Enabling Independent Living with EU Structural Funds

1. EU Funds and Independent LivingFreedom Drive, 1 October 2019Natasa Kokic, ENIL, Campaign Coordinator, natasa.kokic@enil.euInes Bulic, Deputy Director, ines.bulic@enil.eu

2. EU Funds For Our Rights Campaign • Supported by Open Society Foundations – Public Health Programme; • On 8 November 2016, ENIL launched a campaign on the use of European Structural and Investment Funds (‘Structural Funds’) in the European Union (EU) Member States; • The aim - to encourage the European Commission and the Member States to improve the monitoring and complaints system, in order to ensure that Structural Funds are used to support the rights of disabled people, rather than restrict them.

3. Using ESIF to support Independent Living Five main Funds - to support economic development across all EU countries in line with the objectives of the Europe 2020 strategy: European Regional Development Fund (ERDF) European Social Fund (ESF) Cohesion Fund (CF) European Agricultural Fund for Rural Development (EAFRD) European Maritime and Fisheries Fund (EMFF)

4. Figures for 2014-2020 • Total ESIF €454 billion • ESF - €87 billion • ERDF - €197 billion

5. Legal & policy context • UN Convention on the Rights of Persons with Disabilities • The right of disabled people to live independently included in the community (Article 19) • UN Convention on the Rights of the Child • Recognition that children should grow up in a family environment • EU Charter of Fundamental Rights • The right of disabled people to participate in the life of the community (Article 26) • Children’s right to protection and care according to their best interests (Article 24) • EU Disability Strategy 2010 – 2020 • Europe 2020 Strategy & the Social Investment Package (Recommendation on children)

6. Structural Funds Regulations • Common Provisions Regulation • Objective 9: Promoting social inclusion, combating poverty and any discrimination • Ex ante conditionalities – a thematic conditionality (strategy for poverty reduction that includes measures for the transition from institutional to community-based care) and general conditionalities (non-discrimination and UN CRPD) • ERDF Regulation • Investing in health and social infrastructure which contributes to […] promoting social inclusion (Article 5) • ESF Regulation • Should not support any action that contributes to segregation or to social exclusion (Recital 19) • 20% to be used for promoting social inclusion

7. European Code of Conduct on Partnership • A framework for involving partners in the programming, implementation and monitoring and evaluation of SF in 2014 – 2020 • “… implies close cooperation between public authorities, economic and social partners and bodies representing civil society at national, regional and local levels throughout the whole programme cycle consisting of preparation, implementation, monitoring and evaluation.” (Recital 2)

8. Consequences of non-respect of the EU Charter by Member States • Possible interruptions of payment deadlines; • Possible suspensions of payments; • Possible financial corrections; • Possible infringement proceedings under Article 258 TFEU.

9. European Ombudsman Guidelines for improvement (v)Apply strictly and without exception the obligation to verify that the management and control systems, including complaint-handling arrangements, are adequate and efficient, that they remain so for as long as programmes are implemented and that weaknesses are duly corrected. This includes systematically requiring that Member States inform the Commission of the results of all complaints concerning ESI Funds, whether they were initially submitted to the Commission or not. (vi)Apply strictly and consistently its sanctioning prerogatives when applicable ex ante conditionalities (preconditions) are not complied with within the deadlines. (vii)Consider maintaining, in addition to the new system of complaint-handling, the practice of initiating infringement proceedings against a Member State if its actions in the framework of the cohesion policy amount to a violation of EU law, including the Charter. (viii)Create a clear and transparent framework in which civil society can contribute to the Commission's supervisory role, in addition to the existing working and expert groups and committees.

10. And how does it work in practice?

12. Institutionalisation vs. IL

13. Some of ourconcerns • Austria – Potential misuse of Funds (EAFRD) detected in 2 regions – Styria and Tyrol. In Styria – plan to build apartments only for disabled. • Bulgaria - The funding (ERDF co-financing), which amounts to nearly 18 million Euros, will be used for the building, renovation, furnishing and equipment of 6 day-care centres and 68 care homes for older people and people with disabilities, including people with mental health problems, intellectual disabilities and people with dementia.

14. Hungary– The building of almost 200 mini-institutions envisaged under the funded projects (ERDF co-financing) breaches the European guidelines on deinstitutionalisation, and obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD), as well as national law – We asked for the suspension of funds together with Validity Foundation and TASZ. We are in discussions with the European Commission, European Ombudsman, MEPs. So far, the European Commission is reluctant to take concrete action;

15. Portugal – EU funds invested in a new institution in Azores. Also plans for building/renovation of new institutions in the Alentejo region..

16. What can be done? • Official complaints to the Managing Authorities; • Official complaints to the European Commission: https://ec.europa.eu/info/about-european-commission/service-standards-and-principles/codes-conduct/complaints-procedure_en • Litigation in domestic courts to challenge Managing Authorities’ decisions;

17. Litigation at ECJ to challenge EC decisions; • Making complaints to the European Ombudsman: https://www.ombudsman.europa.eu/en/make-a-complaint • Filing petitions with the PETI Committee: https://petiport.secure.europarl.europa.eu/petitions/en/registration/register

18. For countries that ratified the OP: Complaint to UNCRPD committee: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/5/3/REV.1&Lang=en and Inquiry procedure: https://www.ohchr.org/EN/HRBodies/CRPD/Pages/InquiryProcedure.aspx (confidential); • See also ENIL’s short guide to using OP: https://enil.eu/news/short-guide-to-using-the-optional-protocol-to-the-un-crpd/ • Submission to the Special Procedures:https://spsubmission.ohchr.org/en

19. What are we doing? • Complaints to the European Commission (in relation to several countries); • Request for suspension of Funds in Hungary (together with TASZ and Validity: Government to immediately suspend a programme); • Complaint to the European Ombudsman – Use of funds in general and concerns about plans for building small institutions in Hungary and Portugal;

20. Together with Validity Foundation and CIL Sofia, we asked the Government to immediately suspend a programme; • Petition Challenging the Use of EU Funds for DI in Bulgaria to PETI Committee at the European Parliament – with CIL Sofia, Validity Foundation and the Bulgarian Helsinki Committee (BHC). The petition concerns the planned use of the ESIFs for building group homes for people with disabilities and older people.

21. Challenges • Interpretation of national, EU and International Law by the MA and the EC (this in particular when it comes to building of new small institutions); • Understanding of IL and DI among EU and national NGOs (lots of contradictory positions); • EC Legal service opinion of 29 June 2018 – on investments into institutions;

22. Shared management – an excuse; • Failure to implement European Ombudsman’s recommendations; • The lack of monitoring – by the EC, but also independent monitoring in some countries; • Difficulties with accessing information on the ground.

23. …some of the stereotype replies • “Those” people have nowhere to go and no one can take care of them; • “Small group homes are a transitional measure”; • “Not all EU funded projects can be 100% perfect”; • “Well, CRPD is ratified but many countries don’t respect it”; • “There is no legal basis to suspend EU funds” (when discussing investment in new institutions); • Why are you criticising “my country”, look at the others…..

24. Concerns…. • Continuous investment in institutions of all sizes; • Failure to respect legal obligations; • Barriers to achieving meaningful participation of disabled people and lack of information about the use of ESI Funds; • New programming period – 2021 – 2027.

25. Our suggestions to the EC… • Training on the CRPD – General Comment No 5; • Technical assistance and expertise by IL movement/DPOs; • Close monitoring of all the calls and projects, in cooperation with IL movement; • Evaluation of all the projects, with indicators based on the CRPD; • Use of sanctions in case of non-compliance with Article 19 CRPD and other CRPD articles.

26. Useful links ESF ERDF ESIF guidance Cohesion data • European Network on Independent Living, 2018. Briefing on the Use of EU Funds for Independent Living: http://enil.eu/wp-content/uploads/2018/04/EU-Funds-Briefing_web0903.pdf • European Network on Independent Living, 2017. ESI Funds and the Transition from Institutional to Community-based Care – Towards a More Effective Monitoring and Complaints System: http://enil.eu/wp-content/uploads/2017/07/OurRightsCampaign-Briefing_FINAL.pdf • European Network on Independent Living, 2017. So Close, Yet so Far: http://enil.eu/wp-content/uploads/2017/10/DisabilityWatchdog_Estonia_Oct2017_Final.pdf • ENIL-ECCL, 2016, Working Together to Close the Gap Between Rights and Reality – A report on the action needed to ensure that European Structural and Investment Funds promote, not hinder, the transition from institutional care to community living: http://www.enil.eu/wp-content/uploads/2016/06/Working-Together-to-Close-the-Gap-web.pdf

27. Thank you!