Three years have passed since the EU-NATO Joint Declaration of Brussels in 2018. This troubled period that has seen the stepping down of key institutional leaders in both the EU and US left the West with an underlying feeling of imminent change in the operational relationship between the EU and the Alliance. This feeling can be summarised by European Commission President von Der Leyen in her State of the Union speech in September 2021:
“There are deeply troubling questions that allies will have to tackle within NATO. But there is simply no security and defence issue where less cooperation is the answer. We need to invest in our joint partnership and to draw on each side’s unique strength. This is why we are working with Secretary-General Jens Stoltenberg on a new EU-NATO Joint Declaration to be presented before the end of the year. […]”
Although the daring withdrawal of the US and allied forces from Afghanistan had a strong impact on public opinion, it is not the first time that the European Union’s Member States have been made aware of the need for a more autonomous, more self-reliant European security and defence policy (Franke, Varma, 2019).
In her speech, President von Der Leyen – like others before her – promised to bring this issue to the table for discussion with NATO, announcing a new EU-NATO Joint Declaration to be presented before the end of 2021. No indication on possible content has been issued by either side. Still, the strategic shift of the US towards the Indo-Pacific coupled with the renewed impetus of some European countries towards a more autonomous crisis management mission and operations allow us to at least assume what direction the debate will take.
In this sense, it is pertinent to note that even if the recent European debate on security and defence policies has mainly focused on the relaunch of the EU Battlegroups concept, a clear and efficient arrangement on command and control structures is inherently linked to the EU’s capacity to intervene militarily to manage a crisis and, consequentially, the future of EU-NATO relations (Simon, Mattelaer, 2011, 13).
The age-old matter of military command structures should become a salient point of the new cooperative phase, and the Berlin Plus package, which has shaped the operational relationship between EU and NATO in this domain as well as regulated the Union’s access to the Alliance’s assets by the Union, might be in the spotlight (Sénat Français, 2021).
The Berlin Plus agreement has been the cornerstone of EU-NATO cooperation for almost two decades. Since 2003, it allowed the EU to use NATO’s Supreme Headquarters Allied Powers Europe (SHAPE) to conduct Crisis Management Operations (CMO) where the Alliance as a whole was not engaged. This approach led to many successes, such as the EU’s operation Anthea in Bosnia-Herzegovina or Operation Concordia in the Former Yugoslavian Republic of Macedonia (Sénat Français, 2021). Nevertheless, the conditions of the European security environment from which the agreement was able to bloom cannot be compared to the contemporary scenario. For instance, one cannot ignore that the increasing insecurity in the European neighbourhood translates into a slow but steady strengthening of the EU’s CSDP, while the clear signals from Washington to rearrange US defence policies’ resources towards the Indo-Pacific region have left a void that still waits to be filled (Bildt, 2021).
Given this situation, the incoming Joint Declaration represents a significant window of opportunity for the EU to reinvigorate its relation with NATO in respect to the new exigencies, while affirming the need for the EU to fully utilise the assets that have been established since the launch of the EU Global Strategy 2016 such as, for example, the new Military Planning and Conduct Capability (MPCC) built within the EU Military Staff (EUMS) to bolster the EU’s autonomous command and control capabilities (EEAS, 2019).
No less importance should be accorded to the doubts concerning the legal nature and binding force of the agreement: legal doctrine has extensively discussed these problematic aspects of Berlin Plus, questioning whether the agreement could be placed on equal footing with an international treaty because its conclusion was reached through a peculiar procedure – an exchange of letters between NATO Secretary-General Robertson and EU High Representative Solana (EEAS, 2016). In this regard, it can be noted that, based on the provisions set out in Article 24 of the Treaty on the European Union (TEU) as amended by the Treaty of Amsterdam – ratione temporis applicable to Berlin Plus –, the conclusion and negotiation of international agreements on behalf of the Union is mandated to the President of the Council of the European Union. Thus, the agreement would lack one of the five essential legal elements necessary to constitute an international treaty, namely, the treaty-making power (The Code of Federal Regulations of the United States, 2014, 22 CFR § 181.2; Cassese, 2001, 126).
Depending on the response triggered by these doubts, the Alliance may or may not be legally bound to grant access to the EU to the command and control assets considered in Berlin Plus (Reichard, 2004, 36-67). The matter has obvious operational implications for the EU, especially when the Union’s engagement in international crisis management is expected to increase exponentially.
The Joint Declaration might not only represent a more realistic picture of the contemporary landscape of the European security area, underpinned by tight and balanced cooperation between the EU and NATO and the acknowledgement of the EU’s preference to make use of its assets, but also may equally lay the foundations for a new agreement that could dispel the legal doubts surrounding Berlin Plus by redefining the conditions for accessing NATO’s assets when the EU’s capabilities do not fit the requirements of the mission or operation.
The times seem mature for EU and NATO to make a quality leap and approach the matter, always bearing in mind that a single joint declaration will not constitute the conclusive step of a process requiring the accommodation of parties’ interests beyond those of the EU and the US.
Written by Edoardo Bombardieri
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