The EU’s new security funds will be subject to some measure of democratic scrutiny and oversight, and there will be some transparency regarding the projects and activities that are funded. This is largely restricted to the provision of information on spending and results, however, while democratic participation in setting priorities is strictly limited. For the most part, it will be the preserve of state officials to determine how the funds are spent – elected representatives and CSOs are only granted a post-facto oversight role.
Setting priorities and making decisions
It is vital that funds designed to bolster state security powers are subject to meaningful democratic scrutiny, oversight and input – a role that, in this case, should fall primarily to the European Parliament, as well as national parliaments. The role of civil society – in particular, journalists and human rights organisations – is also key in scrutinising public spending. While there are roles foreseen for both CSOs and the European Parliament in the legislation underpinning the EU’s new security funds, they are limited.
The European Parliament and national parliaments do, of course, have a say in the overall design of the majority of the funds. The European Parliament was co-legislator with regard to the rules on the AMF, IBMF, ISF, the European Defence Fund and Horizon Europe, which contains the European security research programme (it was, however, excluded from decision-making over the European Peace Facility, due to that budget’s legal basis). In these cases, it was also possible for national parliaments to provide opinions, for CSOs to lobby governments as well as both national and European representatives, and for other organisations to make their voices heard – for example, the European Economic and Social Committee and the Committee of the Regions, alongside the extensive corporate and industrial lobby that plagues Brussels.
Planning and preparation
Beyond this point, there is little role for democratic bodies and civil society. The European Commission is obliged to ‘engage with civil society organisations and relevant networks’ when it prepares the annual work programmes, setting out spending priorities and themes, for the AMF, IBMF and ISF. However, those funds are also excluded from rules applicable to other EU budgets that require a partnership agreement between the state and a whole range of actors, from regional and local authorities, to trade unions, CSOs and universities, among others – the intention being to canvass as broad a range of views as possible in the drafting of national spending plans. This does not prevent the member states from undertaking such consultations, but there is no requirement to do so in relation to the funds for policing, border control, migration and asylum.
The sole exception to this exclusion of the European Parliament comes in the ISF legislation, the Commission ‘shall endeavour to take into account’ its recommendations on actions to be supported by the thematic facility.
The rules for Horizon Europe are somewhat more inclusive – although not with regard to the aspects of the research programme dealing with new security technologies. There are requirements for the European Commission to undertake ‘extensive exchanges with the European Parliament’ and ‘consultation with stakeholders and the general public’ when drawing up strategic research plans. These will, however, generally focus on areas other than security research, where the agenda has long been dominated by the interests of states and corporations. Determining the priorities of and actions to be funded by the European Defence Fund and European Peace Facility, meanwhile, will remain matters of state – the European Parliament and civil society are granted no role whatsoever.
The proactive disclosure of information on how EU funds are spent by member states and EU institutions themselves has long been woeful – so much so, in fact, that journalists have sought to take matters into their own hands by obtaining and publishing relevant data themselves. The rules governing transparency of the 2021–2027 Multiannual Financial Framework (MFF) introduce some improvements in this area, but there are a number of loopholes for the home affairs funds that could be used to inhibit transparency and, in turn, accountability. Transparency is kept to an absolute minimum with regard to the European Defence Fund and European Peace Facility. The home affairs budgets – the Internal Security Fund, Integrated Border Management Fund and Asylum and Migration Fund – are all subject to essentially the same transparency requirements. For funds controlled through shared management, the member states must provide annual performance reports to the Commission, but only a summary of each report is to be made public. The Commission is also obliged to report to the Council and Parliament on a set of ‘core performance indicators’, but the legislation does not specify when this should be done, or whether those reports should be public. Other provisions are clearer. The European Commission is obliged to publish information on all projects or activities it funds directly, and the member states must publish information on all the activities financed through EU funding, on either a dedicated website or a ‘single website portal’. That information must be provided ‘in an open, machine-readable format which allows data to be sorted, searched, extracted and compared’. The Commission is obliged to provide links to each of those websites on its own website. The sites should also be used to publish national evaluations, final performance reports, any data transmitted to the Commission on the use of the funds, the rules of procedure of national fund monitoring committees, and ‘the data and information shared with the monitoring committee’. Given that the information currently available on EU funds is often incomplete or unavailable, these are welcome provisions, in particular the requirement to provide data in an open, machine-readable format. If they are upheld, the information will provide a rich source of data for anyone seeking to analyse the use of the EU’s home affairs funds and a useful tool for ensuring accountability of the use of public money.
However, the transparency provisions are undermined in two ways. First, it is left up to each member state to establish its own website or ‘single website portal’ for the publication of the required information. Anyone wishing to obtain an EU-wide understanding of how the home affairs funds are used will still have to trawl through dozens of different websites, in multiple languages – only to find that while information may be in an ‘open, machine-readable format’, it may still require significant manipulation to make sources comparable.
More concerning is a loophole that grants the member states significant discretion over whether they even publish certain information on the use of the home affairs funds. Horizontal rules that apply to the AMIF, IBMF and ISF include an obligation for national authorities to publish information, ‘except where Union law or national law excludes such publication for reasons of security, public order, criminal investigations, or protection of personal data’. In principle, very little of the information in question could be subject to such exceptions – but in the hands of over-zealous officials, ‘security’ and ‘public order’ can be interpreted very broadly as a means of restricting public access to information, and may put the citizens of some states at a greater disadvantage than others with regard to their ability to know how their government is spending EU funds.
The transparency requirements for the EU’s new military budgets are even more limited. With regard to the European Defence Fund, the European Commission is obliged to ‘implement information and communication actions relating to the Fund, and its actions and results’, but this may well just be a requirement to engage in public relations – there is no obligation to publish detailed information on each of the actions financed by the EDF. The provisions of the EPF are even more threadbare. Apart from a requirement for an evaluation every three years, there are no requirements for publication of information or data on what has been funded. The first funding decision for the European Peace Facility on providing support to the African Union and various other intergovernmental organisations in Africa makes clear that this lack of transparency provisions in the primary EPF legislation was not simply an oversight – it contains no such requirements. Finally, the Civil Security for Society budget remains subject to the same requirements as other projects funded by Horizon Europe. Every project and beneficiary will be listed in the enormous CORDIS database, making it possible to understand patterns and trends in how the money is spent. However, obtaining access to more substantial information on projects’ activities, such as the results of research or ethics reports, may remain difficult. The issue is currently being considered by the Court of Justice of the EU, in a case brought by German MEP Patrick Breyer. He is seeking the release of ethical reports produced by the iBorderCtrl project, which sought to produce an automated lie detector for border controls. The judgment permitted access to some general information, but the initial refusal to disclose ‘information on the specific iBorderCtrl technology, including its legality, its reliability (false positives), the risk of discrimination and mitigation measures,’ was upheld. Breyer has filed an appeal.
There is an obvious need for meaningful transparency of government spending and decision-making, particularly in areas as sensitive for human rights and civil liberties as policing, border control and military matters. It allows citizens to see what is being done in their name and is a fundamental prerequisite for holding governments and states to account. In this regard, despite some improvements in relation to the home affairs funds, the differing provisions governing the EU’s new security funds leave much to be desired.