The European Union (EU) provides funding to its 27 Member States in order to reduce disparities between countries and to strengthen the EU’s economic, social and territorial cohesion. This is referred to as the EU Cohesion Policy, and it is planned in seven-year cycles, as part of the EU’s long-term budget (also called the Multi-Annual Financial Framework). During the current financial period 2021 – 2027, the Cohesion Policy budget is 392 billion EUR.
In 2021 – 2027, the funding is channelled through the four European structural and investment funds (ESIF), jointly managed by the European Commission and the Member States. These are: the European Regional Development Fund (ERDF), the European Social Fund + (ESF), the Cohesion Fund (CF) and the Just Transition Fund (JTF). In addition, there is Interreg – European Territorial Cooperation, and the European Commission managed EU instruments and technical assistance. These funds go towards five policy objectives: a more competitive and smarter Europe; a greener, low-carbon transitioning towards a net zero carbon economy; a more connected Europe by enhancing mobility; a more social and inclusive Europe; and Europe closer to citizens by fostering the sustainable and integrated development of all types of territories. Each fund is governed by its own regulation (see here for more information).
The key documents in which the Member States’ plans are set out are: Partnership Agreements and the Operational Programmes. These documents are negotiated with and must be approved by the European Commission at the beginning of each 7-year funding cycle. The spending is monitored through the monitoring committees, annual review meetings and final implementation reports.
There is great potential for ESIF to support implementation of the UN Convention on the Rights of Persons with Disabilities in the Member States, including Article 19. For example, the European Social Fund Plus can support access of disabled and older people to personal assistance, the provision of home care services, support for families of children with disabilities, access to work for disabled people, as well as the provision of inclusive education. Through technical assistance, these funds can support, among other, the work of disabled people’s organisations, as well as development of strategies and action plans (for example, on deinstitutionalisation). The European Regional Development Fund, which funds hard measures (infrastructure), can support, among other, the development of social housing, housing adaptations, the building of community mental health centres, the provision of technical aids and devices, as well as accessibility of mainstream services (for example, making schools, transport, public services, the built environment accessible). Coordination between the soft and hard measures is crucial, to ensure that funding is available to run any new services; for example, staff to run community mental health centres. It is also important that Member States are able to guarantee sustainability of any measures beyond the end of EU funding; for example, the continuation of personal assistance services.
Despite its potential, ESIF has in many countries contributed to segregation of children, disabled and older people in institutional care settings. Millions of Euros have gone into the building of new institutions, large and small, the renovation and extension of institutions, the building of day care centres and sheltered workshops. This practice continues up to date, as a result of the failure by the Member States and the European Union to ensure implementation of the UN CRPD.
Rules governing the use of EU funding
The EU and all the Member States ratified the CRPD. The General Comment 5, on Article 19, contains specific guidance for States Parties to the CRPD in relation to funding. Thus, both the EU and its Member States must “ensure that public or private funds are not spent on maintaining, renovating, establishing, building or creating any form of institution or institutionalisation” and should use all available funding “to develop inclusive and accessible independent living services”. As part of their obligations under the CRPD, they should take “deliberate and immediate steps to reallocate funding into realising the possibility of persons with disabilities to be living independently in the community”.
The European Disability Strategy 2010 – 2020, adopted in 2010, had eight priority areas: Accessibility, Participation, Equality, Employment, Education and training; Social protection; Health and External action. Under the priority area Participation, the strategy stated that the European Commission will work to “promote the transition from institutional to community-based care by: using Structural Funds and the Rural Development Fund to support the development of community-based services …”.
The right to independent living is also one of the key priorities of the new Disability Rights Strategy, covering the period 2021 – 2030. It calls on the EU Member States to “implement good practices of deinstitutionalisation in the area of mental health and in respect of all persons with disabilities, including children, to strengthen the transition from institutional care to services providing support in the community”.
The Committee on the Rights of Persons with Disabilities expressed concerns that ESIF have been used to finance institutions in the EU, in violation of the right to independent living. It issued recommendations to the EU in 2015, outlining that, to comply with its obligations on the right to independent living, the EU must take a number of actions. These include: offering proper guidance to national authorities, improving the way ESIF are monitored, and using its powers to apply financial corrections, or interrupt or suspend payments to Member States when they violate the CRPD.
As a result of our advocacy work on Bulgaria, Mr. Dainius Pūras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, published a communication calling on the Government of Bulgaria and the European Commission “to immediately stop the building of a large number of smaller institutions for persons with disabilities and older persons and to adhere to its commitment to deinstitutionalization”. The UN Special Rapporteur on the Rights of Persons with Disabilities, Ms. Catalina Devandas-Aguilar, and the UN Special Rapporteur on the Right to Adequate Housing, Mr. Balakrishnan Rajagopal, also wrote jointly to European Commission President Ms. Ursula van der Leyen to express their “serious concern” that ESIF “continue to be used to maintain the outdated, discriminatory and dangerous practice of institutionalization, including in smaller facilities” of persons with disabilities in a number of EU countries.
In 2021, the European Ombudsman launched the second own-initiative inquiry into how the European Commission monitors ESIF to ensure they are used to promote the right to independent living. ENIL submitted extensive evidence to support the inquiry. In April 2022, the Ombudsman found that the Commission could provide clearer guidance about the need to promote deinstitutionalisation in the context of ESIF, and that it could take steps to improve the monitoring of ESIF. It also noted that the EC should take a more proactive approach to enforcement, when there is evidence that the activities funded are at odds with the obligation to promote deinstitutionalisation. Read more here.
Actions taken by ENIL to challenge how EU funds are used
ENIL has been monitoring the use of ESIF since 2007, initially in the framework of the European Coalition for Community Living, then through the ongoing EU Funds for Our Rights Campaign. Among other, we have been encouraging organisations at local and national level to report when ESIF are used in violation of Article 19 of the CRPD, or in the case of children, the Convention on the Rights of the Child. Since 2016, we have taken action in relation to a number of Member States:
Austria: In July 2020, ENIL and Independent Living Austria (ILA) submitted a complaint against the State Government of Upper Austria for using the European Agricultural Fund for Rural Development (EAFRD) to build six segregated living facilities and two sheltered workshops for adults with disabilities. A second complaint was submitted the year after.
Bulgaria: Together with CIL Sofia and Validity Foundation, we called on the Bulgarian Government to immediately suspend a programme aimed at channelling ESIF into the building of a large number of residential care facilities for people with disabilities and older people. We have also jointly filed an application for annulment at the General Court in Luxembourg. In September 2020, the General Court dismissed the application as inadmissible. It found that the Commission’s decisions (not to suspend payments) had no legal effect on ENIL, CIL Sofia and the Validity Foundation; that the applicants represented in the case (i.e. persons with disabilities in institutions) cannot be considered ‘beneficiaries’ of the financial assistance, for which reason the Commission’s actions do not affect them directly and individually; and that “the defence of the general and collective interests of a category of persons is not sufficient to establish the admissibility of an action for annulment brought by an association or organisation and in the absence of special circumstance”. The Court did not look into the substance of the case, i.e. whether the group homes built with ESIF breach EU law.
In February 2020, the Petitions Committee of the European Parliament held a hearing in our complaint with the CIL Sofia, the Bulgarian Helsinki Committee and the Validity Foundation, concerning the planned use of ESIF for the building of smaller institutions for persons with disabilities and older people in Bulgaria.
Hungary: At the end of 2017, ENIL was made aware of the Call for Proposals under the Human Resources Development Operational Programme 2.2.2 – 17. Under this call, residential institutions providing social care services for more than 50 persons each were encouraged to apply for grants funded by the European Regional and Development Fund (ERDF). As a result, 189 group homes, for up to 12 persons with disabilities are being built, with many located away from the towns in sparsely inhabited rural areas. ENIL and TASZ filed a complaint under the Optional Protocol to the CRPD, which was joined with the already existing complaint filed by the Validity Foundation. In April 2020, the CRPD committee published a report on Inquiry concerning Hungary under article 6 of the Optional Protocol to the Convention. Hungary was found responsible for “grave and systematic” violations of the human rights of persons with disabilities in the country. Together with TAZS and Validity Foundation, we organized a press conference on 17 April 2020 to discuss the report and its implications. The press conference was livestreamed on Facebook.
Portugal: After learning that the ERDF was used to co-fund the building of a new institution for 16 persons with disabilities in Azores and in several other locations, ENIL asked the European Commission to ensure that the funding is redirected into the much-needed community-based services, in line with the CRPD. The Commission failed to act. In June 2019, we submitted a complaint to the European Ombudsman, against Portugal and Hungary. The complaint relates to the failure of the European Commission services to prevent the investment of ESIF into segregated settings for persons with disabilities. ENIL’s complaint is available here. The Ombudsman’s decision is available here.
Romania: In November 2019, ENIL submitted a complaint to the European Commission against the Ministry of Public Works, development and Administration in Romania, because of the ERDF-funded call for tenders P.O.R./8/8.1/8.3/B/1. The call foresees the opening of sheltered housing (‘locuinte protejate’, literally translated as ‘protected housing’) and day care centers for adults with disabilities, by refurbishing existing infrastructure and building new facilities. ENIL received a decision from the European Commission in November 2020, which found that Romania’s actions were in line with the CRPD.
Poland: ENIL and Validity Foundation submitted a complaint against the Łódź Voivoideship in August 2020, for using ERDF to build, renovate, extend or modernize institutions for persons with disabilities, including some with up to 80 or 90 residents. The Commission found that all investments, including the largest one, were in line with the CRPD and the EU Fundamental Rights Charter.
Read our complaints: 1st complaint, Reply to the European Commission, Polish Ombudsman letter in support of our complaint
Read the responses from the EC: 1st complaint, final decision 1st complaint, second part of 1st complaint
Despite the strong legal basis provided by EU’s and the Member States’ ratification of the CRPD, the European Commission has not found a single breach of EU law in response to our complaints and has relied on its Legal opinion from 2018 to justify investments in institutions for disabled people. All decisions regarding our complaints have consistently interpreted the CRPD and the General Comment 5 as allowing investments in institutions.
ENIL’s activities to expose misuse of EU funds
In March 2018, we published a Briefing on the use of EU Funds for Independent Living. It provides examples of ESIF use from different Member States and gives recommendations for the use of Funds in compliance with the UNCRPD. The briefing was launched at the European Parliament. It was also presented at a roundtable in the Croatian Parliament on 16th March 2018, organised by Platform 112 and hosted by MP Bojan Glavasevic.
On the occasion of the International Human Rights Day, on 10 December 2019, we published a Myth Buster – EU Funds and Independent Living. The Myth Buster challenges the most common misconceptions about how EU taxpayers’ money is used with regard to disabled people. Moreover, it includes information about how to file a complaint to the European Commission, the European Ombudsman and to OLAF. The Myth Buster is aimed at all those advocating for EU Funds to be used to support disabled people’s right to live independently and to be included in the community. The Myth Buster is available in English, French and Hungarian.
On 21 September 2020, we organized a webinar “Why is the EU still investing in institutions for disabled people?” The webinar was hosted by MEP Katrin Langensiepen, and included presentations from the new UN Special Rapporteur on the Rights of Persons with Disabilities Gerard Quinn, a member of the CRPD Committee and a Deputy Director General at DG Regional and Urban Policy. The recording of the webinar is available here.
With the support of MEPs Marisa Matias and José Gusmão, we prepared a study: “Lost in Interpretation, The use of ESI Funds during 2014 – 2020 and the impact on the right of persons with disabilities to independent living”. An animated video was also prepared together with the study. The study is available in English and Portuguese and the video has 3 versions: with English, Portuguese and Hungarian subtitles. The study was launched at the online event on 9th December, hosted by MEPs Matias and Gusmão. The recording of the launch event is available here.
Cooperation with Members of the European Parliament
Members of the European Parliament also showed their concern in relation to the use of ESIF. Here are written questions sent to the European Commission, submitted at the initiative of ENIL:
Following the Commission’s launch of two packages of measures, the Coronavirus Response Investment Initiative (CRII) and the Coronavirus Response Investment Initiative Plus (CRII+), MEP Katrin Langensiepen submitted a written question to the European Commission. European Commission’s reply is available here.
European Network on Independent Living, 2017. So Close, Yet so Far. Available from: http://enil.eu/wp-content/uploads/2017/10/DisabilityWatchdog_Estonia_Oct2017_Final.pdf
Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Petitions : European Structural and Investment Funds and People with Disabilities in Slovakia. Available here.
ENIL-ECCL, 2016, Working Together to Close the Gap Between Rights and Reality – A report on the action needed to ensure that European Structural and Investment Funds promote, not hinder, the transition from institutional care to community living. Available here.
ENIL-ECCL, 2015, Briefing on the use of European Structural and Investment Funds to support the transition from institutional care to community living for people with disabilities. Available at: http://community-living.info/2015/09/14/briefing-on-the-use-of-structural-funds-to-support-the-transition-from-institutional-care-to-community-living/
European Expert Group on the Transition from Institutional to Community-based Care, 2014, Toolkit on the Use of European Union Funds for the Transition from Institutional to Community-based Care: Revised edition. Available here.
ENIL-ECCL, 2014, Realising the Right to Independent Living: Is the European Union Competent to Meet the Challenges? ENIL-ECCL Shadow report on the implementation of Article 19 of the UN Convention on the Rights of Persons with Disabilities in the European Union. Available here.
European Network on Independent Living – European Coalition for Community Living, 2013, Briefing on Structural Funds Investments for People with Disabilities: Achieving the Transition to Community Living. Available here.
Open Society Foundations (OSF), 2012, The European Union and the Right to Community Living – Structural Funds and the European Union’s Obligations under the Convention on the Rights of Persons with Disabilities. Available here.
European Coalition for Community Living (ECCL), 2010, Wasted Time, Wasted Money, Wasted Lives… A Wasted Opportunity? – A Focus Report on how the current use of Structural Funds perpetuates the social exclusion of disabled people in Central and Eastern Europe by failing to support the transition from institutional care to community-based services. Available here.