EU Military Mission Is Coming Home

On 10 October 2022, the High Representative of the Union for Foreign Affairs, Josep Borrell, delivered a remarkably clear speech (for a diplomat) at the EU Ambassadors Annual Conference 2022, in which he drew conclusions about the current state of the Union’s foreign policy. In his speech, he lamented, among other things, the Council’s slow decision-making when it comes to decisive and rapid responses to external threats. As an example to illustrate the shortcomings of the EU’s Common Foreign and Security Policy (‘CFSP’), he referred in particular to the Council’s endless internal discussions on a possible Ukrainian Training mission.

A few days later, on 17 October 2022, the Council for Foreign Affairs agreed on establishing the European Union Military Assistance Mission in support of Ukraine (‘EUMAM Ukraine’). To this end, the Council adopted the Decision (CFSP) 2022/1968 which provides for military training for the Ukraine Armed Forces (‘UAF’) to enhance their military capabilities. Normally, such EU military operations are carried out overseas. However, this does not seem to be the case here, as the Council Decision (CFSP) 2022/1968 provides for military assistance for Ukraine on the territory of EU Member States. Therefore, the newly established EU mission on the Union’s ‘own territory’ raising legal questions as to whether this action has a sufficient legal basis in the EU Treaties.

The EU’s Civilian and Military Missions

According to the EEAS, the EU launched its first Common Security and Defence Policy (‘CSDP’) mission in 2003. Since then, it has conducted 37 different overseas missions in Europe, Africa and Asia including civilian and military operations. Currently, the EU has 11 civilian and 7 military missions around the world with up to 4,000 European women and men currently engaged on the ground. Three of these military missions aim to provide military expertise to local security forces while other missions take a more operational form (e. g. European Naval Force Somalia Operation Atalanta). However, the new EUMAM Ukraine is the first military mission which provides military aid to a European country recently given the status of candidate of accession by the European Council.

The set-up of the EU’s civilian and military missions is governed by the specific legal framework of the provisions provided for by Section 2 of Chapter 2 of Title V of the TEU. According to the second sentence of Article 42(1) TEU, the CSDP provides the Union with an operational capacity drawing on civilian and military means. The third sentence of Article 42(1) TEU then specifies the purpose of these civilian and military assets by stating that the Union may use them on missions outside the Union for peacekeeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. Article 43(1) TEU further defines the civilian and military means referred to by Article 42(1) of the TEU. However, the Union does not have its own troops or armies to achieve its objectives; it uses the capabilities provided by the Member States. Finally, Articles 42(4) and 43(2) of the TEU specify the form and way the Council shall take a decision establishing the said civilian or military missions.

The Core Elements of the New EUMAM Ukraine

In accordance with Article 1(2) of the Decision (CFSP) 2022/1968, the EUMAM Ukraine shall contribute to enhancing the military capability of UAF to defend its territorial integrity within its internationally recognised borders. To achieve these objectives, EUMAM Ukraine provides individual, collective and specialised training to UAF personnel. The headquarters of the mission will be within European External Action Service (‘EEAS’) in Brussels, which also provides the EU Mission Commander. The political and strategic control of the mission lies with the Political and Security Committee (‘PSC’). However, the EU’s role is of non-executive, meaning that the Member States provide training for UAF personnel, while the EU coordinates, synchronises and finances the mission. The mission will last two years after the launch of EUMAM Ukraine and it can train up to 15,000 UAF personnel.

EU Military Missions Outside and Within EU?

The Council Decision (CFSP) 2022/1968 is noteworthy not only because of its particular context and the long political discussions leading up to it, but also because of the deployment area of EUMAM Ukraine, as set out in Article 1(5). Accordingly, ‘EUMAM Ukraine shall operate in the territory of the Member States’ and, according to Article 1(6), the training conducted by EUMAM Ukraine may take place in multiple locations across the Union. This is unusual, to say the least, as no other EU civilian or military mission has previously aimed to operate on the territory of the Member States. Moreover, the wording of Article 42(1), third sentence, TEU provides explicitly that the Union may use its military assets on missions outside the Union. The Council appears to be aware of this legal hurdle. Recital (10) of the Decision (CFSP) 2022/1968, for example, states that the decision on the specific territorial scope of the EUMAM Ukraine is necessary in view of the exceptional circumstances arising from Russia’s war of aggression against Ukraine. It also states that, in accordance with Article 42(1) TEU, EUMAM Ukraine should operate as a temporary measure on the territory of the Member States as long as these circumstances persist.

Given the clear wording of the third sentence of Article 42(1) TEU, it seems questionable whether Article 1(5)(6) of the Council Decision (CFSP) 2022/1968 is indeed in line with Article 42(1) TEU.

According to its wording, the third sentence of Article 42(1) TEU clearly refers to territories outside the Union. The ‘territory of the Union’ or the territorial scope of the Treaties is defined by Article 52(2) TEU in conjunction with Article 355 TFEU. Accordingly, the territorial scope of the Treaties is not the same as the sum of the territories of the Member States. There has therefore been academic debate on whether CSDP missions can be deployed in territories of EU Member States that do not fall within the territorial scope of the Treaties as defined by Article of 52(2) TEU and Article 355 TFEU. However, the territorial scope defined in Article 1(5) of Decision (CFSP) 2022/1968 is different, as EUMAM Ukraine operations are clearly intended to take place on the territory of Member States, whether it is within or outside the territorial scope of the Treaties. The words ‘outside of the Union’ in the third sentence of Article 42(1) TEU were added by the Lisbon Treaty. The wording of the former Article 17(2) TEU (consolidated Version of 2002) referred only to ‘humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peace-making’. This also underlines the intention of the Member States to explicitly restrict the territorial scope of civilian and military missions to areas outside the Union.

On the other hand, it could be argued that the EUMAM Ukraine serves the general purpose of responding to an external crisis and is thus in line with the provisions of Article 42 TEU, regardless the area of deployment. In addition, on 13 March 2022, the Council amended Decision 2014/486/CFSP on the European Union Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine). The Council added Article 2b in the Decision 2014/486/CFSP, which, according to its paragraph 3 allows ‘elements of EUAM Ukraine to be based in Poland, Romania or Slovakia’. However, Article 2b(3) of the Decision 2014/486/CFSP also states that these elements of EUAM Ukraine must carry out their activities on the ground on the Ukrainian side of the border crossing point. Similar provisions are missing from Decision (CFSP) 2022/1968, and the objective of EUMAM Ukraine is quite different, as it deliberately provides for the training of UAF personnel on the territory of Member States (probably for security reasons). Finally, it is questionable whether such exceptional circumstances resulting from Russia’s war of aggression against Ukraine, to which the Council refers, constitute a valid legal argument for altering the purpose of the Treaty provisions on Common Security and Foreign Policy. However, the entire legal framework of the EU’s civilian and military missions is defined in such way that the EU can react to external crisis’s by deploying military or civilian personnel, which implies a policy element vis-à-vis third countries and a geographical element outside the Union. The possible argument that EUMAM Ukraine is only of non-executive nature and therefore can also operate on the territory of the EU Member States is also not convincing.

Better Late than Never

The Council Decision (CFSP) 2022/1968 establishing an EU military training mission is honourable in principle and will certainly help the UAF in its fight against the Russian aggression. One could conclude: better late than never. However, there are at least valid legal reasons to doubt the compatibility of the territorial scope of EUMAM Ukraine defined under Article 1(5) Decision (CFSP) 2022/1968 with Article 41(1) TEU. Third sentence of Article 42(1) TEU clearly restricts EU missions to territories outside the EU. Even in the event of a military invasion in an EU candidate country, it is difficult to see Decision (CFSP) 2022/1968 in line with Article 42(1) TEU.

Josep Borrell is right to criticise the Member States for being too hesitant and sometimes even unwilling to allow the EU to take decisive and joint actions against common external threats and crisis. On the other hand, the EU does itself no favours by overstretching its own constitutional rules even to help a country under attack by unlawful military aggression. The overwhelming support of Ukraine by the EU and Western countries for Ukraine’s fight it against Russia also serves the purpose of upholding the rules-based international order. The EU should not be tempted to undermine its own rules-based internal order, even if its intensions are chivalrous. Ultimately, Article 24(1) TEU will protect the legal construction of EUMAM Ukraine which cannot be challenged as such in court. This may be one of the reasons that led the Council to its creative and bold interpretation of Article 42(1), third sentence, TEU.

However, in view of the fact, that military missions at home are always delicate, the Council should not set any further precedents in this direction in the future.