CIVIL PROTECTION MECHANISM (8430/05, 8436/05)
Letter from Ed Miliband MP, Minister for
the Third Sector, Cabinet Office to the Chairman
I am writing in response to your letter of 19
July 2006[112]
regarding 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.
As I noted in my letter of 12 July 2006, the
Finnish Presidency intends to give priority to early agreement
of the Council Regulation, as the existing Regulation expires
on 31 December. As such, the Regulation now features on the agenda
of 5-6 October Justice and Home Affairs (JHA) Council. We understand
from the Finns that they are seeking political resolution of the
difficult questions concerning Community finance, but that they
do not intend to seek agreement to the entire Regulation. They
hope this will follow in December, probably in tandem with the
Civil Protection Mechanism Decision.
LEGAL BASE
The Commons European Scrutiny Committee continues
to have concerns about the use of Article 308 of the EC Treaty
as the legal base for the Regulation and Decision. The Commons
Committee believes that, for actions outside the Community (other
than in Bulgaria, Romania, Iceland, Liechtenstein and Norway),
the proposals do not meet one of the tests for the use of Article
308, namely that it is necessary for the operation of the common
market. The Commons Committee therefore asks for the Government's
view on whether references to third countries (other than those
listed above) should be removed from the proposals or whether
the UK should abstain or vote against the proposals.
As I noted in my previous letter, the Government
accepts that it is more difficult to satisfy the operation of
the common market test in the case of third countries. However
the Government, as in 2001 when the Committee raised similar concerns
over its use, believes that, for the reasons outlined below, the
use of Article 308 is acceptable in this case:
(a) as Jack Straw set out in his letter to Jimmy
Hood of 2 March 2004, the Government believes that it is not necessary
that every proposal under Article 308 should relate in a narrow
and restrictive sense to the operation of the common market;
(b) civil protection assistance helps to minimise
disruption and limit economic damage and therefore has a role
in the smooth operation of the common market. This is true for
assistance given within the Community, but also for assistance
given to third countries, albeit there is room for an alternate
view. One such example was the assistance given to the US by the
EU in the immediate aftermath of Hurricane Katrina;
(c) the third country aspects in the Decision
and Regulation are not prominent, they respect Member State competence
and will draw funding from the Stability Instrument, which has
Articles 179(1) and 181a as legal bases that do explicitly permit
action outside the Community; and
(d) there is no support within the Council for
the Committee's view that Article 308 is an inappropriate legal
base and therefore for the suggestion that the proposals should
use Article 181a as an additional legal base, Furthermore, there
is a clear evidence of a political will in the Council and in
the European Parliament that civil protection at the Community
level should encompass certain interventions outside the Community.
I am aware that the Committee might not be satisfied
with this decision. However, as there is no prospect of amending
the proposals in the way the Committee requests, the alternative
would be to veto a proposal which has widespread support within
the Council and covers such a vital policy area: providing mutual
support in the event of a disaster. An abstention would also effectively
count as a vote against as decisions are taken by unanimity. The
Government, as I previously stated, does intend to ask for a note
to be placed in the minutes of the Council reflecting UK concerns.
POLICY
The state of negotiations on the substance of
the proposals remains much as they were in my last letter to you,
with debate in the Council focussing primarily on the Commission
proposals to fund logistics support, to hire equipment and assets
and to fund transportation of assistance. The UK, together with
a small group of other Member States, has maintained reservations
on these areas and has already managed to secure significant amendments
from the original proposals. There is, however, strong support
from a number of other Member States for the adoption of the proposals
as currently drafted. As noted above, the Presidency has added
the Regulation to the agenda of the JHA Council on 5-6 October.
The UK intends to hold its present position and does not expect
a compromise proposal to be agreed at this stage.
I have previously apologised, in my letters
to you and to Jimmy Hood of 14 June 2006 (which followed my appointment
in May), for the delay in providing the Government's Explanatory
Memorandum on the Mechanism Decision. You ask in your letter of
19 July 2006 for the reasons for this delay. I am afraid that
I have to report that this was due to administrative delays within
my department. I can only apologise once more and assure you that
I will ensure my department does all it can to provide Memoranda
promptly in future.
5 October 2006
Letter from Ed Miliband MP to the Chairman
I am writing in following the Commons European
Scrutiny Committee's report of 25 October 2006 regarding 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.
POLICY
Negotiations on the Regulation are now coming
to a head. I have informed you previously that the Council is
split on whether Community funding should be available for the
transport of civil protection assistance and provision of equipment.
This remains the case. In an effort to break the deadlock, the
Finnish Presidency now intends to take this matter to the 4-5
December Justice and Home Affairs Council and possibly the 14-15
December European Council. It is unclear at present whether a
compromise position will be agreed.
The UK has maintained its opposition to Community
finance for civil protection transport and equipment through this
Regulation. We have, working together with a small group of other
Member States, been successful in significantly narrowing the
scope of the Regulation. However, the current compromise is still
unacceptable. It is possible that agreement might be reached which
allowed Community finance for transport in limited circumstances
and, Community finance for equipment under even more tightly restricted
criteria, if indeed it was available at all. However, it is also
possible that in the absence of an acceptable compromise the UK,
together with others or in isolation, might block adoption of
the Regulation.
If no agreement is reached on the Regulation,
the UK will instead continue to press, as it has done in a recent
joint non-paper issued with Germany, the Netherlands, Estonia
and Sweden, for a wide-ranging Fundamental Review of the Community's
approach to civil protection to be conducted over the next two
years. This would seek to establish a set of common principles
and a common understanding of this area in order to break the
impasse on this issue. At the same time we would repeat the call
made in the non-paper that the draft Financial Instrument be adopted
without the difficult articles relating to transport and equipment.
This would ensure that funding does not cease at the end of the
year.
LEGAL BASE
The Commons European Scrutiny Committee correctly
pointed out in its report of 25 October that I made an error when
maintaining in my letter of 5 October that abstention on the Regulation
would effectively count as a vote against and thus would veto
adoption of the Regulation. I apologise for this error. However,
the Govenment has not changed its position, for the reasons set
out in my last letter, that while it is more difficult to satisfy
the operation of the common market test in the case of third countries,
Article 308 is an acceptable legal base for this Regulation. Therefore
the Government feels that it would not be appropriate to abstain
on this Regulation and, if an acceptable compromise is reached
at the December Justice and Home Affairs Council, the Government
will vote in favour of the Regulation. As I have already indicated
in previous correspondence, the Government will ask for a note
to be placed in the minutes of the Council reflecting UK concerns.
27 November 2006
112 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, pp 424-425. Back
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