THE EUROPEAN LAW REVIEW

Table of Contents Issue 5, 2024

Issue 5 October 2024

Editorial - The Draghi Report and EU Defence: A Call for Action

Common foreign and security policy; Competition policy; Defence policy; EU agencies; European Union; Raw materials

A crisp, tightly argued analysis which is devoid of verbiage and leads to clear and apt policy recommendations is not what we have come to expect from European Union (EU) documents. In fact, in his report of 9 September 2024, entitled The Future of European Competitiveness, Mario Draghi gives us much more, including a sense of urgency that is articulated in unusually stark terms:

“[T]he foundations on which we built are now being shaken… If Europe cannot become more productive, we will be forced to choose. We will not be able to become, at once, a leader in new technologies, a beacon of climate responsibility and an independent player on the world stage. We will not be able to finance our social model. We will have to scale back some, if not all, of our ambitions. This is an existential challenge. Europe’s fundamental values are prosperity, equity, freedom, peace and democracy in a sustainable environment. The EU exists to ensure that Europeans can always benefit from these fundamental rights. If Europe can no longer provide them to its people – or has to trade off one against the other – it will have lost its reason for being”. 1

Given the widely shared uneasiness about the direction of the EU in a world of geopolitical instability, the Draghi Report was anticipated with great interest.2 Its recommendations are wide-ranging and focused on three areas of action: fostering innovation, especially in advanced technologies, decarbonisation and competitiveness, and increasing security and reducing dependencies.

While of broad scope, the Report is not unwieldy. Instead, it illustrates and draws on the fundamental interactions between the different policies that are central to the EU’s position in the world. Its approach to security is a case in point. On the one hand, the Draghi Report calls for a “genuine EU ‘foreign economic policy’”3 aiming to reduce external dependencies on critical raw materials and advanced technologies. On the other hand, it acknowledges the “insurance cost” that this process would create and proposes increased cooperation at EU level in order to address it.

It is in this context that the Report refers to defence. There is a deeply pragmatic approach to the chronic problems of the defence industries in Europe, including insufficient public spending, lack of focus on technological development, fragmentation compounded by insufficient aggregation and coordination of public spending. Its proposals include increasing defence capability, raising the share of joint procurement and common research and development spending, introducing an EU preference principle in defence procurement, greater access to public funding, and adjusting competition law to enable consolidation of defence industries.

The reception of the proposals set out in the Draghi Report will depend on a number of political, institutional, practical, and legal factors all of which are intertwined. For the purposes of this Editorial, suffice it to point out two specific aspects of the above. The first is about political acceptance. It is essential to progress in defence policy and, the problems of defence industries notwithstanding, is not to be taken for granted. For instance, the High Representative for Foreign Affairs and Security Policy, Josep Borrell, has argued that the Draghi Report “did not take the particularities of the military equipment market sufficiently into account” and pointed out that “[w]e will never be able to achieve a true single market for military equipment until we have a much stronger political union”.4

Second, while dynamic, the development of the Union’s institutional framework may give rise to considerable inter-institutional skirmishes. For instance, the Commission President, Ursula von der Leyer, has now created the first ever Commissioner responsible for defence and space and asked the commissioner designate, former Lithuanian Prime Minister Andrius Kubilius, to present, along with the new High Representative, a White Paper on the Future of European Defence in the first 100 days after the new Commission has been installed.5 While not finalised, this development illustrates not only the significance of defence for the EU but also the intention of the Commission to be more assertive in the area. However, other actors, including the Council and the European Defence Agency, will be sensitive to any initiative that may be viewed as extending the powers of the Commission at the expense of those of the Member States.

The tension between effectiveness at EU level and political sensitivity runs through the entire scope of the Draghi Report. In the context of economic security, the CEO of Dutch microchip corporation ASML, the most highly valued European tech company, has recently argued that economic security requires greater integration on foreign affairs, defence, and trade at EU level and stated that, “if that’s unrealistic, then stop talking about a European economic security policy”.6

Its reception by the Member States and the EU institutions notwithstanding, the Draghi Report has set out in stark terms problems that the EU can ill afford to ignore. It does not only highlight the role of defence for the development of the Union’s economic security policy but also focuses on policy initiatives that, in addition to European competitiveness, they would enhance the Common Security and Defence Policy. This aspect of the Draghi Report is to be welcome.

[PK]

1 M. Draghi, The Future of European Competitiveness (September 2024), p.2.
2 A. Hinarejos, “Editorial: A European Industrial Policy and the EU’s Turning Point” (2024) 49 E.L. Rev. 317.
3 Draghi, The Future of European Competitiveness, p.53.
4 J. Borrell, “The Draghi report and Europe’s geopolitical future” (26 September 2024), https://www.eeas.europa.eu/eeas/op-ed-high-representativevice-president-josep-borrell-draghi-report-and-europes-geopolitical-future_en [Accessed 30 September 2024].
5 U. von der Leyen, Mission Letter to Andrius Kubilius (Brussels, 17 September 2024), p.5, https://commission.europa.eu/document/download/1f8ec030-d018-41a2-9759-c694d4d56d6c_en?filename=Mission%20letter%20-%20KUBILIUS.pdf [Accessed 30 September 2024]. For reasons which must have nothing to do with either effectiveness or common sense, 100 days seem to be widely regarded by any new administration as sufficient to produce significant policy documents.
6 P. Haeck, “Top tech boss tells EU: Tool up for global trade fight”, Politico, https://www.politico.eu/article/eu-common-trade-defense-dutch-tech-ceo-asml-peter-wennink/ [Accessed 30 September 2024].

Articles

    What is in a Market: The Concept of "Economic" and the Outer Boundaries of EU and EEA Law - Vassilis Hatzopoulos
    This article revisits an old, but unresolved, question concerning the scope of application of EU and EEA law: what is in a (single) market and how are the boundaries drawn between economic and non-economic activities? This is an issue on which the judiciary, the political EU institutions and legal doctrine have adopted various positions over time. The analysis is essentially based on case law, from both the EU and EFTA courts, and pursues three objectives: (a) to fathom the boundaries and criteria used to distinguish between economic and non-economic activities; (b) to discuss whether the concept of economic is, and should be, understood as having different meanings within the different EU freedoms; and (c) to understand whether the grounds for qualifying an activity as being non-economic, i.e. official authority and solidarity, are really distinct and independent from one another. It concludes with some thoughts on the factors which could affect the distinction between economic and non-economic in the coming years.

    Who Owns Football? The Future of Sports Governance and Regulation After European Superleague - Jan Zglinski
    The Grand Chamber ruling in European Superleague is a landmark in European Union (EU) sports law. Prompted by the attempt of a group of elite football clubs to establish a breakaway competition, the case provided the Court of Justice with the opportunity to consolidate and further develop its sports jurisprudence. This article reflects on what precisely the judgment changes and how it will affect football governance and regulation. Superleague's main doctrinal contribution is an expansive interpretation of EU competition law and a restrictive reading of art.165 TFEU. On the governance side, the decision weakens the institutional elements of the European Sports Model, while strengthening its underlying cultural values. On the regulatory side, the new legal framework will facilitate greater control of football federations through EU law, but could render EU policy making in the sector more challenging. The result both reflects and impacts on the increasingly fierce fight over who owns the game.

    The New EU Economic Governance Framework: Principle, Policy, and Enforcement - Menelaos Markakis
    This article critically analyses the new European Union (EU) framework for fiscal and economic governance from the perspective of the previous regime's flaws and the new regime's stated objectives. It is structured as follows. We first trace the evolution of the EU fiscal and economic governance framework since the Eurozone crisis and outline the key provisions of the EU Treaties and secondary law (the previous Stability and Growth Pact). We then turn to consider the revised EU fiscal rules, as the core element of the new framework on which the reform—and the policy debate that preceded it—principally focused. We will chiefly focus on the preventive and corrective arms of the Stability and Growth Pact, as well as the role of independent fiscal institutions and the European Fiscal Board. Our analysis section examines the new framework from the perspective of the on-going quest for simplification and for strengthening national ownership, enforcement, and accountability. It will be seen that the new reforms have improved upon the EU fiscal and economic governance framework in various ways but that significant challenges remain.

    The Applicable Law in the Draft Regulation on Parenthood: A Legal Analysis of the Proposal's Consequences - Dorota Miler
    In 2022, the European Commission adopted a proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. This article critically examines the provisions determining applicable law, considering in particular the proposed connecting factors, the absence of any hierarchy in the application of subsidiary connecting factors, and the applicability of the proposed provisions relating to establishing filiation of children whose filiation has already been established. Moreover, it identifies the implications that the provisions will have for the harmonisation of private international law among Member States and within the individual Member State and for the family law of individual Member States. These include, for instance, the harmonisation of the connecting factors that apply for procedures establishing parenthood within the European Union and fostering the adoption of new family law rules by Member States. The article concludes that the Proposal should be redrafted.

    Analysis and Reflections

    The Power of Signing International Agreements on Behalf of the European Union: Commission v Council (Signature d’accords internationaux) - Gesa Kübek
    In Signature d’accords internationaux, the European Court of Justice was asked to clarify the straightforward yet foundational legal question of who has the power to sign international agreements on behalf of the European Union. This annotation provides a detailed account of the legal arguments of the parties on the basis of their written submissions as well as a clear and concise analysis of the opinion of the Advocate General and the ECJ’s judgment. On that basis, it critically examines three main aspects of the judgment: First, the extent to which the ECJ engaged with international law; second, the legal implications of the judgment for the EU’s independent external visibility; and third, the effects of the judgment for the institutional practice of EU treaty-making. In so doing, it stresses the legal and practical relevance of the judgment for the unity and consistency in the EU’s external representation.

    Air Ambient Quality Directives and Individual Rights for State liability: JP v Ministre de la Transition Ecologique - Mattia Elia
    This analysis discusses JP v Ministre de la Transition écologique, where the ECJ held that the air ambient quality directives do not confer individual rights to obtain compensation under the State liability principle. In touching upon the findings of the ECJ, this note reflects on whether or not applying the right to compensation in the environmental law domain can have positive implications for the struggle against air ambient quality degradation. The ECJ tightened the first condition of State liability and clarified that the direct effect is neither necessary nor sufficient to satisfy the first condition of the State liability test. Accordingly, individuals can ensure the effectiveness of air quality legislation’s objectives, the protection of human health and the environment, before national courts compelling national authorities to adopt air quality plans to reduce the impact of human activities on air ambient.

    The Principle of an Open Market Economy and the Potential of the ESCB’s Monetary Policy Contribution to Climate Change Mitigation - Paul Weismann
    The principle of an open market economy provides guidance for the Economic and Monetary Union as a whole. The European System of Central Banks (ESCB) based its “market neutrality” approach on this principle, before switching to the concept of “market efficiency”. This contribution examines the effect the principle of an open market economy has on the ESCB’s monetary policy and in particular on measures taken with a view to mitigating negative effects of climate change on price stability and other economic indicators. However, this principle cannot be addressed in isolation. A broader perspective is to be taken which encompasses other relevant requirements of primary law, such as art.11 TFEU on environmental protection and art.127 TFEU on the ESCB’s mandate. This legal framework results in an obligation of the ESCB to contribute to mitigating climate change, but merely in a supportive role. Furthermore, it leaves the ESCB with a broad measure of discretion as to how to act, which is mainly restricted by the ESCB’s primary objective of price stability.

    Book Review

    Recent Issues:

    Tables of Contents can be viewed here.