1 Implementing the EU solidarity clause
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18124/12
JOIN(12) 39
| Joint proposal from the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy for a Council Decision on the arrangements for the implementation by the Union of the Solidarity Clause
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| Legal base | Article 222(3) TFEU; QMV
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| Department | Cabinet Office
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| Basis of consideration | Minister's letter of 27 March 2014
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| Previous Committee Reports | HC 83-xxxiii (2013-14), chapter 5 (12 February 2014); HC 86-xxxiii (2012-13), chapter 7 (27 February 2013)
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| Discussion 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 and previous scrutiny
1.1 As part of the Lisbon Treaty negotiations, Member
States agreed to include within the EU Treaties a new Solidarity
Clause — Article 222 of the Treaty on the Functioning of
the European Union (TFEU) — which requires Member States
to "act jointly in a spirit of solidarity" in the event
of a terrorist attack or a natural or man-made disaster. Article
222 TFEU is intended to facilitate the more rapid mobilisation
of resources and ensure a better coordinated response, but imposes
no obligation on the affected Member State either to request or
accept offers of assistance made by other Member States. Moreover,
Declaration 37, also agreed during the Lisbon Treaty negotiations,
makes clear that it is for Member States themselves to determine
the most appropriate means of responding to a request for assistance.[1]
1.2 The draft Decision establishes the arrangements
for implementing Article 222 TFEU. It provides that the Solidarity
Clause may only be invoked as a measure of last resort, once the
affected Member State has determined that its own response capabilities
(supplemented by any other tools or resources available at EU
level) are unable to cope with the scale of the disaster. Whilst
Article 222 envisages that disaster response capabilities may
include military resources, it also specifies that a different
decision making procedure (requiring unanimous agreement within
the Council) applies to any decisions which have defence implications.
Our earlier Reports provide a more detailed overview of the content
of the draft Decision.[2]
1.3 The Government considers the Solidarity Clause
to be "primarily a statement of political intent" which
envisages action at EU level only in exceptional circumstances
in order to facilitate mutual aid and political coordination towards
a Member State whose own response capabilities are overwhelmed
and who has requested additional assistance.[3]
The Government broadly endorses the approach set out in the draft
Decision but has identified the following concerns:
· the inclusion of an "imminent"
terrorist attack within the scope of the response mechanism, set
out in the draft Decision;
· the broad geographical scope of application
of the draft Decision (encompassing, for example, attacks or disasters
in international waters or airspace affecting ships or aircraft
belonging to a Member State, and any offshore installations, such
as oil or gas rigs, or other critical infrastructure under a Member
State's jurisdiction);
· the need to avoid duplication or inconsistency
with existing instruments, such as the EU Civil Protection Mechanism
and the EU Solidarity Fund, or the imposition of additional and
onerous reporting requirements;
· the absence of a provision for review
or evaluation of EU action once the Solidarity Clause has been
activated; and
· lack of clarity as to the financial implications
of activating the arrangements set out in the draft Decision.
1.4 The Government has also made clear that the draft
Decision should not require the UK to commit its military or civil
protection assets or be used to fill Member States' capability
gaps.
1.5 The Minister for the Cabinet Office and Paymaster
General (Mr Francis Maude) told us in February that considerable
headway had been made in addressing these concerns. In particular,
Member States had agreed that the Council should play a central
role in implementing the Solidarity Clause, drawing on the existing
Integrated Political Crisis Response arrangements, and had reaffirmed
the right of each Member State to determine the most appropriate
way of meeting its solidarity obligation, as envisaged in Declaration
37. The Council had also agreed to include new provisions establishing
a review and evaluation process, and expressed a commitment to
implementing the draft Decision through existing budget lines,
thereby avoiding any increase in the EU budget. The Minister
expected provisions envisaging joint assessments of capability
gaps and consideration of the means for addressing them to be
dropped from the final text. He made clear that the Government
would favour a narrower definition of the geographical scope of
application of the draft Decision and would seek to avoid the
imposition of additional reporting requirements or an obligation
to share sensitive information.
The Minister's letter of 27 March 2014
1.6 The Minister (Mr Francis Maude) tells us that
the pace of negotiations has increased, with the Greek Presidency
eager to secure agreement on the draft Decision before the end
of June. He observes:
"Progress continues to be made and a number
of the elements raised in the Government's Explanatory Memorandum
have been addressed including the role of the Council, the underpinning
of arrangements with existing crisis arrangements, provision for
a review and evaluation process, and clarifying that the Clause
would only be used in overwhelming circumstances."
1.7 Turning to the scope of the Solidarity Clause
and the practical implications of invoking it for an imminent
terrorist attack, he continues:
"Many Member States have noted that it is
difficult to see how EU arrangements could extend to terrorism
prevention other than through existing information-exchange arrangements.
As such there appears to be a growing consensus that the Solidarity
Clause would only be invoked once a terrorist attack was underway.
We will continue to work with other Member States to ensure that
a practical and workable approach is agreed, and that there are
no obligations placed on Member States to share sensitive information,
either before, during, or after a terrorist attack."
1.8 The Minister expects agreement to be reached
on the practical arrangements for drawing together and coordinating
existing EU crisis response instruments, and adds:
"The Government continues to work to ensure
that these arrangements are workable and respect the appropriate
competences, both between the institutions of the Union and between
the EU and Member States. The text currently states that the
arrangements will function on the basis of no additional resources,
and the Government will seek clarification on the reference to
the Solidarity Fund to ensure it is in line with this principle."
1.9 The Minister considers that negotiations have
helped to clarify the role of the European External Action Service
(EEAS) and High Representative in implementing the Solidarity
Clause:
"There is general agreement that arrangements
at Union level will be based upon existing Union mechanisms, which
includes mechanisms in the EEAS as well as the Council, Commission
and Union Agencies. The negotiations have made it clear that
any such action would be within existing areas of competence.
"Another area which includes a role for
the High Representative is in the development of threat assessments
at Union level along with the Commission. This proposal from
the Commission and High Representative is intended to assist the
European Council meet its duty under Article 222(4) TFEU to regularly
assess threats facing the Union. The Government is continuing
to work with other like-minded Member States to avoid any duplication
of existing mechanisms for producing threat assessments, and to
avoid any new obligations to share sensitive information."
1.10 The Minister notes that views continue to differ
on the geographical scope of the draft Decision, with some Member
States advocating a broader view (explicitly encompassing incidents
affecting ships and planes registered to a Member State when in
international airspace or waters, and off-shore critical infrastructure
in the exclusive economic zone or continental shelf of a Member
State), and others preferring a narrower view limited to incidents
affecting the territory of a Member State as defined in the EU
Treaties. He intends to work with "like-minded partners
to ensure an appropriate solution" to this and other outstanding
issues.
Conclusion
1.11 We thank the Minister for his latest update
and welcome the progress that has been made so far in negotiations.
1.12 We note that two important safeguards concerning
the application of the Solidarity Clause are only reflected in
the recitals, rather than in the body of the draft Decision.
The first concerns the requirement — set out in Article
222(3) TFEU — for a separate Council decision to implement
measures which have defence implications. The second concerns
the right of each Member State — expressed in Declaration
37 to the EU Treaties — to "choose the most appropriate
means to comply with its own solidarity obligation" towards
a Member State invoking the Solidarity Clause. Recitals 1 and
13 reflect both of these important principles but we ask the Minister
whether they should not also be incorporated in the operative
Articles of the draft Decision.
1.13 We share the Minister's concern regarding
the definition of the geographical scope of application of the
draft Decision. We ask him whether he considers that the scope,
as defined in Article 2 of the draft Decision, is consistent with
Article 355 TFEU which sets out the territorial scope of the EU
Treaties. Pending the Minister's reply, and a further update
on outstanding issues in the negotiations, the draft Decision
remains under scrutiny.
1 See Declaration No. 37 annexed to the Lisbon Treaty. Back
2
See headnote. Back
3
See para 15 of the Government's Explanatory Memorandum. Back
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