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

This articles-based dissertation assesses the constitutional effectiveness of the European Commission’s defence-industrial policy in the wake of the 2016 European Defence Action Plan (EDAP). This plan focused on developing and integrating the defence industry of the European Union (EU) through defence industry subsidies and arms trade liberalisation. The dissertation studies the EDAP against the background of the EU’s constitution, formed by the Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU). That constitution is characterised by purpose-driven functionalism: it grants the EU functionally-defined competences to pursue specified objectives. Among those competences, a separation must be made between economic policy (which is supranational) and defence policy (which is intergovernmental). The EU Treaties thus form a dual constitution, of which the two parts function according to distinct logics and governance structures while standing in service to shared objectives. For the EDAP to be considered constitutionally effective, it must simultaneously respect this constitutional separation of powers and contribute to the EU’s objectives of promoting peace, its values, and the wellbeing of its peoples. Arms controls are now regulated in part through the internal market, but fall primarily within the remit of the Common Foreign and Security Policy (CFSP) and Member States’ national security policies. The research highlights the resultant lack of uniform rules for the arms trade with non-Member States. This has implications for the EDAP, which is predicated on promoting joint arms production. Member States that wish to jointly produce weapons must agree on the potential sale of those arms to countries outside the EU. But Member States presently 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 efforts buyers must make to minimize civilian casualties. The lack of uniformity in arms controls thus undermines security of supply and threatens the core values that the EU is obliged to pursue under the EU Treaties. Frictions could be reduced by partly regulating arms controls through the Common Commercial Policy (CCP), which would better align arms controls with the EU’s competence ordering principles. The European Commission’s defence subsidises focus on ad hoc projects by coalitions of Member States. In part, these subsidies should have been implemented by the European Defence Agency instead. Furthermore, the subsidies are drawn from the EU budget to which all Member States contribute. However, the weapon systems developed do not necessarily benefit collective security. Firstly because of the aforementioned issue of arms controls. Secondly because a truly collective security vision is lacking. The European Council wants the EU to attain strategic autonomy in defence, but this objective remains insufficiently operationalised. The European Commission’s subsidy programmes – which are intended to support strategic autonomy – thereby lack guidance. The dissertation concludes that it is imperative for the EU to clarify its strategic ambitions and revise its arms trade rules. Only then can the EU work towards an integrated defence industry that supports its goals and values.