3 Critical Infrastructure Warning Network
| (30103)
15041/08
+ ADDs 1-2
COM(08) 676
| Draft Council Decision on a Critical Infrastructure Warning Network (CIWIN)
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| Legal base | Article 308 EC, Article 203 EAEC; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 7 May 2009
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| Previous Committee Report | HC 19-xiv (2008-09) chapter 8 (22 April 2009); HC 19-iii (2008-09) chapter 8 (14 January 2009),
See also (28183) 16932/06 and (28184) 16933/06:
HC 41-xv (2006-07), chapter 2 (21 March 2007); (27421) 7766/06 and (27542) 9586/1/06 REV1: HC 34-xxxiv (2005-06), chapter 14 (5 July 2006); (27052) 14910/05: HC 34-xxviii (2005-06), chapter 16 (10 May 2006), HC 34-xiv (2005-06), chapter 8 (11 January 2006); and (26072) 13979/04: HC 38-v (2004-05), chapter 5 (26 January 2005)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
3.1 The draft Council Decision seeks to establish a Critical Infrastructure
Warning Network (CIWIN). The CIWIN network is an electronic forum
that would assist Member States through the exchange of information
on shared threats, vulnerabilities and appropriate measures and
strategies to mitigate risks related to the protection of critical
infrastructure in their respective territories. Participation
in and use of CIWIN is open to all Member States. Such participation
is, however, conditional on the signature of a Memorandum of Understanding
on the technical and security requirements applying to CIWIN and
information on the cites connected to CIWIN.
3.2 When we last reported on this draft Council Decision
on 22 April 2009, we noted the Parliamentary Under-Secretary of
State at the Home Office's (Admiral the Lord West of Spithead)
assurance that the guidelines to be drafted by the Commission
on the terms of use of CIWIN would amount to no more than a user
manual and would not unduly enhance the Commission's influence
over CIWIN. But we were still not satisfied that a proposal that
addressed terrorism and national security should be based on the
EC Treaty. We were also concerned that using Article 308 of the
EC Treaty as the legal base would increase the scope for this
Article being employed in the future for areas which did not fall
within "one of the objectives of the Community", as
required by that Article. We urged the Minister to re-consider
the legal base of this proposal. In the meantime we kept the document
under scrutiny.
The Minister's letter of 7 May
3.3 The Minister wrote on 7 May in response to our
report. In his letter he makes the following comments on the aim
and content of the draft Decision:
"The policy background to the proposal is set
out in the first paragraph of the Commission's explanatory memorandum.
As explained in that paragraph, the European Council of June 2004
asked the Commission to prepare an overall strategy to protect
critical infrastructure. For these purposes, critical infrastructure
is understood to mean infrastructure that is essential for the
maintenance of health, safety and other vital services. If such
infrastructure is put out of action and these services fail this
will have a significant impact on the well being of the public
covered by the services. […]
"We consider that the correct description of
the aim of both proposals for legal base purposes is the protection
of critical infrastructure in order to protect the public served
by that infrastructure. This is part of the Community's more general
civil protection objective (see Article 3(1)(u) EC Treaty).
"To achieve this aim, the CIWIN proposal will
establish a network enabling Member States to exchange information
on threats and best practises to mitigate the risks related to
critical infrastructure. 'Threat' is defined as meaning 'any indication,
circumstance, or event with the potential to disrupt or destroy
critical infrastructure, or any element thereof'. This is not
limited to terrorist threats although it is clear that terrorist
threats will be the principal focus. CIWIN is a strand of EPCIP,
which is an all hazards programme of Critical Infrastructure Protection
measures. As the ESC report points out, CIWIN is intended as a
'tool for the exchange of information [that] would increase the
security of citizens' as a consequence of sharing information
— this information will cover a range of threats.
3.4 The Minister addresses the legal base:
"Both the aim and content of the CIWIN proposal,
as described above, in my view justify the use of Article 308
EC Treaty as the legal base. This is not contradicted by the fact
that the proposal focuses in particular on the terrorist threat
to critical infrastructure. A Community measure pursuing a Community
objective may address terrorist issues insofar as necessary in
order to achieve that objective. In this regard I would point
out that other Community measures have addressed the threat from
terrorism. Within the framework of the Community's common transport
policy, for example, Article 80(2) EC Treaty has been used to
adopt measures on civil aviation security (Regulation 2320/2002)
and on enhancing ship and port facility security (Regulation 725/2004).
Both of these measures pursue the Community's transport objectives
by means of putting in place rules intended to protect against
unlawful interference, primarily terrorism. And the European Court
of Justice has recently confirmed in Kadi (C-415/05 P) that Article
308 EC Treaty may be used in combination with Articles 60 and
301 EC Treaty to impose financial sanctions on suspected terrorists.
"The Committee refers to the fact that CIWIN
will in part be funded by the EC programme entitled 'Prevention,
Preparedness and Consequence Management of Terrorism and other
Security Related Risks'. This programme was established by Council
Decision 2007/124 on the basis of Article 308 EC Treaty (and the
corresponding Article in the Euratom Treaty, Article 203). Article
1 of the Decision says that the programme is being established
'to contribute to supporting Member States' efforts to prevent,
prepare for, and to protect people and critical infrastructure
against risks linked with terrorist attacks and other security
related risks'. We do not consider that the use of funds from
this programme in any way undermines the conclusion that the CIWIN
proposal can properly be adopted on the basis of Article 308 EC
Treaty. The use of Community funds from a programme established
under Article 308 EC Treaty to fund CIWIN is entirely consistent
with the use of Article 308 EC Treaty to establish CIWIN itself.
"The threat posed by terrorism is a factor that
needs to be taken into account in a range of EC and EU policy
areas. Collectively terrorist related actions taken in these policy
areas can be described as the EU's fight against terrorism. Given
the EU's police and judicial co-operation objective set out in
Title VI EU Treaty it is likely that many of the terrorist related
actions will be adopted under Title VI EU Treaty legal bases.
We do not consider, however, that Title VI EU Treaty will be the
appropriate legal base for all such actions — EC Treaty
legal bases will have to be used for actions adopted in pursuance
of Community objectives, such as the common transport policy or
civil protection (as you will know, the European Court of Justice
confirmed in the environmental penalties case (C-176/03) that
Article 47 EU Treaty requires that if a first pillar legal base
is available for adopting legislative provisions it must be used
in preference to a third pillar legal base). In accordance with
Article 3 EU Treaty, the single institutional framework that serves
the Union should ensure the consistency of the actions taken in
these areas in so far as they relate to terrorism.
"I agree that a misuse of Article 308 could
set an unwelcome precedent. In this case however, for the reasons
set out above I am content that Article 308 is the appropriate
legal base."
Conclusion
3.5 We are grateful to the Minister for his response
to our last Report. It clarifies both the policy and the legal
context in which he places the draft proposal. In essence the
Minister says that the correct description of the aim of the proposal
for the purpose of legal base is "the protection of critical
infrastructure in order to protect the public served by that infrastructure",
which falls within the Community's civil protection objective.
This is so, even though the "principal focus" of the
proposal is protection from terrorist threats.
3.6 He helpfully directs our attention to two
other Community instruments that address the threat of terrorism
— Regulation (EC/2320/2002) on establishing common rules
in the field of civil aviation security and Regulation (EC/725/2004)
on enhancing ship and port facility security — both of which
have the common transport policy as their legal base. We are grateful
for this reference. We note, however, that both contain a recital
safeguarding Member State competence in the field of national
security and measures which might be taken on the basis of Title
VI TEU — police and judicial cooperation in criminal matters.
For example, recital 5 of the Regulation on shipping security
provides:
"Without prejudice to the rules of the Member
States in the field of national security and measures which might
be taken on the basis of Title VI of the Treaty on European Union,
the security objective described in recital 2 should be achieved
by adopting appropriate measures in the field of maritime transport
policy…"
3.7 We see the force of the Minister's arguments
on legal base, and take note of the precedents to which he refers.
In our view the overall aim of the proposal — to protect
critical infrastructure principally from terrorist threats —
is nonetheless one which overlaps with national security and counter-terrorism
measures that could be taken by Member States under Title VI EU.
As such it is similar to the Regulations on shipping and aviation
security cited by the Minister. It would be logical, therefore,
if a similar recital safeguarding Member State competence in the
field of national security and Title VI EU were to be incorporated
in this proposal. It would also go some way to addressing our
concern that the extent of the Community's competence in this
sensitive field be properly delineated.
3.8 We look forward to the Minister's response
to our suggestion. In the meantime we keep the document under
scrutiny.
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