Legal and Political Challenges of an Integrated EU Security System
IV. Definition and Scope of the Mutual Assistance Clause
After numerous attempts to include the mutual defence obligation stemming from the WEU in EU primary law, the Lisbon Treaty finally incorporated a mutual aid and assistance clause in its Article 42(7) TEU75. Due to its location within the TEU in Section 2 on the CSDP, the Mutual Assistance Clause (sometimes also called ‘Mutual Defence Clause’)76 has a clear intergovernmental remit77. The Clause “can be described as purely intergovernmental in nature: it binds member states ‘horizontally’ without transferring any competence ‘vertically’ to EU institutions; nor does it require coordination at the EU level in situations when the mutual defence obligation is invoked. In a legal sense, Article 42.7 differs from most treaty provisions because it is only weakly associated with EU institutions and EU level capabilities.”78
Article 42 can be considered as a further development of the old Article 17 TEU (Treaty of Nice)79. Of all the different provisions in Article 42, it is worth mentioning paragraph (2) which reiterates the possible future common defence commitment introduced by the Treaty of Maastricht, whereas the ← 43 | 44 → Mutual Defence Clause in paragraph (7) is the directly applicable obligation to mutually assist in the event of armed aggression80.
The definition of the Mutual Assistance Clause in Article 42(7) TEU is obviously taken from Article V of the Brussels Treaty81. If we compare both provisions, we can easily find structural similarities, but also differences. Differences are particularly evident...
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