Tuesday, 10 February 2009

EU Law: Solidarity clause

Solidarity is the mortar of the European construction work. The Lisbon Treaty’s solidarity clause would strengthen the ties between member states and citizens of the European Union.


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Original Lisbon Treaty

Article 2, point 176 of the original Treaty of Lisbon (ToL) inserts a new Title VII Solidarity clause into Part Five External action by the Union as well as a new Article 188r (OJEU 17.12.2007 C 306/100─101):


SOLIDARITY CLAUSE

176) The following new Title VII and new Article 188 R shall be inserted:

‘TITLE VII
SOLIDARITY CLAUSE

Article 188 R

1. 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.

2. 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.

3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 15b(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.

For the purposes of this paragraph and without prejudice to Article 207, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 61 D; the two committees shall, if necessary, submit joint opinions.

4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.’.


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Consolidated Lisbon Treaty

Article 188r is renumbered Article 222 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated version of the amending treaties. The references to provisions referred to are renumbered as well (OJEU 9.5.2008 C 115/148):


TITLE VII
SOLIDARITY CLAUSE

Article 222 TFEU

1. 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.

2. 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.

3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.

For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.

4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.


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Comment

Solidarity was described as the mortar of European integration in the blog post on civil protection, and Article 222 TFEU can be read in conjunction with Article 196 TFEU.

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The solidarity clause was introduced by the European Convention in two parts. Article I-42 of the draft Constitution was named the Solidarity clause and it was situated in Chapter II Specific provisions under Title V Exercise of Union competence in the ‘constitutional’ part of the draft. Article III-231 came under the Chapter VIII headline Implementation of the solidarity clause. The proposal within the Convention came from the working group on defence.

The corresponding provisions in the Constitutional Treaty were Articles I-43 and III-329.

The Lisbon Treaty Article 222 TFEU merges the two provisions, but the amending treaty lifted out the general provisions, the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) provisions from the (coming) TFEU into the Treaty on European Union (TEU), leaving the solidarity clause Article 222 TFEU somewhat lonely in the context of external action by the Union (Part Five). Perhaps the location has become less constitutional in concept.

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Anyway, the solidarity clause is not the only manifestation of solidarity in the Treaty of Lisbon. Here are a few examples:

In the TEU Preamble the Heads of State desire to deepen the solidarity between their peoples while respecting their history, their culture and their traditions.

Article 2 TEU mentions solidarity among the founding values of the European Union, common to the member states.

According to Article 3(3) TEU the European Union shall promote economic, social and territorial cohesion, and solidarity among member states.

Article 24(2) TEU, within the framework of the principles and objectives of its external action, mandates the European Union to conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.

In Article 24(3) TEU the member states undertake to support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and to comply with the Union's action in this area. The provision continues with the obligation for the member states to work together to enhance and develop their mutual political solidarity and to refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations (loyal cooperation).

Member states have an obligation of aid and assistance if a member state is the victim of armed aggression on its territory, according to Article 42(7) TEU.

In the context of the area of freedom, security and justice, the a common policy on asylum, immigration and external border control is based on solidarity between member states (Article 67(2) TFEU). Article 80 repeats the principles of solidarity and fair sharing in the Chapter on border checks, asylum and immigration.

Under economic policy, pursuant to Article 122 TFEU, the Council can decide , in a spirit of solidarity between Member States, upon measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.

The objectives of the European Union’s energy policy are expressed in a spirit of solidarity between member states (Aricle 194 TFEU). One fresh assessment of reality comes from the former executive director of the International Energy Agency Claude Mandil in an interview for EurActiv: “Several EU governments did not show solidarity over the recent gas crisis.”

Read the interview at:

http://www.euractiv.com/en/energy/energy-solidarity-just-words-iea-chief/article-179261

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It looks like progress is being made, at least if the Lisbon Treaty enters into force, but the ‘de facto’ solidarity evoked by Robert Schuman has been long in coming and it is still very much an ongoing work.
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Article 222 TFEU covers two groups of threats: 1) from terrorists, and 2) natural or man-made disasters.

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The member states have an obligation to assist, if requested to do so.

The foundations for effective action are less unambiguous.

The member states coordinae between themselves in the Council. Unanimity is required if the decision has defence implications (Article 31(1) TEU).

The Council takes the implementing decisions on a joint proposal by the Commission and the High Representative.

Declaration 37 on Article 222 of the Treaty on the Functioning of the European Union adds the sobering thought that none of the provisions of Article 222 is intended to affect the right of another member state to choose the most appropriate means to comply with its own solidarity obligation towards that member state. ─ Far from a rock-hard guarantee.

Without stepping on the toes of the Committee of the Permanent Representatives of the Member States (Coreper; Article 240 TFEU), the intergovernmental (Council) Political and Security Committee shall assist the Council. It is supported by the structures developed in the context of the common security and defence policy and by the Internal Security Committee (referred to in Article 71 TFEU).


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Politically in force

Following the vicious terrorist attacks in Madrid 11 March 2004, the Heads of State or Government of the Member States of the European Union, and of the States acceding to the Union on 1 May, declared their firm intention to act in the spirit of the solidarity clause laid down in Article 42 of the draft Treaty establishing a Constitution for Europe, and to act jointly in a spirit of solidarity if one of them is the victim of a terrorist attack, by mobilising all the instruments at their disposal, including military resources (European Council, Declaration on solidarity against terrorism, 25 March 2004).


Ralf Grahn