Legal Eye: US missiles and the EU

"The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy..."

Art. 11 - Treaty of the European Union

The Polish and Czech governments recently announced their intention to begin formal talks with the United States to locate an anti-missile defense system within their respective territories. This announcement, made at a joint news conference on February 19 by the prime ministers of both countries, was soon followed by not-so-subtle threats from the Kremlin that it would locate its own missile-defense system in Kaliningrad, which could pose a potential threat not only to Poland, but also to other EU countries, in particular the three Baltic states and Sweden.

All of this saber-rattling begs the question: is this legal? Can Poland and the Czech Republic enter into a new defense agreement with the US without approval of the EU? Doesn't the Treaty of the European Union require each member state to cede control over security matters to the EU? The answer, it appears, isn't so simple.

EU treaty restrictions

EU member states, Poland and the Czech Republic included, are obligated to "support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity" (Art. 11[2]). Moreover, the EU Council of Ministers is charged with the responsibility for defining the overall foreign policy and security guidelines for the EU, including "matters with defense implications" (Art. 13).

This seems clear enough. Member states cannot make unilateral decisions regarding military defense matters. And just to avoid any doubt, Art. 11 requires each member state to "refrain from any action which is contrary to the interests of the Union." It would appear that the leadership of Poland and the Czech Republic may have gotten ahead of themselves in announcing their intention to begin talks with the US, right? Keep reading.

EU treaty exceptions

"The common foreign and security policy shall include all questions relating to the security of the Union, including the progressive framing of a common defense policy, which might lead to a common defense, should the Council so decide..." (Art. 17). Progressive, might, should ... this is becoming a bit wishy-washy. Does the EU have a common defense policy or not? The answer, it turns out, is no. The EU Treaty merely provides for the possibility of establishing a common defense policy, the creation of which is not yet a foregone conclusion. Moreover, the adoption of a common defense policy would require the approval of each member state. The EU Constitution, which was derailed by French voters nearly two years ago, would cede control over foreign policy and defense matters to the EU, but at this point in time each member state retains control over its own foreign policy and defense.

But what if the member states were to approve a common defense strategy proposed by the Council sometime in the future? Would Poland and the Czech Republic then be in breach, assuming both governments approved the new common strategy? The answer is again found in Art. 17: "The policy of the Union ... shall not prejudice the specific character of the security and defense policy of certain member states and shall respect the obligations of certain member states, which see their common defense realized in the North Atlantic Treaty Organization." In other words, as members of NATO, Poland and the Czech Republic are free to enter into defense arrangements with the US.

Paul Fogo is a senior attorney with Miller, Canfield, W Babicki & Partners