Table of Contents: I. Introduction. – II. Disinformation. – II.1. Fake news. – II.2. Art. 114 TFEU: common foreign and security policy restrictive measures. – III. Foreign subsidies and investment. – III.1. “Hostile” subsidies and investment. – III.2. Art. 207 TFEU: the common commercial policy, the foreign direct investment screening regulation, trade defence instruments. – IV. Cybersecurity: “the dark side of the web”. – IV.1. Cyber attacks to public targets. – IV.2. Arts 114, 215 and 352 TFEU: the EU Cybersecurity Act and the Critical Infrastructure Directive. – V. Border pressure. – V.1. Diverse threats for diverse borders. – V.2. Art. 77(2) TFEU: Area of Freedom, Security and Justice, and the Schengen Borders Code. Art. 82(2) and 83: EU criminal law, the Common Security and Defence Policy. – VI. Lawfare. – VI.1. Uses of law, abuses of law, and lawfare. – VI.2. Arts 2 and 3(5) TEU: can the EU engage in lawfare… in order to tackle lawfare? – VII. The future of security and defence law: emerging powers of the EU? – VIII. Conclusions.
Abstract: The European Union defined hybrid threats as measures using diplomatic, military, economic and technological tactics to destabilise a political adversary. These threats are one of the emerging security challenges in Europe and have the potential to shape the future of the continent. It is EU policy that the primary responsibility for countering them lies with the Member States; and that NATO’s mandate for the security of Europe makes it an important partner for the military and conventional deterrence aspects to tackle hybrid threats. This Article describes and discusses the legal tools available to the EU for deterring, mitigating or neutralising hybrid threats. The focus is on disinformation, hostile foreign subsidies and investment, cyber threats, border pressure, and lawfare. The EU seems, overall, legally well-equipped to counter the threats, thus positioning itself as the complementary and to a great extent autonomous ally of NATO in this domain. There is a distinctively supra-national dimension to virtually all of these threats, and this justifies that an EU competence arises. Hybrid threats cover such a broad array of issues that a single piece of legislation is neither feasible nor, probably, desirable; but if there were to be one, it would probably be based on art. 114 TFEU rather than on emergency clauses or on wholesale constitutional reforms. In any case, EU law will need to take into account that a close cooperation between the public and private sector is vital for countering hybrid threats.
Keywords: EU law – external relations – security and defence – hybrid threats – disinformation – competence.
* Lecturer in EU Law, University College Cork, firstname.lastname@example.org.