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19
December
2023

EU funds: Ensuring compliance with fundamental rights

Support for human rights systems and defenders
National human rights systems and bodies
All EU funds must be spent in a way that respect fundamental rights. The EU spends billions of euros on creating jobs, economic growth, sustainable development and improving people’s lives. To prevent funds from being spent in ways that directly violate people’s fundamental rights, the EU strengthened the conditions how funds can be spent in 2021. This report looks at how the newly introduced conditions related to the EU Charter of Fundamental Rights and the United Nations Convention on the Rights of Persons with Disabilities can be upheld in practice. It analyses the potential role of national human rights institutions, ombudsperson institutions and equality bodies. These safeguards can advance compliance with fundamental rights.
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Introduction

EU funds play a vital role in achieving economic and social progress, as well as other national and EU policy goals. Against this background and considering the fact that public spending has an impact on our societies, the following question arises: how can it be guaranteed that these funds are used in a manner that promotes and respects fundamental rights and does not lead to or enhance any violations of such rights? Recent regulations increasingly emphasise respect for fundamental rights where the use of EU money is conditional on the compliance of the programmes with the Charter of Fundamental Rights of the European Union (the Charter).

This report deals with the eight funds covered by Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 (Common Provisions Regulations (CPR)) [1]
 Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy (OJ L 231, 30.6.2021, p. 159).
. It does not deal with Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality (Conditionality Regulation) [2]
 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ L 433I, 22.12.2020, p. 1).
. The latter is a specific tool to protect the EU budget from breaches of the principles of the rule of law.

This report examines the challenges related to the implementation and monitoring of fundamental rights faced in the previous (2014–2020) programming period and early findings from the current period (2021–2027), hereafter CPR 14-20 and CPR 21-27.

Its focus is on the  role of fundamental rights bodies in supporting fundamental rights compliance. These bodies include national human rights institutions (NHRIs), ombudsperson institutions and equality bodies, as well as the independent monitoring bodies under the CRPD. This report also deals with the current and potential role of civil society organisations (CSOs) that work on issues related to fundamental rights.

The report outlines where greater attention may be needed to ensure that the enabling conditions on the Charter and the CRPD of the CPR 21–27 are fully implemented. The findings are under three themes: participation, capacity and resources and complaints mechanisms. The report highlights measures for Member States and the Commission to take to ensure that these requirements are met. The report also suggests actions for independent fundamental rights bodies on how they can engage in the funding process as expert partners to help mainstream fundamental rights into the management of funds governed by the CPR.

The objectives were to map the existing challenges in implementing fundamental rights requirements for CPR 14–20 and CPR 21–27 and the effective participation of fundamental rights actors in the funding process. A second objective was to identify what role these actors foresee for themselves and where they consider they could most effectively make an impact.

Legal Corner

Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 (CPR) lays down common provisions on the following eight EU funds:

  1. European Regional Development Fund (ERDF)
  2. European Social Fund Plus (ESF+)
  1. Cohesion Fund
  2. Just Transition Fund
  3. European Maritime, Fisheries and Aquaculture Fund
  4. Asylum, Migration and Integration Fund (AMIF)
  5. Internal Security Fund (ISF)
  6. Border Management and Visa Instrument (BMVI).

The CPR 21–27 is binding EU legislation that states the conditions under which these EU funds are programmed and spent. Together, they represent roughly a third of the total EU budget.

These funds are delivered under shared management, which means that the European Commission and national authorities jointly manage the funding. The CPR is complemented by fund-specific regulations, which set out specific rules for the funds.

The CPR 21–27 and the fund-specific regulations are directly applicable in Member States. The CPR puts increased emphasis on fundamental rights. It requires the Commission and Member States to ensure respect for fundamental rights and compliance with the Charter in the implementation of the funds. It also requires that accessibility for persons with disabilities be considered throughout the preparation and implementation of programmes. These obligations entail setting up certain “arrangements” in Member States that aim to ensure such compliance of programmes. This requirement needs to be fulfilled for expenditure to be reimbursed. This is referred to as the horizontal enabling condition on the Charter on the CRPD.

The primary obligation to ensure that responsibility for fulfilling the enabling conditions throughout the whole programming period lies with the Member States. The Commission has an obligation to support the Member States and monitors whether these enabling conditions are duly being fulfilled.


The importance of EU funds to fundamental rights

Funds governed by the Common Provisions Regulation are spent on a wide range of different operations in areas such as infrastructure, skills and education, scientific research, creating jobs, improving health and many more. Government spending in the EU tends to amount to around half of national gross domestic product (GDP) [3]
 Eurostat (2023), ‘Government finance statistics’.
. The EU budget is very small in comparison. However, especially in Member States with a GDP per capita below the EU average, investments through funds governed by the CPR can reach significant levels. For example, the three smallest economies in the EU – Malta (2022 GDP: € 16.87 billion [4]
 Malta, National Statistics Office (2023), ‘Gross domestic product: 2022’.
, Cyprus (2022 GDP: € 27.7 billion [5]
 European Central Bank (2023), ‘Gross domestic product at market prices (Cyprus)’.
 and Estonia (2022 GDP: € 35.98 billion [6]
 Estonian National Bank (2023), ‘Annual economic indicators for Estonia’.
 – will receive € 417 million [7]
 European Commission (2022), ‘EU Cohesion Policy: €817 million to Malta to support a more competitive, inclusive, green, and digital economy’.
, € 682.4 million [8]
 Cyprus, Directorate-General for Growth (2022), ‘Cohesion Policy’.
 and € 781 million [9]
 European Commission (2022), ‘EU Cohesion Policy: €3.5 billion for Estonia's economic and social development and green transition in 2021–2027’.
, respectively, just from the ERDF and the Cohesion Fund over the seven years of the current programming period.

Cohesion Policy financing will amount to over 529 billion euros in the current programming period, which combines Member State and EU funds allocated from the Cohesion Fund, European Social Fund Plus and European Regional Development Fund. Of this total, over 350 billion euros is the EU’s contribution, with an additional 19 billion euros coming from the Just Transition Fund. [10] European Commission (2023) Cohesion Open Data Platform.
  The ERDF has seen its funding increase from € 185 billion to € 217 billion [11]
 European Commission (2021), The EU’s 2021–2027 long-term budget and NextGenerationEU: Facts and figures, Publications Office of the European Union, Luxembourg, p. 68.
. The ESF (now ESF+) has seen its funding increase from € 74 billion to € 99.3 billion from the previous programming period [12]
 European Parliament (2023), ‘Fact sheets on the European Union: European Social Fund Plus’.
.

Statistical analyses by the Transnational Institute (Amsterdam) indicate a 131 % increase for the BMVI, a 90 % increase for the ISF and a 43 % increase for the AMIF, based on a comparison between the EU means available during the current funding period (2021–2027) and the previous funding period (2014–2020) [13]
 Statewatch and the Transnational Institute Amsterdam (2022), ‘At what cost? Funding the EU’s security, defence, and border policies, 2021–2027’.
.

Together, these sums, illustrated in Figure 1 below, form a significant portion of the overall EU budget. That underlines the importance of funds governed by the CPR and how they are used at a national level.

Figure 1 – The EU’s multiannual budget for 2021–2027 and the eight EU Funds covered by the CPR

The diagram shows different sized circles for each of the seven main categories of the Multiannual Financial Framework. Each circle represents one of the seven main categories of spending. The size of the circle reflects the budget amount for each category. Within each circle are smaller circles which represent the different funds covered by the Common Provisions Regulation. In the biggest circle for ‘Cohesion, resilience and values’ the funds are the Cohesion Fund, European Regional Development Fund and the European Social Fund (Plus). In the second largest circle showing ‘Natural resources and environment’ the funds are the Just Transition Fund and the European Maritime Fisheries and Aquaculture Fund. In two of the smaller circles the category ‘Migration and border management’ includes the Asylum, Migration and Integration Fund and the Border Management and Visa Instrument fund and the category ‘Security and defence’ includes the Internal Security Fund.

Source: European Parliamentary Research Service (2021), Multiannual Financial Framework for the years 2021–2027 and the New Own Resources, updated 12 July 2021 (names of relevant funds added). The agreed long-term EU budget (multiannual financial framework) amounts to € 1,074.3 billion in 2018 prices.

 

Finally, EU funds cover a broad scope of activities and projects, all of which require monitoring for compliance with fundamental rights. For a sense of scale, according to the website of the Commission, cohesion-related projects funded between 2013-2020 includes 818,191 projects funded in Italy, 298, 890 projects funded in Germany, 140,249 projects in Spain and 103,670 projects in Poland. [14] European Commission (2023) ‘In my Region’.

What are EU fundamental rights?

The EU speaks of ‘fundamental rights’ when dealing with human rights within its own borders. Human rights are inherent to all human beings, whatever our sex, national or ethnic origin, colour, religion, language or any other status. We are all equally entitled to our human rights without discrimination.

Universal human rights are often expressed and guaranteed in the form of treaties, customary international law, general principles and other sources of international law and, of course, national constitutional law. They oblige governments to act in certain ways or to refrain from certain acts in order to promote and protect human rights and the fundamental freedoms of human beings.

EU fundamental rights are human rights laid down in EU legal sources, namely the Charter and general principles of EU law as developed by the Court of Justice of the EU. Recently, the EU became a party to the CRPD and to the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). It is in the process of becoming a party to the European Convention of Human Rights, thereby also integrating the rights enshrined in these documents into EU law. The Charter and the CRPD are explicitly referred to in the regulations for funds spent between 2021 and 2027 (CPR 21–27).

The funds governed by the CPR 21–27 impact on many different aspects of fundamental rights. For example, areas within the scope of EU legislation such as investing in and supporting forced return monitoring systems under Article 8 (6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (Return Directive) [15]
 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, p. 98).
 or funding dignified facilities for asylum applicants.

Alternatively, funds may be used in areas outside the scope of EU legislation, for example by funding healthcare programmes. Funds may have very significant fundamental rights impacts in some areas, for example by funding a large part of the process of deinstitutionalisation of people with disabilities.

Funds have also been used to encourage fundamental rights-compliant policies at national level, with the CPR 21–27 providing for enabling conditions on specific topics. One such example is that, to have relevant expenditure reimbursed by the funds, the CPR 21–27 requires Member States to have action plans in place to foster equality, inclusion and participation of Roma and persons with disabilities or against poverty (CPR 2013) [16]
 Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ L 347, 20.12.2013, p. 320), annex XI (‘Thematic ex ante conditionalities’); see also CPR 21–27, annex IV (‘Thematic enabling conditions applicable to ERDF, ESF+ and the Cohesion Fund’).
.

However, sometimes spending from funds governed by the CPR can raise fundamental rights concerns. There is a risk that funds could, for example, be spent on operations that may directly fund the illegal return of asylum seekers [17]
 Lighthouse Reports (2022), ‘Europe’s black sites’.
.

Another example is data protection. For instance, German Federal Criminal Police Office (Bundeskriminalamt, BKA) activities related to passenger name records received comparatively generous funding by the ISF during the 2014–2020 funding period [18]
 Germany, Federal Criminal Police Office (Bundeskriminalamt, BKA) (2020), Übersicht über die geförderten Projekte im Rahmen des Inneren Sicherheitsfonds (ISF Sicherheit) in der Förderperiode 2014 bis 2020.
, despite such funding raising problems under Article 7 (respect for private and family life), Article 8 (protection of personal data) and Article 45 (freedom of movement and of residence) of the Charter [19]
 Court of Justice of the European Union (CJEU), C-817/19, Ligue des droits humains ASBL v. Conseil des ministres, 21 June 2022.
.

CSOs in various Member States have also challenged the use of EU funds to continue the process of institutionalising persons with disabilities rather than promoting life in the community [20]
 In relation to Romania, see e.g. ENIL (2021) Statement of the European Network on Independent Living regarding abuses in institutions for disabled people in Romania and Validity Foundation (2021), Deinstitutionalisation and life in the community in Bulgaria, Budapest, pp. 20–26.
. They have also criticised the treatment of refugees in reception centres funded by the European Union [21]
 45 CSOs (2021), Walling off welcome: New reception facilities in Greece reinforce a policy of refugee containment and exclusion.
 and the use of EU funds in ways that perpetuate the segregation of Roma communities [22]
 Open Society Foundations (2016), Main risks of misusing EU funding in the field of Roma inclusion; see also European Parliament (2023), Segregation and discrimination of Roma children in education, resolution of 4 October 2023, para. 8: “the Parliament […] reiterates its call, therefore, to establish an early warning mechanism for reporting risks of abuse or misuse of EU funds earmarked for addressing the situation of Roma people and calls on the Commission to regularly inform the public about the efficiency and concrete results of its monitoring exercises”.
. Encouraging Member States, beneficiaries (those who receive EU funding) and final beneficiaries (those who ultimately benefit from EU funding, such as Roma, refugees or persons with disabilities) to ensure compliance requires effective mechanisms to prevent such violations from happening and financial corrections if they do occur. This ensures sufficient attention is paid to the fundamental rights aspects of funded operations, which also helps prevent unintentional violations.

While outside the scope of this report, Articles 4 and 6 (1) of the Conditionality Regulation[23]
Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, Articles 4 and 6(1). For an authoritative interpretation of the regulation see CJEU Case C‑157/21, judgment of 16 February 2022.
 and Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 (Recovery and Resilience Facility Regulation) [24]Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility (OJ L 57, 18.2.2021, p. 17).
also show the interrelationship between EU funding and the values on which the Union is based. In accordance with Article 4 (1) of the Conditionality Regulation, appropriate measures must be taken by the Union institutions when breaches of the principles of the rule of law affect or seriously risk affecting the sound financial management of the Union budget or the financial interests of the Union in a sufficiently direct way. The Commission must open the procedure under the Conditionality Regulation if those conditions are fulfilled and the Commission considers that no other procedures provided for by Union legislation would allow it to protect the Union budget more effectively. The Commission can propose and the Council can adopt the following measures for the protection of the Union’s budget under the Conditionality Regulation: suspension of payments and commitments, termination of payments and prohibition of new legal commitments and financial corrections (Article 5 of the Conditionality Regulation).

There is a link and partial overlap between fundamental rights and the rule of law [25]
 FRA (European Union Agency for Fundamental Rights) (2016), Opinion of the European Union Agency for Fundamental Rights on the development of an integrated tool of objective fundamental rights indicators able to measure compliance with the shared values listed in Article 2 TEU based on existing sources of information.
. As the Conditionality Regulation explains, the “rule of law requires that all public powers act within the constraints set out by law, in accordance with the values of democracy and the respect for fundamental rights as stipulated in the Charter of Fundamental Rights of the European Union and other applicable instruments, and under the control of independent and impartial courts” (recital 3 of the Conditionality Regulation; see also recital 6 and Article 2). Article 2 (a) of the Conditionality Regulation contains a definition of ‘the rule of law’ for the purposes of that regulation and includes “the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law”.

The Recovery and Resilience Facility, run through direct management, does not contain a fundamental rights conditionality regime (see the Recovery and Resilience Facility Regulation) [26]
 FRA (2023), Social rights and equality in the light of the recovery from the COVID-19 pandemic, Publications Office of the European Union, Luxembourg (see opinion 1.2 in particular).
. It is, however, performance-based, meaning that the Commission disburses funds to the Member States only when certain agreed targets and milestones have been satisfactorily fulfilled (Article 24 of the Recovery and Resilience Facility Regulation). Some of these targets and milestones can be linked to measures addressing challenges in the field of fundamental rights.

Policy objectives for the Recovery and Resilience Facility include social cohesion, health and education (Article 3 of the Recovery and Resilience Facility Regulation), which are then used to promote fundamental rights such as the right to education (Article 14 of the Charter) and the right to health (Article 35 of the Charter). Country-specific recommendations identify challenges that Member States’ recovery and resilience plans should address (Article 18 (4) (b) of the Recovery and Resilience Facility Regulation). Examples include improving education outcomes for pupils from disadvantaged socioeconomic and migrant backgrounds in the schooling system [27]
 Council of the European Union (2023), Council Recommendation on the 2023 National Reform Programme of Sweden, Brussels.
, improving access to and the quality of social housing [28]
 Council of the European Union (2023), Council Recommendation on the 2023 National Reform Programme of Lithuania, Brussels.
 and boosting the labour market participation of women [29]
 Council of the European Union (2023), Council Recommendation on the 2023 National Reform Programme of Austria, Brussels.
.


Charter enabling conditions

Member States and the European Commission must ensure respect for fundamental rights and compliance with the Charter when implementing the eight funds covered by the CPR 21–27. Article 9 of the CPR 21–27 requires Member States and the Commission to mainstream gender and other forms of equality. The CPR 21–27 also requires accessibility for persons with disability to be considered throughout the programming periods (Article 9 (3)). These obligations are explicitly reflected in the context of the selection of operations by the managing authorities (Article 73 (1) of the CPR 21–27).

Legal Corner

Article 9 of the CPR 21–27: Horizontal principles

1. Member States and the Commission shall ensure respect for fundamental rights and compliance with the Charter of Fundamental Rights of the European Union in the implementation of the Funds.

2. Member States and the Commission shall ensure that equality between men and women, gender mainstreaming and the integration of a gender perspective are taken into account and promoted throughout the preparation, implementation, monitoring, reporting and evaluation of programmes.

3. Member States and the Commission shall take appropriate steps to prevent any discrimination based on gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation during the preparation, implementation, monitoring, reporting and evaluation of programmes. In particular, accessibility for persons with disabilities shall be taken into account throughout the preparation and implementation of programmes.

The CPR 21–27 significantly strengthens relevant provisions of the CPR 14–20. For a comparison, see Table 1. First, while maintaining the previous cycle’s requirements to uphold gender equality, non-discrimination and accessibility for people with disabilities throughout the cycle (Article 9 (2) and (3)), it requires the Member States to “ensure respect for fundamental rights and compliance with the Charter of Fundamental Rights of the European Union in the implementation of the Funds” (Article 8 (1) (c)).

Second, the CPR 21–27 sets out an enhanced “multi-level governance” approach to running the funds. It requires partnerships with an expanded list of actors compared with the CPR 14–20. This list now includes fundamental rights actors, such as “relevant bodies representing civil society, such as environmental partners, non-governmental organisations, and bodies responsible for promoting social inclusion, fundamental rights, rights of persons with disabilities, gender equality and non-discrimination” (Article 8 (1) (c)). It also indicates that the code of conduct on partnership – a delegated Commission regulation from 2014 [30]
 Commission Delegated Regulation (EU) No 240/2014 of 7 January 2014 on the European code of conduct on partnership in the framework of the European Structural and Investment Funds (OJ L 74, 14.3.2014, p. 1).
 – remains valid (recital 14 of the CPR 21–27).

Legal Corner

Code of conduct on partnership

Working in partnership is a long-established principle in the implementation of EU funds. In 2014, the Commission issued a regulation on the European code of conduct on partnership (Commission Delegated Regulation (EU) No 240/2014) in the framework of the European Structural and Investment Funds. This code of conduct also applies to the current programming period. It states that “The partners selected should be the most representative of the relevant stakeholders” and that “Selection procedures should be transparent and take into account the different institutional and legal frameworks of the Member States and their national and regional competences”.

Furthermore, Article 5 states:

“1. In order to ensure transparent and effective involvement of relevant partners, Member States and managing authorities shall consult them on the process and timetable of the preparation of the Partnership Agreement and programmes. In doing so, they shall keep them fully informed of their content and any changes thereof.

2. As regards the consultation of relevant partners, Member States shall take account of the need for:

a) timely disclosure of and easy access to relevant information;

b) sufficient time for partners to analyse and comment on key preparatory documents and on the draft Partnership Agreement and draft programmes;

c) available channels through which partners may ask questions, may provide contributions and will be informed of the way in which their proposals have been taken into consideration;

d) the dissemination of the outcome of the consultation.”

To improve the quality of partnerships in the implementation of EU funds throughout Europe and share good practices in this regard, the Commission has launched a European community of practice on partnership.

Third, the CPR 21–27 introduces four “horizontal enabling conditions” to be fulfilled by the Member States (specified in Annex III of the CPR 21–27). Two of them deal with fundamental rights. First, Member States have to put arrangements in place to ensure that the programmes supported by the funds comply with the Charter, so called ‘Charter arrangements’. Second, Member States must put arrangements in place to ensure that the accessibility policy, legislation and standards are properly reflected when preparing and implementing the programmes, and that there are mechanisms for reporting cases of non-compliance with the Charter or the CRPD. The use of the term ‘arrangement’ allows Member States to take a variety of approaches and use a variety of tools to ensure compliance with the Charter and the CRPD and to establish complaints-related reporting mechanisms.

Legal Corner

Enabling conditions

The enabling condition on the Charter as established by Article 15 and Annex III of the CPR 21–27 is as follows:

“Effective mechanisms are in place to ensure compliance with the Charter of Fundamental Rights of the European Union (‘the Charter’) which include:

1. Arrangements to ensure compliance of the programmes supported by the Funds and their implementation with the relevant provisions of the Charter.

2. Reporting arrangements to the monitoring committee regarding cases of non-compliance of operations supported by the Funds with the Charter and complaints regarding the Charter submitted in accordance with the arrangements made pursuant to Article 69(7).”

The enabling condition on the CRPD as established by Article 15 and Annex III of the CPR 21–27 is as follows:

“A national framework to ensure implementation of the UNCRPD is in place that includes:

1. Objectives with measurable goals, data collection and monitoring mechanisms.

2. Arrangements to ensure that the accessibility policy, legislation and standards are properly reflected in the preparation and implementation of the programmes.

3. Reporting arrangements to the monitoring committee regarding cases of non-compliance of operations supported by the Funds with the UNCRPD and complaints regarding the UNCRPD submitted in accordance with the arrangements made pursuant to Article 69(7).”

Table 1 below provides a comparison of the differences between the conditions imposed in different funding periods. Findings of this report are based on the previous funding period, which began in 2013, and the emerging findings from the current period, which began in 2021.

Table 1 – Comparison of EU funds conditions in the current and the former funding periods

 

Former funding period (2013 – 2021)

(CPR (EU) No 1303/2013 (a))

Current funding period (2021 – 2027)

(CPR (EU) No 2060/2021 (b))

Timing:

at what point are programmes checked to assess whether they meet conditions

Ex ante conditions assessment at the submission of programmes (c) (Article 19)

‘Enabling’ conditions fulfilment is required throughout the programming period (Article 15 (6))

Scope:

substantive scope of ex ante conditions/enabling conditions

There was no general ex ante condition on fundamental rights. Some ex ante conditions were relevant to fundamental rights but were limited to three areas: anti-discrimination, gender and disability (Annex XI, part 2)

Horizontal enabling conditions cover all relevant provisions of the Charter and the CRPD (Annex III)

Other important fundamental rights provisions

Article 7 requires Member States and the Commission to ensure promotion of equality between men and women, take a gender perspective, take appropriate steps to prevent discrimination and consider accessibility for persons with disabilities.

Article 9 requires Member States and the Commission to ensure respect for the entire Charter in the implementation of the Funds in addition to similar provisions on equality and non-discrimination as outlined in the previous CPR.

Source: FRA, 2023.

(a) The CPR 14–20 covered the following funds: the ERDF, the ESF, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund. It also laid down general provisions on the ERDF, the ESF, the Cohesion Fund and the European Maritime and Fisheries Fund.

(b) The CPR 21–27 covers the following funds: the ESF+, the Cohesion Fund, the ERDF, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund. It lays down financial rules for those funds and for the AMIF, the ISF and the BMVI.

(c) However, appropriate steps needed to be taken to prevent any discrimination during not only the preparation but also the implementation of programmes. In particular, accessibility for persons with disabilities needed to be taken into account throughout the preparation and implementation of programmes.

If the enabling conditions are not fulfilled, the Commission will not reimburse expenditure declared by the Member State for the purposes of support from a CPR-funded programme until the conditions are fulfilled (Article 15 of the CPR 21–27). It is important to note that these are not ex ante conditions that have to be fulfilled just once. They must remain fulfilled throughout the entire programming period. In that sense, the horizontal enabling conditions create an important incentive for Member States to ensure compliance with the relevant fundamental rights.

The CPR 21–27 also contains “thematic enabling conditions” applicable to three of the funds. Some of them are relevant to fundamental rights, such as the requirements to “enhance the effectiveness and inclusiveness of labour markets” (for the ERDF), to promote “a gender-balanced labour market participation” (for the ESF+) and to improve “equal access to inclusive and quality services in education, training and lifelong learning” (for the ERDF) (Annex IV, policy objective 4, of the CPR 21–27).

FRA activity: enabling condition on Roma inclusion in the European Social Fund Plus: FRA’s contribution

Thematic enabling conditions are a key element of the Cohesion Policy for 2021–2027, laid down in the CPR 21–27. Annex IV of the regulation defines the thematic enabling condition ‘National Roma inclusion strategic policy framework’ as applicable to the ESF+-specific policy objective ‘Promoting the socio-economic integration of marginalised communities such as Roma people’. This condition implements principle 20 of the European Pillar of Social Rights (access to essential services) to ensure equal treatment of Roma people in access to adequate, non-segregated housing and essential services, such as water, sanitation, energy, transport, financial services and digital communications.

The CPR 21–27 sets out four criteria for the fulfilment of this thematic enabling condition:

  1. measures to accelerate Roma integration and prevent and eliminate segregation, taking into account the gender dimension and situation of young Roma, with baseline and measurable milestones and targets set;
  2. arrangements to monitor, evaluate and review the Roma integration measures;
  3. arrangements to mainstream Roma inclusion at regional and local levels;
  4. arrangements to ensure that its design, implementation, monitoring and review are conducted in a close cooperation with the Roma civil society and all other relevant stakeholders, including at regional and local levels.

The European Commission tasked FRA with assisting Member States in their efforts to implement this thematic enabling condition, as part of their efforts to achieve Roma inclusion.

FRA developed and piloted a specific framework of rights-based indicators showing Member States’ progress in implementing their national Roma inclusion strategies. In 2023, the Commission (*) reminded Member States that the Council Recommendation of 12 March 2021 on Roma equality, inclusion and participation (EU Roma Strategic Framework) (**) requires that Member States monitor and evaluate the implementation of the national strategic frameworks. To do so, they should use the portfolio of indicators developed by FRA, national Roma contact points, national statistical offices and the Commission, as appropriate.

FRA continued its regular large-scale surveys of Roma populations (***) to provide data on the actual outcomes of these measures. Moreover, FRA provides on-demand support to national governments in the EU, supporting them in implementing relevant monitoring frameworks.

(*) European Commission (2023), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Assessment report of the Member States’ national Roma strategic frameworks, COM(2023) 7 final, Brussels, 9 January 2023.

(**) Council Recommendation of 12 March 2021 on Roma equality, inclusion and participation 2021/C 93/01 (OJ C 93, 19.3.2021, p. 1).

(***) FRA (European Union Agency for Fundamental Rights) (2021), Roma survey 2021.

 


Additional fund-specific fundamental rights provisions

Some fund-specific regulations for the 2021–2027 programming period contain additional fundamental rights language. This mainly concerns three areas: complaints mechanisms, mainstreaming of specific fundamental rights needs and partnerships. For instance, regarding complaints, Regulation (EU) 2021/1057 of the European Parliament and of the Council of 24 June 2021 (ESF+ Regulation) [31] Regulation (EU) 2021/1057 of the European Parliament and of the Council of 24  June 2021 establishing the European Social Fund Plus (ESF+) and repealing Regulation (EU) No 1296/2013 (OJ L 231, 30.6.2021, p. 21).
 states under Article 8 that when the European Commission “finds that there has been an infringement of the Charter, the Commission shall take into account the gravity of the infringement in its determination of the corrective measures to be applied in line with the relevant provisions of the CPR”. Recital 31 adds that the Commission should do “its utmost to ensure that complaints are assessed in a timely manner […] and should inform the complainant of the results”.

With regard to mainstreaming various aspects of equality, Regulation (EU) 2021/1147 of the European Parliament and of the Council of 7 July 2021 (AMIF Regulation) [32] Regulation (EU) 2021/1147 of the European Parliament and of the Council of 7 July 2021 establishing the Asylum, Migration and Integration Fund (OJ L 251, 15.7.2021, p. 1).
 requires in Article 6 that both the European Commission and Member States “ensure the integration of the gender perspective” and that “gender equality and gender mainstreaming are taken into account and promoted” throughout the cycle. Article 4 of Regulation (EU) 2021/1149 of the European Parliament and of the Council of 7 July 2021 (ISF Regulation) [33] Regulation (EU) 2021/1149 of the European Parliament and of the Council of 7 July 2021 establishing the Internal Security Fund (OJ L 251, 15.7.2021, p. 94).
 requires Member States to pay “special attention to assisting and protecting vulnerable persons, in particular children and unaccompanied minors”.

Regarding partnerships, Article 4 of the AMIF Regulation makes the involvement of “national human rights institutions and equality bodies” (along with other partners) obligatory. Another variance is noteworthy: for the AMIF and BMVI only, EU legislation lays down an obligation to consult FRA “at an early stage and in a timely manner, in the development of the Member States’ programmes”. That has now happened (see the following FRA activity box) [34]
 See AMIF Regulation, Art. 16 (4), and Regulation (EU) 2021/1148 of the European Parliament and of the Council of 7 July 2021 establishing, as part of the Integrated Border Management Fund, the Instrument for Financial Support for Border Management and Visa Policy (OJ L 251, 15.7.2021, p. 48) (BMVI Regulation), Art. 13 (4). Note that the preamble of the ISF Regulation also calls for the involvement of decentralised agencies, including those active in the area of fundamental rights.
. Whereas the additional provisions on mainstreaming and on complaints simply reflect existing obligations, the procedural provisions on whom to consult in the approval phase of national programmes are innovative and could also be replicated in other funds-related regulations.

FRA reviews national programmes

Pursuant to Article 16 (4) of the AMIF Regulation and Article 13 (4) of Regulation (EU) 2021/1148 of the European Parliament and of the Council of 7 July 2021 (BMVI Regulation), the European Commission asked FRA to review all national programmes prepared for those funds at the beginning of the 2021–2027 programming period.

FRA highlighted fundamental rights concerns and the need to comply with both relevant case law and the recommendations of NHRIs, ombudsperson institutions and CSOs. Recurring issues in the programmes relate to the need to improve fundamental rights-compliant return, detention, asylum and border procedures, for example by ensuring access to legal aid or using alternatives to detention. FRA also underlined the need to include fundamental rights training when setting up new information technology systems in the area of freedom, security and justice.

Source: FRA, 2023 (reviews not publicly available).


Examples of compliance with the Charter at national level

As mentioned in the Introduction, according to Annex III of the CPR 21–27, Member States have to put in place ‘Charter arrangements’ to ensure compliance of the programmes and their implementation with the Charter and to ensure that the preparation and implementation of the programmes properly reflect the accessibility policy, legislation and standards. Furthermore, Member States should set up arrangements for reporting to the monitoring committees on complaints submitted and on cases of non-compliance with the Charter and the CRPD. In this section, some examples of national arrangements are provided.

In Italy, a contact point responsible for monitoring Charter compliance throughout the programming period is appointed within the managing authorities of the different funds. The contact point is included in a training programme to strengthen that person’s expertise on fundamental rights, especially on aspects most relevant to the programming and implementation of funds [35] Italy: Dipartimento per le politiche di coesione (2021), Relazione di autovalutazione sul soddisfacimento della condizione abilitante orizzontale “Effettiva applicazione e attuazione della Carta dei diritti fondamentali dell'UE” Versione consolidata, Rome, p. 2.
. The contact point also reviews possible Charter complaints and, where appropriate, involves relevant bodies to identify what corrective measures should be taken. Anyone can submit a complaint on Charter breaches through an online form, which is available on the websites of the different funds [36] Italy: Dipartimento per le politiche di coesione (2021), Relazione di autovalutazione sul soddisfacimento della condizione abilitante orizzontale “Effettiva applicazione e attuazione della Carta dei diritti fondamentali dell'UE” Versione consolidata, Rome, Annex I.
. The managing authorities report to the monitoring committee at least once a year about complaints registered and their outcome [37] Italy: Dipartimento per le politiche di coesione (2021), Relazione di autovalutazione sul soddisfacimento della condizione abilitante orizzontale “Effettiva applicazione e attuazione della Carta dei diritti fondamentali dell'UE” Versione consolidata, Rome, Annex II.
. These arrangements apply to all programmes covered by the CPR 21–27 in Italy.

In Slovenia, similarly to Italy, the managing authority appoints one person or more who is responsible for collecting information on complaints about non-compliance with the Charter or the CRPD and for reporting these to the monitoring committee [38] Slovenia: Sofinancira Evropska unija (2023), Postopkovnik za izvajanje Listine Evropske unije o temeljnih pravicah in Konvencije Združenih narodov o pravicah invalidov v skladu s Sklepom Sveta 2010/48/ES, Ljubljana.
. Furthermore, a working group for coordinating the implementation of the Charter and the CRPD in the framework of the European Cohesion Policy programme has been created, consisting of representatives from different ministries, the national equality body and the national human rights ombudsman. The working group serves as a consultative body and is involved in handling complaints [39] Slovenia: Sofinancira Evropska unija (2023), Postopkovnik za izvajanje Listine Evropske unije o temeljnih pravicah in Konvencije Združenih narodov o pravicah invalidov v skladu s Sklepom Sveta 2010/48/ES, Ljubljana.
.

Several Member States provide Charter training for managing authorities staff to ensure Charter compliance throughout the programming period. In some Member States, such as Estonia and Ireland, training is also provided for intermediate bodies and beneficiaries. An intermediate body is a public or private body that acts under the responsibility of a managing authority or that carries out functions or tasks on behalf of such an authority (Article 2 (8) of the CPR) [40] Communication received from the Estonian national liaison officer; Ireland, Department of Public Expenditure and Reform (2022), Partnership Agreement 2021–27, Dublin, p. 48.
. The training is often developed together with experts, such as NHRIs and equality bodies.

Some Member States have published formal guidelines on fundamental rights in relation to funds governed by the CPR. For example, in Ireland, the Irish Human Rights and Equality Commission developed a guide in cooperation with various public bodies involved in the EU funding process [41]
 Government of Ireland (2021), Equality and Human Rights in EU Funds, 2021–27: Guidance tool, Dublin.
. Similarly, the ministry in charge of EU funds in Romania has issued a guide on the legal fundamental rights obligations under the CPR 21–27 [42]
 Romania, Ministry of European Projects and Investments (2022), Guide to the Application of the Charter of Fundamental Rights of the European Union in the Implementation of the European Non-reimbursable  Funds


.
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Other Member States have developed fundamental rights checklists. They apply them, for example, when drafting funding conditions for different programmes, calling for applications, selecting operations to fund, monitoring them and/or reviewing the final reports. Some Member States also use the Commission’s guidance on the Charter and European Structural and Investment Funds (ESIF) published in 2016 [43]
 European Commission (2016), Guidance on ensuring the respect for the Charter of Fundamental Rights of the European Union when implementing the European Structural and Investment Funds (‘ESI Funds’), 2016/C 269/01.
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In Cyprus, the national human rights body is actively involved in an advisory capacity in the drafting of programmes. The Commissioner for Administration and the Protection of Human Rights provides written guidance and advice to the managing authority/intermediate body and, if a possible violation of the programmes in relation to any provision is found, the Commissioner can give suggestions to align the programmes with the provisions of the Charter [44]
 Ombudsman of Cyprus (2023), ‘The role of national bodies with a human rights remit in ensuring fundamental rights compliance of EU funds’, report written in the framework of the FRA project “Supporting National Human Rights Institutions in monitoring fundamental rights and the fundamental rights aspects of the rule of law” (not yet publicly available).


 
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