Ex ante conditionalities

The European Commission have stated that the European Structural and Investment Funds (ESIF) should support measures for the shift from institutional care to community based support services (deinstitutionalisation).  This includes measures that prevent institutional care and encourage access to mainstream services such as education and training, employment, housing, health and transport.  Building or renovating long-stay residential institutions is excluded from ESIF support, regardless of their size.

The Commission identified that the Member States need to have regulatory and policy frameworks in order to maximise the impact of funding and achieve the objectives of the Funds. To ensure these frameworks are in place, the Commission introduced conditions called ex ante conditionalities that are to make sure all institutional and strategic policy arrangements are in place at national level, before funding is released to the Member States.

Projects supporting deinstitutionalisation and the development of community based services can be found under Thematic Objective 9 of the ESIF ‘promoting social inclusion, combating poverty and any discrimination’.  The condition attached to this objective is that Member States must have in place and implement a National Strategic Policy Framework for poverty reduction, aiming at active inclusion (ex ante conditionality 9.1).

The Commission set out the following EU and International Law and Policy as the basis for this condition.

In order for ex ante conditionality 9.1 to be assessed by the Commission as fulfilled, the Member States had to fulfill the following criteria:

1. A national strategic policy framework for poverty reduction, aiming at active inclusion, is in place that –

2. provides a sufficient evidence base to develop policies for poverty reduction and monitor developments.

3. contains measures to support the poverty and social exclusion target defined in Member State National Reform Programmes which include the promotion of sustainable and quality employment opportunities for people at high risk of social exclusion, including those from marginalised communities.

4. must involve relevant stakeholders in combating poverty (including those affected by poverty and social exclusion, the social partners, NGOs and service providers).

5. depending on the identified needs, includes measures for the shift from institutional to community based care.

6. upon request and where justified relevant stakeholders must be provided with support in the submission of project applications and for the implementation and monitoring of that project should it be selected.

The ex ante conditionality 9.1, its corresponding criteria for fulfillment and relevant investment priorities are set out in Annex XI Part I of the Common Provision Regulation (EU) No. 1303/2013 (page 448)

The European Commission established “identified needs” (Criteria 5) in twelve Member States: Bulgaria, Czech Republic, Estonia, Greece, Hungary, Lithuania, Latvia, Poland, Romania, Slovenia, Slovakia and Croatia.

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This means that these twelve Member States must have measures for the shift from institutional to community based care in their National Strategic Policy Framework before ESIF can be spent.

Drawing on the specific national contexts and based on a needs assessment, the National Strategic Policy Framework should include a timetable and some key principles to guide the reforms towards the development of community-based services and inclusive mainstream services, which would facilitate social inclusion and eliminate the need for long-stay residential institutions or, in the case of children, reduce the need for placement into alternative care. The strategy can also ensure that the reform is implemented in a co-ordinated and systemic way. (EEG Toolkit, page 31)

The European Expert Group on the Transition from Institutional to Community-based care (EEG) have advised that the measures for the shift from institutional to community based care should be further elaborated 

In particular, specific national and/or regional strategies and action plans on deinstitutionalisation should be designed. An inter-ministerial steering group should be created to coordinate and monitor the implementation of the strategies and action plans. Depending on the needs assessment and the national context, deinstitutionalisation strategies and action plans can concern all groups (children, persons with disabilities and mental health problems, homeless people or older people) together or separately.  (EEG Toolkit, page 32)

 

See below for more information under the following headings:

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Information on the types of ex ante conditionalities

There are two types:

  1. Thematic ex ante conditionalities

2. General ex ante conditionalities

Thematic ex ante Conditionalities

Thematic ex ante conditionalities are directly related to the sector or policy of the 11 thematic objectives of the funds (e.g. active inclusion).

Thematic Objective 9 of the Funds is “promoting social inclusion, combating poverty and any discrimination” and is attached to thematic ex ante conditionality 9.1 and four of the investment priorities (activities to be supported) set out in the ERDF and ESF Fund Specific Regulations.

Investment priorities of the European Social Fund:

  • Active inclusion, including with a view to promoting equal opportunities and active participation and improving employability
  • Enhancing access to affordable, sustainable and high-quality services, including health care and social services of general interest

Investment priorities of the European Regional Development Fund:

  • Investing in health and social infrastructure which contributes to national, regional and local development, reducing inequalities in terms of health status, promoting social inclusion through improved access to social, cultural and recreational services and the transition from institutional to community-based services
  •  Providing support for physical, economic and social regeneration of deprived communities in urban and rural areas.

Member States set out in their Operational Programme(s) Specific Objectives to be achieved for their chosen Investment Priorities.  An ex ante conditionality will apply if it is a prerequisite for and has a direct and genuine link to, and direct impact on, the effective and efficient achievement of the Specific Objective(s). 

General ex ante conditionalities

There are seven general ex ante conditionalities that apply to all sectors and policies supported by the ESIF. 

  1. Anti-discrimination
  2. Gender
  3. Disability
  4. Public procurement
  5. State aid
  6. Environmental legislation relating to Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA)
  7. Statistical systems and result indicators

The general ex ante conditionalities are not linked to specific investment priorities therefore the Commission have advised that it will always be necessary to verify whether they apply to the specific objectives of all investment and EU priorities of the Programme.  

Three general ex ante conditionalities covering non-discrimination, gender and disability were introduced to ensure the existence of administrative capacity for the implementation and application of EU law and policy in these areas.  

The general ex ante conditionalities and their criteria for fulfillment are set out in Annex XI Part II of the Common Provision Regulation 1303/2013 (page 454-456)

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What happens if the ex ante conditionalities are not fulfilled?

If a condition is not fulfilled at the time the Partnership Agreement and Operational Programmes are adopted, the Operational Programme must include Action Plans that set out what actions are to be taken to fulfill the ex ante conditionality, the responsible bodies for these actions and the timeline that the actions will be completed.

The deadline for fulfillment of all ex ante conditionalities is 31st December 2016.

Failure to complete the Action Plan to fulfill the ex ante conditionality is grounds for the Commission to suspend interim payments to the operation concerned in the Member State.

Member States must report on the implementation of their Action Plans no later than in their Annual Implementation Report of 2017 (Article 50(4) CPR) or their Progress Report of 2017 (Article 52(2)(c) CPR).

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What is the current status of the ex ante conditionalities?

Member States identified applicable ex ante conditionalities and assessed their fulfillment during the informal dialogue with the Commission that took place before the formal negotiations of their Partnership Agreement and Operational Programmes.  This was done in order to reach a common understanding and shared view on applicability and fulfillment of all ex ante conditionalities between the Member States and the Commission. 

14th December 2015 – The Commission produced a Communication on the negotiations of all Member State Partnership Agreements and Operational Programmes that was required under Article 16 of the Common Provision Regulation (CPR).  This Communication includes Country Fiches for all the Member States and reported that 75% of all ex ante conditionalities had been fulfilled at the end of 2015.

750 Action Plans were adopted by the Member States and the Commission to ensure all ex ante conditionalities are fulfilled by the deadline 31st December 2016.  The Commissioner for Regional Policy Corina Cretu discussed this Communication and key issues of implementation with the European Parliament Committee on Regional Development.  These discussions can be found here.

29th July 2016 – The implementation of the provisions in relation to the ex ante conditionalities during the programming phase of the European Structural and Investment (ESI) Funds. (European Commission report)

The study reviews the implementation of the ex-ante conditionalities. The research findings highlight the value of ex-ante conditionalities, in encouraging the fulfilment of EU regulatory requirements faster than might have been the case in their absence and reinforcing effectiveness through associated strategies in the policy areas supported by ESI Funds.

It was found that the level of involvement of NGOs in the assessment of applicability was low. A total of 53% of the respondents reported no involvement, 14% reported very limited involvement, 18% limited involvement, 6% significant involvement and 8% very significant. The level of involvement of national and – to a lesser extent – regional/local government was significant in assessing whether ex ante conditionalities were applicable.

Analysing the fulfilment of criteria the 2016 European Commission Report states the following:

In the field of social inclusion, the status of fulfilment related to ‘reduction of poverty’ (9.1) is lower, particularly those parts of the policy framework concerning ‘needs identification’ (9.1.5) and ‘project support’ (9.1.6)

31st March 2017The Value added of Ex ante conditionalities (ExACs) in the European Structural and Investment Funds (ESI funds) (European Commission report)

The report advises 14% of ExACs have not been fulfilled and that the Commission will assess completion in the second half of 2017 at the latest when Member States submit their Progress Reports to the Commission.

In terms of  “Lessons Learned” the report finds the following main points:

  • Overall, the ExACs “mostly add value” and have led to reforms in some countries that would not have happened otherwise or would have happened at a much slower rate.
  • Not enough time has passed for a full impact evaluation on the ExACs.
  • One of main shortcomings identified is complexity – big investment of resources needed in countries with many country-specific recommendations, for example – and some national and regional authorities struggle to fulfil the specified criteria for fulfilment.
  • Another issue is scope – some MS felt that there were too many ExACs, compromising the proportionality principle (where the EU cannot intervene in an area unless it can prove that it is necessary to achieve the objectives of the EU treaties, to prevent “over-regulating”)
  • Ensuring implementation of the ExAC is an issue – although they must be included in the action plan, there are currently no procedures for monitoring application of the ExACs, so their effect could be reversed once the project has begun – ultimately, application of ExACs relies on ownership of MS

 

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The Law and the Guidance

Legal Basis:

  • Article 2(33) Common Provision Regulation (EU) No. 1303/2013 Definition of an applicable ex ante conditionality.
  • Article 9 Common Provision Regulation (EU) No. 1303/2013 sets out the Thematic Objectives of the Funds.
  • Article 19 Common Provision Regulation (EU) No. 1303/2013 establishes the ex ante conditionalities.
  • Annex XI Part 1 of the Common Provision Regulation (EU) No. 1303/2013 (page 448) sets out the Thematic ex ante conditionalitiy 9.1, the attached investment priorities of the European Regional Development Fund (ERDF) and the European Social Fund (ESF) and the criteria for fulfillment. 
  • Annex XI Part II of the Common Provision Regulation (EU) No 1303/2013 (page 454-456) sets out the General ex ante conditionalities and their criteria for fulfillment.
  • Article 5(9)(a) and (b) European Regional Development Fund Regulation (EU) No 1301/2013 sets out Investment Priorities of the ERDF under Thematic objective 9 of the Funds linked to ex ante conditionality 9.1.
  • Article 3(1)(b)(i) European Social Fund Regulation (EU) No 1304/2013 sets out the Investment Priority of the ESF under Thematic objective 9 of the Funds linked to ex ante conditionality 9.1.

Guidance from the Commission

The Commission have produced several Guidance documents that explain the reasons for including the ex ante conditionalities in the 2014-2020 legislative framework, what the conditions are and how they should be assessed, the actions to be taken if the conditions are not fulfilled and, definitions and explanations of key terms used such as ‘depending on identified need’ and ‘measures for the shift from institutional to community based care’.

Key Guidance and Training Documents:
– Internal Guidance on ex ante conditionalities for the European Structural and Investment Funds Version 2.0: August 2014, Part I.
– Guidance on ex ante conditionalities for the European Structural and Investment Funds  13th February 2014, Part II.
– Draft Thematic Guidance Fiche for Desk Officers on the transition from institutional to community based care (de-institutionalisation DI) Version 2 (27/01/2014).
– The contribution of the European Structural and Investment Funds to the Commission Priority Justice and Fundamental Rights (December 2015).
Training for Managing Authorities on the ex ante conditionalities Summer 2014.

European Expert Group on the Transition from Institutional to Community-based Care:

  • Common European Guidelines on the Transition from Institutional to Community Based Care.
  • Toolkit on the Use of European Union Funds for the Transition from Institutional to Community Based Care.

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Further Information

The use of funding that supports the institutional care of persons with disabilities, children or older persons is contrary to the ESIF Regulations, a breach of EU Legislation and International Law.  For a full analysis of legal obligations under International and EU law of the Member States and the EU itself as a State Party to the UN Convention on the Rights of People with Disabilities please see;

  • Gerard Quinn & Susanne Doyle (2012) Getting a Life: Living Independently and being included in the Community. United Nations, Office of the United Nations Commissioner for Human Rights European Office – download here.

A detailed Legal Study on the 2007 – 2013 programming period, the EU as a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the future potential of the 2014-2020 programming period to contribute to the achievement of Article 19 CRPD.

  • Open Society Foundations‘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’ May 2012 Mental Health Initiative Open Society Public Health Program – download here.

The focus question of this report is whether the use of Structural Funds to build new, or renovate existing, long-stay institutions for people with disabilities, rather than develop alternative services that promote community living is contrary to EU law.  The report finds that the Investment of Structural Funds in institutions is contrary to EU law as it constitutes a breach of the EU’s international legal obligations (CRPD and ECHR) and amounts to disability discrimination under EU law.

Contains a selection of key documents that have played an important role in building a solid evidence base that institutional care or any segregated living arrangement across the lifecourse has no place in the legal, social or economic order of the European Union.  There is a dedicated section that provides evidence of the significant harm caused to children in institutional care.

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