„If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power […]” – reads the beginning of the first sentence of Article 42(7) of the Treaty on European Union.
A suitable declaration from Poland that it will become a victim of an armed aggression due to the on-going war in Ukraine is not even necessary. Other countries are obliged to independently assess whether two prerequisites are met, i.e. 1) whether Poland will become (importantly, it is the imperfect tense) a victim of an armed aggression, 2) on the Polish territory. If the answer is yes to both of these questions, then support and help are to be provided automatically. It is also not necessary for Poland to inform the capitals of the EU countries about its needs. „It is an actual legal obligation.” states the German commentary on the TEU (edited by Ch. Calliess, M. Ruffert, Munich 2022).
Admittedly, for example, the International Court of Justice defines aggression as „the most grave form of the use of force” (Nicaragua v. US, § 191). However, the first sentence of Article 42(7) TEU shows that the aggression does not have to happen. It suffices to provide prima facie evidence that an armed attack will take place. A state of emergency is thus enough. Aggression is described by the treaty provision as an event that may happen in the future – which can possibly be derived from the fact that the first Russian missiles would fall on the territory of Poland, regardless of who launched such missiles. This is what distinguishes the first sentence of Article 42(7) TEU from Article 5 of the North Atlantic Treaty, where the phrase „armed attack” was used in the perfect tense. On the other hand, the state of emergency itself should result in launching of the procedure envisaged under Article 4 of this legal act, i.e. commencement of joint consultations, provided that the country concerned feels threatened.
Assistance provided to Poland pursuant to Article 42(7) TEU may be of any kind, including military, in particular for the purpose of shooting down the aforementioned missiles.
Crucially, the application of the said provision does not require any involvement of the EU institutions. It is addressed only to the Member States.
Gontarski: Rosyjskie rakiety nad Polską sprawdzianem dla Unii Europejskiej
