Communication from the Commission to the European Parliament and the Council - Mid-term review of the financial instruments for external actions {SEC(2009) 530}
Date: 2009-04-21
Institutions: European Commission
Subjects: EU aid, EU relations, aid system, cooperation policy, development aid, financial instrument, foreign policy

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.4.2009 
COM(2009) 196 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Mid-term review of the financial instruments for external actions 

{SEC(2009) 530} 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL  

Mid-Term Review of the Financial Instruments for External Actions 

1. 

THE REFORM OF THE FINANCIAL INSTRUMENTS 

Recent  reform  of  the  financial  instruments  for  external  actions  has  successfully  streamlined 
more than 30 different ad hoc legal acts into four geographic and four thematic instruments, 
plus  a  series  of  thematic  programmes.1  This  major  rationalisation  and  simplification  has 
brought huge benefits in terms of: 

–  ensuring  overall  policy  coherence,  consistency,  and  synergy  between  the  Union’s  main 
external  relations  tools  (political  dialogue,  trade,  aid,  economic  cooperation,  external 
projection of internal policies, and multilateralism);  

–  streamlining  procedures  to  make  aid  programming,  delivery,  and  crisis  response  more 

effective, efficient and flexible; and 

–  facilitating dialogue and coordination with beneficiaries, between the institutions, and with 

other donors. 

The new architecture has put in place, for the first time, a set of comprehensive cooperation 
frameworks  under  a  number  of  focused  Regulations,  which  are  coordinated  with  and 
complemented by EIB operations, CFSP/ESDP operations, and macro-financial assistance. 

The  new  instruments  are  being  implemented  through  Country  Strategy  Papers,  Regional 
Strategy Papers, Thematic Strategy Papers and, for the IPA, Multi-annual Indicative Planning 
Documents.  These  programming  documents,  accompanied  by  multi-annual  financial 
allocations, allow clear commitment and delivery of aid in partnership with the beneficiaries.  

2. 

THE MID-TERM REVIEW CLAUSE IN THE FINANCIAL INSTRUMENTS 

The  seven  new  Regulations  (not  the  Humanitarian  Aid  Regulation)  all  contain  a  clause 
requiring the Commission to submit a report on their implementation by 31 December 2010, 
and to propose any necessary amendments. This evaluation explicitly includes the indicative 
financial allocations set out in Annex IV of the DCI and the financial breakdown referred to 
in Article 29(1) of the ENPI. 

Although  the  clause  sets  a  deadline  of  31  December  2010,  in  final  negotiations  before  the 
instruments were adopted, the Commission agreed — at Parliament’s request — to carry out 
the  review  before  the  2009  European  Parliament  elections  and  to  take  Parliament’s  reports 
and recommendations into account.  

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The  instruments  concerned  are  the  Development  Cooperation  Instrument  (DCI),  the  European 
Neighbourhood  and  Partnership  Instrument  (ENPI),  the  European  Instrument  for  Democracy  and 
Human  Rights  (EIDHR),  the  Instrument  for  Stability  (IfS),  the  Instrument  for  Cooperation  with 
Industrialised  Countries  (ICI),  the  Instrument  for  Nuclear  Safety  Cooperation  (INSC),  the  Instrument 
for  Pre-accession  Assistance  (IPA)  and  the  Humanitarian  Aid  Regulation.  The  Humanitarian  Aid 
Regulation was not amended. 

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This mid-term review (MTR) covers the legal instruments only. Parliament recommendations 
not  affecting  the  legal  texts  will  be  considered  in  the  mid-term  review  of  the  strategy  and 
programming documents. That review will assess performance so far and update the strategies 
in the light of developments in partner countries. Particular attention will be paid at that point 
to civil society participation and  aid effectiveness. The review process and updated strategy 
papers,  together  with  multi-annual  indicative  programmes  allocating  the  budget  for  2011-
2013 by sector, are expected to be completed by the end of 2009. The IPA is governed by a 
different  strategy  and  programming  framework  which  covers  a  rolling  three–year  period 
updated annually in line with the Enlargement Strategy Paper.  

Financial envelopes are considered only in terms of whether they comply with the reference 
amounts  and  indicative  allocations  set  out  in  the  legal  instruments.  The  MTR  does  not 
prejudge the budget review to be presented later this year or the annual budgetary procedure. 

It  aims  to  verify  that  the  instruments  are  meeting  the  objectives  set  for  the  reform,  partly 
through major simplification. Simplification being an ongoing process, the Commission will 
also  consider  the  scope  for  further  improvements,  including  amendments  to  the  Financial 
Regulation, in particular as regards the control environment.  

This Communication is accompanied by:  

–  a Commission staff working paper reporting in more detail on the individual instruments;  

–  legislative  proposals,  where  the  Commission  has  concluded  from  the  review  that  certain 

amendments are necessary.  

3. 

FINDINGS REQUIRING LEGISLATIVE PROPOSALS 

3.1 

The need to fill the legislative gap 

To  ensure  that  the  objectives  of  the  policies  and  the  new  instruments  are  consistent  and 
coherent with the overall direction of EU policy, the Commission committed itself to entering 
into a policy strategy dialogue with the Council and Parliament. This dialogue was enshrined 
in  Declaration  Nos  4  and  5  on  ‘Democratic  scrutiny  and  coherence  of  external  actions’ 
annexed  to  the  Interinstitutional  Agreement  on  budgetary  discipline  and  sound  financial 
management (IIA).2  

Dialogue followed in 2007 on the draft strategy papers submitted to Council and Parliament 
for  the  implementation  of  the  various  instruments.  For  the  IPA,  dialogue  takes  place  on  an 
annual basis. Overall, the new instruments have fulfilled the objectives set in the reform of the 
external action financial instruments (see working paper).  

The  main  issue  raised  during  the  scrutiny  process  concerned  the  Development  Cooperation 
Instrument  (DCI),  where  Parliament  took  the  view  that  some  of  the  actions  programmed 
under the geographic programmes were not eligible under the DCI Regulation. It considered 
that either they were not sufficiently geared to the eradication of poverty and the Millennium 
Development  Goals  or  they  did  not  fulfil  the  criteria  for  Official  Development  Assistance 
(ODA) as required under Article 2(4). Parliament adopted four resolutions signalling that, in 

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OJ C 139, 14.6.2006, p. 1. 

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its  view,  the  Commission  had  exceeded  its  implementing  powers,  and  calling  for  the 
withdrawal of the measures.  

At  the  same  time,  the  budget  authority  launched  four  preparatory  actions  in  2007  and  2008 
aimed at supporting non-ODA measures that cannot be financed under the DCI: 

–  business and scientific exchanges with China 

–  business and scientific exchanges with India 

–  cooperation with middle-income countries in Asia 

–  cooperation with middle-income countries in Latin America. 

Indeed,  with  the  rise  of  emerging  economies,  in  particular  China,  India  and  Brazil,  and  the 
intensification of EU relations with several dynamic developing-country partners, having the 
scope  to  fund  measures  going  beyond  ODA  in  these  countries  is  becoming  increasingly 
important.  

Parliament also objected to using the DCI to finance the European mobility component of the 
Erasmus Mundus External Cooperation Window Programme (EMECW) on the grounds that it 
would not meet the criteria for ODA eligibility. So as not to jeopardise the whole programme, 
the  Commission  agreed  to  exclude  such  funding  from  the  DCI  from  2010  onwards,  and  to 
find a legislative solution in the framework of the mid-term review.  

It  follows  from  these  limitations  that,  while  the  DCI  Regulation  should  remain  the  main 
cooperation framework for these countries, the financial architecture for external actions lacks 
a legal basis for financing such measures. It is proposed to fill this gap within the current legal 
and  budgetary  constraints  for  2007-2013  by  amending  the  ICI  Regulation  to  extend  its 
coverage  to  the  DCI  countries.  This  amendment  is  limited  in  scope  in  terms  of  its  policy 
content, budgetary implications and time frame. It does not prejudge any future proposal on 
external cooperation financial instruments under the next financial framework.  

Based  on  experience  of  the  Preparatory  Actions,  the  Commission  proposes  legislative 
follow up to allow the financing of measures other than Official Development Assistance 
in countries falling under the DCI Regulation. 

3.2 

Other required legislative amendments 

The mid-term review of the financial instruments has identified the need to proceed with two 
further sets of amendments. 

3.2.1 

Instrument for Stability (IfS) 

The IfS is the newest and most innovative financial instrument, introduced with the objective 
of enabling a consistent and integrated response to crises and impending crises, using a single 
legal instrument with simplified decision-making procedures. It also has considerably greater 
financial  resources  than  its  pilot  predecessor,  the  Rapid  Reaction  Mechanism.  Although  the 
instrument is clearly fulfilling its objective, a number of limited amendments are required. 

•  Objectives and scope 

On 20 May 2008, the European Court of Justice annulled Council Decision 2004/833/CFSP 
of  2  December  2004  implementing  Joint  Action  2002/589/CFSP  in  the  framework  of  the 

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moratorium on small arms and  light weapons.3 The Court held that  measures to combat  the 
proliferation  of  small  arms  fall  within  the  competences  conferred  on  the  Community  in  the 
field of development policy and cannot be pursued as part of the CFSP if their main aim or 
component relates to development policy. This view was not shared by the Council when the 
IfS  was  adopted  in  November  2006,  and  Article  3(2)(i)  of  the  Regulation  includes  the 
following restriction: 

‘Assistance […] shall not include support for measures to combat the proliferation of arms’. 

When  the  IfS  Regulation  was  adopted,  the  Council  and  the  Commission  issued  a  joint 
statement  in  which  they  agreed  that,  as  part  of  the  mid-term  review  of  the  Regulation,  the 
scope of Article 3(2)(i) would be revised as necessary. In view of its clear wording excluding 
such financing, it is proposed to revise the Article to bring it into line with the case law of the 
Court. For the same reason, Article 4(1)(a) on action in support of the fight against the illicit 
trafficking should be amended to refer explicitly to ‘small arms and light weapons’. 

It is proposed to amend Article 3(2)(i) and 4(1)(a) in the light of the Court’s rulings and 
to  abolish  the  restriction  on  support  for  measures  to  combat  the  proliferation  of  small 
arms and light weapons.  

•  Participation and rules of origin 

Some  difficulties  have  been  encountered  in  implementing  measures  under  Article  4(3) 
relating to pre- and post-crisis capacity building. Many of these measures entail issuing calls 
for  proposals  for  peace-building  partnership  support  (civil  society  capacity-building;  civil 
society early warning and field-based analysis activities on conflict prevention; and pro-active 
policy  advice  from  civil  society).  Under  Article  17,  on  participation  and  rules  of  origin, 
partners from OECD countries that do not belong to the EU or the European Economic Area 
are not eligible for the award of procurement or grant contracts under Article 4(3) on pre- and 
post-crisis  capacity  building,  but  no  such  restriction  exists  for  contracts  under  Article  3  on 
crisis response. This  excludes  countries such  as Switzerland and Canada  from participation, 
although  excellent  proposals  have  been  received  from  these  countries.  It  poses  a  serious 
setback to the potential quality of action, and the attainment of the objectives of Article 4(3), 
which are closely linked to those pursued under Article 3.  

It  is  proposed  to  insert  a  technical  amendment  to  Article  17  in  order  to  open  up 
participation  in  the  award  of  procurement  or  grant  contracts  for  measures  under 
Article 4(3), as is already the case for measures under Article 3. 

•  Financial provisions 

The  Regulation  limits  the  share  of  the  budget  allocation  for  measures  under  Article  4(1) 
concerning  threats  to  law  and  order,  the  security  and  safety  of  individuals,  critical 
infrastructure and public health to 7%. This percentage has proven inadequate and needs to be 
increased. Developing effective actions in these areas requires more substantial measures to 
give them real impact, visibility and credibility. In addition, developing trans-regional actions 
which are complementary to national and regional envelopes requires an appropriate level of 
funding  to  reach  critical  mass.  The  budgetary  allocations  so  far  subject  to  the  7%  limit  in 
Article 24 of the IfS Regulation do not allow these objectives to be met.  

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ECJ, Case C-91/05 (ECOWAS). 

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It is proposed to amend Article 24 to increase the maximum share of measures under 
Article 4(1) from 7% to 10%.  

3.2.2 

Taxes, duties and charges under the DCI and EIDHR Regulations 

The main difficulties encountered in implementing programmes and projects are linked to the 
payment  of  taxes,  duties  and  charges  under  the  DCI  and  the  EIDHR  Regulations.  The 
flexibility  inserted  in  the  other  instruments  is  required  —  in  exceptional  cases  and  duly 
justified  circumstances  —  to  allow  the  payment  of  taxes,  duties  and  charges.  This  is 
particularly important where projects or programmes are implemented by NGOs which may 
be  obliged  to  subcontract  specific  works  or  service  activities  to  the  private  sector. 
Furthermore,  one  of  the  fundamental  principles  of  the  EIDHR,  which  works  mainly  with 
NGOs,  is  its  independence  from  the  consent  of  third  country  governments  and  other  public 
authorities. In this context, insistence on the ineligibility of payment of taxes and duties has 
proven to be problematic in practice.  

It is therefore important to harmonise the wording of Article 13(6) of the EIDHR and Article 
25(2)  of  the  DCI  with  the  corresponding  provisions  of  the  other  external  action  financial 
instruments  as  follows:  ‘Community  financing  shall,  in  principle,  not  be  used  for  paying 
taxes, duties or charges in beneficiary countries’. The ICI Regulation has a different wording 
which is not problematic, but it is proposed to align that too for the sake of consistency.  

The  internal  guidelines  for  all  instruments  will  ensure  that  this  flexibility  is  limited  and 
applied consistently by clarifying that exceptions can only be made in individual cases under 
exceptional circumstances.  

It  is  proposed  to  harmonise  the  EIDHR  and  DCI  Regulations  with  the  other 
instruments as regards payment of taxes, duties and charges.  

4. 

OTHER MAIN FINDINGS 

The  Commission  considers  that,  overall,  the  regulations  are  adequate  and  do  not  require 
amendments  other  than  those  proposed.  No  major  problems  have  been  encountered  in 
programming.  Although  it  is  too  early  yet  to  evaluate  the  impact  of  the  activities, 
implementation  is  now  ongoing  without  serious  difficulties.  The  record  2008  budget 
implementation  of  commitments  and  payments  and  the  fact  that  outstanding  commitments 
have not risen in spite of the increase in commitments are indicators of the pace of delivery.  

4.1 

The European Neighbourhood and Partnership Instrument (ENPI) 

The scope and objective of the ENPI, as a policy-driven instrument, have proven adequate to 
support  the  European  Neighbourhood  Policy  (ENP).  Country  programming  documents  are 
mainly  geared  to  supporting  the  implementation  of  the  ENP  action  plans.  Multi-country 
programmes support the policy’s regional dimensions (the Eastern Partnership, the Union for 
the  Mediterranean,  and  Black  Sea  Synergy).  The  innovative  cross-border  cooperation 
component was launched within the limit of 5% of the reference amount set in the Regulation. 
The Commission has also programmed funds with a view to devoting up to 3% of the funding 
for our neighbours to areas concerning or related to migration.  

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The fact that the Regulation does not unambiguously allow ‘revolving funds’ to be set up is a 
problem when it comes to supporting private sector and SME development under the Facility 
for  Euro  Mediterranean  Investment  and  Partnership  (FEMIP)  or  the  Neighbourhood 
Investment  Facility  (NIF).  A  legislative  amendment  to  address  this  issue  was  proposed  last 
year.4  

A  second  concern  relates  to  the  need  for  the  ENPI  to  respond  to  crises  which  require 
additional resources. Point 37 of the Interinstitutional Agreement allows an increase by more 
than 5% of the legislative financial envelope if ‘new, objective, long term circumstances arise 
for  which  explicit  and  precise  reasons  are  given’.  The  Commission  considers  that  this 
particular  provision  applies  in  connection  with  events  in  the  occupied  Palestinian  territories 
and in Georgia, for which the budget authority has approved significant reinforcements.  

The  Commission  takes  note  of  Parliament’s  resolution  on  the  review  of  the  European 
Neighbourhood  and  Partnership  Instrument.5  It  broadly  agrees  with  most  of 
the 
recommendations and will take due account of them when reviewing the strategy documents. 

On  the  whole,  the  ENPI  Regulation  appears  adequate  to  sustain  cooperation  with 
neighbouring countries provided that the legislative authority adopts the amendment proposed 
in May 2008 as regards the option of using revolving funds. Without this option, achievement 
of  the  objectives  will  be  seriously  hampered.  The  budget  authority  should  also  be  aware  of 
potential crisis-related needs, for which it may become necessary to fall back on the flexibility 
mechanisms provided in the IIA.  

4.2 

The Instrument for Pre-Accession Assistance (IPA) 

The IPA Regulation is proving fully adequate in successfully steering candidates and potential 
candidates  towards  EU  membership.  Streamlining  the  five  former  Regulations6  within  a 
single  framework,  but  with  different  components,  allows  programming  and  delivery  of 
coherent, tailor-made assistance to each beneficiary country. The ‘Transition Assistance and 
Institution Building’ component allows progressive alignment with EU standards and policies. 
The  ‘Cross–Border  Cooperation’  component  has  simplified,  compared 
to  previous 
instruments,  programming  and  implementation,  which  now  take  place  under  a  single  set  of 
rules and a single budget applying on both sides of the border, including at borders with EU 
Member States. Finally, the ‘Regional Development’, ‘Human Resources Development’ and 
‘Rural  Development’  components  are  preparing  candidate  countries  (through  ‘learning  by 
doing’)  for  the  implementation  and  management  of  cohesion,  structural  and  rural 
development funds upon accession.  

Programming has smoothly taken over from the five previous instruments and implementation 
started  in  the  course  of  2008.  Delivery  against  the  declared  objectives  is,  so  far,  essentially 
visible  in  terms  of  governance  effects  produced  by  the  IPA  programming  exercise.  All 
beneficiary  countries  have  made  progress  towards  assuming  greater  responsibility  for  and 
ownership of the management of IPA programmes, in accordance with the principles of sound 
financial management and in full compliance with the Financial Regulation. 

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COM/2008/308, 21.05.2008. 
P6-TA(2009)0078, 19.02.2009. 
PHARE, ISPA, SAPARD, the Turkish pre-accession instrument, and CARDS. 

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Programming  has  so  far  allowed  important  initiatives  (such  as  the  Infrastructure  Projects 
Facility,  the  Energy  Efficiency  Facility,  and  the  European  Fund  for  South  East  Europe  for 
small  businesses  development)  and  education  programmes  (Erasmus  Mundus,  Youth  in 
Action,  Tempus)  to  be  launched  or  reinforced,  and  regional  cooperation  initiatives  (e.g. 
Regional  Cooperation  Council,  Regional  School  of  Public  Administration,  disaster  risk 
reduction, cultural heritage rehabilitation, the Central European Free Trade Agreement) to be 
developed  further,  in  addition  to  encouraging  civil  society  development  and  dialogue  (Civil 
Society Facility). Around one third of the TAIB envelope has been programmed to enhance 
governance, encourage administrative and judicial reform, strengthen the rule of law, support 
the  fight  against  corruption  and  organised  crime,  promote  human  rights  and  develop  civil 
society. 

The financial envelope is, so far, deemed adequate although some additional resources have 
been  necessary  to  address  Kosovo’s  needs  (under  UNSCR  1244/1999).  In  the  absence  of 
major changes of circumstances in the beneficiary countries, it should be possible to deliver 
on the political commitments and keep up the momentum of the enlargement process within 
the 5% flexibility of the legislative financial envelope. Possible changes in the status of IPA 
countries  from  potential  candidate  to  candidate  would  require  the  Annexes  to  the  Council 
Regulation to be adapted using the procedure provided for in Article 23 of the IPA.  

4.3 

The Development Cooperation Instrument (DCI) 

The Development Cooperation Instrument (DCI) has proven able to respond to the objectives 
set in terms of coherence, effectiveness, and efficiency. The first wave of strategy papers and 
the  first  three  years  of  Annual  Action  Programmes  (AAPs)  were  drafted  based  on  donor 
coordination,  dialogue  with  partner  countries  and  participation  by  civil  society.  Besides  the 
need to cover non-ODA activities under another legislative instrument, and the tax issue, no 
major issues have emerged and it is expected that implementation will continue smoothly. As 
regards  the  financial  envelope,  based  on  the  final  budgets  for  2007  and  2008  and  the  2009 
Budget it appears that the reference amount of EUR 16 897 million has increased by EUR 239 
million  (+  1.4%).  Most  of  the  increase  (EUR 176  million)  stems  from  the  environment  and 
energy thematic programme to tackle international challenges linked to climate change. The 
other programmes are in line with the indicative financial allocations set out in Annex IV of 
the  Regulation,  with  the  geographic  programmes  benefiting  from  the  rest  of  the  increase 
(EUR 60 million).  

The  adoption  of  the  DCI  Regulation  was  accompanied  by  a  Commission  Declaration  on 
Article 5 of the DCI relating to geographic programmes, in which the Commission reaffirmed 
that the eradication of poverty  and the pursuit of the Millennium Development Goals are at 
the  core  of  the  primary  objectives  of  its  development  assistance.  The  35%  benchmark  on 
social infrastructure and services has been superseded, but the Commission’s commitment is 
to  continue  reporting  annually  on  actual  expenses  in  these  sectors.  The  Commission  has 
further  committed  itself  to  prioritising  basic  health  and  education  through  the  20% 
benchmark.  The  Commission  took  this  into  account  in  its  dialogue  with  recipient 
countries/regions and does not foresee any difficulties in achieving that target. In 2007, direct 
support for basic and secondary education and basic health already accounted for some 17% 
of  total  commitments  under  the  relevant  geographic  programmes,  even  without  including 
general  budget  support  linked  to  these  sectors.  The  follow-up  on  that  benchmark  has  been 
included in the Annual Report on EC External Assistance.  

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4.4 

The  European  Instrument  for  Democracy  and  Human  Rights  (EIDHR),  the 
Instrument  for  Stability  (IfS),  the  Instrument  for  Nuclear  Safety  Cooperation 
(INSC),  and  the  Instrument  for  Cooperation  with  Industrialised  and  other 
High-income Countries and Territories (ICI) 

As regards these four instruments, no problems have been encountered in policy formulation 
and  the  Regulations  have  proven  adequate  to  support  the  policy  objectives  (except  for  the 
requested amendments on the IfS and for the tax issue for EIDHR dealt with in section 3.2). 
From  2011,  the  ICI  will  include  support  for  the  development  of  transatlantic  methods  for 
handling global challenges which now takes the form of a pilot project started at the initiative 
of  Parliament.  This  will  not  require  a  change  in  the  reference  amount.  However,  a  separate 
financial envelope will be added to the amended ICI Regulation relating to its extension to the 
DCI countries.  

Finally,  the  Commission  is  also  respecting  its  commitment  to  limit  electoral  observation 
missions to no more than 25% of the total available EIDHR funds over the period 2007-2013.  

5. 

CONCLUSION  

The  new  architecture  of  external  action  financial  instruments  fully  meets  the  objective  of 
supporting  EU  policies  and  cooperation  with  more  efficient  and  coherent 
tools. 
Implementation  so  far  has  been  smooth  and  the  Commission  is  fully  meeting  the  various 
commitments made in the negotiations leading to the adoption of the Regulations.  

The Commission has nevertheless identified a small number of problems requiring legislative 
action and invites the European Parliament and the Council to adopt the following proposals: 

•  the amendment to the ICI Regulation to allow financing measures for non-ODA activities 

in DCI countries; 

•  the amendments to the IfS Regulation; 

•  the amendment to the DCI and EIDHR Regulations aligning the wording on taxes, duties 

and charges; 

•  the amendment to the ENPI Regulation giving the option of setting up revolving funds; this 

proposal was submitted in May 2008.  

In  case  an  agreement  on  bananas  would  be  reached  over  the  coming  weeks  within  the 
framework of the WTO, this may require supporting measures in main ACP banana exporting 
countries,  for  which  the  Commission  would  propose  an  adjustment  of  the  DCI  at  the 
appropriate time. 

To  be  able  to  put  the  necessary  changes  into  effect,  the  Commission  would  hope  that  these 
proposals will enter into force at the beginning of 2010. 

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