Putin’s illegal war in Ukraine is obviously a humanitarian disaster. It is also a legal disaster and Russia’s aggression is a threat that affects different states in different ways across Europe, undermining security and national sovereignty. For example, Putin has reportedly threatened both Sweden and Finland against joining NATO, attempting to preempt a shift away from the commitment to neutrality that is deeply embedded in the Swedish political soul. It is therefore all the more interesting that Sweden and Finland have recently concluded a new strategy of enhanced security cooperation between the states. In addition, the Swedish government, together with Finland, has sent a letter to other EU Member States reminding them of their obligation to assist any EU country in case of belligerent attack.
Should we interpret this as an expectation for the EU to function effectively as a quasi-NATO? This blog post focuses on the political and legal implications of highly relevant questions at this moment (at least for Sweden), namely the issue of Sweden joining NATO, the impact of EU solidarity and mutual assistance and whether Sweden is a neutral country at all, as its government still claims is the case.
Solidarity as a matter of EU law
Article 42 (7) TEU, the mutual assistance clause, stipulates that member states can request military help from other member states in case of an attack. The Swedish Prime Minister, soon after the joint letter to the EU member states about mutual assistance was sent, caused a minor scandal by publicly stating that if Sweden joined NATO now that would destabilize the region and increase tensions in Europe even further. She was accused of echoing the Kremlin propaganda machine. Obviously, it is not for Putin to make it his business to determine other countries’ foreign policy, particularly not by threat.
Since the Lisbon Treaty entered into force, the general solidarity clause (Article 222 TFEU) and mutual assistance clause (Article 42 (7) TEU) clearly mean that no country is truly neutral once it has joined the EU, since member states are required to act in solidarity and offer mutual assistance when an EU Member State is under attack a commitment that Sweden did not opt-out from when accessioning the EU Treaty. Moreover, another Scandinavian country, Denmark, had just signaled its willingness to possibly join the Common Security and Defence Policy and rebut one of its ‘opt-outs’ from the Lisbon Treaty.
In any case, the idea of solidarity in the present context seems to be between states, and collective self-defense at the EU level is more NATO style than EU cooperation in a traditional meaning: According to 222 TFEU, the Union and its member states shall act jointly in a spirit of solidarity if a member state is the object of a terrorist attack or the victim of a natural or man-made disaster. Article 222 TFEU is framed as a constitutional duty. Likewise, Article 42 (7) TEU, the mutual assistance provision, could send a strong political signal that Europe stands united against a common threat to its territory and society, especially as it implies a common European response in internal and border security domains in which NATO could not take action (as when France invoked it in 2015 after the terror attacks in Paris).
As Leino-Sandberg and Ojanen write on this blog, one may indeed ask why there is no further integration in defense matters across the EU – a matter that is especially acute at this moment. While most EU Member States are also members of NATO, some EU states that are not may want, and expect the EU to emulate NATO and act on the pressing need for security cooperation.
While the EU does not have its own army despite a longstanding debate on this matter, the security concerns of the EU appear to boil down to the uses of force against various security threats including war; this is certainly a plausible interpretation of the wide coverage of the solidarity mechanism under Article 222 TFEU (which has been purposely drafted as an open-ended clause, by itself an interesting political decision that looks to future applications to determine the scope of the legal obligation).
In EU law across various policy domains, EU solidarity has so far been interpreted loosely by the Member States, while the EU Court of Justice in e.g. the rule of law and the EU budget cases, has taken a stricter stance. The Court has emphasized the principle of solidarity, enshrined in Article 2 TEU, which is itself one of the fundamental principles of EU law. This is clearly a dynamic area, and the width of the solidarity mechanism has not been tested yet in the context of Article 222 TFEU. Moreover, solidarity as a constitutional matter in EU law could perhaps be framed as a loyalty question.
The Swedish constitutional law dimension
Is there any national constitutional provision that prevents Sweden from joining NATO or fulfilling its EU legal duties in the area of defence policies? There is – to this author’s understanding – nothing in the Swedish Constitution (Basic Law) about neutrality, only about the procedures to follow in the case of war and regarding emergency situations in such circumstances (Chapter 15 of the Basic Law, “Regeringsformen”).
Therefore, there is no constitutional hinderance for Sweden joining NATO, or for participating in mutual assistance under Article 42 (7) TEU. Interestingly, a legislative assessment in 2016 mentions solidarity repeatedly and stating that Sweden will act in solidarity to other EU states in case of armed aggression and expect other EU states to do the same if Sweden is under attack.
After Sweden has sent arms to Ukraine, Russian fighter jets breached Swedish airspace just east of the island of Gotland. Before that, Sweden could keep pretending that the conflict in the Ukraine is “elsewhere”. Not any longer. The question now is: Does Sweden really want to wait in order to find out what Article 222 TFEU and the commitment to solidarity mean, or hope that Article 42 (7) TEU on mutual assistance works in practice? Both Denmark and Norway are parts of NATO and there is an increased probability that, Putin’s ire notwithstanding, Finland will join as well. Considering that more and more Swedes are in favor of joining NATO, this will most likely be a key question in the election this year. And there is no constitutional legal hindrance for Sweden to either join NATO, and/ or push for deeper integration in EU defense matters. While neutrality for Sweden worked out during WW2 and had important implications for the rescuing of Jewish refugees, the situation seems very different today.