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Preliminary Review of European LawPreliminary Review of European LawPreliminary Review of European LawPreliminary Review of European Law

June 2009June 2009June 2009June 2009

Prepared by:Prepared by:Prepared by:Prepared by:


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Table of ContentsTable of ContentsTable of ContentsTable of Contents

I.I.I.I. IntroductionIntroductionIntroductionIntroduction................................................................................................................................................................................................................................................................................................................................................................1111

a.a.a.a. Legal Bases and CLegal Bases and CLegal Bases and CLegal Bases and Competenceompetenceompetenceompetence ........................................................................................................................................................................................................................................................................................................ 1111

b.b.b.b. Types of LegislationTypes of LegislationTypes of LegislationTypes of Legislation .................................................................................................................................................................................................................................................................................................................................................................... 2222

II.II.II.II. EU Regulated Areas by TopicEU Regulated Areas by TopicEU Regulated Areas by TopicEU Regulated Areas by Topic ............................................................................................................................................................................................................................................................4444

a.a.a.a. CPM Legislation CPM Legislation CPM Legislation CPM Legislation –––– Overview Overview Overview Overview ................................................................................................................................................................................................................................................................................................................ 4444

b.b.b.b. Operational RegulationOperational RegulationOperational RegulationOperational Regulation ............................................................................................................................................................................................................................................................................................................................................ 5555

i. Animals ....................................................................................................... 5 ii. Customs ...................................................................................................... 6 iii. Rights of workers and recognition of professional qualifications .................. 9 iv. Entry into the EU territories .......................................................................10 v. Terrorism...................................................................................................11

c.c.c.c. Criteria for eligibility for actionCriteria for eligibility for actionCriteria for eligibility for actionCriteria for eligibility for action............................................................................................................................................................................................................................................................................................ 13131313

d.d.d.d. Privileges and ImmunitiesPrivileges and ImmunitiesPrivileges and ImmunitiesPrivileges and Immunities ........................................................................................................................................................................................................................................................................................................................ 14141414

e.e.e.e. Recent ActivityRecent ActivityRecent ActivityRecent Activity ........................................................................................................................................................................................................................................................................................................................................................................................ 15151515

III.III.III.III. Other Sources of NormsOther Sources of NormsOther Sources of NormsOther Sources of Norms ................................................................................................................................................................................................................................................................................17171717

a.a.a.a. InternationalInternationalInternationalInternational .................................................................................................................................................................................................................................................................................................................................................................................................... 17171717

b.b.b.b. RegionalRegionalRegionalRegional ............................................................................................................................................................................................................................................................................................................................................................................................................................ 19191919

c.c.c.c. BilateralBilateralBilateralBilateral ................................................................................................................................................................................................................................................................................................................................................................................................................................ 21212121

V.V.V.V. Table of Relevant LegislationTable of Relevant LegislationTable of Relevant LegislationTable of Relevant Legislation........................................................................................................................................................................................................................................................24242424


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I.I.I.I. IntroductionIntroductionIntroductionIntroduction

This report is intended to serve as an internal tool to assist the national rapporteurs in their

research. It highlights European Union (EU), regional and bilateral legal instruments relevant

to the IDRL Guidelines, in particular Part V. The report is in three sections. First, it outlines

the competence of the EU in the field of disaster prevention and response and discusses the

binding nature of the various types of EU legislation. Second, it provides an overview of the

relevant legal instruments at the EU level. Finally, the report reviews selected international

and regional agreements, together with relevant bilateral agreements between the EU and

third countries.

a.a.a.a. Legal Bases and CompetenceLegal Bases and CompetenceLegal Bases and CompetenceLegal Bases and Competence

The main mechanism in the EU which deals with disaster relief and recovery assistance is the

Civil Protection Mechanism (CPM), which operates out of the Commission’s Directorate

General for the Environment (DG Env). The CPM consists of two main pieces of legislation

covering disaster prevention, preparedness and response. These are Council Decision

2007/779/EC, Euratom establishing a Community Civil Protection Mechanism (recast) and

Council Decision 2007/162/EC, Euratom establishing a Civil Protection Financial Instrument.

These will be discussed in more detail below. The CPM is applicable to “major

emergencies”1 which is defined as “any situation which has or may have an adverse impact

on people, the environment or property and which may result in a call for assistance under

the Mechanism” and has included earthquakes, floods, forest fires, storms, tsunamis,

biological, chemical, environmental, radiological & technological disasters, marine pollution,

and combating the effects of terrorist attacks.2

Article 3 of the Treaty Establishing the European Community (TEC) which lists the objectives

of the Community, specifically cites in subsection (1)(u) measures relating to civil protection.

1 Council Decision 2007/779/EC, Euratom establishing a Community Civil Protection Mechanism (recast), Article 1(1). 2 ‘Community co-operation in the field of civil protection’, European Civil Protection, available at: http://ec.europa.eu/environment/civil/prote/cp01_en.htm.


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Civil protection is therefore within the competence of the European Community (EC) (first

pillar) rather than the European Union (EU) (third pillar). However, Article 3(1)(u) does not

itself serve as a legal basis for action in that sphere and the TEC does not provide a separate

provision on which to base such action. Therefore, Article 308 TEC has been cited in the

civil protection legislation as the relevant legal base. Article 308 allows the institutions to take

any appropriate measures that are necessary to attain one of the objectives of the

Community and the TEC.

However the CPM is not the only legislation relevant during a disaster. Rules relating to the

movement of goods, people and animals play a role, as do matters relating to transport,

public health, the environment, development cooperation, and agriculture. Each of these

has their own specific legal basis and have been named as Community objectives under

Article 3 TEC.3 Many of them contain specific provisions relating to disaster relief. However,

the documents included herein are limited to their practical relation to Part V of the

Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and

Initial Recovery Assistance (IDRL Guidelines) and to selected provisions therein.

b.b.b.b. Types of LegislationTypes of LegislationTypes of LegislationTypes of Legislation

Most of the relevant legislation is in the form of a Directive, Regulation, Decision or

Resolution, each with varying degrees of binding authority.

As defined in Article 249 TEC, a Directive is “binding, as to the result to be achieved, upon

each Member State to which it is addressed, but shall leave to the national authorities the

choice of form and methods.”

A Regulation is general in its application and “binding in its entirety and directly applicable

in all Member States”.

A decision is “binding in its entirety upon those to whom it is addressed”.

3 Agriculture: Title II; Customs: Titles I and XX; Freedom of movement of: goods – Title I; persons and services – Title III; Development Co-operation: Title XX; Visas and Immigration: Title IV; Transport: Title V; Public Health: Title XIII; Environment: Title XIX.


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Resolutions are not discussed in the TEC and are not binding per se.

In the context of the third pillar and police and judicial co-operation between Member

States, the relevant types of legislation are framework decisions and decisions.4 Framework

decisions are adopted in order to approximate the laws and regulations of the Member

States and function much like directives: they are binding as to the result to be achieved, but

the Member States may choose the form of method of achieving the end result. Decisions

are somewhat similar, only it is the Council that adopts the necessary implementing

measures. Decisions are adopted for any purpose, other than the approximation of Member

States’ laws and regulations, consistent with the objectives of Title VI TEU, which contains

the provisions on police and judicial co-operation in criminal matters.

4 Article 34 TEU.


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II.II.II.II. EU Regulated Areas by TopicEU Regulated Areas by TopicEU Regulated Areas by TopicEU Regulated Areas by Topic

a.a.a.a. CPM Legislation CPM Legislation CPM Legislation CPM Legislation –––– Overview Overview Overview Overview

The Community Civil Protection Mechanism is intended for use both within and outside of

the EU5 and currently includes 30 countries (the EU 27 plus Liechtenstein, Iceland and

Norway). As discussed above, the CPM consists of two main pieces of legislation, one

covering general co-operation regarding co-ordination of civil protection assistance, and a

funding instrument which enables the EU to fund activities under the framework focused on

prevention, preparedness and response. The Decision which establishes the Community

CPM6 provides for various methods of co-operation and action including7: (1) establishing a

central inventory of available assistance and intervention teams or modules in the Member

States; (2) training programmes for the teams; (3) workshops and seminars geared toward

aspects of intervention; (4) the creation of assessment and co-ordination teams; (5) the

creation of a Monitoring and Information Centre (MIC) and a Common Emergency

Communication and Information System (CECIS) to liaise between the MIC and Member

States’ contact points; (6) aiding in the development of detection and early warning systems;

(7) emphasising the importance of information exchange in order to facilitate access to

equipment and transport; and (8) freeing up additional transport resources.

The Decision provides the basis for its implementing legislation, such as Commission

Decision 2004/277/EC, Euratom laying down rules for the implementation of [the CPM

Decision] which formally implements most of the suggested action in the CPM Decision,

such as (1) the creation of the MIC and CECIS; (2) mandatory information exchange

between Member States regarding available resources; and (3) procedures for requests for

assistance by a disaster-affected state. This Decision was amended by Commission Decision

2008/73/EC, Euratom which primarily covers the tasks and rules governing civil protection

modules.

5 Whereas the EC Humanitarian Aid programme is intended solely for third countries. 6 Council Decision 2007/779/EC, Euratom (n 1). 7 ibid art 2.


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The CPM framework is essentially just that: a framework for co-operation against which the

Member States can co-ordinate their action in times of disaster. EU activity itself is quite

modest, as civil protection has been deemed to be largely a matter for Member States under

the principle of subsidiarity.8 Therefore, CPM is necessarily linked to other policy areas such

as agriculture, immigration and customs where the EC has competence to take the relevant

actions required.

• The CPM and its implementing legislation exists in the form of decisions which

are binding in their entirety upon the addressee, in this case the Member

States. They do not have discretion as to the method of implementation. This is

the case for the decision establishing the mechanism and its financial

instrument, as well as the two implementing decisions from 2004 and 2008.

b.b.b.b. Operational RegulationOperational RegulationOperational RegulationOperational Regulation

i. Animals

The EC regulates the non-commercial movement of animals within the Community and also

from third states. Regulation 998/2003/EC on the animal health requirements applicable to

the non-commercial movement of pet animals essentially provides that pet animals may be

moved between the Member States if accompanied by a passport issued by a veterinarian

certifying that the animal has received the requisite vaccinations.9 Different rules apply to

non-EU pets depending on their country of destination.10

Commission Decision 2003/803/EC establishes a model passport for the intra-Community

movement of dogs, cats and ferrets which is meant to contain details of the animals’ health

in accordance with Regulation 998/2003.

8 Vade-mecum of Civil Protection in the European Union, available at: http://ec.europa.eu/environment/civil/pdfdocs/vademec.pdf, p 8. 9 art 5. 10 Chapter III.


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Council Directive 91/496/EEC is specifically focused on animals originating from third

countries and lays down principles governing the organization of veterinary checks on

animals entering the Community that are not family pets accompanying travellers for non-

commercial purposes. Article 4 provides that the Member States must ensure that the

animals are subjected to a documentary and identity check at the border, as well as an

official veterinarian check before transit through the territory is authorised.

None of this legislation specifically discusses the entry of animals from third countries in the

context of disaster assistance, or makes any provision for expedited procedures in

exceptional circumstances.

• The Decision on the model passport binds the Member States (as the

addressees of the Decision) to issue passports which comply with the

requirements of the Decision.

• This Directive on animals from third countries binds the Member States as to

the result to be achieved in the Articles therein via a method of their choosing,

so long as it is compliant with Community law. For example, under Article 4,

the Member States must ensure, whether through national legislation or some

sort of administrative regulation, that animals are subjected to documentary,

identity and veterinary checks at the border

ii. Customs

Customs rules have been more inclusive of provisions relating to disaster assistance than any

other policy area. Council Regulation 918/83/EEC setting up a Community system of reliefs

from customs duty sets forth in Title XVI, Part C that

goods imported by State organizations or other charitable or philanthropic

organizations approved by the competent authorities shall be admitted free of

import duties when they are intended:


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for distribution free of charge to victims of disasters affecting the territory of one or

more Member States; or

to be made available free of charge to the victims of such disasters, while remaining

the property of the organizations in question.11

The Regulation also suspends import duties for goods imported to meet the needs of

disaster-relief agencies during their activity in the Member State,12 but does not apply to

materials and equipment intended for rebuilding disaster areas.13 Any grant for relief is

subject to a decision by the Commission at the request of the affected Member State(s);

however, Member States may suspend the imposition of any chargeable import duties

pending the Commission’s decision.14

Regulation 2454/93 which implements the Community Customs Code15 contains provisions

regarding temporary importation with total relief from duty for disaster relief materials, i.e.,

“materials to be used in connection with measures taken to counter the effects of disasters

affecting the customs territory of the Community” as long as the goods are (1) imported on

loan free of charge, and (2) intended for state bodies or bodies approved by the competent

authorities.16 The Regulation also allows for temporary importation with total relief for live

animals of any species imported for dressage, training or breeding purposes.17

Title VII of Council Directive 83/181/EC18 exempts goods imported for the benefit of disaster

victims from the Community harmonized Value Added Tax (VAT)19 where they are intended

for distribution free of charge to victims of disasters affecting the territory of one or more

Member States, or to be made available free of charge to the victims of such disasters, while

11 art 79(1). 12 art 79(2). 13 art 80. 14 art 81. 15 Commission Regulation 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) 2913/92 establishing the Community Customs Code. 16 art 678. 17 art 685. 18 Council Directive 83/181/EC determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods. 19 Established in Directive 77/388/EEC, ibid and recast in Council Directive 2006/112/EC on the common system of value added tax.


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remaining the property of the organizations in question.20 As with the customs Regulation

discussed above, no relief will be applied to goods intended for the rebuilding of disaster

areas.21

The recast Council Directive 2006/112/EC on the common system of value added tax

included in Title IX, Chapter II, mandates that Member States must exempt certain

transactions from VAT, including (1) hospital and medical care and closely related activities

undertaken by bodies governed by public law; (2) the provision of medical care in the

exercise of the medical and paramedical professions; (3) the supply of human organs, blood

and milk; (4) the supply of services and goods closely linked to the protection of children

and young persons by bodies governed by public law; and (4) the supply of transport

services for sick or injured persons in vehicles designed for that purpose.22 This provision

does not, however, specifically cite disaster relief and so it is unclear whether it would be

applicable in those circumstances.

Council Regulation 3648/91/EEC23 abolishes customs formalities within the Community for

goods belonging to or intended for NATO armed forces.24 For those purposes, the

Community will be considered as a single territory.

In 2003, the Council adopted Regulation 150/2003/EC suspending duties on certain

weapons and military equipment provided they are used by or on behalf of the Military

forces of a Member State for activities including the defence of the Member State’s territorial

integrity or “in international peace keeping or support operations or for other military

purposes like the protection of nationals of the EU from social or military unrest”.25 The

20 art 49. 21 art 50. 22 art 132. 23 Council Regulation 3648/91/EEC laying down the methods of using form 302 and repealing Regulation 3690/86/EEC concerning the abolition, within the framework of the TIR Convention, of customs formalities on exit from a Member State at a frontier between two Member States and Regulation 4283/88/EEC on the abolition of certain exit formalities at internal Community frontiers – introduction of common border posts. 24 art 2. 25 art 2(1).


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Regulation specifically foresees the use of the goods “for civil purposes due to unforeseen or

natural disasters”.26

• The EU customs legislation comes in the form of either directives or regulations.

Therefore, with regard to the Regulations (concerning reliefs from customs duties,

temporary importation with total relief, the abolition of customs formalities on

NATO goods and the suspension of duties on certain weapons and military

equipment) the Member States are bound by the regulations in their entirety and

must therefore implement the provisions of the regulations as they are. They do not

have discretion as to the method of implementation.

• The directives concerning the exemption from VAT on relief goods and the

exemption of certain transactions from VAT are also binding on the Member States,

but here they have some discretion in choosing their methods of implementation.

The Member States must therefore ensure that these exemptions are provided for.

iii. Rights of workers and recognition of professional qualifications

As part of the Community’s free movement of persons principle based in Title III TEC, EU

citizens are entitled to move freely between the Member States. Chapter 1 concerns the

rights of workers to move freely in the Union and not be subject to discrimination. The

freedom of movement of workers was secured through Regulation 1612/68/EEC on freedom

of workers within the Community.27 Therefore, any relief assistance personnel who are EU

citizens should not encounter any barriers to entry if providing relief within the EU.

Similarly, there is EU legislation concerning the recognition of professional qualifications for

certain regulated professions such as doctors or lawyers.28 However, this Directive does not

26 art 2(4). 27 The freedom of movement of EU citizens generally is governed by Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States but is not directly relevant for the purposes of this report. Regulation 1612/68/EEC has since been amended by this Directive. 28 Directive 2005/36/EC on the recognition of professional qualifications.


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make any specific reference to professions associated with disaster relief, nor does it provide

for any expedited procedures in the event of a disaster.

• The Member States are of course bound to implement the provisions of the

Treaty relating to freedom of movement and any legislation designed to

operationalize the Treaty provisions. Therefore, the Regulation and Directive

(cited in the footnotes) concerning freedom of movement of workers between

the Member States is binding on the Member States, one as to the result to be

achieved, and the other as to the entirety of its provisions.

iv. Entry into the EU territories

Since 1985, there has been established a territory without internal frontiers known as the

‘Schengen area’ which now includes every Member State.29 In addition to abolishing checks

at common borders, the Schengen area shares a common definition of the conditions for

entry at external borders and common rules and procedures for checks there30 and

harmonisation of the conditions of entry and visas for short stays31. After the Treaty of

Amsterdam in 1999, the Schengen area became part of the competence of the Community

as part of the attainment of the objective of free movement. Some non-EU countries have

chosen to participate in the scheme as well: Iceland, Norway, Switzerland and Liechtenstein

have all signed agreements with the EU in this regard.

There exists a common list of non-EU countries whose nationals must be in possession of a

visa in order to enter the EU territory. This list was set out in Council Regulation

574/1999/EC32. Article 4 allows a Member State to suspend the visa requirement in the case

of “helpers in the event of a disaster or accident”.

29 The participation of the United Kingdom, Ireland and Denmark in Schengen varies and is beyond the scope of the current study. 30 Common Manual OJ C-313/98 (2002) (Common Border Code). 31 Common Consular Instructions on Visas for the Diplomatic Missions and Consular Posts, OJ C-313/01 (2002). 32 Determining the Non-EU Member Countries whose nationals must be in possession of visas when crossing the external borders of the Member states.


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• The Member States are bound by the Regulation to suspend visa requirements

in the case of disaster relief personnel. They have no discretion in this regard

v. Terrorism

Both the EC and the EU (via third pillar legislation) have initiated efforts to combat terrorism

through effective preparation and information exchange. The EC first used the Tampere

Programme of 1999 as a basis for funding measures relating to the promotion of an area of

freedom, security and justice, including the fight against terrorism, and continues to do so

now via the Hague Programme of 2005 which sets out the framework and programme for

the following five years. On the basis of these programmes, along with Article 308 TEC, the

EC has adopted a specific programme on “preparedness and consequence management in

the fight against terrorism” which funds actions related to the promotion and encouragement

of (1) assessment of risks to critical infrastructure; (2) shared operational measures cross-

border; and (3) exchanges of know-how and experience in relation to the protection of

critical infrastructure.33

In addition to that specific programme, the CPM is used in the fight against terrorism by

improving the Member States’ capacity to manage the consequences of a terrorist attack

through training and simulation exercises, as well as through the maintenance of databases

containing results from the Commission’s evaluations of means and capabilities in the event

of an attack.34 It should be noted that the CPM’s accompanying financial instrument is used

to fund these types of actions only; it is not used for specific EC programmes on terrorism

such as the programme discussed above.

In terms of what the EU does inter-governmentally via the third pillar’s police and judicial

co-operation competence, the two most relevant pieces of legislation are in relation to (1)

33 Council Decision 2007/124/EC establishing for the period 2007 to 2013, as part of the General Programme “Security and Safeguarding Liberties”, the Specific Programme “Prevention, Preparedness and Consequence Management of Terrorism and other Security Risks”. 34 Communication from the Commission to the Council and European Parliament, ‘Preparedness and consequence management in the fight against terrorism’, COM(2004) 701 final.


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encouraging Member States to harmonize their legislation regarding minimum rules for

terrorist offences and penalties,35 and (2) reinforcing police and judicial co-operation through

information exchange.36

The EU has adopted other legislation in the context of the fight of terrorism such as Council

Regulation 2252/2004/EC on standards for security features and biometrics in passports and

travel documents issued by Member States, Council Regulation 2580/2001/EC on specific

restrictive measures directed against certain persons and entities with a view to combating

terrorism which targets terrorism financing, and Directive 2005/60/EC on the prevention of

the use of the financial system for the purpose of money laundering and terrorist financing.

• Those actions taken by the EU through intergovernmental co-operation are

binding on the Member States as to the result to be achieved. Therefore, the

Member States must take the necessary measures to harmonize their legislation

regarding terrorist offences and penalties under the framework decision, and

must also abide by the decision mandating information exchange and co-

operation. The Member States do not have any discretion with regard to these

measures.

• EC regulations on passport security features and restrictive measures aimed at

terrorist financing are binding in their entirety without leaving discretion to the

Member States regarding implementation. The Directive concerning money

laundering and terrorist financing is binding but does leave discretion to the

Member States.

35 Council Framework Decision 2002/475/JHA on combating terrorism. 36 Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences.


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c.c.c.c. Criteria for eligibility for Criteria for eligibility for Criteria for eligibility for Criteria for eligibility for actionactionactionaction

The Decision establishing the CPM Financial Instrument37 is mainly focused on supporting

and complementing the Member States in their efforts to prevent and respond to disasters

through various eligible actions as listed in Article 4. However, Article 8 contemplates

assistance requiring a “wider Community humanitarian response” and allows for actions

compliant with Regulation 1257/95/EC concerning humanitarian aid. As the CPM is

intended for use both within and outside of the EU, it is unclear whether this provision is

referring only to external aid or whether it also includes intra-Community assistance.

Assuming the latter is true, assisting actors, such as non-governmental organizations (NGOs),

must comply with Article 7 of the Humanitarian Aid Regulation which lays down the

eligibility requirements for the participation of such actors. Eligible organisations must be

non-profit-making autonomous organizations in a Member State of the Community under

the laws in force in that Member State and have their main headquarters in a Member State

of the Community, the third country receiving humanitarian aid or, exceptionally in a donor

state. In addition, the following factors must be considered in the determination of an

NGO’s suitability for funding:

• its administrative and financial management capacities;

• its technical and logistical capacity in relation to the planned operation;

• its experience in the field of humanitarian aid;

• the results of previous operations carried out by the organization concerned,

and in particular those financed by the Community;

• its readiness to take part, if need be, in the coordination system set up for a

humanitarian operation;

• its ability and readiness to work with humanitarian agencies and the basic

communities in the third countries concerned;

• its impartiality in the implementation of humanitarian aid;

37 2007/162/EC, Euratom.


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• where appropriate, its previous experience in the third country involved in the

humanitarian operation concerned.

It is worth mentioning at this stage that although the EU humanitarian aid programme is

applied externally, it abides by the principles of humanity, neutrality, independence and

impartiality and allocates funding on a needs basis only.38 Given that the CPM Financial

Instrument refers to the Humanitarian Aid Regulation as a measure of comparison, one can

assume that the same principles apply in the context of intra-Community civil protection.

d.d.d.d. Privileges and ImmunitiesPrivileges and ImmunitiesPrivileges and ImmunitiesPrivileges and Immunities

Under Article 291 TEC, the Community “shall enjoy in the territories of the Member States

such privileges and immunities as are necessary for the performance of its tasks”. A protocol

was drafted and attached to the Treaty which presents the conditions of such privileges and

immunities.39 The Protocol applies to the Community institutions and staff, including the

European Central Bank, the European Investment Bank, the Community Courts and missions

of third countries accredited to the EC. It provides privileges and immunities regarding direct

taxation and customs duties40 and contains provisions regarding official communications and

travel passes for officials and other servants of the Communities.41 It also provides for the free

movement of Members of European Parliament in respect of customs and exchange control

while travelling to and from its meetings42, and grants Members immunity from liability from

legal proceedings during parliamentary sessions.43 Chapter V of the Protocol grants certain

privileges and immunities to officials and other servants of the European Communities but

does not define ‘servants’; thus, it is uncertain whether mission staff can benefit from this

provision if they are working under the guise of EU action.

38 Council Regulation 1257/96/EC (preamble, Article 1); Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission (‘The European Consensus on Humanitarian Aid’), OJ C 25, 30.1.2008, p. 1–12. 39 Protocol (No 36) on the privileges and immunities of the European Communities (1965). 40 Articles 3 and 4. 41 Articles 6 and 7. 42 Article 8. 43 Article 10.


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The Protocol is strictly concerned with privileges and immunities of the Communities and its

staff. It makes no mention of whether humanitarian organizations or international

organizations are considered ‘servants of the Communities’ in the context of relief

operations, nor does it make any separate provisions for such bodies. Neither does there

seem to be a separate EU document geared specifically toward this issue. Under the EU’s

humanitarian aid programme, international and humanitarian organizations are required to

sign a Framework Partnership Agreement (FPA) which details the actions taken under the

humanitarian aid programme in connection with the EC and its funding. The agreements

also omit any provision regarding privileges and immunities; however, each contains

conditions surrounding liability of the relevant organization. Both FPAs state that the

international or humanitarian organization has the sole responsibility for complying with any

legal obligations incumbent upon it, including towards third parties.44 In both cases, the EC is

free from any liability relating to a claim for damages caused during the execution of the

humanitarian action.45 It is unclear at this stage whether FPAs or a similar framework are

applicable to the intra-Community context of the CPM.

e.e.e.e. Recent ActivityRecent ActivityRecent ActivityRecent Activity

On 4 June 2009, the Council published conclusions on civil protection awareness raising46

which call for more focused action by the Commission and the Member States regarding (1)

targeted public information and/or education on how to prepare and react to emergencies;

(2) enhanced security for rescue personnel in the EU; and (3) enhanced knowledge and skill

for diplomatic personnel. It would seem that the EU is taking a more practical approach to

civil protection which will perhaps lead to more regulation in those areas that will affect the

correct functioning of the civil protection mechanism and which are covered in the IDRL

44 Framework Partnership Agreement with International Organizations, General Conditions Applicable to the European Community Contribution Agreements with International Organizations for Humanitarian Aid Actions, art 3; Framework Partnership Agreement with Humanitarian Aid Organizations, General Conditions Applicable to the European Community Contribution Agreements with Humanitarian Aid Organizations, art 3. 45 ibid. 46 2946th Justice and Home Affairs Council meeting Luxembourg, 4 June 2009.


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Guidelines. Specifically in relation to the security of rescue personnel, the Council has

invited the Commission to “develop an overview of the security of rescue service personnel

based on Member States’ experience” and to make recommendations to the Council as to

possible measures that may be needed in this area.


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III.III.III.III. Other Sources of NormsOther Sources of NormsOther Sources of NormsOther Sources of Norms

Much of the relevant regional materials have been discussed in a 2007 study by the IFRC

entitled ‘Law and legal issues in international disaster response: a desk study’. Some will be

repeated herein, but this report attempts to uncover additional regional agreements relevant

to the EU Member States. As the reader will see below, aside from the Conventions listed,

there are several European partnerships centred on the area of disaster relief.

a.a.a.a. International International International International

The 1970 Recommendation of the Customs Co-operation Council to Expedite the

Forwarding of Relief Consignments in the Event of Disasters became partially integrated into

specific annexes of the International Convention on the simplification and harmonization of

Customs procedures (Kyoto Convention) of 1974 (and revised in 2000). Its provisions

recommend that parties waive export and import conditions regarding relief consignments

and are largely mirrored in Annexes B3 and J5. The Convention also takes into account the

UN OCHA Model Customs Facilitation Agreement between the UN and a State or

Government, which provides measures to expedite the import/export and transit of relief

consignments, as well as the personal items of relief personnel.

The UN Convention on the Privileges and Immunities of the United Nations (1946) and the

Convention on the Privileges and Immunities of the Specialized Agencies (1947) are an

expansion of Articles 104 and 105 of the Charter of the United Nations which clarify the

legal status, rights and privileges and immunities of UN personnel and specialized agencies

such as the International Labour Organization or the International Monetary Fund. It is much

like the privileges and immunities protocol of the TEC in that it determines the status of UN

property, Member State representatives, UN officials, and sets out the rules applying to the


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UN Laissez-Passer.47 The conventions enter into force as the UN Member States ratify them

and do not apply simply by virtue of membership of the United Nations. One hundred fifty-

seven states are party to the 1946 Convention, while 116 states are party to the Convention

relating to Specialized Agencies.

The UN also adopted the Convention on the Safety of United Nations and Associated

Personnel (1994) and its Optional Protocol (2005) which applies to UN operations “(i) where

the operation is for the purpose of maintaining or restoring international peace and security;

or (ii) where the Security Council or the General Assembly has declared, for purposes of the

Convention, that there exists an exceptional risk to the safety of the personnel participating

in the operation”.48 The Convention is narrowly focused and does not apply to regular

peacekeeping missions. Therefore, in 2005, the General Assembly adopted the Optional

Protocol in order to expand the scope of the Convention to UN and associated personnel

“delivering emergency humanitarian assistance or providing humanitarian, political or

development assistance in peace building”.49 The Convention entered into force on 15

January 1999 and currently has 87 states parties; the Protocol has 18 states parties, but is not

yet in force.

The Tampere Convention on the Provision of Telecommunication Resources for Disaster

Mitigation and Relief Operations (1999) establishes a framework for facilitating the use of

telecommunications resources in the event of a disaster by requiring state parties to reduce

or remove any barriers to bringing telecommunications equipment across borders during and

after a disaster. It also includes provision for conferring the necessary privileges and

immunities to disaster relief personnel. There are currently only 37 states parties, including

25 EU Member States and the EC itself. It has been in force since 8 January 2005.

The Convention on Temporary Admission (Istanbul Convention) (1990) is a consolidation of

several agreements relating to temporary admission. Its Annex A concerns temporary

47 The UN Laissez-Passer is a travel document issued by the United Nations to its staff which can be used like a national passport (in connection with travel on official mission for the United Nations only). 48 Article 1(c). 49 Article II.1.


19

admission papers and replaces the A.T.A. Convention of 1961. Annex B.2 covers

professional equipment, e.g., transmission and communication equipment. Annex B.9 allows

the free importation of goods imported for humanitarian purposes such as relief

consignments and medical equipment, as long as they are intended for re-export. Annex C

covers temporary admission of means of transport. Annex D allows for the temporary

admission of rescue animals. It has been in force since 27 November 1993.

b.b.b.b. RegionalRegionalRegionalRegional

The EUR-OPA Major Hazards Agreement (Partial Agreement on the Prevention of,

Protection Against, and Organization of Relief in Major Natural and Technological Disasters)

was set up by the Council of Europe in 1987 as a forum for co-operation between Eastern

Europe, Western Europe and the Southern Mediterranean region. Its main objective is to

“make a multidisciplinary study of the co-operation methods for the prevention of,

protection against, and organisation of relief in major and technological disasters”. The

Agreement is a so-called ‘partial’ agreement and is therefore not a formal international

treaty, but rather a method of cooperation within the Council of Europe. It has a unilateral

accession mechanism. To date, it has 25 members and the European Commission has

‘participant’ status.50

The European Convention on the Recognition of the Legal Personality of International Non-

Governmental Organizations (1986) has been in force since 1 January 1991 and appears to

be the sole international instrument pertaining to the recognition of foreign NGOs; however,

it only has 11 ratifications. It provides a method for the recognition of “associations,

foundations and other private institutions” satisfying certain conditions via production of the

NGO’s memorandum and articles of association.

In 1996, under a programme entitled the Central European Initiative, the governments of

Austria, Croatia, Hungary, Italy, Poland and Slovenia concluded the Cooperation Agreement

50 A list of acceding states is available at: http://conventions.coe.int/Treaty/Commun/ListeTableauAP.asp?AP=6&CM=&DF=&CL=ENG. .


20

on the Forecast, Prevention and Mitigation of Natural and Technological Disasters via the

Central European Initiative.51 Co-operation under the agreement is based on the exchange of

scientific and technical information, common research programmes and expert training with

a view toward setting up common programmes on Civil Protection and Disaster

Management.52 The agreement entered into force on 1 August 1994.

The EU Euro-Med Civil Protection Bridge is a programme established by the EU. The first

phase of the programme took place from 2003 to 2008 and sought to strengthen the civil

protection capacities in the Mediterranean region through information and expert exchange

and the provision of technical assistance in the context of prevention, risk reduction and

response capacity. A new programme has been funded by the EU from 2008 to 2011 which

focuses more specifically on prevention issues.53 Other similar programmes under the

umbrella of the EU include The Northern Dimension and the Council of the Baltic Sea

States. The Northern Dimension54 was established in 1999 and includes an Environmental

Partnership which seeks to strengthen the dialogue between the EU, Norway, Iceland and

the Russian Federation. The Environmental Partnership focuses on nuclear safety and natural

resources. The Council of the Baltic Sea States was established in 1992 and consists of the 11

states of the Baltic Sea region as well as the European Commission and was formed with the

overarching purpose of regional inter-governmental co-operation.55 It has experienced

success in fields such as nuclear safety and the facilitation of cross-border co-operation. The

Barents Euro-Arctic Council involving Norway, Finland, Russia and Sweden is similar.56

51 Information on the Initiative is available at: http://www.ceinet.org/home.php. 52 Article 1. 53 More information on the Euro-Med Bridge is available at: http://www.euromedinfo.eu/site.313.content.en.html. 54 More information on the Northern Dimension Environmental Partnership is available at: http://www.ndep.org/home.asp. 55 More information on the Council of the Baltic Sea States is available at: http://www.cbss.org/. 56 More information on the Barents Euro-Arctic Council is available at: http://www.beac.st/contentparser.asp?deptid=25225.


21

c.c.c.c. BilateralBilateralBilateralBilateral

i. United States

In 1990, the EU and the United States signed the Transatlantic Declaration on EC-US

Relations which provides a framework for co-operation through regular presidential summits.

While this agreement does not envision co-operation in the field of disaster response, the

Community CPM was activated in the United States after Hurricane Katrina and

representatives from the EU’s Monitoring and Information Centre (MIC) have met with the

US Federal Emergency Management Agency (FEMA) on a number of occasions.

The EU and the United States have also entered into agreements in the field of Justice and

Home Affairs. The first is the Agreement between the European Union and the United

States of America on the processing and transfer of Passenger Name Record (PNR) data by

air carriers to the United States Department of Homeland Security (DHS) (2007 PNR

Agreement).57 Under the agreement, airlines are required to transfer passenger data to the

DHS in exchange for a guarantee of a high level of protection. The second is the Agreement

between the European Union and the Government of the United States of America on the

security of classified information.58 Under this agreement, the EU and the United States have

recognized that effective co-operation necessitates greater access to information, but that this

access poses a threat to the security of the information sought and so have agreed to put

certain measures in place to ensure a higher level of security.

ii. Russia

In 2005, the EU and Russia entered into package agreement of so-called ‘roadmaps’59 which

established and implemented four common spaces: economics; freedom, security and

justice; research and education; and external security. Civil protection co-operation with

57 Council Decision 2007/551/CFSP/JHA on the signing, on behalf of the European Union, of an Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement). The Decision also contains the text of the agreement. 58 Council Decision 2007/274/JHA concerning the conclusion of the Agreement between the European Union and the Government of the United States of America on the security of classified information. 59 The Road Maps are available at: http://ec.europa.eu/external_relations/russia/common_spaces/index_en.htm.


22

Russia falls under the common space of external security. The Road Map for the Common

Space of External Security cites “strengthened dialogue and co-operation on the

international scene” as one of its objectives alongside “co-operation in civil protection”.60

The Road Map states that the object is to “strengthen EU-Russia dialogue and co-operation

to promote common ability to respond to disaster and emergencies, including in specific

crisis management situations” through the exchange of expert information, co-ordination of

capabilities, continued discussion on concrete areas of co-operation such as civil protection

and assistance in response to natural disaster, sharing of lessons learnt from terrorist attacks,

and the facilitation of mutual assistance in search and rescue operations.61

iii. Ukraine

The EU and the Ukraine have explicitly endeavoured to closely co-operate in the sphere of

civil protection. The MIC and the Ministry of Ukraine of Emergencies and Affairs of Popular

Protection have concluded an administrative agreement providing for information exchange

during emergencies, including of operational contact details, and for joint communication

exercises.62

60 Road Map pp 40, 44. 61 ibid. 62 At the time of writing, the text of this agreement could not be located; however, information about the EU-Ukraine co-operation is available at: http://ec.europa.eu/europeaid/where/neighbourhood/country-cooperation/ukraine/ukraine_en.htm and a discussion of the signing can be found in the 2009 Progress Report Ukraine published by the Commission on 23/04/09. As it has the status of an ‘administrative’ agreement; it is unclear whether the text is available to the public.


23

IV.IV.IV.IV. Areas of NonAreas of NonAreas of NonAreas of Non----RegulationRegulationRegulationRegulation

It appears that the areas touched on by Part V of the IDRL Guidelines are largely left un-

regulated by the EU and in international, regional and bilateral agreements. In the context of

the EU, The British Institute made a search of not only the legislation contained within the

framework of the EU’s Civil Protection Mechanism and humanitarian aid policy, but also a

survey of existing EU legislation in other sectors, including agriculture, customs, employment

and social policy, environment, external relations, food safety, public health, justice and

home affairs, taxation and transport. As is evident from Part II above, there are many areas

related to Part V of the IDRL Guidelines that are currently un-regulated by the EU, especially

in relation to food and animal issues.

While EU customs legislation seems to be well-acquainted with disaster relief co-ordination

and includes provisions specifically referring to disaster relief consignments and items,

legislation in other areas is not so forthcoming. Likewise, the applicable visa legislation is

lacking provision for expedited procedures in the event of a disaster, as is the relevant animal

transit legislation.

It seems that this is also the case for international conventions and regional and bilateral

agreements. While they are clearly attempting to provide for general facilitation for co-

operation in the event of a disaster, most of the legislation does not reach the technical

aspects of disaster relief co-operation, other than legislation relating to customs.


24

V.V.V.V. Table of Relevant LegislationTable of Relevant LegislationTable of Relevant LegislationTable of Relevant Legislation

TitleTitleTitleTitle Relevant BodyRelevant BodyRelevant BodyRelevant Body Binding Nature/Legal ForceBinding Nature/Legal ForceBinding Nature/Legal ForceBinding Nature/Legal Force

CustomsCustomsCustomsCustoms

Council Regulation 918/83/EEC setting up a Community system of reliefs from customs duty

European (Economic) Community In force

Commission Regulation 2454/93/EEC laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code


Council Directive 83/181/EEC determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods`


Council Directive 2006/112/EC on the common system of value added tax

European Community In force

Council Regulation 3648/91/EEC laying down the methods of using form 302 and repealing Regulation 3690/86/EEC concerning the abolition, within the framework of the TIR Convention, of customs formalities on exit from a Member State at a frontier between two Member States and Regulation 4283/88/EEC on the abolition of certain exit formalities at internal Community frontiers - introduction of common border posts


Council Regulation 150/2003/EC suspending import duties on certain weapons and military equipment


Recommendation of the Customs Co-operation Council to Expedite the Forwarding of Relief Consignments in the Event of Disasters

Customs Co-operation Council It is not binding; however, it has been partially integrated into the Kyoto Convention of 1974 (and its revised version of 2000).


25

Convention on Temporary Admission (Istanbul Convention)

UN Office for the Coordination of Humanitarian Affairs (OCHA)

In force since 27 November 1993

AnimalsAnimalsAnimalsAnimals

Regulation 998/2003/EC of the European Parliament and of the Council on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC


Commission Decision 2003/803/EC establishing a model passport for the intra-Community movements of dogs, cats and ferrets


Council Directive 91/496/EEC laying down the principles governing the organization of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC

European (Economic) Community Entry into force varies according to article (see Article 30)

Workers and Professional QualificationsWorkers and Professional QualificationsWorkers and Professional QualificationsWorkers and Professional Qualifications

Regulation 1612/68/EEC of the Council on freedom of movement for workers within the Community

European (Economic) Community In force and has been amended by Directive 2004/38/EC

Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications


Entry of PersonnelEntry of PersonnelEntry of PersonnelEntry of Personnel

Council Regulation 574/1999/EC determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States


Convention on Temporary Admission (Istanbul Convention)

UN Office for the Coordination of Humanitarian Affairs (OCHA)

In force since 27 November 1993


26

TerrorismTerrorismTerrorismTerrorism

Council Decision 2007/124/EC establishing for the period 2007 to 2013, as part of the General Programme “Security and Safeguarding Liberties”, the Specific Programme “Prevention, Preparedness and Consequence Management of Terrorism and other Security Risks”


Council Framework Decision 2002/475/JHA on combating terrorism

European Union In force

Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences

European Union In force

Council Regulation 2252/2004/EC on standards for security features and biometrics in passports and travel documents issued by Member States


Council Regulation 2580/2001/EC on specific restrictive measures directed against certain persons and entities with a view to combating terrorism


Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing


NGOsNGOsNGOsNGOs

Regulation 1257/95/EC concerning humanitarian aid


European Convention on the Recognition of Legal Personality of International Non-Governmental Organizations

Council of Europe In force since 1 January 1991

PrivilegesPrivilegesPrivilegesPrivileges and Immunities and Immunities and Immunities and Immunities

Protocol (No 36) on the privileges and immunities of the European Communities (1965)



27

Convention on the Privileges and Immunities of the United Nations

United Nations In force; 157 parties currently

Convention on the Privileges and Immunities of the Specialized Agencies

United Nations In force; 116 parties currently

General CoGeneral CoGeneral CoGeneral Co----operationoperationoperationoperation

EUR-OPA Major Hazards Agreement (Partial Agreement on the Prevention of, Protection Against, and Organization of Relief in Major Natural and Technological Disasters)

Council of Europe Set up in 1987 and includes a unilateral accession mechanism; currently 25 members

Cooperation Agreement on the Forecast, Prevention and Mitigation of Natural and Technological Disasters

Central European Initiative In force between the governments of Austria, Croatia, Hungary, Italy, Poland and Slovenia since 1996

Euro-Med Civil Protection Bridge European Union

This is a programme, rather than an agreement, aimed at strengthening civil protection capacities in the Mediterranean region; originally launched in 2003 and currently in a programme scheduled to last until 2011

Northern Dimension European Union Environmental programme seeking to strengthen the dialogue between the EU, Norway, Iceland and the Russian Federation (1999)

Council of the Baltic Sea States European Union

Over-arching purpose is regional inter-governmental co-operation; members are the European Commission and the 11 Baltic Sea states; since 1992

Barents Euro-Arctic Council European Union Similar programme involving Norway, Finland, Russia and Sweden (1993)

TelecommunicationsTelecommunicationsTelecommunicationsTelecommunications

Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations

UN OCHA In force since 8 January 2005

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