The analysis so far reported makes evident that, with regard to the EU Solidarity Fund and the State aid regime, solidarity – even though at the basis of the improvements made in these fields after the adoption of the Lisbon Treaty – has to be balanced with specific conditions to be respected by the Member States. This leads to the question of how conditionality may acquire some relevance also in the field of disaster response when dealing with financial assistance. Although it is not possible to deepen the numerous problems raised by the application of this requirement, for the purposes of the present work it is notable, even only shortly, to reflect on the relationship between the latter and the principle of solidarity. Actually, the issue of conditionality is well-known with reference to the field of the EU economic governance and, mainly, to the financial assistance packages
340See, European Parliament resolution on the situation in Italy after the earthquakes, 2016/2988(RSP), 23 November 2016, para.7.
124 and mechanisms that have been put in place to respond to the needs of those EU Member States that suffered most from the economic crisis341. In order to receive
the financial help, recipient States are required to adopt a set of fiscal consolidation measures aimed at halting the deterioration in their public finance position. In this context, conditionality is a preventative remedy that serves two different purposes. First, it aims to reduce moral hazard and to ensure that resources are actually used to solve the beneficiary State’s problems. Secondly, conditionality is also meant to protect the whole Euro-zone against possible negative spill over by safeguarding its long-term financial stability.
The requirement of conditionality has then been endorsed and confirmed by the very CJEU in the already mentioned Pringle case wherein the Court, rather than to call on the principle of solidarity342, stressed that financial assistance is
permissible under Article 125 TFEU provided that “the granting of any financial assistance under the mechanism will be made subject to strict conditionality, that the mechanism will operate in a way that will comply with European Union law”343 and that, in any case, assistance could be granted only in case of danger to
the euro area as a whole. Such a conclusion has already suggested a first debate on the conciliation between a reasoning based on the potential danger to the whole euro area (and not to a single EU Member) and the principle of solidarity. In this regard, there is to say that – on account of the very CJEU jurisprudence – solidarity has been always considered expression of the desire to act in the name of the common good, thereby subjecting national interests to the more general one. However, in this specific case, the pursuit of the common goal has put in disadvantage and worsen the hardship suffered by Member States in the absence
341 For a deeper analysis on the principle of conditionality in the European economic governance see, ex multis, F. Costamagna, Saving Europe ‘Under Strict Conditionality’: A Threat for EU
Social Dimension?, Centro Einaudi, Working Paper-LPF n. 7, 2012; M. Ioannidis, “EU Financial Assistance Conditionality after ‘Two Pack’”, in Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht – Heidelberg journal of international law, Vol. 74, 2014, pp. 61-104; A. Baraggia, “Conditionality measures within the euro area crisis: A challenge to the democratic principle?”, in Cambridge Journal of International and Comparative Law, Vol. 4, 2015, pp. 268- 288; K. Featherstone, “Conditionality, Democracy and Institutional Weakness: the Euro-crisis Trilemma”, in Journal of Common Market Studies, Vol. 54, 2016, pp. 48-64.
342 See, supra, Chapter II, para. 1.2. 343 See, CJEU, Pringle case, cit., point 72.
125 of assistance344. The economic and financial crisis has thus exposed the principle
of solidarity to new challenges that the Court should have clarified and addressed in a more detailed way.
Returning to the topic of the relationship between conditionality and solidarity in the field of financial assistance granted in disaster scenarios, both the EU Solidarity Fund and the State aid regime introduce some clear conditions that have to be respected by the affected Member States in order to fall in the scope of application of such instruments.
With regard to the first instrument of financial solidarity, it is meaningful the fact that, in Article 4, para.2, of the Regulation revised in 2014, it is set that the Commission
“may reject a further application for a financial contribution relating to a natural disaster of the same nature or reduce the amount to be made available where the Member State is the subject of infringement proceedings and the Court of Justice of the European Union has delivered a final judgment that the Member State concerned has failed to implement Union legislation on disaster risk prevention and management, which is directly linked to the nature of the natural disaster suffered” [emphasis added]345.
Such a provision shall be read in conjunction with recital 17 that underscores the importance to ensure eligible States prevent natural disasters from occurring and mitigate their effects, by fully implementing relevant Union legislation on disaster risk prevention and management and by using the available Union funding for relevant investments, such as the EU Regional Development Fund which can co- finance preventive actions, productive investments and rebuilding of infrastructure346.
In principle, such a caveat is acceptable because stimulates the EU Members to adequate their national structures and laws to the EU legislation on disaster risk reduction and management, as well as, ultimately, to the Sendai Framework.
344 See, A. McDonnell, “Solidarity, Flexibility, and the Euro-Crisis: Where do principles fit in?”, cit., pp. 79-82.
345 See, Regulation (EU) No 661/2014, Article 4, para.2.
346 See, European Commission, DG Regional Policy, The European Union Solidarity Fund and
126 Moreover, it confirms the Union’s intention to conceive disaster management in its whole dimension by covering not only the phase of disaster response and recovery, but also that of prevention thus creating an extensive and coherent policy in this field of action. This notwithstanding, subjecting the granting of financial assistance in the event of a serious disaster to conditions cannot be considered totally compatible with the principle of solidarity which should guide the Union action for the final purpose of providing help to the affected population as stressed in the Preamble of the very Regulation 2012/2002.
Similarly, the evident conditions set by the Commission with regard to the compatibility of the measures adopted by the Member State in favour to the local companies following a disaster seem to rise some unbalances with the principle of solidarity. After all, by reformulating the Court statement with regard to State aid, “the derogations from free competition in favour of [aid to make good the damage caused by natural disasters or exceptional occurrences] are based on the aim of Community solidarity”347. And, according to the CJEU, “in exercising its
discretion, the Commission should to ensure that the aims of free competition and Community solidarity are reconciled, whilst complying with the principle of proportionality”348. Instead, establishing specific situations which may benefit
from such derogations (to the exclusion of others) and requiring a strict and exact calculation of the damages suffered by each private entity without considering the whole economic situation, risks again to jeopardise the effective granting of the aid to those who have been deeply affected by the event occurred.
Behind the choice to include such conditions in the illustrated instruments, there is certainly the intention to increase the responsibility attributed to Member States in the management of internal crises in order to limit their attempts of moral hazard. Borrowing from the arguments dealing with financial and economic issues, also with regard to calamitous events national authorities should demonstrate to be
347 See, CJEU, Court of First Instance, Case T-126/96 and T-127/96, BFM v. Commission, cit., point 101.The expression in bracket has been inserted by the present author by substituting the following one: “it should be borne in mind that the derogations from free competition in favour of
regional aid under Article 92(3)(a) and (c) are based on the aim of Community solidarity, a fundamental objective of the Treaty, as may be seen from the preamble”.
127 aware of their commitments and responsibilities before not only their own population, but also the other EU Members and the very Union. Hence, responsibility would be the feeder between solidarity and conditionality, and, the latter would be a sort of insurance for the right balance between external solidarity and national responsibility.
Notwithstanding the principle of conditionality has been rightly conceived for preventing measures of financial assistance from becoming ‘abused’ by Member States, it actually appears quite problematic and sometimes hardly reconcilable with the final aim of these tools, that is to support the people in need according to a people-centred approach (and in this case a EU citizens-centred approach). Therefore, it can be doubted that conditionality can be considered an expression of the principle of solidarity in its essence of principle guiding the action of the Union and the Member States349. Moreover, conditionality may affect solidarity
also in its social dimension as the imposition of specific requirements for the granting of assistance can impinge on the respect of the fundamental economic as well social rights, now part of primary law for all intents and purposes, of the affected population.
2. The EU emergency support instrument: a new tool for internal