Europe / European Union - Elcano Royal Institute empty_context Copyright (c), 2002-2018 Fundación Real Instituto Elcano Lotus Web Content Management <![CDATA[ Strategic autonomy in a new era: a Cold-War risk assessment of China’s involvement in the EU’s 5G networks ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari89-2019-armani-esteban-strategic-autonomy-new-era-cold-war-risk-assessment-china-involvement-eu-5g-networks 2019-08-06T10:28:56Z

This paper suggests studying the relations between the EU and China through a Cold War analysis framework.

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Theme

This paper suggests studying the relations between the EU and China through a Cold War analysis framework. It challenges the assumption that the latter has become obsolete in an international system (re)shaped by interdependence. Rather, the Cold War experience can prove to be useful to determine the EU’s position within the emerging Sino-US duopoly and to assess the strategic implications of China’s engagement in the EU’s 5G networks.

Summary

China’s sustained rise and worldwide engagement has recently led to a redefinition of EU-China relations. Faced with an emerging Sino-US duopoly –combining top world economic, military and technological investments and capabilities– and with uncertainties related to Huawei’s involvement in 5G networks, the EU would be advised not to overlook the Cold War experience. This paper aims to highlight that asymmetric interdependence in the context of a shifting global economy, combined with the doubtful implications of cross-cultural interdependence in international relations, do not entail changes substantial enough to completely disregard a Cold War framework of analysis. Therefore, strategic caution is advisable, especially if 5G were to affect critical infrastructures. Although positioning between China and the US should not occur at the expense of economic relations or cooperation towards global common goods, it should also be emphasised that contrary to China, the US, forever an economic competitor, remains the EU’s long-term strategic partner.

Analysis

Introduction: the EU seeks its own path in a new era

The relations between the EU and the People’s Republic of China (PRC) have entered a new stage. After more than a decade of scrutiny and calls against China’s protectionist and unfair competition, and faced with its economic rise and increasing worldwide engagement, the EU finally seems to have started a redefinition of its relations with the PRC, no longer merely a developing country but an emerging global power. While half of the member states have endorsed the Belt and Road Initiative (BRI), there is also increased concern about China’s current and potential engagement within EU infrastructures and strategic sectors, as illustrated by the implementation of an EU screening mechanism of foreign direct investment. In this context, the European Commission has qualified the PRC as an economic partner but also an ‘economic competitor’ and ‘systemic rival’ –promoting alternative models of political, social and economic governance–.

5G and technology as a whole highlight that the EU not only faces a new framework of relations with China, but that globally it will have to position itself within an emerging new Sino-US duopoly, two economic, military, technological and geopolitical leading powers. This is the case regardless of the ups and downs in Sino-US rivalry such as the recent agreement on the sidelines of the G20 summit between Trump and Xi to restart trade talks.

It could be said that this is everything but a new Cold War, and that looking through outdated lenses is pointless, but the Cold War can certainly provide some very useful insights at a time of strategic choices and positioning in relation to both China and the US.

A Cold War spectre? Power politics resilience in an interdependent world

What made the Cold War a unique case was the global and multidimensional confrontation between two economically and ideologically antagonistic closed systems. The confrontation was limited through nuclear deterrence, making war itself ‘improbable [but] peace impossible’. The recent cooling of US-Chinese relations has fostered the revival and diffusion of the concept, raising a debate about whether they are heading towards a new Cold War or not. Critics point at unprecedent levels of interdependence, the absence of a critical military standoff, the existence of areas of common interest and a different distribution of power –multipolarity rather than a renewed bipolarity–. On the opposite side are an increased ideological competition between an illiberal authoritarian China and a liberal democracy, the continuity of irreconcilable ‘focal points’ such as Taiwan and the shaping of a bifurcated technological world.

Today, while China and the US appear to be ideological competitors, they share crucial economic ties and areas of cooperation. But are their differences likely to lead to a different competition framework? According to John Mearsheimer, what might actually occur is the very return of a Cold War structure of competition between two ‘bounded orders’ –US and China-led– within a ‘thin international order’ maintaining arms control and economic cooperation. US-China cooperation can be highlighted but it has recently suffered from several setbacks. The momentum fostered by the 2014 US-China Joint Announcement on Climate Change and the signing of the Paris Agreement in 2015 has ground to a halt due to Donald Trump’s backtracking and further cooperation might be jeopardised by current economic tensions. The same goes for higher education and academic cooperation, which the US has started targeting in order to prevent sensitive technology transfers: the duration of Chinese STEM graduate student’s visas has been limited while the US Department of Energy is seeking to cut interpersonal ties with Chinese public programmes. Cooperation in other areas, such as counter-terrorism, remains limited. In its day, Cold War fluctuations between heightened tensions and détente also provided opportunities for cooperation between the US and the Union of Soviet Socialist Republics (Soviet Union or USSR). In particular, the two countries managed to establish strategic and non-strategic arms-control agreements: the 1972 Strategic arms limitations talks (SALT 1) and the 1987 Intermediate-range nuclear forces (INF) Treaty. While limited, other examples include scientific cooperation, space cooperation, with the Apollo-Soyuz project that started in 1975, and environmental cooperation, with the signing of the Agreement on Cooperation in the field of environmental protection in 1972. Another major milestone was the Antarctic Treaty, signed in December 1959, which demilitarised the continent, suspended territorial claims and paved the way for free and public scientific investigation.

It is also interesting to note that ideological factors might be emphasised in the case of the Soviet Union, yet, except in discourses and perhaps the initial stages of the Cold War, ideology did not prevent it from being a rational actor. Of course, Communism’s power of appeal may appear to be greater than China’s ‘Authoritarian capitalism’, but, to date, the latter still represents a viable alternative to Liberal Democracy. China’s model may not be ‘exportable’ but the country can still foster authoritarianism worldwide by providing a ‘legitimate’ alternative model of development and through direct institutional and economic assistance. Moreover, the appeal of the ‘Chinese model’ (with the prospects of fast economic growth, technological upgrading and poverty reduction) may be further strengthened if China were to successfully overcome the middle-income trap thanks to new drivers of growth. As Francis Fukuyama himself foresaw (even though he was thinking about Russia), China is far from turning into a liberal society. There is almost a consensus that China deeply differed from the USSR when it chose to open its economy. But China’s ‘Socialism with Chinese characteristics’ and Authoritarian Capitalism still constrain economic liberalisation while perpetuating protectionism and a statist economic approach. Market features remain secondary, with limited economic liberalisation and openness being subordinate to state planning. And this is not expected to change, since state control is not simply an economic model but also a necessary tool for the Communist Party of China (CPC) to monitor socioeconomic development, its main source of legitimacy. Further marketisation would deprive the CPC of crucial economic levers allowing it to exert a tight control on the course of the Chinese economy. China did not abandon state planning and neither did it turn away from the heavy industry that boosted its development in the 2000s. And it might not have been much more pragmatic than the USRR. The latter was aware of the importance of light industry and a diversified economy, but institutional and structural factors together with its geopolitical competition with the US led soviet leaders to prioritise fast-growing and geopolitically significant sectors, mainly heavy and military industry. Heavy industry provided sustained growth until the 1970s, before economic imbalances led the soviet economy to stagnation. On the other hand, China benefited from a US-led rapprochement –a way to weaken the communist block– but the focus on fast and sustained growth led China to experience similar social, environmental and organisational drawbacks, compounded by institutional factors. For China is not that much different from the USSR in that respect. Although it economically reframed socialist ideology, a main priority remains the continuity of the Communist Party of China. Economic growth, social stability and environmental sustainability are not considered per se, but are mediated through the interests of the ruling party.

What may prove crucial is the issue of interdependence –furthermore, between different ‘cultures’–, although this assumption might not entail fundamental differences. Take as an example the contemporary World Order envisioned by Henry Kissinger. Although acknowledging the multiplicity of conceptions of world orders, the analysis still revolves about the interaction between power and legitimacy, advocating the continued relevance of a classic Balance of Power. Henry Kissinger’s analysis in the old and the new era leads to similar recommendations, highlighting that the integration of historical and cultural differences in international relations do not translate into structurally different parameters. Although such an analysis remains enshrined in realism (and does not exhaust all international relations theory), it still offers a hint that the rules of the game do not radically differ from the past. And they are less likely to do so as both the US and China indeed embrace a realistic vision. Furthermore, cultural differences should not be overestimated and they might not induce greater challenges than Cold War ideological and strategical differences did. Among others, views that China’s international relations differ in the absence of an imperialist record or on the ground of alternative world visions like Tianxia are likely to have a limited relevance. On the one hand, China’s history is far from peaceful. Despite the literature on the ‘demilitarisation’ of Chinese history –no less for ideological than for political reasons– intra and inter-state conflict has occurred since Huaxia territorial consolidation. On the other hand, Tianxia is not only an idealised version of a harmonious past and a benevolent China, but also an ill-suited one to analyse current international relations and China’s foreign policy. Plus, imperial and transcendental concepts are not specific to China or Chinese culture. Excluding merely expansionist nation-states, such as the Portuguese, Spanish, Dutch, French and British colonial empires, other historical European and Mediterranean empires, including the Roman Empire, the Holy Roman Empire and the Ottoman Empire, offer similar hierarchical, transcendental and universal views of the international order. On a more contemporaneous note, whatever cultural-induced misunderstanding there might be, they should not conceal the crucial strategic differences faced during the Cold War between the two superpowers on matters as crucial as nuclear deterrence and the use of military power.

Yet it is undeniable that economic-led interdependence establishes a rather different framework than the Cold War. However, the underlying assumption that interdependence rules out a Cold-War analysis should be carefully scrutinised, in order not to replicate the failure and disillusions of liberal theories and beliefs that China’s economic and institutional integration would ‘inevitably’ turn it into a liberal democracy. The issue is that if there is interdependence, it remains uneven and asymmetrical, both structurally and on a sectoral basis. Commercial trade imbalances, or China’s nascent technological leadership, may actually lead to tensions, with a narrowing technology and financial gap between China and the West jeopardising the latter’s position within the global economy. Global interdependence has indeed been a relatively alien feature during the Cold War era, but not in the context of European and World history. At the opening of the 20th century Europe witnessed multidimensional interdependence, with levels of financial integration, trade openness and labour migration as high as those of the 1980s. This did not prevent it from escalating into war. The peace factor in interdependence should not be taken for granted or, for that matter, its continuity. The current US-China trade might entail a reduction of interdependence between the two economies, if not a ‘bipolarisation of globalisation’. Measures like Huawei’s trade ban may very well turn dependency into vulnerability and prompt China’s leaders to seek self-reliance in innovation and digital technologies through protectionist policies. Although this is nowhere near advocating geopolitical confrontation, a peaceful resolution and cooperation must be promoted. There is no doubt that shared economic development and a safe and secure future for the coming generations are far more important issues than great-power competition, especially while climate change threatens to disrupt mankind’s environment. Nevertheless, it is worth noting that the Cold War preserved a shaky stability and prevent global confrontation through nuclear deterrence. The period also managed to accommodate state interests to address what was then the main existential threat to the world: nuclear-weapon proliferation. The need for a multilateral response to address a global issue was successfully acknowledged and built around the near universal Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Despite significant failures, mainly the absence of endorsement by India, Israel, Pakistan and North Korea, the agreement thrived to become a ‘highly developed example of International Law’. It could very well be a template for the global climate regime after the US withdrawal from the Paris agreement and the difficulty in managing core economic and strategic state self-interests.

Cold War lessons for the EU: 5G strategic risks and indirect coercion

From a European perspective, EU-China relations offer a different outlook from the Cold War’s East-West antagonism. During the latter, the USSR posed a major threat to Western Europe, which faced the risk of direct military confrontation and periodic fears of both soviet conventional and nuclear superiority, as during the 1977-82 ‘Euromissile crisis’. Moreover, the Soviet Union also threatened European colonial interests as it opposed them and assisted insurgent liberation and communist movements. To date, this is not the case with China. The ‘China threat’ is unevenly distributed across the EU –absent in Greece while relatively salient in Germany– and it remains secondary, framed in economic terms and far beyond the concerns raised by jihadism, an assertive Russia, climate change or even US power and influence. Economic divergences are also significant. Despite protectionist policies and a lack of reciprocal market access, China remains a major trading partner and a ‘strategic market’ for the EU –an inexistent prospect in the case of the USSR– even if the ‘balance of challenges and [economic] opportunities… has [recently] shifted’. Yet, if not perfect, the Cold-War analogy should be considered as a useful framework of analysis to assess and address the current challenges, all the more because Europe is faced with the preservation of its social, environmental and political model, which calls for careful strategic action. Therefore, what lessons can be drawn from the Cold War confrontation?

More specifically, what can the Cold War teach about the strategic implications of China’s potential engagement in the EU’s critical infrastructures, and how should the EU seek strategic autonomy within the Sino-US duopoly? The US has frequently highlighted the risks of Huawei’s involvement in its allies’ infrastructures, without clear supporting evidence but going so far as to issue blackmail-like statements directed against some allies, such as Italy. Why have Huawei’s 5G capabilities become such an issue? First, because 5G is expected to penetrate a wide range of economic and social sectors –many of them of strategic value– and to bolster the development of industry 4.0. This has been due to enhanced connectivity capabilities and network latency for data-intensive and quasi-real-time applications, making it a critical infrastructure in itself, central to the economic competition between China, the EU and the US. Secondly, because of the feared potential risks of collusion between Huawei and the CPC –Huawei’s ownership structure and China’s institutional framework suggest indirect control by the CPC– and the facilitation of Chinese espionage and acts of sabotage. Despite the absence of public evidence that Huawei is installing back doors in its network architecture, concerns arise from ‘technological known unknowns’ and the difficulty of detecting –and addressing– illegitimate data flows. The 5th Annual report by Huawei’s cyber security evaluation centre notes ‘significant risks’ for UK operators while only providing ‘limited assurance’ that the risks raised by already deployed Huawei equipment can be managed. Espionage appears as a mainstream issue but increasing sabotage capabilities would be a different matter. It would be tempting to be reassured by China’s apparent unwillingness to engage in acts of war or equivalent acts. Yet the Cold War shows that the absence of ‘war’ or direct confrontation does not entail an absence of power politics and indirect coercion.

The Cold War was not a direct war between the US and the USSR. Conflicts were limited to proxy wars despite several occasions of the risk of a real war breaking out between the two superpowers. But it was still a Clausewitzian duel between two contenders or a war through means other than direct confrontation, where power politics were partly channelled through nuclear deterrence and military power not only threatened a direct attack but also political blackmail. So even in the absence of a direct war, it was still possible to coerce or gain compliance by using state power. Technology might entail the same logic. Foreign involvement in strategic sectors might pose the risk of the disruption of crucial infrastructures threatening state integrity. It should be pointed out that the latter is the main concern of nuclear doctrines around the globe. The 2014 military doctrine of the Russian Federation maintains a lowered threshold to deter conventional aggression, putting ‘the very existence of the State in jeopardy’. Official Pakistani statements suggest that the country’s nuclear deterrence covers not only conventional aggression but also economic ‘strangulation’ and the disruption of major lines of communication. These examples show that nuclear doctrines encompass security threats of a nature different to the nuclear threat itself, but considered significant from a state security perspective. Technological disruption might be one of these. As a nuclear power, China still lags behind Russia and the US despite a renewed process of nuclear modernisation. China’s nuclear arsenal remains smaller and the country still has to consolidate its second-strike capability. A secondary factor of China’s assertive posture in the South China Sea may be the need for a safe maritime access for its Jin Class/Type 094 nuclear powered ballistic-missile submarines. Hence China’s reaction against US surveillance activities and its deployment in the South China Sea. But China’s deep access to Western infrastructures would be a game changer, offering an indirect non-military but potentially militarised way to threaten core state infrastructure and disrupt military capabilities. This would be a very complex scenario –adding technological deterrents to conventional and nuclear ones– better avoided.

In a new international panorama shaped by the Sino-US duopoly, the EU will not only have to position itself vis-à-vis China, but also the US. The latter now faces a renewed ‘sputnik’ moment with China, adding pressure on the EU to position itself between the two contenders. Mainly, the US has catalysed economic tensions with China, leading to a sort of commercial war. While this move is indeed a way to tackle economic imbalances, it also shows several limitations and adds to recent shortcomings in the US’s new diplomacy, pushing its allies to the edge, such as: the official recognition of Jerusalem as Israel’s capital, jeopardising Middle-Eastern stability, the implementation of new extraterritorial sanctions, the undermining of the EU’s political and economic interests in Iran and Cuba and action against Central American populations. There is also a significantly apparent disregard for multilateralism, ranging from the US withdrawal from the Paris Agreement, the INF nuclear treaty, and the Iran Nuclear Deal, to criticism of NATO and the WTO. Nevertheless, this scenario of uncertainty should not entail a similar assessment of the US and China at time when the EU finds its strategic position and continues on its quest for strategic autonomy. The latter might be the ideal outcome but significant issues remain, including how to develop it and what to do meanwhile, as it is a goal that will not be reached in the foreseeable future.

Despite the EU’s awareness that 5G is an issue of strategic autonomy and that there are viable European alternatives to Huawei and US operators, mainly Erikson and Nokia. But without addressing market and regulatory fragmentation and with insufficient levels of investment, the EU runs the risk of falling into a trap and lagging behind the Sino-US duopoly. This, again, is nothing new from a European perspective. Back in the 1950s, amid the nuclear competition between the US and Soviet superpowers, military nuclear capabilities were considered a necessity to ensure strategic autonomy. Both the UK and France achieved their objective through divergent courses of action. The UK chose to jump on the US bandwagon, which quickly provided it with nuclear capabilities at the expense of real strategic autonomy. Initially, France had to face an uncooperative US, as the latter did not favour European strategic autonomy, as it does not now, until geopolitics led it to revise its position. Back in the 50s, the US opposed cooperation on nuclear technology, restricted by the Atomic Energy Act and political and administrative reluctance. The French decision to develop a fully independent nuclear force worsened the prospects for cooperation until 1970, when President Richard Nixon and National Security Adviser Henry Kissinger reversed the US position on the assumption –and understanding– that enhanced French nuclear capabilities strengthened the US strategic position itself. Subsequent US assistance encompassed the design of thermonuclear weapons and the development of French MIRved missiles M4. No matter the path, both countries strategically sided with the US, targeting the USSR as their main threat.

Between then and now, two crucial differences remain between the US, the USSR and China. First, the US and the EU shared a broad consensus on how to manage economic competition; neither the USSR nor China shared that consensus. This is not going to change in the foreseeable future as China embraces state capitalism. Moreover, the US is, and always has been the EU’s economic competitors but not a strategic rival. After a period of generous support for reconstruction, motivated by US strategic interests, the US and the EU, like Japan, again became economic competitors during the Cold War but remained strategic allies. That cannot be said about China, despite the so-called ‘Comprehensive Strategic Partnership’ announced between the EU and China in 2003. The EU shares more common interests with the US than with China, particularly given their similar political systems and values. On the other hand, China’s illiberal political system, associated with uncertainties regarding China’s ambitions, nurture strategic mistrust. Opposition to China extends to the economic field and its model of statist capitalism, contrary to the principles of a market economy, free trade and public procurement. Last but not least, the US is the EU’s defence partner and ally, while the EU engages in a very limited defence and security cooperation with China. Cooperation prospects face several challenges, including the legacy of the Tiananmen repression and the subsequent European arms embargo against the PRC, and divergent threat perceptions and responses to common security concerns, such as cybersecurity.

Conclusions

The redefinition of EU-China relations is taking place within an emerging Sino-American duopoly that raises renewed security and technological challenges and highlights the issue of the EU’s strategic autonomy. The onset of a US-China commercial war, technological competition and ideological opposition, together with uncertainties regarding global economic interdependence, call for a meaningful recourse to a Cold-War analysis framework. The latter should help to simultaneously grasp both an emerging pattern of bipolar competition and the need for international cooperation to address common challenges and preserve common goods. EU-China relations do indeed offer a different pattern to Western Europe-USSR relations, yet a Cold-War analysis framework would help to cautiously assess current strategic issues, mainly China’s involvement in EU’s 5G telecommunications networks, highlighting the risks of political and technological blackmail that threatens the EU’s interests. The upcoming common EU approach to the security of 5G networks should take this into account.

Therefore, faced with the prospect of a difficult positioning between China and the US, the EU would be well advised to remember its privileged ties with the latter, an ally with whom it shares fundamental political and economic similarities that are absent in EU-China relations. Both the EU and the US share common political systems and values, a strong and long-term security partnership, and similar economic perspectives at odds with China’s political and economic model. This is not to imply that the EU and the US share the same strategic goals and interests, nor that Europe can blindly rely on the US for its security and should sever its economic links with China. This is not about securitising the EU’s economic relationship with China but about drawing attention to the strategic challenges posed by some of its dimensions and the costs that European citizens might have to face in order to overcome these challenges. How much money should the EU spend –o be willing to spend– to guarantee the security of critical infrastructures such as 5G networks?

Mario Esteban
Senior analyst at the Elcano Royal Institute and lecturer at the Autonomous University of Madrid
| @wizma9

Ugo Armanini
Research assistant at the Elcano Royal Institute

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<![CDATA[ A strategic look at the position of High Representative and Commission Vice-President ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari88-2019-molina-simon-strategic-look-position-high-representative-commission-vice-president 2019-08-05T11:11:56Z

What is the potential, and which are the shortcomings and possible ways of strengthening the post of High Representative for Foreign Affairs (and Vice-President of the European Commission) in order to improve the efficiency and standing of the EU as a global player?

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Original version in Spanish: Una mirada estratégica al puesto de alto representante y vicepresidente de la Comisión

Theme1

What is the potential, and which are the shortcomings and possible ways of strengthening the post of High Representative for Foreign Affairs (and Vice-President of the European Commission) in order to improve the efficiency and standing of the EU as a global player?

Summary

Ten years have passed since the creation of the post of High Representative for Foreign Affairs and Security Policy, the holder of which also acts as Vice-President of the Commission. It was –and remains– an office with great potential for providing Europe with more cohesion, efficiency and influence, both among its neighbours and on the global stage. There have been major achievements in the intervening period, but the three goals established when the post was designed are yet far from being attained. There are still: (a) shortcomings in the coordination of the various foreign policy dimensions undertaken by the EU as an organisation; (b) numerous instances of fragmentation between the latter and individual member states’ diplomatic efforts that hamper the business of speaking with a single voice in the world; and, in turn, (c) a limited capacity for inserting the EU effectively into an increasingly competitive and fraught international context, thereby revealing the shortcomings of a European foreign policy model that continues to focus on multilateralism and soft power. To help Europe respond to this threefold challenge it would be convenient to rethink and bolster the post of High Representative. The content and importance of the post are not predetermined, since they depend on two factors: (a) the specific powers assigned to it in relation to the other portfolios in the Commission; and (b) the specific personal influence of the individual who holds it. There is a degree of consensus that neither of its first two occupants were as effective as might have been wished on either count, thereby weakening the EU’s external action.

The proposal offered here involves taking advantage of the high political profile of the person nominated to be the High Representative for the 2019-24 legislative term, Josep Borrell, and to combine it with a broadening of his responsibilities as Vice-President of the Commission (as well as some suggestions for improvements in the common foreign and security policy domain). To secure this, now is the time to strike a sort of grand deal whereby the High Representative would refrain from vying with the future President of the Commission over who has the authority to take the initiative on common policies of international scope and, in exchange, obtain new powers over these and the resources allocated to them. It would be a matter of, in those key foreign policy areas where the commissioners have been acting unconnectedly from the High Representative, starting to accept the coordination of the latter (for example, trade and the foreign dimensions of immigration, climate and technology) and in other areas even taking on direct supervision (development, humanitarian aid and defence). In a world where the great powers combine these activities with strategic logic and foreign policy, the EU cannot hope to present itself as a global actor unless it can ensure coherence across its diplomatic efforts, cooperation, trade, progress in security (where the recently launched European Defence Fund stands out) and the foreign dimension of innovation and migration policies.

Analysis

Since the end of the Cold War, the EU has taken three strategic lines of approach to further its aspiration of gaining global relevance: (a) pursuing its own foreign policy, one that properly connects the international dimension of the so-called EU pillar –where the Commission takes the lead– with the domain of intergovernmental cooperation on diplomatic and military issues known as the Common Foreign and Security Policy (CFSP), overseen by the Council; (b) subsuming under a single position (and, if applicable, a single joint course of action too) all the member states’ individual positions; and (c) convincing the international community that, despite its obvious idiosyncrasies that differentiate it from a state, the EU is a good deal more than a run-of-the-mill international organisation and, therefore, may be accepted as a participant comparable on certain occasions to the great world powers.

Only the first of these three major goals is the exclusive responsibility of the EU, because the second requires the cooperation of 28 national capitals, while the third relies on the acquiescence of almost 200 sovereign states. Not surprisingly, the progress that has been made over the years is directly proportionate to this scale of difficulty. Indeed, despite the persistent shortcomings that will be examined in more detail below, significant advances have been made in recent years to ensure that the EU’s foreign policy as such is better coordinated internally and more active. Considerable headway has also been made in terms of ensuring that the member states and the joint institutions act together (climate change, the agreement with Iran and even sanctions against Russia, to name a few cases in point), although there are still many issues where there is either no unanimity (Israel, the status of Kosovo, recognition of the opposition in Venezuela, etc.) or the loudest European voice does not emanate from Brussels but rather Paris, London or Berlin. Lastly, there is still a very long way to go before securing the third goal, that of ensuring that the EU is viewed as a power capable of shaping international politics. Here it is not simply the fact that there are both failures (the 2010 United Nations vote rejecting the idea of the EU speaking to the General Assembly) and successes (for example, the EU being granted full membership of the G7 and G20, and eventually, in May 2011, being allowed to address the UN General Assembly), but rather that the most recent trends in international relations follow a ‘neo-Westphalian’ line, which diverges from the approach hitherto favoured by the EU: one of multilateral governance, free trade and international law.2

So important is it for the EU to improve its role in this increasingly complex (and, in recent times, hostile) setting that it is here where efforts have been made to instigate the main substantive advance in the process towards integration. Following the Single European Act (1986), which ushered in the Internal Market, the Maastricht Treaty (1993), which launched the euro, and the Treaty of Amsterdam (1997), which paved the way to the freedom, security and justice area, the great policy contribution of the ill-fated Constitutional Treaty (2004), subsequently reflected in the Lisbon Treaty (2007), comprises external action. It is true that it has been done without the member states making explicit new transfers of sovereignty to the EU, even if the interesting provisions included regarding security and defence are developed, but the institutional innovations that came into force rather more than 10 years ago brought about a significant qualitative change in the vague power arrangements of the CFSP and the international perception of EU policies. The idea (the genesis of which goes back to the 2002 Convention on the Future of Europe) consisted of connecting the two spheres better and hence the decision to formally abandon the notion of pillars, providing the EU with a status as a single legal entity, creating a stable President of the European Council who would share the task of foreign representation with the Commission President and, above all, creating an authentic EU ‘Foreign Affairs Minister’.

Although the job title is different, just such a post has existed since 2009: the High Representative of the Union for Foreign Affairs and Security Policy, who also acts as the Vice-President of the Commission (HR/VP). It is a post that effectively amalgamates the duties discharged up to that point by three distinct offices: the High Representative for CFSP (which was created in 1999 and for 10 years was held by Javier Solana), the Commissioner for Foreign Relations and the rotating Presidency of the Council. But it was not simply a case of getting rid of the dysfunctional aspects of the old ‘Troika’ and uniting in a single figure the former ‘Mr CFSP’, the coordinator of the EU’s international policies in the Commission and the President of the Council in its Foreign Affairs configuration (separated in 2010 from the General Affairs Council, which would continue with a rotating six-monthly presidency). In addition, new competences were given to the HR/VP, notable among which were oversight of his own new and ambitious diplomatic corps, the capacity to initiate and implement CFSP matters and the responsibility of coordinating EU foreign policy as a whole through the strengthening of his status in the College of Commissioners by virtue of becoming its Vice-President.

Ten years have elapsed and, while it is possible to point to a range of achievements and an incipient positioning on the global stage of the EU in its own right, any assessment made of the post following the performance of its first two holders (Catherine Ashton and Federica Mogherini) reveals a mixed picture attributable to its rather low political profile and, above all, an inappropriate allocation of its responsibilities, particularly in terms of the coordination of the Commission’s foreign policy. This is why it makes sense to use Josep Borrell’s appointment as the new HR/VP by the European Council to revisit the enormous potential implicit in the post and to place it in the context of the ideas circulating at the heart of the institutions regarding how to deal with the way the office fits into the Commission. Moreover, the current juncture (with the organisational jigsaw of the College of Commissioners for the 2019-24 term still being decided) offers a unique window of opportunity, which can be seized to ensure that the post has a wider remit than it has hitherto enjoyed. As the only job on the Commission (apart from the presidency) to be underwritten by treaty and given that the appointment is made before the other commissioners, there is scope for political autonomy that should not be squandered if the goal is to provide the HR/VP with more resources in order to implement more effective foreign policies in an extremely complex context.

Indeed, the contemporary political landscape has become increasingly fraught, characterised by growing competition between the great powers. Specifically, the geopolitical rivalry between the US and China looks set to become the main focal point of international relations in the decades ahead. And episodes such as the recent tariff spat between the Trump Administration and the Xi Jinping regime in China and the US embargo on the Chinese tech company Huawei throw into sharp relief the close interdependence between different parts of political activity, namely trade policy, industrial and technology policy, and foreign and defence policy. If it is to navigate such a world, it is important that the EU understands each of these areas of competition not in isolation but rather within the framework of broader geostrategic competition, one that looks beyond the ‘trees’ of sectoral policies and sees the ‘wood’ of global competition. This demonstrates the need for greater integration of any EU policies with an international dimension, ideally under the coordination and supervision of the HR/VP. Meanwhile, an international context characterised by the growing geostrategic rivalry between large blocs further underlines the importance of such key EU policy areas as trade, technology, industry and defence not being determined solely by economic considerations, but that they should also be anchored in a strategic vision of foreign policy.

As mentioned above, the pertinent provision of the EU’s regulations since the Treaty of Lisbon came into effect states that the HR/VP shall conduct the CFSP and ensure the consistency of the Union’s external action.3 ‘External action’ is an extremely broad concept. It includes the CFSP, of course, covering diplomacy and issues related to security and defence (CSDP), but also common policies of an external nature such as trade, international cooperation and development, humanitarian aid, enlargement and neighbourhood policies. It should also include the important international aspects of many other policies such as those concerning migration, industry, economy, finance, digitalisation, energy, climate, environment, agriculture, fishing and justice. Bearing in mind the breadth of the EU’s action in its entirety, it is evident that in reality the CFSP constitutes a relatively small part of it.

The HR/VP is appointed by the European Council, by qualified majority voting, with the approval of the President of the Commission.4 His term of office may only be ended by the same procedure. This entails that, politically, the HR/VP is accountable in the first instance to the European Council and the President of the Commission. He is also accountable to the Foreign Affairs Council (which he also chairs) for all matters relating to the execution of the CFSP. The HR/VP has the right to make proposals for the CFSP and as Vice-President contributes to the Commission’s unique right of making proposals for EU policies. The European External Action Service (EEAS) assists the HR/VP in all his functions. Bearing all these factors in mind, it is clear that the treaties bestow a key role on the HR/VP, with the potential to be one of the most influential in the EU. He has ample autonomy, various special prerogatives (for example, the right to attend European Council meetings) and abundant administrative resources, notable among which is, of course, leadership of the EEAS, but also the fact that he can count on two Secretary-Generals (Commission and Council) and an 11-member cabinet, almost twice the size of the commissioners’ teams.5

The problem…

In practice, however, there is a certain perception that the HR/VP plays a somewhat representative and diplomatic role, lacking real power. There are two main reasons for this. The first is the lack of the CFSP’s effectiveness, attributable to such deep-seated problems as the complex decision-making structures, the requirement (and culture) of unanimity in the Council, the strategic differences between member states and the major capitals’ persistent habit of prioritising their role over that of the EU in many instances. Ten years after the Treaty of Lisbon came into force, Foreign Affairs Ministers still jealously guard their exclusive responsibility for foreign policy and tend to view themselves as principals and the HR as an agent. Nor did it help that the coming into force of the Treaty of Lisbon, the main substantial innovation of which was the commitment to a more effective and proactive European foreign policy, coincided with five years of severe economic crisis, which diverted resources and political will to tackle other emergencies.

The second problem, already alluded to, is the insufficient use of the vice-presidential role in the European Commission. Indeed, since the creation of the post in 2010, various of the basic principles mentioned above have been neglected. The first HR/VP (2010-14) devoted her term in office almost exclusively to the CFSP and setting up a diplomatic service as complex as the EEAS from scratch, leaving to one side her role in the common policies overseen by the Commission. The second HR/VP (2014-19) sought to exercise her vice-presidential function better, and certain steps were taken in this regard at the beginning of her term in office,6 paving the way to rather more influence over common policies of a foreign nature –except trade– but with very limited say on the international dimension of the EU’s internal policies. At any event, she continued to maintain a distant relationship with the rest of the Commission, with a certain lack of acceptance of her (and the EEAS’s) authority at the heart of the institution, and in consequence a prioritisation of the CFSP. The result is that in many of the large political dossiers the Commission frequently side-lined the HR/VP and awarded the visibility and credit to other members of the College,7 thereby contributing to the perception of the post’s lack of influence.

… and the solution

The 2019-24 Strategic Agenda approved by the European Council prioritises ‘promoting European interests and values on a global stage’ and to this end being ‘more determined and effective in exerting our influence… giving a clearer priority to European economic, political and security interests, leveraging all policies to that end’. This constitutes the first political framework in the new institutional cycle for embarking upon wide-reaching reform, constructed on a twofold foundation: (1) enhancing the stature of the HR as the VP of the Commission; and (2) improving the way the CFSP operates.

(1) Enhancing the stature of the HR as the VP of the Commission

The priority should be to maximise the potential of the HR’s role as the Vice-President of the Commission. To do this, it is necessary to have an agreement from the outset between the HR/VP and the Commission President, who has ample powers to organise the structure and working methods of the institution. This agreement should be based on a sort of grand bargain, whereby the HR/VP would more explicitly accept his place in the strategic initiative and the hierarchical authority of his superior in the Commission on a day-to-day basis, including the work of the EEAS. In exchange for this, the President would agree to establish more explicitly the HR/VP’s responsibility for coordination in the realm of the Commission’s foreign competences and in the foreign aspects of the EU’s internal policies, placing at his disposal the services and structures necessary for wielding such authority effectively, including access to the Secretary-General of the Commission.8 While this grand bargain would not affect the autonomy of the HR/VP or his special relationship with the Council and the European Council in terms of CFSP and CSDP matters, it would lay the foundations for greater input from the Commission on such questions, thereby underpinning the EU’s overall cohesion as an international player.

To bring about this change in the organisational structure it would be worth considering the possibility of creating geographically-focused commissioners for external action, under the hierarchy of the HR/VP and replacing the current thematic posts (enlargement and neighbourhood, development and humanitarian aid).9 The HR/VP would coordinate their work through project groups, based on the current Commissioners’ Group on External Action but with more flexibility and access to internal policies, given that all Commissioners would have as part of their formal mission the responsibility to coordinate their external action with the HR/VP. 10 At the administrative level, the geographical commissioners would be supported not only by the Secretary-General but also working groups coordinated by the EEAS where all the pertinent directorates-general would be included.11

This model would ensure the HR/VP’s overall control and coordination role, while removing the burden of travel and management (whether involving attendance at high-level meetings or crisis management), enabling him to focus on strategic dossiers and reduce non-attendance of meetings of the College of Commissioners to a minimum.12 The HR/VP would effectively have the power to oversee all the EU’s policies with an international dimension, facilitating the creation of ‘incentive packages’, by being able to use in a coherent manner the entire arsenal of diplomatic, economic and other resources (visas, for example) that may be deployed to attain the EU’s goals and interests in non-member countries.

In the realm of defence, the HR/VP would be responsible not only for the CSDP (and the Military Committee, which is in charge of all the EU’s military missions) but also all the other defence-related policies pursued by the Commission. These policies (such as the European Defence Fund and the Military Mobility policy) fall within the remit of other commissioners, under the Vice-President for Industry Katainen. This is an especially important point, since one of the major threats to the EU’s defence is the lack of connection between the its technological-industrial arm and its political-strategic arm. This was brought to the fore when the Commission launched the European Defence Fund, which is set to spend €13 billion between 2021 and 2027 on supporting research projects in the defence domain and co-funding capabilities.13 This initiative has revitalised the debate about defence in Europe after years of lethargy. By way of illustration, the money the Commission expects to spend on funding defence research is greater than that earmarked by most member states (with the sole exception of France and Germany). This means that virtually all of them will start to structure their defence R&D policy around the Commission’s European Defence Fund. It is important to ensure, however, that the Fund pursues a strategic and not an exclusively industrial or economic approach.

It is true that the EEAS has launched a series of initiatives in recent years geared towards establishing a political-strategic framework that would provide a foundation to the European Defence Fund. Specifically, Permanent Structured Cooperation (PESCO) and the Coordinated Annual Review on Defence (CARD) seek to set the parameters of Europe’s strategic ambition and stimulate cooperation processes that equip European countries with the capabilities and structures needed to exercise greater strategic autonomy.14 Such initiatives are of a markedly intergovernmental character however, and their scope raises serious questions, given the persistent discrepancies between member states on issues as fundamental as the role of force in international relations and the threats and geographical areas to be prioritised. Against this background, doubts emerge about the extent to which the Commission’s initiatives in the domain of defence industry policy are truly anchored in a strategic-political vision that is coherent and shared by all member states.

The possibility of setting up a Directorate General for Defence in the Commission (and even a Vice-President and Commissioner for Security and Defence) could aggravate this problem, inasmuch as it could pave the way to a situation of dual leadership, with one Vice-President and Commissioner in charge of the technological-industrial aspects of European defence, and another (the HR/VP) in charge of the political-strategic aspects, thereby creating a recipe for institutional rivalry and political disjointedness. The solution to this problem may involve the previously-mentioned grand bargain between the Commission President and the HR/VP, whereby the latter would submit to the political authority of the Commission in the area of defence industry policy in exchange for overseeing the management of the European Defence Fund, as well as the Commission services earmarked for managing it. It would be quite different if the potential new Commissioner for Security and Defence came clearly under the authority of the HR/VP because, in this case, he or she could even be considered to be an assistant high representative in charge of defence, space and cybersecurity, which would give the HR/VP additional oversight of significant budgetary allocations.15

As a quid pro quo, the HR/VP would need to accept the prospect of giving more space to the Commission, which would be unlikely to give the HR/VP access to its resources without getting something in exchange. Thus, for example, the HR/VP could consult the Commission and seek ratification for his proposals and initiatives prior to submitting them to the Council. In this way, such proposals would have the assurance of the full backing of the Commission and its resources, which in turn would strengthen the HR/VP’s position in the Council.

(2) Improving the way the CFSP operates

With all the developments set out in the preceding section, the HR/VP would underpin his coordination role in the Commission’s external action, but maintain his autonomy in the CFSP, the latter being something that is underwritten by the treaty. It is also necessary to carry out improvements within the domain of the CFSP, however. Solving the deep-seated problems here is an enormously complex challenge requiring profound and detailed reflection, including perhaps reform of the treaties. There are certain steps that the HR/VP could take almost immediately, however, within the prerogatives the treaty bestows upon him:

  • Designing a more functional Foreign Affairs Council. The Council’s agenda could be designed in such a way as to discourage grandiose theoretical debates and focus on practical questions of representation, use of financial instruments and other policies such as incentivisation, the planning of joint initiatives with and between member states, the coordination of multilateral negotiations and positions in international bodies, etc. Instead of rambling, inefficient conclusions, the HR/VP could put forward short, structured conclusions, separating declaratory parts from operational parts.
  • Encouraging the use of qualified majority voting in the CFSP. Invoking the ‘passerelle clause’ of the Treaty16 requires unanimity in the European Council and is, as things currently stand, totally unrealistic. There are, however, parts of the CFSP where qualified majority voting may be used without recourse to this clause, and there is an ever-growing number of capitals interested in extending its use. For example, the HR and the Commission could decide to structure the legal initiatives on sanctions in such a way that the decision to impose sanctions continues to be taken by unanimity, but the names of the people to be sanctioned and the specific economic measures are taken by qualified majority voting.17 In addition, the HR and the Commission could submit themed or regional strategies for the approval of the European Council, in accordance with TEU article 22.1. Once approved, all the Council’s decisions and positions within the framework of these strategies would be by qualified majority voting.18
  • Reforming the EEAS (which currently has some 140 delegations and some 5,600 bureaucrats) to encourage better administrative organisation and coordination, a less theoretical/academic and geographic approach and a more functional, thematic and horizontal orientation, better capacity for making use of the EU instruments in support of the CFSP, and a more coordinated and strategic use of the EU Delegations as sources of information and agents for the promotion of interests.
  • Encouraging coordination with member states’ embassies through the EU Delegations in third-party countries.

Conclusions

The post of High Representative and Vice-President of the Commission contains elements of immense value for advancing towards a European external action characterised by greater cohesion, visibility and influence. In its first 10 years of existence however, the holders of the position have largely wasted its potential. Expectations have been thwarted, partly because of problems inherent to the CFSP but above all because its first two holders were not capable of leveraging the rank and the coordinating functions implicit in the fact of also being Vice-President of the Commission. It is therefore a question of the future HR/VP being able to effectively manage and oversee the entire international dimension of the common policies and having access to the Commission’s financial instruments and services in key areas with a direct impact on his competences and power.

The treaties and organisational structure of the EU are sufficiently flexible to enable the HR/VP to have direct access to the Commission’s instruments. Ultimately this will depend on a political agreement with the new President, which ought to be concluded without delay, before she takes decisions about the structure of the various portfolios; these will create a series of faits accomplis and force the HR/VP into a defensive and reactive position.

If an appropriate arrangement of these coordinating functions is achieved, the 2019-24 legislative term currently getting under way will see not only an exponential increase in the influence of the HR/VP but it could also, much more importantly, have a simultaneous and positive impact on the three strategic goals of European external action set out at the start of this analysis: (1) a real (and not simply theoretical) use of the ‘two hats’ as Vice-President of the Commission and chair of the Council would almost automatically ensure the first goal of the EU itself being better coordinated; (2) greater cohesion between the external work undertaken by both institutions and improvements in the operations of an external service where EU bureaucrats and national diplomats coexist would help to generate dynamics of continuity and trust with the member states, which would reduce and, over the medium term, tend to eliminate the fragmentation of almost 30 foreign policies; and (3) this greater cohesion would bolster the efficacy and visibility of the EU as an international actor.

Ignacio Molina
Senior European Analyst, Elcano Royal Institute
| @_ignaciomolina

Luis Simón
Director of the Elcano Royal Institute’s Office in Brussels and Senior Analyst, Elcano Royal Institute
| @LuisSimn


1 The authors would like to express their gratitude for the very valuable contributions made to this text by three EU official who prefer to remain anonymous owing to their current responsibilities.

2 See L. Simón (2018), The Spectre of a Westphalian Europe, Whitehall Paper, nr 90, Routledge, Abingdon.

3 TEU Article 18.

4 Although the extraordinary European Council meeting of 2 July 2019 has nominated Josep Borrell as the next HR/VP, the official appointment has not yet taken place; this will only occur when the European Parliament gives its blessing to the appointment of the person proposed to preside over the Commission (in principle, the German politician Ursula von der Leyen) and subsequently ratifies the new College of Commissioners.

5 For the importance of having access to this wide-ranging team of cabinet members, see L. Simón, I. Molina, E. Lledó & N. Martín (2019), ‘Hacia un ecosistema de influencia española en Bruselas’, ARI nr 30/2019, Elcano Royal Institute.

6 Her office was relocated to the Berlaymont building, next to the other members of the Commission, and the Commissioners’ Group on External Action, chaired by the HR/VP, to coordinate foreign policies.

7 For example, the agreement with Turkey on migration (First Vice-President Timmermans), the Paris Agreement (Energy Commissioner Arias Cañete), the European Defence Fund (Vice-President Katainen) and the institutional agreement with Switzerland (Enlargement Commissioner Hahn).

8 Especially during the Juncker Commission, the Secretary-General of the Commission has been steadily acquiring power and today constitutes the single lever by which the activity of the entire institution can be controlled.

9 The Trade Commissioner would be retained in any event, owing to the exclusive nature of this post in the treaties. It is important however to emphasise the hybrid character of this portfolio (which above all affects foreign and industrial policy) and therefore to strengthen its links to the HR/VP. This could be achieved by, for example, making the HR/VP the (co-) chair of a project group on trade policy, replacing the current Commissioners’ Group on Trade and Globalisation.

10 Given that the HR/VP would not have the right to appoint or remove geographical commissioners, it would be important to create the necessary mechanisms to ensure that they would be subject to the HR/VP’s authority. One way, already mentioned, would involve creating transversal working groups with representatives from all the Directorates-General (DGs) that have responsibilities in each geographical region (for example, migration, energy, climate for Africa, etc.). This would involve the existing DGs and avoid creating a bureaucratically disruptive structure. Such working groups would be chaired by a geographical commissioner who would in turn come under the hierarchy of the HR/VP.

11 It is worth noting the risk that the creation of geographical commissioners could incur in terms of pigeonholing the UE’s foreign policy, particularly bearing in mind the existing connections between the major regions. In order to offset such risks, it would be necessary to ensure an oversight role for the HR/VP and to create the mechanisms needed to guarantee the geographical commissioners’ hierarchical inferiority to the HR/VP, whose responsibility it would be to ensure the cohesion of the EU’s external action.

12 Even if the replacement of thematic by geographical commissioners were not to take place (either because it is deemed inappropriate or the continued existence of International Cooperation and Development and Enlargement portfolios, in addition to the Trade portfolio, is deemed indispensable) the role could be created within the EEAS of four or five special envoys for the major regions, thereby reducing the travel burden on the HR/VP.

13 See Félix Arteaga & Luis Simón (2019), ‘El Fondo Europeo de Defensa y el futuro de la industria española’, Elcano Policy Paper, January.

14 Pedro Serrano (2019), ‘The bundle of sticks: a stronger European defence to face global challenges’, Working Paper, nr 03/2019, Elcano Royal Institute.

15 Moreover, greater cohesion between the Commission and the EEAS in the defence realm would facilitate the integration of the European Defence Agency (EDA) in the management of European Defence Fund projects, thereby ensuring a greater strategic orientation in the management of the Fund (given the experience of the EDA in this field) as well as greater overall cohesion in the EU’s defence policy.

16 TEU Article 31.3 permits the invocation of qualified majority voting in any part of the CFSP except military or defence decisions, if unanimously agreed by the European Council.

17 TEU Article 31.2, third paragraph.

18 TEU Article 31.2, first paragraph.

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<![CDATA[ Emerging security challenges in NATO’s southern neighbourhood ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari79-2019-lesser-emerging-security-challenges-natos-southern-neighbourhood 2019-07-03T10:22:24Z

NATO has always had a southern exposure. Today’s strategic environment provides a new context for this traditional question, but also raises fundamental questions of geography, alliance politics and a shared approach to risks.

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Theme

NATO confronts an increasingly complex and risk-prone environment. A more assertive Russia poses specific challenges and the Alliance has made headway in addressing risks emanating from the east. NATO has been less explicit in addressing risks emanating from the Mediterranean and from the ‘south’ more generally. These risks are real and will make new demands on Alliance strategy in the years ahead.

Summary

NATO has always had a southern exposure. Since the early years of the Alliance, the question of how to understand and address challenges emanating from the Mediterranean and beyond has been on the NATO agenda in political and security terms. Today’s strategic environment provides a new context for this traditional question, but also raises fundamental questions of geography, alliance politics and a shared approach to risks. Transatlantic relations and NATO burden-sharing will be elements in the equation as NATO looks south.

Analysis

The definition of the southern limits of the NATO area of responsibility was a key political issue when Algeria was still part of France and other members retained colonies in Africa and elsewhere. The earliest NATO enlargements were southbound, with Greece and Turkey. During the Cold War, the East-West military balance had a distinct southern dimension, alongside more focused threats on the northern and central flanks. But despite the considerable military assets and infrastructure deployed across NATO’s southern region, the Mediterranean remained a secondary concern in Alliance strategy. The defence of Frankfurt and Athens were never really equivalent strategic priorities. Even after the collapse of the Soviet Union, challenges in the south were seen as local concerns, or linked to broader questions of global strategy, of interest largely to the US. The experience of two Gulf Wars reinforced this perception, with NATO’s south serving, above all, as a logistical link to the Gulf. Formal NATO strategy continued –and continues– to treat Mediterranean challenges as a fully equivalent part of collective defence. But Alliance politics and the wider strategic debate are another matter.

Today, strategy looking south is experiencing a renaissance. Terrorism is a key part of the equation in both public and elite perception, and this concern is hardly limited to NATO’s southern members. Power projection and crisis management in the face of a very unstable security environment from North Africa to the Levant is another key element. Unease over migration pressures and hard and soft security challenges emanating from the global south are also driving the debate. Yet the sheer scale of the relevant geography, the diversity of risks and their diffuse character, and strategic distractions elsewhere continue to complicate Alliance thinking about the security environment across the ‘southern neighbourhood’ and how to address it.

What south?

The contemporary question of NATO’s southern strategy has provoked a fundamental debate over what, precisely, is meant by the ‘south’. The Mediterranean is the undeniable centre of gravity in this context. Developments across the Mediterranean space, at sea and ashore, touch directly on the security interests of the Alliance as a whole. NATO has a well-established partnership programme, the Mediterranean Dialogue, embracing North Africa and the Levant.1 This initiative, celebrating its 25th anniversary in 2019, has evolved significantly over time. It has acquired a more practical orientation with the broad aim of capacity building and encouraging a shared security culture around the Mediterranean. It remains a vehicle for multilateral discussions in a setting that allows for few interactions between, for instance, Israel and the Arab states, or Morocco and Algeria. It could be even more active in this context if political conditions were more permissive.2 The inclusion of Mauritania appears much less eccentric today against the backdrop of mounting security challenges emanating from the Sahel.

But it is increasingly clear that effective consideration of NATO strategy looking south cannot stop at the Mediterranean and its immediate hinterlands. NATO’s southern exposure has broadened in political and practical terms. Beyond the Maghreb, Africa as a whole is now part of the strategic equation and is set to become even more important over time. Migration, spill-overs of terrorism and illicit flows of all kinds have made Africa an integral part of the European and transatlantic security calculus. The US, France and other NATO members now have a substantial military presence across the Sahel and West Africa. The latter is a growing focus of intelligence collection, surveillance and security partnerships. The deployment of new NATO assets, including Global Hawk drones based in Sicily, is clearly oriented towards risks emanating from this quarter. The enlargement of this security space implies closer cooperation with institutions such as the African Union (AU) and the G5-Sahel. Ultimately, countries such as Senegal, Nigeria and South Africa could be significant partners in NATO’s effort to ‘project security’ (a somewhat unfortunate term) southward.

The relevant geography for NATO is potentially even more far-reaching. Analysts and policymakers are focusing more directly on illicit flows around the Atlantic basin. Today, European and North American security interests are directly affected by the substantial flow of drugs and related trafficking from Latin America and the Caribbean across the Atlantic to West Africa, Cape Verde and northward to the Maghreb and across the Mediterranean. This phenomenon is an example of trans-national threat par excellence.

Taking this approach even further, the ‘south’ could imply all those challenges facing NATO outside the confrontation with Russia in the east. It could easily embrace the entire geography from West Africa and its Atlantic approaches to South and even South-East Asia. Afghanistan, the Horn of Africa and the Gulf are already part of this southern calculus given the counter-terrorism and maritime security missions in which NATO members have already been engaged. Ultimately, this outlook converges with the steadily growing pressure for the Alliance to address risks generated by the rise of China and instability in the Indo-Pacific. Clearly, there are limits to this immense enlargement of NATO’s operational space. Pressing defence requirements in Europe’s east and disillusionment with the mission in Afghanistan have reduced the appetite of allies for expeditionary strategies.

Operationally, there are obvious limits to NATO’s global engagement. But it is important to distinguish between the idea of NATO action in the global south and the role of the Alliance as a place where wider strategic concerns can be discussed and policies coordinated. In a political sense, NATO’s south can stretch as far as allies agree to take it.

Thinking beyond crisis management

The Alliance has more than enough to deal with even in a limited definition of the south. The range of potential contingencies and missions around the Mediterranean, Africa and the southern Atlantic is substantial. Many of these challenges are of an unconventional or irregular nature, or involve long term political, economic and environmental pressures. But there are also some tangible territorial threats. Turkey faces potential Article V-type contingencies on its eastern and southern borders, and an unstable balance with Russia in the Black Sea. Experience in Libya, Syria and elsewhere encourages a view of Mediterranean security as an ongoing exercise in crisis management. This may be an inadequate template for the future. There will surely be crises requiring a concerted response. Yet the weakening of states around the southern Mediterranean and the prospect of open-ended conflict in places like Libya, raises the spectre of something closer to sustained instability or durable chaos. The regime in Damascus may well be able to secure its position, but will Syria ever return to the pre-civil war status quo? There is a very real possibility that Syria and the Levant will remain unstable and prone to proxy wars for years to come.

A vision of southern security in which instability and conflict is not an aberration but the norm underscores the importance of missions beyond periodic crisis management. In addition to making risks more transparent through better air, maritime and cyber surveillance –current situational awareness–, the Alliance will need to build its capacity for warning. This implies better sharing of longer-term intelligence and analysis of over-the-horizon risks. The NATO Strategic Direction South Hub in Naples can be one vehicle for this task. But the real capacity for warning is likely to come from bringing together the assessments of Alliance members and partners across the south.

New actors, new stakes

At the risk of restating the obvious, the source of the challenge to NATO in the east is clear, even if the dimensions of the security problem are complex, ranging from the nuclear to the conventional, the irregular to the digital and, ultimately, the political. In the south, NATO confronts immense diversity across the spectrum of risk. There are flashpoints, but no clear centre of gravity in security terms.

One of the key developments across this vast space has been the emergence of new actors and the return of some old ones. Russia has a long history of involvement in Mediterranean affairs dating to Czarist times. During the Cold War, Soviet strategy emphasised the cultivation of security relationships around the Middle East and Africa, north and south. The Soviet navy maintained a meaningful presence in the Mediterranean, even with the limited infrastructure available ashore in such places as Syria and Algeria. This presence essentially evaporated for more than a decade following the collapse of the Soviet Union. But Russia is now back, politically and militarily. The Russian intervention in Syria is the most obvious facet of Moscow’s return, alongside a longstanding relationship with Algeria, activism in Libya and a revived security relationship with Egypt. Russia has remained an influential political actor from the Balkans to the Levant. Moscow’s relationship with Ankara has flourished even as Turkish-Western relations have deteriorated (the planned sale of the Russian S-400 air defence system to Turkey is now the central issue in a deeply troubled relationship between Washington and Ankara). In short, Russia is once again a political-military actor of some importance around the Mediterranean and beyond.

Russian activism bridges NATO’s eastern and southern concerns in some tangible ways, not least in terms of Black-Sea security. As in the Baltic, the growing friction between Russia and NATO has led to a heightened risk of military incidents in the Eastern Mediterranean and the Black Sea, where forces are operating in proximity. The current level of Russian engagement on NATO’s southern periphery may or may not be sustainable over the longer term. But, for the moment at least, Moscow is back.

A transatlantic debate

Emerging challenges and NATO strategy looking south take on special meaning in the context of the current transatlantic security debate. US engagement and transatlantic burden-sharing are likely to play out in distinctive ways on Europe’s southern periphery. As in Eastern Europe, fears of US disengagement across the region have so far proved to be exaggerated. Deterring and defending against a revived Russia –an existential issue for the Alliance in the East– can hardly be contemplated without US nuclear and conventional contributions. For all the sharp rhetoric around Washington’s pointed pursuit of rebalancing in European defence, the US security presence in Europe has increased in recent years. This is evident in the south, too, although the posture is clearly in flux (as seen in the rapid growth and equally rapid reduction in US forces deployed in West Africa and the Sahel). Washington remains a leading diplomatic and security actor from the Maghreb to the Indian Ocean, from the Black Sea to sub-Saharan Africa. To be sure, the US naval presence in the Mediterranean does not resemble its Cold War form, when the Sixth Fleet kept at least one carrier battle-group in the area. The current pattern was set during the wars in Iraq and Afghanistan, when European naval forces took over much of this Mediterranean role through NATO’s Operation Active Endeavour. But the US maintains substantial command, air and rapid deployment assets in and around the Mediterranean. The bulk of the ballistic missile defence capacity is afloat in the region.

The US presence in the south is, however, subject to uncertainty over time. A major crisis in Asia could draw substantial US attention and presence away from Europe’s southern periphery. Indeed, allies are already concerned about the durability of US engagement in the Middle East and North Africa. Persistent crises and calls for intervention in the region are unlikely to be well received by the Trump Administration –or by its possible successors–. The Sahel and the Balkans are already seen as areas for European security leadership. The US strategic class tends to see these as places Europe can reach and should be able to manage in security terms. Calls for European ‘strategic autonomy’ and new EU defence initiatives, if they amount to anything, should be felt first and foremost in the south where European allies already deploy significant forces. As an area where low-intensity maritime, humanitarian and counter-terrorism contingencies abound, this is a particularly promising theatre for NATO-EU cooperation. Operations in the south are also redefining US priorities for bilateral military cooperation in Europe. Today, France is arguably Washington’s leading security partner.

Conclusions

There is an evident asymmetry between the scale and character of NATO’s security challenges in the east and the south. But the Alliance politics in these settings is less clear-cut than is sometimes assumed. To be sure, NATO’s southern members are more inclined to focus on risks emanating from a wider south. Poland and the Baltic states have their own well-founded concerns. But beyond these obvious differences, security perspectives across the Alliance are more nuanced and complex. For most of Western Europe, the risk of terrorism and political violence emanating from the south trumps the fear of Russian aggression. Terrorism below the level of ‘super terrorism’ and uncontrolled migration –both emblematic of challenges emanating from the south– may not pose an existential threat in strict terms, but both can be politically existential for the societies affected.

Some southern members may be characterised as softer on Russia. Growing Russian activism around the Mediterranean, at odds with southern European interests in Libya and elsewhere, may lead to a hardening of attitudes over time. In short, geography may be a declining guide to strategic priorities in a time of trans-regional risks. The contours of the NATO debate about strategy south –a traditional issue in political and defence terms– are changing rapidly under pressure of emerging challenges and evolving ideas about what exactly is meant by the ‘south’. Whatever the geographic parameters, the weight of these southern challenges in Alliance planning is likely to increase as part of a broader, global rise in risk.

Dr Ian Lesser
Vice President of the German Marshall Fund of the United States (GMF) and Executive Director of GMF’s Brussels office | @ian_lesser


1 Founded in 1994, the Mediterranean Dialogue now includes Morocco, Algeria, Tunisia, Egypt, Jordan, Israel and Mauritania.

2 See Ian Lesser, Charlotte Brandsma, Laura Basagni & Bruno Lété (2018), The Future of NATO’s Mediterranean Dialogue: Perspectives on Security, Strategy and Partnership, The German Marshall Fund of the United States, May.

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<![CDATA[ The EU after the elections: a more plural Parliament and Council ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari76-2019-kaczynski-eu-after-elections-a-more-plural-parliament-and-council 2019-06-26T11:11:55Z

What is the new balance of power in the EU’s institutions following the May 2019 elections?

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Theme

What is the new balance of power in the EU’s institutions following the May 2019 elections?

Summary

The fallout of the May 2019 European elections is only just becoming visible. The European democracy is maturing and in the process many terms are being redefined. In this paper the author analyses the first weeks of European politics following the elections, particularly the higher degree of pluralism and politicisation of Europe’s institutions.

Analysis

The Europeans have spoken. George Soros, the embattled US-European businessman who has spent billions on pro-democracy projects across the continent, has summed it up best: ‘the silent pro-European majority has spoken’.1 What are the consequences of the end-of-May elections?

There are five top jobs to be filled in by the end of the year: Presidents of the European Commission, the European Council, the European Parliament and of the European Central Bank, as well as the High Representative for Foreign Affairs, are in the pool. The leaders in the European Council have decided to agree on them all in a single package that will reflect a variety of balances: geographical, political, institutional, of gender and of the size of member states. There are a number of names in circulation, including those of the Spitzenkandidaten process, especially of the two largest political families: Manfred Weber and Frans Timmermans, respectively the lead candidates of the European People’s Party (EPP) of the Socialists and Democrats (S&D).

Figure 1. Europe’s election results
Figure 1. Europe’s election results

The election results confirmed many expectations but also threw up a few major surprises. The most important was the improved turnout: some 220 million Europeans, 51% of all those eligible to vote, cast their ballots, the highest number in a generation and a clear sign that the European public is regaining its interest in European affairs.

The high turnout (up 8% since 2014) and the results suggest that the European leadership is regaining its democratic mandate after a number of national referendums in member states organised between 2015 and 2016. All of them –in Greece (on bailout in 2015), Denmark (on opt-outs, 2015), the Netherlands (on the EU-Ukraine trade agreement, 2016) and, most significantly, in the UK on Brexit in 2016– were failures from a European standpoint.

The first feature of the results is the end of the majority of the ‘grand coalition’ between the EPP and the S&D. Even if the political culture of the European Parliament is far more inclusive than in many EU member states dominated by the pro-government majority and opposition logic, the fact that the two largest political groups provided parliamentary stability in the Parliament was significant. Now, the two largest families have been joined by a third, liberal, group generated by a new large French contingent from President Emmanuel Macron’s party. Following its merger with Macron’s Republique en Marche the ALDE group has now even altered its name to Renew Europe (RE).

Seeking a new majority

The three political groups (EPP, S&D and RE) together could control the majority comfortably with around 440 MEPs. The same three political families also dominate the European Council. The three of them are virtually equal, as there is no majority in either of the institutions (Parliament and European Council) without one of them. Only together can they provide an effective functioning of the EU’s governance system.

However, the process of ‘leading candidates’ (Weber, Timmermans, and the liberals Margrethe Vestager and Guy Verhofstadt) pushes the current debate in quite a different direction. On the one hand there is a centre-left coalition ‘against Weber’, consisting of the social-democratic and liberal leaders in the European Council, most notably the French President Emmanuel Macron and the Spanish Prime Minister Pedro Sánchez.2 On the other hand, the German Chancellor Angela Merkel is firmly behind the EPP front candidate, also due to internal German politics, where the CSU outperformed in Bavaria and the CDU underperformed in the rest of the country. One politician said that the appointment of the Bavarian politician is of major significance to the CSU.3 Manfred Weber is working to build a coalition in his favour by extending his talks to the ECR leadership.

With the RE and the S&D claiming the support of the rest of the left-wing groups –the Greens and the GUE/NGL– against Weber, there is the smallest centre-left positive majority in the new Parliament (377 mandates). At the same time there is no majority with the EPP and ECR, even if the centrist group were to converge with it (353 mandates). This is when Weber might try to stretch his support by talking to the new far-right group largely comprised by MEPs elected in Italy (La Lega) and France (Rassemblement National). This, however, would be highly controversial amongst the more-centrist EPP as well as the RE, and hence unlikely.

The future of the EPP remains a mystery since the Hungarian governing party Fidesz, has been suspended due to its direct attacks against the group’s leadership during the European election campaign. Fidesz also stands accused of compromising European values, hence the suspension. Similar problems have arisen with Romania’s governing PSD, which is a member of the Social Democrats in the EU. The PSD leader Liviu Dragnea was recently jailed on corruption charges.4 The liberal Czech Prime Minister Andrej Babiš has also given rise to similar suspicions and there were recently a series of major rallies in Prague demanding his resignation.5

As of mid-June there are eight members of the European Council siding with the EPP (Germany, Bulgaria, Croatia, Cyprus, Hungary, Ireland, Latvia and Romania), six members with the S&D (Spain, Finland, Malta, Portugal, Slovakia and Sweden) and seven (France, Belgium, the Czech Republic, Estonia, Luxembourg, the Netherlands and Slovenia) affiliated with the Renew Europe group. The Austrian Chancellor is running a care-taker government. Following the Danish elections, the new Prime Minister Mette Frederiksen (S&D) shall replace the previous liberal PM in the European Council, most likely still in June. The Greek Prime Minister Alexis Tsipras is associated with GUE/NGL and announced snap elections for 7 July. The EPP is likely to pick up one seat in Athens. The Italian Prime Minister is not affiliated to any of the political families. The President of Lithuania, Dalia Grybauskaitė, an independent, will be replaced by a new leader in July, also non-partisan, Gitanas Nausėda. The Polish and British EUCO members are affiliated with the ECR.

It is very likely that by September there will be nine EPP members (+Greece), seven S&D members (+Denmark) and seven with Renew Europe. The majority in the European Council needed for the appointment of a new Commission President is 21.

Even if a centre-right or centre-left majority in the European Parliament were to be within reach, there is no majority possible in the European Council without all three of the political families. This is the first important message from the European elections: the only viable way forward is a ménage à trois.

The green wave

The elections brought a major surprise in that the two main blocks have been weakened while the two smaller centrist blocks are stronger, with the underlying threat from far-right nationalism. If the EPP and S&D were to become slightly smaller, the Liberals and the Greens would expand their European presence.

The status of the former has been strongly marked by the arrival of President Emmanuel Macron to the group: not only are 21 of the 108 group MEPs French, but the French arrival has led it into being re-named the group’s change into Renew Europe (RE). Dropping the adjective ‘liberal’ is not co-incidental. The new group leader is Dacian Cioloș, a former European Commissioner, who presented his own Romanian party PLUS last year to the world as located in the ‘centre, centre-right area’.6

The Greens were the major surprise in the elections. The party overperformed most visibly in Germany (25 mandates) and in France (12 seats), with a strong showing in less populous states like the Netherlands, Belgium, Ireland, the Czech Republic, Austria, Denmark, Finland and Sweden. With no presence on the European Council, the Greens’ strongest mandate comes from the main issue they promote: climate change. The Green parties across Western Europe have shown they enjoy the trust of the general public and the green vote should be interpreted as Europe’s citizens agreeing that climate change is the most pressing issue to be addressed.

Still, the Greens underperformed in the southern and eastern EU. Some commentators point out that the green agenda is not yet shared throughout the EU.7

The ECR

The other groups lost the elections. The GUE/NGL is much smaller than before with only Germany, France, Ireland, Greece, Spain, Portugal and Cyprus having two or more MEPs.

The groups to the right of the EPP are not as strong as anticipated. There were three groups in the previous Parliament. One of them, the EFDD, is unlikely to continue to exist in the European Parliament due to the problem of gathering MEPs from seven different countries. Effectively two big national parties are lacking a group at the time of writing: the weakened Five Star Movement in Italy and the temporary protest-vote Brexit Party from the UK. Should the Brexiteers have their way, they will depart from the European Parliament before 31 October 2019.

The ECR has also lost its third-place positioning in the European Parliament, currently being the sixth-largest group. Its most significant defeat was in the UK, as Britain’s Conservatives gained only four seats in the new Parliament. The internal group dynamics suggest it will be dominated by Poland’s governing Law and Justice party (PiS).

Open questions regarding the ECR include: will the Five Star Movement join the group? Should Fidesz leave the EPP, will it join the ECR? Will the ECR be included in the next European Parliament’s ordinary committee work?

The new far-right: Identity and Democracy (ID)

Before the elections some predicted that the far-right might obtain as many as 150 MEPs. This turned out to be an overestimate, but it was certainly viewed as a threat. Still, La Lega and Rassemblement National won the elections in Italy and France, respectively. Among their partners are the Finns Party (Finland), Alternative for Germany (AfD), the Freedom Party of Austria (FPO), the Belgian Vlaams Belang and the Danish People’s Party (DF). All in all, 73 MEPs from nine countries form the group.

EU politics

Politics in member states are usually exercised by various political actors, all based on a political party system and civil society. In the EU, however, there are three level politics. All of them take place at the same time and the final outcome of any process has to include all three levels.

The first level is the traditional party politics with which we are familiar at the national level. This is when the centre-right competes for power and ideas, support and influence, with the centre-left, liberals, greens, far-left or far-right, with single-issue-driven parties or otherwise. This level is best seen in the European Parliament, where the political groups negotiate between themselves all political appointments, agendas and solutions.

The second level of political relations is between member states. National interests and national perspectives, along with differing backgrounds, political culture, finances and history all come to the fore. Geography, size and experience tend to play a role in the interaction between the member states in the Council and the European Council.

The third level of political relations is between institutions. There needs to be a respect for the Parliament in the Council for there is hardly any respect for the member states in the European Parliament.

The many necessary balances

There are many different balances that must be respected in the EU. One is political, between the main political families. As argued above, the most likely compromise should include political figures from three European families: EPP, S&D and Renew Europe.

The second balance to bear in mind is geographical. In the past, the East was represented by the incorporation of Polish politicians: Jerzy Buzek became the President of the European Parliament in 2009 and Donald Tusk of the European Council in 2014. This time the South is callings for representation, linked to the departure of three Italian politicians –Mario Draghi, ECB, Antonio Tajani, European Parliament, and Federica Mogherini, High Representative– from their positions. Northern candidates are also being increasingly considered.

The entire issue is linked with the financial balance between net contributors, countries known for being stringent about their fiscal approach.

In the past a politician from a country outside the Eurozone could not claim the position of European Commission President (or, obviously, the ECB presidency). Size matters, too: compromises should not include politicians from Germany, France, Spain, Italy and Poland alone. The absence of the larger countries from appointments would safeguard the rights of the smaller.

In addition, there is the need for a gender-balanced approach. Donald Tusk, the President of the European Council, mentioned that two women should be expected to take leading positions.8

Tusk was formally appointed formateur on 28 May.9 Soon after, however, a system of informal party negotiators was created with two negotiators on behalf of the EPP (Croatia’s Andrej Plenkovič and Latvia’s Krišjānis Kariņš), two on behalf of the S&D (Spain’s Pedro Sánchez and Portugal’s António Costa) and two on behalf of Renew Europe (the Netherlands’ Mark Rutte and Belgium’s Charles Michel).

All of the European Council’s work should be completed before the new European Parliament’s first plenary sitting takes place in Strasbourg on 2 July. Should that be the case, the next balancing act will be necessary: the interinstitutional, affecting the European Parliament. It is not known how the European Parliament –currently in the process of self-organisation– will react to a European Council appointment if the EUCO disregards the Spitzenkandidaten process.

The June 2019 European Council voted for the three candidates of the largest political families, but none of them gained the more than 21 votes necessary, despite Timmermans and the liberal candidate Vestager being supported by the S&D-RE and the Greek PM while the EPP’s Weber was only backed by his party peers.10 Nevertheless, all were rejected at the 20-21 June 2019 European Council.

Should the next European Council be able to put forward a candidate for the Commission Presidency, there is a significant chance it will not be one of the leading candidates. ‘A more moderate EPP candidate’ could be acceptable for the left, according to one member of the European Council,11 and the EPP seems to be pushing for the next Commission President to be from among its ranks.

This is where other options need to be considered, rather than seeking a balance. The new candidate will need to be consensual, gaining the support of the EPP, S&D and Renew Europe: probably an EPP politician who is not Manfred Weber. At the time of writing one name comes to mind, that of Michel Barnier, who as a French citizen and an EPP politician could gather support from both the Berlin and Paris governments.

Still, to seek such an agreement is a matter of European Council internal politics. The candidate needs to win both institutions’ approval. Michel Barnier was not a candidate in the elections. Will the Parliament oppose him on the principle of institutional balance? On a positive note, he is highly respected in the EU for his commitment to the European interest in the negotiations over Brexit with the British government.

Conclusions

The elections to the European Parliament are providing a strong mandate for EU reform. The change people want, however, is not unidimensional. Those who voted for sovereignist parties have a different perspective from their opponents, mostly the green electorate. The anti-Europeans are softening their narrative, also in the context of the new post-Brexit realities. The centre-right and centre-left are seeking stability and maintain the status quo. As Ivan Krastev recently remarked, ‘everybody wants a change, but a different one’.12

Nobody debates the democratic deficit of the European project anymore. This clearly suggests that a major increase in turnout means there is a greater democratic mandate for the EU institutions to act. But the context as to how and on what to act will require some handcrafting, since the many expectations are sometimes contradictory.

The next question to be addressed is not only who should lead the work of the Commission and other institutions, but also how. Will the next Commission be a political one? If so, in what way? The Juncker Commission’s experience has been very telling. There were controversies but the Juncker College was clearly a step up in the politicisation process. Still, not everyone is in favour of the Commission’s increased politicisation. For one thing, it is a challenge for a political Commission to maintain impartiality in certain important areas, such as competition policy; if the motivation for acting is political it is difficult to defend it against the accusations of its independence being compromised.

The new European Commission may not be as liberal-minded as previously, depending on the new majorities in the European Parliament and the European Council. On the one hand, the UK’s departure may have a significant impact on the negotiations at the Council of Ministers. On the other hand, the treaties have been written in such a way that building a social Europe, for example, will be limited if there are no changes in the treaties, while there are still many of areas that could be liberalised.

The agenda of the next European Commission is currently under negotiation. The June European Council adopted the ‘New Strategic Agenda 2019-2014’13 and in the European Parliament there are agenda negotiations involving four groups: EPP, S&D, RE and the Greens. Some have dubbed the policy priority negotiations a coalition-forming process similar to government-forming in countries like Belgium or the Netherlands.14 The process will be finalised with the presentation of the new Commission President. Five and 10 years ago the documents were known as Political Guidelines for the Next European Commission.15

If a political Commission is the reality, then enhancing European democracy is the next challenge. Among the issues debated during the elections was the idea of allowing the European Parliament to present its own legislative proposals, breaking the European Commission’s quasi-monopoly. Another idea for enhancing European democracy is to change the Union’s communication policy. So far it has largely focused on the role of member states being responsible for communicating the ‘EU’ to its citizens. While this might have been largely successful in places like Germany or Belgium, in many other counties that has not been the case. For instance, regarding the Brexit campaign in the UK, President Juncker admitted it was a mistake to entrust the communications policy to the British Prime Minister: ‘It was a mistake not to intervene and not to interfere because we would have been the only ones to destroy the lies which were circulated around. I was wrong to be silent at an important moment’.16

The new European Commission needs a new communications policy with the EU’s citizens. The Union must become a more concrete reality. The stakes are very high for the EU’s citizens and thus they have real alternatives: on security, jobs, the economy, climate and many other vital issues. Their input should not be set aside for a five-year-long halt. There is a need for a new set of instruments to be developed by the European executive and that will be on the agenda of the next European Commission.

Piotr Maciej Kaczyński
Independent expert on EU affairs | @pm_kaczynski


1 George Soros (2019), ‘Europe’s silent majority speaks out’, Project Syndicate, 7/VII/2019.

3 Interviews in Kielce, 9/VI/2019, and in Berlin, 11/VI/2019.

6 ‘Domnul Dragnea n-are dreptul să arunce în aer societatea românească’, PressOne, 17/XII/2018.

7 Ivan Krastev (2019), ‘After the European elections where is the European Union headed?’, Heinrich Böll Stiftung, Berlin, 3/VI/2019.

8Women should fill two EU top jobs, Tusk says’, EU Observer, 29/V/2019.

11 Ibid.

12 Krastev (2019), op. cit.

13A New Strategic Agenda 2019-2024’, European Council, 20/VI/2019.

14 Interview with Professor Steven Van Hecke of KU Leuven, 22/VI/2019.

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<![CDATA[ Sánchez must snatch the Economic Vice-presidency for Spain ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-oteroiglesiastoygur-sanchez-must-snatch-economic-vice-presidency-for-spain 2019-06-10T06:26:02Z

Spain deserves a top job in the EU and Pedro Sánchez is determined to get it. For a country that is strongly pro-European and the fifth-largest (fourth, if Britain quits) economy in the Union, it is embarrassingly underrepresented. 

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Spain deserves a top job in the EU and Pedro Sánchez is determined to get it. For a country that is strongly pro-European and the fifth-largest (fourth, if Britain quits) economy in the Union, it is embarrassingly underrepresented. Since Javier Solana and Joaquín Almunia left Brussels, Spain has not had a high-profile politician in the European capital. At the depth of the crisis it even lost its seat on the European Central Bank (ECB) Executive Board with the departure of José Manuel González-Páramo, a loss only reversed in June 2018 with the arrival of Luis de Guindos.

The comparison with Italy is striking. Italians currently hold the Presidency of the ECB (Mario Draghi) and the EP (Antonio Tajani), and include the High Representative for Foreign Affairs (Federica Mogherini) and the head of the ECB Single Supervisory Board (Andrea Enria). That is quite a prize for a country that in recent times has shown very little enthusiasm for the European integration project.

Sánchez should play his cards wisely this time. After his good results in the last national and European elections (with 33% support in the latter, which translates into 20 MEPs) he has become the de facto leader of Social Democracy in Europe and, consequently, the chief negotiator of the Party of European Socialists (PES) for the Top Jobs. Therefore, the question is to know what Pedro Sánchez will do with his newly-acquired power.

“Sánchez is certainly keen to have a more progressive Commission, but it is not entirely certain that he will spend all his political capital on it”.

There has been much speculation that Sánchez will side with Emmanuel Macron in trying to isolate Manfred Weber and the European People’s Party (EPP) and seek an alternative candidate. Sánchez is certainly keen to have a more progressive Commission, but it is not entirely certain that he will spend all his political capital on it. Ultimately, he knows that the CDU/CSU is an indispensable force to get things done in Europe. Hence, for Sánchez it is important to gain the trust of both Macron and Merkel.

The three constitute the sides of a double triangle. They are the leaders of Germany, France and Spain, the three biggest pro-integrationist countries and at the same time the de facto leaders of the EPP, S&D and ALDE. Under this configuration, Sánchez will defend the candidacy of Frans Timmermans, the socialist candidate, but also the Spitzenkandidaten method. There is strong backing in Spain for the latter process since it strengthens the power of the European Parliament, the main engine for an ever-closer union, and Spain’s mainstream parties are well represented in the key families.

If Timmermans ultimately fails to get the top job, Sánchez would be content with both Weber and Vestager as alternatives. Many believe that as Spain has no strong candidates for either the Commission or Council Presidencies, Sánchez will aim for the High Rep position and place his current Foreign Minister, and former EP President, Josep Borell, there. But this is not so clear. The feeling in Madrid is that the High Rep does not have enough influence in the Commission. Travelling leads to too many absences and, furthermore, when there is a significant foreign crisis, as in Syria or Libya, national Foreign Ministers of the big member states still call the shots.

For Spain, and for this government in particular, the biggest priority is deepening the Economic and Monetary Union (EMU) –which is seen as the core of the European project– so it is conceivable that Sánchez will forgo a Top Job for a Spaniard as long as he can snatch the Vice-presidency of the Commission in charge of economic and financial affairs. He is also likely to insist that the Vice-presidency be the first and cover all key DGs in the area, from the budget (DG BUDG) and fiscal issues (DG TAXUD) to economic governance (DG ECFIN and FISMA), trade (DG Trade) and industrial policy (DG Grow). In an era of geostrategic competition, this will become a powerful post.

"Should that be the case, Sánchez has another card up his sleeve: Nadia Calviño".

Josep Borrell, one of the most respected politicians in Spain, with a PhD in economics and a strategic mind, could be a very suitable candidate for the position. The only problem is that he might be considered too heterodox by some of the northern countries. Should that be the case, Sánchez has another card up his sleeve: Nadia Calviño. The current Minister of Economy and former Director General for Budgets (DG Budget) has an excellent reputation in Brussels. She combines both determination for fiscal rectitude, sensitivity for social cohesion and zeal for competitiveness in a globalised world.

Apart from securing this strong Vice-presidency, Spain is also keen to have a greater presence and influence on the second-tier levels of Europe’s institutions. Getting the job of Secretary-General of the European Commission if Martin Selmayr finally needs to go would be an attractive proposition too. The next Spanish government will also make a strong effort to have Spanish officials in the cabinets of all the Presidencies of the three institutions and of key commissioners and in all the DGs and their units. The determination in Madrid is that influence needs to be built from the bottom up. Last but not least, Iratxe García, as a possible leader of the S&D Group, should be added to the list of persons of influence.

Ultimately, it is important to underline that Sánchez will not only seek influential posts but also insist on inserting progressive items on the legislation agenda. Although the priority will be EMU reform, more papers might be coming from Madrid focusing on strengthening the Union’s social pillar, developing a new green deal, designing a European industrial and innovation policy, strengthening the single market, generating a true ‘level playing field’ in global trade, better managing migration flows from Africa and increasing the EU’s capabilities in foreign affairs and defence. Should this come to pass, Spain would finally move from being mostly a passive to an active player in the EU.

Miguel Otero-Iglesias
Senior Analyst at the Elcano Royal Institute and Professor at IE School of Global and Public Affairs
| @miotei

Ilke Toygür
Analyst, Elcano Royal Institute
| @ilketoygur

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<![CDATA[ EU policy in the face of the Chinese challenge ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-esteban-oteroiglesias-eu-policy-face-of-chinese-challenge 2019-06-06T04:40:39Z

While the change in the European Commission’s narrative on China is highly significant, it is not at all clear how this will translate into the foreign policy of the various member states.

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Original version in Spanish: La política europea frente al desafío chino.

As the People’s Republic of China transforms itself into a technological and military superpower, while maintaining a party-state system, there is increasing debate at the heart of the EU about the terms on which relations with the country should be pursued. Pressure has been exerted on the debate by the EU’s main ally, the US, whose strategic rivalry with China is growing daily.

For decades the EU sought to enhance relations with China on the basis that it was a developing country, something that carried two main implications. First, the EU was willing to accept a relationship based on asymmetrical rules that were advantageous to the Asian giant. Secondly it was hoped that China’s socioeconomic development and its incorporation into the value chains of the global economy would translate into greater political pluralism and a general improvement in civil liberties and political rights.

“While the change in the European Commission’s narrative on China is highly significant, it is not at all clear how this will translate into the foreign policy of the various member states”.

The spectacular progress China has made over the years (it has become the world’s second-largest economy, with the second-largest budgets in research and development and defence) has rendered any attempt to describe it as a developing country as obsolete. There are many voices in the EU, moreover, that consider the situation unsustainable, owing to the size and ambitions of China.

China accounts for 20% of the world economy in terms of purchasing power parity and it is therefore hardly surprising that it has become a trading and financial partner of great importance for many European countries. The relationship has always been complex, offering major opportunities and challenges to European companies and governments. The EU Trade Commissioner, Cecilia Malmström, has frequently pointed out that 3 million jobs in the EU depend on trade with China and that many EU companies obtain competitive advantages thanks to their presence in China and their contacts with Chinese suppliers. However, Malmström has also repeatedly called for an end to the discrimination EU companies suffer in China, given that they face various barriers to entry, are not able to access the same sources of finance or tender for the same state contracts as local firms, and nor do they enjoy the same level of legal protection as their local counterparts.

Despite these problems, the document that guided Sino-EU relations from 2013 onwards, the EU-China 2020 Strategic Agenda for Cooperation, describes China as a vital strategic partner for addressing the main issues on the global agenda in a multilateral international order. This view was substantially revised on 12 March 2019 in a European Commission document titled EU-China – A Strategic Outlook prior to the European Council meeting of 21-22 March, in which less benign descriptions of China such as ‘economic competitor in the pursuit of technological leadership’ and ‘systemic rival promoting alternative models of governance’ were added.

This new, more assertive, view of China stems from concern about the fact that the country’s development, driven to a large extent by its international relations, has not translated into the adoption of economic and political governance models prevailing in Europe, but rather into the strengthening of a markedly protectionist party-state system; the latter has aided the internationalisation of its companies in strategic sectors that are closed or barely open in its own market to EU firms, and driven its technological development in economic sectors that play a key role in the fourth industrial revolution, such as digital platforms, 5G, big data and artificial intelligence.

Is EU policy towards China being ‘Trumpified’?

While the change in the European Commission’s narrative on China is highly significant, it is not at all clear how this will translate into the foreign policy of the various member states, nor that the EU or its member states will sign up to the policy of containing China pursued by the Trump Administration and set out at the end of 2018 in a major speech by his Vice-President, Mike Pence.

“The member states do not have an agreed stance on relations with China”.

The member states do not have an agreed stance on relations with China. Indeed, it is possible to identify three distinct positions. In one faction there are countries such as Germany and France, which are driving the more assertive tone in EU policy towards China, and which is also translating into concrete steps such as the implementation of a mechanism to oversee foreign investments. These players are especially concerned, in the European context, by the geostrategic implications of China’s rise and by the loss of their companies’ competitiveness compared to their Chinese counterparts in strategic and high-added-value industries. Moreover, as they have confirmed in a recent manifesto, the two countries advocate the bolstering of EU industrial policy and the role of the state in driving the creation of European champions that ensure the importance of European companies in these economic sectors, preferably in the global marketplace, but at the very least within the EU market.

In a second group there are countries that share the unease of the first, but are more reluctant to increase the level of state intervention in the economy as a means of addressing the economic challenge posed by China. This group includes the Netherlands, the Nordic countries and the UK. Brexit has thus had a major effect on the current EU debate on the nature of relations with China, because the group’s main champion has lost influence within the Union.

In a third group, the majority of countries in the EU’s south and east are more receptive to continue strengthening economic ties with China, even if the Chinese authorities are not willing to embrace economic governance models more attuned to European ones, and choose to continue with an economy that is notably more closed and subject to intervention than its European counterparts. Such countries usually show more interest in attracting Chinese investment and finance than the members of the preceding two groups, because they have more problems in satisfying their financing needs. Moreover, governments that have had disputes with the Commission or with France or Germany on other issues have tended to turn to China to make it clear to their European counterparts that they have other options to diversify their foreign policy. Hungary, Greece and Italy fall into this group.

The most recent illustration of these divisions came with the European Council meeting of 22 March, where discussions on relations with China ended without an official communiqué, while on the very next day the Italian government agreed a memorandum of understanding to sign up to Xi Jinping’s stellar foreign policy project, the Belt and Road Initiative, despite being at the receiving end of repeated lobbying from Washington and Brussels against the initiative. There are now 14 EU member states, including Italy, that have signed some type of agreement to support the initiative (Austria, Bulgaria, Croatia, Slovakia, Slovenia, Estonia, Greece, Italy, Latvia, Lithuania, Poland, Portugal, the Czech Republic and Romania). The rest (including Spain) reject doing so until such time as the initiative operates in a more transparent and multilateral way, in accordance with the social, environmental and financial sustainability standards recognised internationally and set out in the connection strategy proposed by the EU.

Having said this, it is important to point out that even the players advocating a more assertive reformulation of EU policy towards China, such as the European Commission and the Federation of German Industry (known by its German initials BDI), which published a report on the issue recently, deem it essential to continue bolstering economic and political links with China. This is the same message that Juncker, Macron and Merkel conveyed to Xi during his recent visit to Paris, reflecting the lack of EU support for the US desire to block Chinese technology in the development of 5G networks.

Spain too takes a line that is clearly different from that advocated by the more hard-line members of the Trump Administration, who argue for containment measures against China and a reduction of the interdependence between the two countries. This difference of approach stems from a divergence of interests between the US and European authorities. The former are more focused on perpetuating US hegemony and consequently on the evolution of the balance of forces (including in the military sphere) between the US and China. The European authorities on the other hand place more importance on the absolute economic gains and the role that Beijing could play in consolidating a multilateral international order capable of ensuring the provision of global public goods. Whereas the zero-sum game predominates in the US, there is still a belief in Europe in a positive-sum alternative.

What should the EU do?

The growing rivalry between the US and China forces the EU to reflect and ask itself what role it wants to play within the international community in a context in which the US is going to be increasingly concerned with preserving its hegemony and less with ensuring the provision of global public goods and defending the values it shares with Europe, whereas China is going to push in an increasingly concerted way to impose its models of political and economic governance at an international level.

The EU thus faces four possible scenarios: (1) aligning itself with the US, on the grounds of sharing principles and values, and because, over the short and medium-term, the US still underpins European security; (2) aligning itself with China, because it is the most dynamic market in the most dynamic region and because in the long run China will become the largest economy in the world; (3) the EU not acting uniformly, thus becoming divided and weakened, with some countries taking a lead from the US and others from China, and with recurring internal tensions; and (4) the EU coming closer together and acting as a third pole in a world characterised by systemic strategic rivalry between China and the US and by occasional multilateral cooperation.

The EU should aspire to the fourth scenario, something that entails being committed to taking integration further in order to become a global actor with growing strategic autonomy. Only then will it be able to harmonise and consolidate an effective multilateral international order. The more integrated Europe is –in terms of a banking, fiscal, economic and political union– the more similar will be the interests of the various member states. The process will not be easy and will need to be conducted with sensitivity, empowering the various players to enable them to integrate their interests and thereby feel they are represented.

The Franco-German engine is indispensable for this, but not sufficient. Decision-making about future European champions cannot be the exclusive preserve of Paris and the German industrial cities. Pan-European conglomerates and consortiums are needed along with the distribution of resources in accordance with the specialisations and comparative advantages of the various participants. The watering-down of competition law will not solve anything if it is not accompanied by a greater commitment to funding for education, research, development, enterprise and innovation. Meanwhile, the EU needs to complete the internal market in services and apply the prohibition on unfair state-aid to non-EU companies too. The rules in the single European market must be the same for everyone.

“Spain too takes a line that is clearly different from that advocated by the more hard-line members of the Trump Administration, who argue for containment measures against China and a reduction of the interdependence between the two countries”.

Lastly, Spain, in particular, has a great deal to offer in many areas of this new technological race, from banking, telecommunications and energy, by way of the auto-industry, infrastructure, services (whether involving tourism or otherwise, including education and health) to entertainment, defence and aviation, farming and artificial intelligence. This is the first time in history that Spain has been well placed to play an active rather than a passive role in an industrial revolution. It is a starting point that must not be allowed to let slip.

But it will require a national strategic plan to be developed for the digital era and a new industrial policy and a cross-party national agreement to be forged regarding shared interests. Only then will Spain be able to play a leading role in Europe. Over the course of recent years, Brussels, Berlin and even Paris have requested more input from Spain in EU debates, because they know that Spain is a country convinced that it needs a more united EU to be able to address the major challenges of the 21st century. The rivalry between the US and China is one of these, and Spain is especially well positioned to try to catalyse a consensus on this matter within the Union thanks to its ability to build bridges between member states concerned by the geostrategic implications of China’s rise and the loss of competitiveness among their companies, those reluctant to increase the level of state intervention to combat Chinese competition and those who want to attract a greater volume of investment and finance from China.

Mario Esteban
Senior Analyst at the Elcano Royal Institute and Professor at the Autonomous University of Madrid | @wizma9

Miguel Otero-Iglesias
Senior Analyst at the Elcano Royal Institute and Professor at IE School of International Relations  | @miotei

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<![CDATA[ Subject and object: Europe and the emerging great-power competition ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-simon-subject-object-europe-and-the-emerging-great-power-competition 2019-05-30T03:56:09Z

The growing rivalry between the US and China compels Europeans to wake up to some hard facts. One of them is that we live in a world that is increasingly defined by great-power competition, in which the norms and institutions Europeans hold so dear may well take a back seat. 

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The growing rivalry between the US and China compels Europeans to wake up to some hard facts. One of them is that we live in a world that is increasingly defined by great-power competition, in which the norms and institutions Europeans hold so dear may well take a back seat. Another is that Europe itself may take a back seat in world politics.

Against a backdrop of tectonic geopolitical change, European experts and pundits are pondering about two sets of problems. The first relates to the specter of great power penetration on the European continent, and its negative impact on European unity and stability. The second is about how Europeans should position themselves vis-à-vis the world’s great powers. These are closely intertwined problems, which relate to the deeper question of whether Europe is a subject or an object in international politics –a debate that cannot possibly be framed in dichotomous (subject vs object) but rather complementary (subject and object) terms–.

"European cohesion is a precondition for the broader question of how the EU should position itself vis-à-vis the (other?) great powers"

The discussion on ‘Europe as a subject’ is often associated with the EU and the notion of European strategic autonomy. These days, it revolves primarily around the question of how the EU should position itself in Sino-US competition. To a lesser extent, it is also about how the EU should deal with an increasingly assertive Russia. Should the EU buddy up with the US in its global competition with China? Should it strive for some form of equidistance, and get closer to the US on some issues and to China on others? Or should it opt for a third way, and become a strategically autonomous actor? How about Russia? Should the EU align its Russia policy to that of the US? Or should it strike a different tone? Without getting into the nuances surrounding any of those questions, they all build on a fundamental premise: that of the EU as a coherent international actor. Incidentally, such a premise presupposes that the EU can consolidate its reach and influence within the European continent itself and that it is therefore in a position to prevent other external powers from penetrating Europe or significantly undermining European unity. After all, European cohesion is a precondition for the broader question of how the EU should position itself vis-à-vis the (other?) great powers.

The debate on Europe as a subject is surely a fascinating one, but it is muddied by the problem of ‘Europe as an object’ or battleground of great-power competition. This problem is about how external powers –notably Russia and China, but also, conceivably the US, and even the UK, should an acrimonious Brexit materialise– can leverage existing European divisions to maximise their influence on and over Europe.

Internal divisions and external penetration are two sides of the European coin: they feed off each other. And today’s Europe may well be experiencing the rough end of both. Over the last decade or so, the economic, migration, security and Brexit crises have fostered a number of cleavages in Europe, within and between countries, including but not limited to the north-south, east-west, and Britain vs continent divides. These cleavages are there for powerful external actors to leverage. From the perspective of an external meddler, always sniffing around for wedges to play divide-and-rule politics, today’s Europe is filled with opportunities.

An increasingly assertive Russia sees the division of Europe as a geopolitical asset, an opportunity to maximise its regional influence. Taking a cue from the Soviet-era concept of active measures, Russia is today following a strategy of identifying existing divisions within Europe and building on them. The Brexit referendum has been often cited as an example in this regard, and so has the rise of extremist parties in some western European countries. Perhaps more broadly, and more systemically, the migration crisis has offered Russia an opportunity to further a cultural and political cleavage within Europe, between west and east, but also within countries.

"The message coming from Washington is clear: Europeans who open their 5G gateways to Chinese companies should expect to be penalised in their intelligence and security cooperation with the US"

A confident China hopes that its economic largesse in Europe will translate into political influence. The question of how to deal with Beijing underscores a number of cleavages within Europe. One of them is transatlantic. The message coming from Washington is clear: Europeans who open their 5G gateways to Chinese companies should expect to be penalised in their intelligence and security cooperation with the US. But there is a second, China-related cleavage: should Europeans pursue an industrial policy, as traditionally advocated by France (especially when it comes to the digital domain and to new technologies), or should they continue to put their faith in open competition? The Germans appear to be revisiting their traditionally liberal, pro-competition stance, as they take note of Trump’s protectionist bent, and wake up to the fact that China is playing the free-trade system. Thus, the context seems ripe for a debate on an EU industrial policy. Yet no push in that direction will be hassle free. The European Commission will not quite so easily let go of its role as the guardian of competition. And other EU member states will worry about getting the rough end of the deal: neither cheap Chinese products nor any say over the direction of European (read Franco-German) champions. Such a dilemma may prove to be particularly acute for countries in eastern and southern Europe that have been showered by Chinese investment in recent years, some of which have also grown increasingly antagonistic towards the EU. The divisions are likely to remain there for China to leverage upon.

Last but not least, there are questions about the Trump Administration’s Europe policy, and more specifically its attitude towards the EU, which Trump himself has repeatedly labelled a foe of the US. This is a delicate and dangerous issue. Does President Trump calculate that, because Europe faces numerous challenges and is in a position of strategic dependence with Washington, he can renegotiate the transatlantic relationship from a position of strength? If so, he may be right. However, his approach of linking security and economics and openly lambasting the EU and some of its member states (notably Germany) may well encourage Europeans to push back, including through the EU.

"Europeans should be careful in framing their response to the US and, at any event, steer clear from the notion of resorting to other great powers (let alone China) to build up their diplomatic leverage on Washington"

It is certainly understandable, and even legitimate, for Europeans to stand up to Trumpian bullying, and reject the notion of a transactional relationship with the US. However, Europeans should be careful in framing their response to the US and, at any event, steer clear from the notion of resorting to other great powers (let alone China) to build up their diplomatic leverage on Washington. This could be politically suicidal, as it would prove highly divisive and corrosive within a Europe that is largely a by-product of US power. US power and US strategy played a key role in the genesis of the European Community, through the Marshall Plan, through US support for the re-industrialisation and re-militarisation of West Germany, and through the NATO security guarantee. This is not just ancient history. The US has also played a critical role in the configuration of today’s EU, notably through its key role in German reunification and eastern enlargement. Today, Central and Eastern European states form an integral part of the EU, and most of them see their bilateral relationship with the US as the foundation of their security and political autonomy. This links back to the underlying theme on the interdependence between internal divisions or cleavages and external penetration.

US penetration –labelled by some as mostly benevolent or ‘empire by invitation’– remains a fact of European life. And, as the world becomes increasingly competitive, its penetration may well prove to be an insurance against worse alternative futures, at least as long as Europe’s key powers continue to reject the notion of a pan-European state –which, incidentally, could very well meet the (concerted?) opposition of Washington, Moscow and London–. To be sure, insofar as both US penetration and European strategic autonomy are relative concepts, Europeans will do well to continue to lever their economic, technological and security cooperation (notably through the EU) to mitigate the spectre of total dependence on an Asia-bound US. But as the 21st century rolls in, the key question for Europe is not whether it will be subject or object, but how to reconcile the idea of being both at the same time.

Luis Simón
Director of the Elcano Royal Institute’s Office in Brussels and Senior Analyst

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<![CDATA[ EU-Japan EPA and SPA: more than a partnership, a necessary turning point for both ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-goyyamamoto-eu-japan-epa-and-spa-more-than-partnership-necessary-turning-point-for-both 2019-05-29T01:38:47Z

With just few weeks for the opening of the G20 summit in Osaka on 28-29 June, the stakes that the world economy faces are higher than ever. The current US-China trade turmoil is precisely what Japan and the EU are trying to avoid.

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With just few weeks for the opening of the G20 summit in Osaka on 28-29 June, the stakes that the world economy faces are higher than ever. The current US-China trade turmoil is precisely what Japan and the EU are trying to avoid.

Since the 2008 financial crisis we have witnessed almost a decade of uninterrupted global economic growth with moderate inflation. However, with a downgraded 2.9% growth projection in 2019 by the World Bank we may be approaching the end of the cycle, whose effects might be aggravated if the biggest economies resort to protectionist measures.

This decade has seen many discussions about ways to achieve sustainable economic growth, fulfil the UN millennium goals and implement environmental commitments, first of the Kyoto Protocol and now of the Paris Agreement. It is in this framework that a new partnership has been established to respond to these challenges and send a clear message in defence of the liberal international economic order. In this light, the EU and Japan are actually walking together in the same direction . They share concerns that have arisen about the global economy since the 1990s : the post-Cold War order, the Financial Big Bang, the emergence of China and the ambivalent dynamics of the emerging markets and developing economies (EMDEs).

“the EU and Japan are actually walking together in the same direction. They share concerns that have arisen about the global economy since the 1990s”

It was precisely a day before the G20 meeting in Hamburg in 2017, where Japan was chosen to host the 2019 summit, when Shinzō Abe, Donald Tusk and Jean-Claude Juncker jointly announced that Japan and the EU had reached a broad consensus over an Economic Partnership Agreement (EPA) and a Strategic Partnership Agreement (SPA) . It should not have come as a surprise given Abe’s intensive efforts to counterbalance the moves of his main foreign political ally, Donald Trump, who has however held completely opposite policy views regarding trade. Abe is adept at signalling his position regarding free trade and the preservation of the liberal economic order is part of his trademark economic policy, the so-called Abenomics. Only a day before Trump’s inauguration, the Japanese Diet ratified the Trans-Pacific Partnership Agreement (TPP), even though it was assumed that it would not come into effect once Trump took office and fulfilled his campaign promise of withdrawing the US from its commitment. Japan has since taken the lead to convert the failed TPP into the new Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) that tries to lure in the post-Brexit UK, South Korea and Taiwan, among others, including –paradoxically– the US.

It is interesting to see a sort of circular chain reaction in the various steps taken to ensure that a liberal ruled-based order continues to govern world trade. The new initiative in the Pacific area was in fact given a push by the upcoming creation of the largest free trade area, as the EU-Japan EPA was due to enter into force (1 February 2019). And the latter was precisely propelled by factors including the apparently impending conclusion of the TPP, which pushed the EU to negotiations with Japan after a rather successful EU-Korea Free Trade Agreement (in effect since 2011 and fully implemented from 2015), the dissipation of the TPP that jeopardised Japan’s economic future, the Brexit vote that put at risk Japanese companies’ leverage in Europe and the Australia-Japan Free Trade Agreement, which took more than seven years of negotiations to see the light in 2014 but had a key role in managing the difficult Japanese agricultural, pharmaceutical and auto industry lobbies, decisive sectors also in the EU negotiations.

The key to a successful and unusually fast conclusion to both economic and strategic partnership was, on the one hand, the similarity of the two mature markets with comparable protection structures and, on the other, the transparency of the negotiations in the trade agreement, not so much in the strategic partnership that relied on much more sensitive information.

Figure 1. Market sizes of current largest free-trade areas
EU-Japan EPA
[in effect from 1/II/2019]
  TPP-11 (CPTPP)
[in effect from 30/XII/2018]
640 Market in million people 499
27.8 World trade share (%) 14.4
35.8 World GDP share (%) 13.3
EU Real GDP Increase
(+0.10~0.76%) + 162,000 jobs
Japan Real GDP Increase
(+0.26~1%) + 260,000 jobs
Expected gain US$147 billion
Source: data from the EU Commission, Japanese Ministry of Foreign Affairs, World Economic Forum and Peterson Institute for International Economics.

Though early to have data, with Japan being the 5th largest partner for the EU in both imports and exports, it is expected that EPA will provide a boost of €13 billion to European exports, which would reach 5% of Japan’s market share, up from the current 3%. The EU would increase its imports from Japan by €23 billion by 2035, the year of full implementation of the agreement, according to the EU DG Trade estimates. The EU will essentially scrap 99% of the tariff lines and liberalise 100% of imports in seven to 10 years while Japan will do the same for 97% of tariff lines and 99% of imports in 15 years. Some products, such as alcoholic beverages, textiles, chemicals, cosmetics or jewellery, have been fully liberalised since day one of the implementation of the agreement but most of the sensitive products, such as wood, leather, footwear and agricultural products in the case of Japan and vehicles and auto parts in the EU’s, remain to be freed from barriers by stages. Even import items not fully liberalised on the Japanese side have been granted concessions in tariff quotas. Some items have never been a subject of the negotiations, including rice, seaweed and whale meat. According to the research presented by Felbermayr e.a., 86% of the gains in mutual trade are owing to the elimination of non-tariff barriers (NTB), and half of that in the services sector alone. Only the remaining 14% result from the elimination of tariffs proper. For example, regarding sanitary and phyto-sanitary (SPS) measures, both sides have simplified approval and clearance procedures. In the EU this specially helps the value-added agri-food sector while in Japan the manufacturing and services sectors benefit. The adoption by Japan of around 200 European Protected Geographical Indications has been a major step forward.

In their final version, both the EPA and SPA deals address other key concerns too. In the first place, they include a clause safeguarding the compliance with the Paris Agreement on Climate, creating a precedent that aspires to set a standard for future trade agreements. Secondly, they attach great importance to data protection. It has been a major step for Japan to accept and model part of its procedures on the already comprehensive General Data Protection Regulation (GDPR), which commits Japanese companies to comply with European standards even when operating in third countries with information originating from European customers/clients/providers. In fact, the matter of safe data flows is considered the Data Movement Agreement or a third major agreement in its own right. Abe has taken the lead on world-wide data governance by putting on the agenda of the G20 summit in Osaka the commitment to work towards a regime built on Data Free Flow with Trust (DFFT) principle aiming at what he calls the Society 5.0 .

Thirdly, these agreements have been presented as a pillar of the Abenomics’ so-called third arrow of structural reform. The effect of their adoption could be called a positive upheaval where the exposure to liberalised trade is used as an opportunity to revamp primary and secondary sectors as well as to modernise the tertiary one by adapting to the new challenges. Akeda noted the difference between the Japanese approach at the negotiating table, more business-oriented and flexible compared with the more people-oriented and normative European style. Japan clearly pursues the improvement of economic efficiency through FTAs and one aspect that took longer in the negotiations were the European prescriptions such as those on adopting more international industrial standards (ISO). Currently, of the 10,773 Japan Industrial Standards (JIS), 6,062 correspond to international standards, with only 38% fully identical to ISO ones. This lack of international standardisation has been one of the NTBs that protected Japanese Small and Medium Enterprises (SME) that cater to a captive domestic market without the need to internationalise. In fact, SME productivity has been long under scrutiny. To force them to open up to the global market and embrace opportunities brought by the digital economy is part of the strategy of the third arrow.

The fourth important point of the agreements is EPA’s 20th chapter, devoted to the role of SMEs in global trade. Up to 88% of EU exporters to Japan are SMEs, which account for approximately 30% of trade volume. SMEs are predominantly responsible for agriculture, textile, apparel and leather products in the goods trade, and for information, communication, real-estate activities, construction, wholesale and retail in the services trade. Energy, auto, computer and electronics manufacturing as well as financial and insurance services rely on bigger corporations. The chapter tries to promote transparency of information, equal opportunities and specialised help to SMEs and their consortiums when, for example, bidding for public procurement, one of the Japanese markets that Europeans have newly gained entrance to. SMEs will see their position improved due to the reduction of NTBs and the decrease of the proportion of fixed costs of accessing the Japanese market.

Some issues have not yet been fully agreed upon, like the arbitration court and procedures in case of foreign direct investment. However, on balance, as already stated by a very comprehensive LSE study on the impact by sector of the EU-Japan EPA, ‘this new trade area would create a “smart, sustainable and inclusive growth”, jobs and welfare, with no negative impact on environmental indicators, and positive effects for the EU social indicators’.

“A challenge for two mature societies such as the sustainability of the welfare system need companion policies to a free trade agreement to ensure its accomplishment”.

This benevolent conclusion might take more to implement than just the free movement of goods and services. Part of the less known SPA leaves an ambiguous set of goals to cover, where the intentions have been signed but the mechanisms are yet to be designed. It has been stablished to promote policies in the areas of gender equality, consumer protection and safety and responsible consumption, but it would have been more encouraging if quantifiable goals and measures on these issues were mentioned. A challenge for two mature societies such as the sustainability of the welfare system need companion policies to a free trade agreement to ensure its accomplishment. There is a commitment to a coordinated emergency response as well as establishing prevention systems in the event of natural disasters, or the cooperation and mutual exchange in higher education and technology that could lead to shared research and outcomes. The common fight against cyberterrorism and the protection of intellectual property are some of the most discussed areas during the round tables. Common efforts in the designing of smart solutions for the future of mobility and urban living, or providing ideas on how to involve the local and regional economies in this new scenario will prove that the agreements that have been signed are just more than a simple partnership but a coalition for a future and stable set of rules.

Ana María Goy Yamamoto
Associate Professor, Center for East Asia Studies, Autonomous University of Madrid

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<![CDATA[ Spain’s influence in the European Parliament: an historical survey and predictions for the new political cycle ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari56-2019-toygur-carnicero-spains-influence-in-european-parliament-historical-survey-and-predictions-for-new-political-cycle 2019-05-21T10:48:10Z

The European parliamentary elections in May 2019 represent a major opportunity for Spain to increase its influence in the EU.

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Original version in Spanish: El peso de España en el Parlamento Europeo: panorama histórico y predicciones para el nuevo ciclo político.

Theme

The European parliamentary elections in May 2019 represent a major opportunity for Spain to increase its influence in the EU.

Summary

The EU’s modus operandi over the last decade has seen it going through a series of existential crises. Given the threat represented by Brexit to the future of integration, the role of predominantly pro-European countries is even more important for moving the project forward. The European Parliament, as the only institution whose members are directly elected, provides a stage on which Spain can try to increase its influence in the decision-making process. This analysis reviews the role of the country in the European Parliament since it joined the Union on 1 January 1986 up to the present day and compares the positions of its political parties and their members with large EU countries. It concludes with some predictions for the May 2019 elections and sets out a roadmap for increasing Spain’s influence. Finally, it should be noted that this paper is part of a wider project by the Elcano Royal Institute focusing on Spain’s presence in the EU and by the working group set up by its office in Brussels to analyse how to improve the country’s influence in the in the 2019-24 cycle.1 This is the fifth paper in a series of publications based on the group’s presentations and debates.2

Analysis

Introduction

Since the first European elections held in 1979, the European Parliament has been consolidating its essential role in the EU’s decision-making process. Its powers increased significantly with the Lisbon Treaty. It now shares legislative powers with the Council of the EU, fulfils other major functions and is important player in the EU’s power map. Moreover, as the only institution whose members are directly elected by European citizens, it is an essential source of legitimacy for the Union.

European elections have traditionally been viewed as secondary by many voters and turnouts have been lower than in national elections. Electorates often punish their national governments in European elections and there is more tactical voting for small parties.3 In the elections scheduled for 23-26 May, a higher turnout is expected after years of politicisation and crisis on the continent. The repeated shocks that the EU has endured in the last decade (crises involving economics, migration and cohesion – the prime example being Brexit) will be evident in greater public interest during the campaign, the ballot and the new parliament. In Spain these elections come at a time when the country wishes and is striving to improve its influence in the EU. Clearly, the internal situation will play a very important role in the form such ambition takes, but it is an opportunity that must undoubtedly be seized.

A European scenario characterised by Brexit on the one hand and the eurosceptic Italian government on the other could enable Spain to present itself as an indispensable partner to the Franco-German axis in advancing towards integration. The Spanish presence in the European Parliament will be a key element in taking advantage of this favourable context for a Spanish push in Europe. The question of how Spanish MEPs are chosen, which committees they sit on and which posts they occupy in the European Parliament is thus of the utmost importance.

It should not however be forgotten that MEPs owe their allegiance to different political groups within the European Parliament. They have two loyalties: one is to the voters in the country that elected them and the other is to the European political family to which they belong. On many issues they act in a coordinated fashion within the political group and not in accordance with national criteria. However, in cases where something important is at stake for the interests of Spain, they act along national lines, as has been seen in recent years in relation to the crisis in Catalonia and the coordinated response of Spanish MEPs from the main parties.

Bearing all this in mind, the main task of the Spanish political parties is to play a significant role within their political groups. It is thus very important to have MEPs who are well prepared and knowledgeable about European affairs, with clear ideas and ideals about the future of Europe. For these reasons, the selection of appropriate candidates by the parties (likewise their choice of relevant committees and well-prepared advisors), the campaign for the European election and the subsequent work undertaken by the representatives present an opportunity to improve Spain’s influence in the EU.

This analysis reviews the role Spain has played in the European Parliament since it joined the EU and compares the important posts that its representatives have held with those of similar countries. Next, the profile of Spanish political parties in the European Parliament over recent decades is reviewed and some predictions are made for the elections in May 2019. It concludes with suggestions for enhancing Spanish influence in the EU.

Spain in the European Parliament: an historical survey

Spain’s entry to the EU in 1986 and the arrival of its first directly-elected MEPs in 1987 coincided with a period when the European Parliament was extending its powers. The first direct elections had taken place just seven years earlier (until 1979, members of the European Parliament were drawn from national assemblies). Secondly, the Single European Act (1986) awarded new powers to the institution, establishing the procedure of legislative cooperation in a large number of areas and giving the European Parliament the power of veto over accession and association treaties.

In 1986 the number of seats in the European Parliament rose from 434 to 518 with the arrival of 60 Spanish and 24 Portuguese MEPs, initially appointed from among their national MPs and subsequently, in 1987, elected in the first European elections in these two countries. Over the last three decades Spanish MEPs have played an important role in the European Parliament, although before reviewing the leadership positions they have occupied it is worth pointing out that Spain has been underrepresented in this institution.

As Carlos Carnero, Victoriano Ramírez González and Ignacio Molina have explained,4 Spain elected 64 MEPs in the 1999 election, but the following year, when the Nice Treaty was being drawn up, prime minister José María Aznar chose to sacrifice seats in exchange for greater influence in the Council of the EU (an ill-judged gambit given that the Council’s voting system changed shortly thereafter and the number of Spanish MEPs has never been restored).

Spain currently has 54 representatives, fewer than it should have in relation to its 46 million inhabitants. The 82 million inhabitants of Germany elect 96 representatives while 66 million French nationals return 74. The seat/population ratio works out worse for Spain, above all when compared to Germany, the most populous country in the EU. With Brexit and the departure of the British MEPs, Spain’s underrepresentation was corrected to some extent when it was allotted an additional five representatives (taking it from 54 to 59 MEPs). The problem is that with Brexit having stalled, the most likely scenario involves retaining the current distribution of seats and Spain remaining underrepresented with 54 MEPs.

In any event, its political parties can play an important role in their respective groups. In the wake of the results of the national election held on 28 April, an attempt may be made to estimate the breakdown of MEPs and thereby maximise influence in the European Parliament. Before turning to this, it is worth comparing Spain to other countries of similar size in terms of the European Parliament’s key posts. This exercise will help to shed light on how Spain should position itself in the next legislative term.

Comparison of country profiles: what position does Spain occupy?5

A comparative look at the role played by Spanish representatives in relation to their German, French, Italian and British counterparts6 places them in mid-ranking position, notable in certain key roles and playing a more low-profile part in others. The presidency is obviously the most influential job and most symbolic in the European Parliament. The power of the president has grown as the institution itself has acquired more areas of responsibility. Particularly notable are the role of the president in arranging the debates in the chamber, presiding over the key decision-making body (the Conference of Presidents) and representing the European Parliament, especially at European Council meetings, where the president addresses the participants at the start of each meeting.

As Figure 1 shows, over the last three decades Spanish representatives have presided over the European Parliament on three occasions: the socialist Enrique Barón from 1989 to 1992; José María Gil Robles, of the People’s Party, from 1997 to 1999; and the socialist Josep Borrell from 2004 to 2007. Spaniards have only been outnumbered in this post by Germans (who have presided over the institution on five occasions). Representatives from France, Italy and the UK have held the presidency on one occasion.

Figure 1. Distribution of key posts in the European Parliament

  Spain Germany France UK Italy
Presidents 3 5 1 1 1
Vice-presidents 28 27 25 19 27
Committee Chairs 32 51 39 40 50
Subcommittee Chairs 1 10 7 1 1
Temporary Committees 3 5 4 2 2
Committee Chairs of Joint Delegations 5 14 9 15 16
Delegation Chairs 49 88 49 67 66
Parliamentary Assembly Chairs 4 4 6 4
Total 125 204 134 151 167
Note: for purposes of comparison all the posts for all the countries are counted starting from 1986, the year in which Spain jointed the EU.
Source: database provided by the Directorate General of the Presidency of the European Parliament.

In terms of the vice-presidents of the European Parliament, Spain is ranked first. Its representatives have held this post on 28 occasions, compared to 27 German, 25 French, 19 British and 27 Italian vice-presidents. By contrast, if one looks at the chairs of committees – another key role, given that chairs wield considerable influence over the agenda and the procedures surrounding the issuing of reports – Spaniards are ranked last (holding 32 chairs, compared with 51 German, 39 French, 40 British and 50 Italian chairs).

Turning to other, less influential posts, such as the chairs of subcommittees, temporary committees, joint delegations, delegations and parliamentary assemblies, Spanish representatives occupy a low to mid-ranking position compared to their counterparts.

In terms of the presidencies of the political groups – another fundamental role in the European Parliament’s power games, given that they operate as spokespeople in the key debates and take part in the Conference of Presidents, the main internal political body – the only Spaniard to have held this post is the socialist Enrique Barón, from 1999 to 2004. It is a post that Spaniards should undoubtedly run for more frequently. In the legislative term now ending, German representatives, once again at the forefront, have led four of the eight political blocs: EPP, S&D, GUE/NGL and the Greens (co-chair). As far as the role of Spanish parties in the next legislative term is concerned, one of the chief ambitions ought to be to secure the leadership of one of these blocs.

Spanish political parties in the European Parliament

Of all the European institutions it is undoubtedly the Parliament where Spain can play a more important role. Thanks to the size of its population and the possibility of Brexit,7 it could have the fourth-largest national delegation in the forthcoming legislative term (or fifth-largest in the event that the UK decides to remain longer in the institution, although its cohort will in any event be weaker owing to the situation of political limbo).

As is well known, the seats are allotted proportionately in accordance with population size. Spain is fifth on the list, which is headed by Germany with 96 seats, followed by France, with 74, and the UK and Italy, both with 73. Spanish MEPs –the majority belonging to pro-European parties– are well placed to play an important and constructive role in the new political cycle.

It is important to emphasise that Spain has been a pro-European country since its return to democracy in the 1970s. Accession to the EU was fundamental in the process of consolidating democracy, the rule of law and fundamental rights. There has been a cross-party consensus on the attitude towards the EU stretching back decades. Up until now, and enduring such upheavals as economic crises, Brexit and the inflows of immigrants that have created a profound identity debate within Europe, the consensus Spanish response has consistently been ‘more integration’. The fact that a far-right party has entered the Spanish Congress for the first time, with VOX winning 24 seats in the general election held on 28 April, suggests that it will secure representation in the European Parliament, thereby challenging this cross-party, pro-European consensus. For the first time, Spanish MEPs may belong to the same group as the French National Rally and the Italian Northern League, although this will only apply to a limited number of the Spanish intake.

Historically, Spanish MEPs have formed part of the European Parliament in the last seven legislative terms, starting with that of 1984-1989.8 The first direct election to the European Parliament in Spain was that of 1987 –when an individual election was held together with Portugal, after Spain joined the year before– and since then it has taken part in the rest of the elections alongside the other member states.

As can be seen in Figure 2, during these seven legislative terms the majority of Spanish seats have had an allegiance to the European People’s Party (EPP) or the Progressive Alliance of Socialists and Democrats (S&D). Given that an imperfect two-party regime has predominated over recent decades, the vast majority of MEPs have been drawn from the People’s Party (PP) or the Spanish Socialist Workers’ Party (PSOE).

Figure 2. Spanish seats classified by political groups in the European Parliament, 1984-2019
Group Abbreviation 84-89 89-94 94-99 99-04 04-09 09-14 14-19
European People’s Party EPP 18 17 29 18 24 25 17
Progressive Alliance of Socialists and Democrats S&D 29 27 21 24 24 23 14
European United Left/Nordic Green Left GUE/NGL 1 3 9 4 1 1 10
Alliance of Liberals and Democrats for Europe ADLE 2 7 2 2 2 2 8
The Greens/European Free Alliance Greens/EFA 1 3 5 3 2 5
Communists and allies COM 3
Not registered NR 7 5 1 1
Total   60 60 64 64 54 54 54
Note: the groups have changed names over time and are classified here along political lines, distributing the seats accordingly.
Source: authors’ compilation from European Parliament data.

The 2008 economic and financial crisis brought changes to the political parties in Spain. With the advent of Podemos and Ciudadanos, Spanish MEPs have also diversified. This accounts for the fact that Figure 2 shows a current national profile that differs from previous legislative terms. Whereas the number of MEPs affiliated to the EPP and S&D have fallen, members of GUE/NGL (likewise the Greens/EFA) and ALDE have risen –precisely because of the success of Podemos and Ciudadanos. The election in May will act as a barometer for measuring the extent to which the multi-party system and the current positions of the parties in the European Parliament has been consolidated.

Predictions for the new political cycle: 2019-2024

For the second time in the history of its direct elections the European Parliament has published detailed opinion polls9 with forecasts of results. The report is based on polls carried out in all the member states, including Spain. According to the new report, published on 18 April, and in line with what has happened in national elections in recent years, an increase in parliamentary fragmentation can be expected, with falls in support for the centre-right and centre-left.

In the new parliament the groups will need to redouble their efforts to secure a majority. The socialist-Christian democrat consensus of recent decades will no longer be decisive when it comes to shaping the European Parliament. For the first time in the history of the elections the two central blocs will not command a majority in the European Parliament. Moreover, the VoteWatch Europe organisation10 estimates that 55%-60% of MEPs will be new. Put another way, more than half of MEPs will require time to adapt to the institution and a significant part of the collective institutional experience will be lost in this parliament.

Turning to Spain in particular, as Figure 3 shows, the predictions suggest that PSOE will be the largest political party, with 18 seats, followed by PP, with 13. The third largest group will be the coalition of Podemos and Izquierda Unida (United Left), which is running in the election as the Unidas Podemos coalition (UP). Ciudadanos and VOX will follow hard on their heels but, given the time that still remains before the election, this order could change. Lastly, the Ahora Repúblicas (Republics Now) coalition is forecast to win two seats.

Figure 3. Predictions for the new legislative term, 2019-2024
National Party Abbreviation Group in the European Parliament Number of MEPs (prediction for May 2019)
PSOE PSOE S&D 18
PP PP EPP 13
Unidas Podemos Coalition UP coalition GUE/NGL & Greens/EFA 8
Ciudadanos Cs ADLE 7
VOX VOX 6
Coalición Ahora Repúblicas Ahora Repúblicas coalition Greens/EFA 2
Source: Report of the European Parliament, April 2019.

If all the member states are taken together, according to the European Parliament report PSOE could become the largest component (or the second-largest, in competition with the British Labour Party) in the S&D group in the European Parliament. Similarly, Spain could have the greatest number of MEPs in the federal European United Left/Nordic Green Left (GUE/NGL) group with its representatives from the Unidas Podemos coalition.

Ciudadanos will be among the three largest parties that make up the Alliance of Democrats and Liberals for Europe (ALDE). PP will be able to claim a place as one of the three main political forces in the European People’s Party, vying for this role with Fidesz of Hungary and the Republicans of France. Bearing this in mind, Spanish political parties stand a good chance of playing more important roles in their future political groupings. This could represent a major opportunity for enhancing Spain’s impact on the European Parliament and, by extension, joining forces to ensure a greater degree of influence for Spain in Europe.

The day after 26 May: what does Spain need?

If Spain is to secure greater room for manoeuvre it needs an EU strategy that takes advantage of its strengths and minimises its weaknesses. Such a strategy, which needs to be state-driven rather than party-driven, does not currently exist. A joint strategy has never been hammered out between all the political parties, although it is true that they are capable of close cooperation when some ‘flare-up’ breaks out threatening Spanish interests. Elaborating a strategy would help the country increase its impact in Brussels and the other centres of EU power.

It is worth pondering which areas a grand agreement should cover. Clearly the creation of a strategy, including foreign policy, requires a consensus between political parties. This links to the internal situation in the country. It is important to emphasise that national stability will also determine the role that Spain can play at a European level. If it continues to be hostage to the separatist tensions in Catalonia, its efforts on the European political stage will be affected. It should not be forgotten that just as the separatist movement strives to internationalise the Catalan procés, Spain exerts energy in rebutting it; energy that could very well be expended on other issues. Settling this crisis would therefore pave the way to greater Spanish influence abroad.

The parties should study which areas need to be prioritised to determine their European strategy. As far as foreign policy is concerned, is it the fight against climate change, renewable energy policy or controlling borders? It will be very important to set out the areas where Spain enjoys comparative advantages. The lack of an internal debate about the future of integration and the role of Spain in the project –European politics as an issue was completely absent from the parties’ campaigns in the general election– restricts the likelihood of having an impact. Without a major debate about Spain’s influence abroad, setting out clear and feasible aspirations, it will not be possible to have an effective strategy capable of being put into practice.

Another possible approach would be to create synergy between the countries of southern Europe. There are examples of influence exerted by regional groups of countries, such as the Visegrád Group and the New Hanseatic League. These groups defend their positions on key issues and try to exert the greatest influence possible by taking advantage of their geographical position. Spain could start to construct its regional role, turning first towards Portugal. The creation of an Iberian strategy could be beneficial for both countries.

Lastly it is important to underline that Spanish MEPs will need to secure key posts in the European Parliament, starting with the group presidencies and followed by the rapporteur postson major issues, thereby strengthening their influence in parliament. This is why it will be necessary to lay the groundwork and make preparations before and after the election, choosing the battles between the political parties and preparing to fight within the political groups. Spain should not miss the boat when it comes to securing greater influence.

Conclusions

This analysis summarises the situation of Spain in the European Parliament over recent decades. It refers not only to the key posts that Spaniards have occupied but also the role of its political parties. An overview of the past may serve as the basis for strategy in the forthcoming parliament. There are three key suggestions for the future:

  • The European election campaign will need to ensure that the Spanish parties set out their European aspirations and that the candidates explain the role that the European Parliament plays and how this institution can provide leverage leading to greater influence abroad. In the absence of this it is impossible for the electorate to appreciate the importance of their votes.
  • There will need to be a period of reflection among the parties after the European election to design a joint strategy aimed at enhancing Spain’s influence. We all know the oft-repeated refrain: the country punches below its weight, but very rarely does it engage in dialogue and joint endeavour in a strategic and concerted manner to meet this challenge.
  • Of utmost importance for the first two suggestions, it will be necessary to overcome fragmentation and tap into the relative strength of PSOE, UP, PP and Cs in their respective political groups in the European Parliament. Despite the highly polarised nature of national politics at this juncture, the parties will need to try to overcome this abroad. By agreeing a joint national strategy, each party will be able to play an important role in shaping committees, reports and certain key posts.

Ilke Toygür
Analyst, Elcano Royal Institute | @ ilketoygur

Carlos Carnicero Urabayen
Journalist | @CC_Urabayen


1 The working group comprises Spanish players with a permanent or habitual presence in Brussels, including MEPs, Spanish civil servants at European institutions, business managers, members of other civil society entities, press correspondents and representatives of the Spanish government and administration, particularly staff at Spain’s Permanent Representation at the EU (REPER). The identity of members is confidential in order to encourage a greater atmosphere of trust and understanding.

2 The currently available publications are: (1) L. Simón, I. Molina, E. Lledó & N. Martín (2019), ‘Hacia un ecosistema de influencia española en Bruselas’, ARI nr 30/2019, Elcano Royal Institute, 11/III/2019; (2) E. Lledó & M. Otero Iglesias (2019), ‘Los intereses españoles en la agenda digital y la política industrial de la UE’, ARI nr 39/2019, Elcano Royal Institute, 5/IV/2019; (3) I. Molina & N. Martín (2019), ‘La crisis catalana y la influencia de España en Bruselas’, ARI nº 42/2019, Elcano Royal Institute, 25/IV/2019; and (4) F. Steinberg (2019), ‘La influencia de España en la política económica de la UE’, ARI nr 43/2019, Elcano Royal Institute, 29/IV/2019.

5 For the present purposes a series of key posts at the European Parliament have been chosen (the president of the institution, the vice-presidents, the chairs of the committees, subcommittees, temporary committees, committees of joint delegations, delegations and parliamentary assemblies) to measure the influence of the Spanish representatives. The authors would like to thank the Office of the European Parliament in Madrid for its help in compiling these data.

6 German, French, Italian and British MEPs were used for the purposes of comparison because these, together with Spain, represent the five largest countries in the EU. The data only encompass the period starting in 1986, when Spain joined the EU. All the figures are drawn from this period.

7 The UK has announced that it is going to hold elections to the European Parliament and therefore Spain will once again have 54 seats. In the event of the UK’s departure, Spain will send five more MEPs (in accordance with the results of the election on 26 May 2019).

8 Spain joined the EU in 1986 and held elections to the European Parliament in 1987. Simultaneous municipal and regional elections were held with the aim of improving the turnout (electing the 60 MEPs that were allotted to Spain at this time).

9 For the most recent report see ‘European Elections 2019’.

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<![CDATA[ Legal challenges and the practicability of disembarkation centres for illegal migrants outside the EU ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari53-2019-kunnecke-legal-challenges-disembarkation-centres-illegal-migrants-outside-eu 2019-05-16T02:54:13Z

This paper analyses the legal challenges and practicability of establishing of disembarkation centres for illegal migrants outside EU territory.

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Theme

This paper analyses the legal challenges and practicability of establishing of disembarkation centres for illegal migrants outside EU territory.

Summary

To ensure the EU does not again face a situation like the refugee crisis of 2015-16 various options are being discussed. One solution might be the establishment of disembarkation centres for illegal migrants outside EU territory. This paper analyses the legal challenges and practicability of such centres, taking into account the following: (1) the establishment of disembarkation centres outside the EU by international treaties; (2) the exercise of sovereign powers in these centres; (3) the establishment of a common mechanism of distribution and compensation for the admission of migrants; and (4) the readmission of refused migrants from these centres.

Analysis

Introduction

In the aftermath of the migration crisis of 2015 within the EU and its Member States, many ideas were discussed as to how to get the uncontrolled mass immigration into EU territory under control. All players, no matter whether officials from the EU or its Member States, agreed that there should be no repeat of the situation of 2015-16.

Although all relevant players, apart from some human-rights activists, shared the same goal, the way to reach it remained controversial. Some countries preferred a common European solution to the challenges of illegal mass migration, some relied on themselves, or on cooperation with other countries with similar political convictions, in order to stop incoming illegal migrants. The most prominent measure on the EU level was the conclusion of the so-called Refugee Deal with Turkey of 18 March 2016. On the national level, the closure of the Balkan route by the Eastern European countries of Macedonia, Slovenia, Serbia and Croatia on 9 March 2016 marked the most prominent measure against the uncontrolled flow of illegal migrants into the EU.

Echoing the discussions elsewhere in the developed world on how to outsource the contentious asylum process and how to cut down on the flow of arrivals of illegal migrants, the heads of State or government of the EU Member States discussed at the EU summit in Brussels on 28 June 2018 the possibility of establishing centres for illegal migrants outside EU territory. The heads of State or government of the EU Member States agreed on exploring ways to build new centres, probably in Africa, where migrants could be screened for asylum and from where only legitimate refugees might move on to the EU. Although they said that these centres in outside countries would operate in ‘full respect of international law’,1 the European Council addressed neither the question of the legal admissibility and practicability of their establishment nor the question of how and where refugees would be resettled. Exploring the legal and political practicability of the so-called concept of regional disembarkation platforms was left to the Council of the EU and the EU Commission. The answer to both open questions remains crucial to further EU asylum policy. In the event of non-conformity with international law, the EU’s concept of regional disembarkation platforms will not serve as a possible resort for a common asylum strategy at all. But even if these regional disembarkation platforms outside the EU are in conformity with international law, it would continue to be difficult to establish them because some countries in the bloc have refused to accept them2 and swift handling of asylum seekers is necessary to prevent a backlog.

It is the aim of this paper to provide an analysis of the legal challenges and practicability of centres for illegal migrants outside the EU, or, in the words of the European Council: regional disembarkation platforms. This paper should serve as a solid legal basis for further discussion about whether these centres can be a possible option for a common asylum strategy within the EU to provide a more effective handling of illegal migration to EU countries. The paper does not aim to assess the political chances of success of the EU’s concept of regional disembarkation platforms.

Our examination of the legal practicability of disembarkation centres for illegal migrants outside the EU starts with the question of whether these centres for illegal migrants to the EU –for example in Africa– can be established by international treaties. Secondly, we examine if the EU can exercise sovereign powers in these centres, ie, apply asylum procedures on its own authority. Thirdly, we discuss the possibility of a common EU mechanism of distribution and compensation for the admission of migrants. Finally, we demonstrate how the re-admission of refused migrants from the centres can be carried out in compliance with international law.

Is the establishment of disembarkation centres for illegal migrants outside the EU subject to international treaties?

As the establishment of disembarkation centres for illegal migrants outside the EU would concern the exercise of sovereign power outside EU territory, these proposed centres could only be legally created if created by an international treaty. An international treaty is an international agreement concluded between States or international legal personalities in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.3 The basic rules for the signing of international treaties are laid down in the Vienna Convention on the Law of Treaties (VCLT) of 1969 .

Accordingly, the establishment of disembarkation centres for illegal migrants outside the EU would have to be an approvable subject of an international treaty between the EU and the host countries for the proposed centres. In general, States and other international legal personalities can freely determine the subject matter of their international treaty to be signed. However, according to Arts. 34 and 35 of the VCLT, such a treaty may not create any obligations for a third State without its consent, unless the third State expressly accepts that obligation in writing. As a treaty on the establishment of a centre for illegal migrants outside the EU would be signed by the EU as one party to the treaty and the host State of the disembarkation centre as the other party, it would not create any obligation for a third State. As such, there is no problem with third States not being involved in the agreement. Therefore, these Articles do not serve as an obstacle to such a treaty.

Furthermore, a treaty on the establishment of disembarkation centres for illegal migrants outside the EU must not violate public international law. According to Art. 53 of the VCLT the treaty must not conflict with a peremptory norm of general international law. A peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole, as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Consequently, a treaty on the establishment of disembarkation centres for illegal migrants outside the EU would have to be in conformity with a peremptory norm of general international law, the so-called ius cogens. Part of the internationally recognised ius cogens are first and foremost the minimum standards of human rights that can be derived from the core constituents of international documents on the protection of human rights. These include, for instance: the prohibition of the use of violence (Art. 2 IV of the UN Charter); the prohibition of genocide and crimes against humanity (Art 3 of the  Geneva Conventions); the right to life (Art. 6 of the ICCPR); the prohibition of race discrimination (Art. 4 of the ICCPR); and the prohibition of torture and of slavery ( Arts. 7 and 8 of the ICCPR). As the establishment of disembarkation centres for illegal migrants outside the EU does not imply the violation of any of these human rights, it is not in breach of any peremptory norm of general international law. There is currently no newly emerging peremptory norm of general international law that might lead to the nullification and termination of the treaty, as stated in Art. 64 of the VCLT.

In addition, Art. 42 I of the Geneva Convention must be taken into account. Due to that provision, in an international treaty on refugees no reservations to Articles 1, 3,4, 16 I, 33 and 36-46 may be made. These articles forbid the treaty to narrow the definition of the term ‘refugee’ as laid down in Art. 1 of the 1951 Refugee Convention. Likewise, they prohibit the treaty from violating the equal treatment of refugees (Art. 3), their right to practice their religion and freedom as regards the religious education of their children (Art. 4), and their free access to the courts of law on the territory of all Contracting States of the 1951 Refugee Convention (Art. 16 I). Furthermore, and this is a crucial point for any international treaty on the establishment of disembarkation centres for illegal migrants outside the EU, the treaty cannot violate the non-refoulement principle. This principle is guaranteed in Art 33.1 of the 1951 Refugee Convention and states that ‘no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Arts. 36-46 of the 1951 Refugee Convention are procedural final clauses with no relevance to the content of any international treaty on the establishment of disembarkation centres for illegal migrants outside the EU. Accordingly, any international treaty on the establishment of disembarkation centres for illegal migrants outside the EU has to guarantee the illegal migrants in these centres (ie, refugees and asylum seekers) equal treatment, freedom of religion, free access to courts of the EU and non-refoulement in the event of their lives or freedom being threatened in another territory. Complying with these requirements, an international treaty establishing disembarkation centres for illegal migrants outside the EU could be signed if in line with the aforementioned requirements of international law.

The next question is if the EU, as an international governmental organisation, has the competence for signing such an international treaty with a possible host country. Article 47 of the Treaty on the European Union (TEU) explicitly recognises the legal personality of the EU, making it an independent entity in its own right. Accordingly, as laid out in Art. 216 of the Treaty on the Functioning of the European Union (TFEU), the EU has the ability to negotiate and sign international agreements ‘with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’. As opposed to individual Member States, the EU is not a State party to the Geneva Convention of 1951. To date, the EU’s formal accession to the Convention has not been realised. Therefore, the EU itself is not bound by the Convention as a matter of public international law. Nevertheless, Art. 78 I of the TFEU states that the EU’s ‘common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection… must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’. These other relevant treaties include the European Convention on Human Rights (ECHR), the EU Charter of Fundamental Rights, the Convention on the Rights of the Child, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In line with the general principles of EU law, this also encompasses other potential treaties that might be signed in future by all EU Member States.4 Accordingly, any EU asylum acquis must be in compliance with the Geneva Convention and the 1967 Protocol. Non-compliance constitutes an infringement of Art. 78 I of the TFEU. As an integral part of EU law, the Geneva Convention of 1951 remains a subject to the interpretative principles of public international law.

Article 78 of the TFEU (signed in Lisbon in 2007) raised the Common European Asylum System (CEAS), first introduced by the European Council in Tampere in 1999, to a legally-binding objective of the EU’s primary law. According to Art. 78 II of the TFEU, the EU legislation on asylum is part of the shared competences between the EU and its Member States. This requires that any EU legislation in this area must comply with the principles of subsidiarity and proportionality. A shared competence consequently limits EU action to initiatives that cannot be sufficiently achieved at the national level and remain limited in terms of regulatory intensity to what is necessary to achieve legitimate policy objectives. However, as the far-reaching Common European Asylum System is a specific objective of the Lisbon Treaty, the application of these principles of subsidiarity and proportionality requires a certain generosity.5 In other words: in this case, the principles cannot be applied strictly, because otherwise the Treaty objective could not be reached at all. Article 78 II (a) of the TFEU explicitly allows the agreement on a ‘uniform status of asylum’. Consequently, the objective of a uniform asylum status implies that the principles of subsidiarity and proportionality do not prevent EU action in normal circumstances. As the drafting history and the general scheme of the EU Treaties argue in support of a substantive congruence of the EU’s asylum status and the refugee status of the 1951 Geneva Convention, the Common European Asylum System is, therefore, founded on the Convention.6 This is confirmed by the reference in Art. 78 I of the TFEU. Thus, EU legislation on the basis of Art. 78 II (a) of the TFEU must specify the meaning of the 1951 Geneva Convention. EU secondary legislation concerning asylum, such as the Asylum Qualification Directive 2011/95/EU, the Asylum Procedure Directive 2013/32/EU, the Asylum Reception Conditions Directive 2013/33/EU, the Dublin III Regulation (EU) No 604/2013 and the Regulation (EU) No 439/2010 establishing the European Asylum Support Office (EASO) in Malta must be interpreted in the light of the 1951 Geneva Convention.

The TFEU does not restrict the geographical scope of the provision on asylum procedures. In particular, it does not specify whether common ‘procedures for the granting and withdrawing of uniform asylum or subsidiary protection status’ should necessarily apply within the territories of the Member States. Specifically, the drafting history of Art. 78 II (d) of the TFEU shows that the exterritorial processing of asylum applications is also covered by the TFEU, always taking into account that these procedures, wherever they take place, must comply with international refugee law and human rights.7 However, in accordance with the EU’s supranational structure, the EU is only authorised to legislative harmonisation and administrative support in cases of asylum. The decisions on granting asylum to an individual are still taken at the national level by the Member States. At present, Art. 78 of the TFEU does not provide a sufficient legal basis for examining asylum applications by EU authorities, such as EASO, instead of national authorities of each Member State. Establishing a specific EU authority to decide upon asylum applications replacing the Member States’ asylum bureaucracy, would require a Treaty change in accordance with Art. 48 of the TFEU. However, on the basis of the existing Art. 78 II (d) of the TFEU, the EU can support transnational cooperation between the Member States.

Article 78 II (g) of the TFEU established an explicit legal basis for ‘partnership and cooperation with third countries’. This offers the EU the possibility of cooperating with third countries even in situations in which the adaption of secondary legislation does not result in an exclusive external treaty-making competence. However, Art. 78 II (g) of the TFEU itself does not provide sufficient legal basis for the establishment of disembarkation centres for illegal migrants outside the EU on the territory of third countries. It only serves as a legal basis for cooperation with third countries on the level of EU competences. As mentioned above, the EU does not have the competence to run asylum procedures on its own instead of the Member States’ authorities. Therefore, only in combination with Art. 78 II (d) of the TFEU could the EU justify future EU legislation providing for external asylum processing centres that would have to be run by the Member States. Art. 78 II (g) of the TFEU could be used to guarantee a favourable political and administrative context by cooperation with the possible host States of the disembarkation centres for illegal migrants, to enable its Member States to run the centres outside the EU themselves with the financial and operative support by the EU. For that purpose, the EU would have the competence to sign an international treaty with a possible host country on the establishment of disembarkation centres for illegal migrants outside EU territory.

Fulfilling all the aforementioned requirements of an international treaty, the signing of a treaty on the establishment of centres for illegal migrants outside the EU would be in accordance with international law and would be binding to its parties, according to Art. 26 of the VCLT. None of the parties, ie, neither the EU nor the country hosting the disembarkation centre, could, according to Art. 27 of the VCLT, invoke the provisions of its internal law as justification for its failure to execute a treaty. The binding effect for the EU and its Member States is explicitly guaranteed in Art. 216 II of the TFEU that states that ‘agreements concluded by the Union are binding upon the institutions of the Union and on its Member State’.

Can the EU exercise sovereign powers in these centres?

In its international treaty with a possible host country on the establishment of disembarkation centres for illegal migrants outside EU territory, the EU could receive the permission of the host State to exercise its own sovereign powers in these disembarkation centres. Within the freedom of contract, the host State is entitled to assign this power to the EU. However, as the EU –on the basis of the existing TEU and TFEU– currently does not have the competence to run asylum procedures on its own instead of the Member States’ authorities, it could only provide its Member States with the financial and operative support to establish and run these external asylum processing centres. Within the Common European Asylum System (CEAS), the EU could only function as contract party to the host State for the establishment of such disembarkation centres, which would be run by the Member States and its asylum authorities. The sovereignty in these disembarkation centres for illegal migrants would, in fact, be exercised by the Member States as long as there is no Treaty change in accordance with Art. 48 of the TEU replacing the Member States’ asylum bureaucracy and giving the authority to decide upon asylum applications to the EU.

Exercising their sovereign rights in these disembarkation centres, the EU Member States would be responsible for the organisational and institutional framework. In accordance with their national asylum law, they could either operate the centres on their own using their national administrative staff or they could licence Intergovernmental Organisations (IGOs) like the United Nations High Commission on Refugees (UNHCR) with the operation. Crucial for the operation of these disembarkation centres for illegal migrants outside the territory of the EU is that they are run in accordance with the obligations of fundamental and human rights laid down in international human rights documents, such as the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR) and the Geneva Convention, as well as in the national constitutions of the Member States.

The EU Member States that run these disembarkation centres outside the EU would have to decide for themselves if the extra-territorial asylum procedure carried out in these centres should complement, or replace, their national asylum procedure. This decision is crucial as regards the legal consequences of the asylum decisions being made in the disembarkation centres outside the Member State’s own territory.

The first option is a complementary extra-territorial asylum procedure. This could serve either as an additional offer, or as a freely selectable alternative to the existing national asylum procedure. If the services of the Member States in the disembarkation centres are not only offering help or advice, it means that the services performed are acts of sovereignty. In this case, as acts of sovereignty, they must be in accordance with the fundamental rights guaranteed in the constitution of that Member State. Making use of this complementary extra-territorial asylum procedure, the asylum applicant’s domestic position in the Member State must not deteriorate. It may only be applied to give the applicant an additional option strengthening his legal position. The complementary extra-territorial asylum procedure could be operated in analogy to the airport procedure of asylum cases (Art. 43 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection), where the asylum procedure is conducted in a transit zone before the asylum seeker is allowed to enter the country in which he or she applies for asylum. According to Chapter II of Directive 2013/32/EU, in this transit zone the asylum seeker has to be given free access to effective legal remedies, such as independent consulting and advisory services in the national asylum law (Art. 8, 12 I (c), Arts. 20-23). Accordingly, in the extra-territorial disembarkation centres each EU Member State would have to guarantee the asylum seekers the same amount and quality of legal remedies as on its own State territory. The complementary extra-territorial asylum procedure would have to be in compliance with the minimum procedural requirements laid down in Chapter II of Directive 2013/32/EU, such as free access to interpreters, legal consultancy and official hearings. All legal remedies being offered in the Member State’s asylum law must be guaranteed, including the access to the appropriate administrative courts. In addition, the disembarkation centres would have to offer the asylum seeker accommodation and services (eg, food and healthcare) for the duration of the entire asylum procedure.

The second option is a replacing extra-territorial asylum procedure. This option would relocate the entire asylum procedure from the territory of the EU Member State to the territory of a third country. Consequently, all asylum seekers who seek asylum in a specific Member State would be expelled, or deported, from that Member State’s territory to the disembarkation centre abroad where they could only apply for asylum and where their asylum procedure would be executed. As no asylum procedures would be carried out on the Member State’s own territory anymore, each EU Member State would have to establish an entry ban for newly incoming asylum seekers to its own State territory and an obligation to leave the State territory for the duration of the asylum procedure in the event of the asylum seeker having already entered the country. This would also apply in the complementary extra-territorial asylum procedure. In replacing the extra-territorial asylum procedure the disembarkation centres in third countries would have to be operated in compliance with the Member State’s national asylum laws, guaranteeing the asylum seeker an asylum procedure in accordance with the rule of law, including free access to interpretation services, legal consultancy and official hearings, as well as offering him or her accommodation and services for the duration of the entire asylum procedure.

However, there would be no need for the protection of the EU and its Member States in the event of the asylum seeker entering from a safe third country, or in the event he or she enjoys sufficient protection in a third country from where they enter the EU.

It could be argued that disembarkation centres for illegal migrants outside the territory of the EU fulfil the requirements of safe third countries, with the consequence that no EU Member State would have to grant asylum to asylum seekers who apply for it in these centres. According to Art. 3 III of the Dublin III Regulation ‘any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU’. However, the concept of a safe third country in Art. 38 of Directive 2013/32/EU explicitly mentions only a ‘safe third country’. A disembarkation centre in a safe third country is not a country in the formal sense of the term, because it does not fulfil any of the legal requirements of a State (State territory, State population and government authority). Therefore, a disembarkation centre outside the EU cannot be considered as being covered under the term ‘safe third country’ in Art. 38 of Directive 2013/32/EU. This interpretation would go beyond the wording of the Article.

Not falling under the concept of safe third country of Art. 38 of Directive 2013/32/EU, disembarkation centres for illegal migrants outside the territory of the EU could be considered a ‘flight alternative’ in the sense of the Directive. In that case, EU Member States could consider an asylum seeker’s application for asylum inadmissible if he or she comes from ‘a country which is not a Member State [and which] is considered as a first country of asylum for the applicant’. According to the concept of safe third country in Art. 35 (b) of Directive 2013/32/EU, ‘a country can be considered to be a first country of asylum for a particular applicant if he or she enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement’. An asylum seeker in a disembarkation centre run by an EU Member State would definitely enjoy sufficient protection in that centre. However, under Art. 38 of Directive 2013/32/EU, the disembarkation centre does not fulfil the legal requirements of a country. Therefore, a disembarkation centre outside the EU, where EU Member States run extra-territorial asylum procedures, cannot be considered a country providing the asylum applicant with sufficient protection. Consequently, the EU Member States would be obliged to proceed with any asylum application being made in these centres as if the application had been received on their own national territory.

How can the EU legally establish a common mechanism of distribution and compensation for the admission of migrants?

To prevent ‘forum shopping’ and the phenomenon of ‘refugees in orbit’,8 where asylum seekers are referred from one Member State to another by claiming it is not responsible for them, the EU was in need of determining which Member State is responsible for examining asylum applications. Article 78 II (e) of the TFEU gives the EU legislator (the European Parliament and the Council of the EU) the competence to set up ‘criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection’. On these legal grounds the so-called Dublin III Regulation was enacted. Using the terms ‘criteria’ and ‘mechanisms’, and Art. 78 II (e) of the TFEU itself, does not set narrow confines for modifying existing rules. For instance, it enables the EU legislator in accordance with the ordinary legislative procedure to establish a quota system allocating asylum seekers among Member States on the basis of a specific distribution key, or certain relocation mechanisms.

Therefore, parallel to the establishment of disembarkation centres for illegal migrants outside the EU, an appropriate common EU mechanism for the distribution of the incoming legal migrants could be created, taking into account the factual burden of each Member State in terms of asylum applicants in the disembarkation centres. In realisation of the purpose of a Common European Asylum System (CEAS) such a mechanism would be subject to EU secondary legislation in accordance with Art. 78 II (e) of the TFEU. On the initiative of the EU Commission, the European Parliament and the Council of the EU could adopt appropriate measures in accordance with the ordinary legislative procedure. The EU legislator would have to agree on a specific distribution or relocation mechanism, including a distribution/relocation key among the EU Member States that participate in the disembarkation centres for illegal migrants outside the territory of the EU.

In the event that not all EU Member States participate in running these disembarkation centres and allow recognised asylum seekers to enter their territory, the EU could oblige the non-participating Member States to contribute to handling the asylum issue. In this respect, the EU could refer to the principle of solidarity laid down in Art. 80 of the TFEU, which generally obliges other Member States to support those that take more responsibilities upon themselves in managing the Common European Asylum System. Art. 80 of the TFEU refers to the policies of the EU laid down in Arts. 77-79 and states that ‘their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States’. The implementation of this obligation can be effected in various ways, for instance, by financial or operational support. Accordingly, the EU could agree on a certain compensation mechanism for the Member States that do not participate in running the disembarkation centres. They could be obliged by the EU legislator in accordance with the ordinary legislative procedure to pay financial compensation for not taking part in the asylum procedure run in the disembarkation centres, or to provide operational or logistical support for the participating Member States.

How can readmission of refused migrants from the centres legally take place?

At the end of each asylum procedure being conducted by the EU Member States in the disembarkation centres for illegal migrants outside EU territory EU according to their national asylum law, there will be a final decision: either the asylum seeker is granted asylum or the application is rejected. In cases of asylum being granted, the asylum seeker is entitled to enter the country that granted him or her asylum status and he or she is given residence status. In the other cases, when the asylum seeker’s application is rejected in a legally binding way, he or she would have to leave the disembarkation centre. In these cases, the EU Member States must have ways of deporting the rejected applicants.

An agreement on repatriating rejected asylum seekers to their transit countries, or countries of origin, must be a subject in any international treaty regarding centres outside the EU. As with the establishment of disembarkation centres for illegal migrants outside the EU, the agreement would have to be in accordance with the relevant provisions of the VCLT of 1969. As the rejected asylum seekers’ transit countries, or countries of origin, would sign the readmission agreement voluntarily and as it would create obligations only between the signatory States, the agreement would be in accordance with Art. 34 & Art. 35 of the VCLT, according to which a treaty may not create any obligations for a third State without its consent unless the third State expressly accepts that obligation in writing. According to Art. 53 VCLT, a readmission agreement may not conflict with a peremptory norm of general international law. As the readmission of rejected asylum seekers does generally not imply the violation of any of the human rights mentioned above, it is not in breach of any peremptory norm of general international law. However, since the principle of non-refoulement is not only part of international customary law but also laid down in Art. 33 I of the 1951 Refugee Convention, in EU primary law in Art. 19 of the EU Charter of Fundamental Rights, in Art. 78 I of the TFEU and as in EU secondary law in Art. 5 of the EU Repatriation Directive 2008/115/EC, these laws have to be adhered to in the text and implementation of any readmission agreement. Accordingly, such an agreement would not violate any norm of international law and could, therefore, be signed effectively into law. Due to Art. 26 of the VCLT, it would be binding to its parties and none of the signatories could, according to Art. 27 of the VCLT, invoke the provisions of its internal law as justification for its failure to perform a treaty.

As the signing of readmission agreements with rejected asylum-seekers’ transit countries, or countries of origin, is in accordance with international law, it is questionable who is competent to conclude these agreements: essentially, whether it is within the competence of the Member States who run the disembarkation centres or within the competence of the EU? Due to Art. 79 III of the TFEU, ‘the [European] Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States’. Accordingly, the EU has the competence to sign readmission agreements with third countries in order to return rejected asylum seekers from the disembarkation centres abroad to either their countries of origin or their transit countries. According to Art. 4 I (j) of the TFEU, this competence to sign readmission agreements with third countries is part of the shared competence between the EU and its Member States. That means that the Member States can conclude their own readmission agreements with third countries in accordance with the principles of subsidiarity and proportionality, as long as the EU does not negotiate, or sign, a readmission agreement with the same country. EU agreements precede the agreements of Member States in this area.

The EU has already negotiated and signed readmission agreements with several countries of origin and transit with a view to returning illegal migrants and cooperating in the fight against trafficking in human beings.9 Usually, these agreements are linked to visa facilitation agreements, which aim to provide the necessary incentive for readmission negotiations in the third country concerned, without increasing illegal migration. In practice, for its readmission agreements with third countries the EU Commission uses an unpublished model readmission agreement which is constantly adapted and developed further in coordination with the Member States.10 In its eight chapters, these EU readmission agreements with third countries deal with procedural and technical arrangements concerning readmission, the obligation of receiving, the means of providing proof and furnishing prima facie evidence, deadlines and time targets, as well as the distribution of costs in the readmission procedure.

Conclusions

As result of the legal analysis presented in this paper, it can be stated that the EU, as an international governmental organisation with its own legal personality, has the competence for signing an international treaty with a possible host country on the establishment of disembarkation centres for illegal migrants outside EU territory. This treaty would be in accordance with the Vienna Convention on the Law of Treaties (VCLT) of 1969, and its content would have to be in compliance with the Geneva Convention of 28 July 1951 and the 1967 Protocol. However, in accordance with the status quo of the Common European Asylum System (CEAS), where –on the basis of the existing TEWU and TFEU– the EU currently does not have the competence to run asylum procedures on its own instead of the Member-State authorities, it can only sign a treaty with a third country on the establishment of disembarkation centres for illegal migrants outside EU territory. As long as there is no Treaty change replacing the Member States’ asylum bureaucracy and giving the authority to decide upon asylum applications to the EU, the EU can only function as a contract party to the host state for the establishment of such centres. The disembarkation centres themselves would have to be run by the EU Member States and their asylum authorities. As such, only the EU Member States can exercise their sovereignty in asylum issues in these disembarkation centres for illegal migrants. The Member States –no matter if they opt for a complementary or replacing extra-territorial asylum procedure– would have to provide the asylum applicant with sufficient rights and protection during the entire asylum procedure and they would be obliged to proceed with any asylum application being made in these centres as if the application had been received on their own national territory. The EU can only financially and operatively support the Member States in this procedure but is not entitled to interfere in their asylum procedures. However, the EU legislator can agree on a specific distribution, or relocation mechanism, including a distribution/relocation key among the EU Member States that participate in the disembarkation centres for illegal migrants outside EU territory. The Member States that do not participate in running the disembarkation centres can be obliged by the EU legislator to pay a financial compensation for not taking part in the asylum procedure run in the disembarkation centres or to provide operational or logistical support for the participating Member States. For cases where, in accordance with the Member State’s national asylum law, the asylum seeker’s application in the disembarkation centres is rejected in a legally binding way, the EU has the competence to sign readmission agreements with third countries in order to return the rejected asylum seekers from the disembarkation centres abroad to either their countries of origin or their transit countries. In conclusion, from the legal point of view, there are no obstacles to the European Council’s plan of establishing disembarkation centres for illegal migrants outside EU territory. However, whether the plan is also politically practicable and can find the necessary support among EU institutions, the Member States and the possible contractual partners, remains unclear.

Prof Dr Dr Arndt Künnecke
Federal University of Applied Sciences for Public Administration, Brühl, Germany



1 European Council meeting (28 June 2018) – Conclusions, EUCO 9/18, p. 2, (accessed 14/I/2019).

2 See Alfred Hackensberger & Christian Putsch (2019), “Asylzentren außerhalb der EU – das sagen die betroffenen Staaten”, WELT Online, (accessed 15/I/2019).

3 Art. 2 VCLT.

4 See Kay Hailbronner & Daniel Thym (2016), ‘Constitutional framework and principles for interpretation’, in Kay Hailbronner & Daniel Thym (Eds.), EU Immigration and Asylum Law, 2nd edition, München, MN 55.

5 See Steve Peers (2016), EU Justice and Home Affairs Law: EU Immigration and Asylum Law, 4th edition, Oxford, p. 393; and Matthias Rossi (2016), ‘Article 78 TFEU’, in Christian Calliess & Mattias Ruffert (Eds.), EUV/AEUV, 5th edition, München, para. 11.

6 Hailbronner & Thym (2016), op. cit., p. 1032, FN 54.

7 Ibid, p. 1037.

8 Hailbronner & Thym (2016), op. cit., p. 1024.

9 So far the EU has signed readmission agreements with the following States, all being now in force: Albania (1/V/2006), Bosnia and Herzegovina (1/I/2008), Georgia (1/III/2011), Hong Kong (1/III/2004), Macao (1/VI/2004), Macedonia (1/I/2008), Moldova (1/I/2008), Montenegro (1/I/2008), Pakistan (1/XII/2010), Russian Federation (1/VI/2007), Serbia (1/I/2008), Sri Lanka (1/V/2005), Ukraine (1/I/2008), Armenia (1/I/2014), Azerbaijan (1/IX/2014), Turkey (1/X/2014) and Cape Verde (1/XII/2014). The readmission agreement with Kazakhstan was signed on 10/XII/2009 but has not yet entered into force.

10 Nils Coleman (2009), European Readmission Policy, Leiden, p. 88.

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