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The solidarity clause: one of the most unacknowledged innovations of the Lisbon Treaty. The European Parliament debates its implementation but also its ambiguities

pdf mise en ligne :27 07 2015 ( NEA say… n° 158 )

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Largely unknown, often mixed up with the mutual defence clause, the solidarity clause is one of the innovations introduced by the Treaty of Lisbon in 2007. One year after the adoption by the Council of a decision containing the arrangements for the implementations of the clause, a joint hearing was organized between the SEDE and LIBE committees of the European Parliament in order to hear the opinion of experts and to discuss the actual implementation of this clause and of the Council decision’s arrangements. However, also the ambiguities of the provisions emerged in the debate, opening the possibility for misuse.

Largely unknown, often mixed up with the mutual defence clause, the solidarity clause is one of the innovations introduced by the Treaty of Lisbon in 2007. One year after the adoption by the Council of a decision containing the arrangements for the implementations of the clause, a joint hearing was organized between the SEDE and LIBE committees of the European Parliament in order to hear the opinion of experts and to discuss the actual implementation of this clause and of the Council decision’s arrangements. However, also the ambiguities of the provisions emerged in the debate, opening the possibility for misuse.

The central idea of article 222 of the Treaty on the Functioning of the European Union (TFEU), brought about by the Lisbon Treaty in 2007, is to allow the Union and its Member States to act jointly and to provide mutual assistance in case of natural and man-made disasters, as well as of terrorist attacks on the territory of a Member State.

Indeed, according to this article:

"

The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

a) prevent the terrorist threat in the territory of the Member States; protect democratic institutions and the civilian population from any terrorist attack; assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;

b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.

Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.

"

The principle remains valid that the Member States are primarily responsible for managing crises arising within their territory. Therefore, the solidarity clause is meant to be used in case of large-scale crises, which are often trans-border and trans-sectoral and thus exceed the response capacity of one individual Member States, and only after all the national means have been exhausted.

As disposed by the Treaty, on 24

th June 2014 the Council adopted a decision containing the arrangements for the practical implementation of this clause, which has so far never been invoked. As Uldis MIKUTS (Chair of the Friends of the Presidency Group on the EU Integrated Political Crisis Response arrangements and the Solidarity Clause Implementation under the Latvian Presidency) recognised, article 222 TFEU is sometimes unclear, and a number of issues needed clarification including from a legal perspective. Moreover, the crosscutting and overarching nature of this article and the wide range of policy areas concerned required a multi-sectoral approach. For these reasons, the COREPER mandated a special group, the Friends of the Presidency Group on the EU Integrated Political Crisis Response arrangements and the Solidarity Clause Implementation, to bring the work forward. Finally, after half a year of work, the Council adopted the decision by unanimity.

How does the solidarity clause practically work?

In the case of a major crisis erupting in one Member State (e.g. a volcano eruption, or multiple terrorist attacks), the Member State attacked would be the first responder and deal with the crisis at the national level. At this stage, a certain degree of solidarity at the EU and international level would already be in place (e.g. by the mobilization of the EU Civil Protection Mechanism). However, if the affected

Member State has exploited all the available tools at national and Union level and considers that the crisis clearly overwhelms its response capacity, its Head of State or Government may decide to invoke the solidarity clause. In this case, he would call his counterpart in the Member State holding the rotating Presidency in order to ensure quick mobilization of EU resources. The invocation would also be notified to the President of the Commission through the Emergency Response and Coordination Centre (ERCC).

In case of invocation of the solidarity clause, the Council would ensure the political and strategic direction of the Union response. Therefore, after the invocation, there would be immediate consequences at the Council level. First, the Integrated Political Crisis Response (IPCR) or the Council Crisis Mechanism would be immediately activated. This would trigger alerts to inform all stakeholders in Brussels and in the Member States. Information exchanges are managed through a specific crisis web platform (IPCR web platform) by the General Secretariat of the Council.

The Head of State or Government of the country holding the Presidency would inform the President of the European Council and the President of the European Parliament of the invocation. Shortly after, the Permanent Representative of the Member State holding the Presidency would convene a roundtable to assess the areas where the Council can help by taking decisions and by supporting the coordination. The Commission, the EEAS, the General Secretariat of the Council, the Cabinet of the President of the European Council, experts and relevant stakeholders would also participate. In case of a terrorist attack, the EU counter-terrorism coordinator would also be invited.

Following such a discussion, an extraordinary COREPER and Council meeting can be further convened at very short notice (typically, within one or two days). In the meantime, the Commission and the High Representative would take all the relevant measures under their competences, including, among other things, identify military capabilities that can best contribute to the response to the crisis with the support of the EU Military Staff.

The various services would prepare so-called "joint integrated situational reports" to inform and to give a common picture of the situation. Such reports would be available the next morning, shortly after that the organisation of another roundtable meeting aimed at assessing the situation. The aim of these discussions is to have better coordination between all the stakeholders.

Finally, the Council would meet the day after and take decisions. Throughout the whole process, the IPCR web platform would act as a focal point for exchange of information, and the situational reports would continue to monitor the situation and the impact of the EU response. The ERCC would act as the central 24/7 contact point at Union level with Member States’ competent authorities and other stakeholders, and would facilitate the production of Integrated Situational Awareness and Analysis (ISAA) reports, in collaboration with the EU Situation Room and other Union crisis centres.

The joint LIBE-SEDE meeting

On 16th June, roughly one year after the adoption by the Council decision, a joint hearing was organised between the SEDE and LIBE committees of the European Parliament in order to listen to the opinion of experts and to discuss the actual implementation of this clause and of the Council decision’s arrangements.

Alongside (very few) MEPs from the two committees, the hearing gathered officials and experts from the various services of the Commission, the EEAS and the Council, as well as from the think-tank community.

After a brief introduction by the two co-chairs

Claude MORAES (S&D, United Kingdom, chair of the LIBE committee) and by Anna Elżbieta FOTYGA (ECR, Poland, chair of the SEDE committee), the floor was given to the panelists.

Uldis MIKUTS (Chair of the Friends of the Presidency Group on the EU Integrated Political Crisis Response arrangements and the Solidarity Clause Implementation under the Latvian Presidency)

focused on the spirit behind the arrangement adopted by the Council and on the

motivations behind the choices made. Before addressing this issue, however, he made clear that the solidarity clause is not aimed at replacing any of the existing EU tools, but at reinforcing them.

He then recalled the process of the drafting of the Council decision, and notably the central role played by the Friends of the Presidency Group. In this respect, he mentioned the European Parliament’s contribution through its 2012 report on the mutual defence and solidarity clauses, and acknowledged that for quite a few aspects the Council came to the same conclusions.

As Mikuts noted, the implementing arrangements gave the Council a steering role in responding to an invocation of the solidarity clause, while in the meantime respecting the role and competences of the EU institutions and services. As he stated, their intention was "to develop a coherent, integrated and effective system". To this end, the group worked in order to avoid the "compartmentalized approach", namely towards a very early involvement of the Council, but without hindering the work of the other institutions. In practice, as Mikuts explained, this means that the Council will focus on the political response, whereas at the operational level the relevant crisis structures within Member States and the EU would be supported by the Commission’s ERCC.

Later, he spent some words on the IPCR arrangements – that is, a relatively new Council crisis mechanism that allows to react quickly and to ensure a timely response at political level to crises. Mikuts further explained the difference between the solidarity clause and the IPCR: whereas the solidarity clause has an inward focus and can be invoked in case a Member State is severely affected and its response capacity is not sufficient, the Council’s crisis mechanism rather provides the platform for tailored and rapid response by the EU political level on a crisis happening inside or outside the EU. However, the IPCR mechanism also helps to structure the response when the solidarity clause is invoked.

Finally, he concluded, we must never forget that we are talking about solidarity when faced with a crisis situation of major proportions. In those situations, "we cannot fail the expectations of our citizens, and that is why we have to make sure that we all work hand in hand, in light of the respective competences and responsibilities and towards the same objectives".

To a question by

Klaus BUCHNER (Verts/ALE, Germany) about the role of the European Parliament and the reasons why it cannot co-decide on an issue which has no defence implications, Mikuts answered that the fact that the Presidency informs the president of the European Parliament is not just courtesy. Moreover, he added, in such a situation the Parliament can contribute with the visibility, with the political weight and with financial resources to mitigate the impact of the crisis.

Hans DAS, (Civil Protection Policy, Prevention, Preparedness and Disaster Risk Reduction, DG ECHO, European Commission)

underlined the need to prepare and to be ready to respond in the best possible way in a context in which disasters are increasing worldwide but also within the EU.

His intervention aimed primarily at providing the Commission’s perspective on the issue, and more precisely the perspective of DG ECHO’s Emergency Response Coordination Centre (ERCC).

To begin with, Das stated that it is important to keep in mind that the solidarity clause implementation is not being developed in isolation of what exists already. Indeed, many different instruments are already available to deal with crisis situations, and the underlying approach in the development of the solidarity clause was that this new tool was going to build upon the existing ones. Therefore, the main idea behind the solidarity clause is to step up the coordination of these many instruments. The implementation of the solidarity clause, Das reminded, does not envisage any new budget line nor any new structure: the clause thus relies on the existing budgets, legal mandates, institutional roles and instruments.

Secondly, Das highlighted that the kind of emergency that the solidarity clause aims at addressing is not an "ordinary" crisis (e.g. ordinary floods and forest fires, which are normally dealt with by the existing Civil Protection Mechanism or by other existing instruments), but is rather an exceptional situation, that overwhelms the response capacities of a Member State even after using all the available instruments at European and national level. In this respect, he provided the examples of a Vesuvius

eruption and of a Chernobyl-like situation. Such situations would obviously overwhelm the response capacities of any Member State, as well as that of the existing instruments.

Das also reminded that the solidarity clause addresses crisis situations

inside the EU, whose origins could also be a disaster situation or a terrorist attack close to the borders of the EU but with impact on the EU. These emergencies are by definition cross-sectoral situations, since they always engage a wide range of stakeholders. Therefore, they require horizontal cooperation, networking and coordination between different actors, both at Member State and at European level.

Thus, in case of a crisis, first all the existing instruments would be used. In this case, as outlined by Das, the Commission’s role would primarily be to ensure that there is a coordinated use of them. The Council decision authorizes the Commission to assess whether the existing instruments are considered sufficient to deal with the situation and to suggest where appropriate additional measures. This additional measures, explained Das, can be for example fast-tracking the authorization of new medicines, or quickly amending the existing legislation.

Thirdly, Das outlined the role of the EU Emergency Response Coordination Centre as the central hub where all the information come together in case of a crisis. The ERCC is an open and transparent Centre, when people can come together during a crisis in order to work together and exchange information. As Das explained, the ERCC is the central coordination hub for all the civil protection work under the Civil Protection Mechanism, it is also a support platform for humanitarian aid, and it is gradually developing into the crisis platform for other Commission services that do not have their own crisis centres. In the case of a solidarity clause invocation, Das explained, the ERCC would act as a 24/7 contact point at the EU level and as the entry point for any request to the President of the Commission. Moreover, it would have a role in developing integrated situational awareness and analysis reports. Indeed, he explained, in case of an emergency information comes from all sides, and some of it is validated whilst some is proven to be wrong. There are thus massive amounts of conflicting information and data, which these reports try to structure in order to develop a common picture of the emergency.

Hans Das concluded by looking at the way forward. In his view, it is crucial to prepare and to engage a serious of preparedness activities (i.e. training for all the people concerned, exercises, development of standard operating procedures). Indeed, he pointed out, not all Member States have identified the procedures to invoke the solidarity clause or to respond effectively to somebody else’s invocation.

To a question by

Anna Elżbieta FOTYGA about the readiness of the EU services in case of invocation of the solidarity clause, Das answered that much experience has been gathered in the last years by the different instruments, namely through training courses and exercises with Member States and joint preparedness programmes between different Commission services. However, he recognised that much more has to be done, as "improvisation does not work in these situations".

Ana Gomes (S&D, Portugal)

asked Das to provide his own assessment of the Council’s CBRN (chemical, biological, radiological or nuclear materials) action plan, which she described as "quite weak". Secondly, she underlined the multiplication of crisis centres in the EU institutions (namely DG ECHO, DG SANTE, DG HOME, IntCen), and asked Hans Das to comment on it.

On the first issue, Das agreed that much more can be done in stepping up preparedness for CBRN types of emergencies. At the civil protection level, he explained the Commission is developing a European emergency response capacity, which will take the form of a voluntary pool where Member State can pre-commit different types of response capacity for joint operations during emergencies, and CBRN is one area that will be developed. Indeed, in his view, in nowadays political and financial context "it is nonsense for Member States to be investing in the same response capacities", and Member States should specialize and develop specific types of response capacity in a way to ensure complementarity. Moreover, he stresses the need to jointly develop "buffer capacities" (i.e. response capacities that are not needed very often but that one still needs to have).

On the multiplication of centres, Das argued that the situation (i.e. three crisis centres inside the Commission, namely the ERCC in ECHO, a crisis centre in DG HOME specifically geared towards terrorism-related crises, and a crisis facility in DG SANTE) is not very different from that in Member

States, where different authorities have their own centres from which they organize their response operations. That coexistence, he pointed out, is not necessarily problematic. Moreover, he argued, the Commission is making major efforts to have further synergies between the different sectors and is trying to develop the Emergency Response Coordination Centre as the central crisis platform within the Commission for all types of crises. Indeed, the ERCC has recently concluded a memorandum of understanding with the other Commission services whereby it offers a number of horizontal services in terms of information, satellite images, coordination, etc. "We are on a good track to bring more rationalization into this issue", he concluded.

Niels BRACKE (EU Intelligence Analysis Centre, European External Action Service)

first of all outlined the main tasks of EU Intelligence Analysis Centre (IntCen), the strategic intelligence hub for the EU. The IntCen produces strategic analysis and reports based on a voluntary contribution from the Member States for the various decision-makers within the EU. As Bracke underlined, it does not deal with operational information (i.e. personal data processing or use of information from third States).

Secondly, Niels Bracke pointed to the limitations to IntCen’s role in the application of the solidarity clause. Indeed, the solidarity clause is limited to effects taking place within the EU and areas next to it, whereas the IntCen, as part of the EEAS, mainly deals with strategic intelligence on situations

outside the EU. However, one section of the IntCen deals with threats inside the EU, namely the counterterrorism department, and produces situational threat assessment in this field. As underlined by Bracke, this department does not deal with the actual fight against terrorism, nor with the actual prevention or with the aftermath of a terrorist attack.

Therefore, according to Bracke, the IntCen is involved in two main ways in the implementation of the solidarity clause. First, according to the Council decision, the threat assessment is developed by the various EU institutions using existing mechanisms (among which is the IntCen). Secondly, in case the solidarity clause is invoked for a terrorist attack in Europe, the IntCen can contribute to the situational awareness and to the decision-making at the strategic level either in the Commission or in the Council or in the Member State.

Petros Mavromichalis (European External Action Service)

briefly explained the role of the EEAS in the implementation of the solidarity clause. Indeed, in his view, the distinction between internal and external is not always clear-cut, and that is why whenever needed the High Representative and the EEAS will contribute by taking initiatives and providing information and support within their area of competence. Once the solidarity clause has been invoked, explained Mavromichalis, the High Representative would take all the necessary steps to identify and use relevant EU instruments that can best contribute to the resolution of a crisis. The EEAS would also produce regular integrated situational awareness and analysis reports for the Council, as well as provide intelligence support through the IntCen.

Secondly, Mavromichalis reminded that the High Representative has a right of initiatives in view of requesting military capabilities going beyond the existing arrangements on civil protection. However, he underlined, the solidarity clause has no defence implications. This means that in case where the response to such a crisis would require a CFSP or CSDP action, the Council should take an appropriate decision in accordance with the relevant treaty provisions (i.e. unanimity).

In the introduction of his speech,

Roderick PARKES (Swedish Institute of International Affairs) noted that civil protection across Europe has always been in tune with the times and international affairs. Indeed, whereas during the Cold War most European states were trying to cope with the specific threat of a nuclear attack, after the Cold War they started dealing more with problems such as interconnectivity, and the response changed as well. As Parkes argued, we have been witnessing a civilianization of the responses and an increasing focus on non-state-perpetrated threats such as terrorist attacks.

In this context, Parkes argued that the mechanisms in place with the solidarity clause are well-suited with the challenges of Western-led globalization. However, the question remains open whether they are equal to the tasks that are facing the EU now, in a situation in which more and more hostile powers emerge around its borders.

Then, he briefly analysed the three most contentious points of the implementing decision, starting with its thematic scope. Indeed, it is in his view important to clarify the relationship of the solidarity clause with defence. As Parkes noted, article 2.2 of the implementing decision clearly states that this decision has no defence implications. However, he argued, articles 222 TFEU and 42.7 TEU are very closely linked, and article 222 TFEU was considered originally as a sort of "modern response" to territorial challenges at a time when classic territorial defence seemed rather irrelevant. That distinction at the moment is becoming increasingly blurred, with hybrid warfare, with terrorist organizations that increasingly take on State-like attributes. The result challenged such as migration flows and energy are becoming increasingly territorial because of the crises in the EU neighbourhoods. Moreover, he noted a sort of "subsidiarity basis" for triggering the clause: there has to be a big crisis, and all the national resources have to have be exhausted.

Secondly, Parkes mentioned the geographic scope of the solidarity clause. Indeed, he pointed out, the implementing decision is very much focused on the territory and the internal dimension of the EU, and some important extraterritorial aspects were left out of the negotiations. Moreover, he noted that the EU is also gaining reputation as an exporter of crises (for instance, because the European maritime safety Agency is looking more to migration and neglects classic threats).

Thirdly, among the contentious points, he mentioned the automaticity of the solidarity clause.

Finally, he highlighted a sort of division of labour between the EU and the Member States through the solidarity clause, with the EU trying to be the brain (i.e. do the analysis, pull together the resources) and the MS being arm (with their resources and political legitimacy).

One of the MEPs’ questions, asked by

Ana GOMES (S&D, Portugal), concerned the possibility that hybrid warfare configure a situation for invoking either the solidarity or the defence clause. On this point, Niels BRACKE argued that whether a large-scale attack on an IT system is to be considered terrorism or hybrid warfare is also a question of definition. However, he stated, if a big IT system in a Member State was attacked, that could be the case for the invocation of the solidarity clause. On the same issue, Roderick PARKES pointed out that this is not only a legal question but also a political one. Therefore, in his view, whether a Member State triggers the solidarity clause is highly political.

Sabine LÖSING (GUE/NGL, Germany)

raised the question of article 222 TFUE mentioning the use military means in case of man-made disasters. More specifically, she asked the panelists what these man-made disasters may be, and whether social unrest and waves of strikes would fall into this categorization. In elaborating on this issue, Roderick PARKES raised another point – that is, the risk of Member Stats showing a sort of "excessive zeal" in wanting to show solidarity, for instance by pressing a neighbour who does not seem to be managing social disturbance to call on them to manage it. Thus, he concluded, politically it may very well happen that that Member State is under strong pressure from other Member States to trigger the clause. Moreover, on the issue of the use of the military resource, he expressed its worries about a possible soft remilitarization of responses. "I wouldn’t be alarmist", he stated, "but the distinction between civil and military in the last twenty years has become very blurred".

Other two interesting issues were raised by

Klaus BUCHNER (Verts/ALE, Germany). First, he pointed out, the Council decision mentions, among the events which can fall into the disaster category, also events having "a severe impact of property". This wording, in his view, can open up the way to misuse of the solidarity clause. Secondly, he asked the panelists about the relationship with the EU intervention as a result of the invocation of the solidarity clause and the national legislation of the affected Member State. On the latter point, Niels BRACKE underlined that the

solidarity clause does not in any way override national laws, nor can it be imposed on a Member State. Moreover, he added, the EU and the other Member States can support that country, but they cannot impose anything on it against its will. Thirdly, any action in that Member State has to be based on its national law.

Finally, the issue of the possibility of having an annual threat assessment at the EU level was raised by

Claude MORAES. On this point, Uldis MIKUTS answered that this is absolutely up to the European Council. Similarly, Niels BRACKE argued that whether a combined threat assessment should be produced is a political question.

To conclude, thanks to the panelists’ interventions, the LIBE-SEDE joint meeting shed a bit of light on this relatively unknown tool brought about by the Lisbon Treaty. At the same time, the issues raised by some MEPs allowed to consider the issue in a more critical way, by underlining the ambiguities and the potential misuses of the solidarity clause.

Giulia Bonacquisti

Pour en savoir plus

-. Treaty on the Functioning of the European Union :

(EN) http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=FR (FR) http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:12012E/TXT&from=FR

-. Council Decision of 24 June 2014 on the arrangements for the implementation by the Union of the solidarity clause: (EN) http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0415&from=FR (FR) http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:32014D0415&from=FR  

-. Press release on the Council Decision (EN): http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/genaff/143353.pdf

-. European Parliament, Report on the mutual defence and solidarity clauses (2012):

(EN) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0356+0+DOC+PDF+V0//EN (FR) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0356+0+DOC+PDF+V0//FR