How can Europe respond to the rupture in transatlantic relations resulting from Donald Trumpâs return to the US Presidency and take defence seriously? The European Defence Community (EDC) could be an answer. As it will be remembered, the EDC was conceived in the early 1950s, at a time when Europe faced a Russian threat, uncertainty about US commitments towards European defence (as the US were busy fighting a war in Korea), and the question of German rearmament. The EDC addressed those questions by creating a common army, with a common budget, a common defence industrial policy, and a common government. The EDC was designed to be the European pillar in NATO, with SACEUR acting as the commanding officer of the European army in case of aggression, and the EDC was open to the accession of new member states.
From a legal viewpoint, the EDC Treaty was concluded in May 1952 by six states â Belgium, France, Germany, Italy, Luxembourg, and the Netherlands â with the external support of the US and the UK. Crucially, between 1953 and 1954, the EDC Treaty was fully ratified by four states â Belgium, the Netherlands, Luxembourg, and Germany â in this case through a process that defined the foreign policy of the Adenauer government and included a revision of the German Basic Law. In August 1954, the Parliament of the French Fourth Republic, with a procedural motion, voted to postpone ratification of the EDC Treaty. France thus did not technically reject the EDC, but the vote had political repercussions which are well known. The next year, in 1955, Germany was integrated into NATO, and since then, the job of securing European security has fallen on the US. But with Trump, this assumption has crumbled, and so we are back at square one.
In 2024, one of us (Fabbrini 2024) advanced at the academic level the idea that it is legally feasible to revive the EDC as a way to integrate European defence after Trump. He then further disseminated it (Fabbrini 2025, 2025) and established a project called ALCIDE (an acronym for âActivating the Law Creatively to Integrated Defence in Europeâ, but also a nod to Alcide De Gasperi, one of the founding fathers of the project of European integration), which brought together a distinguished group of scholars and thought leaders. ALCIDE further explored at the policy level the potential of the EDC, while shedding light also on its challenges. ALCIDE had a remarkable impact: legislators in the Italian Parliament have in fact now taken up the idea, with bills proposed in both the lower House and the Senate calling for Italy to ratify the EDC Treaty today.
In a recent blog, Robert SchĂŒtze has criticized the idea of reviving the EDC, claiming that a) the EDC Treaty is no longer valid under international law; b) the EDC Treaty is incompatible with EU law; and c) at the political level, reviving the EDC is not desirable. He is wrong on the legal grounds, and his political stance is questionable. So, as the senior jurists involved in the ALCIDE project, we felt compelled to respond.
The EDC Treaty Is Compatible with International Law
SchĂŒtze advances a main argument from an international law viewpoint to claim that the EDC Treaty can no longer be ratified. Specifically, he invokes article 59 of the Vienna Convention on the Law of Treaties, entitled âTermination or suspension of the operation of a treaty implied by conclusion of a later treatyâ, to maintain that the EDC Treaty was terminated because states moved on in 1954-5 to conclude new agreements, establishing the Western European Union and integrating Germany into NATO.
Yet, SchĂŒtze claims that the EDC was killed, but cannot point to any smoking gun. In the process of European integration, with multiple overlapping treaties, when states want to kill a treaty, they do so explicitly. Notably, after negative referenda in the Netherlands and France against the Treaty establishing a European Constitution in 2005, the heads of state and government in the June 2007 European Council formally declared that the âConstitution is abandonedâ â paving the way to the adoption of a different reform treaty (the Lisbon Treaty). This was never done for the EDC. The states never formally decided to abandon the EDC Treaty. In fact, legislation ratifying the EDC Treaty is still easily accessible in the online law books of, e.g. the Netherlands or Luxembourg. And it is most ironic that SchĂŒtze claims that the EDC was killed by the approval of the Modified Brussels treaty on the WEU, which was terminated by its members in March 2010 â again with explicit words.
Ultimately, public international commitments cannot be assessed without taking into account political will. Thus, SchĂŒtzeâs argument may have been overtaken by recent political developments. As mentioned above, legislation has now been introduced in the Parliament of one of the signatory states, Italy, with the aim of ratifying the Treaty. This draft legislation was vetted by the legal services of the two houses of Parliament, which approved it. States as sovereign actors in international law are the relevant interpreters of whether a treaty is dead or alive. And it is certainly in the powers of an institution representing the sovereign people to assume that a Treaty can still be ratified.
The EDC Is Compatible with EU law
The second argument that SchĂŒtze makes is that the EDC Treaty would be incompatible with EU law. Alas, he provides no evidence to make this claim. As is well known, under consolidated law reaffirmed by the ECJ in Pringle, member states remain free to conclude inter-se agreements, provided these do not conflict with an EU norm. Yet, the field of defence and security is an area of EU law subject to a very limited degree of integration. According to Article 24 TEU, the Common Foreign and Security Policy (CFSP), of which the Common Security and Defence Policy (CSDP) is a part, is âsubject to specific rules and proceduresâ, which reflect its intergovernmental nature, in which member states remain in control.
As a result, states have concluded dozens of bilateral and multilateral treaties among themselves in the field of defence, deciding to do more than what EU law foresees, for example, in matters of mutual protection, procurement, or coordination. Among the various examples of bilateral agreements, one should especially recall the Lancaster House Treaty, concluded in London, in November 2010 between France and the United Kingdom (a Member State at the time), through which the parties committed to deepening their military, industrial, and strategic cooperation; and the Treaty of Aachen concluded in January 2019 between France and Germany, by which the parties entered into a mutual defense pact in the event of an armed attack. Above all, it is also necessary to mention the Treaty of Strasbourg, which established Eurocorps: this international agreement â initially concluded by five member states: France, Germany, Belgium, Luxembourg, and Spain in November 2004, and entered into force in February 2009 â created a common military capability that has been made available to both NATO and the EU. Specifically, the Treaty of Strasbourg regulates the functioning of Eurocorps, assigning it the role of carrying out common defense missions and other so-called Petersberg tasks. The Treaty also established a common headquarters in Strasbourg, which serves to command operational missions.
All this is unsurprising. Jean-Claude Piris, the former Jureconsult to the Council of the EU and one of the âfathersâ of the Treaty of Lisbon, among others, stated that the CSDP âis an area where neither the EU treaties, nor other international commitments [âŠ] present obstaclesâ to legally binding cooperation between an avant-garde of member states (Piris 2012, p 124). And that of course applies to the EDC too.
What is surprising instead, is that the only hint that SchĂŒtze makes to claim that the EDC would violate EU law is the role of the Court of Justice. Under Article 24 TEU, the ECJ does not have competence in CFSP, save for the review of sanctions. But Article 273 TFEU allows member states to attribute jurisdiction to the ECJ in any additional dispute that relates to the subject matter of the TEU and TFEU through a special agreement between the parties. The EDC Treaty created a Court of Justice, and it is therefore possible for EDC states to assign to the current ECJ the judicial function of the EDC treaty. After all, also the Fiscal Compact and the ESM Treaty â two recent inter-se agreements concluded between a group of EU member states only â attributed to the ECJ functions that go beyond what the ECJ has according to the TEU/TFEU (including e.g. the task to verify the transposition of balanced budget rules in national constitutions). So why would it now be impossible to assign to ECJ the judicial functions envisaged by the EDC, as distinct from the CFSP, including full judicial oversight on the use of the European defence forces?
Political Conclusion
In conclusion, SchĂŒtzeâs legal criticisms against the EDC do not stand. But of course, the entire idea to re-animate the EDC is not just a legal issue. The ALCIDE project was also driven by the need to contribute out-of-the-box ideas on how to develop European defense further. On the political level, SchĂŒtze also wonders whether reviving the EDC may be politically desirable, taking into account that the EDC was due to be, by design, the European pillar in NATO, and thus connected to the USA, with SACEUR acting as the ultimate military authority for the EDC forces. SchĂŒtze essentially argues that Europe should sever its umbilical cord with the US and develop fully autonomous strategic capabilities. Our position on this matter is more nuanced. We see the risks resulting from the connection between the EDC and NATO. But we think that the majority of European states and their citizens would rather want to preserve a form of transatlantic relationship and benefit of the muscle memory developed over seven decades within NATO. After all, the NATO Treaty does not require SACEUR to be a US general, and it is well conceivable that Europeans could increasingly populate NATO structures, with the EDC greatly facilitating doing so.
The sad truth is that SchĂŒtzeâs plea for strategic autonomy â something he seeks to present as a more desirable option than reviving the EDC â risks being a red herring. The EU has had a CFSP since 1992, but the results have been totally underwhelming. In fact, what is happening at the moment is not some leap towards the integrated EU defence capabilities craved by SchĂŒtze (and which we would also support), but rather an EU-enabled asymmetric process of national rearmament. History cannot be washed away easily, and the historical reasons that led to the EDC â Â the Russian threat, US disengagement and the question of the rearmament of Germany (where the AfD is in ascendancy) â are coming back with a vengeance. If Europe wants to get serious about European defence integration, it has to look at the most ambitious model: this is the EDC, and it is still legally possible to revive it today.
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