7 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 27 November 2006
|
| Previous Committee Report | HC 34-xxxix (2005-06), para 3 (25 October 2006)
|
| To be discussed in Council | December 2006
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | (Both) Cleared
|
Background
7.1 The purpose of the Community Mechanism for Civil Protection
is to help mobilise immediate practical assistance to cope with
natural or man-made disasters.[13]
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.[14]
The Centre circulates information about the emergency as it develops.
It has access to databases of information about equipment, medical
supplies and expert teams.
7.2 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.[15]
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.
7.3 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)
7.4 Document (a) is the draft of a 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 to 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.
7.5 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.
7.6 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" .
7.7 We have considered one or both documents on five previous
occasions. Throughout our previous scrutiny we have recognised
the benefit of countries pooling their resources to deal with
major disasters and emergencies. We have noted, however, that
the Commission proposes that the EC should provide civil protection
assistance both inside and outside the EC. An arguable case can
be made that such assistance would affect the operation of the
common market where the intervention is in the area of a Member
State. But, in our view, intervention elsewhere would not be likely
to affect the operation of the common market and it is doubtful,
therefore, that Article 308 of the EC Treaty would provide an
appropriate legal base for such intervention.
7.8 In July, the Parliamentary Under-Secretary of
State at the Cabinet Office (Edward Miliband) told us that there
was 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.
7.9 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.
7.10 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. We asked the Minister for his further comments.[16]
7.11 In his reply of 5 October, the Minister told
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 is no support from others for
the view that Article 308 is an inappropriate legal base. 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.
7.12 The Minister continued:
"… 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."
7.13 When we considered the documents again on 25
October,[17]
we saw nothing to lead us to change our
view that Article 308 does not provide an appropriate legal base
for civil protection assistance outside the EU.
7.14 We drew the Minister's 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 was our understanding, therefore, that abstention
by the Government would not have the effect the Minister said
it would. If the Government felt unable to vote against adoption
(which would, in our view, be justified because of the doubts
about the legal base), we could see no reason why it should not
abstain and record the reasons in the Council's minutes. We asked
the Minister to reflect on this and tell us what the Government
intends to do.
The Minister's letter of 27 November 2006
7.15 The Minister tells us that the Council remains
divided about the proposal that the Commission should be able
to pay for the hire of transport and equipment. The Finnish Presidency
will try to secure agreement to a compromise at the Council in
December. If agreement cannot be reached, the Government will
press for a fundamental review of the Community's approach to
civil protection with a view to establishing a set of common principles
and a common understanding. The review might take two years; so
the Government would also repeat its call for the proposed legislation
to be adopted without the provisions on which there is disagreement.
7.16 On reflection, the Minister agrees with us that
abstention from the vote on the proposed legislation would not
count as a vote against it and thus veto it. But, for the reasons
given in his letter of 5 October, the Government regards Article
308 as an acceptable legal base. Abstention would not, therefore,
be appropriate. If an acceptable compromise on the text of the
Regulation can be found, the Government will vote in favour of
adoption, while recording in a minute statement its concerns about
the legal base.
Conclusion
7.17 There is a difference of opinion between
the Minister and ourselves about the use of Article 308 as the
legal base for Community assistance to civil protection in third
countries far away from the area of the European Union. We have
drawn the arguments on both sides to the attention of the House
in our previous Reports on these documents. We do not believe
that further correspondence or an oral evidence session or a debate
in the European Standing Committee would add anything new or lead
to agreement. We consider, therefore, that no useful purpose would
be served by continuing to keep these documents under scrutiny
and we have decided, therefore, to clear them.
13 Council Decision No. 2001/792/EC: OJ No. L 297,
15.11.01, p.7. Back
14
The members of the Mechanism are the 25 States of the EU, Bulgaria,
Iceland, Liechtenstein, Norway and Romania. Back
15
Council Decision No. 1999/847/EC: OJ No. L 327, 21.12.99, p.53. Back
16
See HC 34-xxxvi (2005-06), para 3 (19 July 2006). Back
17
See HC 34-xxxix (2005-06), para 3 (25 October 2006). Back
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