Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

In the first session of this committee meeting, we will engage with AFrI and the Transnational Institute.

I will read out an important notice regarding privilege. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members who might be attending remotely of the constitutional requirement that members must be physically present within the confines of the place in which the Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings.

On behalf of the committee, I welcome to the meeting from Afri Mr. Joe Murray, director, Professor John Maguire and Mr. Rob Fairmichael, board member; and from the Transnational Institute, Ms Niamh Ní Bhriain and Ms Bríd Brennan. Have we got everyone? We have. I invite Ms Ní Bhriain to give her opening statement.

Ms Niamh N? Bhriain:

I thank the committee for the invitation to appear to discuss the defence industrial reinforcement instrument set up by the Act in Support of Ammunition Production, ASAP, regulation. We welcome the opportunity to engage with the committee on this matter. My comments today will focus on three areas. The first is the context in which the ASAP was approved, the second is the problematic nature of the ASAP and the third is why Ireland should refrain from participating in this initiative.

Starting with the context, in July 2023 the European Parliament voted overwhelmingly to approve the ASAP. This regulation was designed to provide for the faster delivery of armament to Ukraine and the replenishment of EU member states’ stockpiles, with an initial €500 million being allocated in the form of a ramp-up fund to incentivise European arms companies to increase production. In advance of the parliamentary vote, MEPs were provided with a parliamentary briefing on the key aspects of the ASAP. It read more like a commercial risk assessment for arms investors. The only concern raised in the entire briefing was not that the Ukraine war would continue causing massive loss of life and devastation, but perversely, that the war would end, in which case "demand for ammunition may drop off instantly".

This is indicative of the war-frenzied logic that has taken hold in Brussels, leaving virtually no room for voices for peace. Ireland must be one of those voices. Despite the EU signing off on a multimillion euro injection of public money for highly lucrative private arms companies, Jan Pie, secretary general of the AeroSpace and Defence Industries Association of Europe, ASD, expressed regret at the "limits ... of the financial envelope".

The second part of my contribution is on the problematic aspects of the ASAP. The provisions of the ASAP set a very dangerous precedent in terms of law-making in Brussels, not least with regard to Article 41(2) of the Treaty on European Union, which prohibits such spending. The ASAP proposal included just one sentence in its fundamental rights section on the right to life. Meanwhile, three paragraphs were dedicated to how the regulation intersects with the freedom to conduct business and the right to property. This is deeply troublesome when the subject at the centre of this legislation is lethal war material.

The ASAP refers to the urgency and exceptional circumstances of the Ukraine war to permit member states to derogate from norms on labour law, environmental standards and public contracts, encouraging them to use "defence related exemptions [...] to mitigate possible obstacles". It includes a bail-out mechanism to address potential financial losses to the arms industry should the concern that the Ukraine war end become a reality. It is a co-financing instrument, meaning in its implementation it will be supplemented with other sources of public funding leading to ever-expansive pools of public finance being funnelled into the private arms industry. With the expected co-funding from other sources, the overall budget exceeds €1.5 billion.

Moreover, in their approval of the ASAP, MEPs voted themselves out of having any scrutiny of how it is implemented, meaning there is no oversight whatsoever of it. Urgency was cited here as a justification. Finally, because of the urgency, national parliaments were denied the opportunity to scrutinise the legislation before it was enacted, hence us being here today retroactively scrutinising it after the fact and almost a year later.

Moving to where Ireland stands on this issue, Ireland is a neutral country. We do not start wars, we do not participate in them and Article 29 of Bunreacht na hÉireann calls for the peaceful settlement of international disputes. Participating in the production of lethal weaponry used to prolong wars goes against the principles on which our nation and democracy were founded. It is, therefore, our firm recommendation that Ireland immediately withhold finance for this and all other defence and military initiatives, as permitted under the Treaty itself in Article 31(1), emanating from Brussels and we instead, in line with our Constitution, use our voice and our public resources to call for diplomacy and peace. I thank the committee.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Ms Ní Bhriain. I call Mr. Fairmichael.

Mr. Rob Fairmichael:

The First World War seemed a good idea to millions of people when it started. How does it seem now? What we have in the situation in Ukraine is akin to the details of what went on in the First World War: trench warfare, massive use of munitions, stalemate and a great loss of life on both sides. The Government has repeatedly stressed it was giving non-lethal aid to Ukraine. For example, the then Taoiseach, Deputy Leo Varadkar, in February 2023 said there would be no change to Ireland's position of offering only non-lethal assistance to Kyiv, and that: "We don’t have fighter jets, or tanks or heavy weapons. Even if we wanted to, it would be against our policy of neutrality." He continued by saying that we do not have lethal weapons to give to Ukraine and we were not going to do that.

Ammunition, however, is, by definition, lethal: "Ammunition is the material fired, scattered, dropped, or detonated from any weapon or weapon system." When it was agreed in March this year to send a million artillery shells to Ukraine, Ireland abstained from joining the European Defence Agency framework for the procurement of ammunition. We have a list of the arms companies producing the ammunition in the ASAP but not what they are actually producing. Does it, for example, include depleted uranium ammunition?

There is a basic contradiction here. In paying for ammunition to go to Ukraine through the EU, Ireland is clearly contributing lethal weaponry. Yet we have the example, as was mentioned by Ms Ní Bhriain, of Article 29 of Bunreacht na hÉireann, which clearly commits the State to the peaceful resolution of international conflicts when it states: "Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination." We also have the example of the Good Friday Agreement and relative peace in Northern Ireland. This came about through a process of dialogue and engagement despite those involved being vilified as naive and traitors to their respective causes. Wars can only be ended by talking. I note also that the Irish Tricolour has white in its middle.

Ireland has had an honourable history of engaging internationally since the time of the League of Nations early in the 20th century. Nuclear non-proliferation and the banning of landmines and cluster munitions have all had significant Irish involvement. Indeed, the conference in 2008 that brought about the treaty banning the use of cluster munitions was held in Dublin. The Irish contribution to military peacekeeping in difficult security situations has been second to none. We should continue this kind of work rather than be a fellow traveller with NATO. There is an ongoing process of militarising the EU, which began partly as a peace process internally, but risks becoming a war project outside its borders.

Ireland can be a critical friend to the EU, something which has been happening over Palestine. It feels like the right path to follow.

The traditional Irish policy of neutrality amounts to what can be defined as non-offensive defence. That is, a policy which cannot be seen as being in any way belligerent. This policy of non-offensive defence is the one that should be followed. NATO policies cannot be defined as non-offensive, and we know that the EU is following a similar path.

Ireland can contribute significantly to peacemaking and peacekeeping, including in Ukraine and Gaza. We would be happy to help anyone at any time to explore such possibilities, which are huge. Paying for ammunition to be used in Ukraine is joining the fight on one side and betraying Irish experience and the potential Ireland has to contribute to peace globally.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Mr. Fairmichael. I call on whoever wishes to speak next to ask a question.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

If the Leas-Chathaoirleach does not mind, I will speak because I have a group from Mayo in the complex that I want to meet.

I thank the witnesses very much for being here today. It is important that they are here. I thank them for their statements and for sharing their knowledge with us.

I have a number of questions. The first relates to the witnesses expanding on their views on the legal underpinning of the inclusion of arms subsidies in the EU budget. I would welcome a comment from the witnesses on that matter.

Ms Niamh N? Bhriain:

Does Deputy Conway-Walsh mean how it came about?

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I refer to the legality of it.

Ms Niamh N? Bhriain:

Much of the legal underpinning for the current structure of the European Union dates back to the Lisbon treaty, which of course we remember very well in Ireland. It is also important to mention that we rejected the Lisbon treaty. When we eventually did vote for it the second time it was very much based on having guarantees that our neutrality would not be affected by it.

Moving on from the Lisbon treaty, in the Treaty of the European Union itself, there is, under Article 41(2), a prohibition of the expenditure arising from operations having military or defence implications, unless the Council decides so unanimously. So there is an opt-out clause which the Council can choose, but there is then another opt-out, which is very relevant for Ireland under Article 31(1). This is where we can submit a formal declaration to exempt ourselves from such an obligation. Ireland has the legal underpinning to exempt ourselves from participating in these initiatives. There is a way in which the European Union gets around the fact that it is funding lethal weapons. First, it says that the European Union Treaty prohibits us from funding lethal weapons. It gets around that is by stating that it is not funding the purchase, rather it is funding the research and development. We had the two pilot projects that came into effect in 2017 where two funds were given, one was for research and one was for the development of military equipment. This had a fund of just short of €600 million. That was from the 2014-20 European Union budget. In the next budget for 2021-2027, without assessing how the €600 million had been spent and all of the shortcomings with that, the European Union then allocated €8 billion for the European Defence Fund. It feels like a cop-out to say we are just funding the research and development: we are not actually funding the purchase.

Where the EU is funding the purchase is through the European Peace Facility. This is an off-budget facility. The ceiling on the facility at the last time I checked was €17 billion. This comes directly from member states. It does not go through any of the scrutiny and oversight in Brussels as it is an off-budget facility. The weaponry being sent to Ukraine is being funded under the European Peace Facility.

Where does the Act that we are talking about today sit? It sits in a very grey area and that is why it is very problematic. That is why we really welcome the fact it is being scrutinised, because it is funding the direct production of ammunition. That is hugely problematic under the European treaty because it prohibits expenditure directly arising from military and defence implications. There is a huge question mark around whether this Act is even in compliance with European Union law. It was pushed through so quickly and without any of the scrutiny procedures that should have been put in place, like, for example, the Irish Parliament being able to scrutinise it. It was pushed through by the European Commissioner, Thierry Breton, who said it was necessary to do so because Europe was in a war economy. Why is Europe in a war economy? In terms of the legal underpinning, while I am not a lawyer I think there are grey areas that really need to be scrutinised.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

What does Ms Ní Bhriain think this facility means for Irish neutrality?

Ms Niamh N? Bhriain:

Mr. Fairmichael outlined it very clearly. If we are giving Irish public money to fund the production of lethal weaponry, which is going to be sent to Ukraine, that is a violation of our neutrality. If we are supplying the weapons to one side of the war, by definition, that is a violation of our neutrality. Mr. Fairmichael outlined it very clearly. Perhaps someone else wants to pick up on that.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Do any of the witnesses want to add anything?

Professor John Maguire:

We have had very direct references to the measure being considered. I and others - having looked at these questions for the best part of four decades since the Single European Act was introduced - consider that it is possible to see a process here where at every stage we are being told this is some small additional thing, and it makes sense in terms of what has gone before, and really there is no point in making a fuss about it. We have addressed this ourselves. I do not know if it is appropriate to circulate them, but I have two publications here, one from AFrI and one from another organisation. One relates to the Commission on the Defence Forces and the other relates to the forum. The point I would like to make is that it is wonderful to be here and to start what I genuinely hope will be a dialogue with our parliamentarians, which we have been seeking for decades. It is great to be here, but we are in a situation where we are looking at measures like this in the context of having had a Commission on the Defence Forces, which tells us what, according to the Tánaiste, we the citizens were failing to realise. This gives us a clear guidance on the nature of defence, the problems with the Defence Forces: the need to increase them, their role in Europe and indeed the dangers that we are meant to be facing and tackling in the world.

I might be dismissed here as a crusty old professor, but if one actually reads the report by the Commission on the Defence Forces, it is an extraordinarily complacent and unorganised document. I do not know if people have read it. I do not mean to be cynical, but sometimes documents are produced to be there rather than to be read, used and analysed. Sometimes documents are presented as holy writ, but they are certainly not wholly read. Often, they are not even partly read. If we look at the Commission on the Defence Forces – I do not mean to push us totally onto that - it is part of the allegedly rational scientific basis for Irish defence policy that the Irish people were missing when An Tánaiste said to us a couple of years ago that we have really to wake up and see that we are in a different kind of world. In the context of the Commission on the Defence Forces report, I would relish meeting some of our parliamentarians and looking at the initial critique I have contributed to the report.

May I circulate a document, Chairperson? Would that be appropriate?

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Professor Maguire might do so via the clerk.

Professor John Maguire:

If I pass them around, will that be okay? This is the first document, A Force for Good, produced by AFRI. It asks if we have a rational basis for the decisions we are taking when we have a commission that has said things that are examples of complacent thinking. The report was not designed to be read. Do we really want a commission which tells us that the Defence Forces should start recruiting in isolated and disadvantaged areas? That is what is stated, and I quote that in my critique in A Force for Good. That is what is stated.

There is a section in the document on armaments and the environment, which is directly relevant to what we are talking about today. It is lamentable. I know I am going out on a limb here but I want to meet people and argue this point because I could be wrong. The emphasis in that section is on the problems that climate change poses for the Defence Forces.

The phrase "the military world" is used explicitly in our defence Green Paper and NATO is name-checked as the standard setter of the military world. There is only one glancing reference to the fact that the military world is one of the world's major polluters. It destroys and poisons worlds on all sides. We are not picking one side or another.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Does Professor Maguire mind if I go on with some of the other questions? We have limited time.

Professor John Maguire:

Absolutely. I will stop. I could not say more explicitly that I would love to meet people on all these matters. We are raising questions and have work to do. As citizens, we are not getting answers from the commission or the forum. It is urgent because the situation is a mess.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

It might be argued that, counter to that, we are not getting the answers we want. There is always subjectivity to questions and answers. If I get the answers I want, it may be okay. We will continue.

Professor John Maguire:

I would love to come back on that point but I will wait.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I would like to come back on it too. Do not worry.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The Leas-Chathaoirleach can do so during his questioning. I want to look at the increase in the profits for European arms companies since the invasion of Ukraine and the unfolding genocide in Palestine. Would it be fair to say that we are seeing record profits for European arms manufacturers? Perhaps our guests would speak to that.

Ms Niamh N? Bhriain:

I do not have them with me now but I remember looking at the figures when the Ukraine war started. At one point, I checked a German arms company and its profits had gone up by-----

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Do not name the company. We cannot name individual companies.

Ms Niamh N? Bhriain:

I cannot name the company.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Ms Ní Bhriain cannot name a particular company.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We cannot name individual companies.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am asking about the overall situation with respect to the profits that are being made.

Ms Niamh N? Bhriain:

Overall, the profits arising are astronomical. We can look at the charts where we can see the company profits. The Deputy mentioned the genocide in Gaza. If we set a graph to show the profits of any of the arms companies, without mentioning them specifically, at 7 October, we can see what happened on 9 October and what has continued to happen since. The profits of some companies have soared by over 100% in that period and continue to rise. They still continue to argue we should be funding their research and development with our public moneys.

The Deputy earlier mentioned the legal underpinnings. There is a cluster munitions Act in Ireland which prohibits public money being spent on problematic cluster munitions and anti-personnel munitions. We do not know whether the companies that are in receipt of this funding are also involved in the production of cluster munitions. As well as there being a legal question in Europe, there is potentially also a legal question here in Ireland.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That was going to be one of my questions. How do we find that out in respect of cluster munitions?

Ms Niamh N? Bhriain:

There is a fact sheet online. I do not have the name of the relevant companies but I can forward those to the committee. If I did, I would not be able to mention them anyway. There is fact sheet online that shows which companies are receiving funding through the Act in Support of Ammunition Production, ASAP. It would be a question of going through each of those companies and checking whether they may be involved. There are enormous questions around public money. Research we did in the Transnational Institute two years ago found five companies that were in receipt of European Union funding, the €600 million I mentioned, and were also involved in the production or upkeep of nuclear weapons. European public money is being channelled into companies involved in the production, maintenance or upkeep of nuclear weaponry. We are taking this into a dangerous sphere. The public do not know about this, and that is why this committee is so important. The public in Europe do not know about this so we need to bring forward that knowledge.

Mr. Rob Fairmichael:

I live in Belfast. Perhaps I could just add that a well-known arms company there has doubled or tripled its production since the start of the Ukraine war. Its profits have risen more than 100%. I just add that detail about a particular arms company on this island.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The industry obviously warrants far more scrutiny and transparency so that people know exactly what is being funded. What guarantees are in place to ensure that all additional production is either provided to Ukraine or to national stockpiles? What safeguards are in place to ensure that all supported production does not get sold outside the EU? Are there safeguards there?

Ms Niamh N? Bhriain:

At the moment, European arms are being sent to Israel to be used in Gaza. The safeguards are not worth the paper they are written on. In terms of the regulations that are in place for the export of arms from the European Union, we have the EU Common Position from 2008, which contains eight criteria in line with which countries are to assess their exports. The second criterion of the eight relates to human rights and whether weaponry would be sent to a place where there is a conflict. The Common Position is, in theory, justiciable. If it is applied, it should, in theory, be able to stop problematic exports. However, there is no oversight as to how each country goes about implementing the Common Position. It is left up to each country and its own standards to look at how it implements the Common Position. We have no guarantees in that regard. Everything that is sent out of the European Union should be subject to an end user agreement but in the case, for example, of what we send to the US in terms of military licences, we have no idea whether the end user is, in fact, Israel. That is hugely problematic at the moment. The Netherlands sends weaponry and components of weaponry to the US that will end up in Israel through F-35s. It foregoes the need for an end user agreement.

I have one more thing to add on end users. A very problematic report came out of the UN a few years back. It showed that the military junta in Myanmar was mostly being armed by Ukraine. It was sending weaponry before the full-scale invasion by Russia in 2022. The weapons in Myanmar were coming from Ukraine. We have no guarantee that what we are sending to Ukraine will not end up in other wars and conflicts around the world. We have no guarantees or safeguards, and that is why exports of arms are so highly problematic.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I have taken up enough time.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

On the question of exports, and without naming any companies, we know that arms exports from Germany to Israel have increased since last year from €30 million to over €300 million.

That is a tenfold increase in the number of arms being exported from Germany. I believe German companies are among those that will potentially benefit from the arms and ammunition schemes.

We do not have a guarantee. Clearly Germany does not feel the EU common position impedes it from exporting arms to Israel, even at a time provisional measures have been set by the International Court of Justice. There is no guarantee in terms of these weapons. That is building on what I will be asking the Commission about. Effectively we are supporting companies in the manufacture of ammunition because it is being framed as an industry support measure. It is not with regard to purchase but manufacture, which is almost worse in a sense because we are saying they can create them and sell them where they will. There is no limit on manufacture.

I will come back to the cluster munitions coalition treaty. It is something I feel very strongly about as I was lucky enough to be there when it was negotiated. AFrI is a member of the international Cluster Munition Coalition. The treaty was a large piece of work. It has been mentioned that the Irish law is of concern and I ask the witnesses to elaborate on this. As I understand it, the cluster munitions legislation is very clear that a country should not even support a factory where munitions are being produced. Explicitly we are supporting the companies and, thereby, the factories.

Sadly we also know that cluster munitions have been used on both sides. Russia has been known to use cluster munitions and the United States has provided Ukraine with cluster munitions. I acknowledge that when I raised this recently with the Minister for Foreign Affairs he said he has been very clear that the use of cluster munitions by any side in any conflict is something Ireland needs to condemn. We do not want to condemn it while, at the same time, we inadvertently contribute to factories where those weapons are manufactured. If there is more detail on where it fits with the Irish law it would be useful.

Ms Niamh N? Bhriain:

I read through the cluster munitions Act before coming in. The fact there is even a question mark over whether public moneys are going through the European Union to companies involved in the production of cluster munitions is a red flag. The fact we cannot say categorically they are not is a red flag. This is why we have to have a scrutiny committee. Until we get a categorical answer we should not send Irish public money. As I have said, there is a question mark around the Irish legislation and European legislation. We should start at home with Irish public moneys.

This is something Irish people feel very strongly about. We often hear internationally about the role that Ireland played in bringing about the international prohibition on cluster munitions. When there was a decision to send cluster munitions, there was a question about whether they would transit through Shannon Airport on their way to being used in Ukraine. We do not have a categorical "Yes" or "No". We have no idea what is being transited through Shannon Airport on the way to Israel or, possibly, to end up on the front lines of Ukraine.

This is a crisis not only in terms of these particular wars or conflicts but in terms of accountability from our public institutions for what is happening with our public money. It is a slippery slope. As Professor Maguire said, we are going in the wrong direction. If we look at this over the past 40 years. something gets moved in one direction because there is an exception or urgency and it becomes the norm. Then we standardise everything against it.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

With regard to the transit of weapons, which is a separate issue that we definitely do not have time to discuss today, the Civil Engagement Group is bringing our arms embargo Bill through the Seanad next week. It is explicitly on the question of the transfer of weapons and the need to look at stopping the practice of exemptions for weaponry, which we have at present, and ensure we have inspections of flights. It is a separate issue and I am resisting going into it. It is very relevant to what Ms Ní Bhriain said about research and development and the slippery slope. It began with stating research and development did not really count. Now we are at a point where, somehow, the manufacture of weapons does not count either.

It was very notable that, again, the Irish Government has said it will oppose the measure with regard to research and development and the Horizon fund. It has not yet done so but it will. The Horizon fund is very important. It is explicitly for civil research and development but some Horizon funding, which is needed to address issues such as climate change, could get melded with the European Defence Fund. The points are very well made on military emissions and the climate impact of these, which are significant. I hope the proposal will not go forward. The idea of redirecting European research funding towards defence or military research, rather than for civil purposes for which it is ring-fenced, is a kite that is being flown. Not only would we see money directed away from things such as the climate crisis but towards something that exacerbates the climate crisis.

I want to come back on the EU law. Our next witnesses are from the Government and the EU Commission. I agree that Article 41.2 seems to be explicitly at odds with this. I was going to read it but it has been read. There should not be direct budgetary expenditure arising from operations having military or defence implications. Otherwise there needs to be a unanimous Council decision. Am I correct that there has not been a unanimous Council decision to state we can go to direct budgetary matters on this? I understand it was a qualified majority vote. Is this the case?

Ms Niamh N? Bhriain:

On the ASAP?

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

On the Act.

Ms Niamh N? Bhriain:

As I understand it, there was no unanimous Council decision. I would have to double-check. From reading what came before approval in the Parliament, basically the European Commissioner Thierry Breton went on a tour of Europe and visited all of these factories throughout Europe. He came back and put forward this proposal. He made reference to the exceptional situation and the urgency. I would have to double-check to be sure there was no explicit Council-----

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I will put the question directly to the Commission. As I understand it, there was a qualified majority vote. There are two elements. There is Article 42.1 of the treaty potentially being breached by the very point the Act very clearly has military or defence implications. Ammunition manufacture has military and defence implications. Even if it were legal under EU law, which is very questionable, Ireland should have operated the opt-out clause under Article 31.1 with regard to its law.

There are two issues. One is whether this particular Commissioner and the Act do not reflect the proper EU process. The second issue is within this. I am almost thinking of questions for our next witnesses. Surely Ireland should be opting out under Article 31.1, even if it were legal. I want to be clear on this. As has been said, it is small measure by small measure but this is why we need to challenge and unpick each of the small measures to make sure we do not have a situation whereby we direct public money into the manufacture of weapons, which will cause loss of life and situations that may even be in breach of international law, particularly what we have seen in Gaza.

We must redirect for the purposes for which we need it. This money is going to companies that are making extraordinary profits. I would like a comment on those two legal matters.

Ms Niamh N? Bhriain:

The reason I quoted Article 41.2 is because we have to begin from there. If there are situations where you make exceptions, those exceptions then become the norm and the European Union ends up normalising the contribution of public money to private armament companies for the production of weapons. I am not aware of any other scrutiny committee. I checked with colleagues in other research organisations across Europe. I have not heard that there have been any scrutiny committees in any other European countries. So much of this goes under the radar. We have to anchor what we are doing to Article 41.2 and raise serious concerns about the fact that it raises a red flag on whether the ASAP regulation breaches it. We can row back from there and look at what happened to the €600 million relating to the pilot projects and the €8 billion relating to the European Defence Fund. There are also the Common Foreign and Security Policy, the European external action service and the fact that we have military mandated missions operating in countries throughout Africa. A great deal emanates from Article 41.2. Even if a legal analysis is carried out and the lawyers tell us that Article 41.2 is above the law, I am of the view that Ireland has an obligation to ask whether it is above Irish law.

Going back to cluster munitions -----

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

And our neutrality, of course.

Ms Niamh N? Bhriain:

Of course. We would invoke Article 41.1 and make a formal declaration to exempt ourselves from it. There is our neutrality but we must also consider the Constitution. Everything legal in this country emanates from the Constitution. When you go to Article 29, it is very clear on the peaceful resolution of international disputes.

Professor John Maguire:

On that point, not only does Article 29 refer to peaceful judicial determination, etc., there is no additional clause which states that if this does not work, we can attack people or threaten them. Looking at Article 28, which clearly refers to declarations of war, it is very clearly about defence of the national territory. It is not about any of the kinds of missions that the Army Ranger Wing – and, by the way, this is morphing into Ireland’s special operations force – has been involved in in Mali and elsewhere. Military intelligence are trying to find out what they have been at in Afghanistan – that is, former Army Rangers and possibly current members of the Defence Forces.

I would love to have three very quick bites at the environmental cherry, and then I will go quiet again. It is very relevant if the committee is having the Department of Defence and others, including the Commission, in. It would be easy to just take the mickey out of the fact that there is a phrase in the Commission's report which refers to green ammunition and green pyrotechnics. However, one does wonder what is meant by green ammunition and green pyrotechnics. The purpose of defence is clear, it says. However, we are not told what the purpose of the military is; the Commission simply declares that it is compatible with defence of the environment. There must have been someone in the Department of the Environment weeping over those passages in the Commission's report, which is simply inadequate.

My second point relates to a report last week by Conor Gallagher, a journalist for The Irish Times, who named the universities and colleges that are looking for research money from the EU in respect of military matters. I do not call them defence matters; they are miliary matters. Conor Gallagher makes the very important point that Ireland is putting quite an amount of money into these funds and that we want something back. The most recent occasion on which I heard that phrase was the last event I attended to just before lockdown, which was the Slándáil conference in the Helix. The Slándáil organisation was set up by a former Army Ranger. It is very salient in all these matters. In a workshop on defence-related research, so called, a senior Irish public official – and I will not name anyone – who spoke about their role in channelling funds from Brussels to Ireland using exactly the same phrase in order that we would get more bang for our buck. That was really what they were talking about. Someone present said that they were having a problem with their research project in their university and that they could not get it off the ground because some academics were a bit iffy about it. Our public official said they thought they knew the university in question and that they thought they knew a way around what was happening. What is going on in these areas is so far away from Article 29 and the notion of genuine defence and what we should be doing that we have reached the point where there is an enormous can of worms to unlock.

I am sorry that I went on too long.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

A large number of academics, their representative organisations and others made submissions in respect of the Horizon proposals in the context of being explicitly clear that they support the retention of a civil focus.

Professor John Maguire:

Good.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I thank everyone for those answers. Cluster munitions are one thing; nuclear non-proliferation is also relevant, as is the general question of arms manufacture. I do not know if Mr. Fairmichael was there at the time, but I think Mr. Murray was. Will Mr. Murray comment on the treaty negotiation and the particular role Ireland was able to play? That gives the context for the cluster munitions Act, which is particularly robust and which is very explicit about not supporting factories. That was the case at the time because we did not have a defence industry and because we were not implicated in the manufacture of weaponry.

Mr. Joe Murray:

It was a representation of Ireland at its best, politically and in the context of the NGO sector. There was an NGO coalition to support the treaty. AFrI was central to that. The person who was employed to work on that operated out of the AFrI office and later worked for AFrI. It is an example of the way Ireland should go. It is totally in the spirit of Frank Aiken who is a hero of mine for what he achieved in the United Nations. Over a three-year period, he achieved what were called the Irish resolutions, all of which were moving towards the non-proliferation treaty that eventually was agreed. That is why I find this so depressing. It is another salami slicing of Irish neutrality. It is happening all the time. Here is another example of it. We are moving in a total opposite direction to Frank Aiken’s achievements in the United Nations and we are moving away from the pride that we can feel in having been involved in negotiating the cluster munitions treaty. It is in the context of, as was mentioned already, the shocking growth of the international arms trade. There is an organisation called SIPRI that publishes a report every year on military expenditure around the world. That expenditure is increasing every year. It is has increased dramatically in the past 12 months. We are now at a figure of $2.4 trillion. That is the annual military budget globally. We asked the question: what could we achieve if even part of that budget was used for tackling poverty, healthcare and climate change?

All of what we are doing and discussing today is adding to the obscene wastage of resources and the obscene direction towards war and away from peace. It is a shocking reality that we do not seem to realise the danger of the direction in which we are heading.

Ms Brid Brennan:

As a member of the public and citizen of Ireland, I would like to know the next steps after this hearing, which has given such invaluable information about the questions that arise over public accountability concerning Ireland's role and also the fact that Ireland has a great opportunity to work on and strengthen its role in this regard and not be steamrolled simply by the urgency of the moment. What will be the next steps in making progress on the important issues of concern?

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I cannot speak for everyone. We will have a private session afterwards, during which we will discuss everything. I can highlight that these hearings come in the context of a communication that came to us. The money had already been allocated. I understand contracts are going to be signed in respect of the €500 million. I have a breakdown showing a figure of €124 million for explosives, €248 million for powder, €90 million for shells, €50 million for missiles and €2 million for testing and reconditioning. This is the programme and its budget. As I understand it, the money has in effect been allocated. Normally, we might make a political contribution, whereby we would give our opinion that the money should not be allocated in such a way, for example. That may be the tool we will still be able to use. Again, however, I cannot speak for all the members. One tool that may be available to us as a committee is sending a political contribution. Even though the money has been spent, there is the question of next year and what happens next time. It is important to mark our concern. If there are concerns about the interpretation of the treaty, as I believe there are, and given that we will see how the hearings evolve, it is important that we send a political statement that we disagree with the interpretation of the treaty. It would mark our concern to have the interpretation questioned. I hope that would be useful for the next time or next scheme that may come along that seeks to interpret in a very bizarre way, whereby the manufacturing of ammunition supposedly has no military or defence implications. That is one aspect.

Speaking for myself and not the other members of the committee, I will be engaging with the next set of witnesses, which will include those from the Department, to highlight the question of whether Ireland can challenge these decisions. There should be a change only where there is a unanimous Council decision, so it is a matter of being clear about the position Ireland might take at the Council and the wider interpretation related to whether a unanimous Council decision is made. There is the separate question of whether Ireland could use its capacity under Article 31(1), regardless of what decision may be made, to ensure we and our public money are not implicated. Those are some of the paths potentially available to us, but we will need to discuss them collectively as a committee.

Professor John Maguire:

I wish to contribute for a moment on the question the Senator raised on the implications for Irish neutrality. I would like to give a hard copy of the Swords to Ploughshares, StoP, report, the second publication, to the Chair and perhaps Deputy Conway-Walsh and Senator Higgins. Very significantly, StoP is an all-island organisation that is critiquing and working against the arms industry. We have done something unique in this regard. As citizens, we have gone through all the proceedings of the forum, tried to document them and tried to come back with a reaction. The reason I mention that is that Dame Louise Richardson, in her report from the forum, which by no means logically follows the mixum-gatherum that was the forum, states in a somewhat bemused way that Irish people seem to have loyalty to neutrality as an abstraction, but neutrality has been made an abstraction by our policymakers for 40 years. We have a celestial neutrality that nothing can ever affect while we get more and more involved in actual hell on earth.

It boggles my mind every time former presidents and various others say, "Of course we are not politically neutral; we are militarily neutral." In this regard, there are two lapidary statements to be noted. I will not read them out as they are on page 33 of A Force for Good. One of them is from the extraordinary manifesto of Albert Einstein and Bertrand Russell in 1955, which is detailed in the relevant part of the document. To paraphrase, it states most of us are not neutral in feeling but that, as human beings, we must realise these problems cannot be solved by war. What bit of this do people not understand? Neutrality is not a matter of how we feel. It is not even a matter of who we think might be right in a conflict; it is a matter of how the conflict can be settled and how we can all come out of it alive and somehow address our differences. That is what Einstein and Russell implied. Exactly the same thing was said by Frank Aiken, again quoted on page 33 of the transcript of the General Assembly session in September 1957. He said we cannot go on with war in the nuclear age.

When you look at the threats of Russian manoeuvres with nuclear weapons on the border with Ukraine, you wonder what kind of road we are going down. Is someone going to say "Stop". I am not referring to stopping doing everything, but let us-----

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

How can we influence the Russians if they are participating in something like that and it boils over? The war in the Balkans is a fairly recent example. I do not believe it could have been resolved other than by the use of a force beyond the control of Miloševi that was able to impress upon him and his colleagues that they could not go on as they were and that it would not be allowed to continue.

I do not accept at all the notion that the Minister for Foreign Affairs is undermining Irish neutrality. Neutrality worked well in 1939 and it was the only obvious option available to this country then. Other countries throughout Europe were neutral at that time but this did not stop the aggressor. The aggressor went right on through them, built concentration camps and put a people who were peaceful into them. The aggressor had no regard for them at all. Therefore, I do not accept the notion that the Minister for Foreign Affairs and the Irish military authorities are undermining Ireland's neutrality. The fact is that, in the case of an event like the cutting of underground cables, which would be an attack on an obvious target and which has happened, we could not defend ourselves against it. Ireland, as a neutral country, could do nothing about it. We could not say to the aggressor that it had declared war on us, a neutral country, and that we would hold it responsible. There is no way to hold the aggressor responsible; he does not have regard for any authority anywhere.

Let me refer again to the war in the western Balkans, including Sarajevo and Mostar. I had the doubtful privilege of visiting those places shortly after the happenings in question and what I saw was shocking.

I have to say that it was shocking because it was allowed to continue. Everybody had form, or baggage in the area. People might recall that the Dutch UN detachment was there and it stood down because it was threatened by a superior force. It all boils down to how would one solve that by peaceful means. It was a situation where the aggressors were blatantly ignoring all human rights issues and so on and were attacking the civilian population. They had every intention of continuing to wipe them out. Previous participants in wars in Europe were involved in wiping out populations as well. Some of them went a fair distance towards doing so.

We need to remember that not all the things we do here are an erosion of our neutrality. Neutrality has its place and it works well. It worked extremely well in 1939. It was the only option available to the country because the people who were the contenders at that time were seen by de Valera as being unreliable and unlikely to keep to an agreement. He was right on this. However, we cannot declare neutrality on an aggressor. It is as simple as that. The aggressor will continue to pursue until such time as the weak are subdued. I am just throwing this out there. I had the honour, sadly, of visiting those military graveyards in the various villages, towns and cities across the western Balkans. The graves on one side and the other side could be measured after the event, 300 in one graveyard, 350 in the other graveyard. The same applied right across the board. The ages on the headstones were 18, 17 or 20, showing the young lives that were sacrificed over the course of it. It can be argued that if the UN forces had not stood down - despite being outmatched - they would have forced the aggressor to back off but he did not intend to back off and he showed that. We can use the example of Irish troops abroad who did not stand down and paid with their lives in various locations across the globe. There are lessons to be learned from all of that, unfortunate though it is. I do not believe in the concept preferred by the Russians, that they want to negotiate for peace after they have captured the territory they wanted to capture in the first place. It is easy to negotiate on one's own terms when one is the aggressor and has subdued a population or has proven to be the stronger force.

I apologise, I should not wander off into the distance but unfortunately, these are things we may have to look at. There are changing situations in Europe at present. The Minister for Foreign Affairs has reflected that from the various discussions he has been involved in. We have to have regard for that. He and the Government are held responsible if they do not take account of something like that. All volunteers and NGOs and so on have a huge contribution to make. The only thing is that the responsibility falls on Government. No other organisation is blamed for negligence or something of that nature in the event of there being a catastrophe that we would not like to revisit.

Professor John Maguire:

With great respect, Chair, does not the ultimate responsibility under our Constitution rest with the Irish people? They have been told in a number of referendums that nothing significant was happening and we had to sign up anyway because we needed all kinds of integration. We were made solemn promises, which are now being dismantled, on the retention of the triple lock. I have made notes of a number of the points the Leas Cathaoirleach has raised. I certainly respect them but I do not necessarily agree with them. This is our second go. The Chair also was the chair of a discussion on the Lisbon treaty in a theatre in UCC in 2008, so here we go again. I will take one or two of the points and I will stop then. The Leas-Chathaoirleach asked how Russian aggression can be dealt with. This is where the forum was so inadequate. Ms Kate Fearon of the Organization for Security and Co-operation in Europe, OSCE, was there. She made the point that this is still an organisation where Russia is present and is regularly confronted. We have allowed the OSCE to be sidelined. There is an awful lot more that I could come back on. I might write a letter to the Leas-Chathaoirleach on the matter. I know the Senator wants to come in on other things.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the professor for that.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I think it is really important to pull back a piece that we are not engaging in individual, different conflicts and assessment. We know there are significant diplomatic means that have been exercised. I have supported many of the diplomatic measures to apply pressure on Russia regarding its illegal invasion of Ukraine and there are sanctions and so forth. There are diplomatic measures which can be taken and perhaps many measure which could be taken and have not been taken in relation to the current actions of Israel in Gaza. There is a raft of tools available that are not always deployed.

It is important to remember two points about Ireland's neutrality, from my perspective, at least. Ireland's neutrality is clear on the point of engagement. It is not that we do not engage or do not care. Active neutrality means exactly things like negotiating. It was not at a peaceful time in the world but in the midst of an arms race is when Frank Aiken took the initiative on nuclear non-proliferation. He did so at a time when everybody was saying they needed nuclear weapons to feel safe. Aiken was of the view that the more we all armed and engaged in the race, the less safe we would all become. He was clear on this. I always think of it as being principles versus interests. Neutrality is where a country engages on the basis of principles rather than interests. In terms of international law and all the diplomatic tools that flow from it, they need to be applied in a fair way, not based on interests but on principles. In the case of Russia, it has clearly breached international law and actions have been taken, rightly, against it. Ireland can take more of a lead in some of those actions if they are not implicated in other ways. It gives Ireland a credibility when they are able to be the arbitrators of that. The world, after the Second World War, was not at a peaceful moment and the Chair very eloquently spoke about the aftermath of war. After the Second World War, the UN Charter spoke about ending the scourge of war as being the collective responsibility of all the nation states of the world. Interestingly, back when the European Union was the European Coal and Steel Community, it was specifically stated that energies were being redirected into steel and coal - obviously, we need it out of coal now - to remove the focus from ammunition. That early, founding document of the European Coal and Steel Community explicitly stated that the collective resources needed to redirected towards the manufacture of steel and coal and away from the manufacture of ammunition, of which Europeans had been the greatest victims. That was the origin point of the European Union. It is really important and I am passionately in favour of Ireland being part of Europe and an active participant. I was very honoured to be part of the future of Europe process where we looked at the future of Europe. A core part of this future is that it be true to that mandate and the kinds of checks and balances that have been built in to the treaties. That is why I am so concerned when I see attempts to erode them in this regard. I wanted to give a broad context. It is important that we do not fall in to hypotheticals about trying to workshop any individual conflict. The key point is to know where Ireland is and what principles it champions and indeed to know what Europe is and what it does and does not have a mandate for and to reflect that. Hopefully, that is what we are going to be able to carry through to the next session when we meet with representatives of the Commission and of the Department of Defence.

Perhaps Ireland might not go along with what the EU has said. What Ireland is beginning to say is that we have an allegiance to the principles of the United Nations but as interpreted by whom? We are undermining its authority. My next tax return is going to be in accordance with the principles of justice but it might not satisfy the commissioners.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I do not think it is a question of the commission or the commissioners setting out to undermine democracy in the European Union or anywhere else for that matter. The UN has lost a considerable amount of its prestige and power by virtue of what happened in the western Balkans. Once that contingent stepped down in the face of a superior force, the UN lost the initiative at that stage and has sadly not regained it since. It needs to assert itself as an international peaceful organisation. There are other aggressive forces in the field now and very small entities. Private armies can now be raised overnight and there is access to the munitions they want. The situation is a bit like an international mafia. We cannot control them nor can the UN. This has happened on every continent in recent times, except perhaps Australia. The fact of the matter is simply this: we have to be vigilant at all times. We have to remember what happened in the past. We have to remember, for instance, the words of the Russian ambassador when he said that it was not the intention of Russia to invade the Ukraine. Do members remember those famous words? He vowed again and again that it was not Russia's intention to invade the Ukraine. He vowed it a week before Russia actually invaded the Ukraine. The week before it actually did invade Ukraine. Some of these manifestations of a willingness by powerful authorities to do good have to be taken with a grain of salt.

We have another meeting coming up, so we have to move on.

Professor John Maguire:

It is difficult not to simply say, and this is all I am saying, is that there is a scéal eile and that the UN has been undermined and Ireland has allowed that to happen. As early as the 1980s, the then Minister, the late Michael Smith, explained that troops would no longer be available for peacekeeping because they were committed to EU units. Ireland has participated in diminishing the authority of the UN.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

That is not the reason for that. For other reasons, membership of our Defence Forces in this country has reduced over the years. For economic reasons, there were alternatives. If people are poor and looking for jobs, they will do whatever they feel they have to do at that particular time. That is not the way it should be but it is the way it is. On the other hand, in a situation, which we have in this country now, where there is full employment, there are options. People have many more options than they had in 1939 and around that era. It is not as simple as it looks. We will not argue about it anymore. Nobody argues with the Vice Chair. I call the last speaker.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

The inadequate terms and conditions for many in the Army and the Naval Service are of significant concern for many. I also know many left the Naval Service because they were disappointed that Ireland stopped engaging in humanitarian search and rescue. That was explicitly in order to move towards a security rather than a humanitarian focus. Many of those in our Defence Forces feel huge pride when they have that explicit guarantee of Ireland's neutrality because they know they go with a different voice and a different mandate.

I want to mention two things. The Vice Chair has made the point that at a time when we are seeing military actors, including commercial military actors, the question of arms manufacturing, when we have no guarantees as to where those arms end up, is troubling. We do not want to be implicated in any way in putting guns into the hands of those who operate completely outside of even a national mandate.

I want also to say that I have been extraordinarily proud of the United Nations over the last year. It has been very clear. It is not simply a Security Council. The United Nations is also UNESCO and UNICEF which does important work with children. It is UN women, UNRWA and the relief works agency. There are all of those aspects to the United Nations where support is given to humanity as a whole, regardless of which country it comes from. It is that idea of basic principles. They are principles underpinned by a charter on how we treat each other. There has been a lot of reassertion of that common strong mandate of the United Nations by all of its different entities, including the World Health Organization or others, over the past year and I have been very proud of it.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

That concludes today's first session. I thank our witnesses and members for their engagement. We must now suspend the meeting to allow the witnesses in the second session to take their places. I thank the witnesses and members for coming to the meeting today.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

During this session, we will engage with officials from the Departments of Finance and Defence and the European Commission. The usual statements must be read out.

The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute by absolute privilege. However, a number of today's witnesses are giving their evidence remotely from a place outside the parliamentary precincts. As such, they may not benefit from the same level of immunity from legal proceedings as a witness physically present does. They may consider it appropriate to take legal advice on this matter. Witnesses are again reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative that they comply with any such direction. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members who might be attending remotely of the constitutional requirement that members must be physically present within the confines of the place in which Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings.

On behalf of the committee, I welcome, from the Department of Defence, Mr. Dermot Ryan, principal officer, and Mr. Brendan Fitzgerald, first secretary in Brussels. From the Department of Finance, I welcome Mr. Gerald Angley, principal officer counsellor, and Mr. Sean Brennan, assistant principal. Via Teams, I welcome from the European Commission, Mr. Christophe Galand, deputy director and head of unit - internal policies of the EU, Ms Lenka Filipkova - I hope I got that right - director, Mr. Micha Comnick, Directorate General for Defence, Industry and Space, DG DEFIS, - Act in support of ammunition production, ASAP, and Ms Rosa Garcia Calera, also from DG DEFIS - ASAP.

I invite Mr. Angley to make his opening remarks.

Mr. Gerald Angley:

I thank the Chair and the committee for the opportunity to discuss European Union amending budget No. 3 of 2023, in particular the elements which relate to the Act in support of ammunition production, ASAP. The Department of Finance has had some correspondence with the committee already on this matter, while I know other committees have discussed the specific measures involved. I lead the EU budget unit in the Department of Finance and am joined by my colleague, Sean Brennan, and colleagues from the Department of Defence, as well as colleagues from the Directorate General for budget at the Commission, who the Chair just introduced. Our focus, as the Department of Finance, is on the EU budget as a whole, its negotiation on a multi-annual basis and annual basis and, of course, Ireland’s financial interests as a member state. Individual funding programmes, policy content and arrangements are negotiated by the relevant Departments and Ministers based on policy area, and we work with them on budgetary questions as they take place.

In the broadest terms, the overall EU budget is agreed on a multi-annual basis between the Council and the European Parliament, following a proposal from the Commission. The current budget runs from 2021 to 2027. Each year, an annual budget is agreed – which is what we are now discussing - by member states and the Parliament. It must, however, remain within the overall parameters set in the multi-annual budget. Within each year, there are a number – usually four to seven – of draft amending budgets. These are not identical but also not dissimilar to the Supplementary Estimates we have in Ireland. That is by way of some background.

Amending budgets such as No. 3 from 2023 can be proposed due to relatively routine developments, such as unused or delayed funds or changes in expected receipts, while they can also reflect new decisions and legislation linked to exceptional circumstances, which is the case here. As members know well, Russia's illegal war of aggression against Ukraine prompted an unprecedented EU response across multiple policy areas, for example, energy. Another area is defence. The extended nature of the war in Ukraine led in 2023 to the proposal and eventual agreement of two emergency instruments, namely, the European defence industry reinforcement through common procurement Act, EDIRPA, and the Act in support of ammunition production, known as ASAP, which is the focus today. My Department of Defence colleagues to my left will speak to the substance of these measures, but in budgetary and financing terms, I note that the EDIRPA was adopted by the European Parliament and Council on 27 October 2023, while the ASAP was adopted some months earlier, on 20 July 2023. That is key to why the amendment was made. Commission colleagues may explain further.

The earlier adoption of ASAP as against EDIRPA informed the Commission’s proposal for draft amending budget No. 3, involving the transfer of credits originally intended for EDIRPA to ASAP. Put more technically, this involved the transfer of €157 million in commitment appropriations from the reserve lines for EDIRPA onto the reserve lines for ASAP. In amounts and financing, the ASAP has a total budget of €500 million allocated across two budgetary years. ASAP is financed through redeployments of existing funds under heading 5 of the EU budget, covering security and defence, and by mobilisation of special instruments. In effect, no new or additional money needed to be found outside of the budgetary parameters set in the multi-annual and annual EU budgets. As is normal, the draft amending budget No. 3 of 2023 was adopted by both the Council and European Parliament, which are sometimes referred to as the budgetary authority of the European Union. This took place on 18 October 2023, allowing for the transfer of commitment appropriations from EDIRPA to ASAP. I will conclude by noting that the ASAP regulation is in place.

It is a temporary one applying to 30 June 2025. The annual budget process continues to provide for it with the budget for 2024 formally adopted by the Council and Parliament on 22 November 2023. This is background on the procedures and processes leading to this decision we are discussing today. I am happy to leave it there and hand over to colleagues from the Department of Defence. We look forward to members' questions.

Mark Daly (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I now invite Mr. Ryan to make his opening statement.

Mr. Dermot Ryan:

I am also pleased to be here this afternoon and to give the Department of Defence’s perspective on this issue. I am a principal officer in the Department. I am accompanied this afternoon by Mr. Brendan Fitzgerald, who is the defence attaché at the Irish Permanent Representation to the EU in Brussels. He attended the meetings of the ad hoc working party on the defence industry in which member states considered and agreed this proposal last year..

I understand the committee’s focus is on scrutinising the draft amending budget, particularly as it relates to the set-up and financing of the new defence industrial reinforcement instrument established by ASAP. As these budgetary issues are very much within the domain of my colleagues in the Department of Finance and the European Commission, I will instead focus my remarks on the background to and the content of the regulation.

The background to this proposal is the European Union’s response to Russia’s illegal, unprovoked and unjustified invasion of Ukraine. With many member states donating significant quantities of weapons, ammunition and other equipment to the Ukrainian armed forces, stocks were left significantly diminished with several member states in the position of needing to replenish those depleted stocks in order to continue to support Ukraine and meet their own defence objectives.

The proposal for ASAP was the European Commission’s response to a tasking it received from the European Council to present concrete proposals to urgently support the ramping up of the manufacturing capacities of the European defence industry, secure supply chains, facilitate efficient procurement procedures, address shortfalls in production capacities and promote investments, including, where appropriate, mobilising the Union budget. It was part of a three-track approach the European Council had taken in March of last year in response to the need of the Ukrainian armed forces for weaponry and associated ammunition, including ground-to-ground and artillery ammunition. The other two tracks involved an invitation to member states to urgently transfer ammunition from their own stocks to Ukraine - track 1 - and an agreement to jointly procure one million ammunition rounds - track 2. Following an accelerated negotiating process, EU colegislators reached a political agreement on ASAP on 6 July 2023. The final act was signed on 20 July 2023.

Having regard to the amendment to the budget in April, the programme has an overall allocation of €514.8 million. The Commission anticipates that, with the expected cofunding by industry, the overall budget could exceed €1.5 billion with new production capacities all across Europe. This funding envelope does not represent fresh contributions by member states. Instead it is rather sourced through a redeployment from existing instruments, in particular the European Defence Fund, to stimulate the production of ammunition in a number of critical areas to cause a ramp-up in ammunition production capacity across Europe. Additional manufacturing capacity will help member states replenish national stocks while delivering ammunition urgently required by Ukraine. ASAP will further seek to reduce delivery lead time and address potential bottlenecks that could delay or impede the supply and production of relevant defence products.

Following the regulation’s entry into force in July last, the Commission issued calls for proposals in the areas of explosives, powder, shells and missiles as well as and testing and reconditioning certification.

Following an evaluation of the responses to those calls earlier this year, the European Commission selected 31 potential projects in 15 member states with a total funding of just over €500 million under ASAP to assist European industry in increasing its ammunition production and to achieve a level of defence readiness. Grant agreements with the selected companies are expected to be signed with the European Commission this month. The focus on these five areas reflects the bottlenecks identified in the ammunition supply chains and also addresses the obsolescence, testing or reconditioning certification of relevant defence products.

I should also mention another EU instrument that aims at addressing the EU's most urgent and critical defence capability gaps and incentivises member states to procure defence products jointly - EDIRPA. It is a complementary initiative to ASAP - one incentivising the supply side and the other the demand side. EDIRPA entered into force on 27 October last and since then, three calls have been launched for the joint acquisition of ammunition, anti-aircraft defence systems and the modernisation of equipment.

Last October, the European Commission adopted the ASAP work programme, which covers the period 2023 to 2025, by which time all ASAP-funded projects will have been completed. The focus now is on ensuring that the grants in the value of €500 million to 31 companies deliver on the programmes’s objectives of supporting the EU’s defence industry to ramp up its manufacturing capacities to match increased demand for ammunition and missiles, securing supply and availability of critical inputs such as raw materials and components, facilitating access to finance for EU defence companies and mobilising private funding to address bottlenecks in production to enable faster delivery rates.

Mark Daly (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I now invite Ms Filipkova to make her opening statement.

Ms Lenka Filipkova:

I thank the committee for the invitation to this meeting and ask it to accept the apologies on behalf of Ms Riso, the Director General, who could not be here today. I will represent the European Commission at today’s meeting. I am the director responsible for the expenditure side of the European budget and the negotiations of the annual budgets between the European Parliament and the Council. I am accompanied by Mr. Christopher Galand, head of unit responsible for the implementation of the internal policies, Ms Rosa Garcia Calera from the directorate general for defence and Space and Mr. Carlos Arsuaga, who used to work in the directorate general office and is now working in the directorate general for budget.

Support to the defence industry is one of the areas where the EU budget has most evolved in the past five years and the war of aggression against Ukraine has further increased the need for the EU budget to expend in that area. The European Union has to adapt to the threatening security landscape by strengthening its strategic autonomy and stepping up its industry for defence readiness.

Let me recall that the member states’ armed forces have been tailored during the past decades to perform expeditionary, peacekeeping and-or peace enforcement missions. The planning and procurement of defence systems has been tailored according to this operational reality with the subsequent impact on the capacities and capabilities of the European defence industrial and technological base. The industry has not developed large production capacities and is seen as sub-scale for today’s challenge. It is also a very scattered industry with national producers supplying domestic armed forces. It did not go through the consolidation process we have seen in other industrial sectors.

Since 2021, the EU budget is supporting the collaborative research and collaborative development of defence products by and between EU firms through the European Defence Fund programme. It encourages the defence industry firms to work together instead of developing separately the same costly products. It is a programme with a seven-year budget of more than €7 billion. The member states have recently decided to reinforce it with €1.5 billion in the framework of the mid-term review of the multiannual financial framework, MFF, for 2021 to 2027.

Besides the European Defence Fund, the EU set up in record time in 2023 two short-term defence initiatives to strengthen the European defence technological and industrial base after the invasion of Ukraine. These are ASAP, which supports the scaling up of production capacity of industry, and EDIRPA, which supports joint procurement by member states.

The European Council called on the Commission on 20 March 2023 to urgently deliver ammunition to Ukraine and refill member states' stocks. In response, the Commission proposed ASAP in May 2023. It was adopted in urgent procedure by July of the same year. The total budget of this short-term instrument is €500 million - €157 million in 2023 and €343 million in 2024. It is fully financed from the amounts initially earmarked for EDIRPA and was put in reserve pending the adoption of the legal basis. In line with the legislative proposal for ASAP, the draft amending budget 3/2023 created a new budgetary structure for ASAP and put the corresponding amounts still in reserve to the new budget lines for EDIRPA.

Once the ASAP legal base was adopted on 20 July 2023 and the amending budget No. 3 of 2023 was adopted on 18 October, the corresponding amounts were made available. The amounts for 2024 were included in the amending letter to the draft budget 2024, which was finally adopted on 22 November for the respective appropriations of 2024. As such, the draft amending budget No. 3 of 2023 and the budget 2024 were merely translating into the budget the decision of the co-legislators to set up the ASAP programme with a total budget of €500 million over two years. This draft amending budget is mechanical and does not present any new discretionary decision not yet discussed at the time of the agreement on ASAP.

Before I conclude, I will add some information on the state of play of the implementation of ASAP. The implementation of ASAP is progressing very quickly. In October 2023, we launched one single call for proposals and the results of the evaluations were announced in March 2024 for the total available envelope. The grants for the awarded projects will start to be signed in June 2024. On that basis, up to 35% pre-financing will be paid. In order to do so, in April, we transferred an amount of €100 million in payment appropriations from EDIRPA to ASAP. This was possible because the processing of the calls for EDIRPA is taking some more time, which is also due to the fact that the legal base was adopted later.

I thank members for their attention. We are happy to take any questions.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I thank the witnesses for their statements. They are adding to our knowledge all of the time. We have a job to do in terms of scrutiny of what has happened and having as much transparency for taxpayers as possible. Sinn Féin recognises EU member states’ right to provide military support to a nation that has been invaded and we fully recognise Ukraine's right to defend itself. However, I am extremely concerned about the use of the EU budget for defence and military purposes, which is prohibited under EU law, and I oppose the EU budget subsidising an arms industry that is making bumper profits, as we heard in an earlier session. It is against Irish law for taxpayers’ money to go to any company that is producing cluster munitions and I oppose that. Most of all, I oppose any taxpayers’ money being used to subsidise the arms companies that are arming Israel.

How much of Irish taxpayers’ money goes to subsidising the European arms industry through the European Defence Fund and the support of ammunition production? Is there any other avenue that the members of this committee might not be aware of? I ask that of each of the witnesses.

Mr. Gerald Angley:

The kind of information we can provide relates to our contributions to the EU budget as a whole. The way it works is that there is a principle of universality with regard to the EU budget of €1.2 trillion over seven years from 2021 to 2027. We make a contribution to the entire budget and the principle of universality means we contribute to all of it and we cannot pick and choose which bits we contribute to or rule ourselves out of one particular element. That is based on something we have discussed at this committee before, the own-resources system, which is the rules and mechanisms by which member states make their contributions. As members may be aware, we have become a net contributor to the European budget since 2013 due to the growth of our economy over the 50 years of our membership.

To be specific, we have calculated internally that if we extracted the ASAP fund, which is €500 million, and then applied the contribution key that is drawn from us, the rough figure of our contribution to this €500 million over the two years it applies is roughly €12 million. To put things in perspective in terms of the size of the security and defence element and the European Defence Fund within the EU budget, for the benefit of the committee's knowledge, the EU budget agreed to was some €1.2 trillion. The security and defence heading is the smallest heading of the seven in the multi-annual financial framework, and defence is only part of that. When we take the defence heading within that, it is less than 1% of the total EU budget over the seven years. If we take the ASAP element of €500 million, it is 0.04% of the total EU budget. I hope that helps the Deputy.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The fact is we are subsidising the European arms industry but we do not know exactly by how much.

Mr. Gerald Angley:

All I can give is the figures which we prepared for this hearing. If we mapped onto just one programme in the EU budget what we contribute to the whole EU budget, the figure is €12 million.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It would be true to say that we are subsidising the European arms industry.

Mr. Gerald Angley:

As I said at the outset, the policy decisions are taken and there are budget lines attached to that, and we look at the overall budgetary picture for that. The purpose is better explained by my colleague from the Department of Defence in terms of where the money goes.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am trying to make sense of it.

Mr. Dermot Ryan:

I have very little to add to what Mr. Angley has said in terms of the source of the funding. My responsibility relates to the background and the purpose of the regulation. The Department of Defence is not involved in the discussions around the budgetary aspects other than the specific instrument itself and the €500 million that was agreed. One has to go back to the genesis of this regulation, which is how the European Union could assist Ukraine in the defence of its territory in the face of illegal aggression from Russia. As the Deputy knows, member states and many other countries outside of the EU have been providing equipment to Ukraine essentially from their own inventories. As I said in my opening statement, that led to a significant reduction in the stocks of member states, both for their own use and for further support for Ukraine. The European Council agreed there should be a three-track approach to supporting Ukraine, of which the ASAP regulation is just one track. The regulation does exactly as I outlined in my opening statement, which is to support the industry in the increased production of weapons and ammunition to replenish member states' stocks, both for their own domestic use and also in providing further support for Ukraine.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Is that on top of the €6.2 million that was paid in 2023 in off-budget funding for the European Peace Facility?

Mr. Dermot Ryan:

The European Peace Facility is completely different. As was outlined in earlier contributions, the European Peace Facility is an off-budget instrument.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Is it off-budget because of Article 41.2, which excludes expenditure with defence and military implications?

Mr. Dermot Ryan:

I think that is the background. My colleagues from the European Commission might be in a better position to assist the Deputy in that respect.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I ask Ms Filipkova to confirm that the reason the so-called peace facility is off-budget is because Article 41.2 of the EU treaty excludes expenditure with defence or military implications. Is that the rationale for it?

Ms Lenka Filipkova:

Absolutely. In compliance with Article 41.2 of the Treaty on European Union, the Union budget does not fund expenditure arising from operations having military or defence implications under the Common Foreign and Security Policy. The Union budget provides support for the EU defence technological and industrial base under Article 173 of the treaty by incentivising the supply side, for example, research and development or upgrades of production facilities, and the demand side, for example, procurement co-operation between EU member states. Any expenditure for military or defence operations is out of the scope of these industrial support programmes and any such expenditure, if necessary, has to be funded in accordance with Article 41 through off-budget instruments such as the European Peace Facility.

Indeed, the European Peace Facility is over budget because it finances directly military and defence operations.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I thank Ms Filipkova for that clarification. What guarantees are in place that all additional production is either provided to Ukraine or to national stockpiles? What safeguards are in place to ensure that all supported production does not get sold outside the EU?

Mr. Dermot Ryan:

On the first point about the funding that is being provided, the Deputy will be aware there was a call earlier this year and 31 companies were successful. These 31 companies will be grant aided and are based in 15 different member states, none of which is Ireland, across the five areas for which the European Commission call was launched earlier in the year. Those applications have been approved and, as I said in my opening statement, the grant agreements will be confirmed with the European Commission this month or next month.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It is my understanding that the European arms industry provides Israel with about one third of its weapons. Would that be right?

Mr. Dermot Ryan:

I have no idea.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Are the same companies that are supplying Israel with arms to carry out genocide able to receive, or are they currently receiving, subsidies from the EU?

Mr. Dermot Ryan:

I have no idea.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Is there somebody here who could answer that?

Mr. Dermot Ryan:

None of these companies are Irish-based. My competence relates to the companies that are being granted aided and I am afraid I do not have information on that point.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Perhaps our friends from the EU can answer that question. It is an important question.

Ms Lenka Filipkova:

The list of the companies that actually won this grant, or will be awarded the grant, is published online. We can submit this to the committee to provide an overview of the amounts, the companies and the purpose of these subsidies, which are clearly to increase production capacities but not to actually produce.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

We should know whether the same companies that are supplying Israel with arms to carry out genocide are either able to receive or currently receiving subsidies from the EU? Is there anything that precludes companies that are supplying to Israel from availing of these subsidies that we contribute to?

Ms Lenka Filipkova:

Personally, I am a budgetary person and I have no idea which companies are supplying anything to Israel or anywhere else. I am sure we have a public financial transparency report where one can see which company receives funding. If one knows the names of the companies, one can check whether they receive subsidies.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am not asking about specific companies. In all of the Commission's mechanisms, what is there to exclude companies that are supplying weapons to Israel from availing of EU funding to which Irish taxpayers are contributing? Rather than individual companies, what is there to make sure that it does not happen? Is there anything there to make sure it does not happen?

Ms Lenka Filipkova:

Again, we are discussing this specific ASAP regulation, which was released before the situation in Gaza. There were clear requirements for the companies applying for these grants. Whether there is a follow-up on whether these companies can supply, or how and to whom they can sell the products, are the decisions of national authorities. It is not part of this specific support scheme.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Okay. I will take it that it is the case Irish taxpayers are subsidising companies that are arming Israel. Does anybody have anything to the contrary?

Mr. Dermot Ryan:

I am not sure that one could necessarily draw that conclusion. It is important just to focus back on the agenda, which is really around this ASAP regulation and the budgetary provisions for it. I mentioned in my opening statement the five areas that were identified under this regulation. A defence joint procurement task force was established when this regulation was enacted and the Commission undertook a mapping exercise to identify and monitor the availability of ammunition and missiles and identify the gaps as it saw them in the depletion of stocks because of member states' contributions to Ukraine. The purpose of this particular instrument is to facilitate member states in the replenishment of those stocks either for their own use or for provision of further support to Ukraine. That is the purpose-----

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That is important.

Mr. Dermot Ryan:

It is.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It is important that we know what mechanisms there are to stop it going above and beyond that. People want to know. People who are contributing to this, including the constituents I represent in Mayo, would want to know that. I am just seeking clarity on it. It is a key point. Are companies that produce cluster munitions able to receive, or are they currently receiving, subsidies?

Mr. Dermot Ryan:

If it is helpful, the five areas for which funding is provided under this instrument are: explosives with a projected portfolio budget of €224 million; powder, at €248 million; shells, at €90 million; missiles, at €50 million; and testing and reconditioning certification of about €2 million. They are the purposes for which this regulation is in place. It is in place, as Commission colleagues and I have said, for two years. It will come to an end in 2025 once this money has been expended on those areas and those stocks have been replenished.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The witnesses cannot answer my question on the other part around whether subsidies are being received from the EU by companies that are supplying arms to Israel.

Mr. Dermot Ryan:

I can tell the Deputy the purpose for which this regulation was enacted last July. It long predates the current conflict in Gaza that commenced on 7 October. This specific measure has no specific reference to the ongoing conflict in Gaza and Israel.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am trying to decipher how it is that Irish taxpayers funding cluster munitions is compatible with domestic law. The witnesses would know better than me if it is compatible.

Mr. Dermot Ryan:

When this regulation was being negotiated last year one of the things that we looked at, along with the Department of Finance and the Department of Enterprise, Trade and Employment, was the legal basis under which the regulation was being proposed. We sought legal advice and all the advice, including an opinion offered by the European Council's legal service, was to the effect that the legal basis on which the regulation was based was appropriate.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Mr. Ryan is saying that it is compatible with domestic law according to the legal advice that was received.

Mr. Dermot Ryan:

I am certainly saying it is compatible with EU law.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Obviously it must be compliant with domestic law, however.

Mr. Dermot Ryan:

Our concern in the negotiation of the regulation itself, which again was before these specific areas of expenditure were identified, was to satisfy ourselves that there was an appropriate legal basis in European law, and we did so.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

In this committee we are concerned with domestic law as well as EU law. I am seeking to be helpful in order that people have clarity in their own minds as to where their money is going and what it is going towards. I will pass over to my colleague.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Deputy. It is coming up to half-time and we must finish at 4 p.m.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

To follow up on a couple of these pieces, the cluster-munitions Act explicitly states that Ireland bans direct or indirect investment of public moneys in companies which produce "munitions". To clarify, I thought it was just companies which produced "cluster munitions". It is not limited to munitions companies which produce cluster bombs. It is part of Ireland's very proud record in relation to disarmament that we have an explicit provision under sections 13 and 14 of the Cluster Munitions and Anti-Personnel Mines Act, which prohibit the direct or indirect investment of public moneys in companies that produce munitions. How is it compatible that we are effectively contributing an amount estimated to be about €12 million directly towards the production of munitions? To be very clear, the procurement measure has been talked about but what we are looking at here is the manufacture of weapons and the production capacity. I want to focus on the cluster munitions piece and then I might come back on the European legal basis, as I would like more detail on that. First, could we discuss the Irish legal basis?

Mr. Dermot Ryan:

I am afraid I am not an expert on cluster munitions or the cluster munitions legislation so I cannot help the Senator with that question specifically.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

This is one of the issues we signalled and would have expected answers to. It is a concern in itself if decisions relating to spending public money - €12 million may seem a small sum to Mr. Ryan but it is quite significant to a lot of people - in a way that goes against our own national law. In that context, and I am going back to Article 41.1, why was an evaluation not made, for example, for Ireland to exercise its rights under Article 31.1 to choose to opt out of this measure?

Mr. Dermot Ryan:

I do not recall there being any consideration of Ireland opting out of this measure.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

That seems to be something of an oversight when we are looking at the situation. The then Taoiseach was very clear that Ireland would only be providing non-lethal support for military action in Ukraine. It should be pointed out that it seems that this funding is going directly to industry. This is not the same as when individual countries may have chosen to transfer arms and so forth. Ireland was very explicit that we would provide non-lethal support. Explosives, shells and missiles are clearly lethal.

Mr. Dermot Ryan:

Yes, they are.

Ms Alice-Mary Higgins:

We are directing public money towards the manufacture of lethal weapons with the stated intention as to where they might be used, which is in itself a concern, but without a guarantee as to where they might be used. That is a problem either way. It is the case that we are contributing to manufacture of lethal weapons, as Mr. Ryan has confirmed.

Mr. Dermot Ryan:

That goes back to the point that Mr. Angley made earlier about the universality of the European budget to which we contribute. The €12 million is an extrapolation; we are not contributing €12 million to this particular measure. That is an extrapolation, if I understand correctly, of the extent of our net contribution to the EU budget since Ireland became an EU contributor.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

To go back to the European legal basis, I might go to Mr. Ryan first and then ask the Commission its understanding of the legal basis.

Mr. Dermot Ryan:

As I said, at the negotiation stage, all of the Irish Government Departments, which were involved, assessed the legal basis on which the regulation was based and satisfied themselves, based on the legal advice available, that the EU legal basis was sound.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

What is the legal basis?

Mr. Dermot Ryan:

I will get it for the Senator.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I might ask the Commission-----

Mr. Dermot Ryan:

There are two legal bass. There is Article 117.3 of the TFEU, which concerns the competitiveness of the Union's industry and Article 114 of the TFEU, which concerns the establishment and functioning of the internal market. That is why, as was stated earlier, that this is an industrial measure. The legal basis on which this measure is based is an industrial provision of the treaty.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Article 42.2 of TFEU explicitly states that the Union budget cannot be deployed for operations, which have military or defence implications.

Mr. Dermot Ryan:

The purpose of this measure is to support industry in production. It is not in the provision of these weapons.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Mr. Ryan has explicitly stated that the purpose has been to supply arms to a conflict.

Mr. Dermot Ryan:

It is an industrial measure designed to support the industry in the production and replenishment of stocks for member states which wish to replenish those stocks.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Effectively, if we have an increase in the arms that are being manufactured, that has military and defence implications, surely.

Mr. Dermot Ryan:

Yes.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

It has military or defence implications in which case it is in breach of Article 41.2. It is not the case that anything which is an industry can get money. I would like if the representatives of the Commission could elaborate on how this measure is compatible with Article 41.2, if it is coming from the general budget?

Ms Lenka Filipkova:

As Mr. Ryan explained and as I mentioned before, this is not a measure this is adopted under Article 41.2. It is a measure adopted within the framework of Article 173. It is linked to industrial policy. In accordance with Article 173 of the treaty, the Union is to contribute to the achievement of the objective of speeding up the adjustment of the industry through structural changes.

In this particular case, it is a different industry. We are supporting the industry, not the final production.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

It is not a matter of picking a single article and saying we are manufacturing under this. It must be tested against the legality in terms of other articles. Is Ms Filipkova suggesting that the manufacture of explosives, shells and missiles does not have military or defence implications?

Ms Lenka Filipkova:

No. The support under ASAP is meant to support the production capacity of these companies. The production itself and what they use that production for in the defence of member states and the European Union is a different matter. Article 41.2 clearly states that this is excluded under the measures of the Common Foreign and Security Policy. We are not here under the framework of the Common Foreign and Security Policy; we are here under the framework of the industrial policy of the EU. This was checked and adapted in the ordinary legislative procedures, so it passed by the legal services of the Commission, the Council and the European Parliament and everyone was reassured of the legality of this proposal.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I am not reassured. Perhaps Ms Filipkova might talk about the Council. She mentioned that the European Peace Facility is off-budget precisely because it has military or defence implications and yet she is suggesting that these measures, in terms of manufactured weapons, do not have military or defence implications, or somehow can be dealt with separately. In relation to the Council decision, am I right that that was a qualified majority vote?

Ms Lenka Filipkova:

Indeed, it was adopted through the ordinary legislative procedure which means a qualified majority in the Council, at the request of the European Council, which are usually adopted unanimously.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

We have read part of Article 42.2 but we have not read the full piece and I think it is important here. It is very clear that there should be no expenditure arising from operations having military or defence implications expect in cases where the Council acting unanimously decides otherwise.

For a decision that had military or defence implications, which clearly the manufacture of weaponry has, particularly the manufacture of weaponry where the logic used is in relation to a named conflict, why was a unanimous decision-making process not used, as was the case in other instances? Why was qualified majority voting, QMV, used in that situation?

Ms Lenka Filipkova:

I repeat that we are here in the framework of Article 173. For the industrial policy, the prescribed legislative procedure is ordinary legislative procedure. The Council had the right to decide and judge. The European Parliament and all these institutions agreed that, according to the European legislation, this treaty base was correct and this is how the measures were constructed. It is not direct production or sending of ammunition; it is helping the industry ramp up its capacities so that it can eventually produce. The support itself is not for the production but for the ramping up the capacity under Article 173.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

It is very clear, to be honest, that in regard to capacity to produce and production, effectively one is supporting production in that context. This is a legally questionable interpretation and I think it is one that should perhaps be revisited in that context. As the witness said, the Commission is supporting these companies in their capacity to manufacture weapons. It is not like procurement where weapons are purchased and, therefore, there is control. The Commission is supporting these companies without specifying that they will produce certain weapons or what kinds of weapons they will produce or not produce and, as I understand it, without having any specifications in terms of who they will sell to or how they will sell these weapons. Is that correct? There is a simply a support for production capacity of different kinds of weapons but that it does not come with specifications around how those companies will operate.

In terms of the idea that these companies are struggling to produce, it is very notable that at least five of the companies which will benefit from the scheme are German companies. As I understand it, Germany has increased its export of arms from just over €30 million to Israel in 2022 to over €300 million in arms exports to Israel last year. We know they are certainly able to ramp up production and sales in that context. Are these five German companies also engaged in those exports? There is also the economic question of why on earth they would possibly need our taxpayers' money, but more importantly there is the moral question. Is it the case that we do not have any guarantee as to what the companies may do in terms of their production and who they may sell to?

Ms Lenka Filipkova:

I think the guarantees on how the production of these companies is done and to whom it is done are under a different legal framework. It is not my competence and it is not the competence of the Commission, but there are clear rules before one can export ammunition. I cannot say whether one or another of the German companies sells or provides ammunition to whatever country. There are different rules and different conditions. I am not the right person to say so. It is a national competence and there are clear rules where the ammunition can be sold.

As Mr. Ryan clearly explained, this Act was adopted at the call of the European Council, and all member states called for it, to support European production to make sure that we can defend ourselves in view of the unjustified aggression of Russia against Ukraine.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I have confirmation, although I understand I am not allowed to name individual companies, that one of the companies which is benefitting from the scheme is indeed exporting tank shells to Israel. That is from reports in Der Spiegel. We know that we are effectively routing an estimated €12 million of Irish money and claiming that it is an industrial measure, while explicitly kind of floating the purposes of who we think these weapons should be used on. That is in itself problematic, but we are simply pouring money into companies which are pouring out weapons. That is effectively it. When Ms Filipkova says an industrial support measure, she is intrinsically saying that there is no caveat in terms of who they sell to.

Can I ask the Commission whether there been consideration of national law and the implications for nation law? Did Ireland's neutrality and the implications for Irish neutrality come up in the course of the process of considering the potential implications of this new measure?

Ms Lenka Filipkova:

Just to be clear, our responsibility here was to propose the amending budget and to include the amount that was agreed in the legislative process in the budget, so that the legislative measure could be adopted. There are procedures under the legislative process where Ireland, as well as all the other member states, had a say. I am sure Mr. Ryan or Mr. Angley can explain the position of Ireland, but this was assessed within the EU framework. We, at the Commission, reacted to the call from the European Council.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I understand that some of the moneys have been a redirection of moneys. I think the witness mentioned €171 million has been redirected from another area of defence, the EDI. Where has the remaining, over €300 million, been redirected from, or is it new money?

Ms Lenka Filipkova:

Originally, and I think it was also mentioned in one of the opening statements, there was a proposal for the joint procurement instrument, for EDIRPA, of about €800 million, financed from the existing availabilities, margins of heading five and the special instruments that existed in the multi-annual financial framework. Later on, there was a request from the European Council to act and help the industry to ramp up production capacity and part of this €800 million was transferred into this ASAP proposal. The remaining €300 million remained to be implemented by the joint procurement.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Will the €300 million come from the general budget? All of the money will come from the general budget, as I understand it. Is that the case?

Ms Lenka Filipkova:

All the money will come from the general budget. All the original €800 million was for EDIRPA. It was then decided to use €500 million of this €800 million for the ASAP. When the ASAP was adopted, the money was transferred from the original purpose of EDIRPA. The remaining €300 million of the originally planned €800 million remained on the budget line for EDIRPA and will be implemented next year.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Just on cluster munitions, I have asked Mr. Ryan about it. It is disappointing that there does not seem to be commentary on Irish law. Is it the practice to check for compatibility with our national law in respect of budgetary decisions that have, was stated, military or defence implications? I know Mr. Fitzgerald was in the room and maybe he would like to comment. As I understand it, he was present in the discussions.

Mr. Dermot Ryan:

This proposal was presented to the Joint Committee on Foreign Affairs and Defence before the negotiations concluded last year. The Oireachtas had scrutiny of this proposal in June of last year. I just want to make that point because it is an important one, that there was prior Oireachtas scrutiny of the proposal before its enactment. Second, in the course of the negotiations, Ireland together with Austria and Malta, proposed successfully that a new recycle be included in the regulation. This was to the effect that this regulation shall apply without prejudice to the specific character of the security and defence policy of certain member states. In some ways, that answers the question raised in regard to neutrality. That is clearly a reflection of that.

With regard to the European Peace Facility, which Senator Higgins mentioned also, she is aware that our funding goes in its totality to non-lethal equipment.

We use a construction there, called constructive abstentionism, to ensure that our commitment in the programme for Government on the European Peace Facility is fulfilled.

Regarding the Council Legal Service opinion - again I am sorry if I am repeating myself - a clear distinction is made between the appropriate legal basis, whether it is Article 142. It is, as colleagues in DG BUDG have also confirmed, that the legal basis was Articles 173.3 and 114. They were the legal bases proposed by the Commission. Those legal bases were assessed by all the Government Departments involved and they were satisfied that that was an appropriate legal basis for this particular instrument. That view was shared, as my colleague has said, by the legal services of the three institutions. It is fair to say that Ireland insisted that this regulation be coherent with the security and defence policy of the three neutral countries, namely, Ireland, Austria and Malta.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

How is it coherent? Again-----

Mr. Dermot Ryan:

I am not going to get into a discussion about neutrality because I do not think it is appropriate to this discussion.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

With great respect to Mr. Ryan, it is appropriate because the question is on how it is coherent for us to be engaged in supporting the manufacturing of weaponry and arms, given that there is an explicit prohibition in the cluster munitions legislation on the State investing in the manufacture of explosives and munitions, and that we have a status of neutrality which Mr. Ryan would acknowledge. It strikes me that there are two points. There is the question of which aspect in terms of the multi-annual financial framework and of whether it has a legal basis for including this decision within it, and I still disagree with the Commission. There is then a separate question for Ireland. Why would Ireland, if we were concerned, simply say this does not count? It seems that caveat simply says this does not count when it has real implications. These explosives are going to land on somebody. Some of these weapons, as we now know, are definitely going to Israel, for example, from some of the manufacturers which are benefitting. On simply saying that it does not count, was there a consideration from Ireland to say we do not believe this should be done through the multi-annual financial framework, where it is difficult for us, but we would prefer if it was, for example, done as the European Peace Facility was done, as an off-budget measure? Did Ireland propose that this should be an off-budget measure, rather than be part of the multi-annual financial framework? Was that a proposal made by Ireland? Mr. Angley might comment.

Mr. Gerald Angley:

I am not aware whether there was a proposal made by Ireland but one point that is relevant here is the European Defence Fund, which is in the EU budget, and has that legal basis of Article 173, focused on industry. As I understand it, the ASAP proposal mirrors that as a concerned industrial matter. That is what I am aware of. That is the reason the European Defence Fund is within the multi-annual financial framework and it is the reason this ASAP is within the multi-annual financial framework. As my colleague from the Department of Defence outlined, we follow this closely, although we look at the numbers more than the policy behind it. We do follow each item closely and understand that there are layers of legal checking that go through the European Parliament process and the Council process. Even when the Commission makes its proposals, it really tests the legality of its use. The sincere belief across the board, which was accepted by other military neutral states, was that this was the correct legal basis for ASAP. That is why it falls into the budget.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

With the defence fund and others, there is a separate decision-making, as I outlined. There is a process whereby one can decide to have a separate------

Mr. Gerald Angley:

That is the European Peace Facility.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

No, but within the European Defence Fund, it is not simply the same because this process was decided by QMV, as I understand it, in quite a hurry. Going back to the Commission, there is just one other point. The Act, as I understand it, referred to the urgency and the exceptional circumstances of the Ukraine war. Again, that does not seem to be an industrial measure. That is clearly a defence or a foreign affairs policy area. It refers to the Ukraine war to permit member states to derogate from norms on labour law, environmental standards and public contracts, encouraging them to use defence-related exemptions to mitigate possible obstacles. Perhaps the Commission witness might comment on both the rapidity of this Act and its passing, and whether it is the case that in that Act, there was a suggestion that member states might derogate from other norms in relation to labour law, environmental standards and public contracts. Certainly, in the case of Ireland, we seem to be derogating from our cluster munitions legislation, not that there is a capacity to derogate, to be very clear. That is for the Commission.

Ms Lenka Filipkova:

I cannot comment on derogation from any national law. It is not my role and I would assume that, except for these specific cases, there are no other derogations from national laws. On the urgency, we were asked to propose an Act to react quickly to the situation in our defence industry and to the quickly depleting stock, after providing support to Ukraine. We proposed this in May and it was adopted by both the Council and the Parliament in the ordinary legislative procedure in July. We have progressed then with the adoption of the work programme that was adopted in comitology procedures and after consultation with the member states in the Council in October 2023. The call for proposals was issued at the same time. The proposals were submitted and selected and the award of the funding will be signed in June, so nothing has been spent yet. It is all similarly controlled in the urgency procedure of the SCC, but even with the urgency procedure, it takes a year before we sign the contracts and choose the correct companies that would fit within the framework of this specific law, which was clearly to support the industry.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

One of the other speakers from the Commission wishes to come in.

Mr. Christophe Galand:

Most of the multi-annual financial framework programme is for seven years. The multi-annual financial framework is from 2021 to 2027. Here we are faced with something very atypical, which is a programme that is proposed for only two years. It is extremely short term to help the industry at the stage where there is an acceleration and we have to have a structural adjustment which is completely different from what it has experienced in terms of the demand in the last 40 years, as was explained at the beginning. It is a short-term instrument adopted rapidly.

In the meantime, after the expiry of this instrument in July 2025, we have no proposal nor structural instrument and the co-legislator, which is the EDIP, has indicated that it will assess it through the normal procedure. There will be time for this debate and scrutiny for the new structural instrument, which has been proposed by Commission, and which will replace ASAP and EDIRPA which are two short-term instruments to deal with an extraordinary situation.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I will pass on to Deputy Conway-Walsh and then I have one last point after that.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Sorry, I see a vote has been called and I will have to leave for that in the Dail.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We all have to leave.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Two questions that come to mind, which we have already discussed, are: how can we be in this situation where Irish law explicitly prohibits the funding of any factory that produces cluster munitions, and not just direct funding of the production of cluster munitions, and that we end up in this situation where taxpayers' money is being used towards this? The second question is: why on earth would we support an industry making extraordinary profits, with no control over who the end user is or what it is used for?

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We have to conclude now.

Rose Conway-Walsh (Mayo, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

We need to make a submission to the committee to answer those questions and many of the others that were not-----

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Indeed, and it is any munitions------

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

There is a vote in the Dáil. Could I get a very quick response from Mr. Ryan?

Mr. Dermot Ryan:

The question asked was whether there is any control over this measure. The Commission is assisted by a programme committee composed of representatives of the member states. This committee contributes to ensuring appropriate financial governance for the expenditure under this instrument. It is chaired by the Commission. The committee convenes regularly to discuss the work programme and the actions to be carried out under the instrument. To date, six meetings of the ASAP programme committee have been held. Furthermore, the committee will enable member states to oversee the Commission's work and to provide opinion when required.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Mr. Ryan.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I know we are walking out the door, but I would be happy to get the reply in writing subsequently from the Commission.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

If there is anything else it can be provided in writing.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

If there is some revision of the question of supporting manufacture when we have seen a tenfold export-----

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Senator.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Clearly there is not a capacity issue in German industry at the moment.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

That concludes today's meeting and we can follow it up with written responses. I thank the witnesses and the members for their engagement.