security Council Resolution 1540 [Joint Action 2006/419]. It supports chemical weapons destruction in the Russian Federation [Joint Action 2007/178]. For the purpose of giving immediate and practical application to some elements of the EU Strategy against the Proliferation of Weapons of Mass Destruction, the EU promotes the strengthening of the Biological and Toxin Weapons Convention (BTWC) [Decision 2012/421, last amended by Decision 2016/51]. It supports as well World Health Organisation activities in the area of laboratory biosafety and bio-security [Joint Action 2008/307]. It is actively promoting the early entry into force of the Comprehensive Nuclear Test-Ban Treaty [Common Position 1999/533 and Decision 2003/567] and is supporting the draft international code of conduct against ballistic missile proliferation [Decision 2008/974]. A joint action of the Council is intended to contribute to the strengthening of the international nuclear non-proliferation system, by promoting transparency in nuclear-related export controls [Joint Action 97/288]. The EU supports the Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects [Joint Action 2007/528]. Common rules govern the control of exports of military technology and equipment [Common position 2008/944]. A European regime exists for the control of exports, transfer, brokering and transit of dual-use military/civilian items and technology [Regulation 428/2009, last amended by Regulation 2015/2420]. The EU promotes, among third countries, the control of arms exports and the principles and criteria of the EU code of conduct on arms exports, adopted on 8 June 1998 [Joint Action 2008/230]. It also promotes among third countries the process leading towards an Arms Trade Treaty, in the framework of the European Security Strategy [Decision 2009/42/CFSP]. Joint actions concerning anti-personnel mines include a moratorium on the production and on the export of such mines and a major Union contribution to international mine clearance under the Ottawa Convention [Joint Action 97/817]. The Council has adopted restrictive measures against Iran, in accordance with UNSCR 1737 (2006), aiming to persuade Iran to suspend some proliferation-sensitive nuclear activities without further delay [Common position 2008/652, Decision 2010/413, last amended by Decision 2015/1863 and Regulation 267/2012, last amended by Regulation 2016/74] and against persons complicit in or responsible for directing or implementing grave human rights violations in Iran [Decision 2011/235].

    Restrictive measures, including an arms embargo, are imposed against the Congo [Decision 2010/788], Côte d'Ivoire [Decision 2010/656], the Democratic People's Republic of Korea [Decision 2016/849 and Regulation 329/2007, last amended by Regulation 2016/841], Liberia [Regulation 234/2004, last amended by Regulation 262/2014], Zimbabwe [Decision 2011/101 and Regulation 314/2004, last amended by Regulation 298/2013], Somalia [Decision 2010/231, last amended by Decision 2015/2053 and Regulation 147/2003, last amended by Regulation 431/2013], Eritrea [Decision 2010/127and Regulation 667/2010], Guinea [Decision 2010/638 and regulation 1284/2009], Tunisia [Decision 2011/72 and Regulation 101/2011], Egypt [Decision 2011/172 and Regulation 270/2011], Libya [Decision 2011/137, last amended by Decision 2014/487 and Regulation 2016/44], Iran [Decision 2010/413, last amended by Decision 2016/78 and Regulation 267/2012, last amended by Regulation 2016/74] and Syria [Decision 2013/255, last amended by Decision 2016/850 and Regulation 36/2012, last amended by Regulation 2016/840.

    Currently, the European Union is leading more than 10 ESDP military operations and monitoring missions around the world, including:

    a military operation in the Republic of Chad (EUFOR Tchad) [Common action 2009/795 and Agreement and Decision 2008/389] and in the Central African Republic (EUFOR RCA) [Decision 2014/73];

    a border assistance mission for the Rafah Crossing Point to the Palestinian territories (EUBAM Rafah) [Joint Action 2005/889];

    a police mission in Afghanistan (EUPOL Afghanistan) [Decision 2010/279];

    a police mission in the Democratic Republic of the Congo (EUPOL RD Congo) [Joint Action 2007/405];

    a monitoring mission in Georgia (EUMM Georgia) [Joint Action 2008/736, see section 25.4]; and

    a military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (EU NAVFOR) [Joint Action 2008/851] [see also section 25.3].

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