The Mutual Assistance Clause under Article 42(7) TEU. Considerations in Light of the Ukraine’s Quest for Membership

Abstract

The Russian aggression against Ukraine has not only served as a sobering reminder that war is still possible on the European continent. It has also brought to light a somewhat understudied aspect of EU law: The mutual assistance clause under Article 47(2) TEU. Entailing an obligation aimed at the Member States to provide aid if one of them falls victim to an “armed aggression on its territory”, this clause invites comparison with Article 5 of the NATO Treaty, in addition to the solidarity clause under Article 222 TFEU. Considering its increased relevance in light of the ongoing war at the EU’s doorstep, this working paper will reflect on Article 42(7) TEU, including its potential impact on the Ukrainian quest for EU membership. It will be considered how this Treaty provision, while designed to leave ample room for State discretion, nonetheless lays down a legal duty to act and thus is far from symbolic. Thus, it will be argued that the obligation emanating from this provision may affect Ukraine’s chances of accession as much as or even more than the question of compliance with the Copenhagen criteria. It will be suggested that in lieu of an accelerated accession, Ukraine’s application may spark a profound and extended debate on enlargement as well as on rethinking the currently rather loose framework of the Union’s Common Foreign and Security Policy.

Keywords: Mutual assistance clause, Art. 42(7) TEU, NATO, Ukraine, EU accession, Art. 222 TFEU, collective defence