Abstract
This chapter aims at analyzing the legal framework governing disaster prevention, preparedness and response at EU level, with specific regard to emergencies occurring inside the Union. First, the origin and the development of the European cooperation in the field of civil protection are illustrated. Such a cooperation has led to important results, notably to the establishment of the Civil Protection Mechanism (CPM) which has acted successfully in an ever increasing number of emergencies. However, before the entry into force of the Treaty of Lisbon the further development of a European response capacity was limited by the absence of an adequate legal basis. The Lisbon Treaty has opened up new opportunities in subiecta materia, introducing into primary law a new ‘clause of solidarity’ (Article 222 TFEU) and a specific EU competence in the area of civil protection (Article 196 TFEU). The author analyzes the scope and legal effects of the solidarity clause, both vis-à-vis the EU and its Member States, arguing that the norm provides a binding legal obligation of assistance, even if characterized by a margin of discretion as to its actual implementation. The possible relevance of Article 222 either for the establishment of a new machinery dealing with disasters or for enhancing the existing mechanism for civil protection is also assessed. As for the new competence in the area of civil protection, the opportunities stemming from the new provisions are discussed as well as the limitations deriving from its classification as a ‘complementary’ or ‘supporting’ competence (Article 6 TFEU). Finally, the chapter describes the initiatives recently undertaken in order to review, and reinforce, the current CPM: the most delicate issues are discussed and possible solutions are outlined.
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Notes
- 1.
See European Commission, Communication ‘Towards a stronger European disaster response: the role of civil protection and humanitarian assistance’, COM (2010) 600, 26 October 2010, 4.
- 2.
See also BIICL 2010, 6.
- 3.
Resolution of 25 June 1987 on the introduction of Community cooperation on civil protection, OJ 1987 C 176/1; Resolution of 13 February 1989 on the new developments in Community cooperation on civil protection, OJ 1989 C 44/3; Resolution of 23 November 1990 on Community cooperation on civil protection, OJ 1990 C 315/1; Resolution of 8 July 1991 on improving mutual aid between Member States in the event of natural or technological disasters, OJ 1991 C 198/11; Resolution of 31 October 1994 on strengthening Community cooperation on civil protection, OJ 1994 C 33/1; Resolution of 26 February 2001 on strengthening the capabilities of the EU in the field of civil protection, OJ 2001 C 82/11.
- 4.
See also Cremona 2011, 12.
- 5.
Council Decision 98/22/EC of 19 December 1997 establishing a Community Action Program in the field of Civil Protection, OJ 1998 L 8/20. A first 2-year Action Program (1998–1999) was followed by a second 5-year Action Program (2000–2004)—Council Decision 1999/847/EC of 9 December 1999, OJ 1999 L 327/53—extended till 2006.
- 6.
Council Decision 2001/792/EC, Euratom of 23 October 2001 establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions, OJ 2001 L 297/7.
- 7.
See European Commission, Communication ‘Improving the Community Civil Protection Mechanism’, COM (2005) 137, 20 May 2005, 2. See also Missiroli 2005.
- 8.
Ibid.
- 9.
OJ 2007 L 314/9.
- 10.
House of Lords 2009, 6.
- 11.
See infra, Sect. 5.3.
- 12.
On the concept of ‘legal basis’, in the light of the ‘principle of conferral’, see also, with specific regard to civil protection, Cremona 2011, 11–12.
- 13.
Article 3(t), later becoming Article 3(u).
- 14.
In the European Convention, there was a general feeling that ‘it was an anomaly to have subject matters mentioned in TEC Article 3 without having any corresponding Treaty article setting out the policy objectives and the competence’: Final report of Working Group V ‘Complementary Competencies’, CONV 375/1/02, 4 November 2002, 15. A number of measures having a bearing on disaster management and response were adopted under the legal bases offered by the Treaty provisions concerning other policies, such as environmental protection (Article 174 TEC) and health safety or by the Euratom Treaty as regards nuclear safety. See also Cremona 2011, passim and Chap. 4 by Gioia, in this volume.
- 15.
The European Convention, Final report of Working Group VIII ‘Defence’, CONV 461/02, 16 December 2002, 21.
- 16.
- 17.
See von Ondarza and Parkes 2010, 2; Myrdal and Rhinard 2010, 4; Konstadinides 2011, 6. Notably, the final report of the WG Defence (supra, n. 15) stated: ‘Taking this enhanced solidarity further, and to strengthen the existing Community mechanism, a situation might be envisaged in which a pool of specialised civilian or military civil-protection units identified by the Member States undertakes joint training and intervention coordination programmes so as to facilitate more effective intervention in the event of natural or humanitarian disasters within the Union’.
- 18.
Sur 2007, 574.
- 19.
von Ondarza and Parkes 2010, 3–4.
- 20.
See also European Commission, ‘Towards a stronger European disaster response’ supra n. 1, 5: ‘The EU disaster response capacity should address all types of disasters (i.e., natural and man-made, other than armed conflicts) that overwhelm national response capacities and result in a need for EU assistance…’.
- 21.
See also Sur 2007, 574.
- 22.
European Council, ‘The Stockholm Programme—An open and secure Europe serving and protecting citizens’, OJ 2010 C 115/25.
- 23.
Emphasis added.
- 24.
- 25.
See von Ondarza and Parkes 2010, 4. For instance, after the terrorist attacks in Mumbai the need emerged to organize the medical evacuation of a great number of EU citizens. The MIC (see infra) was activated in that respect and that led to the deployment of a Swedish aircraft which evacuated UK and Spanish citizens from India.
- 26.
See also Sur 2007, 577.
- 27.
Grevi 2007, 818.
- 28.
Cremona 2011, 29–30.
- 29.
European Parliament, Resolution of 27 September 2011 on ‘Towards a stronger European disaster response: the role of civil protection and humanitarian assistance’, doc. P7_TA-PROV(2011)0404, para 3 [emphasis added]. See also the Report of 19 July 2011 by Elisabetta Gardini (doc. A7-0283/2011).
- 30.
Myrdal and Rhinard 2010, 6.
- 31.
See also Stavros Dimas, European Commissioner for the Environment, ‘The third Civil Protection Forum: developing Europe's resilience to disasters, Civil Protection Forum, Towards a more resilient society’, Brussels, 25–26 November 2009, SPEECH/09/556 (‘obligation of Member States to assist each other’). In the legal literature, the binding nature of the duty stemming from Article 222(2) TFEU is underlined by Sur 2007, 578; von Ondarza and Parkes 2010, 2. In the same vein, cf. Myrdal and Rhinard 2010, 8, even if they add that ‘it is hard to imagine a Member State being called to the Court of Justice for violation of the clause’.
- 32.
Supra, n. 29, para J [emphasis added].
- 33.
See also Gaja and Adinolfi 2010, 160.
- 34.
See, in that direction, ECJ, Case C-193/99 Kaur [2001] ECR I-1237, para 13. See also Adam and Tizzano 2010, 121.
- 35.
The provision of Article 222 TFEU has to be read in conjunction with the principle of sincere cooperation envisaged in Article 4(3) TFEU. See also Konstadinides 2011, 15.
- 36.
Myrdal and Rhinard 2010, 6.
- 37.
Sur 2007, 578.
- 38.
See European Commission, ‘Proposal for a Decision of the European Parliament and of the Council on a Union Civil Protection Mechanism’, COM (2011) 934, 20 December 2011, 3 (the Commission and the HR ‘will bring forward a proposal in 2012’).
- 39.
See Council Decision (2010/131) of 25 February 2010 on setting up the Standing Committee on operational cooperation on internal security, OJ 2010 L 52/50. The COSI consists of high-level officials from Member States’ ministries of the interior and of Commission representatives (Eurojust, Europol, Frontex and other relevant bodies may be invited to attend meetings of the Committee as observers). Under Article 3(3) of the Decision ‘the Standing Committee shall assist the Council in accordance with the provisions of Article 222 of the Treaty’.
- 40.
Those EU competences may be characterized as ‘parallel’ to those of the Member States: Gaja and Adinolfi 2010, 140.
- 41.
- 42.
Doc. 15394/09. See also the European Parliament Recommendation to the Council of 14 December 2010 on setting up EU rapid response capability, INI/2010/2096, para E.
- 43.
Under that provision, ‘Legal acts adopted by legislative procedure shall constitute legislative acts’.
- 44.
One could in any case conceive the adoption of Regulations having a practical, concrete relevance, for instance for the establishment of financial programs.
- 45.
Supra, n. 9.
- 46.
OJ 2007 L 71/9. See Chap. 26 by Palandri, in this volume.
- 47.
Supra, n. 38.
- 48.
In any case, where particularly important, reference will be made in the following footnotes to relevant provisions of the 2011 Proposal.
- 49.
A total of 31 States currently participate in the CPM (the 27 EU State members, Croatia, Iceland, Lichtenstein and Norway). See Article 10 of the 2007/779 Decision (supra n. 9) and Article 28 of the Proposal on a UCPM (supra n. 38), according to which the UCPM shall be open to the participation of members of the European Economic Area, acceding countries, candidate countries, and potential candidates.
- 50.
The increasing importance of the CPM has to be stressed. In its first year of operation (2002), the Mechanism was mobilized three times; in 2009, 27 times. Approximately half of operations have dealt with disasters occurring within the EU: see European Commission, ‘Towards a stronger European disaster response’, supra n. 1, 4.
- 51.
See, in the same vein, Article 1(2) of the Commission Proposal for a decision on a UCPM (supra n. 38) which also refers to ‘acute health emergencies’.
- 52.
See Chap. 1 by de Guttry, in this volume.
- 53.
Acts of terrorism were not mentioned in the definition set forth in the 2001 Decision, but there was a general consensus that those acts could determine the activation of the CPM. See House of Lords 2009, 6.
- 54.
Chapter 1 by de Guttry, in this volume.
- 55.
The 2011 Commission Proposal (supra n. 38) refers to a notion of ‘disaster’ which basically follows that envisaged by the Decision of 2007, even if it appears more accurate (see Article 1(2) and (4)).
- 56.
Ibid.
- 57.
Decision 2007/779, supra n. 9, recital 7.
- 58.
Commission Decision 2004/227/EC, Euratom of 29 December 2003, OJ 2004 L 87/20, as amended by Commission Decision 2010/481/EU, Euratom of 29 July 2010, OJ 2010 L 236/5.
- 59.
High capacity pumping, Water purification, Medium urban search and rescue, Heavy urban search and rescue, Aerial forest firefighting using helicopters, Aerial forest firefighting using airplanes, Advanced medical post, Advanced medical post with surgery, Field hospital, Medical aerial evacuation of disaster victims, Emergency temporary shelter, CBRN detection and sampling, Search and rescue in CBRN conditions, Ground forest firefighting, Ground forest firefighting using vehicles, Flood containment, Flood rescue using boats (ibid.).
- 60.
BIICL 2010, 19. For an overview of the tasks of the MIC, see also http://ec.europa.eu/echo/civil_protection/civil/prote/mic.htm (accessed 4 March 2012).
- 61.
But see Article 15 of the Proposal for a new decision on a UCPM, supra n. 38, under which assistance has to be requested through the ERC.
- 62.
It has to be noted that Article 6 of the 2007/779 Decision, supra n. 9, provides that a Member State in which an emergency capable of causing transboundary effects occurs is under an obligation to notify the Commission and those Member States which may be affected.
- 63.
The system needed a number of years to be developed, but it became operational since July 2007. On the functioning of CECIS, see the testimony of E. Dobson, House of Lords 2009, 3.
- 64.
See also the testimony of H. Das, Deputy Head of Unit, Civil Protection, European Commission: House of Lords 2009, Minutes of Evidence, 2.
- 65.
European Parliament recommendation of 14 December 2010, supra n. 42. See the Foreword by Commissioner Georgieva, in this volume.
- 66.
Barnier 2006.
- 67.
See, e.g., Resolution of 4 September 2007 on this summer’s natural disasters, P6_TA (2007) 0362 para 9; Recommendation of 14 December 2010, supra n. 42, para 1(g).
- 68.
von Ondarza and Parkes 2010, 3.
- 69.
European Council, Presidency Conclusions, 15–16 June 2006, para 12.
- 70.
Supra n. 1.
- 71.
European Commission, report from the first stakeholder consultation meeting on the preparation of legislative proposals reviewing the EU Civil Protection Regulatory Framework, Brussels, 6 April 2011. See also Report from stakeholder consultation meeting: Impact Assessment for the Commission Communication on Reinforcing the EU’s Disaster Response Capacity, Brussels, 22 July 2010.
- 72.
Supra n. 38. The Proposal will be here discussed exclusively as far as civil protection within the EU concerned. For the aspects concerning EU action in third States, see Chap. 6 by Casolari, in this volume.
- 73.
See the statement made by Commissioner Georgieva before the European Parliament, on 27 September 2011, during the debate on the Report submitted by E. Gardini (supra n. 29): ‘in the Barnier report, from which we have adopted a total of 12 proposals, the idea is to integrate the capabilities of Member States but there the approach was more top-down, whereas what we are coming with is bottom-up’, CRE 27 September 2011.
- 74.
For instance, the Government of the United Kingdom ‘would resist moves to prioritise EU operations over national purposes, or to introduce a legal presumption that Member States will pre-commit disaster response assets for EU operational deployment in any way limiting their right to decide how such assets should be deployed whether domestically or internationally’: Explanatory Memorandum of 15 November 2010, submitted to the House of Commons by the Minister for Security at the Home Office (Baroness Neville-Jones). Moreover, during the stakeholder consultation meeting of 22 July 2010 ‘some participants noted that circumstances in which the Member States could refuse deploying assets committed to the pool should remain relatively broad’ (supra n. 71). It may be worth adding that this position seems to be generally supported by regional and local authorities, as shown by the Opinion of the Committee of the Regions of 1 July 2011, OJ 2011 C 192/15, noting inter alia that ‘civil protection is essentially a task for Member States and their regional and local bodies, whose authority should not be infringed upon’ (para 33), and welcoming the abandonment of the idea of a European Civil Protection Force (para 34).
- 75.
See, e.g., the Resolution of 27 September 2011, supra n. 39, paras. 23–24.
- 76.
See for instance the Explanatory Memorandum of the UK Minister for Security at the Home Office, supra n. 74.
- 77.
Ibid.
- 78.
Council Conclusions on Host Nation Support of 22 September 2010 (doc. 15874/10).
- 79.
See Commission Staff Working Paper, ‘Impact Assessment—2011 review of the Civil Protection regulatory framework’, doc. SEC (2011) 1632, 20 December 2011, 18.
- 80.
ECORYS 2009, 10.
- 81.
Oral testimony of Mr Das, House of Lords 2009, 16. According to the Deputy Director, the only case in which there was a request of assistance (namely from Bulgaria) which was not matched with offers of help had to do with the forest fire season in 2007. In that case, there had been simultaneous requests from several Member States and when Bulgaria requested the assistance there was no forest fire fighting asset available.
- 82.
See, in this respect, Gestri 2011.
- 83.
Regulation 2007/2004/EC of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU (FRONTEX), OJ 2004 L 349/1 as amended by Regulation 863/2007/EC of 11 July 2007, OJ 2007 L 199/30, and Regulation 1168/2011/EU of 25 October 2011, OJ 2011 L 304/1.
References
Adam R, Tizzano A (2010) Lineamenti di diritto dell’Unione europea. Giappichelli, Turin
Antoniadis A et al (eds) (2011) The European Union and global emergencies: a law and policy analysis. Hart Publishing, Oxford
Barnier M (2006) For a European civil protection force: Europe aid, European Union. http://ec.europa.eu/archives/commission_2004-2009/president/pdf/rapport_barnier_en.pdf
BIICL-British Institute of International and Comparative Law (2010) Analysis of law in the European Union pertaining to cross-border disaster relief. Report prepared for the International Federation of Red Cross and Red Crescent Societies, Geneva
Cremona M (2011) The EU and global emergencies: competence and instruments. In: Antoniadis A et al (eds) The European Union and global emergencies. Hart, Oxford, pp 11–31
ECORYS (2009) Strengthening the EU capacity to respond to disasters: identification of the gaps in the capacity of the Community Civil Protection Mechanism to provide assistance in major disasters and options to fill the gaps—a scenario-based approach. Report committed by the European Commission. http://ec.europa.eu/echo/civil_protection/civil/prote/pdfdocs/Final%20Report%20%20scenario%20study.pdf
Gaja G, Adinolfi A (2010) Introduzione al diritto dell’Unione europea. Ed. Laterza, Bari
Gestri M (2011) La politica europea dell’immigrazione: solidarietà tra Stati membri e misure nazionali di regolarizzazione. In: Ligustro A, Sacerdoti G (eds) Problemi e tendenze del diritto internazionale dell’economia: Liber amicorum in onore di Paolo Picone. Editoriale Scientifica, Naples, pp 895–925
Grevi G (2007) The common foreign, security and defence policy. In: Amato G et al (eds) Genèse et Destinée de la Constitution Européenne: Commentaire du traité établissant une Constitution pour l’Europe à la lumière des travaux préparatoires et perspectives d’avenir. Bruylant, Brussels, pp 807–834
House of Lords (2009) European Union Committee, 6th report of session 2008–09, civil protection and crisis management in the European Union. Report with evidence, 11 March 2009, HL paper 43. The Stationery Office, London
Konstadinides T (2011) Civil protection in Europe and the Lisbon ‘solidarity clause’: a genuine legal concept or a paper exercise, Uppsala Faculty of Law, working paper 2011:3. http://www.jur.uu.se/LinkClick.aspx?fileticket=ywEQQ722UuI%3D&tabid=3159&language=sv-SE
Missiroli A (ed) (2005) Disasters, diseases, disruptions: a new D-drive for the EU, Chaillot paper, September 2005, no. 83. Institute for Security Studies, Paris
Myrdal S, Rhinard M (2010) The European Union’s solidarity: empty letter or effective tool? An analysis of article 222 of the treaty on the functioning of the European Union, Occasional papers (2/2010), Swedish Institute of International Affairs. http://www.sipri.org/research/security/euroatlantic/eu-seminar/documentation/2010_Myrdal%20Rhinard_EU%20Solidarity%20Clause_UIOP.pdf
Olsson S (ed) (2009) Crisis management in the European Union—cooperation in the face of emergencies. Springer, Dordrecht
Sur S (2007) Article I-43. In: Burgorgue-Larsen et al (eds) Traité établissant une Constitution pour l’Europe, Parties I et IV, ‘Architecture constitutionnelle’, Commentaire article par article, Tome 1. Bruylant, Bruxelles, pp 561–578
von Ondarza N, Parkes R (2010) The EU in the face of disaster, implementing the Lisbon Treaty’s solidarity clause. SWP comments 9, April 2010. http://www.swp-berlin.org/fileadmin/contents/products/comments/2010C09_orz_pks_ks.pdf
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Gestri, M. (2012). EU Disaster Response Law: Principles and Instruments. In: de Guttry, A., Gestri, M., Venturini, G. (eds) International Disaster Response Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-882-8_5
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