The discussions on Article 42(7) as well as the practice so far – the invocation by France in 2015 – show that member states have different views on the scope and applicability of the article. Furthermore, the role of the EU institutions is unclear, in terms of decision-making and coordination if one or more member states would ask for assistance from ‘Brussels’. In this chapter the EU member states are grouped in different categories with regard to their views on the scope and applicability of Article 42(7), based on literature and interviews. Next, the chapter zooms in on the question of what role the EU institutions could play in the case of the invocation of Article 42(7) and what procedures might be needed for that purpose.
One of the reasons why the topic of Article 42(7) has been given limited attention in the run-up to the release of the draft text of the EU Strategic Compass in November 2021 is the divergency of views among the member states. Chapter 4 already alluded to this problem . Although it is always difficult to definitively categorise EU member states due to the specificity and nuance of national views, the different positions can roughly be grouped as follows:
‘NATO first’ adherents: this group is largely composed of Eastern European member states with the Baltic States and Poland forming the core. These countries view Article 42(7) as potentially undermining NATO’s Article 5, and fear that it might endanger the American security guarantee. Therefore, their objective is to minimise the role and applicability of Article 42(7) and, preferably, not to discuss the matter at all. They do not object to conducting exercises, as long as these remain hypothetical in nature. They see no need for additional guidance or handbooks beyond the Opinion of the Legal Service of the Council.
The neutral abstentionists: EU member states not belonging to NATO due to a long tradition of neutrality and non-alignment – Austria and Ireland in particular – are hesitant concerning Article 42(7) for different reasons. While they acknowledge that they have binding commitments in providing aid and assistance to EU member states when they invoke the article, they will rely on the explicit reference to their specific situation and will show reluctance when the request includes military means to be made available to the requesting EU member state(s). Their interests in keeping the article largely ‘off the table’ and out of policy discussions coincide with those of the abovementioned ‘NATO first’ adherents.
The legalists: this group is constituted by member states such as Germany which place particular emphasis on the legal dimension of Article 42(7), in particular concerning the definitions of ‘territory’ and the threshold for ‘armed aggression’. It should be noted that legal arguments can and will be used by these countries in the context of a political reluctance to engage in discussions on the bandwidth and ramifications of Article 42(7). There is a degree of overlap between the legalists and the ‘NATO first’ adherents. The former are less reluctant to engage in policy discussions on the operationalisation of Article 42(7) than the latter, but they will want to avoid any conceptual and legal inflation of the article’s key conditions.
The pragmatists: this group hosts a variety of member states that see some merit in Article 42(7) as a potential tool when facing a crisis directly affecting their national security, in particular because they may lack other options. In the case of Finland and Sweden – non-NATO members – it is the threat from Russia that influences their views on Article 42(7), even if they are realistic about the differences between what the EU can deliver compared to a military alliance such as NATO. They will also spearhead efforts to discuss the article’s applicability to hybrid threats, as further discussed by Teija Tiilikainen in Annex 2. For Cyprus and Greece, the challenge posed by Turkey is dominant; they particularly see the utility of this article as a way to put pressure on other EU member states to take their concerns seriously, even if they are acutely aware of the risks involved – as further discussed by Constantinos Adamides in Annex 3. Spain might well regard Article 42(7) as a useful ‘backup option’ to plug certain gaps in its other collective self-defence arrangements, in particular since the NATO Treaty does not apply to the Spanish enclaves in Morocco (Ceuta and Melilla). Outside those who see a direct potential benefit for themselves, there are many member states which can be placed in this group and which are in principle willing to consider the scope and applicability of the article in order to gain more clarity – or to prevent future surprises if member states invoke Article 42(7).
The principled proponents: France practically constitutes this group all by itself. For Paris, there are principled political reasons for the article’s existence, namely the aim of European strategic autonomy and of the EU becoming a geopolitical actor in its own right. It is an often held misunderstanding that France wants to replace NATO (Article 5) with the EU’s Article 42(7). As pointed out by Elie Perot in Annex 1, Paris still regards NATO as the preferred option for the security and defence of Europe. On the other hand, France sees Article 42(7) as a European alternative if NATO becomes dysfunctional and if one or more EU member states are facing serious threats to their national security. In that case, France remains of the opinion that other EU member states should assist the member state under attack, if needed with military means. Paris is acutely aware that it is in a minority position in this regard and realises that it needs to tread carefully, including during its presidency of the EU in early 2022. It is also concluding bilateral and regional security arrangements with specific countries that are particularly concerned, which may also help to avoid the calamitous scenario of one NATO ally invoking Article 42(7) against another.
At first glance there seems little common ground between those groups, but there are some commonalities. None of the EU member states wants to replace NATO (Article 5) with the EU (Article 42(7)) and turn the EU into a collective defence arrangement. This agreement in principle offers room for convergence, even between the two groups most apart from each other, the NATO first adherents and the principled proponents.
Secondly, there seems to be little or no objection to providing military aid and assistance in support of operations outside the EU, as was the case after the Bataclan attack in Paris in 2015 (‘backfilling’ for Operation Serval in Mali and for French contingents in Afghanistan and Iraq). Clearly, this offers scope for future situations, in particular if terrorist or other non-state attacks would force an EU member state to reduce the number of forces deployed in operations outside the EU in order to free up capacity for security operations at home. The mutual assistance clause serves in this context as yet another reminder of the need for closer EU defence cooperation.
Thirdly, if NATO considers non-military aggression such as serious cyberattacks as constituting a potential Article 5 situation, it is difficult to argue that the EU should exclude these under Article 42(7) – all the more because the EU may have a much larger role to play in mitigating the damage caused by cyberattacks. The name of the game here is not ‘NATO or the EU’, but how to arrange a sensible division of potential types of assistance that both organisations could deliver in cases of member states asking for help. The upcoming EU-NATO Declaration should address this topic of how to define the mutually reinforcing assistance to member states in case of cyberattacks.
The invocation of Article 42(7) by France in 2015 has created a precedent regarding the role of the Council, in which the topic was discussed but without any formal decision being taken. The Council Outcome even states that such a decision is not required at all: “Ministers expressed their unanimous and full support for France and their readiness to provide all the necessary aid and assistance. (…) No formal decision or conclusion by the Council will be required to implement article 42(7). The High Representative underlined that this is not a CSDP operation, but an activation of bilateral aid and assistance.” Hence, it demonstrated that (a) the member states unanimously held that support for France was warranted and thus would fulfil their legal obligations of assistance, (b) it was the common understanding among the EU member states that neither a formal Council decision nor Council Conclusions are needed to invoke Article 42(7), and (c) the High Representative holds the view that in the French case assistance was not considered as a CSDP operation but as bilateral aid and assistance.
The downside of this precedent is the risk that any member state invoking Article 42(7) could in theory enforce support from EU member states by introducing the invocation almost by surprise in the Council or perhaps even without bringing it to the Council’s attention. In practice, such faits accomplis are unlikely to occur; as further discussed in Annex 3, countries such as Cyprus that may consider invoking the article are acutely aware of the risks involved. The political reality within the EU is one of extensive consultations prior to major decisions, exactly in order to avoid unpleasant surprises. While a Council decision is, strictly speaking, not needed in order to ‘activate’ the article, member states will nonetheless strongly prefer to see their invocation supported and affirmed by a public statement from the Council. They therefore have an incentive to consult widely prior to ‘throwing the article on the table’, including within the Political and Security Committee. This makes regular exercises in this format even more important to align expectations on the scope and applicability of Article 42(7).
Connected to the question of the role of the Council is the issue of what role the supporting structures should play. Formally, the EU institutions have no role whatsoever regarding Article 42(7), unless they are requested to engage by the member state itself. It is the member state that is in the driving seat. In the 2015 case, France approached selected EU member states’ capitals to ask for aid and assistance, based on a list of needs defined by Paris. As already stated in this report, other member states might be looking for assistance in formulating the request and could ask the EU institutions to take up that role. Such coordination structures would have to be pre-arranged in order to be activated quickly if such a request would arrive from one or more capitals.
One of the tools that could potentially be used to support coordination efforts upon the invocation of Article 42(7) is the Integrated Political Crisis Response (IPCR) mechanism of the European Council. It can be activated by either the Presidency of the Council or a member state invoking Article 222 TFEU “to coordinate the political response to major cross sectoral and complex crises”. There are, however, a few downsides to using this mechanism. Firstly, the IPCR can only be activated by the Council Presidency, which sits uneasy with the member state-driven character of Article 42(7). Consequently, much will depend on which country holds the Presidency at the time of the crisis as well as its relations with the affected state. Secondly, the capabilities of the IPCR are relatively limited and designed for crises of a non-military nature. The IPCR mainly plays an anticipatory and coordinating role and has largely been called in to cope with crises within the EU, while responding to an armed attack originating from outside the EU that falls within the scope of Article 42(7) might require additional and more advanced capacities, in particular in foreign and defence policy.
Given the limitations of the IPCR, and depending on the characteristics of the request from the victim member state, it may be more suitable to create a Mutual Assistance Task Force (MATF) with a leading role for the EEAS. Some member states may harbour reservations in involving the European External Action Service in matters affecting their internal security. Highlighting the double-hatted post of the High Representative for Foreign Policy and the Vice-President of the Commission may offer a creative way out of this conundrum. He could delegate his role to the EEAS Deputy Secretary-General responsible for CSDP and Crisis Response (CSDP-CR), supported by other EEAS departments such as StratCom, Security and Defence Policy (SECDEFPOL) and the Integrated Approach for Security and Peace (ISP). The involvement of the Commission is a necessity as specialised EU Agencies (e.g. Frontex, ENISA) could play a role in assisting member states in addressing particular threats but also for other reasons, such as the unlocking of budgetary instruments. In case of a request for military assistance, the EU Military Staff (EUMS) would be involved.
If the EU institutions were to be given a predefined role by the member states, what should it be? Here, the EU enters truly uncharted territory as no such request has ever been made. Based on interviews, member states could consider endowing a MATF with the following roles:
An internal coordination role: in this case the task force would – in close cooperation with and upon the request of the member state(s) invoking Article 42(7) – develop a list of required aid and assistance, contact capitals and construct an aid and assistance package fulfilling as much as possible the needs of the requesting member state(s). The MATF could also follow up on the commitments and support provided and serve as a ‘clearing house’ both between member states and between other EU institutions in order to limit either duplication or gaps in the assistance provided.
An external coordination role towards other organisations or third countries: the affected member state could ask the task force to communicate externally on behalf of the EU as a whole, in particular towards other multilateral organisations such as NATO and the United Nations. The task force could then make use of existing cooperation formats.
An active own contribution by the EU institutions: such aid and assistance could consist of sending EU personnel to the member state(s) concerned, for example cyber security, strategic communications or intelligence experts. Given the broad range of tools in the EU’s ‘toolbox’, the coordination challenge is particularly acute here and the task force could be of use to assist the member states in making full use of the EU’s available instruments.
The latter point stresses the importance for member states to be aware of the various mechanisms and instruments at their disposal in the run-up to a potential Article 42(7) situation. As a result of the exercises held within the PSC, the EEAS is in the process of preparing a document which would shed some light on this matter. In this regard it is important to keep the procedures flexible, in particular as the nature of the requests under Article 42(7) may differ. The rigidity of ‘who should do what’ will be detrimental in coordinating the required aid and assistance in the most timely and effective manner. Although procedures could make up part of the document, perhaps it could also be used for starting a discussion on a common understanding of situations in which Article 42(7) could be invoked. Again, not a fixed list of criteria is needed but rather a catalogue of potential cases to which others could be added as required. Instead of defining the scope and applicability of Article 42(7) it should therefore be an operational options paper, serving the purpose of identifying response options.
Exercises could help to test both the procedures but also the development of a catalogue of potential aid and assistance in order to be better prepared if the occasion would arise in reality. NATO could be involved in exercises where coordination with other organisations would be needed. Hybrid attack scenarios should be part of an Article 42(7) exercise schedule. No additional structures will be needed: the MATF can be constituted from existing EU institutional elements. With regard to the preparatory bodies under the Council, the Political and Security Committee would certainly play a key role but combined sessions with the Standing Committee on Internal Security (COSI) and the Military Committee could be helpful too, depending on the nature of the scenario and of the requested aid and assistance. No formal Council decision would be needed – unless particular circumstances would require this, e.g. for launching a CSDP operation triggered by the invocation of Article 42(7). However, given the importance of displaying unity and resolve to the outside world, it would be beneficial to follow up on a member state’s request with a strong Council statement – which would indeed require unanimity.