21st Jan 2019

Development NGOs issue legal warning over new EU foreign service

  • NGOs are adamant that development co-operation not be taken out of the hands of the commission (Photo: etrenard)

The European development NGO community has attacked the EU's already quite well advanced plans to subsume aid policy under the rubric of its new diplomatic corps, arguing that the new set-up will make development a mere pawn of foreign and security policy and that this is illegal under the Lisbon Treaty.

A coalition of almost the entire community of development organisations have warned that legal action could be taken against foreign affairs chief Catherine Asthon's proposal for the External Action Service to prevent the EAS from taking over development policy.

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Concord, the umbrella group of all European development groups together with CIDSE, the alliance of European Catholic development charities, Aprodev, its Protestant counterpart, and Eurostep, the secular aid coalition, together sought legal advice from White & Case, a UK law firm, whose analysis came back saying: "The EAS may be in breach of objectives and competencies laid down in the Lisbon Treaty."

"The role of the EAS under the EU treaties is restricted to the EU's Common Foreign and Security Policy (CFSP), which represents only part of the EU's external action.

"Development co-operation is outside the scope of the CFSP and therefore the EAS has no capacity in respect of it," the legal analysis reads. The CFSP is the agreed foreign policy of the EU for mainly security and defence diplomacy and actions.

"The Ashton proposal, which is intended as an instrument setting out the organisation and functioning of the EAS, cannot alter areas of competence as defined under the treaties, such as the ‘exclusive competence' of the commission in development co-operation activities.

"Detracting from the exclusive competence of the commission would require a formal treaty amendment."

Stripping away the jargon, essentially the development groups believe that the European Commission is less ‘political' than the member states.

It has been the sole agent responsible for development policy and implementation until now, and they fear that the commission is having its powers in this area diluted or even stripped away.

They view the EU executive as an organisation that in principle is supposed to stand above national interests and represent the interest of Europe as a whole and so is a better manager of development policy.

They worry in particular that with the development area being placed in the hands of the EAS, the member states will now have their fingers in the pie and will subordinate poverty reduction in the third world to less altruistic foreign policy imperatives.

Simon Stocker, the director of Eurostep, warned in particular against a "politicisation" of EU aid.

According to Roeland Scholtalbers, of CIDSE, they do not view the commission as an "angel" in the development realm.

"But this is a matter of principle, serving the common EU interest. Not everything the commission does is positive when it comes to development, particularly when it comes to trade policy, but this is absolutely a regression."

"Member states do not make each other accountable, but the commission does, as they are doing in the example of calling on them to live up to aid promises."

The organisations admit that it is rather late in the game to be raising the issue now - on Monday, foreign ministers signed off on the high representative's proposals - but they nevertheless intend to mobilise all their national organisations to put pressure at the member-state level.

Meanwhile, in Brussels, the groups are going to take the issue to the European Parliament - "one of the European institutions that could launch a legal case to the European Court of Justice, and is still very much a key player in the EAS debate," according to Elise Ford, head of Oxfam's EU office.

"The European Parliament has sent cases to ECJ in the past to challenge the legality of EU decisions and the misspending of the EU development money. It has the power to force member states to reverse their decision," Ms Ford continued.

Mr Scholtalbers told EUobserver that if MEPs do not take legal action, the groups themselves may do so. "If the parliament doesn't act, although we are getting a very good response from MEPs so far, then legal action on our own part becomes quite a serious possibility."

The parliament is already not particularly happy with what it sees as an intergovernmental approach to the EAS rather than EU ‘community' approach.

Political context

An EU official close to the high representative on Tuesday said that he had read the document but was convinced that the proposals are compliant with the Lisbon Treaty.

"The [NGOs'] legal advice overlooks one basic fact: development policy yesterday, today and tomorrow will be based on the [main] instrument adopted on development policy, the European Development Fund [EDF], which is based on rules that very much puts poverty reduction at the forefront of what we want to obtain."

He said that the rules governing the use of EDF funds will not change with the establishment of the foreign service: "When managing these monies, we do it according to EDF rules."

The official however defended the need to place development within the framework of foreign policy: "We are unfortunately living in a world where development depends on political factors. You do not make development in the Sudan or Somalia and forget that there is a political context."

"That is what the EAS is about. It is not a way of trying to divert development money to so-called political purposes. It's about how you best promote the interests of that particular country."

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