Procedure : 2008/0200(COD)
Document stages in plenary
Document selected : A6-0228/2009

Texts tabled :

A6-0228/2009

Debates :

Votes :

PV 22/04/2009 - 6.11
Explanations of votes

Texts adopted :

P6_TA(2009)0227

REPORT     *
PDF 245kDOC 337k
3 April 2009
PE 419.940v03-00 A6-0228/2009

on the proposal for a Council decision on a Critical Infrastructure Warning Information Network (CIWIN)

(COM(2008)0676 – C6-0399/2008 – 2008/0200(CNS))

Committee on Civil Liberties, Justice and Home Affairs

Rapporteur: Luca Romagnoli

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS
 ANNEX
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council decision on a Critical Infrastructure Warning Information Network (CIWIN)

(COM(2008)0676 – C6-0399/2008 – 2008/0200(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the Commission proposal to the Council (COM(2008)0676),

–   having regard to Article 308 of the EC Treaty and Article 203 of the Euratom Treaty, pursuant to which the Council consulted Parliament (C6-0399/2008),

–   having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–   having regard to Rules 51 and 35 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0228/2009),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.  Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

5.  Calls on the Commission, following the entry into force of the Treaty of Lisbon, if the Council has not taken any decision in this respect, to consider the possibility of using Article 196 (Civil Protection) as the legal basis for this proposal and to reconsider, if appropriate, submitting a proposal to Parliament;

6.  Instructs its President to forward its position to the Council and the Commission.

Amendment  1

Proposal for a decision

Recital 1

Text proposed by the Commission

Amendment

(1) The Council conclusions on “Prevention, Preparedness and Response to Terrorist Attacks” and the “EU Solidarity Programme on the Consequences of Terrorist Threats and Attacks” adopted by Council in December 2004 endorsed the Commission's intention to propose a European Programme for Critical Infrastructure Protection and agreed to the Commission setting up CIWIN1

(1) The Council conclusions on “Prevention, Preparedness and Response to Terrorist Attacks” and the “EU Solidarity Programme on the Consequences of Terrorist Threats and Attacks” adopted by Council in December 2004 endorsed the Commission's intention to propose a European Programme for Critical Infrastructure Protection and agreed to the Commission setting up CIWIN1.

14894/04.

Council Document 15232/04.

Justification

The document referred to in the Commission proposal (14894/04) gives only general comments on the critical infrastructure protection. The reference document should be document 15232/04.

Amendment  2

Proposal for a decision

Recital 4

Text proposed by the Commission

Amendment

(4) Several incidents involving critical infrastructure in Europe such as for example the European blackout in 2006 demonstrated the need for a better and more efficient exchange of information in order to prevent or limit the scope of the incident.

(4) Several incidents involving critical infrastructure in Europe such as for example the European blackout in 2006 demonstrated the need for a better and more efficient exchange of information and greater knowledge of the practices of different Member States in order to be prepared and to avoid a recurrence of such incidents.

Justification

The exclusion of the rapid alert system (RAS) from the current format of CIWIN requires the amendment of this recital.

Amendment  3

Proposal for a decision

Recital 5

Text proposed by the Commission

Amendment

(5) It is appropriate to establish an information system that will enable Member States and the Commission to exchange information and alerts in the field of Critical Infrastructure Protection (CIP), to strengthen their CIP dialogue, and contribute towards promoting the integration and better coordination of nationally scattered and fragmented CIP research programmes.

(5) It is therefore appropriate to establish an information system that will enable Member States and the Commission to exchange information in the field of CIP, to strengthen their CIP dialogue, and contribute towards promoting the integration and better coordination of nationally scattered and fragmented CIP research programmes.

Justification

Although the option for a rapid alert system (RAS) within CIWIN is to be welcome, further analysis and evaluation is needed in this respect. An in-depth study should to be launched by the Commission which would assess all the consequences of including a RAS functionality in CIWIN. The findings of the pilot project to be launched probably in June 2009 concerning CIWIN will also provide a more detailed and concrete picture for the RAS option. It should also be recalled that Member States had contrasting views with regard to this option when consulted on the CIWIN functionalities. The possibility for CIWIN to have this double functionality was put forward in the Commission Green Paper on a 'European Programme for a Critical Infrastructure Programme'.

Amendment  4

Proposal for a decision

Recital 6

Text proposed by the Commission

Amendment

(6) CIWIN should contribute to the improvement of CIP in the EU by providing an information system that could facilitate Member States' cooperation; and offer an efficient and quick alternative to time-consuming methods of searching for information on critical infrastructures in the Community.

(6) CIWIN should contribute to the improvement of CIP in the EU by providing an information system that could facilitate Member States' cooperation and coordination, and offer an efficient and quick alternative to time-consuming methods of searching for information on critical infrastructures in the Community. It should in particular stimulate the development of appropriate measures aimed at facilitating the exchange and dissemination of information, best practices and experience between Member States.

Amendment  5

Proposal for a decision

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a) The first evaluation of CIWIN should also include an in-depth analysis of the necessity of adding a new functionality to CIWIN, namely the technical facility of a rapid alert system (RAS). This functionality should enable Member States and the Commission to post alerts on immediate risks and threats to critical infrastructure, taking into account all the necessary security requirements.

Justification

The results of the first evaluation of CIWIN together with the relevant study and findings of the pilot project to be launched by the Commission should provide sufficient information in order to assess the necessity of including this option within CIWIN.

Amendment  6

Proposal for a decision

Recital 7

Text proposed by the Commission

Amendment

(7) CIWIN should, in particular, stimulate the development of appropriate measures aimed at facilitating an exchange of best practices as well as being a vehicle for transmission of immediate threats and alerts in a secure manner.

deleted

Justification

Parts of this recital are currently included under Recital 6. The deletion of references to 'immediate threats and alerts' is in line with the position adopted by the draft report to have only an exchange of information functionality for the first stage of development of CIWIN.

Amendment  7

Proposal for a decision

Recital 8

Text proposed by the Commission

Amendment

(8) CIWIN should avoid duplication and be heedful of the specific characteristics, expertise, arrangements and areas of competence of each of the existing sectoral rapid alert systems (RAS).

(8) In the course of the development and the evaluation of the new information system, Member States and the Commission should ensure that CIWIN avoids duplication and is heedful of the specific characteristics, expertise, arrangements and areas of competence of each of the existing sectoral rapid alert systems (RAS).

Amendment  8

Proposal for a decision

Recital 10

Text proposed by the Commission

Amendment

(10) The interdependence of critical infrastructure in Member States and varying levels of CIP in Member States suggest that creating a horizontal and cross-sectoral Community tool for the exchange of information and alerts on CIP would increase the security of citizens.

(4a) The interdependence of critical infrastructure in Member States and varying levels of Critical Infrastructure Protection (CIP) in Member States suggest that creating a horizontal and cross-sectoral Community tool for the exchange of information on CIP would increase the security of citizens.

Justification

This argument should be put forward sooner in the explanation.

Amendment  9

Proposal for a decision

Recital 10 a (new)

Text proposed by the Commission

Amendment

 

(10a) The adoption of measures in the sphere of civil protection is listed amongst the activities of Community in point (u) of Article 3(1) of the EC Treaty. Therefore, the creation of CIWIN is necessary to enable the Community to attain an objective laid down by the Treaty.

Amendment 10

Proposal for a decision

Recital 11

Text proposed by the Commission

Amendment

(11) Taking into account the future availability of the Trans European Services for Telematics between Administrations (S-TESTA) communications network or any alternative secure network operated by the Commission, the Commission should decide on the most appropriate technological platform for CIWIN and require end users to meet the technical requirements established by the Commission.

(11) Taking into account the future availability of the Trans European Services for Telematics between Administrations (S-TESTA) communications network or another alternative secure network operated by the Commission, the Commission should decide on the most appropriate technological platform for CIWIN and require end users to meet the technical requirements established by the Commission.

Justification

If it can be understood that for the moment other technical solutions can be envisaged for CIWIN, it is important to specify in a more precise manner this fact.

Amendment  11

Proposal for a decision

Recital 17

Text proposed by the Commission

Amendment

(17 This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union,

(17 ) This Decision respects the fundamental rights and observes the principles recognised by Article 6 of the EU Treaty and reflected in the Charter of Fundamental Rights of the European Union,

Justification

An additional reference to Article 6 of the Treaty on European Union is considered a necessary amendment.

Amendment  12

Proposal for a decision

Article 1

Text proposed by the Commission

Amendment

This Decision sets up a secure information, communication and alert system - Critical Infrastructure Warning Information Network (CIWIN) - with the aim of assisting Member States to exchange information on shared threats, vulnerabilities and appropriate measures and strategies to mitigate risks related to CIP.

This Decision sets up a secure information and communication system - Critical Infrastructure Warning Information Network (CIWIN) - with the aim of assisting Member States to exchange information on vulnerabilities and appropriate measures and strategies to mitigate risks related to CIP.

Justification

See justification Amendment 3. The title of the Network has not been changed although it could be argued that the 'Warning' element should be deleted if the RAS is not included in the initial phase of CIWIN. The Commission Communication on a European Programme for Critical Infrastructure Protection from 2006 has kept this title although the Communication states that 'CIWIN will provide a platform for the exchange of best practices in a secure manner ' and 'could also provide an optional platform for the exchange of rapid alerts[...]'.

Amendment  13

Proposal for a decision

Article 2 – subparagraph 2

Text proposed by the Commission

Amendment

«Critical Infrastructure» shall mean those assets, systems or parts thereof located in Member States which are essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people, and the disruption or destruction of which would have a significant impact in a Member State as a result of the failure to maintain those functions.

«Critical Infrastructure» shall mean those assets, systems or parts thereof located in Member States which are essential for the maintenance of vital societal functions, health, safety, security, supply chain, economic or social well-being of people, and the disruption or destruction of which would have a significant impact in a Member State as a result of the failure to maintain those functions.

Amendment  14

Proposal for a decision

Article 2 – subparagraph 3

Text proposed by the Commission

Amendment

"Participating Member State" shall mean the Member State having signed a Memorandum of understanding with the Commission.

deleted

Justification

In order to fully comply with the legal basis of the proposal, especially in relation to the "necessity" requirement, and with the first branch of the proportionality test (the Community action "must be appropriate for securing the attainment of the objective it pursues"), the participation of the Member States should be rendered obligatory.

Amendment  15

Proposal for a decision

Article 3

Text proposed by the Commission

Amendment

Article 3

deleted

Participation

 

Participation in and use of CIWIN is open to all Member States. The participation to CIWIN shall be conditional upon the signature of a Memorandum of understanding that contains technical and security requirements applicable to CIWIN, and information on the sites to be connected to CIWIN.

 

Justification

In order to fully comply with the legal basis of the proposal, especially in relation to the "necessity" requirement, and the first branch of the proportionality test (the Community action "must be appropriate for securing the attainment of the objective it pursues"), the participation of the Member States should be rendered obligatory.

Amendment  16

Proposal for a decision

Article 4 – Title

Text proposed by the Commission

Amendment

Functionalities

Functionality and structure

Justification

The exclusion of the RAS option requires an amendment of the title and an additional precision.

Amendment   17

Proposal for a decision

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

(1) The CIWIN shall consist of the two following functionalities:

(a) an electronic forum for the CIP related to information exchange;

(1) The CIWIN shall be designed as an electronic forum for the CIP related to information exchange.

(b) a rapid alert functionality that shall enable participating Member States and the Commission to post alerts on immediate risks and threats to critical infrastructure.

 

Justification

The exclusion of the RAS option requires an amendment of paragraph 1.

Amendment  18

Proposal for a decision

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

(1a) The technical platform for CIWIN shall be present in at least one secure location in each Member State.

Justification

In order to allow Member States to adjust their system to CIWIN and to avoid an unreasonable burden in terms of costs of the new network only one secure location is required in order to initiate the process, leaving to Member States the possibility to install other secure locations in accordance with their needs.

Amendment  19

Proposal for a decision

Article 4 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

Fixed areas shall be included in the system on a permanent basis. While their content may be adjusted, the areas may not be removed, renamed or new areas added. Annex I contains a list of fixed areas.

Fixed areas shall be included in the system on a permanent basis. While their content may be adjusted, the areas may not be removed and renamed. Annex I contains a list of fixed areas. This does not preclude the inclusion of new areas if the functioning of the system demonstrates that this is necessary.

Justification

The pilot phase could very well provide evidence of the necessity to include new fixed areas in CIWIN. The same reasoning applies for the phase of normal functioning of CIWIN.

Amendment  20

Proposal for a decision

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

(1) Participating Member States shall designate a CIWIN Executive and notify the Commission thereof. CIWIN Executive shall be responsible for granting or denying access rights to the CIWIN within the relevant Member State.

(1) Member States shall designate a CIWIN Executive and notify the Commission thereof. CIWIN Executive shall be responsible for granting or denying access rights to the CIWIN within the relevant Member State.

 

(This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Justification

In order to fully comply with the legal basis of the proposal, especially in relation to the "necessity" requirement, and the first branch of the proportionality test (the Community action "must be appropriate for securing the attainment of the objective it pursues"), the participation of the Member States should be rendered obligatory.

Amendment  21

Proposal for a decision

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

(2) Participating Member States shall provide access to the CIWIN in compliance with the guidelines adopted by the Commission.

(2) Member States shall provide access to the CIWIN in compliance with the user guidelines adopted by the Commission.

Justification

In order to fully comply with the legal basis of the proposal, especially in relation to the 'necessity' requirement, and the first branch of the proportionality test (the Community action 'must be appropriate for securing the attainment of the objective it pursues'), the participation of the Member States should be rendered obligatory.

Amendment  22

Proposal for a decision

Article 6 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) laying down guidelines on the terms of use of the system, including confidentiality, transmission, storage, filing and deletion of information. The Commission shall also establish the terms and procedures for granting full or selective access to the CIWIN.

(b) laying down user guidelines on the terms of use of the system, including confidentiality, transmission, storage, filing and deletion of information. The Commission shall also establish the terms and procedures for granting full or selective access to the CIWIN.

Justification

It is necessary to harmonise the reference to these guidelines throughout the text.

Amendment  23

Proposal for a decision

Article 6 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

(3a) The Commission shall monitor the functioning of the CIWIN system.

Amendment  24

Proposal for a decision

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

(2) Users' rights to access documents shall be on a “need to know” basis and must at all times respect the author’s specific instructions on the protection and distribution of a document.

(2) Users' rights to access documents shall be on a “need to know” basis. Users shall at all times respect the author’s specific instructions on the protection and distribution of a document.

Justification

This amendment aims to better clarify the meaning of the second part of paragraph 2.

Amendment  25

Proposal for a decision

Article 7 – paragraph 2a (new)

Text proposed by the Commission

Amendment

 

(2a) In Member States, the exchange of sensitive information uploaded onto CIWIN between authorised users and third parties shall be subject to the prior authorisation of the owner of that information and shall take place in accordance with relevant Community and national law.

Justification

While the Commission acknowledges in its Impact Assessment(1) that 'they (sectors of industry) will not have direct access to the information contained in CIWIN', it also emphasizes that 'the advantages of such information for the private sector will be limited by their classification and the distribution of relevant information will depend upon the relevant Member States authorities' willingness to distribute it through appropriate national channels.' Although it can be expected that the rules on the transmission of information contained in CIWIN to third parties will be clearly specified in the guidelines mentioned in Articles 6 and 8 and having also in view the provisions of Article 7(2), a specific provision on how third parties could receive information uploaded onto CIWIN is necessary.

Amendment  26

Proposal for a decision

Article 7a (new)

Text proposed by the Commission

Amendment

 

Article 7a

Requirements relating to information included in CIWIN

 

For any information or documents uploaded in the system an automatic translation will be possible.

 

The Commission shall, in collaboration with CIP contact points, develop a list of key words for each sector which could be used when uploading or searching for information in CIWIN.

Justification

Although it can be expected that the requirements related to information uploaded or searched on CIWIN will also be included in the User guidelines mentioned in Articles 6 and 8, it is important to give general elements about the facility with which an information could be retrieved on CIWIN, thus enhancing its user-friendly format.

Amendment  27

Proposal for a decision

Article 8

Text proposed by the Commission

Amendment

The Commission shall develop and regularly update User guidelines containing full details of CIWIN's functionalities and roles.

The Commission shall develop and regularly update the User guidelines containing full details of CIWIN's functionality and roles.

Amendment  28

Proposal for a decision

Article 8 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

These User guidelines shall be established in accordance with the advisory procedure laid down in Article 3 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission1.

 

_________________

1 OJ L 184, 17.7.1999, p. 23.

Justification

The procedure for establishing such texts should be clearly indicated.

Amendment  29

Proposal for a decision

Article 10 – subparagraph 1

Text proposed by the Commission

Amendment

The Commission shall review and evaluate the operation of the CIWIN every three years, and shall submit regular reports to the Member States.

The Commission, using specially developed indicators for monitoring progress, shall review and evaluate the operation of the CIWIN every three years, and shall submit regular reports to all Member States, the European Parliament, the Committee of Regions and the European Economic and Social Committee.

Amendment  30

Proposal for a decision

Article 10 – subparagraph 2

Text proposed by the Commission

Amendment

The first report, which shall be submitted within three years after the entry into force of this Decision, shall, in particular, identify those elements of the Community network which should be improved or adapted. It shall also include any proposal that the Commission considers necessary for the amendment or adaptation of this Decision.

The first report, which shall be submitted within three years after the entry into force of this Decision, shall, in particular, identify those elements of the Community network which should be improved or adapted and shall, in particular, assess the participation of each Member State in the CIWIN system as well as the possibility of upgrading CIWIN to include a rapid alert system (RAS) functionality. It shall also include any proposal that the Commission considers necessary for the amendment or adaptation of this Decision.

Amendment  31

Proposal for a decision

Article 11

Text proposed by the Commission

Amendment

This Decision shall apply as from 1 January 2009.

This Decision shall take effect on the day of its publication in the Official Journal of the European Union.

Amendment  32

Proposal for a decision

Annex II – point 3

Text proposed by the Commission

Amendment

(3) Alert Areas, which may be created in the event of an alert being triggered in the RAS, and will constitute the channel of communication during CIP-related activities;

deleted

(1)

SEC(2008)2701 p.27.


EXPLANATORY STATEMENT

1. Context of the Proposal

Critical infrastructures consist of those physical and information technology facilities, networks, services and assets which, if disrupted or destroyed, would have a serious impact on the health, safety, security or economic well-being of citizens or the effective functioning of governments in the Member States. Critical infrastructures extend across many sectors of the economy, including banking and finance, transport and distribution, energy, utilities, health, food supply and communications, as well as key government services. Any such disruptions or manipulations of critical infrastructure should, to the extent possible, be brief, infrequent, manageable, geographically isolated and minimally detrimental to the welfare of the Member States, their citizens and the European Union.

Furthermore, transport systems, telecommunication, energy are crucial sectors for the development and "life" of the EU and its Member States. These sectors are more and more interconnected or some Member States rely on others. Technology develops quickly and sometimes the lack of information can create problems, while the exchange of best practices (experiences, approaches, techniques, solutions) among Member States could provide elements of response in order to avoid such problems. This type of exchange could also help avoiding unnecessary costs of re-developing a similar practice already successfully implemented by another Member State.

Therefore, the need for a unique system where to connect to and share information among the different authorities in the Member States on the protection of critical infrastructure was translated by the European Commission in the format of the proposal for a Council Decision on a Critical Infrastructure Warning Information Network (CIWIN). CIWIN would function as a forum for exchange of best practices with a possible additional function of a rapid alert system.

The establishment of CIWIN was already put forward in the Communication on the European Programme for Critical Infrastructure Protection (EPCIP)(1), which set out the horizontal framework for the protection of critical infrastructures in the EU, comprising measures to facilitate the implementation of EPCIP, including CIWIN.

2. Position of the Rapporteur

The rapporteur welcomes the CIWIN proposal and advises the European Parliament to support it. He does not foresee major changes to the proposal, thought he considers that some adjustments are needed. They mainly regard the elimination and possible future reconsideration of the Rapid Alert System (RAS) function (2.1.), the security of communication and the adequate level of protection, the language and the retrieving facilitation (2.2.) and finally a few clarifications on texts such as the Memorandum of understanding and the user guidelines or the fixed areas (2.3.).

2.1. The Rapid Alert System (RAS) Option

The rapporteur warmly welcomes the sharing of information among authorities of the Member States which should in particular stimulate the development of appropriate measures aimed at facilitating the exchange of best practices.

The proposed modification of the proposal, which sets CIWIN as a secure information and communication system, without RAS option, seems the right direction at the moment. A pilot project will be launched and after the assessment of the system it could be possible to evaluate CIWIN and possibly introduce the alert system functionality. As a matter of fact experiences gained during the use of the system will enable the Commission and the Member States to decide whether the rapid alert function is needed and how it should be set up. This analysis should also tend to adjust the CIWIN system in order to avoid duplication and reduce costs.

The Commission proposed the use of the S-TESTA network to communicate among the Member States. The system proved adequately well built and able to support and carry information in a secure way. If further developments or studies will demonstrate that another alternative secure network is better performing and provides more benefits in terms of both security and costs, it is to be taken in consideration for adoption.

2.2. Precisions concerning the Exchange of Information and CIWIN User Friendly Format

Attention should also be paid on the right level of security and on the access to the information, sensitive one in particular. There is certainly a mutual trust among authorities of the Member States, but in some cases these authorities may share information also with private sector or third countries (third parties). To this end, the rapporteur believes that when uploading the information on CIWIN it should be possible for the owner of the specific information to condition the exchange with these third parties to his specific authorisation. Although it can be expected that the rules on the transmission of information contained in CIWIN will be clearly specified in the user guidelines, it seems necessary to insert a provision in the proposal clearly specifying how third parties can access such information.

Another fundamental aspect of the CIWIN system concerns the language. In order to function properly the information should be easily accessible and understood. To this end an automatic translation shall be provided after the national users have uploaded the information or the documents. To facilitate the research of information throughout the system, the Commission together with the CIP contact points should elaborate specific thematic research boxes ("key words"). When inserting or retrieving information on CIWIN then, the users will tick the box (or the boxes) concerned. This will facilitate the research of information for the other users. These boxes will contain general categories common for all the users (translated in each language) and agreed among the Member States.

2.3. Clarifications

The rapporteur considers that it is important to clearly specify by which procedure a series of texts referred to in the proposal (Memorandum of understanding, User guidelines) should be adopted. To this end, the advisory procedure provided by Article 3 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission has been proposed in this draft report.

Furthermore, concerning the fixed areas foreseen by the proposal, the rapporteur considers that a relative flexibility should be allowed in the sense that the pilot phase or the assessment of the system itself could provide findings supporting the necessity of creating new fixed areas into CIWIN. This is why the proposal has been amended in this specific point.

(1)

COM (2006) 786 final.


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

01.4.2009

Mr Gérard Deprez

Chair

Committee on Civil Liberties, Justice and Home Affairs

BRUSSELS

Subject:           Opinion on the legal basis of the proposal for a Council Decision on a Critical Infrastructure Warning Information Network (CIWIN) (COM(2008)0676 – C6-0399/2008 – 2008/0200(CNS))

Dear Mr Deprez,

By letter of 30 January 2009 you asked the Committee on Legal Affairs pursuant to Rule 35(2) to consider whether the legal basis of the above Commission proposal was valid.

The committee considered the above question at its meeting of 31 March 2009.

On 30 January 2009, you consulted the committee pursuant to Rule 35(2) of the Rules of Procedure on the appropriate legal basis for the proposed Council decision on the Critical Infrastructure Warning Information Network (CIWIN). At present, the Commission is proposing Article 308 EC and Article 203 Euratom as the legal basis. You asked whether Article 308 EC alone, which the Court interprets relatively strictly, ought not to be used.

You went on to ask what the position would be in the Lisbon Treaty were in force. The Civil Liberties Committee also put these questions to Parliament’s Legal Service and followed them up by a further question as to whether Article 154 EC on trans-European networks would be envisageable as the legal basis for the CIWIN if the critical infrastructure in question were to fall primarily or exclusively within the fields indicated by the Treaty (transport, telecommunications and energy).

You then asked whether, in the event that the decision was not adopted before the entry into force of the Lisbon Treaty, the most appropriate legal basis might not be Article 196 TFEU on “civil protection” in so far as the measure is apt to support, coordinate or complement action by the Member States.

When consulted on the question whether Article 308 EC and Article 203 Euratom, or Article 308 alone, afforded an appropriate legal basis for the proposed decision, Parliament’s Legal Service reached the conclusion that the proposed instrument is defective in that, although the creation of a critical infrastructure would pursue objectives of the European Community and Euratom (and the proposed legal basis could be feasible), the legal effects of the proposed decision and hence its legal basis can only be assessed on the assumption that no Member State will participate in the CIWIN, since Member State participation is voluntary. On the face of it, therefore, the proposed decision fails to comply with the principle of proportionality and the requirement to state reasons.

There is every reason to consider that this carefully reasoned analysis carried out by the Legal Service is correct. Consequently, as matters stand, there is no viable legal basis for the proposal as it stands, since it is flawed.

The answer to the Civil Liberties Committee’s first question, therefore, is that neither Article 308 EC in conjunction with Article 203 Euratom nor Article 308 EC alone affords a sufficient legal basis for the decision as proposed by the Commission.

However, if amendments tabled in the Civil Liberties Committee which would result in participation in the network no longer being voluntary were to be adopted, it is considered that Article 308 EC would be appropriate as the legal basis. This conclusion is based on the fact that no other article of the EC Treaty would afford an appropriate legal basis and that adoption of CIWIN (if Member State participation therein is no longer purely voluntary) may be considered to be "necessary to attain, in the course of the operation of the common market, one of the objectives of the Community" within the meaning of that article.

It is therefore unnecessary to answer the question as to whether Article 154 EC on trans-European networks could constitute the legal basis for the CIWIN if it were to be primarily or exclusively concerned with transport, telecommunications and energy.

As far as the position after the Lisbon Treaty has entered into force is concerned, the Legal Affairs Committee considers that this question is purely hypothetical at present and therefore does not need to be answered.

Conclusions

At its meeting of 31 March 2009 the Committee on Legal Affairs accordingly decided, unanimously(1), to recommend that Article 308 of the EC Treaty is the appropriate legal basis.

Yours sincerely,

Giuseppe Gargani

(1)

The following were present for the final vote: Giuseppe Gargani (Chair), Rainer Wieland (Vice-Chair), Lidia Joanna Geringer de Oedenberg (Vice-Chair), Francesco Enrico Speroni (Vice-Chair), Monica Frassoni (rapporteur), Carlo Casini, Bert Doorn, Nicole Fontaine, Neena Gill, Klaus-Heiner Lehne, Véronique Mathieu, Hans-Peter Mayer, Manuel Medina Ortega, Hartmut Nassauer, Aloyzas Sakalas, Eva-Riitta Siitonen, Jacques Toubon, Diana Wallis, Renate Weber, Jaroslav Zvěřina.


ANNEX

LETTER OF THE COMMITTEE ON ECONOMIC AND MONETARY AFFAIRS

Mr            Gérard Deprez

Chairman

Committee on Civil Liberties, Justice and Home Affairs

ASP 09G206

Dear Chairman,

The Economic and Monetary Affairs Committee (ECON) has decided to provide an opinion on the proposal for a Council Decision on Fight against terrorism: Critical Infrastructure Warning Information Network (CIWIN) (CNS/2008/0200) in the form of a letter.

The Committee welcomes the CIWIN initiative as part of the European Programme for Critical Infrastructure Protection (EPCIP) and as in line with its opinion to your Committee on the proposal for a Council directive on the identification and designation of European Critical Infrastructure and the assessment of the need to improve their protection.(1)

The Committee believes that the Commission should monitor how efficiently CIWIN will assist Member States to exchange information on shared threats, including economic intelligence, vulnerabilities and appropriate measures and strategies to mitigate risk in support of critical infrastructure protection, and to enhance or amend the tools and mechanisms for secure exchange, if necessary.

The Committee also believes that the Commission should monitor and report on how Member States are actually implementing CIWIN decision.

I would be grateful if you could integrate these remarks in the Report, which your Committee is currently preparing.

Yours sincerely,

Pervenche Berès

(1)

COM(2006)0787 – C6-0053/2007 – 2006/0276(CNS).


PROCEDURE

Title

Critical Infrastructure Warning Information Network (CIWIN)

References

COM(2008)0676 – C6-0399/2008 – 2008/0200(CNS)

Date of consulting Parliament

14.11.2008

Committee responsible

       Date announced in plenary

LIBE

20.11.2008

Committee(s) asked for opinion(s)

       Date announced in plenary

CONT

15.1.2009

ECON

20.11.2008

ITRE

20.11.2008

TRAN

20.11.2008

Not delivering opinions

       Date of decision

CONT

2.12.2008

ECON

19.11.2008

ITRE

2.12.2008

TRAN

2.12.2008

Rapporteur(s)

       Date appointed

Luca Romagnoli

2.12.2008

 

 

Legal basis disputed

       Date of JURI opinion

JURI

 

 

 

Discussed in committee

10.2.2009

30.3.2009

31.3.2009

 

Date adopted

31.3.2009

 

 

 

Result of final vote

+:

–:

0:

32

1

1

Members present for the final vote

Alexander Alvaro, Catherine Boursier, Emine Bozkurt, Philip Bradbourn, Mihael Brejc, Kathalijne Maria Buitenweg, Maddalena Calia, Carlos Coelho, Gérard Deprez, Agustín Díaz de Mera García Consuegra, Bárbara Dührkop Dührkop, Claudio Fava, Armando França, Urszula Gacek, Kinga Gál, Roland Gewalt, Jeanine Hennis-Plasschaert, Ewa Klamt, Magda Kósáné Kovács, Henrik Lax, Roselyne Lefrançois, Baroness Sarah Ludford, Claude Moraes, Javier Moreno Sánchez, Rareş-Lucian Niculescu, Maria Grazia Pagano, Martine Roure, Vladimir Urutchev, Manfred Weber

Substitute(s) present for the final vote

Simon Busuttil, Sylvia-Yvonne Kaufmann, Antonio Masip Hidalgo, Bill Newton Dunn, Luca Romagnoli

Last updated: 9 April 2009Legal notice