Can the 1952 European Defence Community (EDC) be revived to supranationalize European defence in 2026? My earlier post had raised serious doubts about the legal feasibility of this idea championed by ALCIDE; and these doubts have now been scrutinized by the project’s two senior jurists: Federico Fabbrini and Franz C. Mayer. This rejoinder addresses their counterarguments and, therefore, briefly returns to the international and European law obstacles that the “late” ratifications of the 1952 EDC Treaty by Italy and France face. It also questions, once more, the political wisdom of reviving the NATO-led executive organization today, especially when alternative – and better – forms of European defence integration are currently explored. The European Parliament’s 2023 proposal on a “European Defence Union”, in particular, shall be discussed in this context, as it would simultaneously offer a more “autonomous”, “democratic” and “pragmatic” solution than a revived 1952 EDC.

More International (and National) Law: The EDC Is Dead

Are the Benelux countries as well as Germany still bound by their EDC ratifications from over 70 years ago? My main objection to ALCIDE’s core idea was that it unjustifiably omits the 1954 Western European Union (WEU) in combination with Article 59 of the Vienna Convention on the Law of Treaties (VCLT).

This objection is countered by Fabbrini and Mayer repeating that States must always explicitly revoke their consent. As an example of how this should be done, they point to the 2007 European Council “abandoning” the 2004 Treaty establishing a European Constitution (TEC) that had, as is known, failed to get ratified by France and the Netherlands. Yet can the European Council, which forms part of an autonomous legal organization independent of the Member States, withdraw the consent of Italy (and of all those other Member States that had already ratified the TEC)? Under international law, hardly so. But if Italy’s ratification legislation for the 2004 TEC is still “easily accessible in the online law books” and continues to be unrepealed, does this mean that Italy is still bound by the 2004 TEC; or has the 2007 Lisbon Treaty here taken over – in the same way as the 1952 EDC was taken over by the 1954 WEU?

In this context, Article 59 VCLT offers – I think – a powerful “smoking gun” in the form of an a fortiori argument. Because as regards international treaties not yet ratified by all parties, Article 18 VCLT leaves an element of doubt when merely obliging a signatory state, pending the entry into force of the treaty, “to refrain from acts which would defeat the object and purpose of a treaty … provided that such entry into force is not unduly delayed”. For even if one overcame the doubt that the provision applied to “normative” treaties, what is “unduly delayed”? Is 10 years enough, or 70 or 200 years? Luckily, Article 59(1) VCLT puts an end to that debate as regards the 1952 EDC, because “in any case” the 1954 WEU replaced the earlier organization since all the parties to the older treaty considered the matter of European defence, the “German question” as well as NATO collaboration to be now governed by the newer treaty and a simultaneous application of both treaties was legally impossible.

Has the death-through-EU-integration of the WEU in 2011 made a revival of the 1952 EDC possible? Fabbrini and Mayer seem to think so; and they now employ a bootstrapping argument in that context. Fresh talk about the EDC in Italy has itself revived it, as States “are the relevant interpreters of whether a treaty is dead or alive”. Yet can the “recent political developments” in Italy revive the EDC Treaty despite, or even against, the – present day – wishes of the other signatory states? For Germany, the authors indeed appear to see this as an advantage: “The fact that nothing depends on Germany for the time being … would also have the advantage that the usual German constitutional objections … would be irrelevant for the time being.” But alas, these objections would undoubtedly be there. The German Constitutional Court has, especially in its 2009 Lisbon judgment, insisted on strict limits to EU defence integration (ibid., esp. paras. 249, 254, 316, 384), as “military sovereignty”, regained after the 1955 Paris Treaties and fortified in a 1956 constitutional amendment (Article 87a GC), is today seen as a fundamental aspect of German “statehood”.

One can disagree with this sovereigntist stance (as I do), but the EDC’s general prohibition of national armies (Article 9 EDC) may raise similar constitutionality questions in the Benelux countries too (de Waele, 9). ALCIDE’s rather limited comparative constitutional focus on the potential validity of the “late” EDC ratifications by Italy and France, therefore, skips over an important legal problem that was already alluded to in my earlier post. Indeed: even if one were to believe that Germany and the Benelux countries were still bound by their respective ratifications under international law, their original consent might have become illegal – in the last 70 years – under their respective national constitutional laws (with the consequence that their governments would be under a domestic obligation to un-ratify). In the German case, for example, the 1954 amendment that had made EDC accession constitutionally possible via a newly inserted Article 142a GC was itself repealed in 1968. And quare: did the national ratification laws for the 1954 WEU Treaty and the 2007 Lisbon Treaty not already implicitly repeal, under national law, the earlier 1952 EDC ratifications?

More European Law: The EDC Violates Primary and Secondary Law

Is the EDC incompatible with EU law today? My original post here concentrated on the institutional aspects of this question – mainly arguing that the supranational character of the EDC could not be inserted into the Union’s intergovernmental Common Foreign and Security Policy (CFSP).

In response, Fabbrini and Mayer point to several CFSP-related inter-se agreements (Aachen, Lancaster, Strasbourg). But none of these treaties establishes a “supranational” authority or employs the European Court of Justice! The Aachen Treaty, for example, allows France and Germany to “hold regular consultations at all levels prior to major European meetings” (Article 2) and has the aim to “increasingly converge their security and defence objectives and strategies” (Article 4(1)). Yet the “Franco-German Defence and Security Council”, created for that purpose, is a purely intergovernmental body (Article 4(4)); and the same purely intergovernmental features characterise the other two CFSP-related agreements mentioned by the authors. The example of the ESM Treaty – concluded within the scope of the supranational TFEU – is, in this context, highly misplaced because the “borrowing” of supranational institutions can constitutionally be done, once the Pringle criteria are fulfilled, in those parts of the EU Treaties that are themselves supranational. Yet, unlike what especially Fabbrini claims, this logic cannot “a fortiori” be extended to the CFSP, where Article 24 TEU expressly limits the role of the supranational institutions.

But let us also look more closely at the substantive incompatibilities of the EDC Treaty with EU law. On the level of EU primary law, the Union’s Common Security and Defence Policy (CSDP) is today based on the assumption that national armies survive. For example: Articles 42 and 46 TEU as well as the Protocol on Permanent Structured Cooperation essentially ask each Member State “to develop its defence capacities through the development of its national contributions and participation” (ibid., Article 1(a), emphasis added); and a revived EDC that generally abolished national armies would surely not be compatible with that CSDP feature.  This does not necessarily mean that there cannot be a proper European standing army under the current CSDP. While controversial (von Achenbach, 240), Article 42(1) TEU might here offer a textual base that could, despite a later qualification, be used to justify the creation of such a supranational force. Yet to comply with the present CSDP arrangements, as well as Article 4(2) TEU, this European army could never be an “exclusive” EDC-like army; it would have to be a “complementary” Union force in the way it has been suggested by some.

On the level of EU secondary law, finally, a revived EDC would also cause major substantive incompatibilities. For in the last decade in particular, the Union has found the courage to increasingly use its supranational competences (internal market, industrial policy, technology development) to enter into defence territory; and because inter-se agreements between the Member States are – just like national law – subject to the primacy of all EU law, including secondary law, these Union legislative acts would have to be repealed before the EDC could come into force. Take, for example, Directive 2009/81 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security; or, the more recent Regulation 2023/2418 on establishing an instrument for the reinforcement of the European defence industry through common procurement (EDIRPA). Both Union laws seem clearly incompatible with Article 101-111 EDC, which are based on a completely different – centralised – procurement approach.

More European Politics: Autonomy and Democracy as a Minimum

For those favouring (external) strategic autonomy for the Union and (internal) democratic control of the Union, the two cardinal sins of the 1952 EDC were its NATO-dependency and its supranational-executive character. As regards the former, Article 2 EDC firmly committed it to operate “within the framework of the North Atlantic Treaty” with Article 18 EDC subjecting it, especially in wartime, to NATO control. As regards democracy (or lack thereof), the EDC had, by contrast, adopted the European Coal and Steel Community’s technocratic format, with both Communities giving virtually no significant role to the European Parliament (Scheffel, 79). That striking lack of democratic legitimacy was immediately perceived as a major flaw to be addressed in the future (Article 38 EDC).

Should today’s European defence integration not do better than that? In the last decade, the Union has been pushing hard – very hard – to regain some external autonomy from third States, especially under the TFEU. Within the intergovernmental CSDP, matters have been less successful, with three institutional ideas currently being discussed. The first idea, championed by EU Commissioner Kubilius under the banner of “a genuine European Defence Union”, appears to favour a “Western European Union 2.0” based on an intergovernmental treaty and centred around a “European Security Council”. The second idea proposes a “PESCO 2.0” that reactivates a Permanent Structured Cooperation with much fewer Member States participating than those that currently do (26 out of 27). Finally, there is the idea of a “real” supranational European Defence Union, proposed by the European Parliament and already analysed here.

Each of these three options tries to develop and enhance today’s CSDP organically. Yet only the second option allows for its activation through a qualified majority decision by the Council (Article 46 (2) TEU), whilst it returns to unanimity voting for all participating Member States subsequently (Article 46 (6) TEU). Unanimity among the participating states would, presumably, also apply to Kubilius’ intergovernmental proposal – though clear institutional contours have yet to emerge out of his 2026 publicity blitz. The European Parliament’s proposal alone would solve that decision-making problem, albeit it would require prior EU Treaty amendment. The Parliament has, therefore, suggested the following amendment to Article 42 TEU (with the suggested textual changes in bold):

“3. The Union shall establish a Defence Union with civilian and military capabilities for the implementation of the common security and defence policy. That Defence Union shall include military units, including a permanent rapid deployment capacity, under the operational command of the Union. Member States may provide additional capabilities. (…)

4. Decisions relating to the common security and defence policy shall be adopted by the Council acting by a qualified majority on a proposal from the Union Secretary for Foreign Affairs and Security Policy or an initiative from a Member State, and after obtaining the consent of the European Parliament. The Union Secretary for Foreign Affairs and Security Policy may propose the use of both national resources and Union instruments, together with the Commission where appropriate.”

Like the EDC, the EDU would have clear supranational advantages over WEU 1.0 and WEU 2.0. But unlike the EDC, it would be under the operational command of the Union – not NATO; with majority decisions being taken by the two chambers of the EU legislature instead of a supranational executive (the “Commissariat”). The proposed EDU also acknowledges the continued ability of the Member States to have national armies; and the sharing of military “sovereignty”, an anomaly in the Weberian nation state, would here be another expression of the cooperative federalism that is already a constitutional hallmark of the Union. In contrast to the radical federalism of the EDC, the EDU thus adopts a much more “pragmatic” approach that is – nonetheless – not unprincipled in its choice in favour of a “parliamentary” Union force that is also strategically autonomous from the United States.

Parliament’s EDU will, however, unlike the WEU 2.0 or PESCO 2.0 proposals, require Treaty amendment; and differentiated defence integration may, thus, ultimately still represent the Union’s immediate future. But does this make the EDU a red herring when compared to the idea of reviving the 1952 EDC? No. The EDC is dead; and even if it were not dead, it would be illegal under the existing EU Treaties (and thus require their amendment to become legal); and even if it were not illegal under the EU Treaties, it would be unsuitable in light of what European defence integration should strive for in 2026, namely: external autonomy and internal democracy.

Why should the Member States agree to a supranational EDU? Because they should remember, as after the Second World War (or after the fall of Eastern European communism), that the best way to “rescue” themselves is within a stronger European Union. Indeed, the insight of a great French comparativist still holds true today: “[i]f a republic is small, it is destroyed by a foreign force; if it is large, it is destroyed by an internal vice” (Montesquieu, 131); and to overcome this geopolitical dilemma, smaller states should form a “federal republic” in which internal virtue is combined with external force. That external force needs, today, no longer be an exclusive Union force to protect Europe from a remilitarised Germany. Yet the Union of 2026 must learn to stand on its own feet; and it must stand on them in the present – not the past. For the past is a time that cannot be revived outside one’s imagination – even if one searched very hard.