Suzanne Doyle, Research Associate, Centre for Disability Law and Policy, NUI Galway.
Introduction – The Structural Funds
The EU Structural Funds were created in order to address barriers to economic activity which might affect the functioning of the common market. The Structural Funds include the Cohesion Fund, the European Regional Development Fund, the European Social Fund and the European Globalisation Adjustment Fund. They are distributed to qualifying Member States over the course of a ‘programming period’ of seven years. The Structural Funds themselves are part of the wider EU Cohesion Budget reflecting EU Cohesion Policy during a particular programming period. Cohesion Policy is and element of the overarching EU Multi-Annual Financial Framework (the EU ‘budget’). Approximately 35.7% of the EU budget 2007-13 (equivalent to €347.41 billion over seven years at 2008 prices) was allocated to the various financial instruments which support Cohesion Policy.[1] Cohesion policy during the current period (2007-2013) had been focused on three priority objectives: convergence, regional competitiveness and employment. The strategic priorities for the next programming period (2014-2020) are taken directly from EU2020 ‘towards a smart, sustainable and inclusive’ economy and society[2] – something that dovetails very well with the UN CRPD.
The Structural Funds are governed by Regulations. A General ‘Common Provisions’ Regulation is adopted which sets out the strategic priorities as well as management mechanisms and monitoring machinery. Fund-specific Regulations are then enacted to govern the relevant financial instrument in question. The Funds are not disbursed directly by the European Commission. Instead, qualifying States put together national plans (Operational Programmes) which are reviewed and adjusted by the European Commission before disbursed. The State then issues successive waves of calls to tender which are responded to nationally. The Funds are expected to bring ‘additionality’ to bear on State action. That is to say, they are not intended as a replacement for State action that should otherwise occur. Further, they are designed to respect the principle of ‘subsidiarity’, i.e. the strategic priorities of the EU must always be tailored to the circumstances of the State in question.
Despite the insertion of a provision prohibiting non-discrimination in the previous programming period (2007-2013), many commentators have noted that the Structural Funds have been used to open institutions which undermines the right to live independently and be included in the community.[3] This provision was contained in Article 16 of the General Regulation (2007-2013) and stated that:
The Member States and the Commission shall take appropriate steps to prevent any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation during the various stages of implementation of the Funds and, in particular, in the access to them. In particular, accessibility for disabled persons shall be one of the criteria to be observed in defining operations co-financed by the Funds and to be taken into account during the various stages of implementation.
The limits of such generic provisions was graphically highlighted by a 2009 Study commissioned by the European Commission: ‘Study on the Translation of Article 16 of Regulation EC 1083/2006 for Cohesion policy programmes 2007-2013 co-financed by the ERDF and the Cohesion Fund[4]’ which demonstrated the failure of eligible Member States to consistently apply this principle to their administration of structural funding.
An Altered Legal Landscape – EU Ratification of the UN CRPD and its Implications for the Structural Fund Regulations
The EU ratified (or ‘confirmed’) the UN Convention on the Rights of Persons with Disabilities (UN CRPD) in 2010.[5] This was the first international human rights instrument to which the EU became a signatory. EU law is clear that “[A]greements concluded by the Union are binding upon the institutions of the Union and on its Member States” (Article 216(2) of the Treaty on the Functioning of the European Union). It has been held by the Court of Justice of the EU (CJEU) that while international agreements concluded by the EU are inferior to the EU Treaties they nonetheless rank superior to secondary EU law (which includes Regulations and Directives).[6] Such secondary law (including structural fund regulations) should therefore be interpreted in such as way so as to comply with the requirements of the UN CRPD.
Agreements such as the signing of the UN CRPD are generally known as ‘mixed agreements’ in the sense that they engage the often overlapping legal competences of the Union and its Member States.[7] This is recognised in the preamble to Council Decision 2010/48/EC which states that:
Both the Community and its member States have competence in the fields covered by the UN Convention. The Community and the Member States should therefore become Contracting Parties to it, so that together they can fulfil the obligations laid down by the UN Convention and exercise the rights invested in them, in situations of mixed competence in a coherent manner.
In such situations, while the EU is required to be CRPD-compliant for matters that lie within its sphere of competence, Member States also have an EU law obligation to implement the treaty to the extent that its provisions are “within the scope of Community competence.”[8] Further, as was held by the European Court of Justice’s in its decision in Kadi,[9] the UN CRPD cannot create any new EU competence where one did not exist before – nor can it expand any existing competence. Council Decision 2010/48/EC states that two elements of EU competence were the basis for EU confirmation of the UN CRPD: the internal market and non-discrimination. EU competence in the area of non-discrimination has been re-emphasised by Article 10 of the TFEU which states that:
In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Article 19 of the UN Convention on the Rights of Persons with Disabilities
Article 19 of the UN CRPD states that:
States Parties to the present Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.
Article 19 requires putting in place a web of personalised supports to meet the personal circumstances of the person and requires that community services be made fully inclusive of and accessible to persons with disabilities. This requires a transition away from institutions and targeting resources to enable genuine community living to occur. An Issue Paper on this topic, entitled ‘The Right Of People With Disabilities To Live Independently And Be Included In The Community’[10], was published by the former Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in March 2012. In it Commissioner Hammarberg summarises the core elements of the right as follows:
Article 19 of the CRPD embodies a positive philosophy, which is about enabling people to live their lives to their fullest, within society. The core of the right, which is not covered by the sum of the other rights, is about neutralising the devastating isolation and loss of control over one’s life, wrought on people with disabilities because of their need for support against the background of an inaccessible society. ‘Neutralising’ is understood as both removing the barriers to community access in housing and other domains, and providing access to individualised disability-related supports on which enjoyment of this right depends for many individuals.[11]
The Commissioner also warned of the dangers of replacing one form of institution with another:
An incorrect understanding of the right to live in the community risks replacing one type of exclusion with another. Though governments increasingly recognise the inevitability of deinstitutionalisation, there is less clarity with regard to the mechanisms that replace institutionalisation and what would constitute a human rights-based response.
This is not merely a theoretical concern. Countries which have already closed down large-scale institutions are showing worrying trends of grouping apartments into residential compounds, comprised of dozens of units targeted exclusively to people with disabilities. …Such a solution compromises the individual’s ability to choose or to interact with and be included in the community.[12]
The European Union Agency for Fundamental Rights (FRA) also published a report in June 2012 entitled: ‘Choice and control: the right to independent living.’[13] The FRA report contained the findings of interview‑based research carried out in nine EU Member States with persons with mental health problems and persons with intellectual disabilities. The research examined how they experience the principles of autonomy, inclusion and participation in their day‑to‑day lives. The report also sought to provide some examples of promising practices regarding independent living. Crucially, the FRA noted that:
While Article 19 codifies the right to independent living, to be made meaningful in its fullest sense it must be read in conjunction with a number the convention’s other articles, because the concept of independent living brings together many aspects of an individual’s life, and thus requires the realisation of many other human rights.[14]
It is clear that much of the change required by Article 19 will need to be ‘progressively realised.’ States are therefore required to take all possible steps, using the resources available to them to their maximum ability, to fully realise the rights of persons with disabilities to live independently and be included in the community. The concept of ‘progressive achievement’ appears in Article 2.1 of the International Covenant on Economic, Social and Cultural Rights. The UN Committee on Economic, Social and Cultural Rights stated in its General Comment No. 3 on the nature of States parties’ obligations that:
… while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.[15]
The UN Committee continued in this vein in relation to the progressive realisation of the economic, social and cultural rights in the specific context of persons with disabilities when it stated in its General Comment 5 (1994) that:
The obligation of States parties to the Covenant to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required.[16]
In the case of the EU, such “additional resources” could clearly encompass the Structural Funds.
The Original Proposals for the Structural Fund Regulations (2014-2020)
The European Commission presented its proposals for a new set of Regulations to govern the next programming period (2014-2020) in October 2011.[17]
(a) The Proposed General Regulation (2014-2020)[18]
Article 7 is to the effect that the Member States and the Commission shall take appropriate steps to prevent any discrimination based on a number of grounds including disability. Article 87(3)(ii) of the draft General Regulation also requires that each Operational Programme shall include:
… a description of the specific actions to promote equal opportunities and prevent any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation during the preparation, design and implementation of the operational programme and in particular in relation to access to funding, taking account of the needs of the various target groups at risk of such discrimination and in particular the requirements of ensuring accessibility for disabled persons.
Possibly most importantly, the proposed General Regulation contains new general ex-ante conditionalities which are essential pre-conditions for the receipt of Structural Funds. They are set out in detail in Annex IV of the draft General Regulation entitled ‘Ex ante conditionalities’ which contains both thematic and general ex ante conditionalities. In explaining the rationale for the inclusion of more particularised ex ante conditions for the next programming period of cohesion policy, the EU Commission stated that it must be ensured:
… that the conditions necessary for [the] effective support [of the funds] are in place. Past experience suggests that the effectiveness of investments financed by the funds have in some instances have been undermined by weaknesses in national policy, and regulatory and institutional frameworks. The Commission therefore proposes a number of ex ante conditionalities, which are laid down together with the criteria for their fulfilment in the General Regulation.[19]
Member States are to assess whether the ex ante conditions are been met (Article 17(2)). They are expected to set out in their Operational Programmes:
the detailed actions relating to the fulfilment of ex ante conditionalities including the timetable for their implementation.[20]
If they are not met at the time of the conclusion of their Partnership Contracts the Member State in question will set out clearly the actions to be taken to bring it into compliance within two years of the Contract (Article 17.(3)).
Crucially, according to the draft Regulation, the European Commission shall assess information connected with the fulfilment of the ex ante conditions and:
May decide to suspend all or part of interim payments to the programme pending the satisfactory completion of actions to fulfil an ex ante conditionality.
and,
The failure to complete actions to fulfil an ex ante conditionality by the deadline set out in the programme shall constitute a basis for suspending payments by the Commission.[21]
Two sets of ex ante conditionalities are particularly important in the context of Article 19 of the UN CRPD.
The first important ex ante condition in the context of the UN CRPD on the transversal thematic priority of combating discrimination. Within that rubric and in the specific context of disability (following general provision as well as provision on gender), this ex ante condition is to the effect of requiring Member States to create:
[The existence of] a mechanism which ensures effective implementation and application of the UN Convention on the rights of persons with disabilities.[22]
The ‘criteria for fulfilment’ of this ex ante condition are highly specific and are stated to be:
Effective implementation and application of the UN Convention on the rights of persons with disabilities is ensured through:
– Implementation of measures in line with Article 9 of the UN Convention to prevent, identify and eliminate obstacles and barriers to accessibility of persons with disabilities;
– institutional arrangements for the implementation and supervision of the UN Convention in line with Article 33 of the Convention;
– a plan for training and dissemination of information for staff involved in the implementation of the funds;
– measures to strengthen administrative capacity for implementation and application of the UN Convention including appropriate arrangements for monitoring compliance with accessibility requirements.
The second draft ex ante conditionality of relevance requires the ‘active inclusion – integration of marginalised communities such as the Roma.’ This calls for the existence of a national anti-poverty reduction strategy as well as a strategy for Roma inclusion. However, with respect to the relevant ‘criteria for fulfilment’ covering the national strategy for poverty reduction there is a criterion that specifically calls for:
measures for the shift from residential to community based care.[23]
The proposed inclusion of ex ante conditionality in the draft General Regulation is a welcome step forward. Indeed it is hard to see how the EU could avoid ex ante conditionality if only to minimise its legal liability to the UN Committee on the Rights of Persons with Disabilities for Member State actions that it could have avoided through better regulation of the Structural Funds. And the Declaration of Competence accompanying its ‘confirmation’ of the Convention made it inevitable that the ex ante conditions would include an express reference to the UN CRPD.
(b) The Proposed European Social Fund Regulation (2014-2020)
The European Commission’s draft Regulation for the European Social Fund is important because it is a core instrument for enabling social innovation and change to occur. The Fund aims to promote, inter alia, ‘social inclusion thereby contributing to economic, social and territorial cohesion.’[24]
The Explanatory Memorandum to the draft ESF Regulation specifically references the ‘European Platform against Poverty’ which forms an integral part of Europe 2020 and which calls for social innovation for, inter alia, the transformation in the lives of persons with disabilities.
Preambular paragraph 11 of the proposed ESF Regulation states:
In accordance with Article 10 of the Treaty, the implementation of the priorities financed by the ESF should contribute to combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation…
The ESF should support the fulfilment of the obligation under the UN Convention on the Rights of Persons with Disabilities with regard inter alia to education, work and employment and accessibility. The ESF should also promote the transition from institutional to community-based care.[25]
[emphasis added].
Article 2 of the draft ESF Regulation follows through by including within the stated mission of the ESF into the next period the goal of benefiting people:
including disadvantaged groups such as…people with disabilities…with a view to implementing reforms…in the fields of…social policies.
It also explicitly states that one of the key goals of the ESF in this regard is to:
Provide support to enterprises, systems and structures with a view of to facilitating their adaptation to new challenges and the implementation of reforms in particular in the fields of social policies.
The ‘scope of support’ section (Article 3) deals more particularly with ‘promoting social inclusion and combating poverty.’ It deals with the need to achieve ‘active inclusion’ and to combat discrimination on the grounds, inter alia, of disability and to encourage community-led development strategies. T
More particularly, Article 8 of the proposed ESF regulation states that:
The Member States and the Commission shall promote equal opportunities for all, including accessibility for disabled persons through mainstreaming the principle of non-discrimination … and through specific actions within the investment priorities …. Such actions shall target people at risk of discrimination and people with disabilities, with a view to increasing their labour market participation, enhancing their social inclusion, reducing inequalities in terms of educational attainment and health status and facilitating the transition from institutional to community-based care.[26]
[emphasis added].
Importantly, draft Article 6 deals with the ‘involvement of partners.’ It is to the effect that the involvement of partners ‘in particular non-governmental organisations’ in the implementation of the relevant operational programme (as envisaged already in Article 5 of the draft general regulation) may itself be supported using the ESF. Interestingly, the managing authorities are required to set aside a sufficient amount to be allocated to ‘capacity building activities’ such as training, networking and strengthening social dialogue. This is particularly relevant where social movements on disability are still in embryonic form and need support to develop to the point that they become constructive interlocutors in the dialogue for change.
Usefully, Article 9 of the draft ESF Regulation is directed towards ‘social innovation.’ The aim is the ‘testing and scaling up of innovative solutions to address social needs’ (Article 9 (1)). The Member States are urged to identify themes for social innovation in their Operational Programmes. Since these programmes are to be designed with the relevant ‘partners’ this gives representative organisations of persons with disabilities considerable scope to ensure that the relevant innovation measures include those directed at moving the transition forward from institutional to community living.
Furthermore, Article 10 of the draft enables States to enter ‘transnational learning’ arrangements with the support of the Fund. The Member States can choose from a list of themes to be proposed by the European Commission.
(c) The Proposed European Regional Development Fund Regulation (2014-2020)
The draft Regulation for the ERDF can support a range of projects and activities that may be of relevance in the context of disability. They include ‘investment in social, health and educational infrastructure’ as well as ‘networking cooperation and exchange of experience between regions, towns and relevant social and economic actors.’
One of the ‘investment priorities’ in the draft ERDF Regulation is stated to be:
investing in health and social infrastructure which contribute to national, regional and local development, reducing inequalities in terms of health status, and transition from institutional to community-based services.[27]
[emphasis added].
Article 5.9 (c) goes on to state that ‘support for social enterprise’ is also a priority which is also relevant in the disability context given that an entirely new social frame of reference will be needed to give life to the right to live independently and be included in the community.
The old 10% cap in the use of ERDF that applied to the purchase of land (with the on-going question mark whether this also extended to the purchase of property on land) is carried forward in Article 59 (3)(b) of the draft General Regulation. This of course applies to the ERDF as well as to the other Funds. This has been criticised by the European Coalition for Community Living.[28]
(d) The Proposed Common Strategic Framework
Subsequent to the publication of its Regulation Proposals, the European Commission adopted a communication on a ‘Common Strategic Framework’ (CSF) 2014-2020. This was published as a staff working document on the 14th of March 2012.[29] Its objective is to translate the general objectives and targets set out in the draft Regulations into key actions for the use of the cohesion funds. It thus aims to provide concrete direction of assistance to States in the programming.[30]
The CSF will obviously have to reflect (and be consistent with) the content of the finalised Regulations. The Commission will launch a public consultation on the CSF at some point in 2012. Previously, it seemed likely that the finalised CSF would take the legal form of a delegated act after the finalisation of the Structural Fund regulations in 2013.[31] However, Members of the European Parliament have been calling for an adoption by co-decision procedure through making it an annex of the General Regulation based on the fact that, in their opinion, the CSF is an “essential element,” which expresses political views.[32] This latter approach seems to have gained more support in recent discussion.[33]
There are many positive elements in the proposed CSF. Its utility, however, may be doubt given the current impasse over the final shape of the regulations.
(e) The European Code of Conduct on Partnership
A much neglected aspect of the UN CRPD is its ambition to change process and not just substance. Of particular importance is Article 5.(1)(c) of the draft General Regulation which stipulates, inter alia, that each Member State will bring together different groups to sit on the partnership body including specifically:
bodies representing civil society…and bodies responsible for promoting equality and non- discrimination.
In line with the ‘partnership principle’ (between States and civil society) contained in Article 5 of the draft General Regulation the European Commission also published a Commission Staff Working Document in April 2012 on a European Code of Conduct on Partnership (ECCP).[34] It is intended to:
… help Member States to shape their partnership appropriately during the preparatory work before the regulations are adopted. In particular, it provides some examples of good practice on implementation of the partnership principle, based on the Commission’s findings and various enquiries.[35]
and to outline
… the main requirements that the ECCP could contain as a basis for discussion with the European Parliament and the Council, in order to facilitate the on-going legislative procedure and to allow stakeholders to take part in this debate.[36]
The Commission has recommended that the ECCP be adopted as a delegated act, as soon as the General Regulation for the period 2014-2020 enters into force.[37]
It will be recalled that Article 4(3) of the UN CRPD requires that:
In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations.
The Commission Staff Working Document provides a useful suggestion for ensuring compliance with this provision by recommending that Member States:
… identify, in their national context, the relevant stakeholders in the CSF Funds, the incentives and the legal and administrative barriers to partnership and possibly ways to address these obstacles. Member States are also encouraged to build upon the key existing national/regional/local partnership structures to minimise duplication and save time. Support for capacity-building might be necessary in order to help establish a representative and functioning partnership.[38]
The Commission goes on to suggest that
The ECCP could supplement the Common Provisions Regulation by requiring that the partnership includes the institutions, organisations and groups which can influence or be affected by implementation of the programmes. Specific attention will have to be paid to groups that might be affected by the programmes but find it difficult to influence them, in particular the most vulnerable and marginalised, such as the persons with disabilities, migrants, Roma… It is important to encourage pluralism in the partnership and to bring in the different relevant parts of the public sector alongside business, community-based and voluntary organisations, covering different types and sizes of organisations and including small innovative players.[39]
[emphasis added].
The specific recognition and mention of persons with disabilities as persons who will be affected by programmes financed by structural funds but who may not have previous had a voice within the national process is a notable progression and one which it is to be hoped will be maintained within the final ECCP.
Recognising the need to adjust partnerships in light of the programmes being undertaken, the document also states:
For the ERDF and Cohesion Fund, partnerships will include … economic and social partners, representatives of NGOs having developed an expertise for cross-cutting issues, such as gender equality or accessibility for persons with disabilities, and for the relevant sectors where the funds are active …
For the ESF, the involvement of economic and social partners in the partnership is essential. Regional and local authorities will also be key partners, as will the chambers of commerce, business organisations, workers’ education associations, education and training institutions, social and health services providers, NGOs and organisations having developed an expertise in the fields of gender equality, non-discrimination and social inclusion that have close ties with disadvantaged groups such as persons with disabilities, migrants, Roma[40] ….
[emphasis added].
When engaging in this partnership process, Member States are also reminded that
Accessibility for persons with disabilities to the process both in terms of the physical environment and the information provided will also need to be taken into consideration.[41]
Therefore, if this language is maintained in the final version of the ECCP, EU Member States will have clear guidance in relation to the need to specifically structure their partnerships based on the nature of the programmes being undertaken.
The Current Status of the Proposals
The General Affairs Council has made it plain that it rejects some of the more positive elements in the Commission’s proposals, particularly the proposed general regulation. At a meeting on the 24th of April 2012 the Council reacted strongly and negatively to the draft proposed by the European Commission. At that meeting the Member States agreed on a “partial general approach” and adopted its own text. A “general approach” is a political agreement of the Council pending the adoption of a first reading position by the European Parliament. The general approach in this case is ‘partial since’ some elements were not addressed including the exact sums to be devoted to cohesion policy and the eligibility of different regions. A second partial general approach was reached by the Council on elements of the Regulation proposals at a meeting on the 26th of June 2012.[42]
The Council text focused on the general regulation and proposed the removal of all ex ante conditionalities. Furthermore, the Council’s text significantly weakened the role of the European Commission in monitoring compliance and withholding funds. The Council did not, however, propose changes to the ESF and ERDF provisions outlined above.
The nature of the co-decision process means that further opportunities arise to return to the position adopted in Council.[43] Indeed, when the proposals were sent for a first reading to the European Parliament (Committee on Regional Development – REGI committee), MEPs also suggested amendments to the text.[44]
Further to these considerations by the Council and the Parliament, on the 11th of September 2012 the Commission adopted an amended proposal for the ‘general regulation’.[45] The amendments which this proposal contained are intended to address the fact that, as mentioned above, both the Council and the REGI committee of the European Parliament have signalled that they wish to see the CSF adopted as an annex to the regulation and not as a delegated act. Therefore, in this most recent proposal, the Commission has ‘split’ the elements of the CSF between a new annex (Annex I) to the CPR and a delegated act. Crucially, these amended proposals for the general regulation retained all the ex ante conditionalities contained in the original October 2011 proposals.
Most recently (16th October 2012) the General Affairs council reached a third partial general approach on further elements of cohesion policy.[46]
Agreement on the Regulations and their adoption by the European Parliament and the Council is inextricably linked to the on-going negotiations on the EU’s broader Multi-Annual Financial Framework for 2014-2020 which is expected to be agreed on the 22nd-23rd of November 2012 at a special European Council meeting dedicated to the its finalisation.[47]
The critical deadlock between the Commission and the Council regarding the requirement for ex ante conditionalities within the structural funds regulations (and the consequent effective implementation of Article 19 of the UN CRPD) therefore remains unresolved at the time of writing.
[1] http://ec.europa.eu/regional_policy/glossary/cohesion_policy_en.htm (last accessed 22 March 2012).
[2] European Commission, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’, COM (2010) 2020.
[3] Parker, Forgotten Europeans, Forgotten Rights – The Human Rights of Persons Placed in Institutions (2010, Office of the High Commissioner for Human Rights, Regional Office Europe).
[4] Study on the Translation of Article 16 of Regulation EC 1083/2006 for Cohesion policy programmes 2007-2013 co-financed by the ERDF and the Cohesion Fund (Public Policy and Management Institute (PPMI, Lithuania) in partnership with Net Effect (Finland) and Racine (France), September 2009).
[5] The Council Decision to confirm was made on 26th of November 2009 (Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC), OJ L 23, 27.1.2010). The actual instrument of confirmation was deposited over a year later in December 2010 after the Council adopted a Code of Conduct on the modalities by which the EU and its Member States would appear before the UN on the convention (Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities, Council of the European Union, Legislative Acts and other Instruments, No. 16243/10, Brussels, 29 November 2010).
[6] Case C-244/04 IATA v. Department of Transport [2006] ECR I-403, para. 35.
[7] For a more detailed analysis of the nature of mixed agreements, see Craig & de Burca, EU law: text, cases, and materials (4 edn, OUP Oxford 2007), p. 99 and Leal-Arcas, The European Community and Mixed Agreements European Foreign Affairs Review, Vol. 6, Issue 4, Winter 2001, pp. 483-513, Kluwer Law International.
[8] Case C-239/03 Commission of the European Communities v French Republic [2004] ECR I-09325, para. 25. See also, Case 12/86 Demirel [1987] ECR 3719, para. 9 and Case C-13/00 Commission v Ireland [2002] ECR I-2943, para. 14.
[9] Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-6351.
[10] Council of Europe Commissioner for Human Rights, The Right of People with Disabilities to Live Independently and be Included in the Community Comm DH/Issue Paper (2012) 3 (Strasbourg, 13 March 2012).
[11] Ibid, p. 8.
[12] Ibid, p. 9.
[13] ‘Choice and control: the right to independent living – Experiences of persons with intellectual disabilities and persons with mental health problems in nine EU Member States’ Fundamental Rights Agency, 7th of June 2012 (Luxembourg: Publications Office of the European Union, 2012).
[14] Ibid, p. 14.
[15] The Committee on Economic, Social and Cultural Rights, General Comment 3, 14 December 1990, para. 2.
[16] The Committee on Economic, Social and Cultural Rights, General Comment 5, 12 September 1994, para. 9.
[18] Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, 6.10.2011 COM(2011) 615 final 2011/0276 (COD).
[19] European Commission, Cohesion Policy 2014-2020 – Investing in Growth and Jobs (Luxembourg: Publications Office of the European Union, 2011), p. 3.
[20] Article 17.(4).
[21] Article 17.(3).
[22] Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, 6.10.2011 COM(2011) 615 final 2011/0276 (COD), p. 152.
[23] Ibid, p. 148.
[24] Explanatory Memorandum COM(2011)607, p 2.
[25] Proposal for a Regulation of the European Parliament and of the Council on the European Social Fund and repealing Regulation (EC) No 1081/2006, Brussels, 6.10.2011 COM(2011) 607 final 2011/0268 (COD), p. 9.
[26] Ibid, Article 8.
[27] Proposal for a Regulation of the European Parliament and of the Council on specific provisions concerning the European Regional Development Fund and the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006, Brussels, 6.10.2011. COM(2011) 614 final 2011/0275 (COD), Article 5(9)(a).
[28] Wasted Money, Wasted Time, Wasted Lives… A Wasted Opportunity? A focus report on how the current use of Structural Funds perpetuates the social exclusion of disabled people in Central and Eastern Europe by failing to support the transition from institutional care to community-based services, European Coalition for Community Living (ECCL), 2010, 32.
[29] European Commission, ‘Commission Staff Working Document – Elements for a Common Strategic Framework 2014 to 2020 for the European Regional Development Fund the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund’. Brussels, 14.3.2012 SWD(2012) 61 final – http://ec.europa.eu/regional_policy/what/future/index_en.cfm#2 (last accessed 29 June 2012)
[30] Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, 6.10.2011 COM(2011) 615 final 2011/0276 (COD)., Preamble, para. 14.
[31] ‘Sustainability rules over future EU regional funds’ EurActiv (23 January 2012). Available at http://www.euractiv.com/regional-policy/sustainability-rules-future-eu-r-news-510266 -last accessed 28 June 2012.
[32] Isabelle Smets, ‘Common strategic framework: Hahn may make concessions’, Europolitics (29 May 2012)
[33] See the Minutes of the Meeting of the European Parliament Committee on Regional Development of the 29th of May 2012. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-490.973%2b01%2bDOC%2bPDF%2bV0%2f%2fEN (last accessed 28 June 2012).
[34] European Commission, ‘The partnership principle in the implementation of the Common Strategic Framework Funds – elements for a European Code of Conduct on Partnership’. Brussels, 24.4.2012, SWD(2012) 106 final. Available at http://ec.europa.eu/regional_policy/sources/docoffic/working/strategic_framework/swd_2012_106_en.pdf (last accessed 28 June 2012).
[35] Ibid, p. 4.
[36] Ibid.
[37] Ibid.
[38] Ibid, p. 5.
[39] Ibid.
[40] Ibid, p. 9.
[41] Ibid, p. 11.
[42] http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/EN/genaff/131236.pdf (last accessed 18th of October 2012).
[43] ‘Ordinary legislative procedure’ http://www.europarl.europa.eu/aboutparliament/en/0080a6d3d8/Ordinary-legislative-procedure.html (last accessed 28 June 2012).
[44] Draft Report on the proposal for a regulation of the European Parliament and of the Council
on the Cohesion Fund and repealing Council Regulation (EC) No 1084/2006
(COM(2011)0612/2 – C7-0325/2011 – 2011/0274(COD)) – Committee on Regional Development. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-486.124+01+DOC+PDF+V0//EN&language=EN (last accessed 18 October 2012).
[45] Amended proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Council Regulation (EC) No 1083/2006 /* COM/2012/0496 final – 2011/0276 (COD) */ – Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012PC0496:EN:NOT (last accessed 15October 2012).
[46] http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/EN/genaff/132908.pdf (last accessed 18th of October 2012).
[47] ‘Multiannual Financial Framework: negotiations approaching endgame’ – http://www.consilium.europa.eu/homepage/highlights/multiannual-financial-framework-negotiations-approaching-endgame?lang=en (last accessed 18th of October 2012).
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