Leaders’ pro-US letter ‘breached treaty’

Date: 06/02/03

By Dana Spinant

THE five EU prime ministers who signed a public declaration of solidarity with the US last week - departing from the common EU position on Iraq - acted in breach of the Treaty on European Union (TEU), top legal experts say.

The leaders of the UK, Italy, Spain, Denmark and Portugal, who signed the letter with the premiers of Hungary, the Czech Republic and Poland, infringed Article 11 paragraph 2 of the treaty by taking a stance which was incompatible with the common position adopted by the General Affairs Council on 27 January.

Commission officials admit there may be a treaty breach, but say the real problem over Iraq is the EU's political split.

The EU's ambitions of speaking with one voice and playing a bigger role on the world scene are severely jeopardised by the public display of disunity.

The split emerged at a make-or-break time for the Union's timid common foreign and security policy (CFSP): EU leaders are currently wrangling about who should be in charge of formulating and expressing the EU's views in the wider world. The division between member states damages the chances of strengthening the CFSP, diplomats say.

A Council official confirmed that the five leaders who signed the declaration violated EU law.

"The Treaty on European Union provides for the obligation of EU countries to coordinate their positions on foreign affairs. There is not only a political but also a legal duty of consultation. They have obviously not done so and they made a mockery of the Council conclusions adopted just days before.

"They hadn't informed the Greek presidency or [EU foreign policy chief] Javier Solana," he added.

According to the TEU, "the member states shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity' (Article 11.2). Moreover, "member states shall inform and consult each other within the Council on any matter of foreign and security policy of general interest" (Article 16).

Professor Dominique Hans from the College of Europe in Bruges confirms this. "From a legal point of view, they failed to respect the treaty provision of consultation. Moreover, the view they have expressed was not compatible with the common position adopted by the Council.

"Consequently, we can say there is a breach of the letter and of the spirit of the treaty," he said.

However, nothing can be done about this in legal terms as the European Court of Justice has no jurisdiction over CFSP, one of the two 'intergovernmental pillars'.

But not all the legal minds agree. Jonathan Faull, the Commission's spokesman and a lawyer, said he saw no violation of EU law.

However, another Commission official said "the articles referring to the CFSP are legally binding upon member states". But in reality, he continued, "they are seen as political objectives. This is only the last and the most flagrant case of non-respect of the treaty provisions on CFSP", he added.

Although it could be argued that France and Germany had also violated the treaty, by coming up with a public position ruling out war, one Council diplomat said their position had not directly contradicted the common EU position and that they had consulted with the EU presidency.

The current split is likely to affect the work of the EU's foreign affairs chief. "Solana is the first victim of this action," the official added.

"How can he still be taken seriously by his interlocutors if this happens behind his back?" he said.

"He can feel he is in technical unemployment. Or else, he may listen to the American advice to confine CFSP to Europe's boundaries, do a bit of Balkans [policy], some good neighbourhood policy, and that's all."

The five EU prime ministers who signed a public declaration of solidarity with the US - departing from the common EU position on Iraq - acted in breach of the Treaty on European Union, top legal experts say.