3 Civil protection against disasters
and emergencies
| (a)
(26521)
8436/05
COM(05) 113
+ ADD 1
(b)
(27264)
5865/06
COM(06) 29
+ ADD 1
|
Draft Council Regulation establishing a rapid response and preparedness instrument for major emergencies
Commission staff working document: impact assessment
Draft Council Decision establishing a Community civil protection mechanism (recast)
Commission staff working document: impact assessment
|
| Legal base | (a) and (b) Article 308 EC and Article 203 Euratom; consultation; unanimity
|
| Department | Cabinet Office
|
| Basis of consideration | Minister's letter of 5 October 2006
|
| Previous Committee Report | (a) and (b) HC 34-xxxvi (2005-06), para 3 (19 July 2006)
|
| To be discussed in Council | December 2006
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | (Both) Not cleared; further information requested
|
Background
3.1 The purpose of the Community Mechanism for Civil Protection
is to help mobilise immediate practical assistance to help cope
with natural or man-made disasters.[11]
The Commission operates the European Monitoring and Information
Centre which receives governments' requests for assistance, forwards
them to other members of the Mechanism and coordinates the replies.[12]
The Centre circulates information about the emergency as it develops.
It has access to databases of information about equipment, medical
supplies and expert teams.
3.2 The purpose of the Community Civil Protection Action Programme
is to help Member States prevent, prepare for and respond rapidly
to natural and man-made disasters (such as floods, forest fires,
oil spills and radiological or chemical accidents).[13]
Assistance is also available to third countries. The Action Programme
funds the operation of the Civil Protection Mechanism and provides
financial support to encourage cross-border cooperation and mutual
assistance through, for example, the exchange of experts, training
and seminars. The Programme was established in 1999 and expires
at the end of 2006.
3.3 Article 308 of the EC Treaty provides the legal base for
measures which are necessary to attain, in the operation of the
common market, one of the objectives of the Community but for
which the necessary power is not provided elsewhere in the Treaty.
Similarly, Article 203 of the Euratom Treaty provides the legal
base for measures necessary to achieve an objective of that Treaty
but for which the necessary power is not provided elsewhere; Article
203 contains no reference to the operation of the common market.
Previous scrutiny of documents (a) and (b)
3.4 The Commission proposed document (a), the draft Regulation,
to establish the successor to the Civil Protection Action Programme.
It would provide the legal authority for grants towards the cost
of responding to major emergencies and meet the cost of operating
the Community Civil Protection Mechanism. It would authorise funding
for a wider range of activities than those covered by the current
Action Programme. The total budget for 2007-13 would be €173
million. Such assistance would be available to the members of
the Civil Protection Mechanism.
3.5 The activities which would be eligible for financial assistance
include contingency planning, capacity building, training exercises,
demonstration projects, provision of equipment, establishing and
maintaining communication systems, and transportation and logistical
support for experts and others.
3.6 Document (b) is the draft of a Decision to re-enact with amendments
the Council Decision which set up the Community Civil Protection
Mechanism. It would enlarge the scope of the Mechanism to cover
acts of terrorism and "man-made disasters" as well as
natural disasters and technological, radiological or environmental
accidents. It would also increase the activities covered by the
Civil Protection Mechanism to include:
- identifying military assets
in Member States which would be available to support civil protection
in a major emergency;
- developing early warning systems;
and
- establishing arrangements for
transport, logistics and other support at Community level.
3.7 When we considered document (a) in October 2005
and February,[14] document
(b) in June,[15] and
both documents in July,[16]
we recognised the benefit of countries pooling their resources
to deal with major disasters and emergencies. We noted, however,
that the Commission proposed that the EC should provide civil
protection assistance inside or outside the EC. We could see an
arguable case that such assistance would affect the operation
of the common market where the intervention was in the area of
a Member State. But we were not persuaded that intervention elsewhere
would be likely to affect the operation of the common market.
So it appeared to us doubtful that Article 308 of the EC Treaty
would provide an appropriate legal base for intervention by the
Community outside its area.
3.8 In July, the Parliamentary Under-Secretary of
State at the Cabinet Office (Edward Miliband) told us that there
was still disagreement in the Council about the proposals for
the Commission to be able to hire equipment, transport and other
assets. The UK and three other Member States had argued that the
provision of these things should remain a Member State responsibility.
3.9 The Minister also told us that Government had
raised in the Council Working Group, and with individual Member
States, its own and our doubts about the appropriateness of using
Article 308 of the EC Treaty as the legal base for civil protection
assistance outside the EU. But there had been no support at all
for the UK's doubts. All other Member States and the legal service
of the Council were content with the use of Article 308 and noted
that it had provided the legal base for previous civil protection
legislation. He concluded, therefore, that the Government would
have to accept the use of Article 308 but would ask for a note
to be placed in the minutes of the Council Working Group to record
the UK's concerns.
3.10 We remained unable to see how civil protection
by the Community in third countries far away from the area of
European Union could be necessary in the operation of the common
market. We doubted that it would be sufficient for the Government
merely to ask for a note of its views to be recorded in the minutes
of the Working Group and then to accede to the use of Article
308.
3.11 Accordingly, we asked the Minister to tell
us his views on whether:
- all reference to third counties
(other than Bulgaria, Romania, Iceland, Liechtenstein and Norway)
should be removed from documents (a) and (b) because the Stability
Instrument[17] includes
provision for assistance from the EC to third countries in the
event of disasters; or
- the Government should abstain
in a vote on the documents if, indeed, it does not vote against
their adoption.
The Minister's letter of 5 October 2006
3.12 The Minister tells us that the Government considers
that the use of Article 308 would be acceptable in the case of
these proposals because it does not believe that it is necessary
that "every proposal under Article 308 should relate in a
narrow and restrictive sense to the operation of the common market".
There was no support from others for the view that Article 308
was inappropriate. Moreover, the third country aspects of the
proposals are not prominent and funding for assistance to third
countries will be available from the Stability Instrument, which
has Articles 179(1) and 181a of the EC Treaty as its legal bases.
3.13 The Minister continues:
"… as there is no prospect of amending
the proposals in the way the Committee requests, the alternative
would be to veto a proposal which has widespread support within
the Council and covers such a vital policy area: providing mutual
support in the event of a disaster. An abstention would also effectively
count as a vote against as decisions are taken by unanimity. The
Government … does intend to ask for a note to be placed in
the minutes of the Council reflecting UK concerns."
3.14 There is still no agreement between Member States
about the proposal for the Commission to be able to hire equipment
and other assets and to pay for the transport of assistance; efforts
to find an acceptable compromise will continue.
3.15 Finally, the Minister tells us that the Finnish
Presidency hopes to secure the Council's agreement to the draft
Regulation and Decision in December.
Conclusion
3.16 We are grateful to the Minister for his courteous
letter. We have seen nothing, however, to lead us to change our
view that Article 308 does not provide an appropriate legal base
for civil protection assistance outside the EU.
3.17 The Minister says that an abstention in a
vote on the proposals would amount to a veto because unanimity
is required. We draw his attention to Article 205(3) of the EC
Treaty. It provides that:
"Abstentions by Members present in person
or represented shall not prevent the adoption by the Council of
acts which require unanimity."
It is our understanding , therefore, that abstention
by the Government would not have the effect the Minister says
it would. If the Government feels unable to vote against adoption
(which would, in our view, be justified because of the doubts
about the legal base), we can see no reason why it should not
abstain and record the reasons in the Council's minutes.
3.18 We ask the Minister to reflect on what we
have said in the preceding paragraph and tell us what the Government
intends to do. Pending his reply, we shall keep the document under
scrutiny.
11 Council Decision No. 2001/792/EC: OJ No. L 297,
15.11.01, p.7. Back
12
The members of the Mechanism are the 25 States of the EU, Bulgaria,
Iceland, Liechtenstein, Norway and Romania. Back
13
Council Decision No. 1999/847/EC: OJ No. L 327, 21.12.99, p.53. Back
14
See HC 34-v (2005-06), para 9 (12 October 2005) and HC 34-xviii
(2005-06), para 2 (8 February 2006). Back
15
See HC 34-xxxii (2005-06), para 2 (21 June 2006). Back
16
See HC 34-xxxvi (2005-06), para 3 (19 July 2006). Back
17
(26045) 13690/04: see HC 38-i (2004-05), para 13 (1 December 2004),
HC 38-v (2004-05), para 2 (26 January 2005), and HC 34-iv (2005-06),
para 3 (20 July 2005). Back
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