Professor Franz C. Mayer, Chair in Public Law, European Law, Public International Law, Comparative Law and Law and Politics at the University of Bielefeld.

Just two more ratifications and the Treaty establishing the European Defence Community (EDC) would enter into force (Art. 132 EDC). 

However, there are important reasons against revitalizing this old treaty.

This begins with the meaning and purpose of the treaty. The EDC had a different perspective. Like the European Coal and Steel Community, the EDC aimed to bring together previously hostile states in such a way that war would become impossible or at least difficult. The ingredients for war, energy and steel, were taken away from the nation states and placed under supranational control. The EDC was the logical next step here: not only the ingredients for war, the national armies themselves were to be placed under supranational control. This perspective was introspective: the Erbfeinde, “hereditary enemies”, Germany and France were to be brought together through integration in such a way that the series of wars between these neighbors in the center of Europe would come to an end. If this logic was applied to the current conflicts, both Ukraine and Russia would have to join a common structure. However, this is not in sight. Today, the primary purpose of the EDC would clearly be to secure European defense capabilities against Russia.

At first glance, reviving such an old treaty does not seem very plausible, considering that so much has changed in Europe in the last 70 years. Treaty law processes this issue with the clausula rebus sic stantibus (Art. 62 VCLT). 

But, strictly speaking, the focus is not on a treaty. The idea is to build on the existing ratifications. France and Italy would still have to take the political initiative and both ratify the treaty after all. Only then would it come into force, it would be politically updated, so to speak. The fact that nothing depends on Germany for the time being would not only fit in with the passive stance that the Germans have taken on military issues over the years. It would also have the advantage that the usual German constitutional objections to any novelty in the European context and the inevitable reference to the German Federal Constitutional Court possibly standing in the way would be irrelevant for the time being. Germany has ratified the treaty, is formally bound by it and cannot easily revoke this ratification. There is also no easy way to refer the matter to the German Constitutional Court in this constellation. Fun fact: the German Constitutional Court already ruled on the EDC, in 1952, although the case did not get very far due to a lack of legal standing. 

Immediately after the treaty comes into force, the EDC would of course have to be brought up to date. To do this, an intergovernmental conference would have to be convened immediately to update and supplement the treaty text. Here is just one example of the many questions that arise: How would parliamentary scrutiny be ensured at European level? Entrusting the EP of the 27 Member States with this task when only 6 of the 27 are involved in the EDC is not very plausible. 

And at this point, constitutional parameters that have developed since 1952 would have to be taken into account. The principle of a parliamentary army applies to the German military today: no foreign deployments of the Bundeswehr without the prior consent of the Bundestag. It is not only in Germany that the abolition of national armies envisaged in the EDC is likely to encounter clear reservations about sovereignty today. For Germany, it is the Lisbon judgement of the German Constitutional Court that contains passages pointing in this direction.

Still, the example of the Euratom Treaty shows that a European community can continue to exist alongside the European Union. However, Euratom is not the only conceivable model for the coexistence of Community and Union: within the framework of the intergovernmental conference, the enlargement of the EDC to include further states could also be a topic. These would primarily be additional EU Member States, but the inclusion of non-Member States such as the United Kingdom, and perhaps even Ukraine in the future, would also be conceivable.

The advantage of the EDC would be that it could offer a fresh starting point for the further development of European defense and security. A new momentum. Within the treaty framework of the EU with 27 Member States, any further development is likely to be slow and painful. At the same time, the concept of an avant-garde could be tested here with the EDC, with some states taking on a pioneering role in questions of European integration.

Admittedly, the path via the EDC would not be free of obstacles and problems. However, these appear to be solvable. Above all, a corresponding political will would be required.