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
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 12 July 2006
|
| Previous Committee Report | (a) HC 34-v (2005-06), para 9 (12 October 2005) and HC 34-xviii (2005-06), para 2 (8 February 2006)
(b) HC 34-xxxii (2005-06), para 2 (21 June 2006)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | 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.[7]
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.[8]
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).[9] 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 co-operation 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 3(1)(u) of the EC Treaty provides that
the Community is to adopt measures for civil protection.
3.4 Article 181a of the EC Treaty authorises the
Council to adopt measures for economic, financial and technical
co-operation with third countries within the general objective
of developing and consolidating democracy and the rule of law
and the objective of respecting human rights and fundamental freedoms.
3.5 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)
3.6 The Commission proposed this 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.[10]
3.7 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.
3.8 Document (b) is the draft of a Decision to re-enact
with amendments the Council Decision which set up the Community
Civil Protection Mechanism. The draft Decision proposes that the
purpose of the Community Protection Mechanism should be to facilitate
co-operation between the Community and Member States to provide
assistance in the event of major emergencies inside or outside
the Community. It enlarges 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 also increases the activities to be included in
the Civil Protection Mechanism. The new one would 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.
3.9 When we considered document (a) in October 2005
and February,[11] and
document (b) in June,[12]
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. We wondered if Article 181a of the
EC Treaty might provide an appropriate legal base for it.
The Minister's letter of 12 July 2006
3.10 The letter from the Parliamentary Under-Secretary
of State at the Cabinet Office (Edward Miliband) gives a progress
report on the negotiations on documents (a) and (b) and, in particular,
on the legal base for the proposals.
3.11 The Minister's letter summarises the matters
on which Member States have reached agreement so far. This includes
agreement that civil protection should be provided outside as
well as inside the EC. He also says, however, that there is still
disagreement about the Commission's proposals for it to be able
to hire equipment, transport and other assets. The UK and three
other Member States argue that the provision of these things should
remain a Member State responsibility.
3.12 The Minister also tells us that, during the
negotiations, the Government has raised 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. He says:
"The UK has raised these doubts in the Council
Working Group … and individually with a number of member
states that usually share UK concerns. We have found no support
at all for the UK doubts, with all other member states and the
legal service of the Council and the Commission being content
with Article 308 … and noting that it has been the legal
base for previous civil protection legislation.
"We have raised the [Committee's] suggestion
… that in addition to Article 308 the proposals could use
Article 181a. Again that has received no support and doubts have
been raised about the legal uncertainty that a dual legal base
might create, since Article 181a uses qualified majority voting
whilst Article 308 calls for unanimity. It has been pointed out
that for civil protection response outside the EU the Commission
has just confirmed that it will have access to [€8 million]
each year from the Stability Instrument budget allocation which
itself uses Articles 179(2) and 181a [of the EC Treaty] that allow
assistance to third countries in response to disasters or emergencies.
Other member states, therefore, see the use of civil protection
outside the EU as consistent with related legislation. In the
absence of any support we shall reluctantly have to accept the
use of Article 308 but ask for a note to be placed in the minutes
of the Council working group of the UK concerns."
3.13 Finally, the Minister tells us that the Finnish
Presidency plans to give priority to obtaining the Council's agreement
to document (a), followed by an agreement on document (b) in December.
Conclusion
3.14 We remain unable to see how civil protection
by the Community in third countries far away from the area of
European Union can be necessary in the operation of the common
market. We are glad that the Government is at one with us in questioning
the lawfulness of using Article 308 of the EC treaty as the legal
base for the provision in documents (a) and (b) about assistance
to third countries. We doubt, therefore, 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 accede to
the use of Article 308.
3.15 Accordingly, we ask the Minister to tell
us his views on the 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[13]
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.
We shall keep both documents under scrutiny pending
the Minister's reply and further reports on the progress of the
negotiations.
7 Council Decision No. 2001/792/EC: OJ No. L 297, 15.11.2001,
p.7. Back
8
The members of the Mechanism are the 25 States of the EU, Bulgaria,
Iceland, Liechtenstein, Norway and Romania. Back
9
Council Decision No. 1999/847/EC: OJ No. L 327, 21.12.1999, p.53. Back
10
See footnote 8 above. Back
11
See HC 34-v (2005-06), para 9 (12 October 2005) and HC 34-xviii
(2005-06), para 2 (8 February 2006). Back
12
See HC 34-xxxii (2005-06), para 2 (21 June 2006). Back
13
(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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