Legislation

• Regulation (EU) 2021/1149 of the European Parliament and of the Council of 7 July 2021 establishing the Internal Security Fund.¹

Objectives

The ISF is intended to reinforce the powers of the police and other law-enforcement actors. The €1.9 billion budget for the 2021–2027 period will be split between funding distributed to the member states (€1.35 billion, via shared management) and to the Commission, (€579 million, via the ‘thematic facility’) national authorities and other bodies. Its overarching goal is ‘preventing and combatting terrorism and radicalisation, serious and organised crime, and cybercrime, by assisting and protecting victims of crime… by preparing for, protecting against and effectively managing security-related incidents, risks and crises’. What this means in practice is using the vast majority of the substantial budget to implement and develop EU law and policy on crime control, and continue with the construction of a pan-EU law-enforcement machinery.

Activities and beneficiaries

Three more specific objectives sit under the fund’s overarching goal, each accompanied by a set of activities.²2 First, to improve and facilitate information exchange among national authorities, Union bodies, offices and agencies, and with third countries and international organisations. This would take place, for example, through national implementation of EU information exchange systems such as Prüm,³ EU PNR (Passenger Name Record),⁴ SIS II (the Schengen Information System)⁵ and the ‘interoperability’ scheme,⁶ and feeding data to those systems. The second specific objective is to improve and intensify cross-border cooperation and joint operations related to terrorism and serious organised crime. The aim is to establish more joint investigation teams; facilitate cross-border hot pursuits and surveillance measures; and to increase coordination and cooperation between law enforcement and ‘other competent authorities’ and ‘relevant actors’.

The third specific objective is to strengthen capabilities for combating crime, terrorism and radicalisation. Ways of doing this will include the establishment of PPPs, training and exchange programmes, including with non-EU states; knowledge-sharing among member states ‘and other relevant actors, including civil society’; developing protection and support schemes for witnesses, whistle-blowers and crime victims; and increasing ‘preparedness, resilience, public awareness and adequate response to security threats’ through the purchase of equipment and establishment of infrastructure.

There is an obligation for member states to prioritise ‘agreed Union priorities and the acquis in the area of security’, recommendations resulting from the Schengen monitoring and evaluation mechanism,⁷7 and ‘country-specific deficiencies with financial implications identified in the framework of needs assessments such as European Semester recommendations in the area of corruption’. They must also ‘in particular’ undertake certain types of actions: to counter ‘radicalisation’; to improve the interoperability of EU and national information systems; to pursue the priorities set out as part of the EMPACT mechanism;⁸ to address cybercrime; and to ‘improve the security and resilience of critical infrastructure’. Likewise, funds managed directly by the European Commission should be geared towards these activities and ‘shall be used for supporting actions in or in relation to third countries… in particular in order to contribute to combating and preventing crime, including drug trafficking, trafficking in human beings and combating cross-border criminal smuggling networks’.⁹ A further annex (Annex IV) includes more detail on the types of activities that may be supported by the ISF,¹⁰ and the text also includes a list of actions national authorities may not finance with the fund, except in ‘an emergency situation’.¹¹ These include ‘actions limited to the maintenance of public order at national level’ (as opposed to a cross-border context); the purchase of ‘coercive equipment, including weapons, ammunition, explosives and riot batons, except for training purposes’, and ‘informant rewards and flash money outside the framework of an EU policy cycle/EMPACT operational action’.¹² Funds distributed to the member states are to be disbursed to their authorities, which may then use that money to acquire services or equipment from other entities, in particular private companies. In the case of the funds managed directly by European Commission, entities eligible for funding are those established in a member state or a third country that is listed in a work programme, or ‘legal entities created under Union law or any international organisation’. Legal entities in third countries are eligible for funding if they are part of a consortium with at least one entity established in a member state.¹³ National authorities are likely to remain the principal beneficiaries of the portion managed by the Commission, but private companies, non-profit organisations, universities and others will also participate in projects and activities. In the case of Union actions and emergency assistance, EU agencies may also receive funding from the ISF.

Funding and control methods

The €1.35 billion earmarked for member states (‘shared management’) will be distributed in accordance with several criteria. All member states will be awarded €8 million at the start of the funding period, with the remaining funds distributed on the basis of their gross domestic product (GDP), population and size of their territory.¹⁴ The funds must be spent in accordance with work programmes that are ‘consistent with and respond to Union priorities and challenges in the area of security and are fully in accordance with the relevant Union acquis and agreed Union priorities’. These programmes are to be drawn up by national authorities with the Commission, along with input from EU ‘bodies, offices and agencies’, where relevant. The work is therefore in the hands of interior ministry and other security and law-enforcement officials, with no requirement to involve parliaments or CSOs – despite the legislation calling for ‘active and meaningful involvement of civil society, including non-governmental organisations’. The limited pool of actors responsible for drawing up and agreeing the work programmes may also hinder compliance with the legislation’s fundamental rights obligations. All actions funded by the ISF must be implemented ‘in full respect for fundamental rights and human dignity’,¹⁵ something that could perhaps be better achieved if national authorities were required to consult bodies such as the EU Fundamental Rights Agency, the European Institute for Gender Equality, or their own national human rights institutions. A more comprehensive approach could have included a role for the European Parliament’s civil liberties committee, national parliamentary committees, CSOs and other interested parties. Money from the ISF may not exceed 75% of the cost of any particular national activity, apart from in particular cases. Up to 90% of the cost may be financed by the ISF in the case of ‘specific actions’ (these are funded via the Commission’s portion of the budget and defined as ‘transnational or national projects that bring Union added value’) and for ‘Annex IV actions’, described in the previous section. The ISF can cover 100% of costs if it is used to pay for operating support,¹⁶ emergency assistance, or ‘technical assistance at the initiative of the Member State’.¹⁷ The €579 million at the disposal of the European Commission is also to be distributed in accordance with work programmes. It may be awarded directly to certain entities (for example, networks of law-enforcement bodies such as the ‘Atlas’ network of ‘special intervention units’¹⁸) or in response to calls for proposals. Unlike national authorities, the legislation places an obligation on the European Commission to ‘engage with civil society organisations and relevant networks, in particular with a view to preparing and evaluating the work programmes for Union actions financed under the Fund’.¹⁹ It remains to be seen how this will be done. The Commission is to be assisted in its work by a new Committee for the Home Affairs Funds, which started work in July 2021.²⁰ Alongside new overarching rules intended to prevent EU funds being used to finance the actions of governments in breach of the EU’s ‘founding values’, both the European Commission and national authorities are obliged to ensure that funding from the ISF is ‘not directly affected by a reasoned opinion by the Commission in respect of an infringement under Article 258 TFEU [for failure by a member state to implement EU law] that puts at risk the legality and regularity of expenditure or the performance of operations’.^21,22

Monitoring, reporting and transparency

The Commission is obliged to provide the Parliament and Council with ‘information on the core performance indicators’ listed in Annex V of the legislation, although there is no timeline for when that information should be provided, nor a requirement that it be made available to the general public.²³ The ‘core performance indicators’ sit alongside a more detailed set of ‘output and result indicators’, which are to be used to inform a mid-term evaluation (due in 2024) and a final evaluation (due in 2029). There is no requirement that these be made public.²⁴ In response to Commission reports on the ‘thematic facility’, the European Parliament may make ‘recommendations for actions to be supported under the thematic facility’, and ‘the Commission shall endeavour to take such recommendations into account’. Reporting obligations are also placed on the member states, which are obliged to submit an annual performance report to the Commission on the use of the funds from 2023 until 2031 (again, there is no requirement that these reports be made public),²⁵ and to publish information on all projects financed by the ISF (as well as the IBMF and AMF) online, a point discussed further in section 4.3.

The Integrated Border Management Fund comprises two separate instruments, which concern funding for border controls and visa processing (the ‘border and visa’ fund, worth some €5.2 billion) and customs control equipment (worth just over €1 billion).

Legislation

• Regulation (EU) 2021/1148 of the European Parliament and of the Council of 7 July 2021 establishing, as part of the Integrated Border Management Fund, the Instrument for Financial Support for Border Management and Visa Policy.²⁶

Objectives

The overarching objective of the border management and visa instrument is ‘to ensure strong and effective European integrated border management at the external borders… while safeguarding the free movement of persons within it and fully respecting the relevant Union acquis and the international obligations of the Union and Member States arising from international instruments to which they are party’. It is noteworthy that there is no direct reference to fundamental rights, while the emphasis on externalisation (also a feature of the Asylum and Migration Fund) appears intended to push the issue of states’ responsibilities to uphold human rights further out of sight and out of mind.

The €6.24 billion budget²⁷ will be split between the member states’ programmes (€3.7 billion, via shared management) and the Commission (€2.5 billion, via the thematic facility), which will subsequently be distributed to national or other authorities as deemed appropriate.

Activities and beneficiaries

Two specific objectives serve the BMVI’s main goal. First, to support ‘effective European integrated border management at the external borders…to facilitate legitimate border crossings, to prevent and detect illegal immigration and cross-border crime and to effectively manage migratory flows’. Second, the fund supports ‘the common visa policy… to facilitate legitimate travel, while helping to prevent migratory and security risks’.

A list of activities to help achieve these objectives is provided in Annex III, which includes:

• Setting up, maintaining and making interoperable large-scale IT systems for border management;
• Reinforcing border checks and surveillance;
• Conducting risk and threat analyses;
• Technical and operational reinforcement, including at ‘hotspot areas’;
• Reinforcing Frontex, vis-à-vis its surveillance capacity at external borders and technical and operational reinforcement for identification of vulnerable persons and those in need of international protection;
• Enhancing inter-agency cooperation between the member states, and between the member states and Union agencies or third countries;
• Providing ‘efficient and client-friendly services to visa applicants while maintaining the security and integrity of visa procedures’;
• Supporting member states to issue humanitarian visas, or visas on grounds of national interest or international obligation; and
• ‘developing different forms of cooperation between Member States in visa processing’.

Support for search and rescue is mentioned among the activities covered by the Fund, but only in the context of border surveillance at sea.

The acquisition of new technologies is key to many of these aims. Infrastructure and equipment, inter-operable IT systems, the deployment of new technologies (developed by EU security research projects and identified by Frontex as a priority), and training are all prioritised in order to enhance border surveillance, statistical tools and indicators, visa processing, and the ‘debriefing’ of people arriving at the external borders. Intelligence-gathering is also pursued through the deployment of immigration liaison officers to non-EU countries and the reinforcement of the liaison officers’ network.

Entities eligible to receive funding are legal entities established in a member state or a third country that is listed in a work programme; or ‘legal entities created under Union law or any international organisation’. Legal entities in third countries are eligible when participating in a consortium at least one independent member of which is established in a member state.²⁸

Funding and control methods

The majority of the funding (€3.7 billion) is to be distributed to member states and controlled via the shared management method, with responsibilities split between the member states and the Commission. Each member state will receive a fixed amount of €8 million, apart from Cyprus, Malta and Greece, each of which will receive €28 million. The remaining funds will be distributed to member states in accordance with four criteria: external land borders (30% of the remaining funding), external sea borders (35%), airports (20%), and consular offices (15%).

Regarding external land and sea borders, 70% of the distribution will be given on the basis of the length of those borders and the ‘impact levels’ attributed to each particular section of them, in accordance with the Eurosur Regulation.²⁹ Thirty per cent of the distribution for external land and sea borders will be given in accordance with workload, determined on the basis of the number of crossings at authorised border crossing points (70%) and the number of third-country nationals refused entry (30%). The latter two criteria will also be used to establish the funding given to airports. Regarding consular offices, half will relate to the number of consular offices and half to the workload at consular offices, based on the number of applications for short-stay visas or airport transit. Data for the last three years prior to the date of application of the Regulation are to be used for these calculations. Some funds will also be kept aside to provide a ‘top-up’ to member states following a mid-term review in 2024.³⁰ The funds distributed under shared management must be spent in line with programmes drawn up by the responsible national authorities.³¹ The Commission is ultimately responsible for assessing the programmes, but EU agencies are to play a role in developing, monitoring and evaluating them, namely Frontex, the EU Agency for Large-Scale IT Systems (eu-LISA) and the EU Agency for Asylum). Frontex is given a particularly 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, and funds distributed to national authorities will be used to bolster the EU border agency’s role. The normal funding rate for projects is to be 75% of the total eligible costs, although member states may also receive additional funding from the thematic facility for undertaking ‘specific actions’³² and will be incentivised for doing so through a higher co-funding rate of 90% of the total eligible expenditure for the project. This funding will then be implemented through the shared management method. Specific actions will be set out in the work programmes for the thematic facility. Funding can also be increased to 90% for actions listed in Annex IV to the Regulation. These include jointly purchasing equipment with Frontex, to be put at the agency’s disposal when needed; other measures to enhance cooperation with Frontex (such as training or standard-setting); the testing or deployment of technology developed through the EU security research programme; and ‘measures for setting up and running hotspot areas in Member States facing existing or potential exceptional and disproportionate migratory pressure’.³³ Member states may also use up to 33% (compared to 10% under the ISF) of the funding allocated to them to finance ‘operating support’,³⁴ to be provided to ‘the public authorities responsible for accomplishing the tasks and providing the services which constitute a public service for the Union’. To use operating support, member states must comply with the EU acquis on borders and visas and will be subject to an examination by the Commission and Frontex to determine whether they qualify. As with the ISF, although not mentioned in the main body of the proposed Regulation, a recital expands upon the meaning of compliance with the acquis: ‘A Member State may be deemed not to be compliant with the relevant Union acquis, including as regards the use of operating support under the Instrument if it has failed to fulfil its obligations under the Treaties in the area of border management and visa, including as regards fundamental rights obligations, if there is a clear risk of a serious breach by that Member State of the Union’s values when implementing the acquis on border management and visa policy or if an evaluation report under the Schengen evaluation and monitoring mechanism… has identified deficiencies in the relevant area’.³⁵ There are clearly numerous circumstances across the EU that could be seen to represent such a ‘breach of the Union’s values’ in this area – for example, the frequent pushbacks that take place at the Greek–Turkish and Spanish–Moroccan borders, and, more recently, Poland’s and Lithuania’s borders with Belarus, the coordination between the Italian and Libyan authorities that results in the return of migrants and refugees to Libya when intercepted at sea, or the unacceptable detention conditions in a number of member states, including in the ‘hotspots’ in Greece – but the term ‘clear risk of a serious breach… of the Union’s values’ is not defined in the text, nor is there any established process for how it would be determined. This grants significant discretionary power to the Commission, which has already demonstrated a lack of enthusiasm for meeting its obligations with regard to separate rules on preventing EU funds being used in breach of the EU’s fundamental values.

The €2.5 billion thematic facility takes up the remainder of the border management and visa funds. The details of what the thematic facility will fund will be established in work programmes (technically referred to as ‘financing decisions’), and the Commission is obliged to ‘engage with civil society organisations and relevant networks’, in preparing the work programmes, although it is not clear how it should do so. The Commission is also to be assisted by the Committee for the Home Affairs Funds, to be made up of member state representatives. No project affected by a Commission infringement proceeding (Article 258 TFEU) may be funded.

Funds from the thematic facility may be allocated via shared, direct or indirect management for specific actions, Union actions or emergency assistance, in order to ‘address priorities with a high added value to the Union’.³⁶ Funding will generally be awarded following calls for proposals, except in certain cases.³⁷ The co-financing rate would presumably be 75% (the standard rate), unless a Union action was based on one of the actions listed in Annex IV to the proposal, qualifying for a co-financing rate of 90%. Emergency assistance may also be provided from the thematic facility (Article 25), directly to decentralised Union agencies (such as Frontex or the EU Agency for Asylum) or any other entity eligible for funding under the Regulation. An emergency situation is defined as one resulting from:

‘…an urgent and exceptional pressure, in which a large or disproportionate number of third-country nationals have crossed, are crossing or are expected to cross the external borders of one or more Member States or in which incidents related to illegal immigration or cross-border crime occur at the external borders of one or more Member States, and those incidents have a decisive impact on border security to such an extent that they risk jeopardising the functioning of the Schengen area, or any other situation in respect of which it has been duly substantiated that immediate action at the external borders within the objectives of the Instrument is required’.³⁸ Given that the definition of an ‘emergency’ outlined here generally encompasses situations in which large numbers of people will be in need of humanitarian or other kinds of support (for example, accommodation, medical and psychological support, legal assistance), it would have been beneficial to have more detail on the border-screening activities supported by this fund (it is one among 12 categories of activity outlined in Annex III to the Regulation). The Commission has stated that one reason for the significant increase in the size of the thematic facility is the need for capacity to deal with unforeseen situations. However, the type of actions eligible for funding under the BMVI (primarily concerned with ensuring ‘border security) is seldom likely to be the most appropriate to respond to the types of situations that are likely to arise. Time and time again, the EU and its member states have prioritised security measures (fingerprinting, security screening, confinement on islands or in ‘hotspots’) over the basic needs of individuals – with the exception of the welcome given to refugees fleeing Russia’s invasion of Ukraine. Nevertheless, the way the BMVI is structured indicates a preference for security over solidarity.

Monitoring, reporting and transparency

The monitoring, reporting and evaluation requirements are similar to those established for the ISF and AMF. The Commission will present information on core performance indicators, listed in Annex V, to the European Parliament and Council. Annex V contains eight indicators for the integrated border management objective, and five for the common visa policy objective. Where the 2018 proposal included just four indicators,³⁹ the final legislation includes expands these to include: availability of equipment to Frontex; improved cooperation between national authorities and Eurosur coordination; number of ‘regular’ border crossings through automated control systems and e-gates; use of training; applications for international protection at border crossing points; and the number of people refused entry by border authorities. The final decision heavily favours the digitisation of border and visa procedures, along with member state cooperation and capacity-building/training and intelligence. Other issues related to transparency and accountability that primarily stem from the proposed Common Provisions Regulation (which covers the AMF, ISF and BMVI) are discussed in section 4.

Customs control equipment instrument

Legislation

• Regulation (EU) 2021/1077 of the European Parliament and of the Council of 24 June 2021 establishing, as part of the Integrated Border Management Fund, the instrument for financial support for customs control equipment.⁴⁰

Objectives

The general objective of the customs control equipment fund is to ‘support the customs union and customs authorities in their mission to protect the financial and economic interests of the Union and its Member States, to ensure security and safety within the Union and to protect the Union from illegal trade while facilitating legitimate business activity’. Within this framework, the specific objective is to contribute ‘to adequate and equivalent results of customs controls [across the member states] through the transparent purchase, maintenance and upgrading of relevant and reliable state-of-the-art customs control equipment that is secure, safe and environmental-friendly’.

The explanatory memorandum to the 2018 proposal stated that the customs control equipment has ‘no particular bearing on fundamental rights’, and fundamental rights are not referred to in the final 2021 text. However, the funds can be used to purchase equipment that has clear privacy implications, such as devices for the ‘indication of hidden objects on humans’.

Activities and beneficiaries

Actions backed by the fund must implement these objectives and concern one of the following activities:

• non-intrusive inspection;
• indication of hidden objects on humans;
• radiation detection and nuclide identification;
• analysis of samples in laboratories;
• sampling and field analysis of samples; and
• handheld search.⁴¹

Details on the types of equipment that come under each of these headings is set out in Annex I of the text. The Commission can adopt delegated acts to amend the customs control purposes listed above. ⁴² It is noteworthy that any equipment purchased may also be used ‘for additional purposes’ to customs controls, including ‘in support of the national border management authorities and investigation, for control of persons’. According to the recitals, this is because customs authorities ‘have been taking up an increasing number of responsibilities which are carried out at the external border and which often extend into the security field’, and it is ‘important to promote, at Union borders, as regards controls of goods and controls of persons, inter-agency cooperation among the national authorities in each Member State’.⁴³ Under the border and visa instrument, however, the purchase of border control equipment must form part of member states’ programmes and certain types of equipment must be verified with Frontex to ensure that it meets the relevant technical standards. The customs control equipment legislation makes no mention of these requirements, so it is unclear if equipment purchased for both customs and border control purposes must meet the same criteria.

Funding and control methods

To achieve the instrument’s objectives, the €1 billion fund will be implemented via direct management, with money distributed by the Commission to the national customs authorities.⁴⁴ This will be done through work programmes established by the Commission on the basis of an assessment of national authorities’ needs. To this end, the national customs authorities must provide the Commission with a categorised list of all national border crossing points; a ‘comprehensive description’ of available equipment; a list of customs control equipment that should be available; and an estimate of their financial needs. Up to 80% of the total costs may be covered by the customs control equipment instrument, although more may be granted in undefined ‘duly justified exceptional circumstances’.⁴⁵

Monitoring, reporting and transparency

Monitoring and reporting requirements⁴⁶ include a set of indicators for reporting on progress, which essentially revolve around the availability of certain types of equipment.⁴⁷ It is not stated to whom such reporting should be directed, apart from when equipment costs more than €10,000, which require annual communication to the Commission. Such reports should also be made publicly available, as is required for the AMF, ISF and BMVI, although there is no obligation to do so. The text includes certain transparency requirements, but these are not as detailed as those for other funds that require the publication of beneficiaries and other information on usage. Recipients of Union funding are required to be transparent about the origin of the funds when promoting actions and results, though obligations about transparency of such actions and results are not clearly outlined.⁴⁸ The provisions on evaluation are the same as those for the border management and visa instrument and other instruments such as the ISF and AMF, although they are phrased differently. The Commission will carry out an interim evaluation ‘once there is sufficient information available about its implementation, but not later than four years after the start of that implementation’. The final evaluation of the instrument will be conducted must be conducted by the end of 2031. In contrast with the other home affairs funds examined in this report, the legislation makes it obligatory for the results of the evaluations and the Commission’s observations to be sent to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.⁴⁹

Legislation

• Regulation (EU) 2021/1147 of the European Parliament and of the Council of 7 July 2021 establishing the Asylum, Migration and Integration Fund.⁵⁰

Objectives

The overarching objective of the proposed AMF is:

‘…to contribute to the efficient management of migration flows and to the implementation, strengthening and development of the common policy on asylum and the common immigration policy, in accordance with the relevant Union acquis and fully respecting the international obligations of the Union and the Member States arising from the international instruments to which they are party’.⁵¹ This wording places less emphasis on fundamental rights than the Commission’s original proposal, which referred explicitly to ‘compliance with the Union’s commitments on fundamental rights’ rather than ‘fully respecting… international obligations’.

Activities and beneficiaries

Under the overarching policy objective outlined above, the AMF has four specific objectives,⁵² each of which has its own set of ‘implementation measures’ and activities. The first specific objective is ‘strengthening and developing all aspects of the Common European Asylum System (CEAS), including its external dimension’, to be done by:

• uniform application of the Union acquis and priorities related to the CEAS;
• infrastructure and services to support the capacity of Member States’ asylum systems, including at regional and local level;
• ‘enhancing cooperation and partnership with third countries for the purpose of managing migration, including by enhancing their capacities to improve the protection of persons in need of international protection in the context of global cooperation efforts’;
• ‘providing technical and operational assistance to one or several Member states, including in cooperation with EASO [now the EU Agency for Asylum]’.

In practice, this can mean various things: the ‘provision of material aid, including assistance at the border’; carrying out asylum procedures; identification and referral of applicants with special requirements; the construction or improvement of ‘reception accommodation infrastructure’; improving the ability of member states to share country of origin information; improving third countries’ ability to provide protection; and ‘the establishment, development and improvement of effective alternatives to detention, in particular in relation to unaccompanied minors and families’.

The second specific objective of the fund is to ‘strengthen and support legal migration to the Member States including to contribute to the integration of third-country nationals’, in particular by:

• ‘supporting the development and implementation of policies promoting legal migration and the implementation of the Union legal migration acquis, including family reunification and the enforcement of labour standards’;
• ‘supporting measures to facilitate regular entry into and residence in the Union’;
• “enhancing cooperation and partnership with third countries for the purpose of managing migration, including through legal avenues of entry to the Union, in the context of global cooperation efforts in the area of migration’; and
• ‘promoting integration measures for the social and economic inclusion of third-country nationals… in particular with the involvement of national and, in particular, regional or local authorities and civil society organisations, including refugee organisations and migrant-led organisations, and social partners’.

Here, the objectives should be achieved through the establishment of information campaigns that raise awareness of legal migration channels; the establishment of ‘mobility schemes to the Union, such as circular or temporary migration schemes’; cooperation activities between third countries, employment agencies and member states’ immigration services; skills and qualifications recognition; and integration and family reunion measures, among other things.

The fund also aims to fund activities that will achieve the objective of ‘countering irregular migration, enhancing effective, safe and dignified return and readmission, and promoting and contributing to effective initial reintegration in third countries’, namely by:

• uniform application of the Union acquis and policy priorities with regard to infrastructure, procedures and services;
• support for an ‘integrated and coordinated approach to return management at the Union and Member States level’,⁵³ developing ‘capacities for effective, dignified and sustainable return, and to reducing incentives for irregular migration’;‘supporting assisted voluntary return, family tracing and reintegration, while respecting the best interests of the child’; and
• Strengthened cooperation with third countries regarding readmission and sustainable return.

For these purposes, funds may be used for ‘the establishment or improvement of open reception or detention infrastructure, including the possible joint use of such facilities by more than one Member State’, but also alternatives to detention; forced return monitoring systems; ‘the countering of incentives for irregular migration, including the employment of irregular migrants’, including through means for irregular migrants to make claims for pay against unscrupulous employers; deportation measures (such as preparatory measures, document acquisition, and removal operations themselves, ‘with the exception of support for coercive equipment’); and ‘cooperation with third countries regarding countering irregular migration and regarding effective return and readmission’.

Finally, with regard to ‘solidarity and fair sharing of responsibility between the Member States’, the activities foreseen are:

• resettlement within the EU and ‘other legal avenues to protection in the Union’ for third countries ‘affected by migratory flows’; and
• support for transfers of applicants or beneficiaries for international protection between member states.

Funds may be used for voluntary transfers between EU member states; support for staff to be seconded between member states, including through the EU Asylum Agency; the implementation of resettlement or humanitarian admission schemes; and ‘support by a Member State to another Member State affected by migration challenges in terms of establishment or improvement of reception infrastructure’.

There is much to be said about the deficiencies of the EU’s migration and asylum system(s), but one element in particular is made clear by the new funds. Although three of the objectives of the AMF explicitly aim to enhance the ‘external dimension’ of asylum and migration management, there are no specific human rights safeguards included in the text on this matter, except for countries that are directly associated to the fund.^54,55 Entities eligible for funding are legal entities established in a member state (or third country or territory linked to it), third countries associated to the fund and third countries listed in a work programme; or ‘legal entities created under Union law or any international organisation relevant for the purposes of the Fund’. Legal entities in third countries are eligible as part of a consortium composed of at least two independent entities, one of which must be established in a member state.⁵⁶

Funding and control methods

Of the final agreed budget of €9.9 billion, €6.3 billion is to be allocated to member states’ national programmes, and €3.6 billion to be distributed by the Commission via the thematic facility.

As with the IBMF, each member state will receive an initial amount of €8 million from the portion of the fund controlled through shared management, aside from Cyprus, Greece and Malta, which will receive €28 million. Of the amount they receive, each member state would be obliged to distribute 35% of its total to asylum; 30% to legal migration and integration; and 35% to ‘countering irregular migration including returns’. These amounts are determined on the basis of further calculations.⁵⁷ Regarding integration, the AMF will only fund short-term integration measures, while longer-term projects should be financed by the European Regional Development Fund and the European Social Fund. An analysis of the proposals by the European Council on Refugees and Exiles (ECRE) noted that the criteria set out in the proposals were ‘very problematic’, providing ‘incentives for Member States to issue return decisions and enforce them’. This could risk the further undermining of asylum procedures ‘by governments’ pre-occupation with return’. While the numbers may have been altered during negotiations, it seems likely that the problem will remain, and ECRE underscore that:

‘…some Member States may effectively be financially rewarded for asylum recognition rates far lower than the EU average, which in turn create larger populations eligible to undergo return procedures’.

As with the other home affairs funds, the way in which member states intend to spend their allocation from the AMF must be set out in a national work programme. As with the ISF and IBMF, EU agencies – in this case Frontex, the EUAA and (unlike the other funds) the Fundamental Rights Agency – will have a role to play in developing, monitoring and evaluating the national programmes and ensuring that relevant recommendations and amendments are implemented. Member states intending to undertake projects in non-EU states must consult with the Commission prior to doing so, but there are no detailed provisions concerning an assessment of the fundamental rights situation in that country nor its ability to comply with its international legal obligations; the same issue also arises in the relevant provisions of the ISF and IBMF.

The normal funding rate for projects under shared management is 75% of the total eligible costs. Member states may also receive additional funding (co-financed at a rate of up to 90%) from the thematic facility for undertaking ‘specific actions’, which the Commission will identify in the work programmes for the thematic facility. A co-financing rate of up to 90% will also apply to actions listed in Annex IV, and the member states are obliged to ‘in particular pursue’ those actions: integration measures implemented by local and regional authorities and CSOs; the development of effective alternatives to detention; ‘Assisted Voluntary Return and Reintegration’ programmes; and measures that target vulnerable persons seeking international protection or those with “special reception and/or procedural needs”’.

Beyond the amounts allocated via the national programmes and the thematic facility, there are financial incentives for various other activities. Member states will receive an additional €10,000 per person resettled and €6,000 for every individual admitted through ‘humanitarian admission’.⁵⁸ Member states that accept transfers of applicants for and beneficiaries of international protection from other member states, in accordance with the Dublin rules, will also be provided with an additional €10,000.⁵⁹ A number of measures included in the proposals have been removed from the final text due to their reliance on asylum measures that were still under negotiation at the time of agreement on the AMF. The €3.6 billion thematic facility will be disbursed through a variety of methods (shared, direct and indirect management), to be set out in work programmes drawn up by the Commission. Funding may be disbursed for specific actions, Union actions or emergency assistance, as well as technical assistance, in order to ‘respond to pressing needs and changes in policy and Union priorities, and to steer funding towards actions with a high level of Union added value’.⁶⁰ The same committee established to assist with the implementation of the ISF and BMVI – the Committee on Home Affairs Funds – will also be used for the AMF. As with those two funds, the committee will assist in defining the work programmes for the thematic facility, but there are no provisions that would allow other actors to have a role in the process. Equally, the Commission is also obliged to ensure that funding from the thematic facility is not used for projects subject to a ‘reasoned opinion’⁶¹ by the Commission. The managing authorities of the member states are obliged to do the same for projects financed by national work programmes under shared management.⁶² Union actions are to be financed by the thematic facility and are defined in Article 20 as ‘transnational projects or projects of particular interest to the Union, in line with the objectives of this Regulation’. They will be financed ‘at the Commission’s initiative’ and can target any of the Regulation’s objectives in line with the activities set out in Annex III. Funding will generally be awarded following calls for proposals, except in certain cases.⁶³

Under Article 26, emergency assistance may be made available from the thematic facility, at a financing rate of up to 100%, if any of three specific situations arise:

• ‘(a) an exceptional migratory situation characterised by a large or disproportionate influx of third-country nationals into one or more Member States which places significant and urgent demands on those Member States’ reception and detention facilities, and on their asylum and migration management systems and procedures;
• (b) an event of a mass influx of displaced persons within the meaning of Council Directive 2001/55/EC [on minimum standards for giving temporary protection in the event of a mass influx of displaced persons, also known as the Temporary Protection Directive];
• (c) an exceptional migratory situation in a third country, including where persons in need of protection could be stranded due to political developments or conflicts, notably where it might have an impact on migration flows towards the Union’.

As with the general objective of the AMF contributing to the ‘external dimension’ of asylum, few clear limits are laid down on what exactly emergency assistance may be used for and there are no references to international human rights law.

As with the ISF and BMVI, the recitals make clear that member states cannot be considered compliant with the acquis if there is a clear risk of the breach of the Union’s values or deficiencies in a national system have been identified through a Schengen evaluation or an evaluation by the EU Agency for Asylum.

Monitoring, reporting, transparency and evaluation

The provisions on monitoring and reporting mirror those established for the ISF and BMVI. The Commission is required to report to the Council and Parliament on a set of ‘core performance indicators’, and a mid-term evaluation and final evaluation should be carried out by the end of 2024 and a final evaluation ‘in a timely manner’. Other issues related to transparency and accountability that primarily stem from the Common Provisions Regulation (which covers the AMF, ISF and BMVI) are discussed in Section 4.

Proposed legislation

• Regulation (EU) 2021/695 of the European Parliament and of the Council of 28 April 2021 establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination, and repealing Regulations (EU) No 1290/2013 and (EU) No 1291/2013.⁶⁴ Council Decision (EU) 2021/764 of 10 May 2021 establishing the Specific Programme implementing Horizon Europe – the Framework Programme for Research and Innovation, and repealing Decision 2013/743/EU.⁶⁵

Objectives

The overarching objective of the Horizon Europe programme is to fund scientific research and innovation projects to assist with the implementation of EU policies areas such as transport, health, the environment and industrial development. For the purposes of this report, security is the most important area of the programme. In Horizon Europe, the security theme encompasses disaster preparedness and response (ranging from terrorist attacks to industrial disasters, floods and forest fires); ‘protection and security’ (encompassing crime, radicalisation, terrorism and border control); and cybersecurity.

The European security research programme has been in place since the early 2000s, and its development and activities have been extensively documented and analysed by Statewatch, the Transnational Institute and others.⁶⁶ In its current incarnation under the umbrella of Horizon Europe it has been given the title ‘Civil Security for Society’. The activities it funds aim to fulfil ‘the commitment of the Rome Agenda to work towards “a safe and secure Europe”, contributing to a genuine and effective Security Union’. This is to be done by ‘enabling the future availability of technologies, techniques and applications to fill capability gaps identified by policy-makers and practitioners and civil society organisations’.⁶⁷ As with previous versions of the security research programme, there is a formal requirement for research to focus exclusively on civil applications, but ‘coordination with Union-funded defence research [that is, the European Defence Fund] will be sought in order to strengthen synergies, recognising that there are areas of dual-use technology’.⁶⁸ There will also be attempts to find ‘synergies’ with the Integrated Border Management Fund, Internal Security Fund, Digital Europe programme, and the European Regional Development Fund, among others.⁶⁹

Activities and beneficiaries

The activities funded by the EU’s research programmes tend to be collaborative research projects. In the context of security research, this generally involves a consortium of different organisations cooperating to develop some new type of technology, technique or procedure. Thus, the end result may come in the form of a tangible product (for example, a new type of camera or piece of software) or knowledge intended to assist in the future development of such a product.

Other types of activities are also funded – for example, two ongoing projects, funded by the 2014–2020 research budget, have set up networks of law-enforcement technology agencies in order to enhance their ability to procure ‘innovative’ technologies.⁷⁰ The aim is thus not just to produce new products, but to develop a web of organisations and institutions to try to ensure that those products are purchased and used. The range of entities that can participate in these activities is extremely broad, for both security research projects and research projects funded by Horizon Europe more generally:

‘Any legal entity, regardless of its place of establishment and including legal entities from non-associated third countries or international organisations, may participate in actions under the Programme, provided that the conditions laid down in this Regulation have been met together with any conditions laid down in the work programme or call for proposals’.⁷¹ The beneficiaries of security research funding tend to be private companies, public agencies (for example, interior ministries or police forces), higher education or research institutions, consultancy firms, and NGOs.

Funding and control methods

Funds from the research programme are distributed in accordance with eligible proposals submitted by consortia or individual entities in response to annual or multi-annual work programmes, drafted by the European Commission and ultimately approved by member state representatives in the Programme Committee. The first work programme for the Horizon Europe security theme, covering 2021–2022, includes topics on policing and border control such as:

• ‘Lawful interception using new and emerging technologies’, with €5 million earmarked;
• ‘Enhanced fight against the abuse of online gaming by extremists’, €3 million;
• ‘Public spaces are protected while respecting privacy and avoiding mass surveillance’, €3 million;
• ‘Enhanced security and management of borders, maritime environment, activities and transport, by increased surveillance capability, including high altitude, long endurance aerial support’, €20 million;
• ‘Advanced detection of threats and illicit goods in postal and express courier flows’, €8 million.

Proposals are then judged by external experts hired by the European Commission according to various criteria, depending on the type of project.⁷² The European Commission and the member states are formally responsible for drawing up and adopting the security research work programmes, but input into the topics and priorities also comes from other sources. As in other research areas, the European Commission is assisted in the area of security by an advisory group,⁷³ responsible for providing ‘consistent and consolidated advice to the Commission services during the preparation of the… work programmes’.⁷⁴ Representatives of corporate and state interests have featured heavily in the membership of this group in previous years, including representatives of many of those companies that have consistently received funding from the security research programme, raising questions of conflict of interest. Currently, it has 15 members and is chaired – as it has been since 2016 – by Alberto de Benedictis, a former long-term senior employee at the arms company Finmeccanica (now Leonardo) and a former chairman at the private defence and security industry lobby group AeroSpace and Defence Industries Association of Europe, ASD). It remains to be seen whether the membership of the group will be rejigged now that the Horizon Europe programme has superseded its predecessor, Horizon 2020. There is also a growing role for EU agencies in advising on the content of the work programmes. Under an agreement signed in February 2020, Frontex (the EU’s border agency) has 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. Experts from Frontex (or from member state authorities, but recruited via Frontex) may also be made available to the European Commission Directorate-General for Home Affairs (DG HOME) to evaluate research proposals. Frontex staff are also mandated to ‘supervise the operational relevance of the projects, acting as liaison between the research projects, DG HOME and the European border and coast guard community’.⁷⁵ A similar role is foreseen for the policing agency Europol in new powers that are currently under negotiation.⁷⁶ There is, however, no way for the European Parliament to have any input into the process, beyond its role in negotiating the legislation itself.

Transparency, monitoring, reporting and evaluation

Once topics have been determined and projects selected, the monitoring of ongoing work is conducted by officials, generally at the European Commission or the EU’s Research Executive Agency (REA). The results of projects are then submitted to those officials for final approval at the end of the project, and the results of research activities will reside with one or more of the project partners, depending on what agreements have been made regarding intellectual property. In any case, they are under an obligation to use their ‘best efforts to exploit the results [they own], or to have them exploited by another legal entity’.⁷⁷ Projects must also engage in dissemination and publicity for their work, which is generally done by setting up a website, social media accounts, and perhaps engaging in public relations work. An archive of every research project funded by the EU is held in the CORDIS database,⁷⁸ which provides basic information on the aims of and participants in a project, although not all public project outputs (e.g. reports) are systematically archived there. This is a long-standing hindrance of public understanding and critical scrutiny of security research projects: certain project reports may be hosted on the project’s website, but once that disappears from the web, access to the report itself is no longer possible, unless it has been archived on a site such as the Wayback Machine. There are also specific rules as to who is allowed to access the results of security research projects, to try to facilitate their uptake:

‘In actions under the cluster “Civil Security for Society”, beneficiaries that have received Union funding shall also grant access to their results on a royalty-free basis to Member States’ national authorities, for developing, implementing and monitoring their policies or programmes in that area. Access shall be limited to non-commercial and non-competitive use and shall be subject to a bilateral agreement defining specific conditions aimed at ensuring that those access rights are used only for the intended purpose and that appropriate confidentiality obligations are in place. The requesting Member State, Union institution, body, office or agency shall notify all Member States of such requests’.⁷⁹ The research programme as a whole is subject to ongoing monitoring by the European Commission to determine whether it is meeting its objectives, and an independent interim evaluation must be carried out no more than four years after the programme has begun (in the case of Horizon Europe, by the beginning of 2025). This will be followed by a final evaluation, which must be carried out no more than four years after the programme ends (2031) – rather too late to have any meaningful input into the successor programme.

Legislation

• Regulation (EU) 2021/697 of the European Parliament and of the Council establishing the European Defence Fund and repealing Regulation (EU) 2018/1902.⁸⁰

Objectives

The European Defence Fund’s stated aims are to ‘support collaborative research projects that could significantly boost the performance of future [military] capabilities throughout the Union’, and ‘to support the collaborative development of defence products and technologies’ in line with the priorities for the Common Foreign and Security Policy (CFSP), as agreed by the member states. This is supposed to help ‘foster the competitiveness, efficiency and innovation capacity of the European defence technological and industrial base (EDTIB)… which contributes to the Union strategic autonomy’. The ultimate objective, of course, is to bolster the military power of the EU and its member states, a policy goal that has been given increased priority following the Russian invasion of Ukraine in late February 2022.

The approval of the European Defence Fund has introduced an unprecedented militarisation of the EU, setting it firmly on a course that firmly emphasises the need for ‘hard power’⁸¹ and further enmeshes its interests with those of arms industry. The decision to provide billions of euros for research into and the development of new military technologies is clearly at odds with Article 3 of the Treaty on European Union (‘The Union’s aim is to promote peace’), although this provision has never sat comfortably with the requirement for member states to ‘progressively improve their military capabilities’ (Article 42). The legality of the EDF is to be tested by the German courts, where Özlem Demirel, an MEP for The Left group, filed a complaint in June 2021.⁸²

Activities and beneficiaries

Actions eligible for funding from the EDF include:

• activities aiming to create or improve new ‘knowledge, products and technologies, including disruptive technologies for defence, which can achieve significant effects in the area of defence’;
• activities aiming to increase interoperability and resilience;
• studies (for example, feasibility studies exploring new or improved technology);
• the design, development, qualification and/or certification of a ‘product, tangible or intangible component or technology as well as the definition of the technical specifications on which such a design has been developed’;
• the development of technologies or assets to increase efficiency; and
• dissemination, networking and awareness-raising projects.

The EDF can be used to finance both research and development actions for military technologies and techniques, including weapon systems. A research action is defined as ‘an action consisting primarily of research activities, in particular applied research and where necessary fundamental research, with the aim of acquiring new knowledge and with an exclusive focus on defence applications’. A development action, meanwhile, consists of ‘defence-oriented activities primarily in the development phase, covering new defence products or technologies or the upgrading of existing ones, excluding the production or use of weapons’. That is, the EDF will fund everything up to, but not including, the actual production of weapons and other military technologies – this aspect must be paid for by EU member states themselves. There will also be an attempt to find ‘synergies’ with the security research projects undertaken through Horizon Europe (see section 4.2).

Projects will be eligible for funding if they involve at least three entities in at least three member states or associated countries, although this requirement is waived if a proposal concerns ‘disruptive defence technologies’ or seeks to undertake a study.⁸³ Eligible entities must be ‘established in the Union or in an associated country, have their executive management structures in the Union or in an associated country and [not be] controlled by a non-associated third country or by a non-associated third country entity’, although there are some exceptions. Applicants that are established in the Union or an associated country, but which are controlled by non-associated third-country or non-associated third country entity ‘may be eligible for funding if this is necessary for achieving the objectives of the action and provided that its participation will not put at risk the security interests of the Union and its Member States’. Various types of evidence and guarantees are required from such applicants in order to demonstrate their trustworthiness.⁸⁴

Funding and control methods

The final budget for the EDF comes in at almost €8 billion – a hefty sum, although significantly less than the €13 billion originally proposed by the European Commission. Almost €2.7 billion of the total is for research, and €5.3 billion is allocated for development. The European Commission may reallocate up to 20% from one heading to the other, if it is considered necessary ‘to respond to unforeseen situations or to new developments and needs’.⁸⁵ There are different degrees of funding proposed depending on the type of project but, as a general rule, the EDF may provide up to 100% of eligible costs.⁸⁶ There will also be various incentives for projects developed in the context of the Permanent Structured Cooperation scheme (PESCO, ‘a framework and process to deepen defence cooperation between those EU Member States who are capable and willing to do so’⁸⁷); and for projects involving small- and medium-sized enterprises (SMEs) and ‘mid-caps’ (companies that are not SMEs, with up to 3,000 employees).Funding will primarily be controlled through the direct management method, although in ‘substantiated cases’ funds may be awarded to third countries, international organisations, EU agencies or other bodies⁸⁸ for implementation via indirect management.⁸⁹ Project proposals will be submitted in response to annual work programmes that set out ‘the research topics and the categories of actions to be supported by the Fund’. The work programmes will be drawn up by the Commission, which is to be assisted by a committee composed of EU member state representatives. The European Defence Agency will sit on the committee to ‘provide its views and expertise… as an observer’, and the European External Action Service will be ‘invited to assist’ in the committee.⁹⁰ The European Parliament or national parliaments will have no role in this process.

The procedure for ethical review of projects funded, meanwhile, ‘falls short of being transparent and credible’, in the words of the European Network Against Arms Trade (ENAAT).⁹¹ The companies or consortia applying for funds are to undertake an ‘ethics self-assessment’, that the European Commission will use to identify projects ‘that raise serious ethical issues… Where appropriate, such proposals shall be subject to an ethics assessment’. An array of ‘independent experts’ (who, in particular, should have ‘recognised expertise in defence ethics’) will be appointed by the Commission to assist with the ethics screening and assessment process.⁹² Scrutiny by civil society of those experts will, however, be impossible – their names are to be kept secret, in derogation from standard EU rules.⁹³

The Regulation states that ‘the development of products and technologies[,] the use, development or production of which is prohibited by applicable international law shall not be eligible’. This would include, for example, cluster bombs, blinding lasers, or mustard gas – although as ENAAT highlight, these criteria are ‘not strict enough to exclude all type of weapons of mass destruction (WMD) from EU funding, such as incendiary weapons or nuclear technology’.⁹⁴ The final text also includes a prohibition on funding ‘killer robots’,⁹⁵ although the commitment to developing ‘disruptive technologies for defence’ shows clear enthusiasm for funding other novel war technologies. The EDF’s predecessor budgets have shared this enthusiasm, financing ‘investments in quantum technologies, artificial intelligence, “directed energy” weapons, “adaptive camouflage” and “real-time cyber threat hunting”’.⁹⁶

Monitoring, reporting, transparency and evaluation

Progress indicators for the EDF include the number of entities involved in projects; the number and value of funded projects; the number of SMEs and ‘mid-caps’ involved; the number of patents registered as a result of EDF-funded projects; and ‘the number of supported defence R&D employees’. Through delegated acts, the Commission is empowered to ‘review or complement’ these indicators and to ‘supplement this Regulation with provisions on the establishment of a monitoring and evaluation framework’.⁹⁷ The Commission must ‘implement information and communication actions relating to the Fund, and its actions and results’.⁹⁸

The Commission is also obliged to report annually to the European Parliament and the Council of the EU on the implementation of the EDF; in doing so, it must set out how the lessons it has learned from the EDF’s predecessor budgets have been applied.⁹⁹ A formal interim evaluation of the EDF is to be conducted ‘no later than four years after the start of the implementation period’, with a specific requirement for that evaluation to examine the provisions on independent experts and the ethics screening and review procedures. A final evaluation must be carried out no later than 31 December 2031, four years after it has ceased operating.¹⁰⁰

Legislation

• Council Decision (CFSP) 2021/509 of 22 March 2021 establishing a European Peace Facility, and repealing Decision (CFSP) 2015/528.¹⁰¹

Objectives

The European Peace Facility is a new budget designed to finance military operations carried out by the EU or its allies, or to provide equipment, training or other assistance to those allies. As with the European Defence Fund, the establishment of the EPF is indicative of a renewed emphasis on the importance of ‘hard power’ in international affairs, and a growing attempt by the EU institutions to ensure they can project power abroad, whether through EU military operations or the financing of allies’ operations. The substantial amount of money that is being made available, however, is not formally part of the EU budget (see section 5.5.2).

The use of the word ‘peace’ in the name of the fund can only be described as Orwellian, given that this is a budget designed to increase the EU’s ability to launch or assist various types of military operation,¹⁰² significantly expanding on its current efforts. The text states that this is ultimately supposed to pursue ‘the objective of preserving peace, preventing conflicts and strengthening international security, in accordance with the purposes and principles of the Charter of the United Nations’. The intended direction of travel is clear and has long-been stated – as the then-Commission President Jean-Claude Juncker put it in June 2017: ‘soft power alone is not powerful enough in an increasingly militarised world’. The depressing conclusion is that the EU should start massively increasing its contribution to militarising the world, in order to try and match that of its perceived competitors – namely Russia and China.¹⁰³

Activities and beneficiaries

Funds channelled through the EPF will finance:

• EU military operations launched as part of the Common Security and Defence Policy;
• military support to non-EU states;
• ‘peace support operations led by a regional or international organisation or by third states’;
• other EU military or defence operations.

EU military operations are referred to in the text as ‘operations’, while the term ‘assistance measures’ is used to describe ‘actions to strengthen the capacities of third States and regional and international organisations relating to military and defence matters’, as well as ‘support to military aspects of peace support operations led by a regional or international organisation or by third States’.¹⁰⁴ Confusingly, assistance measures can be implemented through operations.¹⁰⁵

The Decision establishing the EPF sets out a number of potential objectives for assistance measures:

• to strengthen the capacities relating to military and defence matters and resilience of third states and of regional and international organisations;
• to contribute rapidly and effectively to the military response of third states and of regional and international organisations in a crisis situation;
• to contribute effectively and efficiently to conflict prevention, stabilisation and peace consolidation, including in the context of operations with tasks of training, advice and mentoring in the security sector, as well as in other pre-conflict or post-conflict situations;
• to support cooperation in the area of security and defence between the Union and a third state or a regional or international organisation.

There are numerous potential beneficiaries of the EPF. While it is the successor to the African Peace Facility (APF), it is wider in scope in two key ways (and, notably, it is now no longer necessary for the EU to seek the assent of the African Union to fund operations or assistance measures in African states). Firstly, while most of the EU’s military operations are currently in African states,¹⁰⁶ EPF money can be spent around the globe. Second, it will be possible to use EPF funds to pay not just for items such as transport, billeting or training, but also for weapons, something previously not possible. As if to demonstrate both these novel aspects of the new fund, the EU has so far provided €1 billion in military assistance to Ukraine, ¹⁰⁷ – ‘Another taboo has fallen… The taboo that the EU was not providing arms in a war, yes we are doing it,’ said foreign policy chief Josep Borrell after agreement on the first round of funding for the Ukrainian military.¹⁰⁸

Member state authorities and agencies, primarily their militaries, will be responsible for conducting operations. Member state authorities and agencies may also be responsible for carrying out assistance measures, although the Council of the EU is able to delegate that task to numerous other actors: international or regional organisations; non-EU states that do ‘not contravene the security and defence interests of the Union and its Member States… [respect] international law and, where relevant, the principle of good neighbourly relations with Member States’; or EU bodies or agencies. The implementing actor may be some other type of organisation or agency in ‘exceptional circumstances’.¹⁰⁹

Funding and control methods

Decisions over when and where to launch EU military operations or assistance measures will remain with the member states. Proposals for those decisions can be made by either the High Representative for Foreign Affairs and Security Policy, who heads the European External Action Service (EEAS, potentially acting alongside the European Commission) or by a member state.¹¹⁰

The EPF can be used to cover the ‘common costs’ of both the preparatory and active phases of operations. The preparatory phase is deemed to last ‘from the approval of the crisis management concept until the appointment of the operation commander’, while the active phase ‘runs from the date on which the operation commander is appointed to the day on which the operations headquarters ceases its activity’. Precisely what the common costs are in each of those phases is set out in a series of detailed annexes to the Decision establishing the EPF.¹¹¹ In certain cases, the EPF may also manage expenditure ‘to facilitate the initial deployment of the forces to an operation, before it has been confirmed which Member States will contribute personnel or assets to an operation’.¹¹² The EPF will also fund the common costs of EU military exercises.¹¹³

Member states can choose not to participate in any particular operation, absolving them from the obligation to contribute to its costs.¹¹⁴ Likewise, a member state may choose not to contribute funds to an assistance measure that involves ‘the supply of military equipment, or platforms, designed to deliver lethal force’. If it does so, however, it must ‘make an additional contribution to assistance measures other than those concerning the supply of such equipment or platforms’,¹¹⁵ thus leaving it complicit in the use of lethal force. Those other assistance measures can be existing ones, ‘possible future measures for which a concept note has been presented or approved by the Council, or new measures requested by the abstaining state’.¹¹⁶1

Despite the availability of these partial opt-outs, all member states except Denmark are obliged to contribute to the costs of ‘support and preparatory expenditure on operations’ that are ‘not linked to a specific operation’,¹¹⁷ and all member states must contribute to expenditure for assistance measures. These contributions can cover, among other things, ‘indemnities for damages and costs resulting from claims and legal actions to be paid through the Facility’; ‘expenditure for contract staff working for the Facility and administrative support in headquarters and delegations’; and even ‘costs necessary for exploratory missions and preparations (in particular fact-finding missions and reconnaissance) by military and civilian personnel with a view to a specific Union operation’.¹¹⁸ The exact amount of each state’s contribution to the EPF is to be determined annually in accordance with separate EU rules.¹¹⁹

It will also be possible for member states and non-EU states to make ‘voluntary financial contributions’ to the EPF. The legal framework governing any particular operation or assistance measure must set out how such contributions are to be managed, if the Political and Security Committee (a Council working party) agrees to accept them. Those contributions ‘may be earmarked for a particular project in support of the operation or assistance measure’.¹²⁰

A new administrative structure is being set up to assist in the implementation of the EPF. The budget will be ‘managed under the authority and direction’ of a Facility Committee. A number of officials will be responsible for day-to-day management of the Facility’s affairs: an administrator and accountant for operations; the operation commander of each operation financed by the EPF; and an administrator and accountant for assistance measures.¹²¹ In the case of operations, responsibility for making use of the funds provided by the EPF lies with either the operation commander or the relevant accounting officer.¹²² In the case of assistance measures, either the direct or indirect management method may be employed. In the case of the latter, the Council of the EU is to decide exactly whom will be the ‘implementing actor’, with possibilities ranging from member states to EU agencies (as explained above).

The Facility Committee itself is to be made up of a representative of each member state, with the state holding the Presidency of the Council of the EU serving as chair. European External Action Service (EEAS) and European Defence Agency (EDA) representatives may be invited to attend its meetings, but without voting rights. The Committee is to adopt the annual budget (and any amending budgets); approve the annual accounts; and adopt implementing rules covering how money is to be spent for both operations and assistance measures. For non-procedural matters, decisions require unanimous agreement amongst those eligible to vote on the subject in question. Control of the EPF thus rests firmly in the hands of the member states, with no formal role whatsoever for the European Parliament.

The Facility Committee is obliged to establish a ‘minimum deposit system to provide early financing for Union rapid response operations and urgent measures’,¹²³ although these cannot involve the provision of any ‘military equipment, or platforms, designed to deliver lethal force’.¹²⁴ The Council is to take decisions on when and where to launch any such rapid response operations or urgent measures.

The Committee is also responsible for approving the final destination, following completion of an operation, of equipment and infrastructure purchased with EPF funds. Infrastructure can either be sold or transferred to the host country undertaking an operation, a member state or a third party, while equipment can be sold or stored for subsequent use by the host country, a member state or a third party. However, infrastructure and equipment do not necessarily have to be disposed of – the Facility itself may retain it after an operation is wound up. If it is decided that the Facility should keep ownership of infrastructure or equipment, ‘the contributing Member States may ask for financial compensation from the other Member States except Denmark’.¹²⁵

There are some explicit fundamental rights obligations placed upon the Facility Committee, which must examine any proposed budgetary implementing rules ‘in close cooperation with the administrators, in particular with a view to ensuring that the implementing rules will comply with the principles of sound financial management and non-discrimination and respect for fundamental rights’.¹²⁶

The text also includes a number of explicit principles for assistance measures. They ‘must be consistent with the policies and objectives of the Union’s external action aiming at building peace, preventing conflicts and strengthening international security’, and ‘they must respect the obligations of the Union and its Member States under international law, in particular international human rights law and humanitarian law’.¹²⁷ They must also comply with EU rules on arms exports. Any assistance measure has to be accompanied by:

‘…an assessment from the High Representative, including a conflict sensitivity and context analysis, and a risk and impact assessment, and include appropriate safeguards, controls, mitigating and flanking elements and arrangements for monitoring and evaluation’.¹²⁸ An example of such an assessment, concerning the provision of arms to Ukraine, was published by Statewatch at the end of March 2022. ¹²⁹ There are no such explicit principles or requirements included for operations (which will primarily be conducted by EU member state military forces, rather than third countries), apart from any general obligations such as compliance with the Charter of Fundamental Rights, European Convention on Human Rights, international human rights law and international humanitarian law.

Monitoring, reporting and transparency

The Council is obliged to review the legislation establishing the EPF every three years. The format of that review is not set out in the legislation – for example, there is no requirement to produce a report of any kind, whether public or not, nor is there a requirement for an independent, external evaluation – but the text does say that for the purposes of that review, ‘all experts relevant to the proceedings, including in the Committee and the Facility management bodies, may be called upon to contribute to the discussion’. As with all other aspects of the fund, there is no requirement for the involvement of any democratically elected officials or institutions, namely the European or national parliaments.