Table of Contents: I. Introduction. – II. Legal structures of military integration and cooperation in the EU. – II.1. The Treaty of Rome (1957): economic Europe as an alternative to the failed European Defence Community. – II.2. After the Lisbon Treaty (2009): strategic autonomy based on national or supranational responsibilities? – II.3. The legal roots of the NATO constraint on EU military integration. – II.4. Interim conclusion: national capability commitments vs the internal market? – III. The function of military procurement in foreign policy. – III.1. Overcoming the “realist challenge” in EU law: from realism to functionalism. – III.2. Systemic constraints on international cooperation and European integration. – III.3. Balance of power and troubled alliance. – III.4. Balance of power and military-industrial policymaking. – III.5. EDA’s intergovernmental approach to offsets. – III.6. Interdependence and institutionalism: finding certainty in legal regimes. – III.7. The role of international institutions. – III.8. Issue linkage as a prerequisite for institutionalism. – III.9. Interim conclusion: linking military security to the internal market? – IV. The Commission’s pursuit of EU strategic autonomy by industrial and procurement policies. – IV.1. The Defence Procurement Directive (DPD 2009). – IV.2. The European Defence Fund (EDF 2021-2027). – IV.3. The legal fiction of “economies of scale” by cooperation. – IV.4. From fragmentation to “European champions”? – IV.5. Interim conclusion: the problem of linking military security with the internal market. – V. A theoretical basis for EU military procurement law. – V.1. The primary role of military-industrial capabilities and balance of power. – V.2. General implication for EU supranational regulation. – V.3. The need for a dynamic armaments exception to the military procurement regime. – VI. Concluding remarks.
Abstract: Ever since the Maastricht Treaty, the EU has been increasingly engaged in the military domain. More recently, many initiatives on intergovernmental EU cooperation have emerged in the area of Common Security and Defence Policy, such as those initiatives in the context of permanent structured cooperation (PESCO). At the same time, the Commission initiated policies and legislation on military industries based on the supranational regime of the internal market, such as the Defence Procurement Directive (DPD) which was adopted by the European Parliament and the Council in 2009. The EU Treaties, however, include a clear exception for military equipment and recognise national security as the sole responsibility of the Member States. The DPD aims to liberalise European armaments industries by imposing public procurement obligations on Member States for their military procurement. Such obligations, however, may conflict with the national security strategies of the Member States aimed at the survival of domestic industry. Consequently, Member States often still rely on the Treaty-based exception. This Article aims to provide a new legal approach to this conflict by, first, looking at the historic and legal context in which policies and legislation came about, secondly, determining the function of military procurement based on international relations theories and, thirdly, evaluating the internal market policies and legislation within this context. Finally, the author sets out a theoretical basis for legal interpretation of EU military procurement law. To overcome the conflict, the author argues for reconsideration of the internal market legal base of the military procurement regime and regulation of the legally controversial offset agreements.
Keywords: public procurement – military equipment – common security and defence policy – EU strategic autonomy – industrial policy – NATO.
* PhD researcher, Utrecht University’s School of Law, N.A.Meershoek@uu.nl.