Why is Defence Fragmented? A Legal Answer

By Maria Rogano

It does not come as a surprise to discover that, to understand the root of the division of the EU's common defence, we have to look at the treaties. The elephant in the room is their intergovernmental nature, which means that every state retains sovereignty over its troops and decides autonomously whether and when to participate in joint actions.

The EU’s defence policy is regulated by the Common Security and Defence Policy. However, if we look at Article 42 of the Treaty on the European Union, we can see that the EU does not have a standing army. Nevertheless, the aim of the article is the creation of a common Union defence policy. This is not smooth sailing: a unanimous vote in the Council is required (who would have thought?).

There are some instances of movement towards unity, such as the Permanent Structured Cooperation (PESCO). However, this is voluntary, and even though only two EU Member States (Denmark and Malta) are not part of it, it is not an efficient tool for bringing different security priorities together or reducing political tensions among Member States.

Back to Article 42, Member States have their common defence realised in NATO, which they prioritise. This, along with strong American influence, makes it difficult for an EU army to be accomplished. Article 42 does not override the obligations deriving from NATO, which work, in theory, as complementary.

At the national level, defence industries have different procurement policies, which are an obstacle. However, as Borrell said at the recent European Defence & Security Conference: ‘The capacity is created when the demand is there.’

I am personally worried about the need for an arms race, but I understand it is necessary. The only way for it to be effective is to do it together and, according to the law, we actually can do it.