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Die maritimen Aspekte der GSVP der EU

La dimensión marítima de la PCSD de la UE

La dimension maritime de la PSDC

La dimensione marittima della PSDC dell’UE

Wymiar morski unijnej WPBiO

The maritime dimension of the EU’s CSDP

As piracy off Africa has become a global security issue, the need for the European Union (EU) to protect its interests at sea through a maritime dimension to its Common Security and Defence Policy (CSDP) has also been recognised.

Importance of the sea for the EU

With a coastline of 70 000 kilometres and with 90% of its external trade transported by sea, the EU has vital maritime interests: security of global maritime flows, safety of maritime transport, fish, energy resources etc. Protecting the world’s maritime routes and lines of communication is an essential dimension of the EU’s security. The EU requires to develop an active approach to the varied challenges and threats to maritime security (terrorism, transnational crime, piracy, environmental degradation, depletion of marine resources etc.) in its neighbourhood and other zones.

EU’s role in maritime security

Although no EU maritime strategy as such exists, a maritime dimension has developed across EU policy areas and through EU agencies, e.g. fisheries, marine pollution, maritime transport, maritime surveillance, and energy security, as well as maritime power projection through CSDP. The Integrated Mari­time Policy for the EU (2007) aimed at uniting the various approaches, but its underlying economic rationale left little room for security issues. Equally, neither the European Security Strategy (2003) nor its Implementation Report (2008) directly addresses maritime security.

Despite some initiatives taken under the CSDP, there are still calls for a maritime dimension to CSDP strategy. In particular, the EU should actively seek to safeguard key trade routes (“Suez to Shanghai”, the Arctic) and prevent state or non-state actors from disrupting them.

The surge in African piracy prompted the launch in 2008 of the EU’s first CSDP naval operation, EUNAVFOR-Atalanta, with the objective of combating piracy off the coast of Somalia and protecting UN food aid deliveries to the country. Two further CSDP missions (EUCAP Nestor – improving regional maritime capacities – and the EU Training Mission (EUTM) Somalia – to train Somali security forces) – are part of a broader EU approach, based on the EU Strategic Framework for the Horn of Africa (2011). Although Operation Atalanta enhanced the credibility of EU CSDP, the Somali case proves that a combination of threats (weak governance, piracy, illegal fishing, under-development) requires complex policies and tools.

Towards a Maritime Security Strategy

In this context, academics have called for an EU Maritime Security Strategy (EUMSS). This should take a holistic approach, integrating civil and military aspects, and state the EU’s maritime strategic objectives and the means to implement them, while avoiding duplication of capabilities at EU level. Cooperation with other maritime forces (NATO, the United States, China, Russia etc.) also needs to be tackled.

In 2010, EU Foreign Ministers launched the process of preparing “options for the possible elaboration of a security strategy for the global maritime domain.” The Commission and the European External Action Service are expected to present a formal proposal for the December 2013 European Council meeting, dedicated to CSDP matters.

European Parliament

The EP has adopted several resolutions addressing maritime security. The latest report on the Maritime dimension of the Common Security and Defence Policy (rapporteur Ana Gomes, S&D, Portugal) states the importance of global maritime flows and calls for an EUMSS combining approaches to maritime safety and maritime security, and considering the “nexus between human security, state governance and human development”. It also stresses the need for improved exchange of information and intelligence on maritime risks and threats between EU Member States, and proposes the creation of EU coastguards.

On 12 June 2012, the European Defence Agency together with the Austrian Ministry of Defence and Sports and the Austrian Defence and Security Industry Association was hosting a workshop on Doing Business with European Security and Defence Bodies in Vienna.
The workshop targeting governmental and industrial representatives from Austria and the Visegrad countries brought together European customers and suppliers in the field of security and defence and provided specific guidance to industries on how to successfully engage with defence and security related entities in Europe. Speakers included the Austrian Armaments Director, LtGen Freyo Apfalter, the EDA’s Armaments Director, Giampaolo Lillo and NSPA’s Director of Procurement, Patrick Fesquet, as well as high-level representatives of the European Commission, Frontex, Athena and OCCAr.
The workshop tackled different fields of the European Security and Defence Market, including Security Research, Defence R&T, European Development Programmes and Off-the-Shelf Purchases of both goods and services, which are increasingly conducted through common or centralised procurement by or through EU bodies.
Co-organiser Karl-Heinz Dernoschegg from the Austrian Defence and Security Industry Association stated at the end of the event that this was a perfect way to bridge the gap between supply and demand in the area of defence and security. He continued by saying that his association would be happy to host events of this kind on a more regular basis and considers this a very good model for other countries and associations to follow.

 

On 30 May, Austria, the Czech Republic, Estonia, Greece, Finland, and the Netherlands signed a letter of intent to work towards the Pooling & Sharing of available and future resources for cyber defence training, exercise and testing. The project, called cyber ranges, aims at maintaining and improving cyber resilience as well as the levels of awareness, insight and expertise of personnel Member States. 
 
By signing the letter of intent, the Member States confirmed to participate and cooperate in the development of a Common Staff Target which will for example determine the functional requirements for cyber ranges. These requirements will have to be agreed by the EDA Steering Board at a later stage. The initiative on cyber ranges has also been recommended by the recently presented EDA cyber defence landscaping study as a viable opportunity with respect to the practical implementation of Pooling and Sharing.
 
Cyber ranges are multipurpose environments supporting three primary process: knowledge development, assurance and dissemination. Under the Pooling & Sharing initiative, cyber ranges may consist of three complementary functionality packages: Cyber Research Range, Cyber Simulation & Test Range as well as Cyber Training & Exercise Range. 

 

More information:

• Press release "EDA Study Identifies Cooperation Prospects in Cyber Defence" (7 June 2013)
• Factsheet on Cyber Defence (PDF file)
• News "EDA & Cooperative Cyber Defence Centre Of Excellence Establish Liaison" (10 April 2013)
• News "European Union Strategy for Cyber Security" (8 Feb 2013)
• News "EDA Participates in Cyber Defence Conferences" (6 Feb 2013)
• News "Cyber Defence Workshop coorganised by EDA, European Commission and European Space Agency" (25 Oct 2012)

On 15 April the European Defence Agency organised a workshop on test and evaluation (T&E) standards for chemical, biological, radiological, and nuclear defence (CBRN) detection under the auspices of the Irish Presidency.

Participants from national ministries of defence, industry and research organisations/universities attended the event which focused on T&E equipment standards for biological threat detection as dealt with in the EDA project T&E BIODIM.

Conclusions of the workshop are:

• The need for standards / harmonisation and common agreed protocols/standards for Test and Evaluation of (B) detection equipment was confirmed;
• The EDA project T&E BIODIM will form the backbone for further developments in this area;
• Civ-Mil synergies are recognised and will be elaborated between the Agency and the European Commission under the European Framework Cooperation;
• Recent EC workshop on Standards Mandate in JRC ISPRA confirmed high priority for test and evaluation/detection standards;
• Common agreed EU protocols/ standards  will create a win-win situation for end-users and industry:
  • For end-users in terms of interoperability (mil-mil, civ-civ and civ-mil) and  sensor network capabilities;
  • For industry in terms of cost reduction and level playing field and clarity on parameters they are tested against.
• “Live (= real)” agent testing for identification equipment/ procedures is needed.

 

More information:

• Presentations from the workshop are available for download (EDA workshop TE standards CBRN)
• Project page BIODIM

EDA Annual Conference 2013

The Italian Minister of Defence, Giampaolo di Paola, visited the Agency on 21 January 2013. Minister Di Paola and EDA Chief Executive, Claude-France Arnould, discussed priorities in Italy’s involvement in current and possible future EDA Pooling & Sharing initiatives as well as the development of a more systematic approach to Pooling & Sharing. Minister di Paolo later received specific briefings on EDA initiatives in the areas of air-to-air refueling, medical field hospitals as well as military airworthiness. 

More information:

• Find more information on Italy's participation in EDA projects here (select country in the search)

The European Defence Agency and the Egmont Institute have launched a PhD Prize in defence, security and strategy. Young researchers who have recently completed their PhD thesis are encouraged to participate in the competition. The award? A financial remuneration and especially the chance for the winner to present the results of his/her research during the EDA annual conference in March 2013 in front of the European defence community. Dinesh Rempling, EDA Project Officer, in charge of the Prize explains the aims and background of the Prize.

​1. Dinesh, why another PhD prize?

While PhD prizes exist across the world, they are often either linked to academic institutions or societies. Some of the prizes have an international flavour but none are specifically targeting a European audience. Filling this gap will strengthen European research in defence, security and strategy. Moreover the hope is that it will encourage a new generation of scholars to continue to push the boundaries, helping shape better and more effective European policies. 

2. Why do the Egmont Institute and the EDA cooperate? As it so happened EDA and Egmont Institute were thinking the same thing at the same time. It is the ideal complementary partnership in many ways. Being an agency under the Council framework, EDA is very close to the heart of EU decision-making. In fact EDA is run by a Steering Board consisting of Defence Ministers from twenty-six EU Member States and chaired by Baroness Catherine Ashton (Head of the Agency, High Representative of the Union for Foreign Affairs and Security Policy and Vice President of the European Commission).
Egmont Institute on the other hand is in the forefront of research in defence, security and strategy. As such it come with a pan-European network of academic excellence.
The EDA-Egmont partnership is fortunate enough to be completed by a Prize Jury of brilliant minds. All Members come with a wealth of experience, each covering a different angle of defence, security and strategy – this is what boosts the essence of the Prize. Together the Jury Members will be able to objectively evaluate the quality and impact of the candidates’ achievements.
3. Who should participate? Anybody can submit their candidacy for the Prize. The more applicants there are the merrier because the ambition is to award outstanding work and the more there is the to choose from the likelier it is that exceptional achievements surface. Some basic provisions need to be met: the need to be a national of an EDA Member State, the PhD must have been awarded by an academic institution in an EDA Member State and the thesis needs to be available in English. Other than that there are no restrictions so long the substance of the thesis addresses one or more aspects of defence, security and strategy.

The Prize itself comes with a number of perks. Apart from the prestige, there is a generous financial contribution to look forward to. Furthermore the successful candidate will speak in front of an international audience of senior decision-makers at the EDA Annual Conference on 21 March 2013. In addition the winner will be offered the opportunity to publish the key findings of the thesis in the form of a book!

More information:

 

• EDA Egmont PhD Prize: Jury confirmed
• EDA and Egmont Institute launch PhD Prize  

During the meeting of the EDA steering board on 19 November, defence ministers from ten European states signed a letter of intent to work together to boost their military air-to-air refuelling capacity.

 

Ministers of Defence met on 19 November 2012 in the composition of the European Defence Agency (EDA) steering board, under the chairmanship of Catherine Ashton as the Head of the Agency.

Ministers took note of the significant progress of pooling and sharing initiatives such as air-to-air refuelling, maritime surveillance, the European SATCOM procurement cell and medical support. Additionally, Ministers endorsed the EDA's proposal of additional pooling and sharing opportunities in the areas of cyber defence, route clearance CIED, NH90, air transport, and maritime landscaping. They also adopted the Agency's voluntary code of conduct on pooling and sharing aiming at supporting cooperative efforts of EU Member States to develop defence capabilities.

Additionally, ministers welcomed the Agency's work in support of national defence ministries vis-à-vis the development of EU policies in industry and market, research and innovation, European space policy, cyber security and defence, SESAR, radio spectrum and maritime security.

The European Defence Agency aims at setting-up an easy-to use and permanent military surplus equipment market platform (e-Quip) for participating Member States (pMS).

During today’s meeting of the European Defence Agency’s Steering Board, defence ministers welcomed the progress made by the majority of Pooling & Sharing initiatives they had endorsed one year ago. 

In 2012, two exercises were held in the framework of the Helicopter Training Programme (HTP). The exercises hosted by Portugal and Belgium allowed for the training of 56 helicopter crews and over 3,000 ground personnel. During the EDA Steering Board, Defence Ministers signed a Programme Arrangement for live exercises over ten years. Initially based on delivering live exercises aiming at disseminating tactical skills, the Helicopter Training Programme now includes a synthetic simulator based training project, a helicopter tactics instructor training course, and an operational English training course.

The Maritime Surveillance (MARSUR) live network continues to extend its membership. The goals of the network are to facilitate exchange of information and to support safety and security. In October 2012, Bulgaria, Latvia and Norway joined the network which now includes 18 nations. 

The European Satellite Communications Procurement Cell (ESCPC) has moved forward as planned, with the signature of a framework contract in 2012. Five Member States participate on a pay-per-use basis of commercial satellite communications services. For the longer-term Future Military SATCOM project, decisions are required in the near future on the replacement of existing satellite networks in the 2018-25 timeframe. As the window of opportunity will close shortly, EDA stands ready to take action on P&S solutions, and is planning a high level workshop “MILSATCOM 2020” in the first half of 2013 in order to present proposals, foster common activities, and link with bi-lateral initiatives.

The Multinational Modular Medical Units (Medical Field Hospitals) attracts growing participation. Fifteen Member States have so far signed the Letter of Intent. The Common Staff Target is expected to be finalised by mid-2013. The Memorandum of Understanding and Common Requirements will follow, with the objective of procurement of assets in 2014 and Initial Operational Capability in 2015.

Air to Air Refuelling (AAR): EDA has developed a global approach with three objectives: increasing overall capacity, reducing fragmentation of the fleet, and optimising the use of assets. The Agency has started to work on short-term solutions including access to commercial AAR services and optimised use of existing assets. Longer-term actions include the acquisition of more AAR kits and increasing the strategic tanker capability in Europe by 2020. A Letter of Intent on a European Strategic Multirole Tanker Transport initiative, prepared under the lead of the Netherlands, was signed during the Steering Board.

Pilot Training has attracted significant interest. France has offered to lead on transport crew training, and Italy on fast jet training. 

Work on European Multimodal Transport Hubs has been launched through a study (the results of which will be available in March 2013). The aim is to develop a European concept to increase the efficiency and cost-effectiveness of Europe’s transport assets in support of military, civil and disaster relief operations. 

EDA has shaped substantive work on Smart Munitions. Possible P&S opportunities are outlined (i.e. in the areas of training and education) but no lead nation has yet been identified.

Ireland, as lead nation, has initiated work on European Naval Training with a view to inter alia improving the sharing of existing facilities and the realisation of civil/military synergies. 

Additionally, the Agency presented the successful work delivered as regards to Pooling & Sharing enablers:

Airworthiness: Member States are implementing EDA’s European Military Airworthiness Requirements (EMARs) in national law. Currently, additional EMARs for Maintenance Personnel Licensing and Airworthiness Management are being developed. A first practical example where EMARs are being applied is the A400M. 

Ammunition: EDA addresses the regulatory framework (harmonisation of qualification and certification regulations) in the field of ammunition; this will facilitate cooperation on procuring, stockpiling, exchanging or transporting all types of ammunition. 

The government to government online market place – eQuip – for redundant or surplus equipment will be launched shortly.

The first Technical Agreement on diplomatic clearance for military transport aircraft was signed during the Steering Board. The arrangement describes harmonised procedures for overflights and landings and enables Member States to operate without the need to submit diplomatic clearances requests for each flight (by using diplomatic clearance numbers valid for one year), including support to on-going operations and transportation of dangerous goods. 

The Go Green project on alternative energy sources for European army forces was launched in March 2012. Seven Member States are participating and the tender procedure has been launched. 

Pooling demand. EDA has concluded a € 228m Euro Framework Contract covering Basic Logistic Services to support the current German-led EU Battle Group.  

The EDA continues to work on the European Defence Standards Reference System for a harmonised approach to standardisation. The development of hybrid standards, with both civil and military applications, will contribute to an efficient EDTIB.

More information:

- Visit the project page of the EDA website

The European Defence Agency (EDA) in partnership with Egmont Institute has the pleasure of inviting the best and the brightest of European academic scholars to submit their candidacy for the EDA-Egmont PhD Prize in Defence, Security and Strategy.
If you have been awarded a PhD in the last academic year (1 September 2011 to 31 August 2012) and feel your findings stand out in terms of quality, innovation and impact on future EU policy, then you are what we are looking for.

You need to be a citizen of an EDA Member State (all EU Member States except Denmark). You will need to have been awarded the PhD by an academic institution in an EDA Member State. You will need to be available to deliver an intervention at EDA’s Annual Conference scheduled for 21 March 2013 in Brussels.

Does this sound interesting? If so, please consult the attached documents for full details on eligibility and award criteria as well as for the practicalities on how to submit your candidacy.
Deadline for receiving submissions is 1 January 2013. The Award notice will be published on 22 February 2013.
We look forward to receiving your submission!

EDA-EGMONT PhD Prize - Call for Submissions FINAL 2

EDA-EGMONT PhD Prize - Submission Form FINAL

Around 550 personnel and 15 helicopters arrived at Kleine-Brogel Air Base on Monday 17 September to participate in the joint and combined helicopter training and Special Forces exercise Green Blade/Pegasus. Green Blade is the fifth helicopter training exercise in a row organised since 2009 by the Helicopter Exercise Programme (HEP) of the European Defence Agency (EDA), while Pegasus is a biennial Belgian exercise for Special Forces. Combining both exercises into one not only offers excellent added training opportunities for both helicopter crews and Special Forces, but also has a cost-reducing effect.

By training together and exchanging ideas, the different Belgian, German and Italian helicopter crews and their support personnel develop common best practices and mutually improve their interoperability. The same goes for the participating Special Forces from Belgium, Italy and Spain. Additionally, the joint training of aircrews and Special Forces means that both groups of specialists are better prepared to work together in future operations.

On arrivals day, all personnel received a place to work and a bed to sleep, and went through a series of mandatory safety and security briefings. Safety in general and flight safety in particular are among the major concerns of the exercise direction as well as of the host nation, as was stressed once more by their representatives in their welcoming speech on the first evening.

The first week of the exercise is fully dedicated to what is called Combat Enhancement Training/Force Integration Training (CET/FIT) in military terminology. In short, it is a phase preceding the actual exercise during which the participants familiarise themselves with the exercise area and the equipment and procedures of their colleagues.

Tuesday 18 September was mainly spent on familiarisation briefings and flights. Members of the participating Special Forces became acquainted with the general characteristics and performances of the different types of helicopters present as well as with the procedures for safe boarding and disembarking. Belgian helicopter crews showed their German and Italian colleagues around in the area of operations for Exercise Green Blade/Pegasus during a pinpoint navigation over the provinces of Antwerp, Liège, Limburg and Namur. During these flights, Belgian pilots made their guests familiar not only with the local landscape and its landmarks, but also with particularities of the Belgian airspace, local flight rules and exercise specific operating procedures.

The images and the video below show the arrival of the helicopters, and the initial familiarization flights. More updates from the exercise will be posted throughout the next fortnight.

To learn more about Exercise Green Blade, see the press release here.

 

Claude-France Arnould, Chief Executive of the European Defence Agency (EDA), today highlighted the need for urgent action on European cooperation in the area of future air systems (FAS) during a conference at ILA Berlin.

The Agency is already supporting a wide range of projects in the air domain fostering cooperation among Member States. However, new results from a recent EDA study suggest that while the air defense industry is still healthy, important industrial capabilities are eroding. Without additional concerted action, the situation will soon become critical, for example for the development of future combat aircraft (manned and unmanned) and attack helicopters.

Military aviation is paramount in enabling EU Member States to meet their national security and defence requirements. Additionally, the industry has long been a driver for innovation, producing cutting edge technology that contributes to wider economic growth in Europe. Around 200,000 people in high-tech jobs are currently directly employed in the sector. It comprises important system integrators and a dynamic and innovative supply chain rich in SMEs. The industry generates an annual turnover of approximately 45 billion euro[1]. This technically advanced sector is a key supporting component of strong European military capabilities. Recent EDA-sponsored work has shown that Europe risks losing significant industrial know-how between now and 2020. This includes the ability to produce advanced combat aircraft. Moreover, Europe risks falling significantly behind the global competition in UAS capabilities.

“Europe has successfully managed to join forces in two fields closely related to military aviation: space and civil aviation. If we want a similarly strong and independent aeronautics defence sector, we have to set the course now”, said Claude-France Arnould during the EDA Future Air Systems Conference at ILA Berlin.

EDA: Fostering aerial cooperation

With budgets under pressure and joint operations more and more common, the EDA is playing a key role in pooling and sharing vital defence capabilities in Europe. Notably in the area of air operations, a number of successful projects are being conducted:

• EDA’s air-to-air refuelling initiative is supporting Member States in developing interoperable European solutions to overcome current shortfalls, and propose options for future requirements in this respect.
• Bringing together air crews from across Europe to train and qualify together in airlift disciplines is the aim of the European air transport training. The first training event was held successfully in Zaragoza, Spain in June this year. More exercises will follow in 2013.
• To date, military airworthiness activities have been conducted and regulated on a national basis. This generates many problems in multinational programmes and is a primary cause for delay and additional cost. The EDA is a key actor in working towards an EU-wide harmonisation and unification strategy on military airworthiness which will make the process more efficient and will help to reduce costs.
• The EDA’s Helicopter Training Programme provides a framework to Member States to allow them to develop, consolidate and share best practices to meet the challenges of flying helicopters in the modern operational environment. EDA has to date delivered four exercises: one in Gap, France, one in Logrono, Spain, one in Viterbo, Italy and one near Porto, Portugal. A fifth one, Green Blade 2012, will be held in Belgium at the end of September. These exercises have met an urgent training requirement for the participating Member States, greatly enhancing the helicopter capacity available. They are complemented by the EDA’s three-week Helicopter Tactics Course, ten being held in 2012.

• The Agency has worked on Unmanned Aerial System (UAS) issues since its inception, and in 2007 it received an explicit directive from European defence ministers to examine the challenges to UAS air traffic insertion. Apart from facilitating concrete projects (e.g. Midair Collision Avoidance project (MIDCAS)) and funding studies (e.g. Study on military spectrum requirements for the insertion of UAS into general air traffic (SIGAT)), the EDA cooperates with European and international organisations to move forward technical, regulatory and standardisation issues.

“FAS4Europe” study: how to safeguard the future of the military aviation industry

Almost 30 industrial entities, representing a significant proportion of Europe’s military aviation industry, were involved in the twelve month FAS4Europe study under the leadership of Saab AB. Its aim was to analyse the current state of the European air defence industry, to identify the sector’s strengths and weaknesses and to provide a roadmap and implementation plan.

The main result of the study is that the European military aeronautical industry is now losing capabilities. The situation for future air systems is severe, with some important industrial capabilities and technologies already at risk. The study highlights that an opportunity exists to break the current trend of erosion. However, it requires the launch of actions based on a common and coordinated plan.

The EDA study thus sets out a roadmap of projects and demonstrator programmes. This roadmap includes proposals to work on:

• Technologies for advanced intelligence, surveillance, and reconnaissance UAS;

• Increasing air system survivability against future threats (rotary and fixed wing); and,

• Improving the lifecycle affordability of military aircraft (rotary and fixed wing).

Additionally, the study highlights the potential to link civil-military research and development to exploit synergies within the civil aerospace market. Finally, it strongly suggests co-operative European aerospace development programmes to avoid further fragmentation.

Agency position

The EDA will address the issue of a common European approach with stakeholders and will raise it at Board level. “What is in question today is Europe’s future ability to design and develop advanced new military aircraft. The Agency aims to make a strong case for strategic European cooperation for future air systems”, concluded Claude-France Arnould in Berlin.




Image credits: EADS/Cassidian

[1] ASD, Facts and Figures, 2010

A new report from the European Economic and Social Committee has called for closer European defence cooperation, calling the arguments in its favour "overwhelming", and asking for a “radical” change of mindset.

The consortium in charge of D-FUSE (Data Fusion in Urban Sensor Networks) organised a dissemination workshop on 6-7 March 2012, at Delft, in the Netherlands. This event was be based on demonstrations to illustrate the innovations achieved during the first two years of the project.

The details of the programme may be found here. Posters are available here:

• Poster 1 - Data fusion for low level air-space
• Poster 2 - Anomaly Detection in Urban Sensor Networks
• Poster 3 - Association of Sparse Sensor Data
• Poster 4 - Context data added value for situation awareness
• Poster 5 - Sensor Network Configuration Optimization
• Poster 6 - Quantity or Quality?

D-FUSE is an R&T Project contracted by the EDA on behalf of Member States contributing to the Joint Investment Program on Force Protection.

The Court of Justice has handed down a very significant Opinion in Case Opinion 1/09 on the compatibility with EU law of a draft agreement which aims to set up a new European Patent Court system. We’ve written about that before.

The Opinion is significant because of the manner in which the Court examines the roles of national courts and of the EU courts in safeguarding the proper application of EU law.

The Court concluded that the system as envisaged would be incompatible with EU law because it ousts the jurisdiction of national courts to apply EU law. The envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the EU an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply EU law in that field, would deprive courts of member States of their powers in relation to the interpretation and application of EU law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the EU and on the member States and which are indispensable to the preservation of the very nature of EU law.

The Council drew up a draft international agreement, to be concluded between the member States, the EU and non-member countries which are parties to the European Patent Convention to create a court with jurisdiction to hear cases related to the European patent and the future Community patent. The new court system forms part of a new integrated system for the European and Community patent to be issued by the European Patents Office. Currently, although the procedure for granting that right is unitary, the European patent breaks down into a bundle of national patents, each governed by the domestic law of the States which the holder of the right has designated. By contrast, the distinguishing feature of the future Community patent is that it would be unitary and autonomous and would have equal effect throughout the European Union. It could be granted, transferred, declared invalid or lapse only in respect of that territorial area.

The draft international agreement aims to establish a European and Community Patent Court composed of a court of first instance - comprising a central division and local and regional divisions – a court of appeal and a joint registry.

The Council requested the Court to give an opinion on the compatibility of this new court system with EU law pursuant to Article 218 § 11 TFEU. 21 member States, the European Parliament and the Commission intervened. The Court dealt first with the basic question whether the TFEU prevented the creation of a new court system outside the one it already sets up.

It held that Article 262 TFEU does not preclude the creation of the patent court system envisaged. While it is true that under that provision there can be conferred on the Court of Justice some of the powers which it is proposed to grant to the Patent Court, the procedure described in that article is not the only conceivable way of creating a unified patent court. Article 262 TFEU provides for the option of extending the jurisdiction of the European Union courts to disputes relating to the application of acts of the EU which create European intellectual property rights. Consequently, that article does not establish a monopoly for the Court of Justice in the field concerned and does not predetermine the choice of judicial structure which may be established for disputes between individuals relating to intellectual property rights.

The Court also held that the creation of the patent court system was not in conflict with Article 344 TFEU: That article merely prohibits member States from submitting a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for in the Treaties. The jurisdiction which the draft agreement intends to grant to the patent court system relates only to disputes between individuals in the field of patents.

Then the Court of Justice went on to examine the envisaged court structure n the light of the fundamental elements of the legal order and judicial system of the EU, as designed by the founding Treaties and developed by the case-law of the Court.

And that is where the problem lay.....

The Court recalled that the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only member States but also their nationals (see, inter alia, Case 26/62 van Gend & Loos [1963] ECR 1, 12 and Case 6/64 Costa v ENEL [1964] ECR 585, 593). The essential characteristics of the EU legal order thus constituted are in particular its primacy over the laws of the member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the member States themselves (see Opinion 1/91 [1991] ECR I‑6079, paragraph 21).

Article 19(1) TEU provides that the guardians of that legal order and the judicial system of the EU are the Court of Justice and the courts and tribunals of the member States.

The Court recalled that its role is to ensure respect for the autonomy of the EU legal order thus created by the Treaties (see Opinion 1/91, paragraph 35).

Member States are obliged, by reason, inter alia, of the principle of sincere cooperation, set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law (Case C‑298/96 Oelmühle and Schmidt Söhne [1998] ECR I‑4767, paragraph 23). Further, pursuant to the second subparagraph of Article 4(3) TEU, the member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU. In that context, it is for the national courts and tribunals and for the Court of Justice to ensure the full application of EU law in all member States and to ensure judicial protection of an individual’s rights under that law (Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 38).

The national courts, in collaboration with the Court of Justice, fulfill a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (Case 244/80 Foglia [1981] ECR 3045, paragraph 16, and Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others [1995] ECR I‑1567, paragraph 15).

The judicial system of the EU is a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 40).

The Court of Justice examined the basic characteristics of the new system. It held that the international court envisaged in the draft agreement is to be called upon to interpret and apply not only the provisions of that agreement but also the future regulation on the Community patent and other instruments of EU law and rules of the FEU Treaty concerning the internal market and competition law. Likewise, the new patent court system may be called upon to determine a dispute pending before it in the light of the fundamental rights and general principles of EU law, and even to examine the validity of an act of the EU.

Thus, the new patent court system as envisaged:

–        takes the place of national courts and tribunals, in the field of its exclusive jurisdiction described in Article 15 of that draft agreement,
–        deprives, therefore, those courts and tribunals of the power to request preliminary rulings from the Court in that field,
–        becomes, in the field of its exclusive jurisdiction, the sole court able to communicate with the Court by means of a reference for a preliminary ruling concerning the interpretation and application of European Union law and
–        has the duty, within that jurisdiction, in accordance with Article 14a of that draft agreement, to interpret and apply EU law.

The Court of Justice held that while it has no jurisdiction to rule on direct actions between individuals in the field of patents, since that jurisdiction is held by the courts of the member States, nonetheless the member States cannot confer the jurisdiction to resolve such disputes on a court created by an international agreement which would deprive those courts of their task, as ‘ordinary’ courts within the EU legal order, to implement EU law and, thereby, of the power provided for in Article 267 TFEU or the obligation to refer questions for a preliminary ruling in the field concerned.

The Court recalled the vital role of the national courts in the EU legal order. Article 267 TFEU aims to ensure that, in all circumstances, that law has the same effect in all member States. The preliminary ruling mechanism thus established aims to avoid divergences in the interpretation of EU law which the national courts have to apply and tends to ensure this application by making available to national judges a means of eliminating difficulties which may be occasioned by the requirement of giving EU law its full effect within the framework of the judicial systems of the Member States. Further, the national courts have the most extensive power, or even the obligation, to make a reference to the Court if they consider that a case pending before them raises issues involving an interpretation or assessment of the validity of the provisions of EU law and requiring a decision by them (Case 166/73 Rheinmühlen‑Düsseldorf [1974] ECR 33, paragraphs 2 and 3, and Case C‑458/06 Gourmet Classic [2008] ECR I‑4207, paragraph 20). The system set up by Article 267 TFEU therefore establishes between the Court of Justice and the national courts direct cooperation as part of which the latter are closely involved in the correct application and uniform interpretation of EU law and also in the protection of individual rights conferred by that legal order.

So, because the new system had the effect of ousting the jurisdiction of national courts in the application of EU law, the Court found it incompatible with the EU Treaty.

That is all well and good. But our searching minds thought about BIT arbitration..... Has the Court of Justice inadvertently affected that ?

The Swedish Armed Forces invited EDA participating Member States as well as other countries to the first European Personnel Recovery Operations and Plans Course in Karlsborg, 7-18 March 2011. Course participants came from Austria, Belgium, Denmark, France, Germany, the Netherlands, Norway, Poland and Sweden. In addition to the Swedish instructors, Canada, Belgium, Germany, the Netherlands and the United States additionally sent observers and instructors to Karlsborg.

The intensive two-week course aimed at enabling participants to prepare, plan and execute Personnel Recovery Operations. “This course is indeed very helpful for our operational planning. The instructors are very experienced and motivated”, said course participant First Lieutenant Jos Tijs from the Royal Netherlands Navy.

Major Tor Cavalli-Björkman, a Swedish Instructor, is convinced: “We all benefit tremendously from this international information exchange. I would like to stress that this initiative will increase the number of trained personnel available to support on-going operations as well as EU Battle Group.”

The initiative to standardise Personnel Recovery training emerged from the Project Team Personnel Recovery in the European Defence Agency (EDA) at the end of November 2010. Jon Mullin, Capabilities Director at EDA, stated: “I am most grateful that Sweden agreed to offer the first EU opportunity of this kind and hosted it so successfully at its Survival, Evasion, Resistance and Escape (SERE) School. This initiative will significantly boost Personnel Recovery capabilities in Europe.”

A Belgian officer said “The course could not come at a better time, given the obvious requirements we have witnessed in the press regarding the events in North Africa during the past few weeks.”

Personnel Recovery is aimed at mitigating and reacting to the risk of isolation, capture and exploitation of military or civilian personnel during a Crisis Management Operation (CMO). The Personnel Recovery Course, envisaged to be held regularly by various host nations, is one of several results of the respective Project Team at EDA. Other initiatives include a Personnel Recovery Concept, a personnel registration tool and the preparation of joint procurement of Personnel Recovery Equipment in the future.

The European Defence Agency was established in 2004 to support the participating Member States and the Council in their effort to improve European defence capabilities in the field of crisis management and to sustain the Common Security and Defence Policy (CSDP) as well as pooling efforts and resources in the development of transformed, interoperable and cost-effective armed forces.

The Court of Justice, the General Court and the Civil Service Tribunal have published a summary of their case statistics for 2010.

There's good news and bad news. The good news first: The average time for dealing with cases before the Court of Justice has decreased (preliminary references now take 16.1 months on average).

The bad news: the volume of cases is increasing. The number of new cases before the Court of Justice jumped significantly from 562 in 2009 to 631 in 2010 (that's the highest number brought in the Court's history). Likewise, the number of cases brought before the General Court has increased from 568 in 2009 to 636 in 2010. Cases are dealt with more speedily there. Finally, the number of staff cases in the Civil Service Tribunal has increased too which perhaps shows what a difficult employer the Commission is. Cases in the Civil Service Tribunal seem to take ages (18.1 months in 2010 compared with 15.1 months in 2009).

For last year's statistics, see here.

Mr. William J. Lynn, the US Deputy Secretary of Defense, with Ms. Claude-France Arnould, EDA's Chief Executive, upon arrival, at the Agency.

 

Mr. Lynn (below, on the right), and Mr. William E. Kennard, the U.S. Ambassador to the EU (at his side), meeting the European Defence Agency Management Board.