Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Public Administration and Constitutional Affairs Committee
Proposed Decision amending Decision No 1313/2013/EU on a Union Civil Protection Mechanism
Article 196 TFEU, ordinary legislative procedure, QMV
(39265), 14884/17, COM(17) 772
2.1The EU Civil Protection Mechanism enables Member States to coordinate their response to natural and man-made disasters within and beyond the EU. It was overhauled in 2013 to strengthen the focus on disaster prevention and risk management and enhance the collective operational capacity of the EU and Member States to plan for and respond to disasters. The Emergency Response Coordination Centre is the operational hub of the Mechanism. It is supported by a voluntary pool of resources committed in advance by Member States to respond to emergencies (the European Emergency Response Capacity).
2.2The EU Civil Protection Mechanism is funded until the end of 2020. A new funding instrument will be needed to continue the Mechanism beyond 2020. The Commission considers that changes need to be made before then to increase the focus on prevention and disaster risk management as well as the assets available to the Mechanism so that it can respond at times when Member States’ own capacities are stretched to their limits. It says that the EU Civil Protection Mechanism as it currently operates cannot meet the demands placed on it—in 2017 alone, it was unable to respond to 7 (out of 17) requests for assistance to fight forest fires.
2.3The proposed Decision would make “targeted changes” to the EU Civil Protection Mechanism which are intended to address capacity gaps and ensure that the Mechanism is equipped to respond to a range of emergency situations. The Commission proposes a dual system based on “two complementary pillars”:
2.4As well as strengthening the capacities available to the EU Civil Protection Mechanism, the Commission envisages a more proactive role for itself in overseeing the risk assessments and disaster risk management plans developed by Member States to ensure that effective prevention measures are in place across the EU and that rescEU is not used as a substitute for national disaster response capacities. Other changes proposed include establishing a Civil Protection Knowledge Network to share best practice, strengthening coherence with other EU policies and funding instruments, and streamlining administrative procedures so that assistance can be deployed more rapidly.
2.5The Government expressed concern that the changes proposed by the Commission had pre-empted negotiations (expected to begin this year) on a new legislative instrument to take effect from the beginning of 2021 and were not accompanied by an Impact Assessment, making it “difficult to assess the validity of some of the Commission’s assertions”. Whilst welcoming the Commission’s focus on enhancing prevention and preparedness-planning and supporting Member States in building their disaster response capabilities, the Government said there was “no evidence […] to support the conclusion that the Commission’s ownership of assets would significantly reduce deaths, damage and economic losses from natural disasters”. The Government recognised that civil protection was likely to be “an important area for future cooperation between the UK and the EU” post-exit and that the outcome of negotiations on the changes proposed by the Commission would affect the structures within which that cooperation would take place.
2.6We asked the Government for further information on the extent of the EU’s competence to act in the field of civil protection (the relevant powers are contained in Article 196 of the Treaty on the Functioning of European Union—TFEU), as well as the need for and “added value” of a dedicated reserve of EU response capacities (rescEU), and the broader policy and Brexit implications of the changes envisaged to the EU Civil Protection Mechanism.
2.7Whilst reiterating the Government’s support for the Commission’s commitment to improve the operation of the EU Civil Protection Mechanism, the Minister for Implementation at the Cabinet Office (Oliver Dowden) expands on the areas of concern. In summary:
2.8The Minister says that “many Member States have expressed similar views to the UK” on rescEU and the European Civil Protection Pool. The Council will shortly begin to negotiate changes to the proposed Decision. The European Parliament is expected to vote on its negotiating position in May. The Commission is keen to complete negotiations “as soon as possible and preferably before the end of 2018”.
2.9We thank the Minister for his helpful and informative response. On the question of the EU’s competence to act under Article 196 TFEU on civil protection, the Minister draws a distinction between setting up rescEU (which would, in his view, be in line with Article 196 TFEU) and giving the Commission the power to make decisions on the deployment of rescEU assets and exercise command and control over them (which would not). We question whether this distinction is sustainable. If the EU has the power to establish its own autonomous disaster response capability, it would seem to follow that it must also be able to decide when and how to deploy it. We ask the Minister to explain how decisions on the deployment of rescEU assets should be taken and who should exercise command and control over them, given that the assets would not be the property of individual Member States.
2.10We note that at least some of the Government’s concerns are shared by other Member States. We ask the Minister to provide progress reports on negotiations within the Council which explain how these concerns are being addressed and to update us before the Presidency seeks a mandate to begin negotiations with the European Parliament. We also ask him to set out the Government’s position on the changes sought by the European Parliament once it has finalised its negotiating mandate in May. Pending further information, the proposed Decision remains under scrutiny. We draw this chapter to the attention of the Public Administration and Constitutional Affairs Committee.
2.11Our earlier Report listed at the end of this chapter provides a detailed overview of the Commission proposals and the Government’s position.
2.12We sought further information on:
2.13We asked the Government to clarify its position on the limits of the EU’s competence under Article 196 TFEU and to explain whether this Article gave sufficient powers to the EU to establish rescEU. The Minister responds:
“RescEU is in line with Article 196 TFEU to the extent that it is used where existing capacities at the national level are not sufficient. In such instances, rescEU may be considered as a supporting and complementing measure. However, the Government is of the view that to the extent that the proposals regarding rescEU would give the Commission the power to make decisions on deployment of assets and maintain command and control over assets on the ground, the current proposal exceeds the limits of the EU’s competence under Article 196 TFEU. The UK is also of the view that developing assets at the EU level has the potential to undermine the effectiveness of prevention, preparedness and response activities at the national level.”
2.14We shared the Government’s concern that the Commission had failed to produce an Impact Assessment, but questioned whether it was fair to conclude that there was “no evidence” that rescEU would make some contribution to reducing loss of life and environmental and economic damage, even if the scale of the contribution might be open to question. We asked:
2.15The Minister responds:
“The Commission’s proposal for rescEU is currently composed of aerial forest firefighting planes, high capacity pumping modules, urban search and rescue, and field hospitals and emergency medical teams. The Commission has cited long-standing logistical and operational experience, high political interest and several assessments of UCPM including the Court of Auditors special report on the UCPM and the UCPM Interim Evaluation as the basis for identifying these assets.
“Without an Impact Assessment, the Government cannot take a view on whether there is a shortfall in capacity at the European level in all of the areas identified, or that the proposed solution is the most cost-effective means of addressing any shortfall. For example, the UN’s International Search and Rescue Advisory Group recognise at least 27 internationally accredited Search and Rescue teams are available across Europe. The recent UCPM performance reports concluded that the UCPM works well, with the role of the Commission limited to supporting and coordinating the activity of Participating States.
“However, the Government does recognise that there may be a shortage of capability to deal with forest fires. The Government’s view remains that national governments are primarily responsible for planning to ensure that all natural and man-made risks are managed appropriately. This includes risk prevention/mitigation, preparedness (including training and exercising of responding organisations), response (including capabilities required to manage a reasonable worst-case scenario) and recovery.
“The UK will encourage and work with the Commission and other Member States to examine alternative and cost-effective ways to address any shortfall in capacities identified at the European level. This might include reviewing Article 12 of the existing Decision 1313/2013/EU for addressing response capacity gaps, and encouraging greater collaboration between European countries facing similar risks in developing shared response capacities (we note, for instance, that Estonia, Latvia and Lithuania have developed a shared high-capacity pumping capacity for dealing with flooding events). The Government position is that activity by the European Commission should not undermine, or be a substitute for, States’ own investment in core civil protection capabilities. Assets should not, therefore, be directly owned or operated by the Commission.”
2.16We noted the Commission’s position that rescEU should “not be a substitute for efforts at national, regional and local level” and that it should only operate as “a last resort capacity” in response to disasters “that are exceptional in scope or nature” and at times when “national capacities are insufficient or overwhelmed”. We suggested that other changes proposed by the Commission (which the Government supported) appeared to reinforce its position that rescEU should not reduce capacity at national level—for example, greater oversight and monitoring of risk assessments and disaster risk management planning at national and sub-national level, more incentives for Member States to contribute assets to the voluntary European Civil Protection Pool, and the introduction of an element of conditionality in future EU funding for disaster prevention measures at national level. We asked whether the Government’s concerns could be allayed by amendments to the text of the proposed Decision which, for example, would make clear that rescEU would only operate as a “last resort capacity” or give the Council rather than the Commission the power to decide on the future composition of rescEU.
2.17The Minister says that textual amendments of this nature “would not appear to reduce the risk outlined above—particularly the potential undermining of national responsibilities for safety and security”. He adds:
“On the issue of capacity goals, greater Council control would strengthen the proposal, but would not be determinative on our overall position, due to the wider weaknesses that have been identified.”
2.18We noted that assets made available to the European Civil Protection Pool would “remain available for national purposes at all times” and, once deployed, would “remain under the command and control of the Member States making them available”. The requirement to “consult” the Commission would only arise if a Member State intended to withdraw assets after their deployment, during the lifetime of an operation. We suggested that this was not unreasonable, given the Commission’s coordinating role, provided it had no power to resist the withdrawal of assets.
2.19The Minister makes clear that any assistance provided to the European Civil Protection Pool (“ECPP”) “must be in the spirit of voluntary cooperation” and that there should be “no compulsion to provide assistance requested by other countries, or the Commission”. He continues:
“The Government’s principal concern in relation to changes from the previous Voluntary Pool is in the proposed amendments to Article 11, Clause 7—in particular, the replacement of ‘domestic emergencies, force majeure or, in exceptional cases, serious reasons’ with ‘an exceptional situation substantially affecting the discharge of national tasks’ as the reasons why a Participating State can refuse a request to deploy an ECPP asset. The Commission has cited alignment with wording for FRONTEX legislation as a reason for this change, but this also appears to have the effect of strengthening the Commission’s control over ECPP assets, and setting an exceptionally high bar for refusal on the part of the Participating State (although there does not appear to be any legal ramification for refusal). We are seeking clarification from the Commission as to why, other than bureaucratic simplicity, this change is being sought.”
2.20Under the Commission’s proposal, the EU would only subsidise (co-finance) assets that are part of the European Civil Protection Pool, not those which are outside the Pool and made available on an ad hoc basis—a change which the Commission describes as “a significant shift compared to the situation today”. We asked the Government to explain how this would affect the UK and how much funding for its own disaster response capacities the UK might stand to lose.
2.21The Minister responds:
“The principal means by which the UK currently benefits from the Mechanism is via co-financing of transport for assets outside of the Voluntary Pool, in response to an international emergency. The UK would no longer benefit from this incentive under the Commission’s new proposal to remove financial incentives for transporting assistance for countries deploying outside of the Pool framework. DFID [the Department for International Development] is the main government department to benefit from transport assistance and does not currently have any assets committed in the Pool. Between 2013 and 2017, DFID undertook 226 movements of people and equipment via the UCPM. The UK provided more than 5,000 tonnes of assistance items, worth nearly €50m, and sent more [than] 1200 experts to assist in disaster response on the ground. DFID received around €15m funding from the Commission to co-finance the transport of assistance during this period.
“Member States should not be penalised for providing assistance in different forms. Recent emergencies have shown the uniqueness of every situation, and the requirement for items that have not previously been identified as a need. For example, in response to a specific need during the 2016 Haiti hurricane response, DFID sent a quantity of timber for rebuilding damaged homes. Under the current proposals, such assistance would not qualify for co-financing. Given the unpredictability of requirements in emergencies, flexibility needs to be retained to co-finance unforeseen assistance. The UK and other Member States including Germany, the Netherlands, Denmark, Austria and Sweden share this view.”
2.22We noted that the EU Civil Protection Mechanism was open to participation by non-EU members of the European Economic Area “and other European countries when agreements and procedures so provide”. Six non-EU countries currently participate in the EU Civil Protection Mechanism. We sought a general indication of the terms on which they are able to participate and the extent to which these would provide a suitable model for the UK, given that the Government has highlighted civil protection as an important area for future cooperation between the UK and the EU post-exit.
2.23The Minister confirms that participation in the EU Civil Protection Mechanism is not limited to Member States:
“Other non-EU countries negotiate a treaty and payment to participate in the CPM. The UK would have to negotiate its agreement for post-Exit participation in the UCPM.”
2.24Turning to UK cooperation with the EU in this field post-exit, the Minister draws attention to the Government’s future partnership paper on Security, Law Enforcement and Criminal Justice published in September 2017 which states:
“There are are clear benefits for both the UK and the EU in coordinating efforts to protect citizens by making best use of resources and ensuring that complementary action is taken in areas with common objectives, such as… civil protection.”
2.25This position is also reflected in the Government’s future partnership paper on Foreign Policy, Defence and Development. The Minister adds, however, that this position was based on “civil protection arrangements—including the UCPM—as they stood at the time, which include the ability for non-EU countries to participate in the Mechanism through an existing treaty-based route defined in the UCPM legislation”. He continues:
“If the current set of proposals change the Mechanism, it would be necessary to reflect whether those changes affect the Government’s policy position.”
2.26The Minister makes clear that the UK’s future relationship with the EU “remains a live and developing issue”.
2.27The Minister tells us that negotiations within the Council are in their initial stages and that “many Member States have expressed similar views to the UK” on rescEU and the European Civil Protection Pool. He continues:
“Following receipt of additional information on the proposals from the Commission, the Council will shortly progress to negotiating text changes to the proposed legislation. The Government agreed its negotiation mandate on 9 March and officials will continue to work with the Commission and other Member States in line with this mandate. The Commission has expressed an intention to complete the negotiation process as soon as possible and preferably before the end of 2018.
“The proposals for legislative change are subject to the co-decision procedure in the European Parliament (ENVI committee). The European Parliament rapporteur provided a draft report on the proposals on 20 March. A vote in the European Parliament is due to take place on 16–17 May 2018 to agree the Parliament’s position on the current set of proposals. MEPs are broadly supportive of the Commission’s proposals to improve the UCPM. However, MEPs have expressed scepticism over the Commission’s proposal to own specific civil protection assets such as field hospitals. MEPs have also shared concerns about the potential impact of the proposals on State sovereignty when dealing with natural disasters within their own borders—a concern echoed by the UK and other Member States.”
Eleventh Report HC 301–xi (2017–19),(24 January 2018).
26 See paras 16 and 19 of the Explanatory Memorandum provided by the then Minister for Government Resilience and Efficiency (Caroline Nokes).
27 The Commission does not claim that rescEU would result in a “significant” reduction, rather that it would bring “clear added value” and “benefits in terms of reducing the loss of human life, environmental, economic and material damage”—see p.3 of the Commission’s explanatory memorandum accompanying the proposed Decision.
28 Article 12(3) of provides: “The Commission shall encourage Member States to address, either individually or through a consortium of Member States cooperating together on common risks, any strategic capacity gaps that have been identified.”
29 See pp.5 and 10 of the Commission Communication (Council document ) accompanying the proposed Decision.
30 See Article 11(6) of on a Union Civil Protection Mechanism and the amended Article 11(8) in the proposal.
31 See p.5 of the Commission Communication (Council document ) accompanying the proposed Decision.
32 The former Yugoslav Republic of Macedonia, Iceland, Montenegro, Norway, Serbia and Turkey.
Published: 1 May 2018