10 Implementing the EU solidarity clause
~
| (34627)
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 of the Solidarity Clause
|
| Legal base
| Article 222(3) TFEU; QMV
|
| Department
| Cabinet Office
|
| Basis of consideration
| Minister's letter of 2 May 2014
|
| Previous Committee Reports
| HC 83-xl (2013-14), chapter 1 (2 May 2014);
HC 83-xxxiii (2013-14), chapter 5 (12 February 2014); HC 86-xxxiii (2012-13), chapter 7 (27 February 2013)
|
| Discussion in Council
| No date set
|
| Committee's assessment
| Legally and politically important
|
| Committee's decision
| Cleared; further information requested
|
Background and previous scrutiny
10.1 The Solidarity Clause, enshrined
in Article 222 of the Treaty on the Functioning of the European
Union (TFEU), is intended to facilitate the more rapid mobilisation
of resources and ensure a better coordinated response in the event
of a terrorist attack or natural or man-made disaster affecting
a Member State. It imposes no obligation on the affected Member
State either to request or accept offers of assistance made by
other Member States. A Treaty Declaration relating to the Solidarity
Clause also makes clear that, if a request for assistance is made,
it is for each Member State to determine itself the most appropriate
means of providing assistance.[55]
10.2 The draft Council Decision establishes
the arrangements for implementing the EU Solidarity Clause and
makes clear that it should 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.
10.3 The Government broadly supports
the arrangements proposed in the draft Decision and considers
the Solidarity Clause to be "primarily a statement of political
intent" to be invoked in exceptional circumstances. It nevertheless
identified a number of concerns which are set out in our earlier
Reports.[56] Many of
these have been resolved during the course of negotiations but
two remain outstanding.
10.4 The first concerns the inclusion
of an "imminent" terrorist attack within the scope of
the response mechanism set out in the draft Decision. The Government
told us that there was a growing consensus to limit the practical
arrangements for implementing the Solidarity Clause to terrorist
attacks which were already underway and that it would continue
to work with other Member States to ensure a workable approach
and to avoid establishing obligations requiring Member States
to share sensitive information before, during or after a terrorist
attack.
10.5 The second concern arises from
differing views amongst Member States on the geographical scope
of the draft Decision, with some advocating a broader view (explicitly
encompassing incidents affecting ships and planes in international
airspace or waters when under the jurisdiction 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.
10.6 We asked the Government whether
it considered that the geographical scope of the draft Decision,
as defined in Article 2, was consistent with Article 355
TFEU which sets out the territorial scope of the EU Treaties.
We also noted that two important safeguards concerning the
application of the Solidarity Clause were only reflected in the
recitals, rather than in the body of the draft Decision. The
first (in recital 13) concerns the requirement — set out
in Article 222(3) TFEU — for a separate Council decision
to implement measures which have defence implications. The second
(in recital 1) 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. We asked
the Government whether both of these important principles should
not also be incorporated in the operative Articles of the draft
Decision. We also asked for a further update on outstanding issues
in the negotiation.
The Minister's letter of 2 May 2014
10.7 The Minister for the Cabinet Office
and Paymaster General (Mr Francis Maude) agrees with us that recitals
1 and 13 contain important safeguards concerning the application
of the Solidarity Clause and adds:
"We will continue to work with
like-minded partners to ensure that these important safeguards
are appropriately reflected within the Decision.
"There is broad agreement among
Member States that should any crisis require Common Foreign and
Security Policy (CFSP) action, this must be dealt with through
a decision taken by the relevant Council body. We are working
to ensure that it is clear in the Articles that the Decision has
no defence implications, and that the Decision satisfactorily
confirms that any CSFP action will be in accordance with relevant
Treaty provisions.
"As the Decision only provides
for the Union response to an invocation, rather than the response
of individual Member States, we are content for the reference
to Declaration 37 to appear in the recitals. We have been working
to avoid any obligations on Member States being included in the
Decision, contrary to the Declaration."
10.8 Turning to the geographical scope
of application of the draft Decision, the Minister observes:
"We believe that Article 355
[TFEU] is not incompatible with Article 2 of the proposal as currently
drafted. While the split in views between Member States on geographical
scope remains, we are continuing to negotiate on this point and
will work to ensure that the proposal does not extend EU competence
beyond that provided in the Treaties."
10.9 The Minister says that the Greek
Presidency continues to press for agreement before the end of
June and describes recent progress made in negotiations:
"There continues to be movement
towards an agreement on workable arrangements for drawing together
and coordinating the existing Union instruments that may be used
in a response, which respect the appropriate competences between
the institutions of the Union and between the EU and Member States.
The Government, with the support of Member States and the Commission,
has continued to support the principle that these arrangements
will function on the basis of no additional resources."
10.10 The Minister also describes the
progress made in clarifying the role of the European External
Action Service (EEAS) and the High Representative. The Government
has sought to ensure that the draft Decision:
"makes clear that any role
for the EEAS and High Representative would only be within existing
areas of competence. This may include, for example, a role for
the EEAS in providing information for situation reports when there
is an element of the crisis external to the EU. The current proposal
also sets out a role for the EU Military Staff in supporting the
identification of military capabilities that may be able to contribute
to a response, while making clear that any actions with defence
implications must be taken in accordance with CFSP provisions
of the Treaties. When it comes to the role of the High Representative
in developing threat assessments at EU level, we again believe
that this should again be done through existing information sharing
channels."
10.11 The Minister asks us to consider
lifting our scrutiny reserve as negotiations move towards their
conclusion, adding:
"My officials will continue
to work closely with like-minded Member States, the Commission
and the Presidency of the Council of the European Union to address
the remaining issues, and I will continue to keep you updated
on the developments."
Conclusion
10.12 We are grateful to the Minister
for providing us with the most recent Presidency compromise proposal
to inform our scrutiny. We agree with him that significant progress
has been made in negotiations, not least in ensuring that the
Council has a central role to play in coordinating the EU's political
and strategic response once the Solidarity Clause has been invoked.
We understand that the Presidency has proposed a satisfactory
compromise text on the geographical scope of the draft Decision
which the Government considers is "not incompatible"
with Article 355 TFEU setting out the territorial scope of the
EU Treaties. Given the evident importance of this issue in determining
when the Solidarity Clause may be invoked, we seek an assurance
from the Minister that the Government will only support the draft
Decision if it is satisfied that the provisions on geographical
scope remain consistent with the territorial scope of the EU Treaties.
We are willing, on that basis, to release the draft Decision
from scrutiny, given that negotiations are expected to conclude
in June, but ask the Minister to report back to us on the final
outcome of negotiations (whether successful or not) under the
Greek Presidency.
55 Declaration 37 annexed to the EU Treaties. Back
56
See headnote. Back
|
