Select Committee on European Scrutiny Thirty-Sixth Report

3 Civil protection against disasters and emergencies




COM(05) 113

+ ADD 1




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
DepartmentCabinet Office
Basis of considerationMinister'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 CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


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.


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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