An isolated interpretation of the current legal framework as well as reactive enforcement activities by the European Commission enable to continued investment of EU funds into institutions. The EU and member states need to understand that 1. Existing laws already prohibit the financing of institutions, 2. Enforcement activities need to become more proactive and thorough, 3. All ambiguities need to be eliminated from the various regulations
The European Commission as guardian of the treaties
Since 2011 the European Union is party to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Article 19 on Living independently and living in the community recognises the right of all persons with disabilities to live in the community, with choices equal to others … the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and not being obliged to live in a particular living arrangement.
General Comment No. 5, published in 2017, explains the implications of Art. 19 in detail. It states that independent living refers “to live outside residential institutions of all kinds”. It calls for states that are party to have deinstitutionalisation policies implementing a closure of institutions such as nursing homes, group homes, villages for disabled people or psychiatric facilities with long term residency.
With the adoption of Council Decision 2010/48/EC the provisions of the UNCRPD became an integral part of EU law. In a ruling from 2013, the European Court of Justice (ECJ) re-affirmed that the Convention has become part of the legal acquis of the European Union. Article 17 of the Treaty on European Union states the European Commission “shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union”.
This legal context states unequivocally that the European Commission is bound by law to implement the decisions of the Council of the EU and the ECJ. As such it is under duty to implement the UNCRPD and article 19. With the adoption of the UNCRPD, the Committee on the Rights of Persons with Disabilities was established and given the authority to issue guidance on the interpretation of the UNCRPD. In its Concluding observations on the initial report of the European Union, published in 2015, the committee recommended that “the EU develops an approach to guide and foster deinstitutionalisation and to strengthen the monitoring of the use of European Structural and Investment Funds so as to ensure that they are used strictly for the development of support services for persons with disabilities. The EU should also “suspend, withdraw and recover payments if the obligation to respect fundamental rights is breached”.
The statement of the Committee says clearly that EU funds must not be used to finance institutions.
Evidence of breaches
Since the adoption of the convention, ENIL has been collecting data on breaches of the obligation not to spend EU funding on institutions. The ENIL shadow report in February 2022 published evidence according to which in Lithuania the government decided to move 2.700 to 3.000 disabled people from large institutions to group homes or other smaller institutions. For this project EUR 26,5 million from the European Structural and Investment Fonds (ESIF) were used. In Łódź Voivodeship, Poland, between 2014 and 2020 resources from the European Regional Development Fund (ERDF) financed institutions with 80-90 residents. In Greece the region of Attica has planned to enhance the infrastructure and programs of institutions with support from the ESIF funds.
Since the incorporation of the UNCRPD into Union law, ENIL has been monitoring those breaches and submitting complaints to the European Commission which is in charge of ensuring the application of EU law. On 31 July 2020, ENIL filed a complaint about the investments into institutions in Łódź Voivodeship, Poland. In the same year complaints were submitted about the use of EU funds to finance institutions in Romania and Estonia.
The European Commission in (in-)action
In June 2022 ENIL was notified by the Commission on the final outcome of the complaint. It was concluded that “no breach of the applicable Union law in relation to the ERDF co-financing has been demonstrated and therefore the complaint will be closed”. Which evidence base did the Commission use to investigate the complaint? According to the notification letter the Polish government was approached to supply information and explanations. From the messages received the Commission concluded no EU regulations had been violated. Which information did the Polish government supply? Is it not highly unrealistic for the accused to supply information demonstrating his own guilt? The message exchange is, unfortunately, not open to public scrutiny.
Furthermore, the Commission insists that instead of focusing on this specific case it is more fruitful to discuss the topic “in the broader political context of ensuring progress of and strengthening, in a coordinated manner, the deinstitutionalisation process in Poland through a continuous dialogue and monitoring exercise that must involve all parties”.
Next to juridical wordplay, the Commission’s response contains a number of points that provide useful material for follow-up activities. First, the guardian of the treaties by no means intends to let the case rest. The Directorate for Regional and Urban Policy (DG Regio) responsible for the case, announced “to take additional steps with the Polish authorities and the Polish Commissioner for Human Rights”. Currently the process of deinstitutionalisation in the Łódź Voivodeship area was “subject to analyses at national level”. What will these steps entail? Are we ever going to know the outcome of this analysis? According to the European Commission, “the outcome will be presented when deemed necessary”.
Second, the Commission emphasises that according to its legal interpretation more proactive measures were not necessary because “there is no general prohibition for the ESIF funds to support long-stay residential institutions”. In any case the financing of institutions represented a transitional measure since the change from institutional care to community-based support was long and complicated. As a result it was necessary to allow continued investments into institutions as the Member State in question made “progress in general on ensuring independent living”, a position that is supported by Opinion of the Legal Service of the European Commission.
Ineffective and in-transparent enforcement procedures
ENIL is of the opinion that the European Commission is not proactive enough when it comes to monitoring the use of EU funds to finance institutions. In addition, we believe that the Commission’s legal interpretation is flawed. With these views we are not alone.
In April 2022 the EU Ombudsman published the results of an own initiative inquiry into how the Commission monitors the Structural and Investment funds. The report states that the European Commission should not base its assessments on information provided by national authorities only. Independent sources of information such as reports of national and regional ombudsman should be taken into account as well. To this end the Commission is encouraged to actively seek contact when in need of input.
The Ombudsman adds that the Commission should be less vague when designing follow-up actions with national authorities. Apparently in the course of a complaint procedure in 2019 the guardian “engaged in intensive dialogue with the Hungarian authorities concerning an EU-funded project that had failed to promote deinstitutionalisation.” In this case the European Commission intervened and stopped the continuation of this project, raising concerns about the housing model. According to the EU Ombudsman “the Commission could adopt this approach more systematically.”
In its approach to allow investments into institutions, as long as the country can justify it as a transitional measures, the Commission is interpreting the existing legal framework too loosely. On the issue the CRPD committee provided guidance stating that “no new long term institutions should be built and that older long-term care residential institutions should not be renovated beyond the most urgent measures necessary to safeguard residents´ physical safety.” In fact the EU´s very own Common Provision regulation says in recital 6 that “Member States should respect the obligations set out in the … United Nations Convention on the Rights of Persons with Disabilities … The funds should not support actions that contribute to any form of segregation or exclusion”.
In response to a question by the EU Ombudsman the European Commission pointed out that “it will launch infringement proceedings only as a last resort, where no agreement can be reached with the Member State”. Instead, it stressed the role of national courts in enforcing EU law.
The experience gathered by ENIL and the EU Ombudsman report provide clear evidence, that the European Commission needs to adopt more effective procedures to enforce the current legal framework on the use of EU funds in financing institutions. There are also strong indications that the Commission’s interpretation of the legal situation differs from the assessment of other authoritative bodies. It should be emphasised that the Commission as guardian of the treaties has a clear responsibility to enforce Union law. Especially in the case of disability rights, relying on individuals taking governments to court is highly dissatisfactory. Exclusion from access to justice is a widespread phenomenon for disabled people. Taking a public body to court requires significant financial and emotional resources which heavily discriminated against groups don´t have. ENIL will continue working with policy makers to 1. Strengthen enforcement at the EU level, 2. Promote our view on the legal situation which we share with the CRPD and the EU Ombudsman, 3. Adapt the legal situation to make it even more unambiguous.
30 June 2022
Florian Sanden, ENIL Policy Coordinator