The EU provides funding for programmes and projects on infrastructure, skills and education, scientific research, creating jobs and improving health. Projects often delivered by people such as researchers, businesses, farmers and public bodies. These funds are significant and make up more than a third of the EU’s overall budget. For example, EU and Member State combined spending on Cohesion Policy will amount to over 529 billion Euros between 2021 to 2027. Spending on other funds has increased very significantly, including the Border Management and Visa Instrument (BMVI) (by 131 %), Internal Security Fund (ISF) (by 90 %) and Asylum, Migration and Integration Fund (AMIF) (by 43%).
However, the EU applies strict rules on how the money should be spent. The EU legislator strengthened the rules on complying with fundamental rights in 2021. Since then, the fact that expenditures must meet certain conditions linked to fundamental rights has received increased public attention.
These rules regarding fundamental rights are known as ‘enabling conditions’, which means there is an explicit requirement for effective mechanisms to implement the obligations under the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) and ensure compliance of the programmes governed by these funds with the Charter of Fundamental Rights of the European Union (the Charter). Authorities managing EU funds must involve relevant partners including bodies representing civil society and other fundamental rights actors to ensure that these obligations are duly respected.
These rules regarding fundamental rights, or ‘enabling conditions’, apply to eight EU funds, listed below. They are set out in Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 (Common Provisions Regulation) for the programming period 2021–2027, hereafter referred to as CPR 21–27.
This report explores the challenges in effectively implementing the fundamental rights safeguards in the CPR 21–27 through the involvement of fundamental rights actors as partners in the funding process. It also examines the role of independent fundamental rights bodies and civil society organisations (CSOs) dealing with fundamental rights in the programming, implementation and monitoring of EU funds at EU and national levels.
The report explores the role of independent fundamental rights bodies. However, the research findings also concern civil society actors and their needs, for example, civil society organisations (CSOs) working in fundamental rights whose role in raising fundamental rights issues is often similar. Nonetheless, there is a difference between the NHRIs (independent statutory institutions conforming with the UN Paris Principles), Equality Bodies (public institutions required under EU legislation) and civil society actors.
Regarding terminology, this report uses the term ‘independent fundamental rights bodies’ when referring to national human rights institutions, equality bodies, ombudsperson institutions. This includes other independent bodies monitoring specific international human rights obligations, as outlined in Article 33 (2) of the CRPD.
For more information about national human rights institutions and their accreditation status and mandates, see FRA’s annual update from December 2022.
Legal corner
Effective application and implementation of the Charter and the CRPD
The obligation to observe the Charter in EU funds is made very explicit in the governing regulations. Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 (Common Provisions Regulation) lays down common provisions for specific EU funds for the programming period 2021–2027. These include enabling conditions on the effective application and implementation of the Charter and on the implementation and application of the CRPD (see Table 1). The eight EU funds are as follows:
Involving fundamental rights actors
Member States shall establish partnerships with relevant bodies representing civil society, such as “non-governmental organisations” and “bodies responsible for promoting social inclusion, fundamental rights, rights of persons with disabilities, gender equality and non-discrimination”, according to Article 8 (1) (c) of the CPR 21–27.
This report is based on research in 12 Member States: Bulgaria, Croatia, Cyprus, Estonia, Finland, France, Germany, Greece, Latvia, Poland, Portugal and Slovakia. FRA used desk research, national roundtables and semi-structured interviews with relevant stakeholders in 2022 and 2023 (see Methodology). Findings emerged in three areas: participation, capacity and complaints mechanisms.
The opinions are based on FRA’s research into lessons learned from the CPR 14–20 and emerging experiences under the CPR 21–27. They make practical suggestions on how EU Member States could make the Charter and CRPD-related enabling conditions more effective. They suggest that independent fundamental rights bodies and relevant CSOs should be actively and meaningfully involved.
In addition, following the opinions, ways forward are outlined as ‘takeaways’ for independent fundamental rights bodies indicating actions they could take to support this approach.
The CPR 21–27 sets out that Member States shall establish “comprehensive” partnerships with many actors in society. These include relevant bodies representing civil society, such as bodies responsible for promoting social inclusion, fundamental rights, rights of persons with disabilities, gender equality and non-discrimination. Such partners need to be involved in all relevant phases of the process, namely throughout the preparation, implementation and evaluation of programmes, according to Article 8. Article 39 obliges Member States to “ensure a balanced representation of the relevant Member State authorities and intermediate bodies and of representatives of the partners referred to in Article 8 (1) through a transparent process.” According to Article 2 of the CPR 21–27, intermediate bodies are public or private bodies that act under the responsibility of a managing authority or carry out functions or tasks on behalf of such an authority.
Some CSOs and independent fundamental rights bodies participated as partners in the previous programming period (2014–2020). However, there is significant scope for further enhancing the number and range of organisations involved. This includes involving organisations in both the early stages of the programming period, such as preparing the programming documents, and in the implementation phase, such as participating in monitoring committees.
Improvements are also needed in how participation is realised. FRA’s research indicates that fundamental rights actors feel that, when they are invited to participate, the form of consultation does not allow them to meaningfully engage in the process. Often, there is a significant amount of documents to review and there are tight deadlines to review and provide input. They also highlight that the rather technical nature of the discussions in the monitoring committees does not allow them to easily identify the key information for assessing fundamental rights risks and opportunities.
Involving independent fundamental rights bodies and specialised CSOs in an efficient and targeted manner is a way to integrate the fundamental rights dimension into the programming period and help prevent fundamental rights violations.
In this context, conflict-of-interest regulations and standards on the independence of national human rights institutions (NHRIs) and equality bodies are relevant. Amongst these are the Commission Recommendation (EU) 2018/951 of 22 June 2018 on standards for equality bodies or the Paris Principles, a set of international standards governing the status and functioning of NHRIs.
Member States should consult independent fundamental rights bodies and specialised CSOs upfront in the process of implementing the funds covered by the Common Provisions Regulation, including on calls for proposals and selection criteria. To ensure that the relevant bodies and their expertise are included, Member States should invite independent fundamental rights bodies to participate in monitoring committees as a matter of routine and in a manner that fully respects their mandate and independence. Member States should ensure effective coordination, cooperation and communication at national level between the managing authorities, CSOs and independent fundamental rights bodies.
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According to Article 44 of the CPR 21–27, Member States or the managing authority are to carry out evaluations of the programmes. It lays down that, as well as effectiveness, efficiency, relevance or consistency, these evaluations may cover “other relevant criteria, such as inclusiveness, non-discrimination and visibility”. Member States or the managing authority must ensure that the necessary procedures “to produce and collect the data necessary for evaluations” are set up.
Without fundamental rights evaluations, it is difficult to follow up on and to further develop the implementation of the fundamental rights requirements set out in the CPR 21–27 and the fundamental rights-relevant targets set out in the programmes.
Member States should conduct periodic evaluations of fundamental rights issues upfront in the process of implementing EU Funds covered by the Common Provisions Regulation to ensure fundamental rights-relevant thematic targets are met and obligations under the horizontal enabling conditions on the Charter and the CRPD are respected. They should set up indicator frameworks in the programming phase and ensure that relevant fundamental rights data are gathered so that the fundamental rights impact of funded operations can be measured. Member States should consult independent fundamental rights bodies and specialised CSOs on such indicator frameworks.
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Often, insufficient attention is given to setting up clear indicator frameworks to evaluate fundamental rights issues in the programming phase, the research found. That results in a lack of specific criteria in the evaluation phase of the operations. This then makes evaluation less effective, as data on fundamental rights impacts may not have been gathered.
There is often a lack of communication and cooperation on fundamental rights between the various relevant actors involved in the EU programming period, namely managing authorities, CSOs and independent fundamental rights bodies.
The European Commission should actively promote the use of its Code of Conduct on Partnership, a delegated regulation from 2013 instructing Member States how to implement the CPR 14–20 partnership principle by promoting the inclusion of the expertise of independent fundamental rights bodies and specialised CSOs throughout programming period.
The tasks and obligations set out in Articles 72 and 73 of the CPR 21–27 require managing authorities to establish and apply criteria and procedures for the selection of operations that are non-discriminatory and transparent, ensure accessibility to persons with disabilities, ensure gender equality and take account of the Charter. To fulfil this obligation optimally, the managing authority and the related programming bodies should be well trained and informed so that they can define these criteria and detect operation proposals that risk violating fundamental rights from the outset.
If at any phase in a programming period it appears that an operation could result in a violation of fundamental rights, an assessment needs to be carried out on whether to use funding suspension or interruption mechanisms. Financial corrections may be applied if a breach is identified that constitutes an irregularity. This requires advanced fundamental rights expertise. At the same time, expertise is required about positive obligations under international and European human rights law and about national fundamental rights policies and action plans or strategies. Such expertise is needed to determine the potential of EU-funded operations to promote fundamental rights and to ensure that EU funds are used in a manner that potentially complements fundamental rights policies.
FRA’s research confirms that there is a need for more fundamental rights training of officials working for managing authorities or otherwise involved in administering EU funds, in particular at regional and local levels. Interlocutors, for example, perceive the Charter and CRPD as quite ‘abstract’ and find it difficult to apply these instruments in their daily practice.
Member States should ensure that the officials dealing with programming and implementation of the funds governed by the CPR 21–27, as well as fund beneficiaries, have sufficient expertise, tools and expert advice at their disposal to fulfil the Member States’ obligation to apply the Charter and the CRPD correctly, including by ensuring dedicated and focused training.
Similarly, those in receipt of EU funds, i.e. beneficiaries responsible for implementing operations supported by the funds, need sufficient training and guidance on how to plan and implement operations in a fundamental rights-compliant manner. Without training and guidance, the horizontal enabling condition in the CPR 21–27 may unintentionally be disregarded given that that the reference to fundamental rights in calls for applications is often not specific enough to be useful to beneficiaries. Both officials and beneficiaries often do not turn to independent fundamental rights bodies for advice on or to ask questions about fundamental rights issues as it may not be customary to do so. Furthermore, there seems to be a need to improve managing authorities’ level of scrutiny of the implementation of fundamental rights requirements in programmes and funded operations, the research indicates. Compliance concerns have been raised, especially with regard to the funding of settings that are prolonging or enhancing segregation in the areas of education and care in institutions.
Member States should provide for avenues that allow officials to easily access specialised fundamental rights expertise, for instance by appointing a fundamental rights focal point or allowing officials to consult independent fundamental rights bodies on specific questions that may arise throughout the programming period or on developing fundamental rights guidance and training. Officials and beneficiaries should have access to practical guidance on fundamental rights issues relevant to them, such as checklists based on the Commission’s 2016 ‘Guidance on ensuring the respect for the Charter of Fundamental Rights of the European Union when implementing the European Structural and Investment Funds’.
Civil servants, beneficiaries, CSOs and other actors often lack knowledge of the roles, responsibilities and competences of other actors and institutions involved, interviews and roundtable discussions reveal. There is a call from stakeholders for more cooperation and coordination regarding correctly applying the Charter and the CRPD in the context of funds governed by the CPR.
The European Commission should support the Member States in implementing their fundamental rights obligations under the CPR 21–27 by coordinating and/or providing training and developing further guidance for officials and beneficiaries at EU level. Such guidance could then serve as a basis for national training material being developed.
Working with EU funds is a complex task. The funds governed by the CPR provide resources worth many billions of euros to tens of thousands of projects in each programming period. Each Member State receives funding from multiple different funds and through a wide variety of different programmes.
International documents such as the UN Paris Principles on the status of NHRIs, the Council of Europe principles on the protection and promotion of ombudsman institutions and the European Commission’s recommendation on standards for equality bodies underline that independent fundamental rights bodies need to be provided with the human, technical and financial resources necessary to perform their tasks and exercise their powers effectively. FRA’s 2020 report Strong and effective national human rights institutions challenges. Promising practices and opportunities also highlighted this. It calls on the EU to consider “more funding opportunities to help NHRIs develop expertise on the Charter’s application at national level. This could facilitate their role in assisting Member States apply the Charter, including in law and policy making and when using European structural and investment funds” (p. 14).
The resources allocated to such bodies need to take into account their competences and tasks. FRA’s research and capacity-building work with NHRIs, funded by beneficiary states of the European Economic Area (EEA) and Norway Grants, reveals that, so far, relatively few NHRIs have been involved in monitoring funds governed by the CPR at national level. While such bodies’ advisory role could be very useful at the preparation, implementation and monitoring stages, a lack of resources and expertise on EU funds-related procedures tends to prevent such involvement, FRA research reveals.
Member States should, in accordance with international standards, make sure that, when independent fundamental rights bodies are engaged in the preparation, implementation or monitoring and evaluation of EU-funded programmes and operations, including through participation in monitoring committees, they are provided with sufficient and where required additional human, technical and financial resources so that they are able to perform their core tasks and exercise their powers effectively, including at the local or regional level.
Effectively involving both independent fundamental rights bodies and specialised CSOs throughout the programming period requires enhancing their financial, technical and human resources capacity. It is key that Articles 36 and 37 of the CPR 21–27 provide for the opportunity for the relevant funds to support capacity building and undertake additional technical assistance actions. Doing so will reinforce the capacity and efficiency of partner bodies such as independent fundamental rights bodies. Providing these resources is also possible under Article 9 of Regulation (EU) 2021/1057 of the European Parliament and of the Council of 24 June 2021 establishing the European Social Fund Plus (ESF+) (ESF+ Regulation). This appears to be a key opportunity that has so far not been sufficiently utilised.
Member States and their managing authorities should fully use the potential granted by Articles 36 and 37 of the CPR 21–27 to fund capacity building and additional technical assistance for independent fundamental rights bodies that are included in a partnership in the meaning of Article 8 of the CPR 21–27. Member States should also fully use similar fund-specific technical assistance, such as the assistance on the delivery of employment, education and social inclusion policies provided in Article 9 of the ESF+ Regulation. Such capacity building should include training on the functioning of EU funds and their related procedures.
Article 69 (7) of the CPR 21–27 requires Member States to make arrangements to ensure the effective examination of complaints concerning the funds, including those concerning fundamental rights. Complaints may cover any dispute between potential and selected beneficiaries regarding the proposed or selected operation and any disputes with third parties on the implementation of the programme or operations. Third parties might include, for example, fundamental rights CSOs objecting to funding for operations that they consider violates the Charter and/or the CRPD. This requires a transparent process for submission and follow-up between the designated national authorities and the potential beneficiaries. Article 69 (7) of the CPR 21–27 requires Member States to have an effective complaints mechanism for complaints relating to the Charter and the CRPD.
Member States should ensure the possibility of an independent review of decisions by fund managers on fundamental rights grounds through transparent and effective complaint mechanisms. Such mechanisms need to be equipped with sufficient expertise and capacity to handle complaints based on fundamental rights. Member States should ensure that prospective complainants are pointed to the right body or bodies to file complaints, including by making relevant information on both complaint bodies and Charter arrangements available on dedicated Fund websites and clearly designating entry points for complaints. They should consult independent fundamental rights bodies when setting up complaint mechanisms. Whenever the Commission is alerted about fundamental rights concerns in the implementation of the funds, it should examine whether the issues are properly resolved at national level. If this is not the case, or if repeated violations occur, the Commission should refuse reimbursement in line with Article 15 CPR.
Research indicates that complaints mechanisms are often insufficiently advertised to relevant stakeholders and the wider public. Moreover, there is often a lack of coordination between the various bodies involved. Therefore, individuals and organisations may not always be aware of the possibility to file complaints on fundamental rights grounds regarding the funds governed by the CPR 21–27.
In addition, the staff handling complaints mechanisms sometimes also lack the required fundamental rights expertise and are more experienced in dealing with complaints related to misuse of financial resources. The European Ombudsman has made relevant recommendations in this regard, including on enhancing the powers of complaint-handling bodies. In relation to the CRPD, it is currently not possible for individuals to complain to the Committee on the Rights of Persons with Disabilities about EU acts or omissions, as the EU has not yet ratified the Optional Protocol to the CRPD.
In more general terms, it appears that information about the governance of the funds, especially the national Charter “arrangements” in the context of fundamental rights, is not easily accessible.
The EU should consider ratification of the Optional Protocol to the CRPD to allow the Committee on the Rights of Persons with Disabilities to receive and consider communications from or on behalf of individuals or groups of individuals who claim to be victims of a violation of the CRPD by the European Union.
The European Commission is invited to assign special importance to further improving the effectiveness of the Charter enabling condition when evaluating and when reviewing the CPR 21–27 and the fund-specific regulations. When reviewing the CPR 21–27 in 2027, it will be useful to consider whether the partnership principle could be further strengthened and whether the new legal environment of the EU needs to be reflected in the text. With the pending accession of the EU to the European Convention on Human Rights and the already approved accession to the Council of Europe Convention on preventing and combating violence against women and domestic violence, the EU legislator could consider including these two prominent frameworks in the enabling conditions in the next programming period (2028–2034). This would further strengthen the role of fundamental rights in the context of EU funds.
Independent fundamental rights bodies could:
