Ellen Cantraine, PhD researcher, Ghent European Law Institute

Photo credit: Dietmar Rabich / Wikimedia Commons / “Münster, Stadtweinhaus, Beflaggung Ukraine und EU – 2022 – 0219” / CC BY-SA 4.0 / see also

Introduction

Following the 2021 coup attempt in Mali, the EU’s mission in Mali (EUTM) continued operating despite concerning reports of serious misconduct by EU-trained soldiers. Funded by the European Peace Facility (EPF), EUTM’s case exposed significant flaws in the EU’s external funding mechanisms. The UN International Commission of Inquiry for Mali found that Malian forces trained under EUTM engaged in numerous abuses, including extortion, mistreatment, and unlawful killings.

February 2022 marked a pivotal moment when the EU Council unanimously decided to use the EPF to supply Ukraine with lethal military equipment (EPF Council Decision 2021/509). Subsequently, in October 2022, the Council established the European Union Military Assistance Mission in support of Ukraine (EUMAM), with the EPF providing up to 106 million euros. This unprecedented move, described by EU Foreign Policy Chief Josep Borrell as breaking another taboo, raises concerns about human rights adherence, transparency, democratic oversight, and accountability regarding the EPF’s implementation in Ukraine.

Background

Financed by EU member states, the EPF is an off-EU budget mechanism supporting military and security operations, including training, equipment, and providing lethal weapons to partner countries. Building on the experiences of the Athena Mechanism and the African Peace Facility (APF), the EPF has become the primary funding source for the EU’s crisis management and conflict prevention efforts since 2021. Intended to support the EU’s Global Strategy, the EPF facilitates military and security-focused Common Foreign and Security Policy (CFSP) operations. Due to Article 41(2) of the EU Treaty prohibiting the use of the regular budget for military activities, the EPF operates off-budget, requiring unanimous approval from member states for fund allocation. Despite this, member states remain bound by Article 21(1) of the EU Treaty, which emphasizes upholding the rule of law in external relations, making the legality and compliance of recent arms deliveries to Ukraine a pertinent question.

The EU, founded on the rule of law, aims to promote its values through external actions (Article 2 TEU and 21(1) TEU). Crucial to the EU’s credibility in CFSP and Common Security and Defence Policy (CSDP) is its ability to uphold its own standards and values, reflected in Article 56(2) of the EPF Council Decision, which mandates compliance with EU law, policies, and strategies, including the Integrated Approach to external conflicts. However, the lack of judicial review by the Court of Justice of the European Union (CJEU) concerning these assistance measures, coupled with the CJEU’s limited control over CFSP and CSDP missions, raises concerns about the EPF’s transparency, accountability, and democratic oversight mechanisms, particularly regarding the use of funds and potential misuse of EU-supplied equipment.

Previous research on accountability mechanisms available to the EU in CSDP missions highlights the potential for human rights violations and the questionable sufficiency of existing accountability mechanisms in providing adequate protection for victims (Øby Johansen, 2016). While some argue that current lethal aid to Ukraine aligns with EU and international law principles, concerns remain about potential misuse and the complexities surrounding international responsibility and accountability (Rutigliano, 2022). This is particularly relevant considering the EPF’s extra-budgetary nature, lack of parliamentary control, and exemption from CJEU judicial review.

Problem statement

Given the inherent risks of misuse associated with lethal equipment, particularly in fragile contexts (Maletta & Héau, 2022), the provision of arms through an extra-budgetary fund like the EPF necessitates transparency (European Parliament resolution, February 17, 2022). This aligns with the EU’s integrated approach to external conflicts and crisis, promoting good administrative practice, a cornerstone of the rule of law. Although the principle of good administrative practice (Charter Articles 41 and 42) does not directly apply to CSDP missions (not considered EU bodies under Article 15(3) TFEU), the European External Action Service (EEAS) remains bound by it. The European Ombudsman defines maladministration as any action by an institution or body failing to comply with the law, principles of good administration, or human rights. Ensuring transparency in arms supply, especially with recent developments like supplying battle tanks to Ukraine, is crucial for aligning with Council Decision (CFSP) 2020/1464 Article 1e, particularly considering Ukraine’s pre-invasion status as a hub for illegal arms markets (Fotidiadis & Schmidt, 2022). The EPF, however, demonstrates a concerning lack of consideration for EU principles such as transparency, democratic control, and accountability.

The EU’s Global Strategy emphasizes commitment to accountability, responsibility, effectiveness, and transparency. Recognizing that legal and institutional transparency is essential for accountability (Judgment of April 21, 2021, Pech v Council) and upholding the rule of law in CSDP missions (European Parliament, Human Rights Factsheet), the EU falls short of its own standards in practice. The Integrated Methodological Framework (IMF) dictates arms delivery processes and requests under the EPF, outlining guiding principles and addressing concerns related to CSDP missions like EUMAM and EPF assistance. This framework, however, is not publicly available, raising concerns about transparency and accountability.

A complaint lodged with the European Ombudsman in January 2022 to disclose the IMF was rejected based on Article 15 TFEU, with the EEAS arguing that disclosure could jeopardize public interest (European Ombudsman, Case 124/2022/NH). While transparency is essential for a accountable and lawful system upholding the rule of law, the legal framework for public access to documents does not extend to CSDP missions. As they are not considered EU bodies under Article 15 TFEU (Judgment of November 12, 2015, Elitaliana SpA v Eulex Kosovo), they operate under the Council and the High Representative for Foreign Affairs and Security Policy, exempting them from access to document requirements and Charter Articles 41 and 42. To address this gap, some CSDP missions implement specific policies for public access to documents (EUNAVFOR MED Operation SOPHIA), but overall transparency remains reliant on the goodwill of each mission. Calls for increased top-down transparency are evident in the European Parliament’s 2021 annual report on CSDP missions, which urges regular and transparent evaluations of all missions and actions.

Beyond transparency concerns, the arms delivery process lacks democratic oversight. The Lisbon Treaty did little to enhance the European Parliament’s scrutiny over CFSP and CSDP. Furthermore, the EPF, as an intergovernmental CFSP instrument, excludes the European Parliament from formal oversight. Instead, the EEAS handles monitoring and control based on on-the-ground situations, despite questions about the accuracy of their risk assessments, evidenced by the Mali situation. Despite training Malian Armed Forces under EUTM, some members committed abuses (UN International Commission of Inquiry for Mali, 2021). A former EUTM trainer even suggested that these abuses justify the EU’s training mission, claiming that a perfect Malian army wouldn’t require EUTM support. This highlights shortcomings in the EEAS’s follow-up on missions and the lack of transparency in making policy documents public. While acknowledging the need for some military confidentiality, legal and institutional transparency is paramount for accountability (Barnard & Peers, European Union law 2017).

The absence of adequate safeguards against human rights violations has prompted NGO action, with a complaint filed with the European Ombudsman in October 2022 alleging the EEAS’s failure to conduct proper human rights risk and impact assessments regarding technical assistance to non-EU countries (European Ombudsman, Case 1472/2022/MHZ). The EEAS, obligated to uphold human rights and the rule of law in relations with third countries, offers tools in the EU Action Plan on Human Rights and Democracy 2020-2024, but these remain largely ineffectual regarding CSDP missions due to their classification and oversight falling under the EEAS. Despite this, the EEAS demonstrates a lack of ex-ante human rights impact assessments, a valuable tool for evaluating potential CSDP mission impacts. Currently, the balance between secrecy and transparency leans heavily towards secrecy, jeopardizing human rights and the rule of law.

National parliaments, under Articles 10(2) and 12 TEU, could potentially exercise an oversight role if the EEAS fails. However, they lack the knowledge, experience, and information necessary for effective democratic control over specialized CFSP budget allocations. This results in weak de facto and de jure accountability at both European and national levels due to inadequate democratic powers, information shortages, and lack of transparency. While the European Parliament seeks more control to enhance EPF accountability and transparency, the TEU lacks legal grounds for this. Consequently, CSDP missions operate with minimal political oversight, raising concerns about checks and balances, particularly regarding international human rights.

Existing research on accountability highlights the inadequacy of mechanisms at the European level, with accountability primarily falling on member states for CSDP and CFSP actions. In cases of misused weapons in Ukraine, the supplying member state can be held responsible, but this relies on sufficient information to identify the responsible party. While the European Parliament’s potential scrutiny of EU actions within CSDP missions could address accountability limitations (Schmidt, 2020), its notable absence from the EPF raises further concerns.

Operating under a Facility Committee, the EPF’s current governance structure prioritizes cost reduction and consistency over international human rights compliance. The need for transparency and accountability is amplified in light of past CSDP mission abuses, which are often concealed. Addressing transparency, accountability, and democratic control is crucial to prevent history from repeating itself.

Concluding remarks

The EPF, a new off-budget fund, presents significant concerns regarding transparency, parliamentary oversight, and accountability, issues already identified as problematic in CSDP missions. Without robust safeguards, the EPF risks undermining the rule of law globally and potentially contributing to human rights abuses. This lack of adequate rule of law mechanisms contradicts the EU’s aim to “lead by example” in international relations and its stated commitment to transparency, accountability, and responsibility within its integrated approach.

While the EPF makes strategic and operational sense in the current geopolitical climate, ensuring its governance structure operates effectively and learns from past mistakes is crucial. The current approach appears to prioritize rapid action over clearly defined frameworks for democratic scrutiny, transparency, and accountability. While swift action is vital during crises, it cannot come at the expense of EU values and international human rights. The lessons of the past should guide present actions, not be repeated.

While the EPF is instrumental in bolstering Europe’s military capacity and decisiveness during crises, concerns remain. Given existing accountability issues, emphasizing ex-ante transparency and democratic scrutiny by the European Parliament is essential for ensuring respect for international human rights and the rule of law. The EU’s ambition to be a ‘credible Union’ upholding its values of accountability, transparency, and democratic control in its external actions falls short without addressing these fundamental issues.