Procedure : 2016/0207(COD)
Document stages in plenary
Document selected : A8-0261/2017

Texts tabled :

A8-0261/2017

Debates :

PV 29/11/2017 - 21
CRE 29/11/2017 - 21

Votes :

PV 14/09/2017 - 8.12
CRE 14/09/2017 - 8.12
PV 30/11/2017 - 8.18
Explanations of votes

Texts adopted :

P8_TA(2017)0469

REPORT     ***I
PDF 920kWORD 101k
17.7.2017
PE 601.194v02-00 A8-0261/2017

on the proposal for a regulation of the European Parliament and of the Council 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

(COM(2016)0447 – C8-0264/2016 – 2016/0207(COD))

Committee on Foreign Affairs

Rapporteur: Arnaud Danjean

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 MINORITY OPINION
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS
 OPINION of the Committee on Development
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council 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

(COM(2016)0447 – C8-0264/2016 – 2016/0207(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0447),

–  having regard to Article 294(2), Article 209(1) and Article 212(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0264/2016),

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

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to Rules 59 and 39 of its Rules of Procedure,

–  having regard to the report of the Committee on Foreign Affairs and the opinion of the Committee on Development (A8-0261/2017),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a regulation

Recital 6 a (new)

 

Text proposed by the Commission

Amendment

 

(6a)  The use of this instrument should be closely monitored and regular updates given to the European Parliament on activities that are financed under its provisions. It should be noted that the duration of this instrument is strictly limited to the end of the current Multiannual Financial Framework, whereupon the Commission should undertake a fully-fledged interdisciplinary evaluation of the actions funded in accordance with the provisions on capacity building in support of security and development (‘CBSD’) established under this Regulation and of relevant instruments used by Member States to fund CBSD. That evaluation should assess the coherence of CBSD actions funded by the Union and its Member States with the EU Global Strategy and the UN Sustainable Development Goals. Any future instruments created to address the security-development nexus should be based on the conclusions of that evaluation, only be undertaken after a wide-ranging, multi-stakeholder public consultation and should facilitate civilian cooperation among the Union, local and regional public or intergovernmental structures as well as NGOs in order to provide support to third countries.

Amendment    2

Proposal for a regulation

Article 1 a (new)

 

Text proposed by the Commission

Amendment

 

Article 1a

 

Assistance falling under Article 3a shall be financed through redeployment within Heading IV of the general budget of the Union of the 2014-2020 multiannual financial framework without mobilising additional resources. Such redeployment shall exclude the use of appropriations allocated to measures under Regulation (EU) No 233/2014 of the European Parliament and of the Council1a.

 

__________________

 

1a Regulation (EU) No 233/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for development cooperation for the period 2014-2020.


EXPLANATORY STATEMENT

On 5 July 2016 the Commission published a legislative proposal to help strengthen the security and defence capabilities of the partner countries. The aim is to enable the Union to finance out of its own budget both training activities and the supply of non-lethal equipment to the security forces of third countries. This support given by the Union to its partners should help to sustain the effectiveness of the training activities provided by the Union and the development of the rule of law.

The Commission’s initiative is intended to strengthen the link between security and development established since 2003 in the European Security Strategy(1) (‘security is a precondition of development’) and expressly reiterated since then in all strategic, global or thematic documents(2).

The link between development and security is understood to be a key principle underpinning the Union’s integrated approach to external crises and conflicts. While the aim of development policy is to reduce and finally eliminate poverty (‘without development and the eradication of poverty, there will be no lasting peace’), enhancing capacities in the security sector clearly appears to be a vital contribution to the objectives of sustainable development.

The European Parliament has always agreed with this position. In its report on the Union’s comprehensive approach(3), it therefore welcomes the ‘link between security and development, which should be a key underlying principle in applying the Union’s comprehensive approach’.

Also, it should be noted that the future direction of the security-development link will be unequivocally reaffirmed in ‘European Consensus on Development’, which is currently being revised.

This proposal enhances the consistency of European Union action.

It makes it possible to implement the objectives of the Global Strategy for the European Union's Foreign and Security Policy, presented in June 2016 by the High Representative of the Union for Foreign Affairs and Security Policy. ‘Priority 4 - ‘From Vision to Action’ - underlines the need to enhance the capacities of its partners to deal with external crises.

This need is also referred to in the EP resolution on peace support operations(4): The Parliament ‘welcomes the Joint Communication on capacity-building and joins the Council in calling for its urgent implementation’.

Lastly, this text is a follow-up to the joint communication of April 2015(5) which identified where the European Union fell short in strengthening the capabilities of its partner countries as well as in security sector reform (SSR). The Union is currently undertaking an assessment of the needs of fragile countries, particularly in Africa, and the Instrument contributing to Stability and Peace (IcSP) is already funding SSR activities.

The proposal will allow the EU to abide by its international development commitments. It takes account of the OECD-DAC revised Reporting Directives on official development assistance (ODA) in the field of peace and security, which bring the security sector within the scope of ODA rules, and of the UN 2030 Agenda for Sustainable Development and its Sustainable Development Goal (SDG) 16 on 'peace and justice', which emphasises the need to support national security institutions in fragile and conflict-affected countries.

The proposal is a response to an urgent need, and to the expectations of local stakeholders. Political guidelines have been in place for over three years now, but no tangible measures have been taken to translate them into reality. Back in December 2013, the European Council made the case for a train-and-equip programme, which became the CBSD initiative (Capacity Building and Security Development). In December 2016, the European Council conclusions called for the European Commission's legislative proposal to be adopted by the end of June 2017.

That legislative text takes the form of an amendment to 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. Revision of the Regulation merely adds some enacting terms in order to remedy existing shortcomings, to support all security sector actors (including the military) in order to allow the provision of training and equipment to meet critical needs in the short and medium term, as part of efforts to achieve sustainable development objectives.

Rapid establishment of the CBSD initiative in the partner countries would thus round off existing measures.

The European Union already has several instruments to support civilian security forces (police) and justice by financing certain equipment (vehicles, radios, etc.).

However, it is not able to support the military, although in some cases it is only the armed forces which are capable of stabilising areas, by helping to restore security and reinstate public administration and basic services.

The EU thus lacks a financial instrument that can be activated quickly and efficiently to provide direct support in the field of security for its third-country partners when needed. Without the ability to provide back-up for the work of the relevant coordinated equipment programmes, it is extremely difficult to achieve continued positive outcomes in terms of training and advice for third-country armies in the medium and long term.

The urgently needed assistance proposed by the Commission would fill in the gaps in the existing arrangements, the gaps between programmes designed to strengthen 'civilian' security forces and other development programmes, and between the training which can be provided by European units and local forces' equipment shortages. The European Union needs to be able to equip the security forces of partner countries that it trains in the course of its missions.

For example, European aid could finance garrison medical facilities in Mali, where the European Union is already present with its military mission, EUTM Mali. The aim would be to rehabilitate the existing infirmary-type medical facilities in order to bring them up to an acceptable standard of care. These infirmaries should be able to provide basic health care, including action to promote the welfare of mothers and children, and to provide first aid.

Helping to build hospitals to treat the wounded would mean real added value for the EU and contribute to the success of the European mission.

At present, this lack of funding undermines the credibility of the Union's external action at a time when other players, such as China, Russia and Turkey, are constantly increasing their activities with African countries, especially in the military field, without making their aid conditional on the principles of good governance promoted by the Union.

The Commission considered various ways of financing these initiatives. In its impact assessment(6), the Commission concludes that revision of the Instrument contributing to Stability and Peace (IcSP) would be the most appropriate and effective short-term option for building capacity for security and development. This highly flexible instrument would allow a broad range of actions to be funded, without any geographical restriction.

The modest initial funding of EUR 100 million would complement action already underway, with very beneficial effects on security, development and the economy. At this stage, there is not predicted to be any impact on Member States' national budgets, although greater investment may be necessitated by global security requirements and SSR activities.

The follow-up to this initiative will be considered during discussions on the post-2020 multiannual financial framework (MFF) and the mid-term review of EU external funding instruments, which is being prepared for December 2017.

The legal framework of the proposal is clear and strictly circumscribed, and will prevent any abuse.

Safeguards have been carefully defined to make sure that the Regulation is used appropriately:

•  Support for third countries' armed forces would apply only to certain countries in clearly defined situations where boosting military capability serves a development goal.

•  The conditions under which the financial aid could be triggered are precise: it will have to be justified by the situation in the country concerned and an agreement between the third country and the EU.

•  The assistance itself is subject to well defined restrictions: it will not be able to be used for recurrent military expenditure (salaries and pensions), the procurement of lethal equipment such as weapons and ammunition, or for training designed solely for combat purposes.

Lastly, it is essential to take particular care that the funds are properly allocated.

The Regulation as amended by the European Parliament must also be fully in line with the legal requirements of the Treaties. Where necessary in the light of the EU's development cooperation objectives, it is possible for capacity building in the security sector to be financed under Articles 209 and 212 TFEU (i.e. both under development cooperation and under economic, financial and technical cooperation).

This legal basis will enable all developing countries and other fragile countries to be included in the scope if the proper conditions are met. The instrument would make it possible to aid countries such as Mali, the Central African Republic or Somalia and other fragile countries in real need (Niger, faced with the spill-over of terrorism from Mali, and Chad and Cameroon).

On the programming and implementation of the newly amended provisions, it should be pointed out that the existing provisions of the 2014 IcSP Regulation will be observed. These are exceptional assistance measures and interim response programmes (Article 7), thematic strategy papers and multiannual indicative programmes (Article 8). The aim is also to extend the obligation to implement assistance measures in accordance with international law to CBSD-related assistance measures (Article 10).

As far as the role of the Parliament is concerned, the provisions applicable to the IcSP Regulation will also apply to all the provisions amended by this Regulation. It will be informed of non-programmable measures by the Commission's regular information notes to the Political and Security Committee. In the case of programmable measures, it will scrutinise the draft implementing acts (strategy document, multiannual indicative programmes and annual action programmes) and strategic dialogues together with the Commission and the EEAS before each multiannual programming exercise.

The rapporteur believes that the Commission proposal is merely the first stage in a more ambitious European capacity-building policy for partner countries. Nearly a year after publication of the Commission proposal, the European Parliament must shoulder its responsibilities and swiftly adopt this text, which is an essential tool for the long-term support of stability in third countries, development of the rule of law and effective EU external action.

(1)

European Security Strategy (Council document 15895/03 of 8 December 2003).

(2)

Example: EU strategy for security and development in the Sahel dating from 2011.

(3)

European Parliament resolution of 3 April 2014 on the EU comprehensive approach and its implications for the coherence of EU external action (2013/2146(INI)). Texts adopted, P7_TA(2014)0286.

(4)

European Parliament resolution of 7 June 2016 on Peace Support Operations – EU engagement with the UN and the African Union European Parliament resolution of 7 June 2016 on Peace Support Operations – EU engagement with the UN and the African Union (2015/2275(INI)). Texts adopted, P8_TA(2016)0249.

(5)

Joint Communication of the European Commission and the High Representative to the European Parliament and the Council ‘Capacity building in support of security and development - Enabling partners to prevent and manage crises’, 28 April 2015, JOIN(2015) 17 final.

(6)

Impact assessment, Capacity Building in support of Security and Development, accompanying document: 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 (SWD(2016) 222 final).


MINORITY OPINION

pursuant to Rule 52a(4) of the Rules of Procedure, by GUE/NGL: Sabine Lösing, Miguel Urban Crespo, Javier Couso Permuy, Takis Hadjigeorgiou

The report supports the Commission’s initiative to expand the instrument contributing to stability and peace to include military capacity building. The aim of this report is to circumvent the existing rules of financing under the EU Budget which excludes activities aimed to finance the defence sector and military actors in third countries.

We object the report since it:

•  Supports the use of development aid for military purposes

•  Demands to fund capacity building for the armed forces

•  Calls for the payment for equipment and training for armed forces in third countries

•  Boosts the defence industry and its companies, which will open up with EU-funded capacity building programmes

•  Fosters the security-development nexus

•  Violates article 41(2) TEU which forbids to use EU-budget for expenditure arising from operations having military or defence implications

We demand:

•  A purely civil use of the instrument contributing to stability

•  No use of development aid for military purposes

•  To support poverty eradication, conflict prevention, non-proliferation and disarmament

•  No military funding from EU-budget and strict interpretation of article 41(2) TEU


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Elmar Brok

Chair

Committee on Foreign Affairs

BRUSSELS

Subject:  Opinion on the legal basis of the Proposal for a Regulation of the European Parliament and of the Council 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 (COM(2016)447 - 2016/0207(COD))

Dear Mr Chair,

During the Coordinators’ meeting of 11 July 2016, the Committee on Legal Affairs decided to examine of its own motion, under Rule 39(3) of the Rules of Procedure (RoP), the legal basis of the proposal for a Regulation of the European Parliament and of the Council 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 (COM(2016)447). Also, by letter of 15 November 2016, the Chair of the Committee on Development requested the Committee on Legal Affairs under Rule 39 RoP to verify the legal basis of the said legislative proposal. The proposal is based on Articles 209(1) and 212(2) of the TFEU on the adoption of measures necessary for the implementation of development cooperation policy and of economic, financial and technical cooperation measures with third countries other than developing countries respectively.

The committee considered this issue at its meeting of 13 July 2017.

I - Background

Regulation (EU) No 230/2014 (hereinafter, “IcSP”)(1) sets up measures of technical and financial assistance in order to prevent and respond to crises and contribute to building stability and peace. The proposed amendments to IcSP intend to add a new type of Union assistance specifically designed to build the capacity of military actors in third countries when exceptional circumstances occur. The Commission’s proposal follows from an arguably close link between security and development, which envisages support to partner countries’ security systems as part of a broader reform process to provide effective and accountable security to the State and to individuals, thus contributing to the EU’s objectives of inclusive and sustainable development and the rule of law.

The security-development nexus as a matter of practice can be identified in Regulation 1717/2006 establishing an Instrument for Stability (hereinafter, IfS)(2) and which is the predecessor of IcSP. IfS was aimed at undertaking development cooperation measures and financial, economic and technical cooperation measures with third countries(3) and originally included military monitoring and peacekeeping operations within its scope.(4) The relevant provision – which was later dropped during the negotiation period of the Regulation between the Commission, the Council and the Parliament – was included in Article 2(a) and read as follows:

“ military monitoring and peace-keeping or peace-support operations (including those with a civilian component) conducted by regional and sub-regional organisations and other coalitions or states operating with United Nations endorsement; measures to build the capacity of such organisations and their participating members to plan, execute and ensure effective political control over such operations.”

II - The relevant Treaty Articles

Article 209(1) TFEU in conjunction with Article 212(1) TFEU, in Part Five entitled 'The Union's External Action', are presented as the legal basis in the Commission's proposal and read as follows (emphasis added):

Article 209 TFEU

(ex Article 179 TEC)

1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of development cooperation policy, which may relate to multiannual cooperation programmes with developing countries or programmes with a thematic approach. [...]

Article 212 TFEU

(ex Article 181a TEC)

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of paragraph 1. [...]

Paragraph 1 of Article 212 TFEU reads as follows (emphasis added):

Article 212 TFEU

(ex Article 181a TEC)

1. Without prejudice to the other provisions of the Treaties, and in particular Articles 208 to 211, the Union shall carry out economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries. Such measures shall be consistent with the development policy of the Union and shall be carried out within the framework of the principles and objectives of its external action. The Union’s operations and those of the Member States shall complement and reinforce each other.

Article 208 TFEU setting out the premises on which development cooperation measures may be adopted reads as follows (emphasis added):

Article 208 TFEU

(ex Article 177 TEC)

1. Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action. The Union's development cooperation policy and that of the Member States complement and reinforce each other.

Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries. […]

Given the reference back to principles and objectives of the European Union’s external action, Article 21 TEU should be looked at (emphasis added):

Article 21 TEU

1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. […]

2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:

(a) safeguard its values, fundamental interests, security, independence and integrity;

(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;

(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the

Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;

(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;

(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;

(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;

(g) assist populations, countries and regions confronting natural or man-made disasters; and

(h) promote an international system based on stronger multilateral cooperation and good global governance.

3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.

The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.

Article 24(1) TEU is also deemed relevant for the analysis and determination of the appropriate legal basis and reads as follows (emphasis added):

Article 24 TEU

(ex Article 11 TEU)

1. The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.

The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union. [...]

Article 40 TEU reads as follows:

Article 40 TEU

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

III - The proposed legal basis

The Commission proposed Articles 209(1) and 212(2) TFEU as the appropriate legal basis for the amendment of Regulation (EU) No 230/2014. Both provisions are included in Title III on “Cooperation with third countries and humanitarian aid” within the framework of the Union’s external action, which has brought together the former Titles XX (Articles 177-181 TEC) and XXI (Article 181 a TEC) of Part Three of the Treaty on the European Community, enabling the Community (now Union) to undertake cooperation policy measures both with developing (Art.177-188 TEC) and developed countries (Art.188 a TEC).

The choice of the appropriate legal basis has been a recurring matter in the area of EU external action, in particular in relation to the nexus between Common Security and Defence Policy and development, economic, financial and technical cooperation policies. This is due to the substantial legal differences between the sets of provisions governing these fields as well as the close interplay between the policies, developed by the Union’s institutions as a matter of practice. Specifically, development and economic, financial and technical cooperation is undertaken based on the traditional integration model, whereby the European Parliament participates in decision-making actively pursuant to the ordinary legislative procedure following a proposal by the Commission and subject to the jurisdiction of the Court of Justice.(5) On the contrary, under the Common Security and Defence Policy, the Council adopts measures mainly by unanimity, merely keeping the Parliament informed, and expressly excluding the jurisdiction of the Court of Justice.(6)

It is against this background that the Committee on Legal Affairs has decided to look into the correct legal basis for the proposed amendment to Regulation No 230/2014. Should the Union adopt the proposed measure, which straddles development and economic, financial and technical cooperation and security and defence policy pursuant to the provisions governing the former or the latter? The answer to this legal question would define not only the procedure to be followed for the adoption of the proposed measure, but also its legal characteristics and implications.

IV – CJEU case law on the choice of legal basis

The Court of Justice has traditionally viewed the question of the appropriate legal basis as an issue of constitutional significance, guaranteeing compliance with the principle of conferred powers (Article 5 TEU) and determining the nature and scope of the Union’s competence.(7) According to settled case law of the Court of Justice, “the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure”.(8) The choice of an incorrect legal basis may therefore justify the annulment of the act in question. In this context, an institution’s wish for more active participation in the adoption of a given measure, the circumstances in which a measure was adopted as well as the work that has been done in other aspects within the scope of action covered by a given measure are irrelevant for the identification of the right legal basis.(9)

If examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component one of which is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component.(10) However, where a measure has several contemporaneous objectives or components, which are indissociably linked, without one being secondary and indirect in relation to the other(s), such a measure will have to be based on the various corresponding legal bases,(11) if procedures laid down for the respective legal bases are not incompatible with and do not undermine the right of the European Parliament.(12)

V – Aim and Content of the proposed measure

The aim of this Proposal, as stated by the Commission in its explanatory memorandum, is to insert “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”.(13) According to the Impact Assessment accompanying the Commission proposal, the general objectives of this initiative are twofold: on the one hand to guarantee that the EU’s development assistance to fragile developing countries is not undermined by situations of instability and conflict, by enabling all security actors, including the military to ensure stability, peace and law and order; on the other hand to foster sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty.(14)

In this context, recital 3 states that supporting security sector actors, including the military under exceptional circumstances, in a conflict prevention, crisis management or stabilisation context is essential to ensure appropriate conditions for poverty eradication and development. It also emphasises that those actions are aimed at protecting civilian populations in the areas affected by conflict, crises or fragility, contributing to good governance and effective democratic control as well as compliance with human rights and the rule of law. Recitals 2, 4 and 5 reiterate the strong link between security and sustainable development, making reference for that purpose to the United Nations’ 2010 Agenda for Sustainable Development,(15) to the European Council Conclusions of 19/20 December 2013 and to the Joint Communication on ‘Capacity building in support of security and development - Enabling partners to prevent and manage crisis’.(16)

Specifically, the proposal provides that the Union assistance to security actors might include military actors under exceptional circumstances, in the context of a wider security reform process and in line with the overarching objective of achieving sustainable development (new sub-paragraph to Article 1(2)). Article 3a reiterates in the first paragraph the objective of contributing to sustainable development and the achievement of stable, peaceful and inclusive societies through the provision of Union assistance in exceptional circumstances to build the capacity of military actors in partner countries. Paragraph 2 exemplifies that Union assistance to that purpose should take the form of 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. This form of assistance should be used as a last resort, when recourse to non-military actors cannot adequately guarantee the achievement of stable, peaceful and inclusive societies. This will be the case either when there is a serious threat to the existence of functioning State institutions as well as to the protection of human rights and fundamental freedoms, or when State institutions can no longer cope with this serious threat; and on condition that an agreement exists between the country concerned and the international community and/or the European Union that the military are key for stability, peace and development, particularly in crises and fragile contexts and situations. Paragraph 4 further limits the scope of military assistance by providing that is should not be used to finance, neither recurrent military expenditure, nor the procurement of arms and ammunition or training exclusively designed to contribute to the fighting capacity of armed forces. Finally, paragraph 5 reiterates that military assistance should be aimed at promoting ownership by the partner country and the development of the necessary elements and the good practices required for ensuring sustainability in the medium and long term, and promote the rule of law and established international law principles.

Other minor amendments to Articles 7(1), 8(1) and 10(1) of IcSP are aimed at introducing a cross reference to new Article 3(a). Finally, Article 13(1) is amended to increase the financial envelope for the implementation of the Regulation by EUR 100 000 000.

VI – Analysis and establishment of the appropriate legal basis

The Commission proposed Articles 209(1) and 212(2) TFEU as the appropriate legal basis for the amendment of Regulation (EU) No 230/2014. According to Article 209(1) TFEU, the Union co-legislators, acting in accordance with the ordinary legislative procedure, may adopt the necessary measures for the implementation of the development cooperation policy, which pursuant to Article 208(1) TFEU shall be conducted within the framework of the principles and objectives of the Union's external action and whose primary objective is the reduction and, in the long term, the eradication of poverty. Poverty eradication constitutes an objective, which is also envisaged by Article 21(2) TEU –the general provision on the entire range of Union’s external action objectives. In signalling out this objective, Article 208(1) TFEU arguably suggests that the other objectives set out in Article 21 (2) TEU may be pursued by development cooperation measures, but only in so far as these are secondary.(17)

The broad scope of understanding of Union development cooperation policy, when it comes to Development Cooperation Agreements (DCAs), was confirmed in Portugal v Council, where the Court of justice found that (emphasis added):(18)

“It must therefore be held that the fact that a development cooperation agreement contains clauses concerning various specific matters cannot alter the characterisation of the agreement, which must be determined having regard to its essential object and not in terms of individual clauses, provided that those clauses do not impose such extensive obligations concerning the specific matters referred to that those obligations in fact constitute objectives distinct from those of development cooperation.”

In case C-403/05 Parliament v Commission the Court reaffirmed that development cooperation referred (emphasis added):(19)

not only to the sustainable economic and social development of those countries, their smooth and gradual integration into the world economy and the campaign against poverty, but also to the development and consolidation of democracy and the rule of law, as well as to respect for human rights and fundamental freedoms, whilst complying fully with their commitments in the context of the United Nations and other international organisations’.

According to the note prepared by Parliament’s Legal Service in 2004 on the choice of the legal basis of the predecessor of IcSP – originally containing a similar provision on military capacity building in exceptional situations:(20)

“measures related to peace-keeping and peace-support can clearly be considered to contribute to the objective of developing democracy and the rule of law. The wording of Articles 179 (now, 209(1)TFEU) and 181 a (now, 212(2) TFEU) EC Treaty does not exclude the financing of peacekeeping in order to fulfil their objectives. Moreover, the case-law of the Court of Justice has established that the Union’s development policy should be interpreted in a broad sense.(21)

Parliament’s Legal Service has confirmed in its note of 6 January 2017 that the exceptional circumstances in which CBSD measures would be provided under the amended IcSP could permit an alternative interpretation, according to which the military component in Article 3a is both incidental and necessary. This is further sustained by the exclusion of support of strictly military nature pursuant to Article 3a(4), which could be further reinforced by establishing explicitly a closer link to the Union’s development cooperation policy.(22) As confirmed in the note of 2 February 2017 of the Commission services on the legal basis in procedure No. 2016/0207(COD) which was issued at the request of the Committee on Legal Affairs, the proposal pursues a development objective through an additional actor involved – the military – in the limited circumstances where the actor does not act in its military capacity, pursuing solely civilian objectives.(23)

According to the Commission’s Joint Communication to the European Parliament and to the Council of 28 April 2015 on ‘Capacity Building in support of Security and Development’(24) security sector capacity building may be focused on civilian or police forces but also on the military. The 2003 European Security Strategy provides that security is a precondition for development, since conflict destroys infrastructure, including social infrastructure, while encouraging criminality and deterring investment and normal economic activity.(25) Finally, according to the European Consensus on development, the essential objective of EU development cooperation is the eradication of poverty in the context of sustainable development, the latter including ‘good governance, human rights and political, economic, social and environmental aspects’.(26) What is more, the European Consensus is envisaged to “guide the planning and implementation of the development cooperation assistance component of all Community instruments and cooperation strategies with third countries” – the development assistance component being “defined as all development aid (ODA) as agreed by the OECD Development Assistance Committee”.(27) Under the revised ODA Directives, the financing of the military of partner countries is only possible when exceptional circumstances require the delivery of development services through the military in its role of re-establishing the rule of law. By contrast, the direct participation in military expenditures remains non-eligible.(28) As a result, the situation where State institutions have become dysfunctional for the achievement of peaceful and inclusive societies is not covered by the revised ODA Directives and the proposed Regulation has deemed it possible to go beyond ODA in using the military as provider for developmental services.(29) From a legal perspective, ODA Directives do not constitute, as such, legally binding limits to the scope of Article 208 TFEU and the IcSP Regulation does not submit its implementation to such ODA conditionality.(30)

However, as recognised in the Impact Assessment attached to the proposal, building military and defence capacities for purposes not related to development cooperation would indeed encroach upon CFSP, also breaching Article 40 TEU, which has introduced the principle of ‘mutual non-affectation’ between CFSP and non-CFSP external actions of the Union.(31) In the same way, a measure primarily focusing on the financing of the military of third countries for defence related purposes, should come under the Union’s CFSP and cannot be combined with a non-CFSP legal basis. This was confirmed in the Court’s case C‑263/14, Parliament v. Council,

“As regards acts adopted on the basis of a provision relating to the CFSP, it is the task of the Court to ensure, in particular, under the first clause of the second subparagraph of Article 275 TFEU and under Article 40 TEU, that the implementation of that policy does not impinge upon the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union’s competences under the FEU Treaty. The choice of the appropriate legal basis of a European Union act has constitutional significance, since to proceed on an incorrect legal basis is liable to invalidate such an act, particularly where the appropriate legal basis lays down a procedure for adopting acts that is different from that which has in fact been followed. In accordance with settled case-law, the choice of the legal basis of a European Union act […] must rest on objective factors amenable to judicial review, which include the aim and content of that measure”(32)

Along these lines, the military component of the proposed Regulation should be seen in the broader context of the objectives and content of the IcSP. To that purpose, the ‘last resort’ character of the proposed reform and the strictly delineated occasions in which recourse to military assistance might be deemed the sole effective means to contribute to the achievement of peaceful and inclusive societies should be taken into account. In addition, the proposal prohibits Union assistance for the financing of military training designed to contribute exclusively to the fighting capacity of the armed forces, recurrent military expenditure and the procurement of arms and ammunition, which could be argued is an indication of the proposal’s aim to contribute to the security and safety of civilian populations in third countries.(33) This possibility is further restricted by the obligation for the Commission to establish appropriate risk assessment, monitoring and evaluation procedures for measures (paragraph 6 of the same provision). Monitoring and evaluation modalities are also laid down in Articles 12 and 13 of Regulation (EU) 236/2014 that applies to all EU external financing instruments, including the IcSP.

In light of the above, it could be argued that the proposed Regulation is aimed at contributing to sustainable development and the achievement of stable, peaceful and inclusive societies through good governance in public administration, including ministries of defence and the armed forces- an integral part of the executive branch of Government - albeit, under civilian oversight and in exceptional circumstances, where sustainable development cannot be achieved solely by recourse to non-military actors.

VII - Conclusion and recommendation

In light of the foregoing, although the Commission proposal introduces obligations aimed at the development and consolidation of the rule of law and good governance through enhanced civilian control and oversight over the military in third countries and is thus linked to CFSP and CSDP, it nonetheless– pursues as its main and predominant objectives development and economic, financial and technical cooperation policies focusing on the contribution to peaceful and inclusive societies seen as indispensable for the achievement of sustainable development. Since these primary objectives are indissociably linked, without one being secondary and indirect in relation to the other,(34) Article 209(1) in conjunction with Article 212(2) TFEU should constitute the valid and appropriate legal basis for the proposal.

At its meeting of 13 July 2017 the Committee on Legal Affairs accordingly decided, by 10 votes in favour, 7 against, and 6 abstentions(35), to recommend to you that the correct legal basis for the proposed Regulation of the European Parliament and of the Council 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 is Article 209(1) and Article 212(2) TFEU.

Yours sincerely,

Pavel Svoboda

(1)

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, OJ L 77, 15.3.2014, pp. 1–10.

(2)

[2006] OJ L 327/1.

(3)

Art 1(1).

(4)

COM(2004) 630 final, ‘Proposal for a Regulation of the Council establishing an Instrument for Stability’ Brussels, 29 September 2004, at 15.

(5)

Art 209(1) TFEU.

(6)

Art 24 (1) subpara. 2 TEU and Art 275 TFEU.

(7)

Opinion 2/00 [2001] ECR I-9713, para 5.

(8)

Case C-45/86, Commission v. Council (Generalised Tariff Preferences) [1987] ECR 1439, para. 5; Case C-411/06 Commission v. Parliament and Council [2009] ECR I-7585.

(9)

Case C-269/97 Commission v Council [2000] ECR I-2257, para 44.

(10)

Case C-137/12 Commission v Council EU:C:2013:675, para. 53; C-490/10 Parliament v Council EU:C:2012:525, para. 45; C-155/07 Parliament v Council [2008] ECR I-08103, para. 34.

(11)

Case C-211/01 Commission v Council [2003] ECR I-08913, para. 40; Case C-178/03 Commission v European Parliament and Council [2006] ECR I-107, paras 43-56.

(12)

Case C-300/89 Commission v Council ("Titanium dioxide") [1991] ECR I-2867, paras. 17-25; Case C-268/94 Portugal v Council [1996] ECR I-6177.

(13)

COM(2016)447 final, at 2.

(14)

SWD(2016) 222 final, at 16.

(15)

United Nations, A/RES/70/1, Resolution adopted by the General Assembly n 25 September 2015.

(16)

JOIN(2015) 17 final of 28 April 2015.

(17)

See Case C-91/05 Commission v Council (ECOWAS) [2008] ECR I-3651, para 73. See also Case C-377/12 Commission v Council [2014] ECLI:EU:C:2014:1903, at 37. P. Koutrakos, The EU Common Security and Defence Policy (2013 OUP), at 211-212.

(18)

Case C-268/94 Portuguese Republic v. Council of the European Union [1996] ECR I-6177, para 39.

(19)

Case C-403/05 Parliament v Commission [2007] ECR I-9045, paragraph 56.

(20)

SJ-0746/04, at 7.

(21)

See Case C-268/94 Portugal v Council (1996) ECR I-6177, paragraph 37.

(22)

SJ-0729/16, p.10.

(23)

Sj.i(2017)303958, p.2.

(24)

See JOIN(2015) 17 final.

(25)

See A Secure Europe in a Better World – European Security Strategy (Brussels, 12 December 2003), at 11-13.

(26)

OJ 2006 C 46/1, at 5, 7 and 42. See also Case C-377/12, Opinion of AG Mengozzi (2014), para. 40.

(27)

OJ 2006 C 46/1, at.8.

(28)

See Reporting Directives of 17 February 2016, OECD document DCD/DAC(2016)3/FINAL of 8 April 2016, paras. 96-98.

(29)

See Sj.i(2017)303958, p.3.

(30)

SJ-0729/16, p.7-8.

(31)

See P. van Elsuwege, ‘EU External Action after the Collapse of the Pillar Structure: in Search of a new Balance between Delimitation and Consistency’, 47 Common Market Law Review 2010, at 1002.

(32)

Judgment of 14 June 2016, Parliament v. Council, C‑263/14, ECLI:EU:C:2016:435, paras.42-43.

(33)

For analogous argumentation by Parliament’s legal service in the context of IfS, the predecessor of IcSP, see: SJ-0746/04, at 7.

(34)

See Case C-411/06 Commission v. Parliament and Council [2009] ECR I-7585.

(35)

The following were present for the final vote: Pavel Svoboda (Chair), Jean-Marie Cavada (Vice-Chair, rapporteur), Mady Delvaux (Vice-Chair), Lidia Joanna Geringer de Oedenberg (Vice-Chair), Axel Voss (Vice-Chair), Isabella Adinolfi, Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Lynn Boylan, Daniel Buda, Angel Dzhambazki, Kostas Chrysogonos, Rosa Estaràs Ferragut, Heidi Hautala, Mary Honeyball, Sylvia-Yvonne Kaufmann, Gilles Lebreton, António Marinho e Pinto, Angelika Niebler, Evelyn Regner, Tiemo Wölken, Tadeusz Zwiefka.


OPINION of the Committee on Development (5.7.2017)

for the Committee on Foreign Affairs

on the proposal for a regulation of the European Parliament and of the Council 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

(COM(2016)0447 – C8-0264/2016 – 2016/0207(COD))

Rapporteur: Linda McAvan

SHORT JUSTIFICATION

This legislative proposal aims at amending the 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, in order to insert a new article allowing the EU to extend its assistance, under exceptional circumstances, to the capacity building of military actors in partner countries, with sustainable development and achievement of peaceful and inclusive societies as the main declared objectives.

The Rapporteur supports the general line of the Commission proposal, but calls for a close monitoring of the activities to be financed under the new instrument and stresses the need for a full, transparent and interdisciplinary evaluation of the CBSD activities (Capacity Building in support of Security and Development)..

The Rapporteur also recalls that the primary objective of the Union’s development cooperation policy is the reduction and, in the long term, eradication of poverty (Article 208 (1) of the TFEU), and, therefore, that the DCI (Development Cooperation Instrument) or EDF (European Development Fund) funding should not contribute to the CBSD activities.

AMENDMENTS

The Committee on Development calls on the Committee on Foreign Affairs as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a regulation

Citation 1 a (new)

Text proposed by the Commission

Amendment

 

Having regard to the Treaty on European Union, in particular Articles 24, 40 and 41(2),

Justification

References to relevant CFSP articles in the treaty

Amendment    2

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1)  The 2005 European Consensus on Development recognised the link between security and development16.

(1)  The 2005 European Consensus on Development recognised the link between security and development16, while highlighting their complementary nature,16 and the 2011 Agenda for Change16 a stressed the correlation between development and security.

__________________

__________________

16 Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus’, OJ C 46, 24.2.2006.

16 Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus’, OJ C 46, 24.2.2006.

 

16 a Communication from the Commission: ‘Increasing the impact of EU Development Policy: an Agenda for Change’, 13 October 2011 (COM(2011) 637 final).

Amendment    3

Proposal for a regulation

Recital 1 a (new)

Text proposed by the Commission

Amendment

 

(1a)  The Union development policy should have as its primary objective the reduction and, in the long term, the eradication of poverty, as clearly stated by Article 208(1) of the Treaty on the Functioning of the European Union (TFEU) and should be based on development effectiveness principles; the funding for the current activities on capacity building in support of security and development (CBSD) established by this Regulation should therefore come from instruments other than the Development Cooperation Instrument (DCI) or the European Development Fund (EDF), in order to maintain those funds primarily for poverty-alleviation and eradication;

Justification

Security instruments must be funded by dedicated budget lines for security. The DCI and EDF must fulfil the treaty-based obligation to be used for poverty eradication.

Amendment    4

Proposal for a regulation

Recital 1 b (new)

Text proposed by the Commission

Amendment

 

(1b)  The Union should take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries, as stated by Article 208 TFEU; therefore, considering that any subordination of development aid and cooperation to security or defence policy is to be imperatively avoided, the external financial instruments, including the Instrument contributing to Security and Peace, are to be implemented in that spirit.

Amendment    5

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(2)  The United Nations’ 2030 Agenda for Sustainable Development, adopted in September 2015, underlines the importance of promoting peaceful and inclusive societies both as a Sustainable Development Goal (SDG 16) and in order to achieve other development policy outcomes. SDG 16.a specifically requests to “strengthen relevant national institutions, including through international cooperation, for building capacities at all levels, in particular in developing countries, for preventing violence and combatting terrorism and crime”.17

(2)  The United Nations’ 2030 Agenda for Sustainable Development, adopted in September 2015, outlines the Sustainable Development Goals (SDGs), the first of which is the eradication of poverty (SDG 1). SDG 16 underlines the importance of promoting peaceful and inclusive societies. SDG 16.a specifically requests to “strengthen relevant national institutions, including through international cooperation, for building capacities at all levels, in particular in developing countries, for preventing violence and combatting terrorism and crime”.17

__________________

__________________

17 United Nations, A/RES/70/1, Resolution adopted by the General Assembly on 25 September 2015

17 United Nations, A/RES/70/1, Resolution adopted by the General Assembly on 25 September 2015

Amendment    6

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(3)  Supporting security sector actors, including the military under exceptional circumstances, in third countries in a conflict prevention, crisis management or stabilisation context is essential to ensure appropriate conditions for poverty eradication and development. Those actions are particularly necessary to ensure the protection of civilian populations in the areas affected by conflict, crises or fragility. Good governance and effective democratic control and civilian oversight of the security system, including the military, as well as compliance with human rights and the rule of law principles are essential attributes of a well-functioning State in any context, and should be promoted through a wider security sector reform support to third countries.

(3)  Security sector reform, including support to armed forces under exceptional circumstances, in third countries in a conflict prevention, crisis management or stabilisation context is essential to ensure appropriate conditions, including good governance for an effective use of development cooperation, whose main goal is poverty eradication. Those actions are particularly necessary to ensure the protection of civilian populations in the areas affected by conflict, crises or fragility. Good governance and effective democratic control and civilian oversight of the security system, including the military, as well as compliance with human rights and the rule of law principles are essential attributes of a well-functioning State in any context. The use of this instrument should be closely monitored and regular updates given to the European Parliament on activities that are financed under its provisions. It should be noted that the duration of this instrument is strictly limited to the end of the current Multiannual Financial Framework, whereupon the Commission should undertake a fully-fledged interdisciplinary evaluation of the actions funded in accordance with the provisions on CBSD established under this Regulation and of relevant instruments used by Member States to fund CBSD. That evaluation should assess the coherence of CBSD actions funded by the Union and its Member States with the EU Global Strategy and the UN Sustainable Development Goals. Any future instruments created to address the security-development nexus should be based on the conclusions of this evaluation, only be undertaken after a wide-ranging, multi-stakeholder public consultation and should facilitate civilian cooperation among the Union, local and regional public or intergovernmental structures as well as NGOs in order to provide support to third countries.

Amendment    7

Proposal for a regulation

Recital 6

Text proposed by the Commission

Amendment

(6)  The Council conclusions on Common Security and Defence Policy (CSDP) of 18 May 2015 called to explore options to enhance coherence and coordination between EU security and development actions, as well as to improve the delivery of capacity building in support of security and development, notably in terms of financing instruments.19 They also invited to develop an EU-wide strategic framework for Security Sector Reform, bringing together CSDP and all other relevant Common Foreign and Security Policy (CFSP) tools as well as development cooperation instruments and freedom, security and justice actors.

(6)  The Council conclusions on Common Security and Defence Policy (CSDP) of 18 May 2015 called to explore options to enhance coherence and coordination between EU security and development actions, as well as to improve the delivery of capacity building in support of security and development, notably in terms of financing instruments.19 They also invited to develop an EU-wide strategic framework for Security Sector Reform, bringing together CSDP and all other relevant Common Foreign and Security Policy (CFSP) tools as well as freedom, security and justice actors.

__________________

__________________

19 Foreign Affairs Council (Defence formation) conclusions on CSDP, document 8971/15 of 18 May 2015

19 Foreign Affairs Council (Defence formation) conclusions on CSDP, document 8971/15 of 18 May 2015

Amendment    8

Proposal for a regulation

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a)  The conclusions of the European Council of 7 and 8 February 2013 specified that at least 90% of the Union’s total external aid should be deemed official development assistance in accordance with the definition established by the OECD’s Development Assistance Committee (DAC). It is therefore vital that, as far as possible, the allocation of funding under the revised Regulation (EU) No 230/2014 reflect that ratio.

Justification

Almost 90% of spending under the Instrument contributing to Stability and Peace (IcSP) currently meets the CAD criteria.

Amendment    9

Proposal for a regulation

Recital 6 b (new)

 

Text proposed by the Commission

Amendment

 

(6b)  The primary objective of the Official Development Assistance (ODA) is not to finance security-related instruments.

Justification

Security instruments must be funded by dedicated budget lines for security. The DCI and EDF must fulfil the treaty-based obligation to be used for poverty eradication.

Amendment    10

Proposal for a regulation

Recital 6 c (new)

Text proposed by the Commission

Amendment

 

(6c)  The Council conclusions1a on the Action Plan on Human Rights and Democracy 2015 - 2019 of 20 July 2015, in particular the annexed EU Action Plan on Human Rights and Democracy and its point 21(c), calls on the Commission, the European External Action Service (EEAS) and the Council to develop and implement, by 2017, a due diligence policy to ensure that the Union’s support to security forces is in compliance with and contributes to the implementation of the Union’s human rights policy and is consistent with the promotion, protection and enforcement of international human rights law and international humanitarian law, as applicable.

 

__________________

 

1a http://data.consilium.europa.eu/doc/document/ST-10897-2015-INIT/en/pdf

Justification

Prior to the entry into force of the amended IcSP regulation it is of crucial importance that a due diligence policy to ensure that EU support to security forces under the new Article 3a is in compliance with the EU human rights policy comes into effect.

Amendment    11

Proposal for a regulation

Recital 6 d (new)

Text proposed by the Commission

Amendment

 

(6d)  As regards the options available within the common foreign and security policy (CFSP), the European Parliament resolution of 22 November 2016 on the European Defence Union pointed out in paragraph 47 to a possible reform of the ATHENA mechanism aiming at enlarging its potential for cost-sharing and common funding, especially with regard to building the capacity of military actors in partner countries (with respect to training, mentoring, advice, provision of equipment, infrastructure improvement and other services). A similar mechanism was developed outside of the Union budget by means of the African Peace Facility.

Justification

It is important to highlight that within CFSP options are available for implementing military capacity building programs in third countries. One of these options could be to reform the ATHENA mechanism as already promoted and supported by a recent European Parliament resolution.

Amendment    12

Proposal for a regulation

Article 1 – paragraph 1 – point 1

Regulation (EU) No 230/2014

Article 1 – paragraph 2 – subparagraph 1a

 

Text proposed by the Commission

Amendment

Where Union assistance is provided to the security sector actors, this may also include military actors under exceptional circumstances as provided for in Article 3a, in particular in the context of a wider security sector reform process and/or capacity building in support of security and development in third countries, in line with the overarching objective of achieving sustainable development.

Where Union assistance is provided to the security sector actors, this may also include military actors under exceptional circumstances as provided for in Article 3a, in particular in the context of a wider security sector reform process and/or capacity building in support of security and development in third countries, in line with sustainable development objectives and the principles of aid effectiveness and policy coherence.

Amendment    13

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – title

 

Text proposed by the Commission

Amendment

Capacity building in support of security and development

Capacity building in the context of security sector reform

Justification

Any measures in the context of the new Article 3a should be part of a broader Security Sector Reform (SSR) initiative in line with the new EU concept on SSR and relevant SSR measures in the contexts of development cooperation instruments. Such measures should focus on reforming relevant governmental structures in a way that parliamentary oversight, civilian control, transparency, accountability and efficiency are strengthened. Article 3a measure should not be understood as crisis response but as components of a medium and long term structural reform policy.

Amendment    14

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – paragraph 2

 

Text proposed by the Commission

Amendment

2.  Assistance may cover in particular the provision of 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.

2.  Assistance shall be eligible to cover 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.

 

Assistance which falls under this Article shall be financed through redeployment within Heading IV of the general budget of the Union for the 2014-2020 multiannual financial framework without mobilising additional resources. Such redeployment shall exclude the use of appropriations allocated to measures under Regulation (EU) No 233/2014 of the European Parliament and of the Council1a

 

__________________

 

1a Regulation (EU) No 233/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for development cooperation for the period 2014-2020

Justification

Parliament asks for a closed positive list of activities eligible for assistance under the IcSP, and recalls that the DCI funds cannot be used to finance CBSD activities.

Amendment    15

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – paragraph 3 – introductory part

 

Text proposed by the Commission

Amendment

3.  Assistance pursuant to this Article shall only be provided:

3.  Assistance pursuant to this Article shall remain exceptional and shall be provided under the following two conditions:

Amendment    16

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – paragraph 3 – point b

 

Text proposed by the Commission

Amendment

(b)  where a consensus exists between the country concerned and the international community and/or the European Union that the security sector, and in particular the military, are key for stability, peace and development, particularly in crises and fragile contexts and situations.

(b)  where a consensus exists between the country concerned and the European Union that the security sector, including the country's armed forces, are key for preserving, establishing or re-establishing the conditions essential for sustainable development.

Justification

The primary objective cannot be shifted towards the stability, peace and the management of crisis without shifting the centre of gravity.

Amendment    17

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – paragraph 4 – point b

 

Text proposed by the Commission

Amendment

(b)  the procurement of arms and ammunition;

(b)  the procurement of arms, spare parts and ammunition or any other equipment designed to deliver lethal force;

Amendment    18

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – paragraph 5

 

Text proposed by the Commission

Amendment

5.  When designing and implementing measures pursuant to this Article, the Commission shall promote ownership by the partner country. It shall also develop the necessary elements and the good practices required for ensuring sustainability in the medium and long term and promote the rule of law and established international law principles.

5.  When designing and implementing measures pursuant to this Article, the Commission and the EEAS shall ensure full complementarity with other Union external assistance instruments as well as consistency with overall external action, including the CFSP, and promote ownership by the partner country. It shall also develop the necessary elements and the good practices required for ensuring sustainability in the medium and long term and promote the rule of law and established international law principles.

Amendment    19

Proposal for a regulation

Article 1 – paragraph 1 – point 2

Regulation (EU) No 230/2014

Article 3a – paragraph 6

 

Text proposed by the Commission

Amendment

6.  The Commission shall establish appropriate risk assessment, monitoring and evaluation procedures for measures pursuant to this Article.

6.  The Commission shall establish appropriate risk assessment, monitoring and evaluation procedures for measures pursuant to this Article and, without delay, shall make that information publicly available. The European Parliament shall always be directly informed.

Amendment    20

Proposal for a regulation

Article 1 – paragraph 1 – point 3

Regulation (EU) No 230/2014

Article 7 – paragraph 1

 

Text proposed by the Commission

Amendment

(3)  In Article 7, paragraph (1) is replaced by the following:

deleted

“1.  Union assistance pursuant to Article 3, and to Article 3a as appropriate, shall be provided through exceptional assistance measures and interim response programmes.”

 

Justification

Decisions with regards to the new Article 3a on military capacity building should not be reached by using the procedures foreseen for Article 3 of this Regulation which are designed for fast track decisions for urgent exceptional assistance measures. The procedure for Article 3 does not involve the European Parliament, whereas the procedure for Articles 4 and 5 does.

Amendment    21

Proposal for a regulation

Article 1 – paragraph 1 – point 4

Regulation (EU) No 230/2014

Article 8 – paragraph 1

 

Text proposed by the Commission

Amendment

1.  Thematic strategy papers shall constitute the general basis for the implementation of assistance pursuant to Articles 4 and 5, and to Article 3a as appropriate. Thematic strategy papers shall provide a framework for cooperation between the Union and the partner countries or regions concerned.

1.  Thematic strategy papers shall constitute the general basis for the implementation of assistance pursuant to Articles 4 and 5, and to Article 3a. Thematic strategy papers shall provide a framework for cooperation between the Union and the partner countries or regions concerned.

Justification

The procedure foreseen for Articles 4 and 5 of this Regulation is the appropriate procedure for the new Article 3a. This procedure guarantees that the Parliaments is involved in the process and that military capacity building measures are designed as so called long term measures which address structural problems in the context of a wider Security Sector Reform effort.

Amendment    22

Proposal for a regulation

Article 1 – paragraph 1 – point 5

Regulation (EU) No 230/2014

Article 10 – paragraph 1

 

Text proposed by the Commission

Amendment

1.   The Commission shall ensure that measures adopted under this Regulation in relation to the fight against terrorism and organised crime, as well as measures covered under Article 3a, are implemented in accordance with international law, including international humanitarian law.

1.  The Commission shall ensure that measures adopted under this Regulation in relation to the fight against terrorism and organised crime, as well as measures covered under Article 3a, are implemented in accordance with the “do no harm” principle as well as with international law, including international humanitarian law and human rights law, and the Union’s due diligence policy to ensure that the Union’s support to security forces is in compliance with and contributes to the implementation of the Union’s human rights policy and is consistent with the promotion, protection and enforcement of international human rights law and international humanitarian law. The Commission shall, without delay, make its relevant assessments publicly available.

Justification

A specific mention needs to be done to the “do not harm” principle and to human rights law.

Amendment    23

Proposal for a regulation

Article 1 – paragraph 1 – point 6 a (new)

Regulation (EU) No 230/2014

Article 13 – paragraph 3 – point b a (new)

 

Text proposed by the Commission

Amendment

 

(6a)  In Article 13(3), the following point is added:

 

‘(ba)   21 percentage points of the financial envelope shall be allocated to measures falling under Article 5;’;

Justification

In Article 13 of this Regulation it is specified that Article 3 measures can consume 70% of the financial envelope and Article 4 measures 9%. In order to make sure that Article 5 continues to receive at least 21% it is important to add this language. Otherwise there is the risk that the new Article 3a consumes not only EUR 100 Million but also funding foreseen, but not properly earmarked, for Article 5.

Amendment    24

Proposal for a regulation

Article 1 – paragraph 1 – point 6 b (new)

Regulation (EU) No 230/2014

Article 13 – paragraph 3 – point b b new

 

Text proposed by the Commission

Amendment

 

(6b)  In Article 13(3), the following point is added:

 

‘(bb)   assistance falling under Article 3a shall be limited to a maximum of EUR 100 000 000.’.

Justification

It is important to guarantee that as a result of the introduction of the new Article 3a on military capacity building, funds available for the already existing Articles 3, 4 and 5 are not being reduced.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Establishing an instrument contributing to stability and peace

References

COM(2016)0447 – C8-0264/2016 – 2016/0207(COD)

Committee responsible

       Date announced in plenary

AFET

12.9.2016

 

 

 

Opinion by

       Date announced in plenary

DEVE

12.9.2016

Rapporteur

       Date appointed

Linda McAvan

10.2.2017

Previous rapporteur

Paavo Väyrynen

Discussed in committee

25.4.2017

29.5.2017

 

 

Date adopted

3.7.2017

 

 

 

Result of final vote

+:

–:

0:

13

8

1

Members present for the final vote

Beatriz Becerra Basterrechea, Ignazio Corrao, Doru-Claudian Frunzulică, Enrique Guerrero Salom, Heidi Hautala, Teresa Jiménez-Becerril Barrio, Arne Lietz, Linda McAvan, Maurice Ponga, Cristian Dan Preda, Lola Sánchez Caldentey, Elly Schlein, Paavo Väyrynen, Bogdan Brunon Wenta, Joachim Zeller, Željana Zovko

Substitutes present for the final vote

Frank Engel, Ádám Kósa, Judith Sargentini

Substitutes under Rule 200(2) present for the final vote

John Stuart Agnew, Jean-Paul Denanot, Estefanía Torres Martínez

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

13

+

PPE

Frank Engel, Teresa Jiménez-Becerril Barrio, Ádám Kósa, Maurice Ponga, Cristian Dan Preda, Bogdan Brunon Wenta, Željana Zovko

S&D

Jean-Paul Denanot, Doru-Claudian Frunzulică, Enrique Guerrero Salom, Arne Lietz, Linda McAvan, Elly Schlein

8

-

ALDE

Beatriz Becerra Basterrechea, Paavo Väyrynen

EFDD

John Stuart Agnew, Ignazio Corrao

GUE/NGL

Lola Sánchez Caldentey, Estefanía Torres Martínez

Verts/ALE

Heidi Hautala, Judith Sargentini

1

0

PPE

Joachim Zeller

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Establishing an instrument contributing to stability and peace

References

COM(2016)0447 – C8-0264/2016 – 2016/0207(COD)

Date submitted to Parliament

5.7.2016

 

 

 

Committee responsible

       Date announced in plenary

AFET

12.9.2016

 

 

 

Committees asked for opinions

       Date announced in plenary

DEVE

12.9.2016

INTA

12.9.2016

BUDG

12.9.2016

 

Not delivering opinions

       Date of decision

INTA

31.8.2016

BUDG

31.8.2016

 

 

Rapporteurs

       Date appointed

Arnaud Danjean

13.12.2016

 

 

 

Legal basis disputed

       Date of JURI opinion

JURI

13.7.2017

 

 

 

Date adopted

11.7.2017

 

 

 

Result of final vote

+:

–:

0:

48

14

4

Members present for the final vote

Lars Adaktusson, Michèle Alliot-Marie, Francisco Assis, Petras Auštrevičius, Bas Belder, Mario Borghezio, Victor Boştinaru, Elmar Brok, Klaus Buchner, James Carver, Fabio Massimo Castaldo, Lorenzo Cesa, Aymeric Chauprade, Javier Couso Permuy, Andi Cristea, Arnaud Danjean, Knut Fleckenstein, Eugen Freund, Michael Gahler, Iveta Grigule, Sandra Kalniete, Tunne Kelam, Janusz Korwin-Mikke, Andrey Kovatchev, Eduard Kukan, Ryszard Antoni Legutko, Arne Lietz, Barbara Lochbihler, Sabine Lösing, Andrejs Mamikins, Alex Mayer, David McAllister, Tamás Meszerics, Francisco José Millán Mon, Javier Nart, Demetris Papadakis, Ioan Mircea Paşcu, Alojz Peterle, Tonino Picula, Julia Pitera, Cristian Dan Preda, Jozo Radoš, Sofia Sakorafa, Jordi Solé, Jaromír Štětina, Charles Tannock, László Tőkés, Miguel Urbán Crespo, Ivo Vajgl, Elena Valenciano, Geoffrey Van Orden, Hilde Vautmans, Anders Primdahl Vistisen, Boris Zala

Substitutes present for the final vote

Brando Benifei, Luis de Grandes Pascual, András Gyürk, Javi López, Marietje Schaake, Eleni Theocharous, Ernest Urtasun, Bodil Valero, Paavo Väyrynen, Marie-Christine Vergiat

Substitutes under Rule 200(2) present for the final vote

Inés Ayala Sender, Ádám Kósa

Date tabled

17.7.2017


FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

48

+

ALDE

 

Petras Auštrevičius, Javier Nart, Jozo Radoš, Marietje Schaake, Ivo Vajgl, Hilde Vautmans

ECR

Bas Belder, Ryszard Antoni Legutko, Charles Tannock, Eleni Theocharous, Geoffrey Van Orden, Anders Primdahl Vistisen

NI

Aymeric Chauprade

PPE

Lars Adaktusson, Michèle Alliot-Marie, Elmar Brok, Lorenzo Cesa, Arnaud Danjean, Michael Gahler, András Gyürk, Sandra Kalniete, Tunne Kelam, Andrey Kovatchev, Eduard Kukan, Ádám Kósa, David McAllister, Francisco José Millán Mon, Alojz Peterle, Julia Pitera, Cristian Dan Preda, László Tőkés, Luis de Grandes Pascual, Jaromír Štětina

S&D

Francisco Assis, Inés Ayala Sender, Brando Benifei, Victor Boştinaru, Andi Cristea, Knut Fleckenstein, Eugen Freund, Javi López, Andrejs Mamikins, Alex Mayer, Demetris Papadakis, Ioan Mircea Paşcu, Tonino Picula, Elena Valenciano, Boris Zala

14

-

EFDD

James Carver, Fabio Massimo Castaldo

GUE/NGL

Javier Couso Permuy, Sabine Lösing, Sofia Sakorafa, Miguel Urbán Crespo, Marie-Christine Vergiat

NI

Janusz Korwin-Mikke

Verts/ALE

Klaus Buchner, Barbara Lochbihler, Tamás Meszerics, Jordi Solé, Ernest Urtasun, Bodil Valero

4

0

ALDE

Iveta Grigule, Paavo Väyrynen

ENF

Mario Borghezio

S&D

Arne Lietz

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Legal notice