Explanatory Memorandum to COM(2016)447 - Amendment of Regulation 230/2014 establishing an instrument contributing to stability and peace - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)447 - Amendment of Regulation 230/2014 establishing an instrument contributing to stability and peace. |
|---|---|
| source | COM(2016)447  |
| date | 05-07-2016 |
1. CONTEXTOFTHE PROPOSAL
This Explanatory Memorandum concerns a legislative proposal for a Regulation amending Regulation (EU) No 230/2014 of the European Parliament and of the Council of 11 March 2014 establishing an instrument contributing to stability and peace.
The legislative proposal aims at inserting a new Article into Title II of Regulation (EU) No 230/2014 in order to extend the Union’s assistance under exceptional circumstances to be used to build the capacity of military actors in partner countries in order to contribute to sustainable development and in particular the achievement of peaceful and inclusive societies.
• Reasons for and objectives of the proposal
The link between security and development has been recognised both at European and at international level.1 The 2005 European Consensus on Development already recognised this link, which is central to maximising the effectiveness of the EU’s external action. Supporting partner countries’ security systems, as part of a broader reform process to provide effective and accountable security to the State and to individuals, contributes to the EU’s objectives of inclusive and sustainable development, state-building and the rule of law. Human security includes people-centred, multi-sectoral, comprehensive, context-specific, and prevention-oriented approaches. This is especially the case when it is clear that without security, access to the people most at risk of being left behind in conflict settings is limited, and effective outcomes of either humanitarian or development work are less likely.
The adoption of the United Nations’ (UN) 2030 Agenda for Sustainable Development2 and its Sustainable Development Goal3 (SDG) 16 on ‘peace and justice’ underlines the importance of promoting peaceful and inclusive societies, the provision of access to justice for all, and building effective, accountable institutions at all levels. SDG 16 emphasises the need to strengthen relevant national institutions, including through international cooperation for building capacity at all levels. In particular in fragile and conflict-affected States, channelling investments in line with development effectiveness principles will help to address the root causes of conflict and fragility. The EU supports the ‘New Deal for Engagement in Fragile States’4 and the emphasis it places on the security-development nexus.
The OECD-DAC5 revised Reporting Directives on official development assistance (ODA) in the field of peace and security provide greater clarity and further develop the scope of ODA rules for the security sector. They maintain several safeguards, notably the principally civilian nature of ODA, although support to the military can be recognised as ODA in exceptional and clearly delimitated circumstances.
For example, World Bank World Development Report: Conflict, Security, and Development, 2011
www.un.org/sustainabledevelopment">www.un.org/sustainabledevelopment
development, provide access to justice for all and build effective, accountable and inclusive institutions
at all levels
The EU endorsed the New Deal, one of the main building blocks of the 4th High Level Forum on Aid
Effectiveness in Busan in November 2011 (www.pbsbdialogue.org/en/">www.pbsbdialogue.org/en/)
Organisation for Economic Co-operation and Development – Development Assistance Committee,
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The Joint Communication Capacity Building in support of Security and Development (JOIN(2015) 17 final) analysed how EU support to help build the capacities of partners, and thus contribute to stability, security and development, could be improved. The Communication identified gaps in the EU’s ability to support building the capacities of partners in the security sector, notwithstanding the multitude of actions, which are already supported, including effective civilian administration and civilian oversight over the security system. The Joint Communication concluded, “there is currently no EU budget instrument designed to provide a comprehensive financing to security capacity building in partner countries, in particular its military component”6.
Not addressing critical operational needs of partners hampers the achievement of essential objectives for development, i.e. to foster conditions for peace and human security. The improvement of the functioning of military actors and the strengthening of their governance, particularly in fragile contexts and countries emerging from conflict, contributes to peace, human security, and stability, and thereby to the achievement of the SDGs. The inability to finance capacity building in the security sector (both equipment and training) impinges on partners’ ability to fulfil their development needs.
The specific objectives of the proposal are to: i) contribute to improving the capacity of partner countries to prevent and manage crises by themselves; ii) contribute to improving the effectiveness of the Union’s development actions by working with all security actors, including the military, through the delivery of capacity building in support of security and development by the EU, as soon as possible, flexibly and comprehensively; and iii) contribute to ensuring the respect of the rule of law, good governance as well as enhanced civilian control and oversight over the military in third countries.
• Consistency with other Union policies
The present initiative fits with the ambition to bring together EU tools on major challenges, as outlined in the Joint Communication The EU’s comprehensive approach to external conflict and crisis7 and the subsequent Council conclusions8.
With regard to the Union’s Common Foreign and Security Policy (CFSP), both civilian and military Common Security and Defence Policy (CSDP) missions and operations (and in particular training missions) are an essential component within the EU’s comprehensive approach to crisis management in third countries9 and fulfil the training pillar of capacity building in support of security and development for both defence and civilian security personnel.
Resources for EU CSDP military operations are financed by the participating EU Member States, and through the Athena mechanism10 designed to manage the financing of common costs relating to EU military operations under the CSDP. These costs concern, inter alia,
JOIN(2015) 17, p. 8.
Council conclusions 9644/14 of 12 May 2014
JOIN(2013) 30 final of 11 December 2013
Article 41 TEU sets the principles for the financing of EU civilian and military crisis management
operations. The common costs of such operations are currently covered by Council Decision (CFSP)
2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs
of European Union operations having military or defence implications (Athena) and repealing Decision
headquarters’ implementation and running costs, infrastructure, logistics and mission support, but not the costs incurred by a partner country supported through a mission or operation.
Outside the general budget of the Union, the European Development Fund (EDF) provides financial resources to implement the EU’s development cooperation policy with the African, Caribbean and Pacific (ACP) group of states under the Cotonou Partnership Agreement.11 The African Peace Facility12 (APF) was set up in 2003 under the EDF and is to date the most far-reaching instrument to address the security-development nexus, also providing support to military activities. Nonetheless, the APF is subject to a number of limitations, notably in its geographical and exclusively regional coverage, which prevents the global use of this Facility at national level.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
The legal basis of this legislative proposal is Article 209 i and Article 212 i of the TFEU.
Considering the broad scope of development cooperation13, the financing of capacity building (training and equipment support) in the security sector on the basis of Article 209/212 TFEU is not per se excluded only because of the military nature of the beneficiary.14 Taking into account the objectives of the Union’s development cooperation, i.e. to contribute to the pursuit of the sustainable development of developing countries, financing of the military is possible under exceptional circumstances (see also at point 5 below on the detailed explanation).
• Subsidiarity and proportionality
The proposed Regulation complies with the subsidiarity principle and with the principle of proportionality as set in Article 5 TEU.
EU action is necessary and justified both on the grounds of the objectives laid down in the Treaty and on the subsidiarity principle. Comprehensive and flexible EU support to the security sector would have the added value of allowing short- and longer-term actions to bring on board all security actors in a country, and would allow for better coordination of such support. Interventions at EU level can better achieve security and stability and act as a driver for more effective international efforts around security and development.
• Choice of the instrument
The proposed legislative proposal takes the form of a Regulation amending an existing legal act.
Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of
the one part, and the European Community and its Member States of the other part, signed in Cotonou
Article 11 of the Cotonou Partnership Agreement on “Peace building policies, conflict prevention and
resolution” and the relevant Council conclusions provide the legal basis for the APF; Decision
No 3/2003 of the ACP-EC Council of Ministers of 11 December 2003 on the use of resources from the
long-term development envelope of the 9th EDF for the creation of a Peace Facility for Africa, OJ L
C-377/12, European Commission v Council (PCA Philippines), paragraph 37
See also JOIN (2015) 17, p. 7; and above OECD/DAC Reporting Directives in the field of peace and
security
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3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
- CONSULTATIONS
- Sustainable Development Goal 16: promote peaceful and inclusive societies for sustainable
- February 2016
- 6 7 8 9 10
- JOIN(2013) 30 final of 11 December 2013
- 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs
- 2011/871/CFSP, OJ L 84, 28.03.2015
- 13 14
- on 23.6.2000, revised in Luxembourg on 25.6.2005, revised in Ouagadougou on 22.6.2010
- No 3/2003 of the ACP-EC Council of Ministers of 11 December 2003 on the use of resources from the
- 345, 31.12.2003
ANDIMPACTASSESSMENTS
Stakeholder
consultations
The online public consultation to gather views from the public was launched on 1 April and ended on 27 May 2016. In total, 78 responses were received, the majority from private citizens. A number of Member States (the Czech Republic, Finland, France, Germany, Italy, Luxemburg, the Netherlands, Portugal, and Spain) provided their input to the initiative in the form of a non-paper issued on 15 April 2016.
Overall, the responses indicated a large support of the three main principles underpinning the initiative, namely: i) an effective, legitimate and accountable security sector in partner countries could contribute to peace, human security and sustainable development; ii) the security development nexus should be better integrated in EU support strategies in order to better contribute to sustainable development in partner countries, and iii) strengthening the governance of military actors, particularly in fragile countries and countries emerging from conflict, could lead to stability and the achievement of sustainable development goals.
• Impact assessment
The proposed legislative proposal is supported by an impact assessment. The impact assessment report examines different policy options to meet the specific objectives and assesses options outside the general budget of the Union and within the general budget of the Union.
The impact assessment concludes that an amendment of the Instrument contributing to Stability and Peace (IcSP) would be, in view of the objectives, the timing, the geographical coverage, and flexibility in its implementation as a crisis instrument, the most appropriate and effective short-term option. The impact assessment also explains that a comprehensive implementation of the CBSD initiative (i.e. including support to the military for defence-related purposes) would require combining a budgetary instrument (for development tasks) with another, possibly extra-budgetary, mechanism.
Fundamental rights
The legislative proposal will ensure that assistance measures under the new provisions in relation to capacity building in support of security and development will be implemented in accordance with international law, including international humanitarian law. The Commission will monitor the implementation of these assistance measures in order to ensure compliance with human rights obligations.
4. BUDGETARYIMPLICATIONS
In terms of cost, a budget of EUR 100 000 000 over the period 2017-2020 would be required. The initiative will be financed through redeployment within Heading IV of the general budget of the Union. No additional resources would be mobilised. Implementation will be governed by Regulation (EU) No 236/201415.
Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external actions, OJ L 77, 15.3.2014, p. 95.
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5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Monitoring and evaluation modalities are laid down in Articles 12 and 13 of Regulation (EU) No 236/2014 that applies to all EU external financing instruments, including the IcSP, which is the preferred option. Reporting modalities are also foreseen in that Regulation.
• Detailed explanation of the specific provisions of the proposal
This section provides a detailed commentary illustrating the main provisions introduced by the proposed Regulation to amend Regulation (EU) No 230/214 establishing an instrument contributing to stability and peace.
(1) Subject matter and objectives (Article 1, Title I, General Provisions)
The purpose of the change in Article 1 i is to include assistance to security actors, including military actors, within the scope of the Regulation. Assistance may be provided under the exceptional circumstances described below (see point 2) in the context of a wider security sector report reform process and/or within capacity building in support of security and development in line with the overarching objective of achieving sustainable development.
(2) Capacity building in support of security and development (Article 3a, Title II, Types of Union Assistance)
The proposed Article 3a provides in its first paragraph that Union assistance may be used to build the capacity of military actors in partner countries under exceptional circumstances, in order to contribute to sustainable development and in particular to the achievement of stable, peaceful and inclusive societies. The achievement of stable, peaceful and inclusive societies alludes to Sustainable Development Goal (SDG) 16 on ‘peace and justice’, which underlines the importance of promoting peaceful and inclusive societies, the provision of access to justice for all, and building effective, accountable institutions at all levels. SDG 16 emphasises the need to strengthen relevant national institutions, including through international cooperation for building capacity at all levels, in particular in developing countries, to, inter alia, prevent violence, and combat terrorism and crime. The exceptional circumstances referred to in paragraph 1 are further defined in paragraph 3 of the new Article 3a.
In its paragraph 2, Article 3a illustrates the type of activities that may be supported, i.e.: capacity building programmes in support of security and development, including training, mentoring and advice, as well as the provision of equipment, infrastructure improvements and provision of other services.
In its paragraph 3, Article 3a further describes the exceptional circumstances mentioned in paragraph 1 under which assistance shall be provided. Paragraph 3 lit. a) and lit. b) are to be read in a cumulative way. Paragraph 3 lit. a) requires that military actors are only financed when the requirements cannot be met by recourse to non-military actors to adequately reach the Union objectives under Regulation (EU) No 230/2014 and the premise of the achievement of stable, peaceful and inclusive societies is denied by a serious threat to the existence of functioning State institutions or State institutions can no longer cope with this serious threat (e.g. have collapsed). Paragraph 3 lit. b) requires that a consensus exists among the international community and/or the Union and the country concerned that the security sector, and in particular the military, are key for stability, peace and development, particularly in crises and fragile contexts. This may take the form of a UN Security Council Resolution or a programming document, which was agreed between the Union and other international partners (e.g. the country compact for Somalia) or the Union is engaged under Title V TEU.
Paragraph 4 of Article 3a outlines the limitations to Union assistance under this new Article, excluding: recurrent military expenditure, the procurement of arms and ammunition as well as training which is solely designed to contribute to the fighting capacity of the armed forces.
Paragraph 5 of Article 3a contains the general principles that must inform assistance under this Article which are: ownership by the partner country; need to develop the elements and the good practices required for ensuring sustainability in the medium and long term as well as to promote the rule of law and established international law principles.
Lastly, paragraph 6 of Article 3a calls for the establishment of risk assessment, monitoring and evaluation procedures relating to the assistance measures provided under the new Article.
(3) Exceptional measures and interim programmes (Article 7, Title III, Programming and Implementation)
Article 7 i is amended to include a cross reference to new Article 3a specifying that Union assistance under new Article 3a may be provided through exceptional assistance measures and interim response programmes.
(4) Thematic strategy papers and multiannual indicative programmes (Article 8, Title III, Programming and Implementation)
Article 8 i is amended to include a cross reference to new Article 3a specifying that Union assistance under new Article 3a can be provided through thematic strategy papers.
(5) Human Rights (Article 10, Title III, Programming and Implementation)
Article 10 i is amended to extend the obligation to implement assistance measures in accordance with international law, including international humanitarian law, to CBSD-related assistance measures under the new proposed Article 3a.
(6) Financial envelope (Article 13, Title IV, Final Provisions)
Article 13 i increases the financial envelope for the implementation of the Regulation by EUR 100 000 000, thus the financial envelope of the IcSP shall be EUR 2 438 719 000. As concerns the subdivision provided for in Article 13(3), this shall remain intact, in order to allow CBSD-related actions to take place under different articles and be financed under different budget lines.