This section explores the key themes that emerge from an examination of the EU’s new security budgets.
Europe’s borders: here, there and everywhere
A long-standing goal of the EU and its member states is the externalisation of border control, in order to prevent the arrival of unwanted people – many of them seeking protection from war and persecution, or fleeing poverty and lack of opportunity. The project has been expanded in recent years, following the so-called ‘refugee crisis’ of 2015 and 2016, with development aid playing an increasing role in enhancing non-EU states’ ability to control migratory movements. The home affairs funds have also played a role in this process, and the aims, objectives and requirements of the budgets for the 2021–2027 period make clear that this is set to continue.
Diverted development aid
Through the European Development Fund (EDF), EU member states fund projects that apparently aim to eradicate poverty and to achieve Agenda 2030 and the Sustainable Development Goals (SDGs), though the funding has increasingly pursued migration policy objectives.1 This agenda accelerated following the establishment of the EU Trust Fund for Africa (EUTF), set up after the 2015 Valletta Summit between EU and African heads of state. The EUTF receives some of its funding from the Development Fund, as well as from the Neighbourhood Development Instrument, the Asylum, Migration and Integration Fund (AMIF, the 2014–2020 predecessor to the AMF), member states and non-EU states. Projects funded under the EUTF have contributed to the strengthening of border control in the name of addressing poverty and unemployment. It has been noted that in the Sahelian region, whose economy has largely depended on internal migration, but also through emigration further afield, such actions underline the EU’s prioritisation of border control over the social and economic needs of governments and of populations living in the region.2 In neighbouring countries, hundreds of millions of euros have been provided to strengthen border controls in Libya, Morocco and Tunisia – ironically, borders that were drawn up in Europe with no regard for how local economies and social dynamics had functioned previously.3 Minutes of the EUTF’s Strategic Board record ‘multiple discussions about the need to allocate budgets to specific regions and countries in Africa in accordance with the nationalities of people arriving in the EU after crossing the Mediterranean’.4 The prioritisation of migration control and border security in external spending is set to continue, and has been widely condemned by development non-government organisations (NGOs).5 The new Neighbourhood, Development and International Cooperation Instrument (NDICI) will provides €79 billion for these efforts, of which around 10% ‘should be dedicated particularly to actions supporting management and governance of migration and forced displacement within the objectives of the Instrument’.6 Furthermore, 10% of the NDICI’s ‘Neighbourhood instrument’ will be used as an ‘incentive towards reforms’, to be provided on the basis of cooperation in a number of areas, including migration.7 However, it is not only spending already earmarked for ‘external’ purposes that is being used for the purposes of migration control.
Home affairs away from home
The new home affairs funds seek to enhance the ability of ‘third countries’ to control migration in a number of ways. One of the objectives of the AMF is to enhance the ‘external dimension’ of asylum and migration management via cooperation with third countries, in particular by ‘enhancing their capacities to improve the protection of persons in need of international protection’. To help achieve this objective, it will be possible for third countries to be directly associated to the AMF, subject to certain conditions.8 The Commission is also empowered to disburse emergency assistance to member states and third countries when faced with ‘an exceptional migratory situation in a third country… notably where it might have an impact on migration flows towards the Union’.9 While there is no doubt that many states will be able to make good use of EU funding to improve their ability to provide international protection, given the historical and political context in which that support is being provided, it may be better described as the EU offloading some of the responsibility for controlling migration flows onto countries that, in global terms, already do more than their fair share.10 In effect, European funding seems more concerned with containment to prevent migrants reaching EU territory than with guaranteeing protection.11 The most recent and egregious example of this trend is a proposal by the European Commission to increase support to countries neighbouring Afghanistan ‘to prevent irregular migration from the region, reinforce border management capacity and prevent smuggling of migrants and trafficking in human beings’. Actions eligible for support under the AMF are geared towards precisely such activities.12 The IBMF and ISF are less explicit than this, given their areas of focus – border management and internal security – but they also provide the possibility of funding actions in non-EU states, subject to certain conditions.13 One of the objectives of the IBMF, for example, is ‘to facilitate legitimate border crossings, to prevent and detect illegal immigration and cross-border crime and to effectively manage migratory flows’, and one of the ways in which this can be done is through ‘the enhancement of inter-agency cooperation’ between member states, Union bodies and third countries. For this purpose, the fund is geared towards supporting member states’ deployment of immigration liaison officers to third countries, to gather information and intelligence on migratory movements. Frontex, the EU’s border agency, has its own pool of liaison officers who undertake similar work.14 The IBMF can also be used to boost the operational capacity of and cooperation between networks of those officers. Measures approved in 2019 provide the legal backing for these activities, introducing greater EU-level coordination of their activities.15
The IBMF provides incentives to member states undertaking these activities in cooperation with states with which they share a land or maritime border: while the general rule is that EU funding may cover only 75% of the cost of any action undertaken by a member state, a rate of 90% will apply in these cases.16 Turkey and Morocco are key examples of countries that, having been coerced or cajoled into enforcing border controls to keep migrants and refugees out of the EU, have then essentially blackmailed the EU into providing further financial support by threatening to relax those controls – in short, the EU’s desire to keep people out has provided a mechanism that buffer states can use to extract further concessions, usually in the form of funding.17 States in the Balkans may also be prime candidates for support, although their status as pre-accession candidates may make them less likely to engage in such ‘migration diplomacy’. The region has been key to EU migration control efforts ever since the ‘Balkan Route’ became the chosen method for over a million people to travel to ‘core’ EU states in 2015 and 2016.18 The aspects of the ISF concerned with the externalisation of border control focus on police operations against undesired migration. The ‘thematic facility’, a €579 million portion of the ISF that will be ‘allocated flexibly’ on the basis of work programmes drawn up by the Commission, can be used ‘for supporting actions in or in relation to third countries’. Alongside combating and preventing crime in general, and drug and human trafficking more specifically, ‘combating cross-border criminal smuggling networks’ is emphasised – a thinly-veiled reference to people-smuggling gangs. The European Commission has shown significant enthusiasm for joint activity with non-EU states in this area in recent years, in particular by establishing ‘common operational partnerships’ between law enforcement agencies.19
Oversight of externalisation
The EU’s external migration policy is funded via different Commission departments, and implemented through migration, asylum, development and foreign policies with no designated lead institution. A European Parliament resolution approved in May 2021 criticised this set-up, expressing ‘concern’ that ‘this blending of executive responsibilities has created a lack of sufficient and coherent oversight of the Commission’s activities that would enable Parliament to exert democratic scrutiny over the EU’s external migration policy’.20 While the legislation underpinning the home affairs funds oblige the Commission to provide Parliament with some information on their use, this remains limited in relation to spending in third countries (see section 4.3). In relation to the ISF, the European Commission is obliged to ‘report on the use and distribution of the thematic facility… including on the support provided to actions in or in relation to third countries under Union actions’. In response to this information, the European Parliament is able to make recommendations on future spending, which the Commission ‘shall endeavour to take into account’. There is no such requirement for the AMF or IBMF.
Putting lives at risk at sea
The question of where precisely the EU’s borders begin and end is raised once again by the IBMF, in particular in the way that it treats the definition of ‘external sea border’. The legislation recalls the way in which this would normally be understood: ‘the outer limit of the territorial sea of the Member States as defined in accordance with Articles 4 to 16 of the United Nations Convention on the Law of the Sea’. However, when ‘long range operations outside the outer limit of the territorial sea… have been carried out in high threat areas on a regular basis in order to prevent illegal immigration or illegal entry’, that definition will not be used. Instead, the ‘outer limit of high threat areas’ will be used to define where member states’ external sea borders lie. This will be done on the basis of ‘operational data over the past two years as provided by the Member States concerned’.21 The effect will be to afford greater funding to those member states that conduct interdiction operations beyond their territorial waters or contiguous zones. In practice, many of these operations may effectively be search and rescue operations – but in this case, the definition used in by the IBMF would take a history of extra-territorial search and rescue operations and use it to justify additional funding for operations in which such operations, if undertaken at all, will merely be a side effect of border surveillance. It is clear that the EU’s focus in the Mediterranean is not to undertake search and rescue operations for those at risk of drowning while crossing it, but rather to provide assistance or actively participate in ‘push or pull back’ operations to prevent migrants and asylum seekers from reaching Europe’s shores.
Beyond this, it is also noteworthy that the IBMF legislation includes no direct reference to fundamental rights. Given the large number of women, men and children who have already drowned at or near the EU’s borders in the Mediterranean, specific references to international maritime law, search and rescue obligations and non-refoulement should have been included.22 Indeed, the 2018 proposal as a whole can be seen as a – perhaps deliberately – missed opportunity to provide significant financial backing for a coordinated search and rescue capability in the Mediterranean. The final decision made few significant changes and will simply help to finance many of the policies that have led to so much death and suffering in the first place, at the same time as states crack down on and criminalise independent organisations seeking to save lives at sea.23
Empowering EU agencies
While the EU’s justice and home affairs agencies have significant budgets of their own, further resources are to be made available from the 2021–2027 security and migration budgets. The intention is to bolster and consolidate their operational and policy-making roles, in particular of Frontex, the EU’s border agency.
Annual budgets: going up
EU spending on decentralised agencies increased from €95 million in 2000 to €775 million in 2013.24 This was followed by a general reduction in staffing and expenditure across EU institutions, agencies and bodies from 2013 to 2020, as part of a savings drive.25 However, for the most part the EU’s justice and home affairs agencies saw their budgets rise – and it is well known that by the end of the last budget window in 2020, at least one agency – Frontex – had seen the response to the so-called ‘refugee crisis’ justify an unprecedented increase in its staff, financial, and operational resources.26 The annual budgets for each agency are decided by the Council of the EU and the European Parliament, and come out of the amount earmarked under each of their respective policy areas. Under the security and defence policy envelope for 2021–2027, €1.3 billion is allocated for:27
- European Union Agency for Law Enforcement Cooperation (Europol, which for 2021 has a budget of just over €182 million)28
- European Union Agency for Law Enforcement Training (CEPOL, €12.6 million in 2021)29
- European Monitoring Centre for Drugs and Drug Addiction (EMCDDA, €18.2 million in 2021)30
As part of the migration and border management envelope for 2021–2027, some €8.2 billion has been set aside for:31
- European Border and Coast Guard Agency (Frontex, €543.5 million in 2021)32
- European Asylum Support Office (EASO, €152.7 million in 2021)33
- European Agency for the Operational Management of large-scale IT Systems in the Area of Freedom, Security and Justice (eu-Lisa, €221.6 million in 2021)34
This increase in funds will boost a growing ‘operationalisation’ of EU justice and home affairs agencies: Frontex is developing its ‘standing corps’ of 10,000 border guards; Europol is being granted new powers over the exchange and processing of personal data; the European Asylum Support Office is becoming the European Union Agency for Asylum, with new roles and powers; and eu-Lisa is responsible for the maintenance and management of the EU’s growing databanks – in particular, the new Common Identity Repository that will hold personal data on up to 300 million foreign nationals.
Further benefits for EU agencies
The home affairs funds – the Internal Security Fund, Integrated Border Management Fund and Asylum and Migration Fund – are also geared in various ways towards further empowering EU agencies. In certain cases, the agencies can obtain funding from them, and have been given roles in determining, monitoring and evaluating national spending programmes. Activities undertaken by the member states and, potentially, non-EU states, will also bolster agencies by providing equipment and increasing the exchange and gathering of information, further cementing their place in the EU’s internal security architecture.
Union actions – ‘transnational projects or projects of particular interest to the Union’, financed directly by the European Commission – are one way in which agencies will be able to obtain funding from the home affairs funds. In exceptional cases, agencies will be eligible for ISF funding if they wish to undertake actions that are not already covered by their budget.35 Among the activities that may be funded by Union actions as part of the IBMF are:‘…measures aiming to develop the European Border and Coast Guard, such as common capacity building, joint procurement, establishment of common standards and other measures streamlining the cooperation and coordination between the European Border and Coast Guard Agency and Member States’.36 Emergency assistance from the IBMF and ISF, intended to ‘address urgent and specific needs in the event of duly justified emergency situations’, can also be awarded directly to decentralised agencies.37 Increasing the gathering and exchange of information is key to the development of the ‘Security Union’,38 on which the ISF places particular emphasis. One of the objectives of the fund is to improve and facilitate information exchange between national and EU agencies, as well as with third countries and international organisations.39 One of the ways in which the ISF’s results will be measured is by the number of mechanisms that the member states have set up or adapted for this purpose.40 The ISF also aims to increase cooperation between national authorities and EU agencies (as well as ‘civil society and private partners’) as a way to strengthen abilities for ‘preventing and combating crime, terrorism and radicalisation, as well as managing security-related incidents, risks and crises’. Joint law-enforcement operations involving national authorities, Europol and Eurojust will be one way of doing this, while the equipment purchased by the member states and made available to Frontex will provide it with an enhanced ability to launch border control operations in the EU and further afield.41 As well as boosting agencies’ operational capabilities, the funds will give them new oversight roles. It is a requirement for the European Commission to ensure that ‘the relevant decentralized agencies’ are involved in the development of the national programmes, by which the member states must set out what they intend to do with their allocation of the funds from the AMF, IBMF and ISF.42 These roles in the decision-making process will be complemented with roles in the monitoring and evaluation of member states’ activities.43
Frontex: the favoured agency
Of all the EU’s justice and home affairs agencies, Frontex will take on the most significant roles in the planning, monitoring and evaluation of the funds. The Commission is obliged to ensure that the agency’s views are taken into account in relation to national spending under the AMF and IBMF, and to ensure that national actions financed by ‘operating support’ are consistent with those of Frontex.
The agency is also to be consulted by the Commission, ‘where relevant’, on the use of IBMF funds for addressing recommendations that result from the Schengen evaluation mechanism and Frontex’s own ‘vulnerability assessment’ process, and on member state proposals to use the IBMF for operating support.44 This can result in obligatory amendments to a member state’s programme.45 Responsibility for the implementation of ‘effective European integrated border management at the external borders’ is shared between Frontex (now also known as the European Border and Coast Guard Agency) and national border authorities (now known collectively as the European Border and Coast Guard).46 Under the IBMF, Frontex is given a key role in assessing the best way to implement recommendations resulting from the Schengen evaluation exercises and its own recommendations resulting from ‘vulnerability assessments’ of the external borders.47 Funds distributed to national authorities will also be used to bolster the role of Frontex in Europe’s system of ‘border management’, in particular by expanding its inventory of technical equipment. The EU’s border agency has long sought to acquire the latest technology for border control, including drones and other means of aerial surveillance,48 along with more mundane items such as patrol cars.49 Under the IBMF rules, any such equipment purchased by national authorities with the funding (‘means of transport and ICT systems’, as well as ‘all-large scale operating equipment for border management, such as aerial and maritime means of transport and surveillance’) must be verified with Frontex to ensure that it meets the common technical standards established by the agency, and made available for use in its operations.
Financial incentives will also be provided for this purpose. Measures to enhance cooperation between member states and Frontex are one of the actions for which the IBMF can provide up to 90% funding, including the joint purchase of equipment. The agency’s use of that equipment will take precedence over member states’ needs: it must be ‘put at the agency’s disposal when needed’. The amount of equipment made available to Frontex by the member states is one of the indicators for determining the success (or not) of the fund.5 Along with its role in setting out standards and specifications for the equipment to be acquired by member states, Frontex now has a role in influencing the development of new border control technologies. An agreement signed with the European Commission in February 2020 awards Frontex a role in ‘identifying research activities’, facilitating the ‘operational testing and validation’ of new technologies, and ‘providing feedback of research results into the wider capability development process’, with regard to the border security research theme of the Civil Security for Society programme. Experts from Frontex (or from member state authorities, but recruited by Frontex) may also be made available to the European Commission Directorate-General for Home Affairs (DG HOME) to evaluate research proposals.51 The agency will thus be able to identify new technologies whose deployment can be supported by the IBMF, having first influenced the priorities of the research programme developing them. Indeed, the IBMF prioritises actions ‘developing innovative methods or deploying new technologies with a potential for transferability to other Member States, especially projects that aim to test and validate the outcome of Union-funded research projects’.52 A similar role and powers are under negotiation for Europol,53 and the ISF also explicitly seeks to support actions that test the results of EU research projects in the field of policing.
While Frontex, EASO, Europol and eu-Lisa have explicit roles in these activities, other EU justice and home affairs agencies are less visible. The Fundamental Rights Agency is mentioned in relation to the development of national programmes under the AMF and IBMF,54 but is not referred to in the ISF legislation. Nor is there any mention of the European Institute for Gender Equality (EIGE), which was set up ‘to contribute to and strengthen the promotion of gender equality, including gender mainstreaming in all Community policies and the resulting national policies, and the fight against discrimination based on sex’.55 While the European Commission and the member states are not precluded from consulting the EIGE in relation to their spending plans, a requirement to do so could have helped avoid the implementation of projects that may maintain or exacerbate gender inequality – a problem that may be particularly acute in relation to the EU’s border and asylum policies. As the scholars Audrey Reeves and Aiko Holvikiki note: ‘Women and girls who reach refugee camps across Europe’s borders regularly experienced sexual violence, harassment, and exploitation – including at the hands of border guards and volunteers in reception centres.… as a result of hardened borders and gender-blind asylum procedures, sexual and gender-based violence on transit routes have become “normal”, “commonplace” and ‘so widespread that it affected almost all migrant and refugee women’.56
Boosting Europe’s security–industrial complex
A significant volume of the security funds being provided by the EU until 2027 will bolster the European security–industrial complex. This complex – the confluence of interests between the private ‘homeland security’ industry, and politicians and state officials dealing with security policies – has long promoted a vision of security based on the development and deployment of technological ‘solutions’, many of which are premised on novel and enhanced surveillance techniques.
One budget in particular, Civil Security for Society (part of the Horizon Europe research programme), is directly tied to the growth and development of this complex. It is the third official iteration of the European security research programme, the development and growth of which has been tracked and analysed by Statewatch and the Transnational Institute since its inception.57 The new security research agenda is similar to those of years past. Under the ‘Fighting Crime and Terrorism’ heading in the first work programme of the 2021–2027 period, the European Commission is seeking projects to improve the ability of law-enforcement authorities to intercept telecommunications (which is threatened by new technologies such as 5G and edge computing); systems and methods to ‘sift through (and learn from) vast amounts of data’ collected from air passengers; ways to make more extensive use of biometrics in policing; and ways to use ‘the most advanced technological means’ to assess the vulnerability of public spaces to ‘terrorist attacks or other forms of severe violence (amok, mass-riots)’.
Alongside this, the border security research theme has long been home to calls for new surveillance technologies, to bolster the ongoing development of a high-tech Fortress Europe. The current work programme is no exception. Tens of millions of euros are available for projects on ‘increased surveillance capacity, including high altitude, long endurance aerial support’; to speed up border crossing times by enabling ‘capture and use [of] biometrics of travellers without them having to stop’; and improved techniques for detecting objects concealed on people. Beyond policing and border control, the research programme is also concerned with ‘disaster resilience’ and cybersecurity.
Projects funded by the security research programme tend to be carried out by consortia made up of private companies, public agencies (for example, interior ministries or police forces), higher education or research institutions, consultancy firms, and NGOs. Of these, private companies have tended to receive the lion’s share of the funding.
For example, €553 million (41%) of the €1.4 billion 2007–2013 security research programme was awarded to companies, with transnational arms and security corporations such as Airbus, Selex and Thales among the main beneficiaries. Large research institutes such as the Fraunhofer Institute (Germany), TNO (Netherlands) and the Swedish Defence Research Institute also received substantial funding, obtaining €348 million (25%) of the overall budget.58 The same picture emerges from an analysis of the 2014–2020 research programme: private companies received 41% of the total budget (amounting to just over €663 million of a larger budget), research institutions 25% (just over €403 million), followed by higher education institutions (21%, €341 million), public bodies (10%, €157 million) and other types of organisation (3%, €66 million).59 The overall budget for the 2021–2027 programme is slightly smaller than its predecessor (€1.6 billion compared to €1.7 billion), but a requirement to find ‘synergies’ with other funds may compensate for this decrease. The first work programme for the renewed security research programme makes clear that projects funded by Horizon Europe should be ‘followed by final development and market uptake and deployment of relevant research results’, in particular through the Integrated Border Management Fund and Internal Security Fund, as well as the Digital Europe Programme and the European Regional Development Fund.60
As well as financing research into and the development and deployment of new surveillance and control technologies, there are ongoing attempts to bring the public and private sectors closer through schemes such as ‘pre-commercial procurement’ and ‘public procurement of innovative solutions’. These differ in their details, but share the same overarching objective: to secure commitments from public authorities for the purchase of privately supplied goods before they are put on the market, as well as greater involvement of ‘end-users’ (such as police officers or border guards) in the design and testing phases of new technologies. They sit alongside projects funded by the security research programme that seek to make law-enforcement and other agencies more receptive to the ‘innovative solutions’ produced by the private sector.61 While such schemes do not quite meet the demands of the security industry lobby for an ‘end-to-end’ public–private partnership (PPP),62 they are certainly a step in that direction. As well as providing funds to purchase technologies produced through the security research programme, the IBMF and ISF budgets will pay for products and services from private companies that exist to serve the state’s security agencies – whether border surveillance equipment, new IT tools for the police, systems for the surveillance and profiling of air passengers, or simply vehicles and uniforms.63 Tracking this expenditure is likely to remain problematic, given ongoing transparency deficits with the funds (see section 4.3). This is not the end of the story. Alongside the security research programme, the EU now has a military research programme, in the form of the €8 billion European Defence Fund. This will provide a new source of finance for many of the same corporations that have been significant recipients of security research funding. There is a requirement for the European Commission and other actors to ensure ‘synergies’ between the two programmes, and to exploit dual-use technology that may be of use to both the homeland security and military sectors. In practice, this is likely to mean the further militarisation of the civil sphere and the continuation of the long-standing trend to blur the lines between war, policing and internal security initiatives. Tracking the use of these funds, developing visions of security beyond the technological ‘solutionism’ offered by the security–industrial complex, and finding the means to work towards that vision remain crucial.
Transparency, oversight and democratic scrutiny
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).64 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.65 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.66 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.67 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’.68 That information must be provided ‘in an open, machine-readable format which allows data to be sorted, searched, extracted and compared’.69 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,70 any data transmitted to the Commission on the use of the funds,71 the rules of procedure of national fund monitoring committees, and ‘the data and information shared with the monitoring committee’.72 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’.73 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,74 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 Africa75 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.76 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.77
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.