On 20 April, the Swedish defence minister Karin Enström stated in an interview with the EU observer that Sweden is not in the NATO (the North Atlantic Treaty Organization) partly because the EU treaty contains its own security guarantee, a statement that has been both criticized and welcomed by scholars and politicians in the EU and hence have raised the question of the EU security and defence policy. Article 42(7) Treaty of European Union (TEU) states that:
If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.
Enström advocates that “If you really read it, the Lisbon Treaty says you must support your EU neighbours with all the necessary means.” She seems to have the view that Article 42(7) TEU, though not identical to Article 5 of the North Atlantic Treaty, fulfils almost the same objectives. According to Article 5 an armed attack against one of the NATO countries is to be considered as an attack against all of them and that the members are to take “such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area”.
Contrary to the NATO the EU is not a military alliance, however the Treaty of Lisbon introduced new changes to the EU’s Common Foreign and Security Policy(CFSP). Articles 42-6 TEU are part of the EU’s Common Security and Defence Policy (CSDP) which emanates from the CFSP in the TEU. One aim of the CFSP is to eventually reach a common European defence in accordance with article 24(1) TEU which states that the Unions competence regarding common foreign and security policy covers “all areas and all questions relation to the Unions security including the progressive framing of a common defence policy that might lead to a common defence” (see summary of the legislation concerning the CFSP).
According Damian Chalmers and Giorgio Monti in their treatise on European Union Law (2010, 2nd ed., p. 670-1), the so-called mutual assistance clause in article 42(7) TEU, from which the Swedish minister draws her conclusion, should not equate the EU with a military alliance such as the NATO. They argue that the military tasks referred to in the TEU are primarily limited to establishing a more “liberal world”. Hence, the tasks referred to in article 42(1) and 43(1) are primarily such as humanitarian intervention, conflict prevention and peacekeeping. Therefore, according to Chalmers and Monti they are not meant to establish a common defence for the EU.
However if one reads articles 42(1) and 43(1), one can clearly see that the tasks referred to are in fact non-exhaustive. More importantly article 42(7) TEU specifically refers to article 51 of the United Nation Charter. Article 51 of the United Nation Charter provides that it is the inherent right of every state to resort to collective self-defense if an armed attack occurs. That provision is also the very foundation for states military cooperation in the NATO and article 5 of the North Atlantic Treaty, mentioned above. Contrary to what Chalmers and Monti suggests, article 42(7) TEU appears to emphasize more than merely an obligation for Member States to provide aid. The provision requires Member States to take all necessary measures in accordance with article 51 United Nation Charter. Moreover, as Karin Enström stated: “It’s really difficult to think that if one [EU] country … was affected by a catastrophe or an attack, it would not affect all the other EU countries. It would be an act of self-interest to try to stabilise the situation.”
Another provision that deserves to be mentioned is article 222 Treaty of the Functioning of the European Union (TFEU), which is commonly known as the solidarity clause. According to the solidarity clause the Union and its Member States ”shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster”. Read in conjunction with article 42(7) TEU one could say that the provisions are governing two different situations. The solidarity clause is meant to govern internal disturbances and disasters whilst the mutual assistance clause governs situations of inter-state conflicts. This shows that one could not limit the scope of article 42(7) TEU to the tasks mentioned by Chalmers and Monti since providing aid is inherent in article 222 TFEU which is completely separate from article 42(7) TEU and as mentioned the two provisions fulfills different aims.
However, there are still restrictions to the mutual assistance clause contained in article 42(7) TEU. Two main restrictions are presented in the provision itself. First of all, the clause shall not “prejudice the specific character of the security and defence policy of certain Member States”. For example, if a state by tradition has remained neutral in situations of armed conflicts, such as Sweden. Secondly, the Clause shall not affect Member States commitments under their NATO obligations. In this regard it ought to be mentioned that only Sweden, Austria, Cyprus, Finland, Ireland and Malta are not members of the NATO whilst members of the Union. Regarding the restrictions, one could say that Sweden has a win-win situation. It has traditionally been neutral in cases of armed conflicts tracing back to the World Wars and it also has no commitments under the NATO. Theoretically, if an EU state comes under attack, then Sweden, by its policy of neutrality and non NATO commitment has no obligation to render aid or assistance under article 42(7). However, other states would be obligated by their EU commitments to render assistance to Sweden in case of armed attack.
Even though there is a mutual assistance clause in the TEU, there are still quite massive differences between the EU and the NATO. The primary difference is that while the NATO has unified command and control the EU at the most has the European Defence Agency (EDA). The main responsibility for the CSDP lies with the EU High Representative Catherine Ashton who also is the head of EDA. Article 42(3) provides that the EDA shall e.g. identify operational acquirements in regard to development, research, acquisitions and armaments etc. The NATO’s tasks on the other hand include the capability to collectively resort to military countermeasures. Thus, the tasks enjoyed by the EDA are quite substantially different from the military capabilities of the NATO. Enström also seems to have remarked upon this difference since she argues that it would be in the interest of the EU Member States if the EU had the capability of command and control (Interview with the EU observer). Sven Biscop has in an article also pointed out that, unlike the NATO, only 10 to 15 % of the EU armed forces are estimated to be deployable, which means that the defence provided within the EU is not as proactive as the NATO countries’ capabilities (see article here). However, like the NATO, the CSDP also includes military staff, although it is overall coordinated by the civilian Political and Security Committee (PSC) (see common security and defence policy summary).
Protocol No. 10, appended to the Lisbon Treaty, provides for a permanent structured cooperation between EU Member States in the defence sector. Participating Member States commit to develop their defence abilities and supply combat units for EU planned missions. This enhanced cooperation is however limited to actions outside the Union for peacekeeping, conflict prevention and strengthening of international security i.e. task for establishing a more liberal world such as discussed by Chalmers. However, as Biscop notices in his research paper:
“[the] adoption of the Solidarity Clause, allowing the use of CSDP within the territory of the Union, will help [….] to set directions for future CSDP operations. Mutual defence is another important addition. That leaves the required capabilities, in which area the Treaty introduces a new mechanism: Permanent Structured Cooperation in Defence. Unfortunately, PSCD features high among the provisions of the Lisbon Treaty that many EU Member States seem to have forgotten that they subscribed to” (see the research paper here at p. 3).
As Enström noticed in the interview, EU Member States have conducted joint operations outside the Union territory, however she did not mention the Protocol on Permanent Structured Cooperation.
Responding to the interview with the Swedish defence minister, Nick Witney, an expert at the ECFR think tank in London, indicates that article 42(7) is not sufficient to provide security guarantees for the EU Member States. The basis for his argumentation is mostly the lack of interest of the Member States due to prevailing economic issues and the lack of a sense of safety and strong national defence. He also points out the fact that the NATO has a quite active role within Europe which means that “even if NATO’s article 5 does not cover non-NATO-members and even if [article 42(7) TEU] is fanciful, there is an overriding solidarity of fact”. The fact that the NATO and the EU countries have joint interests would, according to Witney, lead to the situation that, if Sweden was attacked, not only EU Member States would provide protection to the country but also the NATO. As Witney formulates it “no one is going to attack Stockholm and think that British forces or other NATO forces will stand aside and watch” (see interview here).
Therefore, even though the EU has the CFSP and the CSDP, which includes a mutual defence clause, this might not at the moment be sufficient to enable states that are EU Member States and at the same time non-NATO members, such as Sweden, to have the same protection as the NATO countries solely on the basis of Article 42(7) TEU. However the Swedish defence minister makes a valid point by stating that the EU membership would provide for a security guarantee. In practice the main protection does however not follow from Article 42(7), but more on the basis of the close interaction between the NATO and the EU. A good example of this is the situation that occurred during Easter this year, when Russia conducted mock airstrikes against Sweden and the NATO through Denmark responded by sending out jet-fighters (see an article in Swedish Daily SVD available here, in Swedish). This clearly shows that, as Witney points out, there is solidarity of fact between the NATO and the Union as whole.
by Sofia Falkner and Aljosa Noga