PhD defence: Arming Europe – Defence-Industrial Policymaking under the Dual Constitution of the European Union

The European Union (EU) and its member states have long been under intense pressure to strengthen their military capabilities, with the Russian invasion of Ukraine in early 2022 being the latest trigger. The EU therefore wants to strengthen its defence industry, with the ambition of becoming strategically autonomous in defence. In his dissertation, Bram Vroege – EU law legal researcher affiliated to the UU Centre for Public Procurement – analyses how the European Commission tried to achieve this goal in the period 2016-2023. According to the 2016 European Defence Action Plan (EDAP), the focus in this period was on strengthening industry cooperation, through a combination of grant funding and liberalisation of interstate arms trade rules. But in practice, cooperation is mostly limited to smaller coalitions of member states working together on an ad hoc basis. 

Within the EU, a dual system of governance has been created, based on the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), consisting of a supranational part – driven by the European Commission – and an intergovernmental part, driven by the European Council. The intergovernmental part aims at more voluntary and less legalised cooperation between member states. Exploring the boundaries and interrelationships between these two parts of the EU's constitution runs like a thread through the dissertation.

EDAP was launched by the European Commission to foster the integration and development of the EU defence industry, but the ultimate power to determine EU defence policy lies with the European Council and the European Defence Agency (EDA). Empowering the European Council – made up of member states' representatives – protects member states’ political control over defence from supranational interference. 

Cooperation between member states

Cooperation is hampered by a lack of concrete shared military objectives regarding the interpretation of ‘strategic autonomy’. Cooperation in arms production also requires countries to reach agreement – on military and ethical grounds – about any third countries (outside the EU) these weapons may be supplied to. There is a lack of common legislation and policy on arms exports, as well as a lack of shared military-ethical convictions, concerning the question whether certain arms supplies might contribute to the commission of war crimes under international humanitarian law. EU member states' policies for assessing applications for arms export licences are now largely determined nationally. 

European Commission has a limited mandate

The research shows that the EU Treaties significantly restrict the Commission's leeway in defence matters. The Commission must primarily focus on free trade and economic growth. Yet the arms industry requires an approach centred on other public interests, which are mainly the responsibility of the Member States. Due to divisions among the Member States there is a lack of clear military objectives at EU level, which are crucial for providing direction to industry.

Diverging arms export policies lead to conflict

Vroege also highlights the lack of uniform rules regarding the arms trade with non-Member States. Member States that wish to jointly produce weapons must agree on the potential sale of these arms to countries outside the EU. But at present Member States largely make their own assessments. This leads to strategic disagreements, for example about the risk of conflict escalation. It also results in ethical disagreements about the effort buyers must make to minimize civilian casualties. The lack of uniform rules undermines security of supply and threatens the core values that the EU is obligated to pursue under the EU Treaties.

Collective funding without collective benefits

To stimulate cooperation, the EU now primarily funds ad hoc projects initiated by groups of Member States. The money for these projects comes from the 'big pot' of the EU budget, to which all 27 Member States contribute. However, the weapon systems developed do not necessarily benefit collective security. A truly collective security vision is lacking, and export regulations may hinder Member States from arming their allies.

Recommendation: clarify ambitions and harmonize export rules

According to Vroege, it is time to clarify the EU's strategic ambitions and revise the rules governing the European arms trade. Only then can the EU work towards a strong defence industry that supports its goals and values.