MINISTERIO DE SALUD

A terrorist attack is the first mentioned event which would open the scope of application of Art. 222 TFEU. Terrorist attacks comprise the unofficial or unauthorised use of violence in the pursuit of political aims including the promotion of religious and ideological ends178 threatening the (democratic) functioning of States. However, since an official definition of a respective situation is lacking, Art. 1 of Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA)179 might be applied.180 It defines in Art. 1.1 terrorist attacks as

offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of seriously intimidating a population, or unduly compelling a government or international organisation to perform or abstain from performing any act or seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation, shall be deemed to be terrorist offences:

(a) attacks upon a person’s life which may cause death;

(b) attacks upon the physical integrity of a person;

(c) kidnapping or hostage taking;

(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information

178

Enders and Sandler, Terrorism: Theory and Application, in: Sandler and Hartley (Eds.), Handbook of Defense Economics, 1995, 213.

179

Council, Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ L 164 of 22.06.2002, pp. 3-7).

180

See also Calliess, in: Calliess and Ruffert (Eds.), EUV/AEUV, 2016, Art. 222 AEUV, paras. 16–21.

system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;

(e) seizure of aircraft, ships or other means of public or goods transport;

(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;

(g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life;

(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life;

(i) threatening to commit any of the acts listed in (a) to (h).

In addition to this, Working Group VIII Defence, which contributed to the drafting of the Treaty establishing a Constitution for Europe, and which developed the Solidarity Clause, stressed that terrorism was understood as a threat by non-State actors.181

b) Natural hazards and man-made disasters

A definition for natural hazard and man-made disasters is lacking in Art. 222 TFEU. However, a certain degree of destruction to the environment and the life of humans and animals respectively can be presupposed. According to the United Nations Office for Disaster Risk Reduction (UNISDR), a disaster can be defined as, for example, a

serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental

181

The European Convention, Final report of Working Group VIII – Defence, CONV 461/02, 2002, 20.

losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources.182

The equal treatment of natural and man-made disasters takes into consideration their frequently interrelated occurrence. Wildfires, for example, might be caused by human action; the effects of natural hazards, such as flooding, are increased, e.g. by spatial development practices; while anthropogenic climate change might increase the frequency and intensity of extreme weather events.

Besides the missing disaster definition, Art. 222 TFEU does not provide for a threshold value for its application.183 Art. 2 2. of Council Regulation (EU) 661/2014 amending Council Regulation (EC) No. 2012/2002 establishing the European Union Solidarity Fund184 defines a “major disaster” by a damage of €3 billion in 2002 prices, or more than 0.6% of an eligible State’s gross national income (GNI). Art. 3 (a) of Decision 2014/415/EU on the arrangements for the implementation by the Union of theSolidarity Clause does not follow these specifications but defines disaster more broadly as

any situation which has or may have a severe impact on people, the environment or property, including cultural heritage.

Art. 3 (c) of Council Decision on the arrangements for the implementation of the Solidarity Clause by the Union185 specified crisis as

a disaster or terrorist attack of such a wide-ranging impact or political significance that it requires timely policy coordination and response at Union political level.

182

United Nations Office for Disaster Risk Reduction (UNISDR), UNISDR Terminology on Disaster Risk Reduction, 2009, 9.

183

Schusterschitz and Stillfried, in Mayer and Stöger, EUV und AEUV, 2012, Art. 222 TFEU, para. 14.

184

Regulation (EU) 661/2014 of 15 May 2014 amending Council Regulation (EC) No. 2012/2002 establishing the European Union Solidarity Fund (OJ L 189 of

27.06.2014, 143). 185

Since an automatic application of the Clause is not provided, its invocation will depend on a situational assessment by the affected Member State and the European Union. Overall, the missing definition and the lack of a threshold values make Art. 222 TFEU harder to operationalise, but it also stresses a generic solidarity between Member States which does not relate to a specific event or threshold.186

c) Other profound disruptions

An application of the Clause to other profound disruptions in Member States as caused, for example, by the economic and financial crisis does not come into consideration due to the precise reference to the above-mentioned crisis situations. Additionally, other exceptional occurrences beyond the Members State’s control are addressed by Art. 122 2. TFEU.