Proposal for a Council Regulation (EC) on the development and consolidation of democracy and the rule of law and respect for human rights and fundamental freedoms (97/C 282/11) COM(97) 357 final - 97/0191(SYN)

(Submitted by the Commission on 24 July 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 130w thereof,

Having regard to the proposal from the Commission,

Acting in accordance with the procedure laid down in Article 189c of the Treaty,

Whereas Article F.2 of the Treaty on European Union stipulates that the Union respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of European law;

Whereas Article 130u (2) of the EC Treaty requires Community action in the sphere of development cooperation to contribute to the general objectives of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms;

Whereas Community action to promote human rights and democratic principles is guided by belief in the universality and indivisibility of human rights, principles that underpin the international system for the protection of human rights;

Whereas Community action to promote human rights and democratic principles is rooted in the general principles established by the Universal Declaration of Human Rights;

Whereas human rights within the meaning of this Regulation should be considered to encompass respect for international humanitarian law, also taking into account the 1949 Geneva Conventions and the 1977 additional Protocol thereto, the 1951 Geneva Convention relating to the Status of Refugees, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and other acts of international treaty or customary law;

Whereas the resolution on human rights, democracy and development adopted by the Council and the Member States meeting within the framework of the Council on 28 November 1991 sets out guidelines, procedures and practical measures aimed at promoting civil and political freedoms alongside economic and social rights, by means of a representative political system based on respect for human rights;

Whereas Community action to promote human rights and democratic principles is the product of a positive and constructive approach in which human rights and democratic principles are seen as a matter of common interest for the Community and its partners, and as a subject for dialogue that can produce measures to promote respect for these rights and principles;

Whereas this positive approach should be reflected by the implementation of measures in support of democratization, the strengthening of the rule of law and the development of a pluralist and democratic civil society and by confidence-building measures aimed at preventing conflicts, supporting peace initiatives and addressing the issue of impunity;

Whereas the financial instruments used to support positive action in individual countries should be used in a manner consistent with geographical programmes and integrated with other development instruments to maximize their impact and effectiveness;

Whereas these operations should in particular target groups such as children, women, migrants, minorities, displaced persons, indigenous peoples, prisoners and victims of torture;

Whereas Community support for democratization and observance of the principles of the rule of law within a political system respecting the individual's fundamental freedoms helps fulfil the objectives laid down in the agreements concluded by the Community with its partners, in which respect for human rights and democratic principles is an essential element of relations between the parties;

Whereas governments, which bear the main responsibility for building democracy and protecting human rights, are the prime partners for Community action;

Whereas Community action on human rights, democracy and the rule of law requires a stronger identity;

Whereas the quality, impact, visibility and continuity of operations should in particular be safeguarded by providing for multiannual programmes to promote human rights and democratic principles in partnership with the authorities of the country concerned, taking account of its cultural sensibilities and specific needs;

Whereas efficient, consistent and visible action requires the specific characteristics of action on human rights and democratic principles to be reflected in the establishment of flexible, transparent and rapid decision-making procedures for the financing of operations and projects in this field;

Whereas the Community needs to be able to respond rapidly to emergencies or situations of particular importance in order to enhance the credibility and effectiveness of its commitment to the promotion of human rights and democratic principles in countries where such situations arise;

Whereas the procedures for the award of assistance and the evaluation of projects in particular should, with due regard for the Financial Regulation and budget transparency, take account of the special nature of the recipients of Community support in this field, namely the non-profit nature of their activities, the risks run by members who are in many cases volunteers, the sometimes hostile environment in which they operate and the limited room for manoeuvre afforded by their own resources;

Whereas decisions to fund projects to promote human rights and democratic principles must be taken impartially, without racial, religious, cultural, social or ethnic discrimination between bodies receiving Community support and persons or groups targeted by the projects supported, and must not be guided by political considerations;

Whereas procedures should be established for the implementation and administration of aid for the promotion of human rights and democratic principles financed from the Community's general budget,

HAS ADOPTED THIS REGULATION:

CHAPTER I Objectives and general principles of action to promote human rights and democratic principles

Article 1

The Community shall contribute to the implementation of operations to develop and consolidate democracy and the rule of law, including good governance, and promote human rights and fundamental freedoms in accordance with the general conditions laid down in this Regulation.

Article 2

The Community shall in particular support operations aimed at:

(a) promoting economic, social and cultural rights, including trade union rights, together with the civil and political rights proclaimed in the Universal Declaration of Human Rights;

(b) supporting the processes of democratic change, including the holding of free and regular elections; training human rights and election observers;

(c) promoting or strengthening the rule of law, notably through measures to uphold the independence of the judiciary and strengthen it (the administration of justice, treatment of offenders, crime prevention) and for the activities of parliaments and other democratically elected institutions; supporting institutional and legislative reform;

(d) supporting local, national, regional or international institutions involved in the protection or promotion of human rights, including support for ombudsmen, human rights prosecutors and international criminal tribunals; supporting efforts to establish a permanent international criminal court;

(e) promoting pluralist civil society by strengthening the institutions needed to maintain that pluralism, including non-governmental organizations (NGOs); educating and training civil society in democratic principles;

(f) promoting independent, pluralist and responsible media; supporting freedom of expression and a free press;

(g) supporting human rights education, training and awareness campaigns;

(h) promoting equal opportunities and non-discriminatory practices;

(i) promoting administrative accountability and good governance; supporting measures to fight corruption;

(j) supporting confidence-building measures to restore civil peace and conflict-prevention schemes; promoting the observance of international humanitarian law by all parties to a conflict;

(k) supporting national efforts to separate civilian and military functions, training members of the armed, security and police forces and the staff of judicial and penal institutions and raising their awareness of human rights; supporting efforts to reintegrate demobilized troops into civilian life;

(l) protecting and promoting the human rights of target groups, in particular children, women, migrants, displaced persons, prisoners and victims of torture, violence or armed conflict; supporting action against different forms of exploitation or trafficking in human beings, and in particular women and children;

(m) protecting members of ethnic, religious or linguistic minorities, and in particular their rights and cultural identities;

(n) protecting indigenous peoples, their rights and cultures.

Article 3

The Community may also finance:

- public awareness and information campaigns, meetings of experts, seminars, conferences and congresses aimed at increasing understanding of human rights issues and Community action in the field,

- the technical assistance necessary for the implementation of projects receiving Community support, including the exchange of technical know-how and experience between European organizations and bodies in third countries,

- preparatory feasibility studies and monitoring, auditing and evaluation of Community operations,

- costs arising from the evaluation of tenders and the preparation of projects,

- general studies concerning the Community's action within the scope of this Regulation,

- the cost of purchasing and/or delivering any product or equipment and employing any expatriate or local staff strictly necessary for the implementation of operations,

- any other expenditure related to the implementation of operations, including the visibility of the aid granted.

CHAPTER II Procedures for the implementation of aid to promote human rights and democratic principles

Article 4

1. The partners eligible for financing within the meaning of this Regulation are regional and international organizations, non-governmental organizations, national, regional and local authorities and official agencies, community-based organizations and public- or private-sector institutes and operators.

2. Operations financed by the Community within the meaning of this Regulation shall be implemented by the Commission either at the request of a partner referred to in paragraph 1 or on its own initiative.

Article 5

To be eligible for Community aid, the partners referred to in Article 4 (1) must have their main headquarters in a Member State of the Community or in a third country eligible for Community aid within the meaning of this Regulation. Such headquarters must be the effective decision-making centre for all operations financed within the meaning of this Regulation. Exceptionally, the headquarters may be in another third country.

Article 6

Without prejudice to the institutional and political environment in which the partners referred to in Article 4 (1) operate, the following factors shall in particular be considered when determining a body's suitability for Community funding:

(a) its experience in the field of promoting human rights and democratic principles;

(b) its administrative and financial management capacities;

(c) its technical and logistical capacity in relation to the planned operation;

(d) the results, where relevant, of any previous operations carried out, in particular those financed by the Community;

(e) its capacity to build up a working relationship with other elements of civil society in the third country concerned;

(f) its commitment to defending, respecting and promoting human rights and democratic principles in a non-discriminatory manner.

Article 7

1. Aid shall not be allocated to the partners referred to in Article 4 (1) unless they undertake to comply with the allocation and implementation conditions laid down by the Commission, to which they shall be contractually bound.

2. Activities aided by the Community shall be implemented in accordance with the objectives laid down in the Commission financing decision.

3. Community financing pursuant to this Regulation shall take the form of grants.

4. Where operations financed pursuant to this Regulation are the subject of financing agreements between the Community and the recipient countries, such agreements shall stipulate that taxes, charges and customs duties are not to be borne by the Community.

Article 8

1. Participation in invitations to tender and the award of contracts shall be open on equal terms to natural or legal persons of the Member States and the host country. It may be extended to other countries in exceptional and duly justified cases.

2. Supplies shall originate in the Member States or the host country. They may originate in other countries in exceptional and duly justified cases.

Article 9

1. In the interests of consistency and complementarity and in order to maximize the overall effectiveness of operations, the Commission may take any coordination measures necessary, and in particular:

(a) introduce a system for the exchange and systematic analysis of information on operations financed or considered for financing by the Community and the Member States;

(b) coordinate the implementation of operations on the spot by means of regular meetings for the exchange of information between the representatives of the Commission and the Member States in the recipient country.

2. The Commission may take any steps necessary to ensure that the operations referred to in Article 1 are coordinated and consistent with those of international and regional organizations and bodies.

CHAPTER III Procedures for the implementation of operations to promote human rights and democratic principles

Article 10

The Commission shall appraise, decide on and administer, monitor and evaluate operations pursuant to this Regulation in accordance with the budgetary and other procedures in force, and in particular those laid down in the Financial Regulation applicable to the general budget of the European Communities. It shall lay down the conditions for allocating, mobilizing and implementing aid pursuant to this Regulation.

Article 11

1. The following shall be adopted according to the procedure laid down in Article 12:

- decisions on operations for which financing within the meaning of this Regulation exceeds ECU 2 million and any modification to such operations leading to an increase of more than 20 % in the sum initially agreed,

- programmes intended to provide a coherent framework for action in a given country or region or in a specific field where the scale and complexity of the needs identified are such that they seem likely to continue.

2. The Commission shall notify the Committee referred to in Article 12 of financing decisions that it intends to take concerning projects and programmes costing less than ECU 2 million. Notice shall be given at least a week before the decision is taken.

Article 12

1. The Commission shall be assisted by an advisory committee, hereinafter referred to as 'the Committee`, composed of representatives of the Member States and chaired by the representative of the Commission.

2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the Chairman may lay down according to the urgency of the matter, if necessary by taking a vote. The opinion shall be recorded in the minutes; in addition each Member State shall have the right to ask to have its position recorded in the minutes. The Commission shall take the utmost account of the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.

Article 13

1. The Commission may adopt emergency measures to respond effectively to urgent and unforeseeable needs where these arise from:

- the sudden suspension of the democratic process or the emergence of a state of crisis or exceptional and imminent danger affecting all or part of the population of a country and posing a grave threat to the fundamental rights and freedoms of the individual,

- specific situations that are sensitive in terms of the observance of democratic rules, the principles of the rule of law and fundamental freedoms.

2. Where operations fulfil these conditions:

- the Commission shall adopt its decision,

- it shall inform the Member States in writing forthwith.

Article 14

Once a year the Committee referred to in Article 12 shall discuss general guidelines presented by a representative of the Commission for operations within the meaning of this Regulation to be undertaken in the year ahead and examine any general or specific issues concerning Community aid in the field.

Article 15

The Commission shall regularly evaluate operations financed by the Community within the meaning of this Regulation in order to establish whether they have achieved their objectives and to produce guidelines for improving the effectiveness of subsequent operations. The Commission shall submit to the Committee a summary of the evaluation exercises carried out that it might, if necessary, examine. The evaluation reports shall be available to the Member States on request.

Article 16

All contracts or financing agreements concluded pursuant to this Regulation shall provide in particular that the Commission and the Court of Auditors may conduct checks on the spot and at the headquarters of the partners referred to in Article 4 (1) according to the usual procedures established by the Commission under the rules in force, and in particular those of the Financial Regulation applicable to the general budget of the European Communities.

Article 17

1. At the close of each financial year, the Commission shall submit an annual report to the European Parliament and to the Council with a summary of the operations financed in the course of that year.

The summary shall contain information concerning the agencies with which the operations referred to in Article 1 have been implemented.

The report shall also include a review of any external evaluation exercises which may have been conducted on specific operations.

2. Within a month of its decision, the Commission shall notify the Member States of operations and projects approved, indicating the sums, the nature of the operation, the recipient country and the partners involved.

Article 18

Three years after the entry into force of this Regulation the Commission shall report to the European Parliament and to the Council, giving an overall evaluation of the operations financed by the Community within the meaning of the Regulation, together with suggestions as to its future and proposals for any necessary amendments.

Article 19

This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.