The discussion around European Defence integration is high in the agenda and Member States are also discussing the legal basis of such a development. The Lisbon Treaty provides many opportunities for increased defence cooperation, and the majority of the abovementioned articles have never been invoked. More precisely, article 31§1 “Constructive Abstention” and article 44§1 “A group of willing and capable Member States” have never been used since the adoption of the Lisbon Treaty. Besides, Article 42§7 “Mutual Defence Clause” has only been invoked once by France in 2015 after the terrorist attacks.
Treaty of the European Union (TEU)
Article 31§1 “Constructive Abstention”
“When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union”.
Today, political parties, experts and governments are discussing on whether unanimity at the European Council in the domain of foreign policy should be abolished or not. Constructive abstention represents an alternative to both unanimity and qualified majority.
Article 42§7 “Mutual Defence Clause”
“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”.
EU’s article 42§7 is often being seen as similar to NATO’s article 5 “Collective Defence”.
Article 44§1 “A group of willing and capable Member States”
“Within the framework of the decisions adopted in accordance with Article 43, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task”.
According to article 43§1 these tasks can include:
- disarmament operations
- humanitarian and rescue operations
- military advice and assistance
- conflict prevention and peace-keeping missions
- tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation
Treaty on the Functioning of the European Union (TFEU)
Article 222§1, §2 “Solidarity Clause”
“1. 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. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or manmade disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council”.