10 Colum. J. Eur. L. 69 (2003)

Panos Koutrakos, Reader in European Law, University of Birmingham, United Kingdom.

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.

T. S. Eliot, The Hollow Men (1925)

The European Union is at a crossroads. On April 16, 2003, the Treaty of Accession of ten new Member States was signed at the Athens Informal European Council. As of May 1, 2004, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia will bring the number of Member States to twenty-five. This is a remarkable achievement for an organization established in 1957 by only six States that focused much of their energy on pursuing common policies and establishing a common market.

A striking illustration of the significance of this development is the extraordinary process of self-therapy that the EU has undergone since March 1, 2002 when the Convention on the Future of Europe, established by the European Council under the Laeken Declaration, started to fulfill its mandate “to consider the key issues arising for the Union’s future development and try to identify the various possible responses.” This Convention, chaired by the former President of the French Republic, Valdry Giscard d’Estaing, has paved the way for an Intergovernmental Conference, launched on October 4, 2003, with the aim to amend the Treaty on European Union. The Convention’s work is based on the input of a diverse membership consisting of representatives of national governments, national parliaments, the European Parliament, the European Commission, the Governments of the accession candidate countries, their parliaments and observers of the other EC institutions. This remarkable deliberative process, conducted largely in public, culminated in the submission of the Draft Treaty Establishing a Constitution for Europe to the President of the European Council on July 18, 2003. The Draft Treaty addresses such fundamental questions as the division and definition of competence in the EU, the simplification of its legal instruments and the existence of guarantees for democracy, transparency and efficiency.

One of the issues examined by the Convention was the European Security and Defense Policy (ESDP), for which a special Working Group was established. The significance of this emerging policy is three-fold. First, in political terms, it raises the question of the European Union’s position on the broader European and international scene. The fall of the Iron Curtain and the subsequent reassessment of NATO’s function have created a security void which the European Union might appear the obvious candidate to fill. Put another way, in shaping its security dimensions, the European Union is called upon to define its role within the new European security architecture. Second, in legal terms, the development of a credible security and defense policy might require reliance upon a variety of instruments, ultimately entailing the transfer of more sovereign powers from the Member States to the European Union. Third, in constitutional terms, the character of the emerging policy raises fundamental questions about the identity of the European Union.

The aim of this article is to ascertain how the European Union may shape its security and defense policy in a manner that would enable it to assert its identity in the new international security arena while taking into account the constitutional particularities of its legal order. In doing so, the article will reject maximalistic conceptions of the EU international posture and will suggest a more clearly defined, realistic, and effective method of pursuing its international agenda. This article will be structured as follows. First, the legal framework within which the defense policy has emerged will be outlined. Second, the various proposals about the role of the EU in the international scene will be considered in light of the recent war in Iraq. Third, the main characteristics of the development of EU foreign policy, along with its defense policy, will be examined. Fourth, the effect that EU constitutional idiosyncrasies have on its security and defense policy will be identified, with emphasis on certain issues of topical significance. Fifth, a more minimalistic approach to the EU’s international role, which would draw upon the unique features of the EU constitutional order, will be suggested. Finally, this minimalistic approach will be outlined with reference to the EU response to the attacks of September 11, 2001 and the legal regulation of defense industries.