From Permacrisis to Strategic Autonomy
– Adapting the EU Treaties to New Realities

1. Introduction

In the light of recent geopolitical developments, it is becoming increasingly clear that the European Union stands at a crossroads. ‘Europe is in a fight. A fight for a continent that is whole and at peace. For a free and independent Europe’,1 declared Commission President Ursula von der Leyen in her State of the Union Address to the European Parliament in September 2025. However, to achieve the independence the EU desires, the patchwork crisis management that has been emblematic of the EU over the last 20 years is no longer sufficient. If the EU is indeed to be able to determine its own destiny, it must confront three existential challenges head on: enforcing democratic principles within its borders, securing the long-term stability of the euro, and building a shared defence capacity. These are not technocratic tweaks but fundamental shifts in how the EU wields power. Without them, the EU will remain a bystander in a world shaped by others.

Since the signing of the Lisbon Treaty in 2007, the EU has been faced with a plethora of simultaneous crises: the financial crisis of 2008, the influx of migrants starting in 2015, Brexit, Covid, the war in Ukraine and, most recently, the collapse in the relationship with the United States. Increasingly the term ‘permacrisis’ is used to reflect that, at this historical juncture, managing crises and risk is a permanent occupation of a state or state-like organisation, not a passing phase.2

So far, the EU has managed to survive emerging threats with a clutter of reactive political compromises. Once an individual crisis has been averted through emergency measures, the appetite for future-proofing the EU has been low, especially if it means amending the EU treaties. Emergency measures have often become permanent solutions. Over the last ten years it has become increasingly evident that the current versions of the EU treaties are sagging under the weight of permacrisis. With an expansionist and aggressive neighbour to the east and an unreliable ally to the west, calls for the EU to assume strategic autonomy are gaining momentum.3 It is becoming evident that the challenges the EU now faces require responses that the treaties were not designed to address.

The term ‘strategic autonomy’ has no clear definition in EU policy, but it is generally assumed that it encompasses the need for the EU to be able to act independently as a free-standing actor on the global stage and thus to contribute to shaping world events.4 So far, the need for EU defence cooperation has received the most attention in this context.5 If the EU is to be able to act independently on the world stage, it must be able to protect itself and its interests militarily. However, even if defence is indeed an acute concern at this juncture, this paper identifies two further recent crises that need to be sustainably resolved in order for the EU to become strategically autonomous in a meaningful way over time.

First, the unwillingness of some Member States to abide by fundamental democratic principles poses an existential risk to the EU as a whole. In recent years the focus has been on Poland and Hungary with regard, for example, to the independence of the courts and media freedom. While Poland has seen improvement as far as compliance is concerned, the situation in Hungary has increasingly become one of open defiance.6 The Hungarian situation is exemplified by the ‘anti-LGBTIQ+-propaganda’ law, which effectively bans LGBTIQ+-related information in education, media and advertising and which is currently pending as an infringement case before the Court of Justice of the European Union (CJEU).7 If forceful action is not taken to ensure compliance with the core rights on which the treaties are built, the EU is in real danger of losing its very raison d’être as a union based on shared values.8

Second, through the introduction of the currency union in the Maastricht Treaty, the euro was placed at the very core of the EU project. Despite lacking the safeguards common to national currencies, the euro has so far proved to be remarkably resilient. However, the financial crisis of 2008 left disjointed, and sometimes contradictory, rules in its wake. If the EU is to be able to act independently and sustainably on the international stage, it is essential to ensure the continuing stability of the common currency. This analysis holds that the creation of a fiscal union is unavoidable if the euro is to be stable in the long term and the EU is to achieve true strategic autonomy.

Finally, the analysis turns to the area of defence and argues that this must become a shared competence between the EU and the Member States. Only then can resources be pooled and decision-making become efficient, and the EU be given the strength and security to act independently vis-à-vis both global partners and emerging threats.

‘To face today’s challenges, the European Union must transform itself from a spectator—or at best a supporting actor—into a protagonist’, said former Italian Prime Minister and President of the European Central Bank Mario Draghi in a recent speech in Rimini, Italy.9 In his remarks Draghi pointed to the fact that the market-based strength of the EU is losing significance in a geopolitical climate that is increasingly dominated by authoritarian tendencies. As is shown in the following chapters, the three proposals made here are legally quite simple, and perhaps even obvious, if the EU is indeed to assume the role of a reliable and value-driven protagonist on the world stage. Politically they are of course anything but simple. However, as Jean Monnet wrote in his Memoirs: ‘Events were to show that this philosophy, which concentrates on what is necessary, is more realistic than one that takes account only of what is possible.’10

Safeguarding a Union built on fundamental values, solidifying the euro and creating possibilities for a common defence are indeed necessary for the EU and its Member States moving forward. It is now time to consider how to make these changes possible.

2. Ensuring Adherence to Fundamental Principles

2.1 The Current Legal Framework

The European Union is built around a common market, ensuring free movement among its members. However, it was implicit even from the start that the community went beyond mere economic considerations. Trade was a vessel for integrating and unifying Europe in order to safeguard peaceful coexistence.11 As a necessary precondition for this deep integration, the community was founded on a presumption of shared democratic values. Over time this presumption has been more and more constitutionalised in the EU treaties, starting with general references in the Treaty of Maastricht.12 Through a modification of Article F and the new Article F1 in the Treaty of Amsterdam,13 it found its current representation in Article 2 of the TEU through the Treaty of Lisbon:14

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The current president of the CJEU, Koen Lenaerts, has stated that the values identified in Article 2 of the TEU ‘are embedded in the very DNA of the European integration project’.15 In its case law, the CJEU has established that the values in Article 2 are interconnected and form part of a ‘constitutional framework’16 which ‘define[s] the very identity of the European Union as a common legal order’.17

That ‘freely and voluntarily’18 committing to respect the values enumerated in Article 2 TEU is a prerequisite for becoming an EU Member State is made explicit in Article 49 TEU. In 2021 the CJEU established in Repubblika what has been referred to as the ‘principle of non-regression’,19 which states that respect for Article 2 is a condition for enjoying all the rights under the treaties.20 The principle of non-regression holds that ‘backsliding’ on the Article 2 commitments following EU membership is not permissible and that, in principle, this can be sanctioned by the withholding of the other rights a Member State enjoys under the treaties.21

The ‘DNA of the European integration project’ outlined in Article 2 TEU was developed and solidified by the adoption of the Charter of Fundamental Rights (‘the Charter’) in 2000.22 It must be noted that the Charter only applies to Member States when they are implementing EU law.23 Therefore, what has been described as a ‘hook’ or a ‘triggering norm’ in EU law has to be present for it to apply.24

The most obvious route to ensure compliance with Article 2 TEU has been to use Article 7 TEU and the political mechanism provided in that article. The mechanism is triggered by a request by two-thirds of the EU Member States, the Commission or the European Parliament when there is a suspicion of a ‘clear risk of a serious breach’ of Article 2 TEU. Article 7 TEU proceedings may lead to the Council deciding with unanimity that a Member State is in ‘serious or persistent breach’ of Article 2 TEU. If this is found to be the case, the Council, acting by qualified majority, may suspend certain rights under the treaties, including voting rights. Proceedings under Article 7 TEU were initiated against Hungary in 2018,25 but are still in the dialogue phase.26

Because the Article 7 procedure has been deadlocked by the unanimity requirement, the EU passed what is often referred to as the Rule of Law Conditionality Regulation in 2020.27 The background to the Regulation was the persistent problem of Hungary and Poland failing to abide by fundamental rule of law principles.28 Articles 4 and 5 of the Regulation allow the Commission to recommend to the Council that EU funds be withheld from Member States who endanger the independence of the judiciary, fail to take action against arbitrary or unlawful decisions by authorities, or limit the access or effectiveness of legal remedies. The Council decides on such a recommendation by qualified majority voting in accordance with Article 6 of the Regulation. To date the Regulation has been applied once, in 2022, resulting in the suspension of the payment of 6.3 billion euro in EU funds to Hungary.29 This decision was subsequently reversed by the Commission and the funds were released in 2023.30

Finally, and importantly, it must be pointed out that it is becoming increasingly apparent that the Commission is willing to view Article 2 TEU as an autonomous and overarching obligation that the Member States have imposed on themselves by virtue of EU membership. Therefore a breach of the core, broad principles outlined in Article 2 can be seen as triggering the more specific rules in the Charter. Thus, Article 2 TEU functions as a bridge which subjects all Member States to the core democratic principles in Article 2 TEU as well as the more specific and detailed principles found in the Charter.31 On this basis, it can be argued that the core values enshrined in Article 2 TEU are free-standing legal requirements that can be enforced autonomously through the EU judiciary and on which decisions can be made without using the political process established in Article 7 TEU. This is the rationale underlying the decision by the Commission to start infringement proceedings against Hungary under Article 258 TFEU in Case C-769/22 which the Advocate General endorsed in her Opinion in June 2025.32 Sixteen Member States and the European Parliament intervened on the side of the Commission, signalling broad support for the Commission’s interpretation. The reasoning of the Advocate General is potentially groundbreaking. By declaring that Article 2 TEU is ‘justiciable’, the controversial question of safeguarding fundamental rights within the EU is depoliticised and becomes a strict compliance issue. As a consequence, it could be argued that the institutional balance, as far as rule of law adherence is concerned, has swayed firmly away from the Council and towards the Commission and the Court of Justice.

2.2 The Way Forward

The above leads to a situation in which two mutually exclusive situations exist inside the EU with regard to fundamental rights. First, the EU treaties establish a set of rules relating to democratic rights and principles which supersede national law and which the Court of Justice has declared are at the heart of the EU and integral to the very fabric of the internal market.33 Second, the governments of some Member States appear intent on breaching these rules. If the upholding of democratic rights is indeed a prerequisite and a sine qua non for EU membership, it follows logically that a Member State that does not uphold them must leave the European Union. In short, if the statements made in the case law of the Court of Justice are to be upheld in practice, a Member State must choose between being a Member State, on the one hand, and breaching fundamental rights, on the other.

At present, the EU treaties are firm in establishing the existence of the fundamental rights and elaborating on their content, but significantly weaker in ensuring that Member States adhere to them. This situation is not remedied by the existing sanctions under Article 7 TEU, the Rule of Law Conditionality Regulation or infringement proceedings under Article 258 TFEU. All of these instruments may result in economic sanctions of various types,34 but none of them allow for the expulsion of a Member State found to be in persistent breach. This means that a Member State which is intent on violating fundamental rights for EU citizens can persist in such infractions if it is willing to absorb the economic consequences as well as the potential suspension of voting rights. Such a result is impossible to square with the existential emphasis placed on fundamental rights by the Court of Justice.

EU membership is a voluntary aspiration that comes with rights and obligations. As Brexit showed, Member States that no longer want to abide by the principles at the heart of the integration project may leave and form other ways to interact with the EU. As an organisation built on shared values, fundamental rights and the rule of law, the EU can no longer tolerate systematically and intentionally infringing states as members.

This means that if the EU is indeed to continue to be a community that rests firmly on shared values, the defence of those values has to be uncompromising. A necessary development in this regard is the introduction of the possibility of expelling Member States which do not respect the shared values established in Article 2 TEU and which are further elaborated on in the Charter of Fundamental Rights. As discussed above, the Advocate General in Values of the European Union makes a convincing case for the ‘justiciability’ of those rights by subjecting breaches of them to infringement proceedings under Article 258 TFEU. It remains to be seen if the Court of Justice will follow this reasoning in its ruling.

Rather than allowing these rights to be upheld only through political compromise, it is therefore argued that a reformed system should include infringement proceedings, with the Court of Justice as the final arbiter. Such an infringement procedure should result in a decision on whether a Member State is in breach of the fundamental principles.

Such a decision of the Court of Justice would then form the basis for decision-making in the Council. The establishment of the breach would thus become a strictly legal assessment, but the decision on sanctions would remain with the Member States, acting through the Council on the proposal from the Commission. In order for any sanctions to be meaningful, expulsion of a Member State in persistent breach must be a possibility. Provided that the Court of Justice has established that a Member State is in persistent breach, qualified majority voting in the Council on sanctions, including expulsion in the extreme case, must be considered to be appropriate in order to ensure effective compliance with the shared core values of the EU.

3. Securing the Euro and the Common Monetary Policy

3.1 The Current Legal Framework

Although many economists saw the purely economic advantages of the euro,35 its creation was always idealistic rather than primarily an economically motivated idea, with the dominant goal being European integration.36 This fact also led to the greatest criticism of the euro from leading economists at the time of its introduction. Nobel prize winner Joseph Stiglitz was an early and notable critic of the project. He summarised the broad outlines of the widespread critique in an interview with Time: ‘You need a variety of institutions to help nations for which the policies aren’t well suited. Europe introduced the euro without providing those structures.’37

In many ways, the early Cassandras were right: the institutional structure upon which the common currency rests is weak, often ill-defined and a product of political compromise, something that was vividly illustrated in the economic crisis of 2008.38 It is, however, a testament to the strength of European integration that the euro, despite its potentially fatal flaws, has survived and grown so comparatively strong on the global stage.

Following the collapse of Lehman Brothers in September 2008 and the subsequent massive losses that were incurred by banks exposed to US mortgage-backed assets, Europe was plunged into a major financial crisis. The crisis revealed flaws that were seemingly potentially catastrophic with regard to the initial design of the euro and the monetary union. To make matters worse, the crisis demonstrated a fundamental disregard among certain Member States for the established rules, revealing serious macro-economic imbalances, including large current account deficits, high private and public debt, housing bubbles and fiscal deficits.39

In order to safeguard the stability of the euro, a number of bailouts of EU Member States took place over the years that followed. These bailouts were creatively arranged to circumvent the explicit prohibition on bailouts contained in Article 125 TFEU. The first bailout concerned Greece and was based on Article 122(2) TFEU, which allows for EU financial assistance in cases where a Member State is ‘seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control’.40 The same legal basis was used to create the temporary EU fund called the European Financial Stabilisation Mechanism (EFSM) to allow for the further bailouts of Ireland and Portugal. The European Financial Stability Facility (EFSF) was formed outside the confines of EU law as a private intergovernmental agreement between the 16 eurozone Member States in June 2010. The EFSF could raise funds on capital markets and was backed by guarantees from the participating Member States.41

A few years later, in 2012, the EFSF was replaced when the European Stability Mechanism (ESM) was signed. This agreement was also formulated as an intergovernmental agreement and did not form part of the EU framework. Support from the fund was only available to Member States that entered into agreements on austerity measures as regards fiscal and economic policy.42 The ESM was formally connected to the TFEU by Decision 2011/199/EU, which used the simplified treaty revision procedure in Article 48(6) TFEU to amend Article 136(3) TFEU to specify that eurozone Member States may act jointly to establish a permanent stability fund.43

The establishment of the ESM was challenged in Pringle, where it was argued that the ESM ran directly counter to the no bailout provision in Article 125 TFEU.44 In its ruling, the Court of Justice relied on the preparatory works to the Maastricht Treaty to conclude that the true objective of Article 125 TFEU is to ensure that Member States follow ‘a sound budgetary policy’ and that they remain subject to the ‘logic of the market when they enter into debt’.45 The court went on to conclude that, since the financial relief offered by the ESM was connected to strict requirements on fiscal and budgetary discipline by the receiving Member States, the objective of Article 125 TFEU was not undermined.46

There is little doubt that, if the Court of Justice had come to the opposite conclusion, the sovereign debt crisis would have worsened, with potentially catastrophic effects for the Member States concerned. However, at the same time Pringle is an extraordinary example of legal jiu jitsu, in which a seemingly strict and unequivocal requirement in the TFEU was allowed to be circumvented in order to temporarily save the euro. Such a situation is deeply unsatisfactory with regard to legal certainty, and may have detrimental effects as far as the long-term stability and predictability of EU monetary policy is concerned. We will return to this issue below.

Following the financial crisis, the EU introduced reforms to address some of the systemic weaknesses of the euro. The ‘Six-Pack’ legislation strengthened the Stability and Growth Pact and created the Macroeconomic Imbalance Procedure to correct issues like loss of competitiveness.47 Following this legislation, 25 Member States entered into the so-called ‘Fiscal Compact’ in 2012, agreeing to rules relating to strict budgetary discipline. The intergovernmental agreement contains an article stating that the substance of the agreement should be incorporated into EU law within five years. So far, this has not been done. In 2013, the ‘Two-Pack’ regulations were issued, with the intention of enhancing budgetary surveillance for eurozone states, increasing Commission oversight, making the European Semester legally binding, and making EU lending conditional on reform for countries in financial difficulty.48 Despite these governance and financial sector reforms, the selective debt default of Greece in March 2012 highlighted the inadequacy of these policies.49

The debt restructuring of Greece prompted the Member States to finally accept the idea of an EU banking union, although one limited in scope to the eurozone. Its final step, a European Deposit Insurance Scheme (EDIS), has been proposed as a regulation but not yet adopted.50

3.2 The Way Forward: Fiscal Union and Debt Mutualisation

As outlined above, following the financial crisis, a number of instruments were introduced to stop the bleeding and secure the accounts of defaulting Member States. However, emergency measures should not be confused with meaningful long-term reform. As Cochrane et al. recently wrote: ‘They get us through the crisis but they form a poor basis for long-run institutions’.51 If the euro is to survive the next, and perhaps a worse, financial crisis, as well as to give support to increasing demands for EU expenditure and borrowing,52 consolidation and reform of the existing framework must urgently be considered.53

The obvious elephant in the room when considering reforms to the governance of the euro is the creation of a fully-fledged fiscal union. This was the glaring omission even at the time of the introduction of the euro, and events in the meantime have led to a patchwork of more or less temporary solutions, the latest being NextGenerationEU, the instrument enacted in December 2020 to allow the EU to borrow on the financial markets to stabilise economies following the Covid-19 pandemic.54

The creation of a fiscal union would allow for a permanent loan facility managed by the EU that fall squarely inside the EU competences. This would make it possible for the EU to mutualise debt among the Member States and avoid some of the systemic effects of a far-reaching economic crisis. By relying on bailouts as the EU has done so far, the moral risks are compounded. Why should a Member State bother to follow the budgetary guidelines in a time of economic stress or political opportunism if it knows that the EU will take emergency measures to re-finance it? Obviously, a fiscal union consisting of 27 Member States would be subject to the same institutionalised moral hazards as bailouts, and therefore any such system would have to include further ex ante measures to ensure strict budgetary discipline.55

The alternative to mutualisation of debt in one way or another is to allow Member States to default just like companies. This would create a strong impetus to adhere to the budgetary rules in place.56 However, it would also require the ECB and Member States to be restricted from acting to ‘save’ affected Member States, and instead for an institution to be created and tasked with restructuring the sovereign debt of defaulting parties.57 It should be borne in mind that the political appetite for a solution in which EU Member States are allowed to declare themselves bankrupt is likely to be significantly lower than that for treaty reform with the aim of creating a fiscal union.

A fiscal union with joint debt obligations, coupled with strict legal obligations concerning budgetary discipline, would have the advantage of injecting a similar type of stability into the euro as pertains to normal, national currencies. It would also have the added benefit of allowing the EU to run deficits and assume debt in order to finance projects of an existential nature such as a joint defence budget.58

A number of existing treaty articles would be affected if the EU competences were expanded to include a fiscal union. First, Articles 3–5 TEU, which are based on the principle of conferral, would have to be amended in order to explicitly assign fiscal powers to the EU. Furthermore, Article 125 TFEU, which contains the no-bailout clause, would have to be amended to include the possibility of debt mutualisation through the issuing of bonds. Articles 121–126 TFEU, which contain rules relating to the Stability and Growth Pact, would have to be replaced with rules moving from coordination between the Member States to shared governance of the EU budget.

Furthermore, the rules in Article 136 TFEU relating to specific provisions for the eurozone would have to be amended to establish a eurozone treasury or a common fiscal authority.

Article 310 would have to be reformed by moving away from the requirement for balanced budgets and instead allowing the EU as a whole to run deficits and assume debt under specified conditions.

Finally, questions relating to the EU’s overall funding would have to be revisited in the light of Article 311 TFEU, and the controversial issue of assigning autonomous powers of taxation to the EU would have to be considered.

A less controversial issue than a fiscal union is the completion of the EU banking union, and it is widely assumed that this does not require treaty revision. As discussed above in Chapter 3.1, some of the major steps towards banking union have been taken, but the third pillar, the creation of the EDIS, has been deadlocked for nearly a decade.59 However, in the last year, it appears that the proposal that was introduced in 2015 by the Commission has begun to move slowly through the legislative process.60

4. Creating a Common EU Defence Policy and strengthening the Common Foreign and Security Policy

4.1 The Current Legal Framework

If the two previous issues discussed in this paper are problems of the EU’s own making, the one we now turn to is wholly informed by the changing geopolitical landscape in which the EU finds itself. Following the aggressive expansionism of Russia and the emerging and dramatic uncertainties in the transatlantic relationship, the issue of defence cooperation is rapidly becoming the top priority for the Member States as well as the EU as a whole. Even if discussions concerning European autonomy in relation to defence and security are not entirely new,61 the scale of the change in circumstances over recent months has elevated the issue to one of an existential nature. Historically, the EU was able to rebuild and unite since World War II under the protective shield of US military might. When that shield is called into question, the EU has two choices: to risk standing unprotected or to provide its own protection. It is clear from the responses so far, both from Brussels and from Member State capitals, that the first option is unacceptable.

‘We must build a common defence. This is not to threaten or conquer, but to deter any attack from the outside, driven by hatred against a united Europe’, stated European Commission President Ursula von der Leyen in a speech before the European Parliament in March 2025.62

However, the EU treaties, as currently formulated, complicate such ambitions. Even if issues relating to a common defence policy do find rudimentary reflection in the treaties, competences for the EU to act are weak and have not until recently been explored in great detail practically, either in policy or by the Court of Justice. In the academic literature the issue is of growing interest, and in writing this chapter the author is especially indebted to Anna Horn and her recent in-depth study, which goes far beyond the brief summary provided here.63

The Common Security and Defence Policy (CSDP), together with the Common Foreign and Security Policy (CFSP), assumes a rather opaque place among EU competences. It is made explicit, in Article 4(2) TEU, that ‘national security remains the sole responsibility of each Member State’. The principle of conferral in Article 5(2) states that the EU can only act within the competences that have been given to it. The two articles taken together indicate that defence, at least so far as it concerns ‘national security’, is excluded from EU decision-making and that competence remains strictly with the Member States.

However, according to Article 24(1) TEU, the CSDP forms an integral part of the CFSP. This means that defence policy may indeed be subject at least to some degree of EU decision-making, as long as such decisions abide by the same procedures, and suffer the same restrictions, as those that pertain to the joint foreign policy of the EU. This means that it is impossible to pass legislative acts in the field of defence, but that policy may be formulated by the European Council and the Council through decisions. Furthermore, it is clear from Article 42(4) TEU that decision-making regarding common security and defence requires unanimity in the Council and can be initiated either by the High Representative for the CFSP or by an individual Member State.

From the above, it can be surmised that the exact nature of the EU’s competence in the field of defence policy is far from clear cut.64 National security is the sole responsibility of the Member States, but it can at the same time be subject to joint decision-making by unanimity in the Council.

The above shows that the CSDP does not fit squarely into the typical categories of EU competences as they are described in Articles 2–6 TFEU. Article 2 TFEU sets out the three areas of competences at play in the EU. First, exclusive competence means that only the EU can act in the policy areas enumerated in the article. Second, shared competences mean that both the EU and the Member States may act in that area. However, as soon as the EU has exercised its power to legislate it pre-empts Member State action on the issue. Finally, Article 2(5) TFEU establishes the possibility of the EU supporting Member States’ activities within Member States’ competences through funds and programmes. The specific competences are further elaborated on in Articles 3–6 TFEU.

Obviously defence is not included in the list of exclusive EU competences enumerated in Article 3 TFEU, and nor is it a supportive competence under Article 6 TFEU.65 This begs the question of whether it is to be considered a shared competence in accordance with Article 4 TFEU. The list in the article is non-exhaustive and could hypothetically make room for defence. At the same time, the concept of shared competences builds on the principle of pre-emption, which means that EU action in a specific field extinguishes the possibility of Member State action.66 In practice this would mean that, once the EU had acted jointly in a specified field involving defence, Member States would no longer have the power to act autonomously in that field.67 This is impossible to square with the statement in Article 4(2) TEU that national security is the ‘sole responsibility’ of the Member States.

Connected to this issue is the very specific nature of the EU actions permitted under the CFSP, most notably that the EU may not issue legislative acts but can act only through unanimous decisions.68 Finally, and importantly, it should be mentioned that the Court of Justice does not have jurisdiction to review the substance of decisions taken under the ambit of the CFSP, including the CSDP.69

The treaties do impose some vague and general requirements on the Member States when they act under the CSDP. For example, Article 24(3) TEU establishes a general loyalty obligation and Article 32 TEU establishes requirements relating to solidarity and consultation on matters of foreign and security policy.70 However, given the Court of Justice’s lack of competence to review actions taken under the CSDP, these requirements are weak.

The conclusion of the above must inevitably be that the CSDP does not fit within any of the EU competences as they are currently established under the treaties. Instead, the CSDP allows for loose coordination among the Member States, using the Council as a forum for decision-making. The lack of both legislative power and oversight by the Court of Justice render decisions taken under the CSDP impossible to enforce.

As a consequence of the weak and conflicting competences in the field of defence, policy that is primarily motivated by security concerns has increasingly crept into other policy domains. Such ‘competence creep’ is a not uncommon feature of European integration.71 In fact, the use of ‘uncontroversial’ free movement articles and Article 114 TFEU, which provides the legal basis for the harmonisation of the internal market, to legislate in more politically sensitive areas is a well-known idiosyncrasy of EU law.72 To curtail this practice, and to maintain the institutional balance on which the EU rests, the Court of Justice has developed the so-called centre of gravity doctrine. In summary, the doctrine holds that if a legislative action has a two-fold objective, and one of them can be identified as predominant while the other is ‘merely incidental’, the action must be based solely on the legal basis pertaining to the predominant objective.73

Moreover, if a legislative action has two more or less equal objectives, multiple legal bases may be used. Importantly, though, this may not be done in cases in which the decision-making procedures are incompatible with one another. This means that an objective that is based on a legal basis requiring unanimity cannot be combined with an objective that follows the ordinary legislative procedure.74 If this were not the case, unanimity requirements could easily be circumvented through the mixing of objectives. The above means that Article 42, with its specific requirements on decision-making using unanimity, cannot function as a joint legal basis with, for example, Article 114 TFEU, which prescribes the ordinary legislative procedure.

The consequence of the above is that defence does not feature as a legal objective in legislative actions that are nonetheless clearly motivated by it. One example of this is the Regulation establishing the European Defence Industry Strategy (EDIP), which uses Articles 114, 173, 212 and 322 TFEU as legal bases. A similar model, combining the market-centric legal bases of Articles 114 and 173 TFEU, is also being used for the forthcoming Defence Readiness Omnibus Regulation proposed by the European Commission.75 The SAFE Defence Loan Facility, which aims to provide access to 150 billion euros in order to enable the joint procurement of defence materials, is based on Articles 114, 173 and 122 TFEU. Article 122 TFEU allows EU borrowing in response to emergencies, the same article as was used for the recovery programme following the Covid crisis.76

In summary, through its hierarchical connection to the CFSP, the CSDP assumes a weak and legally vague position among EU competences. Member States remain explicitly in control of issues relating to national security, and the treaties, as they currently stand, merely allow for the Council to be used as a tool for common and unanimous decisions. There is no possibility of passing legislation in the field of the CSDP, and the Court of Justice lacks the jurisdiction to review decisions taken in the area. Legislative measures aimed at assisting the re-armament of the EU Member States are taken under the auspices of legal bases relating not to defence but to the internal market. This situation makes the EU profoundly ill-equipped to respond to the dramatic change in its geopolitical circumstances. In short, responses to the present challenges require joint action in the area of defence but the treaties make such action effectively impossible. Attempts to stretch and circumvent the treaties through the use of alternative legal bases contribute to competence creep, which in turn risks undermining trust and the legitimacy of EU law and, in the long term, erodes the rule of law.77

4.2 The Way Forward: Towards a Joint EU Defence

In the wake of the suddenly strained transatlantic partnership, there has been immense activity to secure multilateral European agreements on defence. However, the lack of a clear EU mandate has meant that the response to date has been scattered, driven by Member States, highly improvisatory and largely taking place outside the EU structure.

In some cases, the EU treaties have been used as a funnel for legislation and funding pertaining to the defence industry. As discussed above, in these cases existing treaty provisions relating to the internal market have been stretched in order to allow unified action. In other cases, the Member States have entered into multilateral, or in some cases even bilateral, agreements relating to security and defence partnerships with the UK.78 The only instance in which the CSDP has been used outright is to make non-binding political agreements, such as the EU–UK Security & Defence Partnership.79

This fractured response is understandable in the light of the severely limited competences that have been conferred on the EU by the Member States in the area of defence. However, if anything, the decline of the transatlantic partnership has revealed just how dearly the EU is in need of the ability to coordinate security and defence policy. If the EU Member States are indeed serious in their ambitions to secure strategic autonomy for the EU, conferring more powers on the EU in this field appears to be the most obvious way forward.

Making the CSDP a shared competence by including it under Article 4 TFEU would mean that Member States retain control of the policy area insofar as they do not actively decide to harmonise certain aspects of it. It should be highlighted that this could only be achieved if the wording of Article 4 TEU, which states that ‘national security is the sole responsibility of the Member States’, were abandoned or at least modified. Such an extension of EU competence would enable the EU to issue legislation in the field, and not just to agree, if there was unanimity, to non-enforceable political decisions. It would of course also place the CSDP squarely under the full force of the other treaty provisions, including effective oversight by the Court of Justice, and would subject the Member States to the relevant mechanisms for sanctioning non-compliance. In connection with this, making defence cooperation a shared competence would put an end to the competence creep seen when there is an attempt to meet defence objectives through other treaty articles. As a consequence, simplicity, transparency and legal certainty in EU legislation would be greatly improved.

Considering the difficulties created by the unanimity requirement in certain EU legislation, it is argued that the CSDP should fall under the ordinary legislative procedure, just like other shared competences. This would prevent individual Member States from holding the rest of the EU ‘hostage’ in an area that has become of existential importance.

The above proposals may obviously run into political resistance among some Member States. Therefore a procedure of opting in to the CSDP might be considered; this would mean that committing to the CSDP would not be a requirement of EU membership, but rather an option for those willing to commit to it. Such variable geometry as regards EU membership is something that increasingly appears unavoidable and already has strong proponents in the EU.80 It should be noted in this regard that even today the EU offers variable obligations among its Member States with regard to, for example, Schengen or euro membership. Constitutionalising variable membership levels may be a realistic, efficient and democratically sustainable alternative to the ad hoc approach currently practised.81

5. Conclusion

In an era defined by ‘permacrisis’ and geopolitical realignments, the EU has embraced strategic autonomy as its overarching ambition. Historically, the instinct of the EU has been to address emerging acute concerns as and when they occur; at this particular juncture the issue is defence cooperation. However, if the EU is to have a realistic possibility of being an independent actor on the world stage over the long term, systemic issues left over from previous crises also need to be urgently addressed. This will require a rethinking of the treaties that is more fundamental than the debate so far often indicates. Strategic autonomy becomes a hollow structure if it does not build on a solid and future-proof legal foundation. It is here argued that the previous, and still continuing, crises relating to the rule of law and the euro have not been adequately and sustainably resolved. Therefore, the pressing issue of EU defence must be combined with the introduction of the possibility of excluding EU Member States who persistently oppose fundamental rights. The same is true with regard to introducing a sound financial framework for the euro inside the EU treaties, including possibilities for strict budgetary supervision and debt mutualisation. For these reasons, the three following proposals are made.

• First, safeguarding fundamental democratic principles within the Union is an existential imperative. The EU is founded on shared values of democracy, the rule of law, and human rights, which are enshrined in Article 2 TEU. Together, these values form part of the ‘DNA’ of the European integration project. However, the willingness of some Member States to intentionally challenge and breach these principles poses a severe risk to the EU’s raison d’être. Current mechanisms like Article 7 TEU proceedings, which require unanimity in the Council, have proved to be largely ineffective because they result in deadlock. While the Rule of Law Conditionality Regulation, and infringement proceedings under Articles 258 and 260 TFEU, allow for economic sanctions, they do not provide for the ultimate sanction of expulsion. This means that a Member State can persistently breach fundamental rights if it is willing to absorb the economic consequences of these breaches. For the EU to truly embody its values and to function as a credible, value-driven actor on the international stage, the possibility of expelling Member States who deny those values must be introduced. To ensure democratic robustness and legal certainty, such a decision should be based on a strict legal assessment by the Court of Justice that establishes the breach. If the Court were to recognise that Article 2 TEU is ‘justiciable’, it would depoliticise the process of dealing with fundamental rights breaches. Following a CJEU finding of the persistent breach or denial of a fundamental value, the Council should be able to decide on sanctions, including expulsion in extreme cases, by a qualified majority vote, rather than unanimity. This would create a strong impetus for Member States to respect the core values and would ensure that EU membership remains contingent on upholding the very principles on which the EU is built.
• Second, ensuring the long-term stability and independence of the euro demands a significant overhaul of the current ‘patchwork’ governance structure for the euro. Despite its resilience, the euro’s initial design lacked fundamental safeguards, as vividly demonstrated by the 2008 financial crisis. The survival of the common currency relied on a series of ‘temporary emergency measures’ and creative legal manoeuvres, such as bailouts that circumvented the explicit ‘no-bailout’ clause in Article 125 TFEU. The CJEU’s ruling in Pringle, although necessary under the existing rules, was at the same time deeply problematic with regard to legal certainty and long-term stability. While subsequent measures have strengthened macroeconomic governance and the regulation of the financial sector, they remain reactive attempts to address systemic weaknesses. For the euro to truly underpin the EU’s strategic autonomy and withstand future shocks, the creation of a fully-fledged fiscal union appears unavoidable. This means establishing a permanent, EU-managed loan facility inside the EU treaties and allowing for debt mutualisation among Member States, which would prevent a systemic economic crisis. Such a system must be coupled with strict ex ante controls with regard to budgetary discipline, in order not to reproduce the moral hazards endemic to bailouts. A fiscal union would empower the EU to run deficits and assume debt for existential projects such as a joint defence budget. Completing the banking union by adopting the long-stalled EDIS is also a crucial and less controversial step towards financial robustness.
• Finally, establishing a meaningful and binding common EU defence policy is paramount if the EU is to stand on its own feet and face an aggressive Russia and an increasingly unstable relationship with the United States. While the CSDP exists within the treaties, its current legal framework is weak and opaque. The explicit declaration that ‘national security remains the sole responsibility of each Member State’ in Article 4(2) TEU severely limits the EU’s ability to act decisively. Decisions require unanimity in the Council, legislative acts are impossible, and the Court of Justice lacks the jurisdiction to review CSDP decisions, rendering them weak and unenforceable. This forces the EU to resort to ‘competence creep’, with defence-motivated legislation being based on internal market legal bases (e.g., Article 114 TFEU), leading to a lack of transparency and legal certainty. To overcome this, the CSDP must be transformed into a shared competence under Article 4 TFEU. This would necessitate modifying or abandoning the ‘sole responsibility’ clause for national security. Critically, it would empower the EU to issue binding legislation in the area of defence, subject the CSDP to the full force of treaty provisions, including oversight by the Court of Justice and sanctioning mechanisms, and legitimise defence as a direct legal basis for decision-making. Furthermore, placing the CSDP under the ordinary legislative procedure, rather than requiring unanimity, is essential to prevent individual Member States from obstructing collective action in an area of existential importance. While politically challenging, an ‘opt-in’ procedure for Member States could be considered to facilitate this vital shift. These reforms are crucial to allow the EU to coordinate security and defence policy effectively and to provide its own protection in a rapidly changing geopolitical landscape.

In conclusion, the EU’s journey from ‘permacrisis’ to strategic autonomy hinges on its willingness to undertake profound, systemic treaty reforms. To quote Commission President Ursula von der Leyen, the EU is in a ‘fight for our liberty and our ability to determine our destiny for ourselves’.82 The current approach of relying on temporary fixes and legal workarounds, although perhaps necessary for immediate crisis management, is unsustainable and undermines the rule of law and democratic principles in the long term. Instead, the EU must systematise its crisis responses by introducing the power to expel Member States who persistently breach fundamental values, establishing a robust fiscal union inside the EU treaties to secure the euro, and elevating defence to a shared competence with legislative powers and effective oversight. These are ambitious, but nonetheless necessary, changes. Moving beyond ad hoc solutions to truly integrated and democratically accountable governance is fundamental for the EU if it is to fulfil its overarching ambition of strategic autonomy in the face of ongoing global challenges.

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1 Speech by Ursula von der Leyen, 2025 State of the Union Address, Strasbourg, 10 September 2025. Available at: https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_25_2053

2 See, for example, J A Emmanouilidis, A Möller and F Zuleeg, Confronting the permacrisis: Time for a supra-governmental avantgarde, EPC Discussion Paper, 17 July 2024. Available at: https://d1xp398qalq39s.cloudfront.net/content/Permacrisis_DP_v3.pdf

3 Council, General Secretariat, Analysis and Research Team, Strategic autonomy, strategic choices, Issues Paper, February 2021. Available at https://www.consilium.europa.eu/media/49404/strategic-autonomy-issues-paper-5-february-2021-web.pdf

4 See for example, C Beaucillon, Strategic autonomy: A new identity for the EU as a global actor, 2024 European Papers, Vol. 8, No. 2, pp. 417-428.

5 See, for example, Speech by President von der Leyen at the European Parliament Plenary joint debate on European Council meetings and European Security, Strasbourg, 11 March 2025. Available at: https://ec.europa.eu/commission/presscorner/detail/en/speech_25_739

6 European Commission Rule of Law Report 2025 – Country Chapter Abstracts and Recommendations. Available at https://commission.europa.eu/document/download/a717b80d-1631-4fa1-8aeb-7e423c207948_en?filename=2025%20Rule%20of%20Law%20Report_country-abstract%20and%20recommendations.pdf

7 Opinion of Advocate General Ćapeta, delivered on 5 June 2025, in Case C-769/22 European Commission v Hungary (‘Values of the European Union’). Available at https://curia.europa.eu/juris/document/document.jsf?docid=300973&doclang=EN

8 For an in-depth discussion on how fundamental values form part of the identity of the EU, see Chapter 2 below.

9 Speech by Mario Draghi, What horizon for Europe? Rimini, 22 August 2025. Available at https://www.meetingrimini.org/en/turn-skepticism-into-action-mario-draghis-speech-at-the-meeting/

10 J Monnet, Memoirs, Doubleday 1978, p. 174.

11 See, for example, the famous words of the Schuman Declaration: ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany.’ Schuman Declaration, May 1950, available at https://european-union.europa.eu/principles-countries-history/history-eu/1945-59/schuman-declaration-may-1950_en

12 Article F of, and Recital 3 of the preamble to, the Treaty on European Union, OJ C 191, 29 July 1992.

13 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, OJ C 340/1, 2 October 1997.

14 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, OJ C 306/1, 13 December 2007.

15 K Lenaerts, On checks and balances: The rule of law within the EU, 2023 Columbia Journal of European Law, Vol. 29, No. 2, pp. 25–63, at p. 61.

16 Opinion 1/17 on the EU–Canada CETA, EU:C:2019:341, para 110.

17 Case C-156/21 Hungary v European Parliament and Council, EU:C:2022:97, para 232.

18 Case C-621/18 Andy Wightman and Others v Secretary of State for Exiting the European Union, EU:C:2018:999, para 63.

19 See, for example, M Leloup, D Kochenov and A Dimitrovs, Opening the door to solving the ‘Copenhagen Dilemma’? All eyes on Repubblika v Il-Prim Ministru, 2021 European Law Review, Vol. 46, pp. 692–703.

20 Case C-896/19 Repubblika v Il-Prim Ministru, EU:C:2021:311, paras 61–64.

21 For a comprehensive overview of the cases before the CJEU relating to the rule of law up to 2021, see L Pech and D Kochenov, Respect for the rule of law in the case law of the European Court of Justice – A casebook overview of key judgments since the Portuguese Judges case, SIEPS 2021:3. Available at https://sieps.se/media/wgzjhqje/sieps-2021_3-eng-web.pdf

22 Charter of Fundamental Rights of the European Union, OJ 2016 C202/389.

23 Ibid, Article 51.

24 M Bonelli and M Claes, Crossing the Rubicon? The Commission’s use of Article 2 TEU in the infringement action on LGBTIQ+ rights in Hungary, 2023 Maastricht Journal of European and Comparative Law, Vol. 30, Issue 1, pp. 3–14.

25 Decision of the Council of 12.9.2018 determining, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded.

26 Council, General Affairs Council of 27 May 2025, Main results. Available at: https://www.consilium.europa.eu/en/meetings/gac/2025/05/27/

27 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433I, 22 December 2020, pp. 1–10.

28 I Staudinger, The rise and fall of rule of law conditionality, 2022 European Papers, Vol. 7, No. 2, pp. 721–737. https://www.europeanpapers.eu/en/system/files/pdf_version/EP_eJ_2022_2_SS2_5_Isabel_Staudinger_00595.pdf

29 Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary, OJ L 325, 20 December 2022, pp. 94–109.

30 Commission Decision C(2023) 8999 of 13 December 2023 on the reassessment, on the Commission’s initiative, of the fulfilment of the conditions under Article 4 of Regulation (EU, Euratom) 2020/2092 following Council Implementing Decision (EU) 2022/2506 of 15 December 2022 regarding Hungary. Available at https://commission.europa.eu/system/files/2023-12/C_2023_8999_1_EN_ACT.pdf

31 Bonelli and Claes, op cit note 15.

32 Opinion of the Advocate General in Case C-769/22 Values of the European Union, op cit note 8.

33 Ibid.

34 As well as the suspension of voting rights under Article 7 TEU.

35 See, for example, the general argument for currency areas in R A Mundell, A Theory of Optimum Currency Areas, 1961 The American Economic Review, Vol. 51, No 4, pp. 657–665.

36 O Issing, The Birth of the Euro, Cambridge University Press 2008, Ch. 1.

37 R Foroohar, 8 questions with Joseph Stiglitz, Time, 18 August 2016. https://time.com/4457109/joseph-stiglitz-interview/?utm_source=chatgpt.com

38 See, for example, B Pierluigi and D Sondermann, Macroeconomic imbalances in the euro area: Where do we stand?, ECB Occasional Paper Series, June 2018, No. 2011. For a deeper study, see, for example, J Pisani-Ferry, The Euro Crisis and Its Aftermath, Oxford University Press 2014.

39 See, for example, C Bakir, M K Coban and S Akgunay, The European Union financial crisis: A critical analysis, Oxford Research Encyclopaedia, 21 August 2021. Available at https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-1504

40 For a discussion on the limits of Article 122 TFEU, see R Manko, Legal bases in Article 122 TFEU – Tackling emergencies through executive acts, European Parliamentary Research Service, April 2025, PE 769.579. Available at https://www.europarl.europa.eu/RegData/etudes/BRIE/2025/769579/EPRS_BRI(2025)769579_EN.pdf?utm_source=chatgpt.com

41 See, for example, European Parliament, Financial assistance to EU Member States, Fact Sheets on the European Union. Available at https://www.europarl.europa.eu/factsheets/en/sheet/91/financial-assistance-to-eu-member-states?

42 D Chalmers, European Union Law, 4th ed., Cambridge University Press 2019, p. 678.

43 Council Decision 2011/199/EU of 25 March 2011 establishing the European Financial Stabilisation Mechanism, OJ L 91, 1 April 2011, pp. 1–5. Available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011D0199&from=GA

44 Case C-370/12 Thomas Pringle v Government of Ireland and Others, EU:C:2012:756.

45 Ibid, paras 133–135.

46 Ibid, para 136.

47 Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area, OJ L 306, 23 November 2011, pp. 1–7; Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area, OJ L 306, 23 November 2011, pp. 8–11; Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies, OJ L 306, 23 November 2011, pp. 12–24; Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances, OJ L 306, 23 November 2011, pp. 25–32; Council Regulation (EU) No 1177/2011 of 8 November 2011 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure, OJ L 306, 23 November 2011, pp. 33–40; and Directive 2011/85/EU of the European Parliament and of the Council of 8 November 2011 on requirements for budgetary frameworks of the Member States, OJ L 306, 23 November 2011, pp. 41–49.

48 Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability, OJ L 140, 27 May 2013, pp. 1–10 and Regulation (EU) No 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, OJ L 140, 27 May 2013, pp. 11–23.

49 N Véron, EU financial services policy since 2007: Crisis, responses and prospects, June 2018 Global Policy, Vol. 9, Supp. 1, p. 59.

50 Ibid, pp 59-60.

51 J H Cochrane, L Garicano and K Masuch, Crisis Cycle: Challenges, Evolution and the Future of the Euro, Princeton University Press 2025, p. 279.

52 See below, Chapter 4.

53 For a discussion on this, which centres on decentralised fiscal discipline based on legal obligations in combination with the ECB acting as a lender of last resort and the completion of the banking union, see C Wyplosz, The euro is fragile; that’s ok. SIEPS European Policy Analysis, June 2022:13epa. Available at https://sieps.se/media/a3mah1qv/2022_13epa.pdf.

54 Council Regulation (EU) 2020/2094 of 14 December 2020 establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 crisis, OJ L 433I, 22 December 2020, pp. 2327.

55 See, for example, G Thirion, European fiscal union: Economic rationale and design challenges, CEPS Working Document No 01/2017. Available at: https://cdn.ceps.eu/wp-content/uploads/2017/01/WD2017-01GT%20FiscalUnion.pdf and Wyplosz, op cit note 53.

56 Cochrane et al., op cit note 51, pp. 194f.

57 Ibid, pp. 244–245.

58 For more on this, see Chapter 4.

59 Commission Communication to the European Parliament, the Council, the European Central Bank, The European Economic and Social Committee and the Committee of the Regions on completing the Banking Union, COM(2017) 592 Final, Brussels, 11 October 2017. Available at https://ec.europa.eu/finance/docs/law/171011-communication-banking-union_en.pdf

60 See the legislative train schedule at: https://www.europarl.europa.eu/legislative-train/spotlight-JD21/file-jd-european-deposit-insurance-scheme-(edis)?ut

61 See, for example, K Haynes, US withdrawal and European strategic autonomy, 2023 IRSEM Strategic Brief No. 65. Available at https://www.irsem.fr/strategic-brief-no-65-2023-us-withdrawal-and-european-strategic-autonomy.html

62 Speech by Ursula von der Leyen, op cit note 5.

63 A Horn, European defence under the treaties. SIEPS European Policy Analysis, August 2025:12epa. Available at https://sieps.se/media/fb3dpokj/2025_12epa.pdf

64 Ibid.

65 However, it could be argued that the defence area contains its own mechanism, akin to a supportive competence, through the creation of the European Defence Agency in Articles 42(3) and 45 TEU.

66 For a foundational discussion on this context and how it applies to the EU’s external relations, see Case 22/70 Commission of the European Communities v Council of the European Communities, Judgment of 31 March 1971, European Agreement on Road Transport (ERTA), ECLI:EU:C:1971:32.

67 Horn, op cit note 63, p. 8.

68 See Articles 24(1) and 31 TEU.

69 See Articles 24(1) TEU and 275 TFEU.

70 For a complete list of the general obligations, see Horn, op cit note 63, p. 7.

71 S Garben, Competence creep revisited, 2017 Journal of Common Market Studies, Vol. 57, Issue 2, pp. 205–222. Available at: https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12643

72 See for example, V Vėlyvytė, Competence creep in EU free movement case law, 2023 European Law Review, Vol. 48, No. 6, pp. 636–661. Available at https://ssrn.com/abstract=4594922

73 See for example, Case C-376/98 Germany v European Parliament and Council, (2000) ECR I-8419.

74 Case C-130/10 European Parliament v Council, ECLI:EU:C:2012:472.

75 COM 2025(821) of 17/6/2025, Proposal for a Regulation of the European Parliament and of the Council on the acceleration of permit-granting for defence readiness projects. Available at https://defence-industry-space.ec.europa.eu/document/download/c53d4d46-27c0-4bb9-abe3-db58b50f2d7f_en?filename=Proposal-for-a-regulation_acceleration-permit-granting-defence-readiness-projects.pdf&utm_source=chatgpt.com

76 Council Regulation (EU) 2020/521 of 14 April 2020 activating the emergency support under Regulation 2016/369, and amending its provisions taking into account the COVID-19 outbreak, OJ L 117, 15 April 2020, pp. 3–8.

77 Vėlyvytė, op cit note 72.

78 See, for example, L Maślanka and P Szymanski, Breaking the deadlock: the EU-UK security and defence partnership, 23 May 2025 OSW Analysis. Available at: https://www.osw.waw.pl/en/publikacje/analyses/2025-05-23/breaking-deadlock-eu-uk-security-and-defence-partnership?utm_source=chatgpt.com

79 UK-EU Summit 2025 – Joint Statement, 19 May 2025, London. Available at: https://www.consilium.europa.eu/media/1edla1hi/eu-uk_joint-statement.pdf

80 See, for example, Report of the Franco-German Working Group on EU Institutional Reform, Sailing on the high seas – Reforming and enlarging the EU for the 21st century, Paris – Berlin, 18 September 2023. Available at: https://www.diplomatie.gouv.fr/IMG/pdf/20230919_group_of_twelve_report_updated14.12.2023_cle88fb88.pdf

81 See, for example, B De Witte, The future of variable geometry in a post-Brexit European Union, 2017 Maastricht Journal of European and Comparative Law Vol. 24 No. 2, pp 153–157.

82 von der Leyen, 2025 State of the Union Address, op cit note 1.