European Security and Defence Policy (ESDP) – Legal Foundations and Development
Die European Security and Defence Policy (ESDP) was a central element of the European Union’s (EU) Common Foreign and Security Policy (CFSP) and focused on the development of common security and defence structures and operational capabilities. Since the entry into force of the Treaty of Lisbon, the ESDP has transitioned into the Common Security and Defence Policy (CSDP). Below, the legal foundations, institutional framework, areas of responsibility, instruments of action, and further development are comprehensively outlined.
Legal Foundations of the ESDP
Contractual Anchoring
The ESDP was explicitly anchored as part of the European Union for the first time in the Treaty of Amsterdam (1997), and later further developed by the Treaty of Nice (2001) and especially by the Treaty of Lisbon (2009). The legal basis for the ESDP could primarily be found in Title V of the Treaty on European Union (TEU).
Art. 17 TEU (until Treaty of Lisbon):
- The ESDP was part of the Common Foreign and Security Policy (CFSP).
- The goal was to develop a common policy, including a gradual formulation of a shared defence policy.
With the Treaty of Lisbon the ESDP became the Common Security and Defence Policy (CSDP) and was legally anchored in Articles 42 to 46 TEU.
Institutional Link to the European Union
The ESDP was firmly embedded in the EU’s structures from a legal standpoint, but in practice operated as an intergovernmental policy area. Decisions generally required unanimity in the Council.
Relationship with NATO
The legal framework of the ESDP envisioned complementarity with NATO. The so-called “Berlin Plus Agreements” allowed the EU to make use of NATO resources and military planning structures, provided NATO itself chose not to act.
Institutional Design of the ESDP
Council of the European Union
The Council of the European Union (“Foreign Affairs Council” formation) was responsible for the political guidance and decision-making of the ESDP. Decisions were generally made unanimously based on proposals from the High Representative for the CFSP.
High Representative for the CFSP
The High Representative was responsible for the coordination and external representation of the ESDP.
Military and Civilian Structures
To implement the ESDP, several bodies were created:
- EU Military Committee (EUMC)
- EU Military Staff (EUMS)
- Political and Security Committee (PSC): Directed operational measures and monitored their implementation
Tasks and Objectives of the ESDP
The ESDP particularly pursued the following areas of responsibility:
- Common Defence Policy: Establishment of a common European defence identity
- Peacekeeping, Crisis Management, and Conflict Prevention: Conduct of civilian and military operations
- Protection of the values and interests of the EU and its Member States: Strengthening stability and security in the European area
These objectives were specified within the framework of the so-called Petersberg Tasks which, according to Article 17 TEU, enabled operations for humanitarian aid, evacuation operations, peacekeeping measures, and other military contributions.
Legal Instruments and Procedures
Decision-Making and Legal Acts
- Joint Actions: Binding acts of the EU that established specific measures
- Common Positions: Coordination of unified political positions
- Principle of Unanimity: In principle, the agreement of all Member States was required for decisions within the ESDP
Decision-Making Autonomy of the Member States
Member States retained extensive control and autonomy and could, if necessary, choose to abstain (“Constructive Abstention” under Article 31 TEU).
Legal Status of the Missions
Within the framework of ESDP/EU missions, status agreements (Status of Forces Agreements, SOFA) were concluded between the EU and the host country, regulating the rights and obligations of the actors involved.
Transfer of NATO Resources
Legally, the EU could make use of NATO assets based on the Berlin Plus Agreements, subject to NATO’s approval and the availability of the resources.
Further Development into the Common Security and Defence Policy (CSDP)
With the entry into force of the Treaty of Lisbon on 1 December 2009, the ESDP was legally replaced by the CSDP. Key elements:
- Expanded objectives in the area of crisis management and common defence
- Permanent Structured Cooperation (PESCO, Art. 42(6) TEU): Allows individual states to cooperate more closely in military projects
- Mutual Defence Clause (Art. 42(7) TEU): Legal obligation to provide mutual assistance in the event of an armed attack (“mutual assistance clause”)
- Solidarity Clause (Art. 222 TFEU): Obligation to act jointly in the event of terrorist attacks or natural disasters
Legal Status and Significance of the ESDP from Today’s Perspective
Although the ESDP as an independent policy form was institutionally replaced by the CSDP with the Treaty of Lisbon, it forms the historical and legal foundation of today’s European security architecture. The legal experiences gained and mechanisms established continue to shape the EU’s joint security and defence policy actions.
Further Reading:
EU treaties, in particular the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), publications of the German Federal Government and the European Union on security and defence policy.
See also:
- Common Foreign and Security Policy (CFSP)
- Common Security and Defence Policy (CSDP)
- Petersberg Tasks
- Berlin Plus Agreements
Note:
The ESDP is a historically and legally complex part of EU integration and remains of fundamental importance for the development of the European legal system in the field of security and defence.
Frequently Asked Questions
Which legal foundations govern the cooperation of EU Member States within the framework of the ESDP?
The legal foundations of the European Security and Defence Policy (ESDP), today referred to as the Common Security and Defence Policy (CSDP), are laid down in the Treaty on European Union (TEU), especially in Articles 42 to 46. The central provision is Article 42 TEU, which establishes the framework for defence policy and allows specific tasks, such as operations for conflict prevention, to be carried out jointly by the Member States. In addition, the protocol on permanent structured cooperation (Art. 46 TEU in conjunction with Protocol No. 10) regulates the possibility for individual states to enter into deeper cooperation in the field of defence. Decisions within the CSDP are taken unanimously by the Council, although certain operational issues may be subject to a simplified procedure. In general, military commitments within the EU must always be in line with existing alliances, such as NATO (Art. 42 paras. 2 and 7 TEU). The Charter of the United Nations and international law also provide an overarching, binding framework.
To what extent is the CSDP legally binding on EU Member States?
Obligations under the CSDP arise directly from the TEU. As a rule, decisions in the CSDP area are binding on Member States to the extent that they are subject to the special treaty architecture of the CSDP. However, Member States are not required to participate in every operational mission; instead, the principle of voluntary participation is fundamental, as long as there is no unanimity in the Council that leads to a binding decision. Also binding is the so-called mutual assistance clause in Art. 42(7) TEU, which obliges Member States to provide assistance in the event of an armed attack on a Member State’s territory. Nonetheless, the primacy of national sovereignty in defence and the right of each individual state to make its own foreign and security policy decisions remain unaffected.
What role do national parliaments play in the legislative process of the ESDP?
National parliaments, under the European principle of subsidiarity and national sovereignty in the defence sector, have rights of control and participation. The respective national constitutions or security laws generally specify the extent to which approval for participation in missions is required. At the EU level, the Council and the High Representative for Foreign and Security Policy regularly inform national parliaments about developments within the framework of the CSDP (Art. 36 TEU). The European Parliament has only the right to be consulted; decision-making power over specific operations or missions lies solely with the Council and the Member States.
How are responsibilities between the EU and NATO delineated from a legal perspective?
Cooperation between the EU and NATO is regulated by the so-called “Berlin Plus” agreements and the respective obligations under international law of the Member States. Legally, it is established that EU measures under the CSDP must be compatible with the obligations towards NATO and its collective defence mechanisms (Art. 42 para. 2 TEU). Therefore, the EU cannot create its own defence structures that would conflict with the obligations of NATO Member States. There is a division of competences, with security and defence-related competences remaining primarily the responsibility of the Member States under Art. 4 para. 2 TEU.
What legal remedies are available to individuals under the ESDP?
Access by individuals or companies to legal remedies under the ESDP is extremely limited. According to Art. 24(1) sentence 2 TEU, the European Court of Justice (ECJ) is in principle not competent for decisions relating to military or defence policy. However, the ECJ can be seized where the restriction of individual fundamental rights due to sanctions measures—for example, on the basis of CFSP/CSDP decisions—is concerned. In these cases, courts particularly assess the legality of restrictive measures and their compatibility with the EU Charter of Fundamental Rights. For operational decisions, such as the deployment of armed forces, there is no direct legal remedy.
How are decisions within the ESDP implemented and controlled from a legal standpoint?
Decisions and measures within the ESDP are taken by the Council of the European Union under Art. 25 TEU and constitute obligations under international law for the Member States. Implementation takes place at the national level under domestic control, often involving the respective parliaments. European-level oversight is the responsibility of the Council and the High Representative; the European Parliament has only a participatory right in the form of consultation and information. Judicial review of legality is—apart from restrictive measures—only very limited via the European courts.
Are there specific exit clauses or opt-out options for Member States in the area of the ESDP?
The treaties expressly provide opt-out and abstention options for Member States. According to Art. 31(1) and (2) TEU, individual Member States may abstain from a decision (constructive abstention), meaning they are not obliged to support measures they object to. In the context of so-called permanent structured cooperation (PESCO), individual Member States are also free to participate or not. In certain exceptional cases, particularly military operations, Member States have the option to opt out if such participationwould contradict their constitutional or foreign policy principles. However, a general opt-out from the CSDP, as with individual provisions of the Schengen rules, is not provided for by treaty.
