Since Trump was re-elected to the US Presidency, individually and collectively we proposed reviving the European Defence Community (EDC) treaty as a way to integrate European defence for a brave new era. Events since November 2024 have confirmed our conviction that Europe should take its defence seriously. Our colleague Robert Schütze has criticized our proposal, and despite our prior response, he remains unconvinced. So we’ll have to agree to disagree. Nevertheless, we still believe that it is important to clarify our standpoint. After all, the discussion is anything but academic, and it goes beyond a formalist legal analysis, as legislation has been tabled in both houses of the Italian Parliament with a view for Italy to belatedly ratify the EDC treaty, and some political momentum is building on this plan—especially in Italy.

International Law

The 1952 EDC treaty is not dead. It was signed by 6 States, and duly ratified by 4 of them—and there was never an official decision by the contracting parties to abandon this treaty.

First, to insist on an implicit decision to terminate the EDC treaty resulting from the establishment, in 1954, of the Western European Union (WEU) misses the point. After the French Parliamentary Assembly postponed the ratification of the EDC in 1954, the important decision taken by the US, eager to accelerate German rearmament in view of the Cold War, was the inclusion of West Germany into NATO. That decision, which was completed through a Protocol to the NATO treaty, required automatically the modification of the 1948 Brussels treaty creating the Western Union (WU) – a mutual defence pact between the UK, France and the Benelux, which still identified Germany as the main threat to peace. This was done through a Protocol to the Brussels Treaty on WEU, which in its new Article III specified that NATO would be the organization dealing with military issues. As such, the WEU was nothing more than a revision of the WU, purging it of its anti-German traits, given Germany’s admission into NATO. So, the WEU was in no way a substitute for the EDC, and in that reading, it never implied a replacement thereof.

Second, one may downplay the fact that member states never explicitly decided to abandon the EDC treaty. And still, we have evidence that when States really want to abandon agreements in European integration, they do so in plain words—as the European Council did in 2007 after the failure of the Constitutional Treaty in France and the Netherlands. Schütze insists that “the European Council, which forms part of an autonomous legal organization independent of the Member States,” could not withdraw the consent of the member states that signed the Constitutional Treaty. But that, again, misses the point. Of course, in 2007 the European Council was not an EU institution – it only became one when the Lisbon Treaty entered into force in 2009. So, the European Council was then acting as an international diplomatic body, perfectly capable of expressing the intention of its members. This confirms that indeed when States want to ditch a still-born treaty, they know how to do so—explicitly.

Finally, there is the claim that if the EDC Treaty was still valid it would be illegal in Germany, given the more recent case law of the BVerfG. It is international law 101, though, that a domestic problem can, in principle, not be invoked against international law obligations. Article 46 of the Vienna Convention (VCLT) confirms that “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest”, which occurs when “it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.” We don’t even need to add here that Germany’s own Constitutional Court actually upheld the original EDC ratification, which, arguably, weakens the case for manifest violation. Of course, nobody can contest that a state may invoke the rebus sic stantibus clause under Article 62 VCLT to terminate its consent and withdraw from a treaty. But if Germany or the Benelux wanted to do that with regard to the EDC, they would need to take an affirmative action to do so. Thus, from a public international law point of view, the EDC treaty is still there – it has not entered into force obviously, but it could.

EU Law

One may insist on a perception that the EDC treaty would violate EU law. Our response remains: No, that is not the case.

Schütze maintains that because Article 42 and 46 TEU ask each Member State “to develop its defence capacities through the development of its national contributions and participation” the EDC then is illegal because it created a common army by merging national armies. But this is non sequitur. The provisions of the EU treaties do not require member states to keep national armies. They simply exclude an EU competence in the field of defence, reserving the matter to the member states. This means that EU states are of course sovereignly free to organize defence as they see fit, including by pooling their armed forces with other members if they so wish. In fact, Article 42(3) TEU is clear by saying that “those member states which together establish multinational forces may also make them available for the common security and defence policy”. This is exactly what the EDC would be—a multinational force created by the (initially six) member states that concluded the EDC treaty.

Then there is the argument that the conclusion of inter-se intergovernmental agreements between groups of member states “can constitutionally be done, once the Pringle criteria are fulfilled, in those parts of the EU Treaties that are themselves supranational” but not in areas which are intergovernmental. The exact opposite is true. In areas of EU law which are supranational, member states have much less room for maneuver to conclude inter-se agreements. In areas which remain intergovernmental, States have a much wider remit to conclude treaties outside the EU legal order, as a vast body of literature and treaty practice confirms. Of course, the Pringle criteria apply also in this area, but there is really nothing in the EDC treaty that conflicts with primary law, and surely not the possible involvement of the ECJ—which is barred from having jurisdiction on the CSDP, but could well be given oversight on the EDC.

Finally, there is the argument that the EDC would violate EU secondary law, especially the EU Defence Procurement Directive (DPD) and now EDIRPA. This is not the case. The DPD is a rather inconsequential piece of legislation, designed to encourage the creation of a more integrated EU defence market: it ultimately leaves to member states maximum freedom in how much they wish to open up their defence market to foreign competition. And the DPD is itself subjected to Article 346(1)(b) TFEU according to which “any member state may take such measures as it considers necessary […] connected to the production of or trade in arms, munitions and war materiel”. If defence procurement is a matter that the treaties leave to the sovereign member states, why on earth could a group of member states not decide in their sovereignty to integrate for real their defence procurement, e.g. by shifting authority to a common supranational agency – just as the EDC foresees?

We don’t need to be concerned about limits in the EU treaties that do not exist. EU primary law in defence essentially does one thing—it leaves power to the member states, which are then free to integrate it through separate agreements (also of a federal, supranational type). To claim that EU law imposes on member states to keep national armies, or prohibits them from integrating their defence forces through other means would simply be a misreading of text, history and purpose.

Politics

When lawyers turn to political arguments against the EDC, we are outside the realm of legal reasoning anyway, so we will remain brief on this. Schütze questions the “political wisdom” of reviving the EDC given its connection to NATO; on the other hand, he claims that we should move towards a European defence union that is more autonomous, democratic and pragmatic than the EDC, along the lines of proposals made by the European Parliament and some members of the EU Commission—two institutions which incidentally have no legal authority under the current EU treaties to make proposals in the field defence.

On the first point, we are conscious of the issue as it is just obvious. Note, though, that the fact that the EDC is connected to NATO actually makes reviving the 1952 treaty an attractive proposition for most current European states (including Germany), which are eager to keep going the transatlantic relationship. Connection to NATO, however, was and remains a liability of the EDC especially in France, which is wary of subjecting its armed forces to an organization where the Supreme Allied Commander (SACEUR) is a US general. Yet, there is no legal requirement in the NATO treaty for SACEUR to be an American. This made sense as long as the US did the heavy lifting in NATO. But as the US increasingly steps down its commitment, it is well conceivable that a European could take the role. In fact, we would like to propose that European NATO states should decide to appoint a French general as the next SACEUR. That would remove the biggest obstacle to serious discussion on the EDC in France, and change the narrative.

On the second point, we share a pro-European stance on the issue, but we also see what is going on in the real world of defence in Europe today. It is always helpful for academics to get away from their books and libraries – from time to time – for a reality check. And what is obvious for anyone who wants to see is that there isn’t more Europe in defence, but rather less Europe. With all the academic enthusiasm for the increasing role of the Commission in defence industrial policy, the truth is that the European defence market is becoming more fragmented, rather than more integrated. Just look at Article 4(3) of the SAFE regulation.  It allows member states receiving EU funds to use all the money for purely national projects, as opposed to cooperative ones, for the first full year. The ambitious Franco-German project for a future joint aircraft combat system has been scrapped, after having been brain-dead for quite some time. The most significant defence-related decision taken by the EU since Trump’s re-election has been to lift EU fiscal rules to allow member states to spend more – on their armed forces.

It seems quite clear what is on the agenda today: not some dream-like implementation of Article 42 TEU, which allows the European Council, unanimously, and following national ratifications, to establish a “common defence”—a prospect that by the way Schütze himself acknowledges would not be legal in Germany nowadays, given recent BVerfG’s insistence on preserving “military sovereignty … as a fundamental aspect of German statehood”. The truth is that what is happening is national rearmament, with Germany alone dominating the process, and projected to have by the end of the decade an army larger than the French and British forces combined. Easy to overlook for German observers, but this has a hegemonic dynamic that is causing increasing unease in neighboring countries, not least given polls indicating that the extreme right AfD could seize power as soon as the next federal election. In fact, in the US voices exist that point to a scenario in which Germany may soon want its own nuclear deterrent—something that would conflict with two treaties (the Non-Proliferation Treaty and the 2+4 Treaty), but which could become inevitable if NATO is withered and no pan-European solution is quickly put in place.

This takes us back to the EDC. Remember: The EDC created a common army, with a common budget, a common defence procurement, and a common government (with a bicameral legislature, a collective executive and a court), linked to NATO, the UK and open to the accession of new member states. And, once more: this wasn’t a draft starting point, to be ground down to something ‘realist’: The EDC treaty has already been negotiated. It was signed. And it was ratified by 2/3 of its signatory States. And serious efforts are ongoing to ratify the treaty also in Italy.

We do not support the idea of reviving the EDC because this is the best of all worlds. If we were to start from scratch, we would surely come up with something different. But politics is not an academic seminar. This moment in time, arguably the most dangerous and the most insecure in Europe since the end of WW II, calls for answers, not for another round of questions and another layer of academic concerns. Turning to the EDC is currently the best among several imperfect alternatives to make progress on European defence—surely preferable to uncoordinated national rearmament. And, arguably the most important point: Turning to the EDC and taking its legacy seriously makes us realize how far we were able to come in the past.