CHAPTER 1: INSTITUTIONAL FRAMEWORK

 

How the EU can make fairer, more coherent decisions for the well-being of all

The time has come for the EU to face up to the global impact of its policies and make policy coherence for development (PCD) a reality. The PCD principle builds on the Union’s founding values of solidarity, equality and respect for human rights, and under Article 208 of the Lisbon Treaty PCD is a legal obligation on the EU.

The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.” Lisbon Treaty, Article 208[BB1] 

While progress has been made over the years in PCD rhetoric, we have yet to see the positive words and policy documents make a real difference. Adopting fair and coherent policies is first and foremost a political choice. All too often, European decision-makers put narrow, short-term Eurocentric interests before the longer-term interests of both its own citizens and people in developing countries. Decisions in favour of development require a rethink of Europe’s domestic (economic, political, commercial and geopolitical) interests, and its role in global affairs, including how these affect people’s welfare, human rights and poverty eradication.

The voices of the people whose lives are affected by EU policies need to be taken into account. All too often, inadequate impact analyses, and information that is insufficient to establish a clear causal relationship between EU policies and their impact on the ground, are quoted as a justification for the EU not taking more progressive decisions in favour of development. Only by systematically looking at potential and existing impacts can PCD become a useful tool for thinking policies through properly, and adapting policymaking. Article 208 of the Lisbon Treaty calls for this type of “due diligence”. To comply with this treaty obligation, EU policymakers must demonstrate that they have taken the necessary steps to gather all the relevant information on the development impacts of their policies, throughout the policymaking cycle.

Explicit political commitments to these tools and mechanisms, entered into at a high level, will enable the EU to advance towards more responsible, evidence-based policymaking. By taking a precautionary approach, this more effective kind of policymaking will prevent potential incoherencies. Where they exist, it will detect them and – through policy review and revision – it will correct any measures that have proven to be incoherent. Thus the tools and mechanisms not only make PCD operational – they also ensure that EU policymakers can be held accountable for their PCD obligation.

Since CONCORD last reported on PCD issues, in its 2011 Spotlight report, there has been patchy progress in operationalising PCD. The EU’s last report on PCD, also published in 2011, provided no analysis of the actual impacts on developing countries, nor did it make any recommendations for how to advance towards taking these issues into consideration.

In May 2012, however, the EU’s development ministers reiterated their commitment to PCD at the Foreign Affairs Council,[1] emphasising the need for a more evidence-based approach and for enhanced dialogue with stakeholders in developing countries. This gave fresh impetus to the issue, thanks to the support of the Danish presidency – which might have been the reason why in 2013 the European Commission (EC)’s development directorate (DG DEVCO) pressed ahead with the first detailed development impact study, for which the chosen topic was biofuels. That said, the study did not focus on the impact of the EU’s biofuels policy, but adopted a more general approach, and it played no part in the formal inter-service consultation.

For its part, the European Parliament (EP) has for the second time appointed a Standing Rapporteur on PCD and has played a decisive role in gathering support for a more development-friendly outcome from the revision of EU legislations on combating illicit financial outflows from poor countries.

Furthermore, the reform of the Common European Fisheries Policy and the Commission’s proposal to cap the EU’s biofuels targets (so as not “to interfere with global food systems”) give the first glimpses of political will, on the part of EU institutions, to take the rights of poor people living beyond the EU’s borders into account in major policy reforms.

Nevertheless, the overall picture shows that EU policymakers active in non-development sectors (in all three EU institutions) still have a poor record of delivering PCD. Examples include notably the Common Agricultural Policy (CAP), where both the Commission and Parliament rejected the proposal put forward by civil society organisations (CSOs) that they should – “at the very minimum” – commit to monitoring the CAP’s external impacts on developing countries (and, implicitly, food insecurity).

EU mechanisms for gathering evidence

 

Institutional mechanisms do matter, but they are nothing without the political will to acknowledge research findings and act on them.

PCD offers a new “thinking matrix” for policy analysis: it is a fresh way of looking at old issues. In order to succeed in this, ways to gather knowledge systematically need to be established. In terms of institutional mechanisms, this means tools that enable policymakers to make more informed choices, which will in turn result in development-friendly policies.

It is important that PCD is not perceived as an extra burden, or something that would necessarily require heavy investment. Rather, many existing mechanisms within the EU policymaking cycle can be adapted to play a valuable role in preventing, detecting or correcting incoherencies. By doing this, the EU can demonstrate compliance with its treaty obligations (see graph).

pcd chapter 1 image 1

We shall now look in more detail at possibilities for ensuring PCD in EU policymaking. The focus of this chapter will be on some of the mechanisms that have the greatest potential to contribute to information gathering about development impacts, in order to prevent and detect incoherencies.

1. Prevent incoherencies: Ex-ante impact assessment

 

One of the pivotal instruments for evidenced-based policymaking and for preventing – at the earliest possible stage – the adoption of incoherent, development-unfriendly policies within the EU system, is the so-called Impact Assessment (IA).

 

IAs are an obligation for all new major legislative or policy proposals such as regulations, directives, major strategies and mandates for negotiations with third countries. According to the Commission guidelines for impact assessment, as revised in 2009, all IAs “[…] should establish whether proposed policy options have an impact on relations with third countries. In particular they should look at: […] impacts on developing countries – initiatives that may affect developing countries should be analysed for their coherence with the objectives of the EU development policy. This includes an analysis of consequences (or spill-overs) in the longer run in areas such as economic, environmental, social or security policy”.[2]

Why are impact assessments in their current form not working for PCD purposes? In practice, IAs are carried out by the lead Directorate-General (DG) in the European Commission, sometimes drawing on external expertise for specific studies, and are released together with the policy proposal assessed. No dedicated support is provided to help the IA drafters to address development issues in their analysis. A quality check of all IAs is carried out by a Board composed of high-level civil servants appointed by the Commission president, acting in their own name. The members’ development expertise is rather limited (none of the members come from DG DEVCO). It is not surprising that no IA has ever been rejected and sent back for improvement on the sole ground of inadequate assessment of development impact.

This is borne out by an IA screening carried out by Concord Denmark, which showed that in the period from 2009 to June 2011, out of 77 IAs that were relevant from a development perspective, only seven – a mere 9% – actually assessed or even mentioned the impacts on developing countries. In the entire period since the introduction of the new IA guidelines in 2009, up to June 2013, the ratio rises to 19%. with 33 relevant IAs out of 177 actually acknowledging a potential impact on development.[3] This remains a very unsatisfactory record.

The IA guidelines are to be revised again during 2013, which presents an important opportunity for the Commission to bring the IA process into line with the ambitions of Article 208 of the Lisbon Treaty. Interestingly, since 2012 the European Parliament has had its own IA unit, whose main responsibility is to review the Commission’s IAs for the benefit of debate in the Parliament, and possibly to carry out alternative IAs. Overall its capacity is limited, but it does hold great potential for the advancement of PCD as it can help bring development concerns back onto the discussion table.

Civil society participation in the IA process is extremely limited. For example, CONCORD was involved very sporadically in the IA of the proposal on the future CAP published in 2011. In its 2010 report the EU Court of Auditors formally criticised the lack of systematic consultation of external stakeholders, stating that “the IA process should be transparent and draw on the expertise and views of others. Public scrutiny is as an effective verification mechanism to ensure that IAs address the most relevant issues, include all feasible policy options, and provide a balanced view. Consultations enable the Commission to gather the opinions of interested parties and to take into account various points of view”.[4]

CONCORD therefore recommends that:

  1. The new IA guidelines should make explicit reference to the PCD obligation, and that development impacts should be made a key section of the assessments, alongside the present economic, social and environmental assessments;
  2. CSOs’ inputs – both qualitative and quantitative – should be systematically included in all stages of the IA process;
  3. among the high-ranking EC officials, a development specialist should be appointed to the IA Board, in order to increase the development expertise on that body;
  4. the capacity of DG DEVCO to give input and support to other DGs in assessing development impacts should be strengthened institutionally – e.g. by establishing a DEVCO help desk on IA matters;[5]
  5. the EP’s IA unit should pay special attention to development impact issues, and strengthen its capacity to address loopholes in the Commission’s IAs where development is concerned.

Interview: Standing rapporteur on PCD, MEP Charles Goerens

 Charles Goerens is a Member of the European Parliament for the ALDE Group (Liberals and Democrats). Since September 2012 he has been the EP’s second standing rapporteur for policy coherence for development. This means that he plays a catalysing role in putting PCD on the Parliament’s agenda. He is also automatically the rapporteur for its biennial PCD report.

What motivated you to take up the position of standing rapporteur for PCD in the European Parliament?
For me it’s a fascinating job, it’s a challenge to see how policy coherence can be achieved. There’s a great need to consider, in the European Parliament, the impact of European policies on development. We cannot allow a policy in one area to have the opposite effect on other areas.

What would you say is your most challenging task as the standing rapporteur for PCD?
The most challenging task is definitely to find an audience in the European Parliament that is willing to step up and strive for change – this might also be due to the lack of effective working methods when it comes to PCD. This is on the agenda of different workshops I am organising.

When it comes to striving for greater PCD, there often seems to be a lack of political will. How can more political will be generated, in your view?
It is essential to involve the national level. In April 2013 we invited members of national parliaments to the European Parliament to discuss PCD and how it is being implemented at the national level. It was a good opportunity, I think it was a very useful meeting and we must continue acting in this way.

Do you think the current institutional mechanisms for PCD are sufficient for addressing incoherent policies?
I think it is necessary to have an arbitration mechanism. In my view, this should be the President of the European Commission: he or she should be committed to defending and supporting PCD. When there are diverging views between the Commission’s different DGs, for instance between Trade and Development, it is Barroso who should act on the PCD commitments. In the European Parliament’s PCD report I will emphasise that we need clearer leadership when it comes to striving for greater policy coherence for development

 

 

 

2. Detect incoherencies: dialogue on policy impacts with stakeholders in developing countries

Making PCD happen means involving those who have a stake in the issue concerned.

Public consultation on major policy proposals is an obligation on the Commission[6] and often takes place through a public questionnaire.[7] There are also more informal or selective ways of consulting stakeholders. How questions relating to PCD are included in these consultations varies a good deal, while it is also the responsibility of stakeholders to bring forward PCD-related issues in their responses if they wish.

Policy dialogue is additional to these above-mentioned consultations, and entails a longer-term approach and a broader agenda. The system of advisory boards set up by DG Agriculture and Rural Development (DG AGRI), such as the one on the external impacts of the CAP, is an example of a form of institutionalised policy dialogue involving diverse stakeholders – CONCORD, for example, has been participating in it. A recurrent criticism has been that it is hard for stakeholders to influence the agenda, which is set by the Commission alone. As a result, like for the above-mentioned public consultation, the ability of such fora to address the development impacts of non-development policies (which is at the heart of PCD) is very limited, while direct participation by stakeholders from developing countries is often not envisaged.

For CONCORD, the primary stakeholders to involve in any policy dialogue that could raise issues relating either directly or indirectly to development are the women and men directly affected by the impacts of EU policies. In May 2012 European development ministers took a major step forward by deciding that the EU must organise formal dialogues on policy impacts, in developing countries, with the local stakeholders, including local civil society organisations and parliaments. The Council underlined that the EU Delegations had a “crucial role” to play in this.
[8]

In the implementation of this decision there is great potential for gathering first-hand information on the likely impacts of planned policies and also for detecting negative impacts, and therefore incoherencies, while a policy is being implemented. The information collected through these in-country multi-stakeholder policy dialogues could thus be a major resource for improving the analysis of the usual ex-ante impact assessments and policy evaluations carried out by the Commission.

Nevertheless, a year after the adoption of the Council Conclusions, the ministers’ demands had not been followed by any instructions to the EU Delegations from the European External Action Service (EEAS) or the Commission (see focus box 1). In 2013 an opportunity was missed, as the EU Delegations organised consultations for the aid programming process – in some instances local civil society was consulted.[9] Clearly, linking up PCD and aid dialogues is essential for ensuring that the full development and anti-development footprint of the EU in a country is assessed.

 

Focus 1: Dialogue on EU policy impacts in developing countries: the role of EU Delegations

 

The May 2012 Council Conclusions on PCD stresses the need for a more evidence-based approach to PCD which include baselines, indicators and targets to measure the impact of PCD. A study carried out by CONCORD based on interviews with EEAS and DG DEVCO and surveys from some EU Delegations shows that no action has yet been taken to implement the May 2012 Council Conclusions. 14 months after the adoption of the Council Conclusions, a joint EEAS-DEVCO letter is still being prepared asking EU Delegations to assess their capacity to work on PCD and identify relevant PCD themes before the end of January 2014. EEAS and DG DEVCO explain the delay with other urgent priorities and reluctance to impose new structures and reporting requirements on already overburdened EU Delegations.

Still, EEAS and DG DEVCO confirm that they will encourage EU Delegations to engage in multi-stakeholder dialogue with all relevant stakeholders, including civil society and EU Member States, but within existing frameworks and without a prescribed methodology. EU Delegation are encouraged to report on incoherencies, but no formal PCD reporting requirements and mechanisms are envisaged. PCD issues will rather be integrated in the EU Delegations annual reporting, included in EU biennial report on PCD or used to identify ‘hot issues’ that could be the subject for further investigation (e.g. impact assessments by DG DEVCO’s PCD unit).

The EU Delegations that responded to CONCORD survey are generally aware of EU’s commitment to PCD, including the Council Conclusions and the 2010-2013 PCD Work Programme and its five priority areas. But PCD is one among many priorities at EU Delegations and is not given high priority. None of the EU Delegations have taken specific action to implement the May 2012 Council Conclusions. PCD is being treated ad-hoc and discussed in existing dialogue forums when relevant. In a CONCORD survey on civil society engagement with EU Delegations, less than 1/4 of the civil society organizations consulted, has been invited to discuss the impacts and effects of EU policies with EU Delegations[10].

Head of Delegations (HoD) are responsible for PCD, but have full autonomy to organize at country level and PCD is therefore dependent on individual interest. In consequences, PCD is prioritized differently at country level – both organizational and politically. While some EU Delegations have appointed a PCD focal point, others have assigned the responsibility to the Head of Section (HoS) or the Head of Cooperation (HoC).

The CONCORD survey shows that EU Delegations need support from EEAS and DG DEVCO, e.g. instructions, help desk, tool boxes and best practices on how to ensure policy coherence between DEVCO and the other DG’s activities at Delegation level. DG DEVCO does provide regular PCD training in Brussels for EU Delegation staff, while e-training on PCD is being developed. PCD will potentially be included in the 2013 annual Head of Delegations seminar in Brussels, but not as a separate agenda item.

CONCORD finds that the commitment of EEAS and DEVCO to operationalise the May 2012 Council Conclusions is clearly insufficient. It takes much stronger political leadership in the EEAS, DEVCO and the EU Delegations to ensure that a multi-stakeholder dialogue on PCD at country level is delivering evidence-based results.

To make progress on country-level dialogue in PCD, important issues must be addressed. For one thing, the EU Delegations’ mandate on PCD is vague; PCD is part of a long list of responsibilities of the EU Delegation Head, and there is no such thing as a “template” job description. Delegation staff are still largely undertrained on PCD, in spite of recent efforts. More importantly, major questions still need to be answered: what are the objectives of such a dialogue? Who will be invited to take part? How will topics be selected? Who will prepare the agenda? And, key to the process: what will be done with the information collected?

CONCORD recommends that:

 

  1. the Commission should mainstream PCD in public consultations and policy dialogues that focus on questions relevant to development;
  2. the Commission and EEAS should take urgent action to implement the Council Conclusions regarding PCD. This includes setting in motion a process that will answer the outstanding questions, which relate inter alia to the consultation of relevant stakeholders such as the local communities, CSOs, and local policymakers and representative
    s in developing countries;
  3. a system should be set up for feeding the information and evidence collected into the policymaking cycle, leading ultimately to the correction of incoherencies where they occur, and a commitment to do this should be given.

3. Detect incoherencies: development impact monitoring

 

All EU policies include provision for monitoring, review and evaluation systems. As explained in the case of EU biofuels policies, in this report’s chapter on food security, some EU policies already have a built-in requirement to report on development impacts. This is especially appropriate when the ex-ante analysis has been able to establish that there is a risk of adverse impacts on development objectives. The explicit obligation to monitor and report on development impacts as part of the policymaking cycle is very important and very welcome, as it provides a key safety valve to prevent the risks from materialising.

The proof, however, is in the pudding, and so far the number of instances of implementation of this reporting requirement at EU level has been far below expectations. The level of knowledge of development impacts is insufficient to enable a lead (non-development) Commission service to draw up terms of reference for reports or studies that would include the relevant development aspects. Nor are there any guidelines that explicitly state how to bring in development expertise when development impacts are involved. This is unacceptable, and it discredits the EU’s commitment to PCD. There is a need for far better incorporation of PCD into existing guidelines (where they exist), and far wider use of this monitoring tool, together with a broader recognition of its usefulness for potentially correcting incoherent policies once sufficient analysis has been provided.

Specifically, CONCORD recommends:

 

  1. oimproved impact assessment (see above) to see whether or not a policy should be adopted in the first place, and whether there is a need for a monitoring clause. In all cases where an EU policy is in danger of having an adverse impact, development impact monitoring should be introduced as a precautionary measure;
  2. othe drawing up of guidelines for participatory monitoring involving local stakeholders, with a particular focus on civil society and the people affected;
  3. oa control of the quality of the monitoring process outcomes by independent experts, which may include alternative policy options and possible corrective action;
  4. otimely public access to the outcomes of the monitoring process, and consultation on alternative policy options and possible corrective action.

 

 

Focus 2: Trends in institutional PCD systems in EU Member States

Over the past decade several EU Member States have made progress with developing systems to promote policy coherence for development. However, the situation remains very different from one country to another. To be effective, a system promoting PCD needs policy commitments, an implementation strategy with clear political objectives, institutional and administrative mechanisms, and monitoring and assessment mechanisms. This system is affected by the political background in each country and, in particular, its political culture and the degree of influence of civil society.

Policy commitments

The political commitment to PCD is strong in some countries (Belgium, Denmark, Finland, Lithuania, Luxembourg, the Netherlands, Sweden and the United Kingdom), and weak in others (Czech Republic, France, Germany, Hungary, Poland, Romania and Slovakia), while some have none at all (Bulgaria and Slovenia). In some countries, however, PCD tends to be confused at times with policy coherence in general (Belgium, Bulgaria, Luxembourg and Slovakia). Except in the Netherlands, no country has set clear political objectives which could be used to assess and monitor progress made towards PCD in relevant non-development policies.

Coordination mechanisms

Some countries have no institutional mechanisms for promoting PCD (Bulgaria, and France) while in some (Denmark) they are in the making. Some have specific mechanisms for PCD, such as inter-ministerial structures (Czech Republic, Lithuania, Luxembourg, Poland, Sweden, United Kingdom), PCD working groups (Finland, Sweden) or PCD focal points in ministries (Finland and Sweden). Some have overall national policy coordination and coherence mechanisms, either formal (Belgium, Hungary, Germany, Romania and Slovenia) and/or informal (Belgium, Hungary, the Netherlands), but these mechanisms are failing to mainstream PCD. It must be emphasised that Belgium and Denmark are currently working on institutional set-ups – in the case of Denmark, it is unclear whether this will include monitoring and assessment mechanisms.

Monitoring and assessment mechanisms

Most countries have no mechanisms for assessing the impact of their policies (Belgium, Bulgaria, Czech Republic, Denmark, France, Germany, Hungary, Lithuania, Luxembourg, Poland, Romania, Slovakia or Slovenia), while some do require reports on the implementation of PCD (Luxembourg, the Netherlands and Sweden). Finlan
d produces reports in which PCD is monitored along with other issues. Belgium is currently working to set up an impact assessment mechanism.

It appears that although a growing number of countries have made commitments to PCD, its actual implementation often remains problematic. The form of implementation will differ from one country to another, owing to political culture: in each case it will depend largely on the political context (the personal ambition of the development minister, for instance) and on the level of pressure exerted by civil society.

Recommendations

There is no one way to implement policy coherence for development properly. A good mix of commitments and institutional mechanisms is required, however.

This mix should always include the following:

– a clear political commitment in favour of PCD at the highest level of the State (where PCD is clearly defined);

– An implementation strategy for this commitment that includes clear political objectives;

– Coordination mechanisms in decision-making processes where PCD is efficiently mainstreamed;

– Ex-ante assessment mechanisms to make sure that every policy with a potential impact in a developing country takes PCD into consideration;

– Ex-post assessment mechanisms to ensure that existing policies do not conflict with PCD;

– The monitoring of PCD commitments and institutional set-ups, with participation by stakeholders.

 

4. Detect incoherencies: complaints mechanism

 

Two possible types of complaint could be envisaged in relation to PCD:

  • complaints about the effectiveness of the policymaking process in studying the development impacts of policies;
  • complaints that the policies themselves either undermine or are in danger of undermining development objectives.

In the case of the former, the complaint would be based on a violation of the obligation of conduct enshrined in Article 208 of the Lisbon Treaty. This is the obligation on EU policymakers to show that they have considered development objectives when adopting a course of action, and have adequately monitored and assessed the effects of their policies on development on an ongoing basis.

While a suitable judicial remedy is lacking, these complaints would fall squarely within the jurisdiction of the European Ombudsman.[11] The potential here is limited, however, because the Ombudsman has no actual power to require the EU institutions to act – merely to recommend reporting the matter to the European Parliament.

For complaints about policies that are incoherent with development objectives (type 2 above), there is no recourse. Indeed, today, individuals and communities in developing countries who are negatively affected by EU policies (and whose testimonies can be found in the subsequent chapters of this report) still have no institutional channel through which to appeal to EU decision-makers and seek redress. The redress sought is not primarily about compensating the victims for the harm done to them, but rather about addressing the issue and introducing fair policies. Giving a voice to the victims of incoherencies would be a significant move towards more responsible and higher-quality policymaking, as it would provide useful feedback on policy impact. It is also a question of human rights.

This has been a constant demand from CSOs, but no progress can be reported.[12] Some encouraging signals came from the European Parliament during the recent debate on CAP reform, where amendments to introduce a PCD-based complaints mechanism did receive a significant, if insufficient, level of support from MEPs. Whilst this was well intended, the CAP result ultimately came out against a pro-development outcome.

As with many other aspects of PCD, in the particular area of a recourse/complaints mechanism, stronger political will is needed to make a difference and enforce PCD properly within the EU.

CONCORD recommends that the EU should set up a recourse mechanism open to citizens of developing countries who wish to challenge the negative consequences of EU policies on their development, where a violation of PCD can be demonstrated. The objective of such recourse will not be to gain individual compensation for the damage done, but to trigger an investigation into the impacts of the policy, and a policy review. This will give decision-makers a chance to consider alternative, more development-friendly, policy options.

 

 5. Redress incoherencies: the missing link

In CONCORD’s view, the outcomes of the above mechanisms (impact assessment, impact monitoring, multi-stakeholder dialogue, complai
nts mechanism) should feed into an evidence-based policymaking process, so the data and evidence collected in these ways should be passed on to policymakers in Brussels.

Where there is serious evidence of damage, policymakers should investigate the matter in more depth and then start a policy review process, with the intention of revising the incoherent aspects of the policy, from a PCD perspective.

Astonishingly, no such mechanism exists at present and there is no institutional way of forcing a policy review. It all depends on political will, linked to the level of sensitivity of high-level policymakers to development issues and the extent to which they feel accountable for the impacts of EU policies on citizens outside EU borders.

 

Focus 3: Human rights and development: how can we reduce the negative impact of EU policies on developing countries?

 

The European Union and its Member States have an obligation to ensure that their policies are coherent with development objectives (PCD), and with extraterritorial obligations (ETOs) to respect human rights in third countries. The first obligation is based on Article 208 of the Treaty of Lisbon, the second on the International Covenant on Economic, Social and Cultural Rights. Are these two types of obligation interchangeable? The answer is no, because the extraterritorial obligations on States to respect human rights are more restrictive. They are complementary, however, and can support each other.


Primacy of international law on human rights
States are obliged to respect human rights. If a State takes a political decision that results in a human rights violation in a third country, it must (in theory) cancel that decision. Human rights have a higher legal value than other policies, such as the CAP, for example. In terms of PCD, a legalistic interpretation of the treaty obligation means that the EU needs only “take account of” the objectives of EU development when working on the CAP, with no actual obligation to respect development objectives. This means that, in the CAP, the objectives of EU development have a value equivalent to its agricultural objectives. In the event of a conflict between objectives, the EU will seek to reconcile them. Disappointingly, experience shows that the EU development objectives remain dominated by stronger vested interests, as is shown by the proposed CAP reform for 2014-2020.

 

ETOs are obligations of result, not only of conduct
ETOs are obligations of result (respect for human rights), while the PCD obligations arising from Article 208 of the Lisbon Treaty are only obligations of conduct (take development objectives into account). The EU could, for example, conduct assessments of how its policies have an impact on development, and if incoherencies are identified, it is not obliged to correct them. Developing a rights-based approach to PCD is therefore essential, and will add considerable weight to arguments in favour of development in the event of arbitration between interests that are perceived to be conflicting.



[1] Foreign Affairs Council of the EU, Council Conclusions on Policy Coherence for Development, 14 May 2012 )

[2] European Commission, Impact Assessment Guidelines, 15 January 2009

[4] European Court of Auditors, Special Report No. 3 on Impact Assessments, 2010

[5] A helpdesk of this kind already exists in DG Environment, to help other DGs address environmental impact issues properly.

[6] EU 2011 Report on Policy Coherence for Development, Commission Staff Working Paper, SEC(2011) 1627 final, p. 14

[8]The Council stresses in particular the need to include the issues of PCD systematically in the regular dialogue with partner countries to better assess the impact of EU policies at country level and the interaction with partner countries’ policies. EU Delegations have a crucial role in this regard.” Council Conclusions on Policy Coherence for Development, 14 May 2012

[9] See CONCORD (2013): EEAS Review 2013 (http://www.concordeurope.org/226-concord-eeas-review-2013) and the forthcoming CONCORD survey on the involvement of civil society organisations in the aid programming process (due in September 2013)

[10] CONCORD survey on the involvement of civil society organisations in the aid programming process (due in September 2013) – available on CONCORD website

[11] A representative from the Ombudsman’s office affirmed this in a meeting on 22 February 2010: see Niels Keijzer (2010): EU Policy Coherence for Development: from moving the goalposts to result-based management?, ECDPM Discussion Paper 101, page 25, note 38

[12] See CONCORD Spotlight Reports on Policy Coherence for Development 2009 and 2011


 

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CHAPTER 1: INSTITUTIONAL FRAMEWORK

 

How the EU can make fairer, more coherent decisions for the well-being of all

 

The time has come for the EU to face up to the global impact of its policies and make policy coherence for development (PCD) a reality. The PCD principle builds on the Union’s founding values of solidarity, equality and respect for human rights, and under Article 208 of the Lisbon Treaty PCD is a legal obligation on the EU.

 “The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.” Lisbon Treaty, Article 208[BB1] 

 

While progress has been made over the years in PCD rhetoric, we have yet to see the positive words and policy documents make a real difference. Adopting fair and coherent policies is first and foremost a political choice. All too often, European decision-makers put narrow, short-term Eurocentric interests before the longer-term interests of both its own citizens and people in developing countries. Decisions in favour of development require a rethink of Europe’s domestic (economic, political, commercial and geopolitical) interests, and its role in global affairs, including how these affect people’s welfare, human rights and poverty eradication.

 

The voices of the people whose lives are affected by EU policies need to be taken into account. All too often, inadequate impact analyses, and information that is insufficient to establish a clear causal relationship between EU policies and their impact on the ground, are quoted as a justification for the EU not taking more progressive decisions in favour of development. Only by systematically looking at potential and existing impacts can PCD become a useful tool for thinking policies through properly, and adapting policymaking. Article 208 of the Lisbon Treaty calls for this type of “due diligence”. To comply with this treaty obligation, EU policymakers must demonstrate that they have taken the necessary steps to gather all the relevant information on the development impacts of their policies, throughout the policymaking cycle.

 

Explicit political commitments to these tools and mechanisms, entered into at a high level, will enable the EU to advance towards more responsible, evidence-based policymaking. By taking a precautionary approach, this more effective kind of policymaking will prevent potential incoherencies. Where they exist, it will detect them and – through policy review and revision – it will correct any measures that have proven to be incoherent. Thus the tools and mechanisms not only make PCD operational – they also ensure that EU policymakers can be held accountable for their PCD obligation.

 

Since CONCORD last reported on PCD issues, in its 2011 Spotlight report, there has been patchy progress in operationalising PCD. The EU’s last report on PCD, also published in 2011, provided no analysis of the actual impacts on developing countries, nor did it make any recommendations for how to advance towards taking these issues into consideration.

 

In May 2012, however, the EU’s development ministers reiterated their commitment to PCD at the Foreign Affairs Council,[1] emphasising the need for a more evidence-based approach and for enhanced dialogue with stakeholders in developing countries. This gave fresh impetus to the issue, thanks to the support of the Danish presidency – which might have been the reason why in 2013 the European Commission (EC)’s development directorate (DG DEVCO) pressed ahead with the first detailed development impact study, for which the chosen topic was biofuels. That said, the study did not focus on the impact of the EU’s biofuels policy, but adopted a more general approach, and it played no part in the formal inter-service consultation.

 

For its part, the European Parliament (EP) has for the second time appointed a Standing Rapporteur on PCD and has played a decisive role in gathering support for a more development-friendly outcome from the revision of EU legislations on combating illicit financial outflows from poor countries.

 

Furthermore, the reform of the Common European Fisheries Policy and the Commission’s proposal to cap the EU’s biofuels targets (so as not “to interfere with global food systems”) give the first glimpses of political will, on the part of EU institutions, to take the rights of poor people living beyond the EU’s
borders into account in major policy reforms.

 

Nevertheless, the overall picture shows that EU policymakers active in non-development sectors (in all three EU institutions) still have a poor record of delivering PCD. Examples include notably the Common Agricultural Policy (CAP), where both the Commission and Parliament rejected the proposal put forward by civil society organisations (CSOs) that they should – “at the very minimum” – commit to monitoring the CAP’s external impacts on developing countries (and, implicitly, food insecurity).

 

EU mechanisms for gathering evidence

 

Institutional mechanisms do matter, but they are nothing without the political will to acknowledge research findings and act on them.

 

PCD offers a new “thinking matrix” for policy analysis: it is a fresh way of looking at old issues. In order to succeed in this, ways to gather knowledge systematically need to be established. In terms of institutional mechanisms, this means tools that enable policymakers to make more informed choices, which will in turn result in development-friendly policies.

 

It is important that PCD is not perceived as an extra burden, or something that would necessarily require heavy investment. Rather, many existing mechanisms within the EU policymaking cycle can be adapted to play a valuable role in preventing, detecting or correcting incoherencies. By doing this, the EU can demonstrate compliance with its treaty obligations (see graph[BB2] ).

 

 

We shall now look in more detail at possibilities for ensuring PCD in EU policymaking. The focus of this chapter will be on some of the mechanisms that have the greatest potential to contribute to information gathering about development impacts, in order to prevent and detect incoherencies.

 

 

1.       Prevent incoherencies: Ex-ante impact assessment

 

One of the pivotal instruments for evidenced-based policymaking and for preventing – at the earliest possible stage – the adoption of incoherent, development-unfriendly policies within the EU system, is the so-called Impact Assessment (IA).

 

IAs are an obligation for all new major legislative or policy proposals such as regulations, directives, major strategies and mandates for negotiations with third countries. According to the  Commission guidelines for impact assessment, as revised in 2009, all IAs “[…] should establish whether proposed policy options have an impact on relations with third countries. In particular they should look at: […] impacts on developing countries – initiatives that may affect developing countries should be analysed for their coherence with the objectives of the EU development policy. This includes an analysis of conseq
uences (or spill-overs) in the longer run in areas such as economic, environmental, social or security policy”.[2]

 

Why are impact assessments in their current form not working for PCD purposes? In practice, IAs are carried out by the lead Directorate-General (DG) in the European Commission, sometimes drawing on external expertise for specific studies, and are released together with the policy proposal assessed. No dedicated support is provided to help the IA drafters to address development issues in their analysis. A quality check of all IAs is carried out by a Board composed of high-level civil servants appointed by the  Commission president, acting in their own name. The members’ development expertise is rather limited (none of the members come from DG DEVCO). It is not surprising that no IA has ever been rejected and sent back for improvement on the sole ground of inadequate assessment of development impact.

 

This is borne out by an IA screening carried out by Concord Denmark, which showed that in the period from 2009 to June 2011, out of 77 IAs that were relevant from a development perspective, only seven – a mere 9% – actually assessed or even mentioned the impacts on developing countries. In the entire period since the introduction of the new IA guidelines in 2009, up to June 2013, the ratio rises to 19%. with 33 relevant IAs out of 177 actually acknowledging a potential impact on development.[3] This remains a very unsatisfactory record.

 

The IA guidelines are to be revised again during 2013, which presents an important opportunity for the Commission to bring the IA process into line with the ambitions of Article 208 of the Lisbon Treaty. Interestingly, since 2012 the European Parliament has had its own IA unit, whose main responsibility is to review the Commission’s IAs for the benefit of debate in the Parliament, and possibly to carry out alternative IAs. Overall its capacity is limited, but it does hold great potential for the advancement of PCD as it can help bring development concerns back onto the discussion table.

 

Civil society participation in the IA process is extremely limited. For example, CONCORD was involved very sporadically in the IA of the proposal on the future CAP published in 2011. In its 2010 report the EU Court of Auditors formally criticised the lack of systematic consultation of external stakeholders, stating that “the IA process should be transparent and draw on the expertise and views of others. Public scrutiny is as an effective verification mechanism to ensure that IAs address the most relevant issues, include all feasible policy options, and provide a balanced view. Consultations enable the Commission to gather the opinions of interested parties and to take into account various points of view”.[4]

 

CONCORD therefore recommends that:

 

o   the new IA guidelines should make explicit reference to the PCD obligation, and that development impacts should be made a key section of the assessments, alongside the present economic, social and environmental assessments;

o   CSOs’ inputs – both qualitative and quantitative – should be systematically included in all stages of the IA process;

o   among the high-ranking EC officials, a development specialist should be appointed to the IA Board, in order to increase the development expertise on that body;

o   the capacity of DG DEVCO to give input and support to other DGs in assessing development impacts should be strengthened institutionally – e.g. by establishing a DEVCO help desk on IA matters;[5]

o   the EP’s IA unit should pay special attention to development impact issues, and strengthen its capacity to address loopholes in the Commission’s IAs where development is concerned.

 

 

Interview: Standing rapporteur on PCD, MEP Charles Goerens

 

Charles Goerens is a Member of the European Parliament for the ALDE Group (Liberals and Democrats). Since September 2012 he has been the EP’s second standing rapporteur for policy coherence for development. This means that he plays a catalysing role in putting PCD on the Parliament’s agenda. He is also automatically the rapporteur for its biennial PCD report.

What motivated you to take up the position of standing rapporteur for PCD in the European Parliament?
For me it’s a fascinating job, it’s a challenge to see how policy  coherence can be achieved. There’s a great need to consider, in the European Parliament, the impact of European policies on development. We cannot allow a policy in one area to have the opposite effect on other areas.

What would you say is your most challenging task as the standing rapporteur for PCD?
The most challenging task is definitely to find an audience in the European Parliament that is willing to step up and strive for change – this might also be due to the lack of effective working methods when it comes to PCD. This is on the agenda of different workshops I am organising.

When it comes to striving for greater PCD, there often seems to be a lack of political will. How can more political will be generated, in your view?
It is essential to involve the national level. In April 2013 we invited members of national parliaments to the European Parliament to discuss PCD and how it is being implemented at the national level. It was a good opportunity, I think it was a very useful meeting and we must continue acting in this way.

Do you think the current institutional mechanisms for PCD are sufficient for addressing incoherent policies?
I think it is necessary to have an arbitration mechanism. In my view, this should be the President of the European Commission: he or she should be committed to defending and supporting PCD. When there are diverging views between the Commission’s different DGs, for instance between Trade and Development, it is Barroso who should act on the PCD commitments. In the European Parliament’s PCD report I will emphasise that we need clearer leadership when it comes to striving for greater policy coherence for development.

 

 

2.       Detect incoherencies: dialogue on policy impacts with stakeholders in developing countries

 

Making PCD happen means involving those who have a stake in the i
ssue concerned.

 

Public consultation on major policy proposals is an obligation on the Commission[6] and often takes place through a public questionnaire.[7] There are also more informal or selective ways of consulting stakeholders. How questions relating to PCD are included in these consultations varies a good deal, while it is also the responsibility of stakeholders to bring forward PCD-related issues in their responses if they wish.

 

Policy dialogue is additional to these above-mentioned consultations, and entails a longer-term approach and a broader agenda. The system of advisory boards set up by DG Agriculture and Rural Development (DG AGRI), such as the one on the external impacts of the CAP, is an example of a form of institutionalised policy dialogue involving diverse stakeholders – CONCORD, for example, has been participating in it. A recurrent criticism has been that it is hard for stakeholders to influence the agenda, which is set by the Commission alone. As a result, like for the above-mentioned public consultation, the ability of such fora to address the development impacts of non-development policies (which is at the heart of PCD) is very limited, while direct participation by stakeholders from developing countries is often not envisaged.

 

For CONCORD, the primary stakeholders to involve in any policy dialogue that could raise issues relating either directly or indirectly to development are the women and men directly affected by the impacts of EU policies. In May 2012 European development ministers took a major step forward by deciding that the EU must organise formal dialogues on policy impacts, in developing countries, with the local stakeholders, including local civil society organisations and parliaments. The Council underlined that the EU Delegations had a “crucial role” to play in this.[8]

 

In the implementation of this decision there is great potential for gathering first-hand information on the likely impacts of planned policies and also for detecting negative impacts, and therefore incoherencies, while a policy is being implemented. The information collected through these in-country multi-stakeholder policy dialogues could thus be a major resource for improving the analysis of the usual ex-ante impact assessments and policy evaluations carried out by the Commission.

 

Nevertheless, a year after the adoption of the Council Conclusions, the ministers’ demands had not been followed by any instructions to the EU Delegations from the European External Action Service (EEAS) or the Commission (see focus box 1). In 2013 an opportunity was missed, as the EU Delegations organised consultations for the aid programming process – in some instances local civil society was consulted.[9] Clearly, linking up PCD and aid dialogues is essential for ensuring that the full development and anti-development footprint of the EU in a country is assessed.

 

Focus 1: Dialogue on EU policy impacts in develop
ing countries: the role of EU Delegations

 

The May 2012 Council Conclusions on PCD stresses the need for a more evidence-based approach to PCD which include baselines, indicators and targets to measure the impact of PCD. A study carried out by CONCORD based on interviews with EEAS and DG DEVCO and surveys from some EU Delegations shows that no action has yet been taken to implement the May 2012 Council Conclusions. 14 months after the adoption of the Council Conclusions, a joint EEAS-DEVCO letter is still being prepared asking EU Delegations to assess their capacity to work on PCD and identify relevant PCD themes before the end of January 2014. EEAS and DG DEVCO explain the delay with other urgent priorities and reluctance to impose new structures and reporting requirements on already overburdened EU Delegations.

Still, EEAS and DG DEVCO confirm that they will encourage EU Delegations to engage in multi-stakeholder dialogue with all relevant stakeholders, including civil society and EU Member States, but within existing frameworks and without a prescribed methodology. EU Delegation are encouraged to report on incoherencies, but no formal PCD reporting requirements and mechanisms are envisaged. PCD issues will rather be integrated in the EU Delegations annual reporting, included in EU biennial report on PCD or used to identify ‘hot issues’ that could be the subject for further investigation (e.g. impact assessments by DG DEVCO’s PCD unit).

The EU Delegations that responded to CONCORD survey are generally aware of EU’s commitment to PCD, including the Council Conclusions and the 2010-2013 PCD Work Programme and its five priority areas. But PCD is one among many priorities at EU Delegations and is not given high priority. None of the EU Delegations have taken specific action to implement the May 2012 Council Conclusions. PCD is being treated ad-hoc and discussed in existing dialogue forums when relevant. In a CONCORD survey on civil society engagement with EU Delegations, less than 1/4 of the civil society organizations consulted, has been invited to discuss the impacts and effects of EU policies with EU Delegations[10].

Head of Delegations (HoD) are responsible for PCD, but have full autonomy to organize at country level and PCD is therefore dependent on individual interest. In consequences, PCD is prioritized differently at country level – both organizational and politically. While some EU Delegations have appointed a PCD focal point, others have assigned the responsibility to the Head of Section (HoS) or the Head of Cooperation (HoC).

The CONCORD survey shows that EU Delegations need support from EEAS and DG DEVCO, e.g. instructions, help desk, tool boxes and best practices on how to ensure policy coherence between DEVCO and the other DG’s activities at Delegation level. DG DEVCO does provide regular PCD training in Brussels for EU Delegation staff, while e-training on PCD is being developed. PCD will potentially be included in the 2013 annual Head of Delegations seminar in Brussels, but not as a separate agenda item.

CONCORD finds that the commitment of EEAS and DEVCO to operationalise the May 2012 Council Conclusions is clearly insufficient. It takes much stronger political leadership in the EEAS, DEVCO and the EU Delegations to ensure that a multi-stakeholder dialogue on PCD at country level is delivering evidence-based results.

 

To make progress on country-level dialogue in PCD, important issues must be addressed. For one thing, the EU Delegations’ mandate on PCD is vague; PCD is part of a long list of responsibilities of the EU Delegation Head, and there is no such thing as a “template” job description. Delegation staff are still largely undertrained on PCD, in spite of recent efforts. More importantly, major questions still need to be answered: what are the objectives of such a dialogue? Who will be invited to take part? How will topics be selected? Who will prepare the agenda? And, key to the process: what will be done with the information collected?

 

CONCORD recommends that:

 

o   the Commission should mainstream PCD in public consultations and policy dialogues that focus on questions relevant to development;

o   the Commission and EEAS should take urgent action to implement the Council Conclusions regarding PCD. This includes setting in motion a process that will answer the outstanding questions, which relate inter alia to the consultation of relevant stakeholders such as the local communities, CSOs, and local policymakers and representatives in developing countries;

o   a system should be set up for feeding the information and evidence collected into the policymaking cycle, leading ultimately to the correction of incoherencies where they occur, and a commitment to do this should be given.

 

3.       Detect incoherencies: development impact monitoring

 

All EU policies include provision for monitoring, review and evaluation systems. As explained in the case of EU biofuels policies, in this report’s chapter on food security, some EU policies already have a built-in requirement to report on development impacts. This is especially appropriate when the ex-ante analysis has been able to establish that there is a risk of adverse impacts on development objectives. The explicit obligation to monitor and report on development impacts as part of the policymaking cycle is very important and very welcome, as it provides a key safety valve to prevent the risks from materialising.

 

 The proof, however, is in the pudding, and so far the number of instances of implementation of this reporting requirement at EU level has been far below expectations. The level of knowledge of development impacts is insufficient to enable a lead (non-development) Commission service to draw up terms of reference for reports or studies that would include the relevant development aspects. Nor are there any guidelines that explicitly state how to bring in development expertise when development impacts are involved. This is unacceptable, and it discredits the EU’s commitment to PCD. There is a need for far better incorporation of PCD into existing guidelines (where they exist), and far wider use of this monitoring tool, together with a broader recognition of its usefulness for potentially correcting incoherent policies once sufficient analysis has been provided.

 

Specifically, CONCORD recommends:

 

o   improved impact assessment (see above) to see whether or not a policy should be adopted in the first place, and whether there is a need for a monitoring clause. In all cases where an EU policy is in danger of having an adverse impact, development impact monitoring should be introduced as a precautionary measure;

o   the drawing up of guidelines for participatory monitoring involving local stakeholders, with a particular focus on civil society and the people affected;

o &nbsp
;
a control of the quality of the monitoring process outcomes by independent experts, which may include alternative policy options and possible corrective action;

o   timely public access to the outcomes of the monitoring process, and consultation on alternative policy options and possible corrective action.

 

 

Focus 2: Trends in institutional PCD systems in EU Member States

 

Over the past decade several EU Member States have made progress with developing systems to promote policy coherence for development. However, the situation remains very different from one country to another. To be effective, a system promoting PCD needs policy commitments, an implementation strategy with clear political objectives, institutional and administrative mechanisms, and monitoring and assessment mechanisms. This system is affected by the political background in each country and, in particular, its political culture and the degree of influence of civil society.

                               

Policy commitments

The political commitment to PCD is strong in some countries (Belgium, Denmark, Finland, Lithuania, Luxembourg, the Netherlands, Sweden and the United Kingdom), and weak in others (Czech Republic, France, Germany, Hungary, Poland, Romania and Slovakia), while some have none at all (Bulgaria and Slovenia). In some countries, however, PCD tends to be confused at times with policy coherence in general (Belgium, Bulgaria, Luxembourg and Slovakia). Except in the Netherlands, no country has set clear political objectives which could be used to assess and monitor progress made towards PCD in relevant non-development policies.

 

Coordination mechanisms

Some countries have no institutional mechanisms for promoting PCD (Bulgaria, and France) while in some (Denmark) they are in the making. Some have specific mechanisms for PCD, such as inter-ministerial structures (Czech Republic, Lithuania, Luxembourg, Poland, Sweden, United Kingdom), PCD working groups (Finland, Sweden) or PCD focal points in ministries (Finland and Sweden). Some have overall national policy coordination and coherence mechanisms, either formal (Belgium, Hungary, Germany, Romania and Slovenia) and/or informal (Belgium, Hungary, the Netherlands), but these mechanisms are failing to mainstream PCD. It must be emphasised that Belgium and Denmark are currently working on institutional set-ups – in the case of Denmark, it is unclear whether this will include monitoring and assessment mechanisms.

 

Monitoring and assessment mechanisms

Most countries have no mechanisms for assessing the impact of their policies (Belgium, Bulgaria, Czech Republic, Denmark, France, Germany, Hungary, Lithuania, Luxembourg, Poland, Romania, Slovakia or Slovenia), while some do require reports on the implementation of PCD (Luxembourg, the Netherlands and Sweden). Finland produces reports in which PCD is monitored along with other issues. Belgium is currently working to set up an impact assessment mechanism.

 

It appears that although a growing number of countries have made commitments to PCD, its actual implementation often remains problematic. The form of implementation will differ from one country to another, owing to political culture: in each case it will depend largely on the political context (the personal ambition of the development minister, for instance) and on the level of pressure exerted by civil society.

 

 Recommendations

There is no one way to implement policy coherence for development properly. A good mix of commitments and institutional mechanisms is required, however.

 

This mix should always include the following:

 

– a clear political commitment in favour of PCD at the highest level of the State (where PCD is clearly defined);

– An implementation strategy for this commitment that includes clear political objectives;

– Coordination mechanisms in decision-making processes where PCD is efficiently mainstreamed;

– Ex-ante assessment mechanisms to make sure that every policy with a potential impact in a developing country takes PCD into consideration;

– Ex-post assessment mechanisms to ensure that existing policies do not conflict with PCD;

– The monitoring of PCD commitments and institutional set-ups, with participation by stakeholders.

 

 

 

4.       Detect incoherencies: complaints mechanism

 

Two possible types of complaint could be envisaged in relation to PCD:

·         complaints about the effectiveness of the policymaking process in studying the development impacts of policies;

  • complaints that the policies themselves either undermine or are in danger of undermining development objectives.

In the case of the former, the complaint would be based on a violation of the obligation of conduct enshrined in Article 208 of the Lisbon Treaty. This is the obligation on EU policymakers to show that they have considered development objectives when adopting a course of action, and have adequately monitored and assessed the effects of their policies on development on an ongoing basis.

While a suitable judicial remedy is lacking, these complaints would fall squarely within the jurisdiction of the European Ombudsman.[11] The potential here is limited, however, because the Ombudsman has no actual power to require the EU institutions to act – merely to recommend reporting the matter to the European Parliament.

For complaints about policies that are incoherent with development objectives (type 2 above), there is no recourse. Indeed, today, individuals and communities in developing countries who are negatively affected by EU policies (and whose testimonies can be found in the subsequent chapters of this report) still have no institutional channel through which to appeal to EU decision-makers and seek redress. The redress sought is not primarily about compensating the victims for the harm done to them, but rather about addressing the issue and introducing fair policies. Giving a voice to the victims of incoherencies would be a significant move towards more responsible and higher-quality policymaking, as it would provide useful feedback on policy impact. It is also a question of human rights.

This has been a constant demand from CSOs, but no progress can be reported.[12] Some encouraging signals came from the European Parliament during the recent debate on CAP reform, where amendments to introduce a PCD-based complaints mechanism did receive a significant, if insufficient, level of support from MEPs. Whilst this was well intended, the CAP result ultimately came out against a pro-development outcome.

As with many other aspects of PCD, in the particular area of a recourse/complaints mechanism, stronger political will is needed to make a difference and enforce PCD properly within the EU.

CONCORD recommends that the EU should set up a recourse mechanism open to citizens of developing countries who wish to challenge the negative consequences of EU policies on their development, where a violation of PCD can be demonstrated. The objective of such recourse will not be to gain individual compensation for the damage done, but to trigger an investigation into the impacts of the policy, and a policy review. This will give decision-makers a chance to consider alternative, more development-friendly, policy options.

 

 

5.       Redress incoherencies: the missing link

 

In CONCORD’s view, the outcomes of the above mechanisms (impact assessment, impact monitoring, multi-stakeholder dialogue, complaints mechanism) should feed into an evidence-based policymaking process, so the data and evidence collected in these ways should be passed on to policymakers in Brussels.

 

Where there is serious evidence of damage, policymakers should investigate the matter in more depth and then start a policy review process, with the intention of revising the incoherent aspects of the policy, from a PCD perspective.

 

Astonishingly, no such mechanism exists at present and there is no institutional way of forcing a policy review. It all depends on political will, linked to the level of sensitivity of high-level policymakers to development issues and the extent to which they feel accountable for the impacts of EU policies on citizens outside EU borders.

 

 

Focus 3: Human rights and development: how can we reduce the negative impact of EU policies on developing countries?

 

The European Union and its Member States have an obligation to ensure that their policies are coherent with development objectives (PCD), and with extraterritorial obligations (ETOs) to respect human rights in third countries. The first obligation is based on Article 208 of the Treaty of Lisbon, the second on the International Covenant on Economic, Social and Cultural Rights. Are these two types of obligation interchangeable? The answer is no, because the extraterritorial obligations on States to respect human rights are more restrictive. They are complementary, however, and can support each other.


Primacy of international law on human rights
States are obliged to respect human rights. If a State takes a political decision that results in a human rights violation in a third country, it must (in theory) cancel that decision. Human rights have a higher legal value than other policies, such as the CAP, for example. In terms of PCD, a legalistic interpretation of the treaty obligation means that the EU needs only “take account of” the objectives of EU development when working on the CAP, with no actual obligation to respect development objectives. This means that, in the CAP, the objectives of EU development have a value equivalent to its agricultural objectives. In the event of a conflict between objectives, the EU will seek to reconcile them. Disappointingly, experience shows that the EU development objectives remain dominated by stronger vested interests, as is shown by the proposed CAP reform for 2014-2020.

 

ETOs are obligations of result, not only of conduct
ETOs are obligations of result (respect for human rights), while the PCD obligations arising from Article 208 of the Lisbon Treaty are only obligations of conduct (take development objectives into account). The EU could, for example, conduct assessments of how its policies have an impact on development, and if incoherencies are identified, it is not obliged to correct them. Developing a rights-based approach to PCD is therefore essential, and will add considerable weight to arguments in favour of development in the event of arbitration between interests that are perceived to be conflicting.

 

 


[1] Foreign Affairs Council of the EU, Council Conclusions on Policy Coherence for Development, 14 May 2012 )

[2] European Commission, Impact Assessment Guidelines, 15 January 2009

[4] European Court of Auditors, Special Report No. 3 on Impact Assessments, 2010

[5] A helpdesk of this kind already exists in DG Environment, to help other DGs address environmental impact issues properly.

[6] EU 2011 Report on Policy Coherence for Development, Commission Staff Working Paper, SEC(2011) 1627 final, p. 14

[8]The Council stresses in particular the need to include the issues of PCD systematically in the regular dialogue with partner countries to better assess the impact of EU policies at country level and the interaction with partner countries’ policies. EU Delegations have a crucial role in this regard.” Council Conclusions on Policy Coherence for Development, 14 May 2012

[9] See CONCORD (2013): EEAS Review 2013 (http://www.concordeurope.org/226-concord-eeas-review-2013) and the forthcoming CONCORD survey on the involvement of civil society organisations in the aid programming process (due in September 2013)

[10] CONCORD survey on the involvement of civil society organisations in the aid programming process (due in September 2013) – available on CONCORD website

[11] A representative from the Ombudsman’s office affirmed this in a meeting on 22 February 2010: see Niels Keijzer (2010):  EU Policy Coherence for Development: from moving the goalposts to result-based management?, ECDPM Discussion Paper 101, page 25, note 38

[12] See CONCORD Spotlight Reports on Policy Coherence for Development 2009 and 2011


 

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CHAPTER 1: INSTITUTIONAL FRAMEWORK

 

How the EU can make fairer, more coherent decisions for the well-being of all

 

The time has come for the EU to face up to the global impact of its policies and make policy coherence for development (PCD) a reality. The PCD principle builds on the Union’s founding values of solidarity, equality and respect for human rights, and under Article 208 of the Lisbon Treaty PCD is a legal obligation on the EU.

 “The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.” Lisbon Treaty, Article 208[BB1] 

 

While progress has been made over the years in PCD rhetoric, we have yet to see the positive words and policy documents make a real difference. Adopting fair and coherent policies is first and foremost a political choice. All too often, European decision-makers put narrow, short-term Eurocentric interests before the longer-term interests of both its own citizens and people in developing countries. Decisions in favour of development require a rethink of Europe’s domestic (economic, political, commercial and geopolitical) interests, and its role in global affairs, including how these affect people’s welfare, human rights and poverty eradication.

 

The voices of the people whose lives are affected by EU policies need to be taken into account. All too often, inadequate impact analyses, and information that is insufficient to establish a clear causal relationship between EU policies and their impact on the ground, are quoted as a justification for the EU not taking more progressive decisions in favour of development. Only by systematically looking at potential and existing impacts can PCD become a useful tool for thinking policies through properly, and adapting policymaking. Article 208 of the Lisbon Treaty calls for this type of “due diligence”. To comply with this treaty obligation, EU policymakers must demonstrate that they have taken the necessary steps to gather all the relevant information on the development impacts of their policies, throughout the policymaking cycle.

 

Explicit political commitments to these tools and mechanisms, entered into at a high level, will enable the EU to advance towards more responsible, evidence-based policymaking. By taking a precautionary approach, this more effective kind of policymaking will prevent potential incoherencies. Where they exist, it will detect them and – through policy review and revision – it will correct any measures that have proven to be incoherent. Thus the tools and mechanisms not only make PCD operational – they also ensure that EU policymakers can be held accountable for their PCD obligation.

 

Since CONCORD last reported on PCD issues, in its 2011 Spotlight report, there has been patchy progress in operationalising PCD. The EU’s last report on PCD, also published in 2011, provided no analysis of the actual impacts on developing countries, nor did it make any recommendations for how to advance towards taking these issues into consideration.

 

In May 2012, however, the EU’s development ministers reiterated their commitment to PCD at the Foreign Affairs Council,[1] emphasising the need for a more evidence-based approach and for enhanced dialogue with stakeholders in developing countries. This gave fresh impetus to the issue, thanks to the support of the Danish presidency – which might have been the reason why in 2013 the European Commission (EC)’s development directorate (DG DEVCO) pressed ahead with the first detailed development impact study, for which the chosen topic was biofuels. That said, the study did not focus on the impact of the EU’s biofuels policy, but adopted a more general approach, and it played no part in the formal inter-service consultation.

 

For its part, the European Parliament (EP) has for the second time appointed a Standing Rapporteur on PCD and has played a decisive role in gathering support for a more development-friendly outcome from the revision of EU legislations on combating illicit financial outflows from poor countries.

 

Furthermore, the reform of the Common European Fisheries Policy and the Commission’s proposal to cap the EU’s biofuels targets (so as not “to interfere with global food systems”) give the first glimpses of political will, on the part of EU institutions, to take the rights of poor people living beyond the EU’s borders into account in major policy reforms.

 

Nevertheless, the overall picture shows that EU policymakers active in non-development sectors (in all three EU institutions) still have a poor record of delivering PCD. Examples include notably the Common Agricultural Policy (CAP), where both the Commission and Parliament rejected the proposal put forward by civil society organisations (CSOs) that they should – “at the very minimum” – commit to monitoring the CAP’s external impacts on developing countries (and, implicitly, food insecurity).

 

EU mechanisms for gathering evidence

 

Institutional mechanisms do matter, but they are nothing without the political will to acknowledge research findings and act on them.

 

PCD offers a new “thinking matrix” for policy analysis: it is a fresh way of looking at old issues. In order to succeed in this, ways to gather knowledge systematically need to be established. In terms of institutional mechanisms, this means tools that enable policymakers to make more informed choices, which will in turn result in development-friendly policies.

 

It is important that PCD is not perceived as an extra burden, or something that would necessarily require heavy investment. Rather, many existing mechanisms within the EU policymaking cycle can be adapted to play a valuable role in preventing, detecting or correcting incoherencies. By doing this, the EU can demonstrate compliance with its treaty obligations (see graph[BB2] ).

 

 

We shall now look in more detail at possibilities for ensuring PCD in EU policymaking. The focus of this chapter will be on some of the mechanisms that have the greatest potential to contribute to information gathering about development impacts, in order to prevent and detect incoherencies.

 

 

1.       Prevent incoherencies: Ex-ante impact assessment

 

One of the pivotal instruments for evidenced-based policymaking and for preventing – at the earliest possible stage – the adoption of incoherent, development-unfriendly policies within the EU system, is the so-called Impact Assessment (IA).

 

IAs are an obligation for all new major legislative or policy proposals such as regulations, directives, major strategies and mandates for negotiations with third countries. According to the  Commission guidelines for impact assessment, as revised in 2009, all IAs “[…] should establish whether proposed policy options have an impact on relations with third countries. In particular they should look at: […] impacts on developing countries – initiatives that may affect developing countries should be analysed for their coherence with the objectives of the EU development policy. This includes an analysis of consequences (or spill-overs) in the longer run in areas such as economic, environmental, social or security policy”.[2]

 

Why are impact assessments in their current form not working for PCD purposes? In practice, IAs are carried out by the lead Directorate-General (DG) in the European Commission, sometimes drawing on external expertise for specific studies, and are released together with the policy proposal assessed. No dedicated support is provided to help the IA drafters to address development issues in their analysis. A quality check of all IAs is carried out by a Board composed of high-level civil servants appointed by the  Commission president, acting in their own name. The members’ development expertise is rather limited (none of the members come from DG DEVCO). It is not surprising that no IA has ever been rejected and sent back for improvement on the sole ground of inadequate assessment of development impact.

 

This is borne out by an IA screening carried out by Concord Denmark, which showed that in the period from 2009 to June 2011, out of 77 IAs that were relevant from a development perspective, only seven – a mere 9% – actually assessed or even mentioned the impacts on developing countries. In the entire period since the introduction of the new IA guidelines in 2009, up to June 2013, the ratio rises to 19%. with 33 relevant IAs out of 177 actually acknowledging a potential impact on development.[3] This remains a very unsatisfactory record.

 

The IA guidelines are to be revised again during 2013, which presents an important opportunity for the Commission to bring the IA process into line with the ambitions of Article 208 of the Lisbon Treaty. Interestingly, since 2012 the European Parliament has had its own IA unit, whose main responsibility is to review the Commission’s IAs for the benefit of debate in the Parliament, and possibly to carry out alternative IAs. Overall its capacity is limited, but it does hold great potential for the advancement of PCD as it can help bring development concerns back onto the discussion table.

 

Civil society participation in the IA process is extremely limited. For example, CONCORD was involved very sporadically in the IA of the proposal on the future CAP published in 2011. In its 2010 report the EU Court of Auditors formally criticised the lack of systematic consultation of external stakeholders, stating that “the IA process should be transparent and draw on the expertise and views of others. Public scrutiny is as an effective verification mechanism to ensure that IAs address the most relevant issues, include all feasible policy options, and provide a balanced view. Consultations enable the Commission to gather the opinions of interested parties and to take into account various points of view”.[4]

 

CONCORD therefore recommends that:

 

o   the new IA guidelines should make explicit reference to the PCD obligation, and that development impacts should be made a key section of the assessments, alongside the present economic, social and environmental assessments;

o   CSOs’ inputs – both qualitative and quantitative – should be systematically included in all stages of the IA process;

o   among the high-ranking EC officials, a development specialist should be appointed to the IA Board, in order to increase the development expertise on that body;

o   the capacity of DG DEVCO to give input and support to other DGs in assessing development impacts should be strengthened institutionally – e.g. by establishing a DEVCO help desk on IA matters;[5]

o   the EP’s IA unit should pay special attention to development impact issues, and strengthen its capacity to address loopholes in the Commission’s IAs where development is concerned.

 

 

Interview: Standing rapporteur on PCD, MEP Charles Goerens

 

Charles Goerens is a Member of the European Parliament for the ALDE Group (Liberals and Democrats). Since September 2012 he has been the EP’s second standing rapporteur for policy coherence for development. This means that he plays a cata
lysing role in putting PCD on the Parliament’s agenda. He is also automatically the rapporteur for its biennial PCD report.

What motivated you to take up the position of standing rapporteur for PCD in the European Parliament?
For me it’s a fascinating job, it’s a challenge to see how policy  coherence can be achieved. There’s a great need to consider, in the European Parliament, the impact of European policies on development. We cannot allow a policy in one area to have the opposite effect on other areas.

What would you say is your most challenging task as the standing rapporteur for PCD?
The most challenging task is definitely to find an audience in the European Parliament that is willing to step up and strive for change – this might also be due to the lack of effective working methods when it comes to PCD. This is on the agenda of different workshops I am organising.

When it comes to striving for greater PCD, there often seems to be a lack of political will. How can more political will be generated, in your view?
It is essential to involve the national level. In April 2013 we invited members of national parliaments to the European Parliament to discuss PCD and how it is being implemented at the national level. It was a good opportunity, I think it was a very useful meeting and we must continue acting in this way.

Do you think the current institutional mechanisms for PCD are sufficient for addressing incoherent policies?
I think it is necessary to have an arbitration mechanism. In my view, this should be the President of the European Commission: he or she should be committed to defending and supporting PCD. When there are diverging views between the Commission’s different DGs, for instance between Trade and Development, it is Barroso who should act on the PCD commitments. In the European Parliament’s PCD report I will emphasise that we need clearer leadership when it comes to striving for greater policy coherence for development.

 

 

2.       Detect incoherencies: dialogue on policy impacts with stakeholders in developing countries

 

Making PCD happen means involving those who have a stake in the issue concerned.

 

Public consultation on major policy proposals is an obligation on the Commission[6] and often takes place through a public questionnaire.[7] There are also more informal or selective ways of consulting stakeholders. How questions relating to PCD are included in these consultations varies a good deal, while it is also the responsibility of stakeholders to bring forward PCD-related issues in their responses if they wish.

 

Policy dialogue is additional to these above-mentioned consultations, and entails a longer-term approach and a broader agenda. The system of advisory boards set up by DG Agriculture and Rural Development (DG AGRI), such as the one on the external impacts of the CAP, is an example of a form of institutionalised policy dialogue involving diverse stakeholders – CONCORD, for example, has been participating in it. A recurrent criticism has been that it is hard for stakeholders to influence the agenda, which is set by the Commission alone. As a result, like for the above-mentioned public consultation, the ability of such fora to address the development impacts of non-development policies (which is at the heart of PCD) is very limited, while direct participation by stakeholders from developing countries is often not envisaged.

 

For CONCORD, the primary stakeholders to involve in any policy dialogue that could raise issues relating either directly or indirectly to development are the women and men directly affected by the impacts of EU policies. In May 2012 European development ministers took a major step forward by deciding that the EU must organise formal dialogues on policy impacts, in developing countries, with the local stakeholders, including local civil society organisations and parliaments. The Council underlined that the EU Delegations had a “crucial role” to play in this.[8]

 

In the implementation of this decision there is great potential for gathering first-hand information on the likely impacts of planned policies and also for detecting negative impacts, and therefore incoherencies, while a policy is being implemented. The information collected through these in-country multi-stakeholder policy dialogues could thus be a major resource for improving the analysis of the usual ex-ante impact assessments and policy evaluations carried out by the Commission.

 

Nevertheless, a year after the adoption of the Council Conclusions, the ministers’ demands had not been followed by any instructions to the EU Delegations from the European External Action Service (EEAS) or the Commission (see focus box 1). [SKJ3] In 2013 an opportunity was missed, as the EU Delegations organised consultations for the aid programming process – in some instances local civil society was consulted.[9] Clearly, linking up PCD and aid dialogues is essential for ensuring that the full development and anti-development footprint of the EU in a country is assessed.

 

Focus 1: Dialogue on EU policy impacts in developing countries: the role of EU Delegations

 

The May 2012 Council Conclusions on PCD stresses the need for a more evidence-based approach to PCD which include baselines, indicators and targets to measure the impact of PCD. A study carried out by CONCORD based on interviews with EEAS and DG DEVCO and surveys from some EU Delegations shows that no action has yet been taken to implement the May 2012 Council Conclusions. 14 months after the adoption of the Council Conclusions, a joint EEAS-DEVCO letter is still being prepared asking EU Delegations to assess their capacity to work on PCD and identify relevant PCD themes before the end of January 2014. EEAS and DG DEVCO explain the delay with other urgent priorities and reluctance to impose new structures and reporting requirements on already overburdened EU Delegations.

Still, EEAS and DG DEVCO confirm that they will encourage EU Delegations to engage in multi-stakeholder dialogue with all relevant stakeholders, including civil society and EU Member States, but within existing frameworks and without a prescribed methodology. EU Delegation are encouraged to report on incoherencies, but no formal PCD reporting requirements and mechanisms are envisaged. PCD issues will rather be integrated in the EU Delegations annual reporting, included in EU biennial report on PCD or used to identify ‘hot issues’ that could be the subject for further investigation (e.g. impact assessments by DG DEVCO’s PCD unit).

The EU Delegations that responded to CONCORD survey are generally aware of EU’s commitment to PCD, including the Council Conclusions and the 2010-2013 PCD Work Programme and its five priority areas. But PCD is one among many priorities at EU Delegations and is not given high priority. None of the EU Delegations have taken specific action to implement the May 2012 Council Conclusions. PCD is being treated ad-hoc and discussed in existing dialogue forums when
relevant. In a CONCORD survey on civil society engagement with EU Delegations, less than 1/4 of the civil society organizations consulted, has been invited to discuss the impacts and effects of EU policies with EU Delegations[10].

Head of Delegations (HoD) are responsible for PCD, but have full autonomy to organize at country level and PCD is therefore dependent on individual interest. In consequences, PCD is prioritized differently at country level – both organizational and politically. While some EU Delegations have appointed a PCD focal point, others have assigned the responsibility to the Head of Section (HoS) or the Head of Cooperation (HoC).

The CONCORD survey shows that EU Delegations need support from EEAS and DG DEVCO, e.g. instructions, help desk, tool boxes and best practices on how to ensure policy coherence between DEVCO and the other DG’s activities at Delegation level. DG DEVCO does provide regular PCD training in Brussels for EU Delegation staff, while e-training on PCD is being developed. PCD will potentially be included in the 2013 annual Head of Delegations seminar in Brussels, but not as a separate agenda item.

CONCORD finds that the commitment of EEAS and DEVCO to operationalise the May 2012 Council Conclusions is clearly insufficient. It takes much stronger political leadership in the EEAS, DEVCO and the EU Delegations to ensure that a multi-stakeholder dialogue on PCD at country level is delivering evidence-based results.

 

To make progress on country-level dialogue in PCD, important issues must be addressed. For one thing, the EU Delegations’ mandate on PCD is vague; PCD is part of a long list of responsibilities of the EU Delegation Head, and there is no such thing as a “template” job description. Delegation staff are still largely undertrained on PCD, in spite of recent efforts. More importantly, major questions still need to be answered: what are the objectives of such a dialogue? Who will be invited to take part? How will topics be selected? Who will prepare the agenda? And, key to the process: what will be done with the information collected?

 

CONCORD recommends that:

 

o   the Commission should mainstream PCD in public consultations and policy dialogues that focus on questions relevant to development;

o   the Commission and EEAS should take urgent action to implement the Council Conclusions regarding PCD. This includes setting in motion a process that will answer the outstanding questions, which relate inter alia to the consultation of relevant stakeholders such as the local communities, CSOs, and local policymakers and representatives in developing countries;

o   a system should be set up for feeding the information and evidence collected into the policymaking cycle, leading ultimately to the correction of incoherencies where they occur, and a commitment to do this should be given.

 

3.       Detect incoherencies: development impact monitoring

 

All EU policies include provision for monitoring, review and evaluation systems. As explained in the case of EU biofuels policies, in this report’s chapter on food security[TS4] , some EU policies already have a built-in requirement to report on development impacts. This is especially appropriate when the ex-ante analysis has been able to establish that there is a risk of adverse impacts on development objectives. The explicit obligation to monitor and report on development impacts as part of the policymaking cycle is very important and very welcome, as it provides a key safety valve to prevent the risks from materialising.

 

 The proof, however, is in the pudding, and so far the number of instances of implementation of this reporting requirement at EU level has been far below expectations. The level of knowledge of development impacts is insufficient to enable a lead (non-development) Commission service to draw up terms of reference for reports or studies that would include the relevant development aspects. Nor are there any guidelines that explicitly state how to bring in development expertise when development impacts are involved. This is unacceptable, and it discredits the EU’s commitment to PCD. There is a need for far better incorporation of PCD into existing guidelines (where they exist), and far wider use of this monitoring tool, together with a broader recognition of its usefulness for potentially correcting incoherent policies once sufficient analysis has been provided.

 

Specifically, CONCORD recommends:

 

o   improved impact assessment (see above) to see whether or not a policy should be adopted in the first place, and whether there is a need for a monitoring clause. In all cases where an EU policy is in danger of having an adverse impact, development impact monitoring should be introduced as a precautionary measure;

o   the drawing up of guidelines for participatory monitoring involving local stakeholders, with a particular focus on civil society and the people affected;

o   a control of the quality of the monitoring process outcomes by independent experts, which may include alternative policy options and possible corrective action;

o   timely public access to the outcomes of the monitoring process, and consultation on alternative policy options and possible corrective action.

 

 

Focus 2: Trends in institutional PCD systems in EU Member States

 

Over the past decade several EU Member States have made progress with developing systems to promote policy coherence for development. However, the situation remains very different from one country to another. To be effective, a system promoting PCD needs policy commitments, an implementation strategy with clear political objectives, institutional and administrative mechanisms, and monitoring and assessment mechanisms. This system is affected by the political background in each country and, in particular, its political culture and the degree of influence of civil society.

                               

Policy commitments

The political commitment to PCD is strong in some countries (Belgium, Denmark, Finland, Lithuania, Luxembourg, the Netherlands, Sweden and the United Kingdom), and weak in others (Czech Republic, France, Germany, Hungary, Poland, Romania and Slovakia), while some have none at all (Bulgaria and Slovenia). In some countries, however, PCD tends to be confused at times with policy coherence in general (Belgium, Bulgaria, Luxembourg and Slovakia). Except in the Netherlands, no country has set clear political objectives which could be used to assess and monitor progress made towards PCD in relevant non-development policies.

 

Coordination mechanisms

Some countries have no institutional mechanisms for promoting PCD (Bulgaria, and France) while in some (Denmark) they are in the making. Some have specific mechanisms for PCD, such as inter-ministerial structures (Czech Republic, Lithuania, Luxembourg, Poland, Sweden, United Kingdom), PCD working groups (Finland, Sweden) or PCD focal points in ministries (Finland and Sweden). Some have overall national policy coordination and coherence mechanisms, either formal (Belgium, Hungary, Germany, Romania and Slovenia) and/or informal (Belgium, Hungary, the Netherlands), but these mechanisms are failing to mainstream PCD. It must be emphasised that Belgium and Denmark are currently working on institutional set-ups – in the case of Denmark, it is unclear whether this will include monitoring and assessment mechanisms.

 

Monitoring and assessment mechanisms

Most countries have no mechanisms for assessing the impact of their policies (Belgium, Bulgaria, Czech Republic, Denmark, France, Germany, Hungary, Lithuania, Luxembourg, Poland, Romania, Slovakia or Slovenia), while some do require reports on the implementation of PCD (Luxembourg, the Netherlands and Sweden). Finland produces reports in which PCD is monitored along with other issues. Belgium is currently working to set up an impact assessment mechanism.

 

It appears that although a growing number of countries have made commitments to PCD, its actual implementation often remains problematic. The form of implementation will differ from one country to another, owing to political culture: in each case it will depend largely on the political context (the personal ambition of the development minister, for instance) and on the level of pressure exerted by civil society.

 

 Recommendations

There is no one way to implement policy coherence for development properly. A good mix of commitments and institutional mechanisms is required, however.

 

This mix should always include the following:

 

– a clear political commitment in favour of PCD at the highest level of the State (where PCD is clearly defined);

– An implementation strategy for this commitment that includes clear political objectives;

– Coordination mechanisms in decision-making processes where PCD is efficiently mainstreamed;

– Ex-ante assessment mechanisms to make sure that every policy with a potential impact in a developing country takes PCD into consideration;

– Ex-post assessment mechanisms to ensure that existing policies do not conflict with PCD;

– The monitoring of PCD commitments and institutional set-ups, with participation by stakeholders.

 

 

 

4.       Detect incoherencies: complaints mechanism

 

Two possible types of complaint could be envisaged in relation to PCD:

·         complaints about the effectiveness of the policymaking process in studying the development impacts of policies;

  • complaints that the policies themselves either undermine or are in danger of undermining development objectives.

In the case of the former, the complaint would be based on a violation of the obligation of conduct enshrined in Article 208 of the Lisbon Treaty. This is the obligation on EU policymakers to show that they have considered development objectives when adopting a course of action, and have adequately monitored and assessed the effects of their policies on development on an ongoing basis.

While a suitable judicial remedy is lacking, these complaints would fall squarely within the jurisdiction of the European Ombudsman.[11] The potential here is limited, however, because the Ombudsman has no actual power to require the EU institutions to act – merely to recommend reporting the matter to the European Parliament.

For complaints about policies that are incoherent with development objectives (type 2 above), there is no recourse. Indeed, today, individuals and communities in developing countries who are negatively affected by EU policies (and whose testimonies can be found in the subsequent chapters of this report) still have no institutional channel through which to appeal to EU decision-makers and seek redress. The redress sought is not primarily about compensating the victims for the harm done to them, but rather about addressing the issue and introducing fair policies. Giving a voice to the victims of incoherencies would be a significant move towards more responsible and higher-quality policymaking, as it would provide useful feedback on policy impact. It is also a question of human rights.

This has been a constant demand from CSOs, but no progress can be reported.[12] Some encouraging signals came from the European Parliament during the recent debate on CAP reform, where amendments to introduce a PCD-based complaints mechanism did receive a significant, if insufficient, level of support from MEPs. Whilst this was well intended, the CAP result ultimately came out against a pro-development outcome.

As with many other aspects of PCD, in the particular area of a recourse/complaints mechanism, stronger political will is needed to make a difference and enforce PCD properly within the EU.

CONCORD recommends that
[BB5] 
the EU should set up a recourse mechanism open to citizens of developing countries who wish to challenge the negative consequences of EU policies on their development, where a violation of PCD can be demonstrated. The objective of such recourse will not be to gain individual compensation for the damage done, but to trigger an investigation into the impacts of the policy, and a policy review. This will give decision-makers a chance to consider alternative, more development-friendly, policy options.

 

 

5.       Redress incoherencies: the missing link

 

In CONCORD’s view, the outcomes of the above mechanisms (impact assessment, impact monitoring, multi-stakeholder dialogue, complaints mechanism) should feed into an evidence-based policymaking process, so the data and evidence collected in these ways should be passed on to policymakers in Brussels.

 

Where there is serious evidence of damage, policymakers should investigate the matter in more depth and then start a policy review process, with the intention of revising the incoherent aspects of the policy, from a PCD perspective.

 

Astonishingly, no such mechanism exists at present and there is no institutional way of forcing a policy review. It all depends on political will, linked to the level of sensitivity of high-level policymakers to development issues and the extent to which they feel accountable for the impacts of EU policies on citizens outside EU borders.

 

 

Focus 3: Human rights and development: how can we reduce the negative impact of EU policies on developing countries[BB6] ?

 

The European Union and its Member States have an obligation to ensure that their policies are coherent with development objectives (PCD), and with extraterritorial obligations (ETOs) to respect human rights in third countries. The first obligation is based on Article 208 of the Treaty of Lisbon, the second on the International Covenant on Economic, Social and Cultural Rights. Are these two types of obligation interchangeable? The answer is no, because the extraterritorial obligations on States to respect human rights are more restrictive. They are complementary, however, and can support each other.


Primacy of international law on human rights
States are obliged to respect human rights. If a State takes a political decision that results in a human rights violation in a third country, it must (in theory) cancel that decision. Human rights have a higher legal value than other policies, such as the CAP, for example. In terms of PCD, a legalistic interpretation of the treaty obligation means that the EU needs only “take account of” the objectives of EU development when working on the CAP, with no actual obligation to respect development objectives. This means that, in the CAP, the objectives of EU development have a value equivalent to its agricultural objectives. In the event of a conflict between objectives, the EU will seek to reconcile them. Disappointingly, experience shows that the EU development objectives remain dominated by stronger vested interests, as is shown by the proposed CAP reform for 2014-2020.

 

ETOs are obligations of result, not only of conduct
ETOs are obligations of result (respect for human rights), while the PCD obligations arising from Article 208 of the Lisbon Treaty are only obligations of conduct (take development objectives into account). The EU could, for example, conduct assessments of how its policies have an impact on development, and if incoherencies are identified, it is not obliged to correct them. Developing a rights-based approach to PCD is therefore essential, and will add considerable weight to arguments in favour of development in the event of arbitration between interests that are perceived to be conflicting.

 

 


[1] Foreign Affairs Council of the EU, Council Conclusions on Policy Coherence for Development, 14 May 2012 )

[2] European Commission, Impact Assessment Guidelines, 15 January 2009

[4] European Court of Auditors, Special Report No. 3 on Impact Assessments, 2010

[5] A helpdesk of this kind already exists in DG Environment, to help other DGs address environmental impact issues properly.

[6] EU 2011 Report on Policy Coherence for Development, Commission Staff Working Paper, SEC(2011) 1627 final, p. 14

[8]The Council stresses in particular the need to include the issues of PCD systematically in the regular dialogue with partner countries to better assess the impact of EU policies at country level and the interaction with partner countries’ policies. EU Delegations have a crucial role in this regard.” Council Conclusions on Policy Coherence for Development, 14 May 2012

[9] See CONCORD (2013): EEAS Review 2013 (http://www.concordeurope.org/226-concord-eeas-review-2013) and the forthcoming CONCORD survey on the involvement of civil society organisations in the aid programming process (due in September 2013)

[10] CONCORD survey on the involvement of civil society organisations in the aid programming process (due in September 2013) – available on CONCORD website

[11] A representative from the Ombudsman’s office affirmed this in a meeting on 22 February 2010: see Niels Keijzer (2010):  EU Policy Coherence for Development: from moving the goalposts to result-based management?, ECDPM Discussion Paper 101, page 25, note 38

[12] See CONCORD Spotlight Reports on Policy Coherence for Development 2009 and 2011 (http://www.concordeurope.org/coherent-policies)


 [BB1]For designer: put this in a stamp. Not necessary to keep it in the text as such.

 [BB2] For  designer : please make the following changes in the text of the graph:

–           Policymaking [single word – in title]

–          PCD Art. 208

−                 Expost [hyphen]

−                 Forwardlooking [hyphen]

−           New idea / new pol…

−            Stakeholders consultation…

−           Exante…

−            Commission interservice…

−            Inter-institut…

−           arbitration [not plural] in EP and Council

−           Policy monitoring [no capital M]

−           Mid-term review

−           Filing of complaints  [not complaint filing]

 [SKJ3]For the designer: how would you suggest we make references to boxes within the text?

 [TS4]To designer: would be useful to find a way to highlight references to other chapters

 [BB5]To designer: this is to be highlighted as a recommendation

 [BB6]For designer: we don’t why the letter font here is shrunk. Please fix this. It is not meant to be different from the rest of the text.

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