Saturday, 31 January 2009

EU development cooperation legislation

The general objectives of European Community (European Union) external action are beautiful, but they need to be put into practice.

In the area of development cooperation the Treaty establishing the European Community spells out how the legislative measures are taken.

The EU Treaty of Lisbon modifies and modernises the current treaty level provisions.

In addition, we present some of the existing secondary legislation for readers interested in EU development cooperation law and policies.


***

Current treaty

Article 179 of the Treaty establishing the European Community (TEC) deals with how the development cooperation objectives are put into practice.

These measures include, but are not restricted to, multiannual programmes. The co-decision procedure applies, so the European Parliament participates on an equal basis as co-legislator.

The European Investment Bank (EIB) contributes to implementation by making funds available.

The special role of cooperation with the African, Caribbean and Pacific countries ACPs) within the framework of the ACP-EC Convention is emphasised treating it separately.

The current Article 179 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/126:

Article 179 TEC

1. Without prejudice to the other provisions of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall adopt the measures necessary to further the objectives referred to in Article 177. Such measures may take the form of multiannual programmes.

2. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1.

3. The provisions of this Article shall not affect cooperation with the African, Caribbean and Pacific countries in the framework of the ACP-EC Convention.


***


Original Lisbon Treaty

Article 2, point 162 of the original Treaty of Lisbon (ToL) amended Article 179 and made it into Article 188e (OJEU 17.12.2007 C 306/94):

162) An Article 188 E shall be inserted, with the wording of Article 179; it shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

‘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.’;

(b) the following new paragraph 2 shall be inserted:

‘2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 10 A of the Treaty on European Union and in Article 188 D of this Treaty.

The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.’;

(c) the current paragraph 2 shall be renumbered ‘3’ and the current paragraph 3 shall be deleted.


***

Consolidated Lisbon Treaty

A few months after the signing ceremony the age of private, semi-private, semi-governmental, governmental and parliamentary consolidations came to an end. The Council had picked up the necessary courage to publish the treaties in a readable form, as amended by the Treaty of Lisbon, and on Europe Day 9 May 2008 the consolidated version was even published in the Official Journal of the European Union.

Had the Council’s initial refusal to publish a consolidation before the new treaty was in force prevailed, we would still be waiting for an ‘official’ consolidation in all official EU languages and a common reference for all EU citizens until the beginning of 2010 at the earliest and possibly eternally.

With joy and gratitude we present Article 188e of the Treaty on the Functioning of the European Union (TFEU ToL), renumbered and reassembled in the consolidated version as Article 209 TFEU, OJEU 9.5.2008 C 115/141:

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.

2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 21 of the Treaty on European Union and in Article 208 of this Treaty.

The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.

3. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1.


***

Lisbon Treaty changes

Here as elsewhere in the Lisbon Treaty the terminology would be improved. The ordinary legislative procedure would take over from the unnamed procedure referred to in Article 251 (generally called co-decision). The formal abolishment of the pillar structure would leave us with just the European Union, instead of the distinction between the EU and the European Community (EC) hardly anyone makes nowadays. These horizontal amendments apply to Article 209 TFEU as well.

The terminology of the Constitutional Treaty would have been even better (‘European laws or framework laws’), but only the citizens of Spain and Luxembourg approved in referenda, whereas the French and the Dutch voters preferred the contents and wording of the Treaty of Nice in 2005.

In substance Article 209 TFEU is the same as Article III-317 of the Constitutional Treaty, although the Lisbon Treaty achieves this in a convoluted way by amending Article 179 TEC.

The first paragraph adds the important category of thematic programmes.

Deleting the third paragraph exception concerning African, Caribbean and Pacific (ACP) countries in the framework of the ACP-EC Convention may contribute to a more global view of development cooperation if the European Development Fund (EDF) is finally integrated into the general budget of the European Union.


***


ACP-EC Partnership Agreement: Cotonou Agreement

The ACP-EC Partnership Agreement was signed in 2000 in Cotonou and it entered into force in 2003. In 2005 the Cotonou Agreement was revised and the revision entered into force on 1 July 2008.

The text of the revised Cotonou Agreement is available here:

http://ec.europa.eu/development/icenter/repository/Cotonou_EN_2006_en.pdf


The Cotonou Agreement is not a development aid programme in a narrow sense, but based on three pillars:

· Development cooperation
· Economic and trade cooperation
· Political cooperation

***

10th European Development Fund (EDF)

The Tenth European Development Fund (EDF) is the main instrument for development cooperation with the ACP countries (as well as the associated overseas countries and territories, OCTs).

The EDF is based on an intergovernmental agreement between the EU member states and it still remains outside the general budget of the European Union.

A presentation of the 10th EDF, allocated 22.7 billion euros for the period 2008 to 2013, is available here:

http://ec.europa.eu/development/how/source-funding/10edf_en.cfm


The Tenth EDF is based on the revised Cotonou Agreement and the Internal Agreement between the Representatives of the Governments of the Member States, meeting within the Council, on the financing of Community aid under the multiannual financial framework for the period 2008 to 2013 in accordance with the ACP-EC Partnership Agreement and on the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty.

The Council has issued an implementing Regulation, officially Council Regulation (EC) No 617/2007 of 14 May 2007 on the implementation of the 10th European Development Fund under the ACP-EC Partnership Agreement, published OJEU 13.6.2007 L 152/1, available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:152:0001:0013:EN:PDF


***

European Investment Bank (EIB)

The current treaty and the Lisbon Treaty refer to the contribution of the European Investment Bank (EIB) to the implementation of development cooperation programmes.

From the home page of the EIB you can access information about the bank’s activities and publications:

http://www.eib.org/


The Statute of the European Investment Bank is annexed as a Protocol to the current TEC as No 11. Although the Lisbon Treaty is not in force, the latest version (and consistent with the Lisbon Treaty numbering of provisions) is Protocol (No 5) on the Statute of the European Investment Bank, OJEU 9.5.2008 C 115/251.

The general treaty level provisions on the EIB are Articles 308 and 309 TFEU.



Ralf Grahn