Select Committee on European Union Fortieth Report


Letter from Ed Miliband MP, Parliamentary Secretary, Cabinet Office to the Chairman

  I am writing to give your Committee an update on progress on the Explanatory Memoranda on Civil Protection Proposals submitted on 29 June 2005 and 14 June 2006:

    (a)  Document 8430/05 COM(05) 137 Commission Communication: Improving the Community Civil Protection Mechanism issued on 26 April 2005;

    (b)  Document 8436/05 COM(05) 113: Council Regulation establishing a rapid response and preparedness instrument for major emergencies issued on 26 April 2005; and

    (c)  Document 5865/06 COM (2006) 29: Council Decision establishing a Community Civil Protection Mechanism (Recast) issued on 2 February 2006.

  Each of the three documents has a different status and purpose. Document (a) is a Communication that set out the Commission's reasoning for improving civil protection. Document (b) is a Proposal for a Council Regulation that would provide the legal authority for financing civil protection actions (including preparedness and response) at European Union level. Document (c) is a proposal for a Council Decision that provides for the operational response arrangements for civil protection for which Document (b) is the legal act for financing. Documents (b) and (c) are closely interlinked.

  Document (a) has not been discussed at length in a Council Working Group because it is not a proposal for a draft Legal Instrument. However most of the basic ideas were reflected in Document (b) which was discussed at five meetings of a Council Working Group during the UK Presidency, and both Documents (b) and (c) have been discussed at nine meetings during the Austrian Presidency.


  Common themes and areas of agreement have emerged. There is general agreement that civil protection activity is an effective way of engaging mutual support in emergencies. There is also agreement on the principle of Subsidiarity, that civil protection is a national competence and that action at Community level must have added value. Member States are clear that the role of the Commission is to supplement national action and not replace it, which the Commission accepts.

  On specific proposals there is Member States agreement that:

    —  the proposed Council Regulation should take the form of a Council Decision whilst providing the proper safeguards for finance;

    —  the scope of civil protection should include the response to terrorist attacks and other man-made disasters;

    —  civil protection should be able to operate inside and outside the EU;

    —  marine pollution should be included for response actions but not for preparedness which is covered by other programmes;

    —  early warning systems for disasters affecting EU territory could be enhanced.

  There is also reasonably wide agreement on the need for tight criteria on the actions that would be eligible for funding and for sharper definitions in both legal instruments to make the actions and obligations of the Commission and Member States clear. Member States have pressed for improved co-operation between civil protection and humanitarian aid and co-ordination with the UN where they are present in a disaster area. The Commission appears to be willing to accept all these proposals.

  On the proposal for Modules, a working group of Member States set up by the Commission has reviewed options. The view that emerged from the group is that assistance could be delivered through modules such as search and rescue teams, water purification systems, field hospitals, medical supplies and material for shelter (eg tents, blankets). The Commission is expected to issue advice at a later stage on the composition of modules and is considering how these could best match the categories of disaster assistance used by the United Nations.


  The UK with a number of other Member States is concerned about the Commission proposals to acquire or fund logistics support, to hire equipment or assets and to fund transportation. During the discussions the Commission has offered further clarification. On logistics, it believes that experts loaned from national resources who are dispatched to assess needs or co-ordinate assistance in disaster areas require telecommunications systems and laptop computers for them to communicate with each other and with the Commission to send and receive reports. On equipment and assets, the Commission wishes to be able to hire such items where necessary in response to emergencies within the EU or to support national intervention teams sent out from the EU to areas affected by disasters.

  On transport, the Commission wishes to offer three options. First, they see a role for the Commission in seeking and co-ordinating offers of transportation from Member States including pooling of offers. Second, they would like to set up a framework contract with an air broker that would allow the Commission to establish what airlift might be available and at what cost so that a Member State needing transport facilities could make use of it with the Member State paying the costs. Third, the Commission would like to be able to fund transportation as a safety net should other options not be possible for countries unable to organise airlift.

  The UK and three other Member States have maintained reservations on these proposals. Whilst there may be an argument for the Commission providing basic support (eg laptops and satellite phones) for national experts contracted to the Commission for civil protection activity outside the EU, we believe that the provision of logistics, equipment and other support for national teams should remain a Member State responsibility either individually or, as in the case of the UK with the International Humanitarian Partnership, through close co-operation with other Member States.

  Likewise, on transportation and the provision of equipment in response to emergencies within the EU, the UK along with a number of other Member States believes that this should remain a national responsibility and that where mutual support has been requested through the mechanism, the country requesting assistance should, in principle, meet the costs incurred although, of course, a country offering help might be willing to waive them. The availability of Commission funded assets could deter Member States from building up their own capabilities thereby reducing the EU's resilience overall. The UK and other Member States argue that for disasters outside the EU the responsibility should also be primarily a national although the Commission could have a co-ordinating role in helping Member States to work together by pooling resources.


  An area that continues to cause problems for the UK is the use of Article 308 as the legal base. As the Committee has noted there are three tests for the use of Article 308 namely if it is necessary in the operation of the common market; to attain an objective of the Treaty; and because the Treaty has not provided the necessary power elsewhere. Civil protection satisfies two of the tests because it is listed as a Community objective in Article 3 1(u) of the Treaty and there is no other appropriate Article.

  On the operation of the common market test, the Government considers that it is satisfied where civil protection operates inside the EU, in the two Accession Countries (Bulgaria and Romania) and in the three European Economic Area countries (Iceland, Liechtenstein and Norway). The rationale is that civil protection intervention can serve to assist the operation of the common market because it aims to prepare for and to respond to major emergencies affecting people, the environment or property. In an emergency it can help ensure that people are not prevented from doing their jobs or going about their daily life; that disruption is minimised; and that normal services are resumed quickly so mitigating potential economic damage by early intervention.

  The Government accepts, however, that in the case of civil protection activity outside the EU, the two Accession states and the three EEA countries it is more difficult to satisfy the operation of the common market test in Article 308. The UK has raised these doubts in the Council Working Group considering the Commission proposals and individually with a number of Member States that usually share UK concerns. We have found no support at all for the UK doubts, with all other Member States and the legal services of Council and Commission being content with Article 308 as a sole legal base and noting that it has been the legal base for previous civil protection legislation.

  We have raised the suggestion of the Commons Scrutiny Committee that in addition to Article 308 the proposals should use Article 181a. Again that has received no support and doubts have been raised about the legal uncertainty that a dual legal base might create, since Article 181a uses qualified majority voting whilst Article 308 calls for unanimity. It has been pointed out that for civil protection response outside the EU the Commission has just confirmed that it will have access to €8 million each year from the Stability Instrument budget allocation which itself uses Articles 179(2) and 181a that allow assistance to third countries in response to disasters or emergencies. Other Member States, therefore, see the use of civil protection outside the EU as consistent with related legislation. In the absence of any support we shall reluctantly have to accept the use of Article 308 but ask for a note to be placed in the minutes of the Council working group of the UK concerns.

  Discussions on the areas of disagreement will continue through the forthcoming Finnish Presidency. Finland has indicated that it will give priority to early agreement and Council approval on the Council Regulation because the existing financial legislation expires on 31 December. Finland will then move on to the Civil Protection Mechanism Decision with the intention of obtaining agreement and approval in the Council in December. We are currently holding discussions with the Finns and I shall write to update you on future developments.

12 July 2006

Letter from the Chairman to Ed Miliband MP

  Sub-Committee F (Home Affairs) of the European Union Select Committee considered this proposal (5865/06) at a meeting on 19 July 2006.

  As I am sure you know, Cabinet Office guidance requires Explanatory Memoranda to be sent within 10 working days of the deposit of the document. In this case it took over four months. While we note your letter of apology, we would be glad to know the reason for the delay. It would also be very helpful if the paragraphs in an Explanatory Memorandum, especially one of this length, could be numbered.

  The Explanatory Memorandum states that the "Explanatory Memorandum [on the earlier proposed Council Regulation, document 8436/05] is being held by the Committees awaiting clearance". In fact that proposed Council Regulation was cleared from scrutiny by this Committee in January: see my letter to your predecessor of 19 January 2006[181], of which I attach a copy (not printed).

  The Committee considered both this Explanatory Memorandum and your letter of 12 July. We are grateful for this further information.

  You will know from my letter of 19 January that we still had our doubts about the legal base, but were prepared to accept the view in Jim Murphy's letter of 14 December 2005 that there was a sufficient connection between civil protection and the operation of the common market. The Explanatory Memorandum of 14 June 2006 stated only that "On the use of Article 308 as the legal base, the Government is currently reviewing the options". It seems however from your letter that this review had already taken place. We are glad to see that Government lawyers shared our doubts, and those of the Commons European Scrutiny Committee, and are concerned that neither the Council nor the Commission legal service, nor any other Member State, seems to share these doubts. We agree that you should place on record the UK's reservations.

  All the matters listed in your letter under the heading "Areas of disagreement" are matters which also caused us concern; in particular, we too doubt whether the Commission has much, if anything, to add when it comes to the supply of equipment and transport, over and above what the Member States can provide individually and collectively. We note that the UK and a number of other Member States believe that this should remain a national responsibility. We hope that you will continue to put this view forward.

  We are clearing this document from scrutiny, but would be grateful to be kept informed of progress in the negotiations on this instrument.

19 July 2006

181   Correspondence with Ministers, 45th Report of Session 2005-05, HL Paper 243, p 500. Back

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