I. Introduction The Mutual Assistance and Solidarity Clauses were formally introduced by the Lisbon Treaty in December 2009 and are now enshrined in Title V, Chapter II, Section 2 Provisions on the common security and defence policy, Article 42(7) of the Treaty on the European Union (TEU), and in Part V External Action of the Union, Title VII, Article 222 of the Treaty on the Functioning of the European Union (TFEU). Until now, they have only received limited attention from scholars and analysts, as well as from national governments and EU institutions. This may change in the near future as the European Council discussed in December 2013 the current status and possible future of the Common Security and Defence Policy (CSDP) and the General Affairs Council should adopt a Council Decision on the implementation of the Solidarity Clause ( Joint Proposal ) in June 2014. These two clauses raise a number of questions regarding their scope and legal interpretation, their potential for further integration and their practical and technical implementation. Mutual assistance and solidarity are somehow closely related terms in European Union law. If we take a closer look at the current legal framework of the European Union we find several references to solidarity. Apart from the Preamble to the Treaty on the European Union ( DESIRING to deepen the solidarity between their peoples while respecting their history, their culture and their traditions 5 ) there are several other references to solidarity in primary law. The Union shall promote [ ] solidarity among Member States (Art. 3(3) TEU) and shall contribute to [ ] solidarity and mutual respect among peoples (Art. 3(5) TEU). The Union s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, inter alia the principles of equality and solidarity (Art. 21(1) TEU). In Part Three, Title V, Article 78(3) TFEU, relating to the 5 Official Journal of the European Union C 115/13, Consolidated Version of the Treaty on the European Union, 9.5.2008. 17
Area of Freedom, Security and Justice (AFSJ) we find, for example, a provision on the possible adoption of measures aimed at supporting a Member State in the event of a massive migratory influx: In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament. However, Article 80 TFEU evokes the principle of solidarity and fair sharing of responsibility with regard to the whole chapter on border checks, asylum and immigration policies (hence, also applying to Article 78): The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle. Article 80 TFEU is not a legal base in itself, but provides justification for the adoption of measures in future such as the European Refugee Fund 6. We also find the term solidarity in other policy areas covered by the TFEU. According to Article 122 TFEU, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity [emphasis added] between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy (see under chapter VIII.a.). A further reference to the spirit of solidarity can be located in Article 194 TFEU (Title XXI, Energy ). This provision establishes that [i]n the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity [emphasis added] between Member States, to: 6 Steve Peers, EU Justice and Home Affairs Law (Oxford: Oxford University Press [2011]), 311. 18
(a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union; (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and (d) promote the interconnection of energy networks. The Charter of Fundamental Rights of the European Union (EUFRC) actually dedicates a whole chapter (Chapter IV, Articles 27 38) to Solidarity. Title IV concerns solidarity rights, such as the right of collective action and the right to health care. In the case 39/72 ( Premiums for slaughtering cows ) the Court of Justice of the European Union (CJEU) held that the failure in the duty of solidarity accepted by the Member States by the fact of their adherence to the Community strikes at the fundamental basis of the Community legal order 7. Although the founding Treaties of the European Communities did not explicitly allude to the expression solidarity, it is inherent to European integration. However, it is probably only since the start of the financial and economic crisis in the Eurozone that the term solidarity has come to the fore of political debates 8. With this in mind, it is noteworthy that both the Mutual Assistance Clause and the Solidarity Clause have not yet been the objects of particular interest for European analysts and even less for European politics. As mentioned above, this may, however, change in the near future as the European Council dealt with CSDP in December 2013 9. As the Joint Proposal on the Implementation by the Union of the Solidarity Clause is to be adopted by the General Affairs Council in June 2014, the Solidarity Clause may soon be placed on the agenda of European politics, too. Despite the fact that the Mutual Assistance Clause and the Solidarity Clause appear to be closely linked through the principle of solidarity, they are divided 7 Commission v Italy (Case 39/72) [1973] ECR 101. 8 See Sofia Fernandes, Eulalia Rubio, Solidarity within the Eurozone: how much, what for, for how long? (Notre Europe Policy Paper No. 51 [2012]), available at http://www. notre-europe.eu/media/solidarityemu_s.fernandes-e.rubio_ne_feb2012.pdf. 9 Cf. Conclusions of the European Council (19/20 December 2013) (EUCO 217/13). 19
by their inclusion in two different treaties, the TEU and the TFEU, which are, however, on the same level from a legal point of view. The question therefore arises whether the scope of the two clauses is also strictly separated or whether overlaps exist or (could) come up in the implementation of the clauses. The two provisions represent two different approaches towards solidarity 10 : on the one hand, a traditional approach taken from NATO and WEU focusing on a response to a military attack on the territory of a Member State and, on the other hand, a new, more integrated approach which takes into account the new threats as identified by the European Security Strategy 11. Nevertheless, we should bear in mind that Article 222 TFEU explicitly refers the CFSP (CSDP) in its third paragraph ( [t]he Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications [ ] ) whereas no links to the communitarised policy areas exist in Article 42(7) TEU. Before tackling the different questions on the relationship between the two clauses, let us have a closer look at the genesis of these two provisions. 10 See also Dolores Rubio García, Las cláusulas de asistencia mutual y solidaridad introducidas por el Tratado de Lisboa: el refuerzo de la seguridad y la defensa en la Unión Europea (Documento de Trabajo 57/2011), 20. 11 A secure Europe in a better World - European Security Strategy, 12 December 2003. The European security strategy was drawn up under the authority of the EU s High Representative for the Common Foreign and Security Policy, Javier Solana, and adopted by the Brussels European Council of 12 and 13 December 2003. It identifies the global challenges and key threats to the security of the Union. 20