I. Introduction The EU is a major donor to UN development and humanitarian efforts and, as such, it supports financially the UN peace consolidation efforts alongside its Member States. There is, however, room to upgrade this support. First, while the engagement of the EU in foreign affairs and defence matters has been growing exponentially in the past decade, the EU still does not contribute financial resources to any component of UN peace operations. This is quite extraordinary considering that the EU Member States are, taken collectively, the largest source of funding to their budgets.1 The EU equally does not provide contributions to UN trust funds established in mission settings to strengthen peace consolidation efforts, which are increasingly regarded as integral to peace operations, in spite of the EU being a major donor to the UN.2 The creation of the European External Action Service (EEAS) and of the EU Delegation to the UN in New York in 2011 has generated a momentum towards improvement of EU Member States’ coordination mechanisms in UN administrative and budgetary discussions. The possibility of expanding the EU financial commitment to include UN peace operations and peacebuilding actions, however, has never been openly raised in intergovernmental discussions. Yet, in today’s rapidly evolving context, it would not be out of place to question the wisdom of this situation. As the EU is struggling with extraordinary challenges—both internal and external—that are threatening its own existence and require more cohesive international action, the Member States’ conversation on defence matters has entered a new phase. EU leaders have pushed forward an unprecedented ambition to strengthen their defence cooperation in a series of European Council conclusions. Moving to enhance the role of the EU in the UN’s peace and security work is the consequent next step. Consolidating and further strengthening the Member States’ synergies in UN Security Council’s deliberations seems an inescapable aspect of this process, but it is clearly not the easiest to handle, given the constraints surrounding the Security Council. Rebalancing the financial engagement of the EU and its Member States in the UN peace and security pillar is another element of transformation that could be explored. This article analyses the options available within the EU institutional framework to attribute a direct role to the EU in funding UN peace operations. A critical question that then needs to be addressed is whether this is a change that would bring any benefit to the EU, the UN, or, ultimately, strengthen international security. It could be argued that shifting the substantial burden on the EU Member States’ national defence budgets towards the EU budget would be a mere finance operation, totally delinked from political decisions and operational choices and with no impact on the ground. One could also argue that the EU already makes a financial contribution to the maintenance of international security through the funding of its own Common Security and Defence Policy (CSDP) operations and African-led operations, as well as to peacebuilding efforts at large, although these funds are mostly outside the UN framework. In a separate study, this author has presented three avenues of reflection which advocate the view that granting a greater role to the EU in managing UN peace operations would increase the EU Member States’ collective leverage in the use of UN resources, foster more effectively their own foreign policy interests and objectives, and ultimately bring efficiency gains to UN efforts.3 First, the EU Member States agreed informally to delegate the role to coordinate and represent their positions on the administrative and budgetary matters of the UN to the EU Delegation. However, recent practice shows that in inter-governmental discussions over the financial management of UN peace operations the EU leadership has been thwarted by internal fragmentation of competences. Individual EU Member States commonly advance their own national concerns or interests, at the risk of disrupting the EU’s strategic interests. There are instances where the EU promotion of the human rights component of peace operations has been frustrated due to parochial considerations. For example, the weakness of the EU’s internal process somehow hampers the ability of EU negotiators to resist growing pressure in budget negotiations to cut all human rights aspects UN operations. In an incident in 2016, one EU Member State, leaning towards its national perspective, caused the EU to briefly delay the UN response to a problem of sexual abuse and exploitation in a peacekeeping mission, a proclaimed high priority for the EU. Equally embarrassing for the EU, but far more damaging for the UN, are the EU’s internal divisions regarding the reform of UN special political missions, which have long prevented the EU from becoming a driving force in this long-overdue reform. As the EU has no ownership on resources, it cannot push through a consistent foreign policy agenda in UN diplomatic negotiations, and this in turn can only weaken the effectiveness of its negotiating positions. Secondly, the fact that the EU represents the Member States on the basis of an ad hoc mandate weakens the Member States’ collective influence over the UN Secretariat’s implementation of peacekeeping mandates and work towards coherence across the UN. This occurs in diplomatic negotiations as well as in the actual implementation by the Secretariat of the outcomes of those negotiations. The lack of an EU common, centrally-driven strategic direction in the implementation phase of UN peacekeeping can lead to a disconnection with the EU strategic goals and interests, as jointly defined by the Member States in Brussels. Finally, while the EU Member States are the largest collective financial contributor to the UN, from a strict UN budgetary point of view only individual Member States contribute to UN resources. In fact, the largest single contributor is the United States. The financial contributions of most individual EU Member States are gradually decreasing as a result of the rapid growth of the assessment rates of emerging countries such as China (which is expected to soon become the largest contributor) and Brazil. The ability of the EU to flag its actual economic contribution to UN operations can only reinforce its legitimacy as a player in the UN and hence strengthen the authority of its political message. There is an easier case to make for enhancing the role of the EU in financing UN peace operations from a UN perspective. In his separate study mentioned above, this author has tested these tenets against the law and practice of the UN, and reached the conclusion that the UN institutional framework is flexible enough to allow such a development and integrate it into relevant General Assembly resolutions. In fact, EU funding of UN peace operations could take different forms. The most innovative option would see the EU take over in full or in part its Member States’ assessed contributions. A more traditional option would merely entail expanding and deepening the EU’s extra-budgetary contributions, possibly to complement those of its Member States. A somewhat intermediate, pragmatic approach would consist in arranging for EU voluntary contributions in cash to the budgets of selected peace operations, on the model of the way Greece and Cyprus contribute to UNFICYP. It goes without saying that the premise of any such change would be the adoption by the EU decision-making bodies of the required formal decisions in their internal deliberation mechanisms in Brussels. It is an entirely different, and somehow more complex, task to look into the potential benefits and the feasibility of transforming the role of the EU in UN financing from the perspective of the EU legal and financial framework. It is legitimate to ask whether the EU, which is not a State, is legally equipped under its Treaty provisions and its legislative instruments to discharge the duties that would arise from the heightened responsibilities resulting from such a change. In fact, the EU Treaties say very little about the cooperation of the EU with international organizations. At times, this has occasionally caused heated discussions both within the EU and with third countries. The controversy surrounding the accession of the European Community to the UN’s Food and Agriculture Organization, the subsequent cumbersome internal arrangement regulating coordination between the EU and the Member States, and the political and legal disputes that arose from its implementation are a glaring illustration of such difficulties.4 This, however, did not prevent the EU from gradually developing a broad range of forms of participation and support modalities. These actions have multiplied with the growth and the expansion of the EU’s common foreign and security policy (CFSP), were further invigorated by the entry into force of the Lisbon Treaty and the creation of the EEAS, and culminated in upgrading the status of the EU in the UN General Assembly (agreed in General Assembly resolution 65/276 of 3 May 2011).5 The present article will explore the options for funding UN peace operations—or other UN actions integral to them—under the EU legal and financial framework. The key provisions at the base of EU−UN cooperation are in Title I and Title V of the Treaty of European Union (TEU). These provisions specifically refer to the UN as the overarching framework in which the EU shall pursue multilateral cooperation, and set the goal for the EU to preserve peace and security in accordance with the UN Charter.6 In this context, the architecture for funding EU external policies has evolved through the creation of new financing instruments for specific EU policy objectives. It is therefore complex and, to a large extent, fragmented. Because supporting UN peace and security actions falls first and foremost under the CFSP objectives, this article will first look into possible recourse to a CFSP legal instrument and to drawing financial resources from the ‘CFSP budget’. It will then examine the feasibility and effectiveness of using resources from the EU budget on the basis of other EU external financing instruments within the EU budget. Finally it will address the possibility of using financing instruments outside the EU budget. It was mentioned above that there is a range of options in the UN legal and financial framework that are available to the EU to support UN peace operations. In the analysis below, each category of EU instruments relative to such options will be examined, and in so doing an attempt will be made to match the legal and financial requirements of the UN and the EU. II. CFSP budget Title V of the TEU, the foundation for the EU’s vision of a prominent role of the UN at the core of a global order,7 has been the stepping stone for building an extensive partnership with the UN in peacekeeping. In that context, the EU and the UN Secretariat have developed both a strategic framework for cooperation on crisis management,8 and a wide-ranging operational framework for EU support to the UN.9 Since their partnership was launched, great strides have been made in developing mechanisms to strengthen operational cooperation. In 2012, the EEAS, acting under guidance from the EU’s Political and Security Committee (PSC), developed an action plan to push forward progress in operationalizing the partnership.10 The implementation of that action plan is not yet complete: while the plan significantly improved coordination,11 limited success was achieved in identifying EU Member States’ capabilities for UN missions,12 an area of cooperation that has high priority for the UN.13 In 2015, the EU and the UN, building on the work done under the action plan, jointly developed priorities for cooperation for 2015−2018, and focused notably on ways to facilitate EU Member States’ contributions to fill critical gaps in UN peacekeeping operations through the use of an EU operation or ‘Battlegroup’.14 This is precisely the area of cooperation where the EU Member States’ reluctance to engage has slowed down progress. Despite its apparent limits, both the EU and the UN Secretariat are genuinely committed to their cooperation, and view it in terms of seeking mutual operational benefits from the complementarity of efforts on the ground. Discussions about funding UN peacekeeping are strictly undertaken in an intergovernmental context in the UN General Assembly, and this operational framework for cooperation is clearly not where dialogue on such issues belongs. At the same time, the pre-eminence that the TEU, and specifically its Title V, attributes to the UN to maintain peace and security, underpins forms of support for UN peacekeeping that could go beyond mere operational aspects. Financing could be one of these. The provisions in Title V of the TEU do not specifically foresee the possibility of using EU budget resources to support the UN or other international organizations. Title V focuses on funding the EU’s own CFSP actions, and prescribes which of them should draw resources from the EU budget and which should not. In fact, in implementing the CFSP objectives, the EU may decide to undertake actions such as civilian and military CSDP missions and operations under Articles 42(1) and 43 TEU, and to appoint EU Special Representatives (EUSRs) under Article 33 TEU. According to Article 41(1), administrative expenditure arising from the implementation of such decisions are charged to the Union budget. Article 41(2) TEU, first subparagraph, provides the same with regard to operating expenditure, ‘except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decided otherwise’.15 As a result, a chapter was created in the EU budget (‘CFSP budget’) to fund CFSP operating expenses which can be covered through EU resources, essentially civilian expenses. This chapter is relatively small. A total of €332.63 million was approved in commitment appropriations for 2018 for all the civilian operations and EUSRs in the CFSP budget.16 The overall commitments under the multi-annual financial framework (MFF) 2014−2020 are €2,338.72 million.17 It should be noted that these amounts do not include the expenditure for seconded staff, which remains significant in CSDP missions. As at 2015, this amount constituted two-thirds of all staff costs, even if the share of seconded staff in CSDP missions has constantly declined over the years.18 With respect to military operations, unlike the long-established UN practice, the basic principle in CSDP is that ‘costs lie where they fall’. Therefore Member States finance the expenses incurred through their participation, except for the ‘common costs’ of operations, which concern, inter alia, headquarters’ implementation and running costs, infrastructure, logistics, and mission support. These costs currently account for an estimated 10−15 per cent of the overall costs of operations. Common costs fall under Article 41(2), second subparagraph, of the Treaty, which provides that such expenditure ‘shall be charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decided otherwise’. This is done through the Athena mechanism.19 Even in the absence of express provisions, the funding of international organizations under Title V is possible, and there are precedents to that effect. The support to the OPCW and the joint OPCW-UN political initiatives relating to Syria, for example, was decided within this framework,20 using Articles 26(2) TEU or 28 TEU as legal basis.21 These precedents show that, as a matter of principle, when a measure pursues the CFSP objective of international peace and security (as in this case with reference to the specific area of non-proliferation and disarmament) the proper choice of legal basis should be Title V. The idea of allocating EU budgetary resources to UN peace operations, however, raises controversial legal issues, stemming from the fact that a large proportion of the budgets of UN peacekeeping operations (unlike those of UN special political missions)22 is absorbed by troop and police costs.23 In fact, there are no precedents of the EU financially supporting a peacekeeping operation from the EU budget. Historically, the tool the EU has used to finance non-EU military operations has been the African Peace Facility (APF), which is currently funded by EU Member States outside the EU budget, as we will see in detail below. In principle, a decision to support a UN peacekeeping operation would clearly pursue a CFSP objective, and therefore Article 28 TEU, or alternatively Article 26(2) TEU, would seem to be an appropriate legal basis. A decision under Article 28 TEU would require a proposal from the High Representative of the Union for Foreign Affairs and Security Policy (hereinafter, High Representative) or from any Member State, and adoption by the Council acting by unanimity. The Council would also need to decide on the procedures to implement the decision, and select which ‘projects’ (ie UN operations) to finance, and it would normally decide that the High Representative is responsible for implementation, while expenditure would be managed by the Commission.24 However, the key question related to using a legal basis in Title V, such as Article 28 TEU, to support a UN peacekeeping operation, is whether this would be compatible with Article 41(2) TEU, or whether Article 41(2) sets a blanket prohibition on the use of EU resources to fund any type of military expenditure, including that of third countries or international organizations.25 The view of the European Commission is indeed that Article 41(2) would prevent the financing of an operation based on Article 28 TEU. This seems to be the reason why the Commission did not use a CFSP legal basis for its recent Proposal for a Regulation amending Regulation (EU) No 230/2014 establishing an instrument contributing to stability and peace (‘IcSP’). This proposal was aimed at extending EU assistance under exceptional circumstances to build the capacity of military actors in partner countries, and was adopted on 12 December 2017.26 Under Article 3a of the amended Regulation, EU assistance may cover, under defined ‘exceptional’ circumstances,27 the provision of capacity building programmes in support of development and security for development. Such programmes would include training, mentoring, and advice, as well as the provision of equipment, infrastructure improvements and services directly related to that assistance. However, there can be no funding for recurrent military expenditure, the procurement of arms and ammunition or any other equipment designed to deliver lethal force, and training which is designed to contribute specifically to the fighting capacity of the armed forces.28 The Commission chose Article 209(1) TFEU (development cooperation policy) and Article 212(1) TFEU (economic, financial and technical cooperation with third countries other than developing ones) as the legal bases for its proposal. Even assuming that this amendment to the Regulation broadly contributes to the development of third countries, as the Commission stated in the Explanatory Memorandum to justify the choice of legal basis,29 it is undeniable that it pursues mainly a security objective. Therefore, according to the principles developed in the case law of the Court of Justice,30 a CFSP legal basis should have been selected. However, this would have run counter to the Commission’s view that it would be contrary to Article 41(2) to fund any action having a military nature under the CFSP budget.31 While the Council was not necessarily in agreement with the underlying premise that Article 41(2) prevents enacting an instrument under Article 28 TEU, the Commission’s approach prevailed and the Regulation was adopted on the basis of Article 209(1) TFEU and Article 212(2) TFEU (with a technical amendment of the Commission’s proposal). As a result, the first EU legal instrument providing expressly for the possibility of financing military expenses was paradoxically adopted using a legal basis that is not related to security objectives. The Commission has not publicly elaborated on the reasons for its interpretation of Article 41(2). On closer inspection, this interpretation is not convincing. First, the wording of Article 41(2) is clear. While Article 41(2) excludes the possibility of using the EU budget for military expenses, it defines its scope of application in three ways: it qualifies such expenditure as ‘operating expenditure’; it states that it must be expenditure ‘to which the implementation of this Chapter gives rise’; and it further states that at the same time it must be expenditure ‘arising from operations having military or defence implications’. The reference to ‘the implementation of this Chapter’ is critical. In other terms, this Article expressly provides that it only applies to the operating expenditure of military operations undertaken by the EU in the context of the implementation of Chapter 2 of Title V TEU (Specific Provisions on the Common Foreign and Security Policy), and notably the tasks under Article 42(1) and 43 TEU, that is, the EU’s own CSDP operations. It does not extend to other actions undertaken by the EU outside the CFSP Chapter. Secondly, a restrictive interpretation of Article 41(2) would be consistent with its rationale, which is to ensure compliance with the above-mentioned CSDP principle that ‘costs lie where they fall’, and ensure full control by Member States over the funding of their own military expenses. Finally, the Commission’s approach seems contradictory: using legal bases outside Chapter 2 of Title V TEU to overcome a hypothetical prohibition arising from Article 41(2) to fund military expenses out of the EU budget would seem to be an attempt to circumvent such a prohibition. It does not help to justify the Commission’s proposed funding mechanism as ‘exceptional’. If one were to maintain that Article 41(2) prohibits using EU resources to fund any type of military expenditure, it would seem irrelevant whether such funding was coming from resources appropriated using a CFSP legal basis such as Article 28 TEU (and included in the ‘CFSP chapter’), or a development cooperation legal basis (on which the ‘IcSP’ is based). This view was shared in a note of 2014 on options for the improvement on the financing of civilian and military missions and operations by the High Representative, who wrote as follows: The prohibition in Art. 41(2) (emphasis in the original) to finance from the Union budget expenditure arising from operations having military or defence ‘implications’ should … not be understood as a complete interdiction to provide EU support to the military, including equipment. … Such support, with certain restrictions, can be eligible for funding under the CFSP budget or EU cooperation instruments (even those tied to ODA requirements), depending on the scope of the action and its primary objective.32 In view of the above considerations, there does not seem to be any legal impediment under the Treaty provisions to using EU resources, particularly those from the CFSP budget, to fund UN peacekeeping operations, because contributing financial resources to UN peacekeeping would not fall under the ‘tasks’ encompassed by Article 42(1), which are only the CSDP operations. One could argue that, as an exception, EU sources could not be used to fund peacekeeping operations to which EU Member States provide national troops. This is in accordance with the rationale of Article 41(2), which ensures compliance with the CSDP principle that ‘costs lie where they fall’, and gives Member States full control over the funding of their own military expenses. According to this view, the EU could not contribute funds at least to those missions where EU Member States contribute contingent troops, if not all the missions where they contribute military personnel.33 This interpretation of the Treaty provisions, however, seems once again to unduly extend the scope of Article 41(2), which specifically targets CSDP operations and funding mechanisms, whereas the funding of UN peacekeeping is based on the principle of troop reimbursement under the missions’ budgets. It is therefore unsubstantiated and should not be supported. The use of EU resources to fund UN peacekeeping operations would therefore not be subject to the Article 41(2) prohibition and could be undertaken through a decision based on Article 28 TEU.34 Likewise, no impediment would arise to funding from the EU budget possible UN-assessed financial support of African Union or African regional economic communities’ operations, if that should be decided under the current review of the support modalities of the African operations as requested by the African organizations. It goes without saying that, because the UN special political missions are not military by nature,35 their funding through the CFSP budget would not raise any issue with respect to Article 41(2). In conclusion, according to this legal analysis, the EU Council can adopt a CSFP decision to authorize EU financial contributions to the budgets of UN peace missions (peacekeeping operations and special political missions alike). Such contributions would be in total or (more realistically) partial replacement of those of the EU Member States. From a technical point of view, shifting all or part of the Member States’ financial burden to the CFSP budget would require a radical rethinking of the EU budget and a rebalancing of budgetary appropriations, but all these adjustments could be smoothly addressed. First of all, the traditional role of the CSFP budget and its place in the overall structure of the EU budget would be transformed. Using the CFSP budget to finance a share of UN peacekeeping expenditure would entail additional resources in an amount up to €1.5 billion, depending on whether or not the EU contribution would entirely replace that of the Member States.36 The recently approved level of the CFSP budget (which stands at €332.63 million for 2018, as mentioned above) is inadequate to sustain even only a portion of this extra burden. The CFSP budget would therefore need to be strengthened significantly. A second aspect of this hypothetical development concerns the synchronization of the EU budget to UN requirements. The CFSP budget being part of the EU budget is included in the MFF 2014−2020, and predicting UN peacekeeping requirements could constitute a challenge. At the same time, the volatility of UN requirements is already an issue for the Member States’ budgetary procedures. Consolidating all or part of the national contributions into a single process could in fact help to stabilize the impact of the volatility of peacekeeping expenditure on Member States. On the other hand, the flexibility of the CFSP budget and its ability to respond to unforeseen needs and new crises could be increased, for example by introducing a ‘flexibility cushion’ on the model of the Commission’s proposal concerning the budget for external actions geographic instruments.37 A third aspect relates to the difficulties arising from the current uncertainties caused by Brexit. The suggestion to create new commitments in the EU budget might seem problematic given the current prospect of an EU budget without the UK’s contributions, also considering that the EU budget is currently capped at 1 per cent of EU GDP. However, quite apart from the potential efficiency gains that this process could bring about, it is important to bear in mind in assessing its impact that the additional EU appropriations would not represent a new financial burden for the EU Member States, but a relabelling of resources. This argument mirrors mutatis mutandis the ongoing reflections regarding the potential benefits of the budgetization of the EDF, that is, its incorporation into the EU budget, as we will see below. All in all, the proposed approach would be entirely consistent with the principles governing EU budgeting, which the Commission recently outlined in the 2010 budget review and implemented in designing the MFF: focus on delivering key policy priorities; focus on EU added value; focus on impacts and results; and delivering mutual benefits across the EU.38 Beyond a strict budgetary analysis, it is clear that using CFSP instruments to support non-EU operations, although not unprecedented, as noted above, would be somewhat unconventional. Considering the extraordinary achievement that the creation of the CFSP represented for the EU’s strategic ambitions, it would be paradoxical if, in order to pursue its CFSP objectives, the EU should take a course of action that would weaken the focus on its own crisis management tasks. This is clearly not a path that the EU could afford to take. Putting the UN more squarely at the core of the CSFP should not happen to the detriment of the EU’s own foreign policy actions. On the contrary, setting up regular forms of financial support for UN peace operations would be a way to increment EU engagement in international security by taking the existing EU−UN cooperation on crisis management to the next level. It would bring political gains to the EU to the extent that it would increase the effectiveness of its foreign policy, particularly if this is done within the CFSP framework. This end result would surely warrant expanding the traditional scope of the CFSP instruments and taking the necessary steps to adjust the EU budgetary mechanisms in the process. III. Other budgetary tools The use of the EU Member States’ financial resources as a tool in international relations predates by far the creation of the EU’s CFSP. It can be traced back to the very first days of the European Economic Community, and to the wish of France, with Belgium’s support, to preserve economic ties with some of its former colonies. Those initial forms of cooperation with third countries, which were set up before there was a clear legal basis in the treaties, can be seen in the origins of the Community’s development cooperation policy. The Community’s financial engagement with development cooperation has grown dramatically over the years, but it was only later that the Community gradually started adding a political dimension to its external relations, and this evolution became more marked in the mid-1980s. At the time of writing, the EU has a complex range of instruments for funding its external policies, and the CFSP budget is far from being the main instrument. Many of these instruments are outside the EU budget. The external financing instruments are the tools that the EU has to realize the security−development nexus. The interdependence between security and defence and the other strands of EU external actions is fully recognized, and the Lisbon Treaty set out in clearer terms the articulation of the common principles and objectives guiding EU external relations.39 This financing architecture is complex and fragmented, and there is an ongoing reflection on ways to improve its coherence and rationalize it. In 2015, the Commission and the High Representative took the initiative to suggest ways to strengthen the security−development nexus in EU policies,40 which was followed by an implementation plan presenting concrete measures to promote capacity building in support of security and development.41 This work mirrors the ongoing UN review of ‘options on increasing, restructuring and better prioritizing funding dedicated to United Nations peacebuilding activities’.42 The above-mentioned Commission proposal to amend the financial rules applicable to the budget and the review of the MFF are also an integral part of this reflection.43 A. Cooperation instruments and other instruments in the EU budget The core financing instruments for EU external policies are in the EU budget. The most relevant instruments (with the exclusion of the CSFP budget and the Humanitarian Aid Instrument) are the Development Cooperation Instrument (DCI), the European Instrument for Democracy and Human Rights (EIDHR), the European Neighbourhood Instrument (ENI), the Instrument contributing to Stability and Peace (IcSP), the Instrument for Pre-Accession Assistance (IPA II), and the Partnership Instrument for cooperation with third countries.44 Each of these six instruments is based on a specific regulation adopted by the European Parliament and the EU Council with a legal basis in the TFEU. Regulation (EU) No 236/2014 laid down common rules and procedures for their implementation.45 All these instruments can potentially provide the source for flexible resources that would meet the EU foreign policy objectives and enhance its strategic partnership with the UN as part of its broader ‘peace sustainment’ agenda. Three among them deserve particular attention. The key EU financial instrument to promote and advance its interests and underpin its political agenda is the instrument contributing to stability and peace (IcSP), established on 11 March 2014 by Regulation (EU) No 230/2014.46 This instrument replaced the Instrument for Stability created in November 2006 to support EU political strategy in third countries by supporting their long-term development goals, which expired on 31 December 2013.47 The new Regulation, based on Article 209(1) TFEU (development cooperation policy) and Article 212(1) TFEU (economic, financial, and technical cooperation with third countries other than developing ones), redesigned the EU financial instrument. Assistance is provided under three components, in accordance with the specific objectives of the Regulation, as identified in Article 1(4): crisis response, crisis preparedness, and specific global and trans-regional threats. The type of technical and financial assistance that the EU can provide under each component is foreseen in Articles 3, 4, and 5, respectively. Of these components, the crisis-response component has drawn the most action and the largest resources.48 The PSC is kept informed of the crisis response measures under the IcSP, with a view to ensuring overall coherence. The type of assistance foreseen by the Regulation, especially in the crisis-response component, is very broad and ranges from support for confidence-building and mediation efforts by international organizations, to counter terrorism measures; to starting disarmament, demobilization, and reintegration; to promoting and defending respect for human rights and fundamental freedoms, democracy, and the rule of law; to responding to natural or man-made disasters. Under specific circumstances, the Union may also provide exceptional assistance measures not specifically covered by the list in Article 3 for a limited duration. Actions having a military nature, however, are not covered within the scope of this Regulation. The amendment of the Regulation described above, which enlarged its scope to capacity-building in third countries in the area of security, excludes recurrent military expenditure, the procurement of arms and ammunition or any other equipment designed to deliver lethal force, and training designed to contribute specifically to the fighting capacity of the armed forces. By contrast, the Regulation can be used as a basis to fund special political missions. It can also be used to fund specified voluntary contributions to UN peace operations to support actions that do not have a military nature, including where the direct beneficiary is the host country’s Ministry of Defence. A second instrument that is worth mentioning is the Development Cooperation Instrument (DCI) 2014−2020, which was established by Regulation (EU) No 233/2014, also on the basis of Article 209(1) of the Treaty on the Functioning of the EU (TFEU) and Article 212(1) TFEU, with the primary objective of eradicating poverty.49 The focus of the DCI is on long-term cooperation and development in countries in stable circumstances. Article 12, however, contains specific provisions to adjust the programming in situations of crisis, post-crisis, or fragility. This instrument can be used to finance UN peace sustainment actions, although not ‘the procurement of arms or ammunition, or operations having military or defence purposes’, as provided by Article 3(13). The third financial instrument that has special relevance in the context of EU engagement as a global player is the European Instrument for Democracy and Human Rights (EIDHR). The EIDHR was established on 11 March 2014 by Regulation (EU) No 235/2014 to promote democracy and human rights worldwide.50 Through this instrument, for example, the EU has consistently given financial support to the UN Office of the High Commissioner for Human Rights, by providing a voluntary contribution to its annual budget.51 This action can be replicated to provide ad hoc funding to the human rights components of UN peace operations through voluntary contributions to their budgets, just as is commonly done by individual Member States. In addition, there are instruments in the EU budget that are designed to make the financial framework more flexible and are therefore not included in it. Two instruments are especially relevant in this context. The first is the Emergency Aid reserve, which was designed to enable a rapid response to specific aid requirements for non-EU countries that were unforeseeable when the budget was drawn up. In using these funds, priority is given to humanitarian operations, but the reserve may also be used for civil crisis management and protection if necessary.52 The second instrument is the Flexibility Instrument, which provides funding in a given financial year for clearly identified expenses which could not be covered under one or more budget headings without exceeding their expenditure ceilings.53 By their very nature, these EU external financing instruments (with the exception of the CSFP instruments) would not be suitable for drawing EU budget funds to meet the core resource requirements of UN peace operations. Yet, there is an untapped potential to use them to contribute resources in support of UN peace efforts. Through these tools the EU could provide voluntary ‘specified’ contributions to fund the so-called programmatic costs of UN peace operations,54 or could support actions in the broader context of UN peacebuilding actions. For instance, the EU could complement critically needed resources to uphold the human rights component of a UN peace operation, either by funding posts or operational expenses through voluntary extra-budgetary contributions, especially where the use of UN assessed contributions is opposed by non-EU Member States in the UN General Assembly budgetary negotiations. In such hypothetical scenarios, EU financial support could bring an essential contribution to the implementation of the Security Council mandate of a mission. Unlike the EU’s hypothetical ‘unspecified’ contributions to the peace operations’ budgets that were considered above, EU voluntary contributions could very well complement those of the Member States, especially in situations where a Member State sees a value in continuing to finance UN actions based on its own national priorities. The added value of using EU funding, on the other hand, would be closer linkage to the EU’s strategic objectives, to the benefit of the overall coherence of EU external action. If the EU’s funding of UN peacebuilding is still somewhat limited, it is partly due to a lack of perception of such added value. As the EU is effectively undertaking its own peacebuilding measures, in partnership with the international community and other stakeholders, it is natural to question the need to allocate additional funding to actions undertaken by the UN. After all, the EU and the UN systematically coordinate on the implementation of their respective projects on the ground and have structured forms of collaboration.55 However, just as the linkage between the EU’s own CDSP and development cooperation becomes ever more pronounced, it would be hard to justify the EU not taking a primary role in strengthening the security−development nexus within the UN by supporting the UN engagement in peace consolidation activities such as human rights, mediation and electoral assistance, and demining. At the same time, the current framework for the planning of resources is not conducive to the strategic outlook that would be required of them. The fragmented architecture of EU external finance does not help to achieve the good mix of policy and tools that would be useful to advance the EU’s strategic interests. There is indeed an ongoing reflection within the EU on options to reduce or merge the external financing instruments as a way to increase the flexibility in allocating funds, to make them more strategic and to streamline their implementation, with the overall goal of achieving greater alignment of EU operational activities with its foreign policy and political priorities. Upgrading the EU budgetary support of UN peace operations would be entirely consistent with this goal. B. Financing instruments outside the EU budget Among the EU external funding tools that are outside the EU budget, the European Development Fund (EDF) is the oldest and the largest. It dates back to 1957.56 The EDF provides aid for development cooperation with African, Caribbean and Pacific (ACP) countries, as well as other overseas countries and territories. Because the EDF was created to manage relations with former colonies, it was set up outside the EU budget. The implementation of the Fund, however, is largely managed by the European Commission,57 and its rules have been progressively aligned to those of the EU budget.58 In addition, the contribution keys of the Member States, although not identical, have to a large extent been aligned to those applicable to the EU budget. The main difference with the EU budget is that the EDF does not have an annual budget. The EDF is especially relevant to the present topic because it is the instrument that has been used to fund the African Peace Facility (APF). As was mentioned above, through the APF, which was established in 2004 with a legal basis in the Cotonou Agreement, EU Member States have been the main financial contributors to the African Union’s and the African regional economic communities’ efforts towards peace and security. Since 2004, the Member States have given over €2 billion to the APF.59 It is clear that APF resources come directly from the EU Member States on the basis of an internal agreement. The allocation of these funds, however, is decided according to a multi-layered, hybrid decision-making process, requiring both the input of the Commission and the unanimity of Member States within the Council machinery.60 The difficult internal discussions among Member States on the geopolitical priorities in allocating these funds demonstrate the weakness of this model. This is one of the factors that prompted the Council to establish in 2015 a review of the APF results and procedures, and a discussion of future funding possibilities, and in particular the issue of ‘sustainable Union support to African-led peace support operations beyond 2020’. For this purpose, the Commission is conducting an evaluation of the Facility.61 It is interesting to note that, even though the Commission broadly favours the budgetization of the EDF,62 at the same time it sees the advantage of keeping the APF outside the EU budget, based on the view—which was criticized above—that Article 41(2) TEU prohibits the use of EU resources for military missions. There is undoubtedly some tension between these two objectives as the Commission engages in a reflection on alternative funding solutions for the African-led operations.63 In this connection, the EEAS has put forward options to change the APF to address its limitations, and suggested, in particular, the possibility of enabling the APF to provide support to national forces in the context of conflict prevention or post-conflict support, notably accompanying an EU or UN mission.64 More recently, the EEAS has undertaken internal reflections on the possible creation outside the budget of a single fund during the next MFF for external military and defence needs. In the current setting, the APF is not among the instruments that seem best equipped to fund UN peace operations. There is nonetheless growing awareness, not least within the EU, that stronger partnerships are needed between the EU, the AU, and the UN to support Africa in addressing crises and threats to its peace and security.65 In particular, the African organizations are faced with serious issues of predicting future needs and the sustainability of resources, which may undermine the success of African-led peace support operations. As a result, the African Union requested that the budgets of the operations should receive supplementary funding from UN assessed contributions.66 If the UN General Assembly were to agree to this, there would be an inevitable read-across between the ongoing reflection on EU financial support of the AU’s peace and security efforts, and this article’s suggestion that the use of EU resources for UN peace operations would enhance the EU’s consistency and influence in the UN. Pending the UN General Assembly deliberations on the African Union’s request, the UN Security Council created an innovative financing mechanism, in which the APF is used to channel international voluntary contributions to reimburse to the UN the costs of the operational and logistical support that the UN operation in Mali, MINUSMA, provides to an African regional military operation, the Force conjointe du G5 Sahel (FC-G5S).67 This unconventional set-up will be an inescapable precedent in defining a possible future role for the EU in providing financial contributions to a UN operation. Among the funding instruments outside the EU budget it is worth noting a second innovative instrument, the Union trust funds for external action, which were created recently to improve the EU flexibility to urgent challenges. These trust funds were created on the basis of Article 187 of the financial rules for emergency, post-emergency or thematic actions, providing that they comply with three conditions: they add value to existing actions, they contribute to increasing the EU global visibility and political weight, and they provide additionality.68 Since 2013 four trust funds have been established.69 The trust funds for external action were created outside the EU budget mainly to motivate Member States to contribute additional funding, but the bulk of the funds are still EU resources. They operate in a comparable environment as the UN multi-donor trust funds (MDTFs), and there is ongoing EU−UN collaboration in countries such as the Central African Republic, where they both have their own trust funds. 4. Conclusion A review of the EU legal and financial framework shows a number of possibilities to provide financial contributions to the UN peace operations and peace consolidation efforts. It is the submission of this article that the most appropriate choice under the EU Treaties to contribute funding for UN peace operations is to resort to a CFSP legal basis and draw resources from the CFSP budget. A CFSP instrument could be used specifically to provide financial contributions to UN peacekeeping missions. Assessed contributions are not ‘specified’ and would therefore necessarily cover the missions’ military expenses, which represent the bulk of peacekeeping budgets. In fact, contrary to the prevalent view, the prohibition in Article 42(1) to fund operational expenditure of a military nature under the EU budget should be interpreted as applying only to CSDP operations, and not to those of the UN. Using the CFSP framework to establish forms of funding to UN peace operations would also mean using procedures that fully safeguard the prerogatives and the national interests of Member States through the Council instances. To fund specific components of UN peace operations on a voluntary basis, particularly those related to the peace sustaining aspects of UN action, the EU could expand the use of the financing instruments created in the context of its cooperation with third countries, such as the IcSP, the DCI, and the EIDHR. These instruments include less stringent mechanisms to engage Member States in the decision-making process of these instruments, aimed at ensuring overall coherence of EU external action. The EU could finally resort to funding tools outside the EU budget. It could, in particular, build on the precedent of the APF, which has been used as a major source of financing for African-led operations to support peace. This instrument is currently funded from Member States’ contributions through the EDF, although this situation is under review within the EU. The APF would become especially relevant in the UN context if the UN were to decide to supplement the funding of the African-led operations from assessed contributions. The limit of the APF is that it works with a hybrid decision-making process, requiring both the input of the Commission and the unanimity of Member States within the Council machinery. A mechanism of this kind would not be the most efficient option. Through the possible combined use of these instruments, the EU could become a major financial contributor to UN peace operations and peacebuilding efforts. This would give the EU a unique opportunity to build a more effective partnership with the UN in pursuing the goal to preserve peace and security in accordance with the UN Charter. It would at the same time make the EU a stronger leader at the UN, which would in turn lead to advantages for the entire international community. Footnotes 1 The EU Member States contribute collectively over 32 per cent of UN peacekeeping resources (amounting to US$6.8 billion for the period 1 July 2017−30 June 2018), and 30 per cent of the resources of the UN special political missions (US$508.5 million for the budgetary year 2018), which are funded from the UN regular budget. The UN Member States’ rates of contributions (‘scale of assessments’) are currently set in UN General Assembly resolutions 70/246 (for peacekeeping expenses) and 70/245 (for the regular budget), both adopted on 23 December 2015. The peacekeeping scale is based on the methodology of the regular budget scale, but is adjusted to increase the contributions of the permanent members of the Security Council and to reduce those of a large number of other countries depending on their relative wealth. As a result, compared to their rates to the regular budget, two EU Member States (France and the United Kingdom) pay a premium, seventeen (Austria, Belgium, Cyprus, Denmark, Estonia, Finland, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Netherlands, Portugal, Slovenia, Spain, and Sweden) have the same rates of contribution, and nine have adjusted rates depending on their per capita gross national income, ranging from a 20 per cent discount (Czech Republic) to 40 per cent (Slovakia), 60 per cent (Latvia), and 70 per cent (Croatia, Hungary, Lithuania, and Poland, as well as Bulgaria and Romania on a voluntary basis). See UN Doc. A/70/331/Add.1 (28 December 2015). 2 The EU is the ninth top major donor of monetary contributions to the UN; see Financial report and audited financial statements and Report of the Board of Auditors, Volume I, United Nations, 2016, UN Doc. A/71/5 (Vol. I) (28 September 2016) 164, Figure IV.XV (Report of the Board of Auditors). The European Commission provided US$1.7 billion in voluntary contributions to all UN system organizations in 2015, US$76 million of which to the UN; see Budgetary and financial situation, UN Doc. A/71/583 Table 2B. 3 On these points, see Francesco Presutti, ‘Financial Contributions by the EU to UN Peace Operations’, (2018) 15(1) International Organizations Law Review, forthcoming. 4 See Jan Wouters, Anna-Luise Chané, Jed Odermatt, and Thomas Ramopoulos, ‘Improving the European Union’s Status in the United Nations: An Objective Without a Strategy?’, in Christine Kaddous (ed.), The European Union in International Organisations and Global Governance: Recent Developments (Abingdon: Routledge, 2015), 45, at 60. 5 Ibid 51. 6 Article 3(1) recalls the Union’s ‘aim to promote peace, its values and the well-being of its peoples’. Article 3(5) provides that the Union ‘shall contribute to peace, security, including respect for the principles of the United Nations Charter’. Article 21(1) recalls in its first subparagraph, among the guiding principles of the Union’s action, the ‘respect for the principles of the United Nations Charter and international law’, and further provides in its second subparagraph that the Union ‘shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph’ and ‘shall promote multilateral solutions to common problems, in particular in the framework of the United Nations’. Article 21(2)(c) includes, among the objectives of the EU’s common policies and actions in its external action, the goal to ‘preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris’. 7 The latest formulation of the role that the EU sees for the UN in the global order is in Shared Vision, Common Action: A Stronger Europe, A Global Strategy for the European Union’s Foreign and Security Policy, June 2016 (EU Council doc. 10715/16 CFSP/PESC 543 of 28 June 2016). The Global Strategy was welcomed by the European Council of 28 June 2016 (cf. European Council doc. EUCO 26/16 CO EUR 5 of 28 June 2016). 8 See the ‘Joint Declaration on UN-EU Cooperation in Crisis Management’ of 24 September 2003 (EU Council doc. 12510/03, Presse 266) and the ‘Joint Statement on UN−EU Cooperation in Crisis Management’ of 7 June 2007 (EU Council doc. 10310/07 COSDP 478 of 5 June 2007. 9 See Alexandra Novosseloff, United Nations—European Union Cooperation in the Field of Peacekeeping: Challenges and Prospects, GGI Analysis Paper No. 4/2012, Global Governance Institute, Brussels; Tobias Pietz, The European Union and UN Peacekeeping: Half-time for the EU’s Action Plan, Center for Peace Operations, October 2013; and Adam C Smith, European Military Capabilities and UN Peace Operations: Strengthening the Partnership, Center for International Peace Operations, October 2014. 10 On 29 November 2011, the PSC welcomed a document issued by the EEAS defining six clusters of thirteen priority actions to enhance EU support to UN peacekeeping (see ‘Actions to Enhance EU CSDP Support to UN Peacekeeping’ of 24 November 2011, EU Council doc. 17497/11 CIVCOM 548), and on that basis on 13 June 2012 the EEAS issued an action plan setting out modalities for their implementation and the ‘Plan of Action to Enhance EU CSDP Support to UN Peacekeeping’ of 13 June 2012 (EU Council doc. 11216/12 CIVCOM 222 of 14 June 2012). 11 Thierry Tardy with Richard Gowan, Building EU−UN Coherence in Mission Planning and Mandate Design, Center for International Peace Operations, November 2014. 12 Smith (n 9). 13 The following five actions were considered most important by the UN: A.1. Define a list of military capabilities the EU Member States can potentially put at UN disposal; A.2. Define a list of civilian capabilities the EU Member States can potentially put at UN disposal; A.3. Create a policy framework on EU facilitating coordinated MS contributions to UN operations (Clearing House Model); C.1. EU autonomous civilian deployment in support of UN; and D.1. EU autonomous military deployment in support of UN. 14 Strengthening the UN−EU Strategic Partnership on Peacekeeping and Crisis Management: Priorities 2015−2018, 27 March 2015, endorsed by the PSC on 13 May 2015. A key theme of the document was indeed ‘the need to further improve EU−UN cooperation on rapid response to crises, notably by putting in place modalities under which an EU operation or Battlegroup can serve as an autonomous rapid response force in parallel to, or bridging to, a UN peacekeeping operation’. Ironically, in the context of discussions on the use of the EU Battlegroups, the idea was floated of the EU seeking a reimbursement from the UN in case of the deployment of Battlegroups in support of UN operations. The implementation of this document is kept under review and has been the subject of two progress reports by the EEAS (see EU Council doc. 15135/15 COPS 393 of 8 December 2015 and EU Council doc. 12955/16 CSDP/PSDC 558 of 5 October 2016). 15 Additional financing options are foreseen in Article 41(3) for the urgent financing of initiatives in the CFSP framework, in particular for preparatory activities of CSDP civilian operations, which are charged to the Union budget, or of military operations, for which the Treaty foresees the setting-up of a start-up fund made up of Member States’ contributions. 16 <http://eur-lex.europa.eu/budget/www/index-fr.htm> (publication in the Official Journal forthcoming). 17 Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual financial framework for the years 2014-2020, OJ L 347, 20 December 2013, 884. 18 European Commission, 2015 Annual Activity Report, Service for Foreign Policy Instruments, 26. 19 Council Decision (CFSP) 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP, OJ L 84, 28 March 2015. Twenty-seven EU Member States contribute to the financing of EU military operations, as Denmark decided to opt out of CSDP on military matters. A comprehensive revision of the Athena mechanism is expected to be completed by the end of 2017. 20 Council Decision (CFSP) 2012/166 of 23 March 2012 in support of activities of the Organisation for the Prohibition of Chemical Weapons (OPCW) in the framework of the implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction (OJ L 87, 24 March 2012, 49); Council Decision (CFSP) 2013/726 of 9 December 2013 in support of the UNSCR 2118 (2013) and OPCW Executive Council EC-M-33/Dec 1, in the framework of the implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction (OJ L 329, 10 December 2013, 41); Council Decision (CFSP) 2015/259 of 17 February 2015 in support of activities of the Organisation for the Prohibition of Chemical Weapons (OPCW) in the framework of the implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction (OJ L 43, 18 February 2015, 14); and Council Decision (CFSP) 2015/2215 of 30 November 2015 in support of UNSCR 2235 (2015), establishing an OPCW−UN joint investigative mechanism to identify the perpetrators of chemical attacks in the Syrian Arab Republic (OJ L 314, 1 December 2015, 51). 21 Article 28(1) provides as follows: ‘Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.’. Article 26(2) provides as follows: ‘The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it in the basis of the general guidelines and strategic lines defined by the European Council.’. The above-mentioned decisions in support of the OPCW or the joint OPCW−UN political initiatives were all based on Article 26(2) TEU and Article 31(1) TEU, except for Council Decision (CFSP) 2015/259 of 17 February 2015, which was based on Article 28 TEU. 22 The notion of ‘peace operations’ is increasingly used to encompass a variety of actions in the peace and security pillar of the UN, in recognition of the fact that peacekeeping is only one aspect of the UN peace efforts and that the international community should deploy its efforts in a holistic manner. As such, the term embraces sixteen peacekeeping missions, one peacekeeping support operation, and a broad range of tools currently grouped from a budgetary and administrative point of view under the category of special political missions. 23 According to UN Secretariat data, 44 per cent of the approved resources for 2015−2016 was used for uniformed personnel costs, 21 per cent for non-uniformed staff and UN volunteers—including both civilians with support functions and with substantive policy tasks—and the remaining 35 per cent for operational costs (such as fuel, air operations facilities, ground transportation, information and communications technology, and programmatic costs). 24 Articles 2 and 3 of the above-mentioned Council Decision (CFSP) 2015/259 (n 20) provide precedents and a possible model. 25 According to a recent development, the budgets of peacekeeping operations are now used to some extent to fund programmatic (non-military) activities managed by the UN Country Teams (UNCTs) acting on behalf of the missions. However, the missions’ budgets are funded almost in their entirety through assessed contributions, and a hypothetical EU assessed contribution could not be earmarked for a specific purpose. The possibility for the EU to provide voluntary extra-budgetary funds for specific activities of a particular mission will be discussed in the next section below. 26 Regulation (EU) 2017/2306 of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) No 230/2014 establishing an instrument contributing to stability and peace, OJ L 335, 15 December 2017, 6. 27 Article 3a(3) defines the exceptional circumstances as follows: ‘(a) where requirements cannot be met by recourse to non-military actors to adequately reach Union objectives under this Regulation and there is a threat to the existence of functioning State institutions, or to the protection of human rights and fundamental freedoms and State institutions cannot cope with that threat; and (b) where a consensus exists between the partner country concerned and the Union that military actors are key for preserving, establishing or re-establishing the conditions essential for sustainable development, including in crises and fragile or destabilised contexts and situations’. 28 Such assistance can be more far-reaching than the support provided under the SSR Lebanon project, which was started in March 2016 and launched on 3 June 2016 to provide technical assistance to the Lebanese Armed Forces and the General Directorate of General Security to support the security sector reforms undertaken by the Lebanese authorities. 29 ‘Taking into account the objectives of the Union’s development cooperation, i.e. to contribute to the pursuit of the sustainable development of developing countries, financing of the military is possible under exceptional circumstances’ (see Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 230/2014 of the European Parliament and of the Council of 11 March 2014 establishing an instrument contributing to stability and peace, COM(2016) 447 final 2016/0207 (COD), 5 July 2016, 4). In 2004, the Commission had already included ‘military monitoring and peace-keeping and peace-support operations’ among the measures that could be financed under the Instrument for Stability, based on Article 308 of the Treaty establishing the European Community, and had specifically targeted the financing of military operations of third parties, building notably on the experience of the Africa Peace Facility, (see COM(2004) 630 final 2004/0223 (CNS), 29 September 2004, Article 2(1)(a), 2nd indent, and Article 6), but these elements were not retained in the final text of the Regulation establishing the Instrument for Facility adopted in 2006 (Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability, OJ L 327, 24 November 2006, 1). 30 Case C-130/10, Parliament v Council, EU:C:2012:472, paras. 42−45. 31 ‘[A] new instrument based on Article 28 TEU would be subject to the limitations under Article 41(2) TEU and should consequently be discarded’ (see the Commission Joint Staff Working Document Impact Assessment, Council doc. 11037/16 CORLX 288 of 7 July 2016, 27). 32 Cf. EU Council doc. 9589/14 COPS 114 of 7 May 2014. The EEAS position has since shifted towards the Commission’s approach (cf. Joint Communication of 28 April 2015 from the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy on ‘Capacity building in support of security and development’ (CBSD), JOIN(2015) 17 final of 28 April 2015, and EU Council doc. 8504/15 CSDP/PSDC 238 of 30 April 2016, 7; and Capacity building in support of security and development—Implementation Plan—Non-paper by the EEAS and Commission services, EU Council doc. 13869/15 CSDP/PSDC 599 of 12 November 2015, 12). 33 As at 31 December 2017, EU Member States contribute police, military experts, troops, or staff officers to nineteen UN operations, but contribute contingent troops only to seven UN missions (MINUSCA, MINUSMA, UNFICYP, UNIFIL, UNDOF, UNSOS, UNMISS) (cf. <http://peacekeeping.un.org/sites/default/files/msr_31_dec_2017_0.pdf>). 34 It should be noted that, even in the scenario where the High Representative and the Council agreed with this interpretation of Article 41(2), and lent their political support to a decision to fund UN operations from the EU budget, the fact that the Commission has a different approach in law would complicate its implementation. 35 Of all such missions, UNAMI has two relatively small military contingents, and UNAMA has only individual police and experts on mission (cf. <http://www.un.org/en/peacekeeping/resources/statistics/contributors_archive.shtml>). 36 The twenty-seven national contributions (i.e. with the exclusion of the United Kingdom) currently amount to about US$1.78 billion for the peacekeeping operations for the period 2017−18, and US$130 million for the special political missions. 37 The ‘flexibility cushion’ would be achieved through the carry-over of non-allocated funds for the Instrument or Pre-accession Assistance (IPA II), the European Neighbourhood Instrument (ENI), and the financing instrument for development cooperation (DCI) to year N + 1 in the limit of 10 per cent of the initial appropriations of each instrument (cf. Article 12 of the Proposal for a Regulation of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union and amending Regulation (EC) No 2012/2002, Regulations (EU) No 1296/2013, (EU) 1301/2013, (EU) No 1303/2013, EU No 1304/2013, (EU) No 1305/2013, (EU) No 1306/2013, (EU) No 1307/2013, (EU) No 1308/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014,(EU) No 283/2014, and (EU) No 652/2014 of the European Parliament and of the Council and Decision No 541/2014/EU of the European Parliament and of the Council, COM(2016) 605 final—2016/0282 (COD) of 14 September 2016, EU Council doc. 12187/16 CADREFIN 62 of 14 September 2016). 38 Cf. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Budget for Europe 2020 COM(2011) 500 final, Part I, of 29 June 2011, 8. 39 On the interaction between CSDP and other strands of external action see notably Panous Koutrakos, The EU Common Security and Defence Policy (Oxford: Oxford University Press, 2013), 210; and Hans Merket, The EU and the Security-Development Nexus, Bridging the Legal Divide (Leiden: Brill, 2016). 40 Joint Communication on ‘Capacity building in support of security and development’, (n 32). 41 Capacity building in support of security and development—Implementation Plan, (n 32). 42 See UN General Assembly Resolution 70/262 and Security Council Resolution 2282 (1986), both adopted on 27 April 2016. 43 A comprehensive assessment of the current set up of tools and its envisaged changes is in The Budgetary Tools for Financing the EU External Policy, European Parliament, Directorate General for Internal Policies of the Union, Roland Blomeyer, Sebastian Paulo, and Elsa Perreau ( for Blomeyer & Sanz), Policy Department D for Budgetary Affairs, PE 572.708, January 2017. See also Matthieu Burnay et al., Does the EU have the right instruments to finance assistance in protracted crises and the needs of upper middle income countries?, Study, Directorate-General for External Policies, Policy Department, European Parliament, December 2016—PE 578.027. 44 They are listed by the MFF 2014-2020 under Heading 4 (‘Global Europe’), (n 17), Part I, p. 25. 45 Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action (OJ L 77, 15 March 2014, 95). 46 See Regulation (EU) No 230/2014 of the European Parliament and the Council of 11 March 2014 establishing an instrument contributing to stability and peace, OJ L 77, 15 March 2014, 1. 47 See Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability, OJ L 327, 24 November 2006, 1. 48 According to the FPI Annual Activity Report 2016, ‘[i]n 2016, a record amount of EUR 271.5 million was committed under the crisis-response component (EUR 244.5, including a budget reinforcement of EUR 18 million) and EUR 27 million for 7 new actions under the Annual Action Plan for conflict prevention, peace-building and crisis preparedness.)’ (p. 9). The report provides information on the actions financed through the instrument: three actions (Bosnia and Herzegovina, Central African Republic, and Ukraine) directly complemented the work of CSDP missions, thereby contributing to the implementation of the EU Comprehensive Approach in response to conflicts and crises. The projects currently funded under the IcSP (at the time of writing numbering 316) can be browsed at <https://www.insightonconflict.org/icsp/>, including projects where the implementing partner is the United Nations. The commitment appropriations for 2017 and 2018 were €170.2 million and €287.8 million and, respectively, for the crisis-response component, and ER €29 million and €31 million, for the crisis-preparedness component. 49 Regulation (EU) No 233/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for development cooperation for the period 2014−2020, OJ L 77, 15 March 2014, 44. 50 See Regulation (EU) No 235/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for the promotion of democracy and human rights worldwide, OJ L 77, 15 March 2014, 85, which replaced Regulation (EC) No 1889/2006 of the European Parliament and of the Council of 20 December 2006 establishing a financing instrument for the promotion of democracy and human rights worldwide, OJ L 386, 29 December 2006, 1. 51 The core objective of this financial support action is to enhance the High Commissioner’s global leadership and therefore to reinforce its policy influence role within the United Nations system and worldwide. See, most recently, the Commission Implementing Decision of 7 December 2015, on the Multi-Annual Action Programme for the years 2016 and 2017 for the European Instrument for Democracy and Human Rights (EIDHR) to be financed from the general budget of the European Union, C(2015) 8548 final. 52 This reserve provides for funding of €280 million per year (in 2011 prices) (cf. <http://ec.europa.eu/budget/explained/budg_system/flex/flex_en.cfm>). 53 This instrument can fund expenses up to a maximum of €471million per year (in 2011 prices) (ibid.). 54 About 3 per cent of UN peacekeeping budgets are currently devoted to programmatic costs. According to a breakdown of the proposed resources for programmatic activities and quick-impact projects across the missions for the 2017/18 period, mine-action projects (US$183 million) took the bulk of the proposed US$253.3 million, followed by the actions under the category ‘rule of law/human rights/security institutions/security sector reform’ (US$25.8 million) and DDR programmes (US$23.9 million) (see UN Doc. A/71/809 of 22 February 2017, Annex X). Programmatic activities similarly represent a small portion of the resources of special political missions. 55 See the standing collaboration arrangement between the UN, the EU, and the World Bank concerning their joint recovery and peacebuilding assessments. 56 Cf. Francesc Granell, La coopération au développement de la Communauté européenne, Commentaire J. Megret, Le droit de la CE et de l’Union européenne, Etudes européennes, 2nd edn, Brussels, 2005. 57 Cf. Council Regulation (EU) No 2015/322 of 2 March 2015 on the implementation of the 11th European Development Fund, OJ L 58, 3 March 2015, 1. 58 Cf. Council Regulation (EU) No 2015/323 of 2 March 2015 on the financial regulation applicable to the 11th European Development Fund, OJ L 58, 3 March 2015, 17. 59 The Support to Peace Support Operations (PSOs) in Africa is one of three inter-linked priorities, the other two being: the enhanced dialogue on challenges to peace and security, and the operationalization of the African Peace and Security Architecture (APSA). Under the current 11th European Development Fund (EDF), the APF has allocated €961.2 million to Peace Support Operations, €55 million to the operationalization of the APSA and €15 million for Early Response actions. 60 Cf. Regulation No 2015/322, (n 57), Article 15. Once the joint ACP−EU Council of Ministers has established the Multiannual Financial Framework for the EDF and the EU Member States agreed internally on their contributions, the current legal framework for EDF programming adopted in 2015 sets a specific procedure for earmarking funding for the APF. The APF pluriannual action programmes are prepared by the Commission on a request from the African Union, endorsed by the ACP Committee of Ambassadors. The action programmes are discussed by the relevant preparatory Council working groups and the Political and Security Committee (PSC), and approved by Coreper. On that basis, a financing agreement is concluded between the Commission and the African Union. Each intervention to be implemented under the financing agreement is subject to the prior approval of the PSC, and the relevant preparatory Council working groups are informed or consulted depending on the case. The Commission is responsible for preparing an annual activity information report to the Council and the EDF Committee. 61 Ibid. 62 On the issue of the budgetization of the EDF, cf. Alessandro D’Alfonso, European Development Fund—Joint Development Cooperation in the EU Budget: Out or In?, European Parliamentary Research Service Blog, 6 November 2014, and The Budgetary Tools for Financing the EU External Policy, (n 43), 35. 63 Likewise, the Parliament stated that the budgetization of the EDF should be conditional on ‘a permanent and separate solution for EU financing for security expenses that are linked to and in coherence with development cooperation’, ibid, 36. 64 Capacity building in support of security and development—Implementation Plan, (n 32), 6. 65 See the Declaration of the African Union—European Union Summit 2017, Abidjan, 29−30 November 2017, ‘Investing in Youth for Accelerated Inclusive Growth and Sustainable Development’, AU-EU/Decl.1(V), and notably the commitments in paragraph 3 ‘to stronger mutual engagement and a more coordinated approach to ensure effective multilateralism, including through stronger AU−EU cooperation at the UN and other international institutions’, and to ‘strengthen AU−EU−UN trilateral cooperation’. In this context, on 23 February 2018 the EU and the AU will sign a Memorandum of Understanding for a Renewed Partnership in Peace and Security. 66 See, in particular, the decision of the AU Assembly of 18 July 2016 to institute a levy of 0.2 per cent on eligible imports and to operationalize the AU Peace Fund, in order to fulfil its commitment to fund 25 per cent of the costs of AU peace support operations, while seeking funding from the UN for the remaining 75 per cent. The UN Secretary-General has recently presented options for further cooperation on the relevant AU proposals, as mandated by Security Council resolution 2320 (2016) of 18 November 2016. The report lists possible financing models through which assessed contributions could be used to support the AU peace support operations (see UN Doc. S/2017/454 of 26 May 2017, paras 26−37). 67 Security Council Resolution (2391 2017) adopted on 8 December 2018, cf. paragraphs 10 and 13(c). 68 Regulation (EU, EURATOM) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002, OJ L 298, Brussels, 26 October 2016. See also Article 259 of the Rules of Application (Commission delegated regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union, OJ L 362, 31 December, 2012). Cf. the analysis of this instrument in Clare Castillejo, The European Union Trust Fund for Africa: A Glimpse of the Future for EU Development Cooperation, Discussion Paper, Deutsches Institut für Entwicklungspolitik (DIE), Bonn, 2016. 69 The Budgetary Tools for Financing the EU External Policy, (n 43), 21. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please e-mail: email@example.com
Yearbook of European Law – Oxford University Press
Published: Mar 2, 2018
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