Faculteit Rechtsgeleerdheid

Universiteit Gent

Academiejaar 2016-2017

THE EUROPEAN NEIGHBOURHOOD INSTRUMENT (ENI):

NOVELTIES FOR 2014-2020

Masterproef van de opleiding

‘Master in de rechten’

Ingediend door

Carlos Johanan Seynave

(studentennr. 01009626)

Promotor: Prof. Dr. Erwan Lannon

Commissaris: Joyce De Coninck

i

Preface

This dissertation is the culmination of my studies at the faculty of law of the University of Ghent,

which has been a wonderful formative experience.

I would hereby like to thank my promotor, Prof. Dr. Erwan Lannon, whose towering scholarship

on European external relations has been an inspiration; as well as my supervisor, Joyce De

Coninck, for her guidance; and the Moot Court International Public Law programme of the

University of Ghent, for teaching me how to structure an argument.

I would also like to thank Yana Paulovich for her useful comments; as well as Alina Bricman,

András Ligeti, Benjamin Fischer, and Benjamin Nägele, for their friendship and mentorship in

this past year; and Camilo Rojas and Tomas Blondeel for their friendship and support.

לאמא

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Abstract

This dissertation seeks to provide an overview of the European Neighbourhood Instrument

(ENI), the mechanism of direct financial assistance for advancing the objectives of the European

Neighbourhood Policy (ENP) for the programming period 2014-2020 of the EU’s Multiannual

Financial Framework. More specifically, this dissertation assesses the novelties of the ENI with

regard to its predecessor, the European Neighbourhood Partnership Instrument (ENPI), in light

of the evolving objectives of the ENP, and the broader objectives of EU external action, tracing

processes of continuity and change, and surveying the various soft law instruments which

comprise the ENP.

Deze masterproef heeft als doelstelling, een overzicht van het Europees nabuurschapsinstrument

(ENI) weer te geven, die in rechtsreekse financiële ondersteuning voorziet om de doelstellingen

van het Europees Nabuurschapsbeleid (ENB) voor het meerjarig financieel kader voor de jaren

2014-2020 te bevorderen. Meer specifiek beoogt deze masterproef een beoordeling van de

nieuwigheden van het ENI te beoordelen met betrekking tot haar voorganger, het Europees

nabuurschaps- en partnerschapsinstrument (ENPI), in het licht van de evolutie van de

doelstellingen van het ENB en de bredere doelstellingen van het extern beleid van de EU, door

het traceren van processen van continuïteit en verandering en door en opmeting van de

verschillende soft law instrumenten die het ENB omvat.

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Table of Contents

Introduction ..................................................................................................................................... 1

1. Overview of the ENP ............................................................................................................... 3

1.1 Development of the ENP.................................................................................................. 3

1.1.1 Genesis of the ENP ......................................................................................................... 4

1.1.2 First fully-formed phase of the ENP ............................................................................... 6

1.1.3 The 2011 Revision of the ENP ....................................................................................... 7

1.1.4 The 2015 Review of the ENP ....................................................................................... 10

1.1.5 State of play in the ENP ............................................................................................... 13

1.2 The ENP in the EU constitutional order.............................................................................. 16

1.2.1 Constitutional basis of the ENP ............................................................................... 17

1.2.2 Normative basis of EU external action .................................................................... 20

1.3 Key Instruments of the ENP................................................................................................ 24

1.3.1 Regional and Multilateral Cooperation ........................................................................ 24

1.3.1.1 The Eastern Partnership ........................................................................................ 25

1.3.1.2 Union for the Mediterranean ................................................................................. 26

1.3.1.3 Black Sea Synergy ................................................................................................ 27

1.3.1.4 Other multilateral instruments. ............................................................................. 27

1.3.2 Bilateral Instruments..................................................................................................... 28

1.3.2.1 Bilateral base agreements ..................................................................................... 28

1.3.2.2 DCFTAs ................................................................................................................ 29

1.3.2.2 Action Plans (AP) ................................................................................................. 30

1.3.3 Unilateral Instruments .................................................................................................. 32

1.3.3.1 Early financing of the ENP: TACIS and MEDA .................................................. 33

1.3.3.2 The European Neighbourhood Partnership Instrument (ENPI) ............................ 34

2. The European Neighbourhood Instrument (ENI) .................................................................. 38

2.1 Introduction ......................................................................................................................... 38

2.2 Regulation 232/2014 ........................................................................................................... 38

2.3 Regulation 236/2014 ........................................................................................................... 45

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2.4 Multiannual Financial Framework 2014-2020 .................................................................... 46

2.5 Novelties of the ENI ............................................................................................................ 48

2.5.1 Conceptualisation ......................................................................................................... 48

2.5.2 Coherence (consistency) ............................................................................................... 49

2.5.2.1 Vertical Coherence................................................................................................ 51

2.5.2.2 Institutional Coherence ......................................................................................... 54

2.5.2.3 Horizontal Coherence ........................................................................................... 57

2.5.2.4 Assessment ............................................................................................................ 61

2.5.3 Differentiation ......................................................................................................... 61

2.5.4 Conditionality ............................................................................................................... 66

2.5.4.1 Values Conditionality ........................................................................................... 67

2.5.4.2 Technical Conditionality ....................................................................................... 70

2.5.4.3 Assessment ............................................................................................................ 72

2.5.5 Politicisation ................................................................................................................. 75

2.5.6 Joint Ownership ............................................................................................................ 78

3. Evaluation .............................................................................................................................. 81

3.1 The inherent contradictions of the ENP .............................................................................. 81

3.2 Conflict between values and interests ................................................................................. 82

3.3 Securitisation of the ENP .................................................................................................... 85

3.4 Exogenous factors ............................................................................................................... 87

3.4 Conclusion ...................................................................................................................... 90

4. Annex..................................................................................................................................... 93

5. Bibliography .......................................................................................................................... 99

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List of Abbreviations

AA - Association Agreement

AAP – Annual Action Programme

AP - Action Plan

CBC – Cross-Border Cooperation

CEPA – Comprehensive and Enhanced Partnership Agreement

CIB - Comprehensive Institution Building

COEST - Working Party on Eastern Europe and Central Asia

COREPER - Committee of Permanent Representatives

CSF – Civil Society Facility

CSP – Country Strategy Paper

DCFTA - Deep and Comprehensive Free Trade Agreement/Area

DCI – Development Cooperation Instrument

DG DEVCO - Directorate-General for International Cooperation and Development

DG NEAR - Directorate-General for Neighbourhood and Enlargement Negotiations

EaP - Eastern Partnership

EaPIC – Eastern Partnership Integration and Cooperation

EEAS - European External Action Service

EED – European Endowment for Democracy

EIDHR - European instrument for Democracy and Human Rights

EMAA - Euro-Mediterranean Association Agreement

EMP - Euro-Mediterranean Partnership

ENI - European Neighbourhood Instrument

ENP - European Neighbourhood Policy

ENPI - European Neighbourhood Partnership Instrument

EP – European Parliament

ERDF – European Regional Development Fund

ESS – European Security Strategy

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FAC - Foreign Affairs Council

FI – Flexibility Instruments

GCC - Gulf Cooperation Council

IcSP - Instrument contributing to Stability and Peace

IPA - Instrument for Pre-accession Assistance

MaMa - Mashreq/Maghreb Working Party

MEDA - Mesures D'accompagnement/ Middle East Development Assistance

MFF - Multiannual Financial Framework

MIP – Multi-annual Indicative Programme

NEC – Neighbourhood Economic Community

NIF – Neighbourhood Investment Facility

NIP – National Indicative Programme

PA - Palestinian Authority

PCA – Partnership and Cooperation Agreement

PEGASE – Mécanisme Palestino-Européen de Gestion et d'Aide Socio-Economique

PI - Partnership Instrument

PR – Progress Report

PSC - Political and Security Committee

SESAME - Synchrotron-light for Experimental Science and Applications in the Middle East

SIGMA - Support for Improvement in Governance and Management

SP – Strategy Paper

SPRING - Support To Partnership, Reforms And Inclusive Growth

SSF - Single Support Framework

TACIS - Technical Assistance to the Commonwealth of Independent States and Georgia

TAIEX - Technical Assistance and Information Exchange, and Twinning Instrument

UfM - Union for the Mediterranean

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1

Introduction

The European Neighbourhood Policy is the framework which regulates the EU’s relations with

16 countries in the Union’s proximity. Since its inception in 2003, the ENP has undergone what

can be described as a series of mutations in order to adapt to political changes in the

Neighbourhood itself, as well as to the Union’s institutional constellation and the evolution of its

external action objectives.

This dissertation will seek to track down the development of the ENP through its multiple

iterations, focusing on the interplay of continuity and change of the EU’s objectives and vision

towards the Neighbourhood, as viewed through the prism of the mechanisms of financial

implementation of the ENP, which are in effect the instruments which transpose these objectives

into hard law.

The European Neighbourhood Instrument (ENI) is the current hard law mechanism which

regulates the EU’s direct financial assistance to the Neighbourhood and transposes the

objectives of the 2011 revision of the ENP into Regulation 232/2014 for the programming period

2014-2020 of the EU’s Multi-annual Financial Framework (MFF), replacing the European

Neighbourhood Partnership Instrument (ENPI), and introducing a series of novelties, which are

the primary object of this dissertation.

The 2011 revision was superseded, however, one year into the ENI’s entry into force, with the

2015 review of the ENP, which introduced the most substantial modifications to the objectives of

the ENP to date. This will have important consequences for the upcoming mandated mid-term

Review of the ENP in 2017 and for relations with the Neighbourhood in the future.

Beyond the ENI, the corpus of the ENP consists primarily of soft law instruments. The reasons

for the recourse to soft law instruments in the ENP are clear. These provide flexibility and

simplicity. The other side of the coin is that a policy framework weak on legalism often translate

into problems of consistency a lack of binding commitments. The ENI itself relies intensely on

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this corpus of soft law instruments of the ENP. As such, these instruments will be key to shed

light on the implementation of the ENI.

This dissertation will set forth as follows: Chapter 1 will seek to provide an overview of the ENP

in order to place the ENI in the appropriate context. Part1.1 will use a historical approach to trace

the development of the ENP in light of processes of continuity and change, ending in an

overview of the current state of play. Part 1.2 will place the ENP within the EU’s post-Lisbon

constitutional order and expound on the nature and consequences of the EU as a normative

external actor. Part 1.3 will first briefly discuss the key instruments which comprise the ENP

along the multilateral and bilateral tracks. Since the ENI is the current iteration of the unilateral

track of the ENP, the methodological approach will then revert to a comprehensive historical

approach of the financial implementation instruments of the unilateral track.

Chapter 2 will rely on a twofold approach to assess the novelties of the ENI. The first one (Parts

2.1-2.4) will consist of a thorough discussion of Regulation 232/2014 and horizontal Regulation

236/2014, placed in the context of the current MFF. For this part, the discussion of the ENI will

focus on the formal or sensu stricto novelties in the ENI regulation, in relation to the ENPI

regulation. The second part will in turn analyse the novelties of the ENI along the multiple

principles and dimensions of the ENP. This approach relies on the several soft law instruments of

the ENP and will produce an overview of the thematic or sensu lato novelties of the ENI.

Chapter 2 will take account of the evolving objectives of the ENP, in order to offer informed

conjectures about the upcoming mid-term Review of the ENP.

Finally, Chapter 3 will evaluate the ENP in its broader context, taking account of the novelties of

the ENI elucidated in Chapter 2, and in light of four prominent issues: First, the multiple

contradictions between the principles upon which the ENP is constructed; second, the conflicts

that may ensue in the EU simultaneously pursuing its values and interests; third, the growing

prominence of objectives related to the CFSP, resulting in a process of securitisation of the ENP;

and fourth, the role of other international actors and transnational and transregional effects on the

ENP, before coming to a conclusion.

3

1. Overview of the ENP

1.1 Development of the ENP

The ENP covers relations with 16 countries across its two geographical dimensions: The six

countries of the Eastern Neighbourhood (Armenia, Azerbaijan, Belarus Georgia, Moldova, and

Ukraine) and the ten countries of the Southern Neighbourhood (Algeria, Egypt, Israel, Jordan,

Lebanon, Libya, Morocco, Palestine1, Syria, and Tunisia).

A look at the list of ENP partner countries betrays a large degree of heterogeneity, which poses

the challenge of articulating an approach to the Neighbourhood that is sufficiently coherent,

while taking account of and harnessing the differences between partners. This has been a

constant theme of the ENP throughout its existence.

Two features of the ENP have been constant throughout its development. First of all, its nature as

primarily a unilateral policy framework, relying on European objectives, values and

instruments2. Consequently, the bilateral and a multilateral components of the ENP play a

subsidiary role to the unilateral one. The second constant feature is the prominent role that soft

law instruments play in the ENP3, with the necessary benefits and drawbacks touched upon in the

introduction.

The development of the ENP can be classified in four phases. First, its genesis and early policy

formation, leading up to the creation of the ENPI (2003-2007); second, the first fully-formed

phase of the ENP (2007-2011); third, the 2011 revision of the ENP and the creation of the ENP

(2011-2015); and finally the current phase after the 2015 Review (2015-).4

1 Without prejudice to the individual positions of the Member States with regard to the issue of the recognition of

the State of Palestine. 2 E. LANNON, Instruments, principes et méthodologie de la Politique européenne de voisinage. In: E. LANNON:

Les défis de la politique européenne de voisinage. Bruxelles, Bern, Berlin, Frankfurt am Main, New York, Oxford,

Wien: Peter Lang, 2012, 44. 3 E. LANNON, Instruments, principes et méthodologie de la Politique européenne de voisinage, supra ref. 2, 45. 4 cf. E. LANNON, Politique européenne de voisinage, Encyclopédie JurisClasseur EuropeTraité. Paris, LexisNexis,

3-9.

4

1.1.1 Genesis of the ENP

The genesis of the ENP can be traced to a British initiative in 2002 to increase cooperation with a

wider Europe, namely Russia and three post-Soviet states, Belarus, Moldova, and Ukraine.5 The

ten countries of the Southern Mediterranean were added to the initiative later in the same year at

the 2002 Council summit in Copenhagen.6

The conceptualisation of the Neighbourhood as a single framework for both the Eastern and

Southern neighbours knows its origin in the Commission’s 2003 Communication: Wider Europe-

Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours7,

mirrored as well as in the Council’s European Security Strategy (ESS) document of the same

year8.

The 2004 big-bang enlargement of the Union to include eight Central and Eastern European

countries (along with Malta and Cyprus), shifted the external borders of the EU towards

considerably less prosperous, stable and democratic neighbours, signalling a need for an

overarching policy framework to structure cooperation with the enlarged Neighbourhood.

As well as providing the rationale for a unified policy towards its Eastern Neighbours, the big-

bang enlargement delivered the methodological thrust with regard to relations to the

Neighbourhood.9 Moreover, the link between the new Neighbourhood policy and the

methodology of enlargement was made explicit in the Wider Europe Communication: “The EU

can and should work to spread the benefits of enlargement for political and economic

5 D. MAHNCKE, S. GSTÖHL, Europe's near abroad : promises and prospects of the EU's Neighbourhood policy,

Brussels: PIE/Lang, 2008, p. 23. 6 D. MAHNCKE, S. GSTÖHL, Europe's near abroad, supra ref. 5, 23. 7 Communication From The Commission to The Council And The European Parliament, Wider Europe —

Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, 11 March 2003,

COM(2003) 104 final. 8 Council of the European Union, European Security Strategy: A Secure Europe In A Better World, European

Security Strategy, 12 December 2003, 7-9. 9 M. CREMONA, C. HILLION, L’Union fait la force? Potential and Limitations of the European Neighbourhood

Policy as an Integrated EU Foreign and Security Policy, EUI Working Papers, 39, 2006, 8-9.

5

stability in the neighbouring countries and to help reduce prosperity gaps where they

exist.”10

In essence, this refers to the principles of differentiation, conditionality, and joint ownership11,

which were adapted from the methodology of enlargement into the ENP and have been core

principles of the ENP throughout its development. These will be discussed in detail in Chapter 2

of this dissertation. In particular, the introduction of positive conditionality outside the context of

enlargement, in order to advance more focused reforms in exchange for financial assistance was

a prominent innovation12.

With regard to the Southern Neighbourhood, the ENP signalled procedurally a departure from

the multilateral approach (though not necessarily philosophically, infra) and from the high

ambitions of the Mediterranean Policy and in favour of a strengthened focus on bilateralism13.

There is not necessarily a conflict between the regional approach of the ENP and multilateralism

as a principle of the EU’s external action. The latter should be regarded as a component of the

former. As Cremona succinctly puts it, “the EU builds regional relations through a joint

commitment to multilateral norms and uses its regional relations to help build support for the

development of such norms”14.

It was only on the back of the Rose Revolution in Georgia, that the three Caucasus Republics,

brought closer to the Union’s borders by enlargement, were added to the ENP15. This was

declared in in the 2004 orientation document16. The same document introduced the Action Plans

(APs), the multi-annual, bilaterally-negotiated unilateral documents which establish the priorities

in the EU’s bilateral relationship with partner countries17.

10 COM(2003) 104 final, supra ref. 7, 9. 11 E. LANNON, Politique européenne de voisinage supra ref. 4, 4. 12 I. TÖMMEL, The New Neighborhood Policy of the EU, An Appropriate Response to the Arab Spring?,

Democracy and Security, 9:1-2, 2013, 23. 13 I. TÖMMEL, The New Neighborhood Policy of the EU, supra ref. 12, 22. 14 M. CREMONA, Introduction: multilateralism as a principle of EU external policy, in: S. POLI, The European

Neighbourhood Policy: values and principles. Abingdon, Oxon, Routledge, 2016, 83. 15 D. MAHNCKE, S. GSTÖHL, Europe's near abroad, supra ref. 5, 23. 16 Communication from the Commission of the European Communities, European Neighbourhood Policy, Strategy

Paper, 12 May 2004 COM(2004) 373 final. 17 COM(2004) 373 final, supra ref. 16, 8-9.

6

As for the promotion of democracy, the ENP framework built upon the ambitious commitments

of the Barcelona Process, which was ultimately integrated into the ENP in 200718. Hence, the

promotion of democratic governance in the Neighbourhood has been a prominent element of the

ENP since its inception. This is very much driven by the EU’s interest in having secure and

prosperous neighbours19, i.e. shaping the external environment to the EU’s benefit.

The creation of the ENP also intended to build up on the achievements of the Partnership and

Cooperation Agreements (PCA) with post-Soviet states in Eastern Europe on the one hand and

on the Euro-Mediterranean Association Agreements (EMAAs) within the framework of the

EuroMed Partnership, on the other.20 Both of these pre-existing bilateral instruments were

incorporated into the ENP21.

As we shall see, the formative phase of the ENP lay the ground for many of its core principles

and these remained in place with remarkable continuity for a long time.

1.1.2 First fully-formed phase of the ENP

The first fully-formed phase of the ENP22 will be dealt in this chapter very briefly. This phase

encompasses the period following the On strengthening the European Neighbourhood Policy

Communication23 in late 2006 until the 2011 revision of the ENP. This first phase is first and

foremost characterised by the institutional transition following the Lisbon Treaty. Notable

innovations were put in place during this period, such as the creation of the ENPI as a

18 B. COSKUN, Values and security: The EU’s dilemma of democracy promotion in the Middle East in: G.

NOUTCHEVA, K. POMORSKA, G. BOSSE, The EU and its neighbours: values versus security in European

foreign policy. Manchester: Manchester University Press, 2013, 87. 19 B. SZENT-IVÁNYI, The EU's Support for Democratic Governance in the Eastern Neighbourhood: The Role of

Transition Experience from the New Member States, Europe-Asia Studies Vol. 66 , 7, 2014, 1104. 20 L. FALALIEIEVA, Legal Aspects of the European Neighbourhood Policy in the EU’s new approaches, in: N.

SISKOVA, From eastern partnership to the association: A legal and political analysis, Newcastle upon Tyne,

Cambridge Scholars Publishing, 2014, 59. 21 D. MAHNCKE, S. GSTÖHL, Europe's near abroad, supra ref. 5, 37. 22 E. LANNON, Politique européenne de voisinage supra ref. 4, 6. 23 Communication From The Commission To The Council And The European Parliament, On Strengthening The

European Neighbourhood Policy, 4 December 2006, COM(2006) 726 final.

7

consolidated instrument of financial assistance, the renewed emphasis on economic integration

through the announcement of the Deep and Comprehensive Free Trade Areas (DCFTAs), and the

strengthening of the regional approach via the creation of the Eastern Partnership (EaP) and the

Union for the Mediterranean (UfM). All of these innovations will be discussed in detail in this

dissertation. However, regarding core principles, this period can also be regarded as one of

continuity.

1.1.3 The 2011 Revision of the ENP

The third phase of the ENP can be traced back to two communications issued in the year 2011,

which together constitute a thorough revision of the ENP and contain a series of innovations, and

which form the political basis for the ENI regulation (Regulation 232/2014).

On March 8 2011, the High Representative and the Commission issued the communication “A

Partnership For Democracy And Shared Prosperity With The Southern Mediterranean”24,

announcing the mid-term review of the 2007 iteration of the ENP, after a lengthy consultation

process. This was swiftly followed by another communication on 25 May 2011, A New Response

to a changing neighbourhood25. Whereas the 2011 Revision of the ENP was not triggered by the

Arab Spring26, the toppling of the Ben Ali regime in Tunisia and the subsequent upheaval in the

Arab world very much played an role in the issuing of a second communication and over the

determination of the priorities therein.27

24 Joint Communication to the European Council, the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions of 8 March 2011, A Partnership For Democracy And

Shared Prosperity With The Southern Mediterranean, 8 March 2011, COM(2011) 200 final. 25 Joint Communication by the High Representative of The Union For Foreign Affairs And Security Policy and the

European Commission, A new response to a changing Neighbourhood, 25 May 2011, COM(2011) 303 final. 26 M. COMELLI, Article 8 TEU and the Revision of the European Neighbourhood Policy, in: L. ROSSI, F.

CASOLARI, The EU after Lisbon, Amending or Coping with the Existing Treaties, Springer eBooks, 2014, 281. 27 E. LANNON, Reappraisal of the European Neighbourhood Policy In: S.FLORENSA, Mediterranean Yearbook,

Barcelona, IEMed, 2016, 233.

8

The core novelty28 of the 2011 revision of the ENP is the introduction of the more for more

approach. This is simply increased differentiation via an incentive-based approach: “those that

go further and faster with reforms will be able to count on greater support from the EU. Support

will be reallocated or refocused for those who stall or retrench on agreed reform plans”29. As

well as announcing an ambitious programme for reform in the Neighbourhood, this passage

clearly lays out the link between differentiation and conditionality.

The emphasis on conditionality, which in the context of the ENP is defined as: “the EU’s ability

to attach specific demands to incentives it offers to the neighbours”30 was made more prominent

in the 2011 revision. However, neither positive nor negative conditionality are necessarily a new

feature. Positive conditionality was already a feature of the first phase of the ENP, and we shall

see in the discussion of the ENPI, the second phase of the ENP already included negative

conditionality.

The more for more approach is closely connected with the introduction of the concept of deep

democracy31. This can be defined as an approach based on building and maintaining the

institutions that support a democratic society, beyond the simple holding of elections, and it’s in

function thereof that support to partners would be adapted, as part of the more for more

approach32. As authors have remarked, this is merely a generalised reiteration of the values of

liberal democracy33. Whereas deep democracy is not conceptually an innovation, its added value

as an explicit political proclamation is that it places less emphasis on stability and more on the

promotion of democratic governance34.

28 B. CUGUSI, Future Perspectives for the European Neighbourhood Policy in: F. CELATA, R. COLETTI (eds.),

Neighbourhood Policy and the Construction of the European External Borders. GeoJournal Library, vol. 115,

Cham: Springer, 2015, 139-140. 29 COM(2011), 200 final, supra ref. 24, 5. 30 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy. London: Rowman & Littlefield

International, 2017, 8. 31 COM(2011) 303 final, supra ref. 25, 3. 32 COM(2011) 303 final, supra ref. 25, 3. 33 T. THEUNS, Promoting democracy through economic conditionality in the ENP: a normative critique, Journal of

European Integration, 39, 3, 2017 291. 34 T. SCHUMACHER, D. BOURIS, The 2011 revised European Neighbourhood policy: continuity and change in

EU Foreign policy. in: D. BOURIS, T. SCHUMACHER, The Revised European Neighbourhood Policy: Continuity

and Change in EU Foreign Policy, Basingstoke: Palgrave Macmillan, 2016, 31-33.

9

Deep democracy is in turn linked with a strengthened focus on civil society. The 2011 revision

also saw the introduction two dedicated financial facilities, the Civil Society Facility (CSF), as

well as the European Endowment for Democracy (EED).35 Both instruments are designed to

empower civil society actors, whose influence in the Neighbourhood ought to be greatly

expanded. However, since at least the latter replicates the efforts of the European Instrument for

Democracy and Human Rights (EIDHR), this raises questions about coherence36.

Another element which gained prominence in the 2011 revision are the DCFTAs. These had

been already launched in the previous phase of the ENP. DCFTAs are agreements covering a

wide array of trade-related issues37, to be negotiated with willing and able partners and eyeing

the gradual dismantling of trade barriers and establishing regulatory convergence38. Whilst a

definition of what DCFTAs exactly entailed and whether these already constituted a new

generation of agreements39 remained initially elusive, these sought in essence to build upon the

Euro Mediterranean Association Agreements (EMAA) 40 which were already in place as part of

the Agadir Process, specifically with four countries: Egypt, Jordan, Morocco, and Tunisia41. As

for the Eastern Neighbourhood, the DCFTAs were meant to replace what can be described as a

process of familiarisation with wide-ranging approximation.42

After Money (additional resources and positive Conditionality), and Market (Access), the third M

which characterises the 2011 revision is Mobility.43 Mobility measures include an intensification

of the visa facilitation dialogue, as well as the development of existing Mobility Partnerships44.

35 COM(2011) 303 final, supra ref. 25, 3. 36 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy Post-Arab Spring: ‘More for

More’ or Less of the Same?, Mediterranean politics, 19, 3, 2014, 324. 37 COM(2011) 303 final, supra ref. 25, 14. 38 COM(2011) 303 final, supra ref. 25, 6. 39 E. LANNON, Entry into force of the new European neighbourhood policy and Negotiation of ‘Deep and

comprehensive’ free trade areas: a European Neighbourhood Policy running at different speeds.”, in: FLORENSA.

S., (ed.) Mediterranean yearbook. Barcelona, IEMed; 2014, 232 40 E. LANNON, Entry into force, supra ref. 39, 231. 41 E. LANNON, A. GHONEIM, The EuroMed region after the Arab Spring and the new generation of DCFTAs,

European Parliament Workshop, 2014, 40,

http://www.europarl.europa.eu/RegData/etudes/workshop/join/2014/433756/EXPO-

INTA_AT(2014)433756_EN.pdf 42 L. DELCOUR, K. WOLCZUK, Beyond the Vilnius Summit: challenges for deeper EU integration with Eastern

Europe, Policy Brief, European Policy Centre, 2013, 1.

http://www.epc.eu/documents/uploads/pub_3889_beyond_the_vilnius_summit.pdf 43 T. SCHUMACHER, D. BOURIS, The 2011 revised European Neighbourhood policy, supra ref. 34, 16.

10

An overarching theme of the revised ENP of 2011 is arguably a double rebalancing: On the one

hand between the two dimensions of the Neighbourhood, in favour of the Southern

Mediterranean45, and on the other hand a further prioritisation of the bilateral approach, as

opposed to the multilateral46. Both features of this rebalancing can be regarded as the

culmination of the strategical vision for a comprehensive framework for the entire

Neighbourhood, and also as a product of the political context in the Neighbourhood at the time.

Yet, there is also a measure of continuity. The 2011 revision retains its commitment to the

enlargement methodology of the early ENP47 with the principles of differentiation, conditionality

and joint ownership remaining solidly in place.

To sum up, the 2011 Revision of the ENP is more than anything a product of its time, not with

regard to the political context of the Arab Spring, given that the revision was all but finalised

then48, but rather in the context of renewed ambition by the EU towards projecting its normative

values more assertively and seeing this projection in line with its interests. Hence, the revised

ENP of 2011 should not be castigated for its ambition, as it brought about important innovations

which as we shall see inform the spirit of the ENI.

1.1.4 The 2015 Review of the ENP

The intense political upheaval collectively known as the Arab Spring resulted in continued

instability in the Southern Neighbourhood in the years after the 2011 revision. This ultimately

lead to regime change Egypt and Tunisia, civil war in Libya and Syria, as well as the rise of

Da’esh in the Levant. Whereas expectations were high for a wave of democratisation in the

Southern Neighbourhood, these largely failed to materialise.

44 COM(2011) 303 final, supra ref. 25, 6. 45 M. COMELLI, Article 8 TEU and the Revision, supra ref. 26, 285. 46 M. COMELLI, Potential and Limits of EU Policies in the Neighbourhood, Notre Europe, 68, 2013, 3. 47 L. DELCOUR, Conclusion: Plus ça change, plus c'est la même chose? The European Neighbourhood Policy and

Dynamics of Internal and External Change in: BOURIS, D., SCHUMACHER, T., The Revised European

Neighbourhood Policy: Continuity and Change in EU Foreign Policy, Basingstoke: Palgrave Macmillan, 2016, 294. 48 E. LANNON, A. GHONEIM, The EuroMed region, supra ref. 41, 39.

11

In the Eastern Neighbourhood, Russia’s annexation of Crimea and the subsequent breakout of

hostilities in the Donbass region, as well as a constitutional crisis in Moldova and faltering

reform in the Caucasus, signalled a pressing need for yet another reconceptualisation of the EU’s

strategy towards the wider Neighbourhood. All of these developments ensued in a sobering od

perspectives with regard to the previous ambition towards the transformative power of the EU’s

external action.

By initiative of the new President of the Commission and the Member States, and after another

consultation process, the Review was announced on 18 November 201549, paving the way for the

mid-term Review of the ENP in 2017.

The 2015 Review of the ENP has been dubbed “The most extensive reassessment of the policy

ever since its launch”50. However, this much less so in terms of innovations and constitutes first

and foremost a refocusing of priorities51, and by all means constitutes a tempering of the EU’s

ambitions with regard to the Neighbourhood and a turn to “a more hard-nosed Realpolitik”52.

The most salient element of the 2015 Review is that stabilisation is identified as the “most urgent

challenge in many parts of the Neighbourhood”53. Subsequently, the EU envisions a

comprehensive security approach which includes increased security cooperation, but also seeks

to target the causes of instability54. In the same spirit, the Review plans for an ENI flexibility

cushion “for urgent programming of unforeseen needs, particularly for conflict and post-

conflict needs; refugee support; crises and disaster response; and for security and

stabilisation programmes”55.

49 European Commission, Joint Communication to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions, Review of the European Neighbourhood Policy, 18

November 2015, JOIN(2015) 500 final. 50 L. DELCOUR, The ENP Review: Beyond stocktaking, the Need for a Political Strategy, College of Europe Policy

Brief, #1.15, December 2015, 2. 51 E. LANNON, The 2015 review of the European neighbourhood policy and the future of Euro-Mediterranean

relationships, In: Aksoy O. (ed.), Dis Politika - Foreign Policy - A biannual Journal of the Foreign Policy Institute.

Ankara: Seyfi Tashan, 2015, 76. 52 S. BLOCKMANS, The 2015 ENP Review: A policy in suspended animation, CEPS Commentary, Centre for

European Policy Studies, 2015, 1. 53 JOIN(2015) 500 final, supra ref. 49, 3. 54 JOIN(2015) 500 final, supra ref. 49, 3. 55 JOIN(2015) 500 final, supra ref. 49, 20.

12

Another key term on the 2015 Review is resilience. This refers to the need to empower and

enable partners to respond to security challenges, such as terrorism, radicalisation and cyber-

crime56. This will in practice contribute towards the securitisation of the ENP, which poses a

series of challenges and will be discussed in depth in Chapter 3.

Moreover, the focus on stability does to some extent away with the strong conditionality

advanced in the 2011 Revision. In fact, the 2015 Review makes no mention of the principle of

conditionality at all.

The 2015 Review also gives an enhanced role to the principle of joint-ownership, meaning that

priorities should be more in line with the partner countries’ aspirations57. Interestingly, this also

includes joint ownership in the promotion of good governance, democracy, the rule of law and

Human Rights “in mutually agreed formats”58.

In the spirit of joint ownership, Progress Reports (PR) will be more focused on the attainment of

jointly agreed goals and no longer released simultaneously59. Another eventual aim is to narrow

down the Action Plans (APs) to a set of partnership priorities.60 It is tempting to come to the

conclusion that extending ownership of the ENP to the partner countries in these matters, many

of whom are autocratic regimes, is in fact self-defeating61.

Consequently, the emphasis on values, in particular on democratisation and Human Rights seem

to have been moved to the back seat in the 2015 Review. This is the consequence of the new

stability-based approach, since the promotion of democracy and Human Rights in autocratic

regimes will naturally ensue in a measure of instability.

56 JOIN(2015) 50 final, supra ref. 49, 12-14. 57 JOIN(2015) 50 final, supra ref. 49, 4. 58 JOIN(2015) 50 final, supra ref. 49, 5. 59 JOIN(2015) 50 final, supra ref. 49, 5. 60 N. KOENIG, Taking The ENP Beyond The Conception-Performance Gap, Jacques Delors Institut Berlin, Policy

Paper 160, 2016, 7. 61 T. SCHUMACHER, Back to the Future: The ‘New’ ENP towards the Southern Neighbourhood and the End of

Ambition, College of Europe Policy Brief #1.16, January 2016, 3.

13

This sobering reassessment is in sharp contrast with the rhetoric used by Commissioner Hahn’s

in his announcement of the Review, where he insisted in continued support for “bread, freedom

and social justice”, borrowing the expression popular chants of the 2011 Tahrir protests62.

Furthermore, the 2015 Review also takes note of the pressing need to incorporate “other regional

actors beyond the Neighbourhood”63 in issues with broader transnational and regional effects64.

To this end, the Review proposes “new thematic frameworks to tackle shared challenges”65

across the regional dimension, on topics such as migration, energy, security, and health66.

However, without a clear agenda, this proposal runs the risk of achieving little progress67.

In conclusion, it has been suggested that the pragmatic, stability-based approach of the 2015

Review is in effect the “antithesis to what past editions of the ENP were supposed to be

about”68, announcing an end to the ambition which hitherto had characterised the ENP. In other

words, Javier Solana’s hopeful “ring of friends” may gradually have come to be viewed by the

Union as a “ring of fire”69, with an according response to the challenges of a more troubled

Neighbourhood.

1.1.5 State of play in the ENP

Admittedly, a cursory look at the Neighbourhood today may seem discouraging. In the Eastern

Neighbourhood, all partner countries with the exception of Belarus, are experiencing ongoing

active or frozen armed conflicts70. Moreover, half of the Eastern Neighbourhood countries

62 J. HAHN, Guest Editorial, European Foreign Affairs Review, 21, 1, 2016, p. 1. 63 JOIN(2015) 500 final, supra ref. 49, 3. 64 E. LANNON, The 2015 review of the European Neighbourhood Policy, supra ref. 51, 78. 65 JOIN(2015) 500 final, supra ref. 49, 18. 66 JOIN(2015) 500 final, supra ref. 49, 18. 67 E. LANNON, Reappraisal of the European Neighbourhood Policy, supra ref. 27, 235. 68 T. SCHUMACHER, Back to the Future, supra ref. 61, 2..

69 T. SCHUMACHER, Back to the Future, supra ref. 61, 2.

70 European Commission, Joint Report to the European Parliament, the Council, the European Economic and Social

Committee and the Committee of the Regions, Report on the Implementation of the European Neighbourhood

Policy Review, 18 May 2017, JOIN(2017) 18 final, 10.

14

remain authoritarian regimes (Armenia, Azerbaijan Belarus), while the remaining three (Georgia,

Moldova, Ukraine), are transitional regimes experiencing some degree of instability71.

These three willing partners, Georgia, Moldova, and Ukraine have all concluded comprehensive

AAs with corresponding Deep and Comprehensive Free Trade Agreements/Areas (DCFTAs)

with the EU in recent years72. Moreover, the recent conclusion of visa-free regimes with the

same countries represents one of the bigger recent successes of the ENP73, as well as

membership in the Energy Community, which has resulted in a gradual process of integration, a

few ups and downs notwithstanding.

Given these countries current commitment to enhanced cooperation with the EU, we can speak

of a summa divisio in the Eastern Neighbourhood between “willing” and “hesitant”74 partners,

which translates to the partner countries’ degree of cooperation with the EU along the bilateral

and multilateral tracks of the ENP.

Among the reluctant partners of the Eastern Neighbourhood, there is more differentiation. Hope

was high of signing an AA with Armenia as well, but its decision to join the Customs Union of

Russia, Belarus, and Kazakhstan ruled this out75, as Armenia lost its competence of signing Free

Trade Agreements with third countries.76 Nevertheless, the EU and Armenia have recently

concluded negotiations on a Comprehensive and Enhanced Partnership Agreement (CEPA)77.

In the case of Azerbaijan, the fact that the country is not a member of the WTO rules out a

DCFTA for the time and complicates AA negotiations78. Nevertheless, negotiating directives

were issued for the renegotiation of its Partnership and Cooperation Agreement (PCA). As for

71 Annex, Fig. 1 72 G. GROMADZKI, The Eastern Partnership after Five Years: Time for Deep Rethinking, European Parliament

Research Service, Study, PE 536.438, 2015, 12. 73 JOIN(2017) 18 final, supra ref. 70, 23. 74 N. TOCCI, Can the EU promote democracy and human rights through the ENP? The case for refocusing on the

rule of law, in: M. CREMONA, G. MELONI, G., The European Neighbourhood Policy: a framework for

modernisation, EUI Working papers, 21, 2007, 28. 75 G. GROMADZKI, The Eastern Partnership after Five Years, supra ref. 72, 15. 76 L. DELCOUR, H. KOSTANYAN, B. VANDECASTEELE, P. VAN ELSUWEGE, The implications of Eurasian

integration for the EU's relations with the countries in the post-Soviet space, Studia Diplomatica, 68, 1, 2015, 9. 77 JOIN(2017) 18 final, supra ref. 70, 22 . 78 G. GROMADZKI, The Eastern Partnership after Five Years, supra ref. 72, 15.

15

Belarus, relations have remained semi-frozen throughout the existence of the ENP, despite some

recent limited rapprochement from the Lukashenko regime.79

In the Southern Neighbourhood, the picture remains more diverse in political terms, but also

significantly more troubling.

Two countries, Syria and Libya are currently facing extreme instability, and are not involved in

the ENP to any meaningful extent. Bilateral programmes with Syria have been suspended since

2011.80

A further four, Egypt, Algeria, and Jordan, and to a lesser degree Lebanon, are authoritarian or

semi-authoritarian regimes81. This is also the case with the territories the Palestinian Authority

administers, but its case is necessarily sui generis. Moreover, Lebanon and Jordan are suffering

substantial instability as a consequence of the spill-over of the Syrian civil war.82 Within this

group, the EU’s relations with these countries are highly differentiated. Negotiating directives for

DCFTAs with Egypt, Jordan, and Lebanon have been issued, which mutatis mutandis follow the

same framework and objectives as those in the Eastern Neighbourhood83. Furthermore, Jordan

has enjoyed Advanced Status in its relations with the EU since 2010.

Morocco also remains an authoritarian regime, in spite of slow but steady liberalisation

following the Arab Spring84. Morocco ranks among the most ambitious partner countries in its

willingness to align with the EU. Like Jordan, it has possessed Advanced Status since 201085,

and is also currently in the process of negotiating a DCFTA with the EU.

79 JOIN(2017) 18 final, supra ref. 70, 7-8. 80 JOIN(2017) 18 final, supra ref. 70, 6. 81 Annex, Fig.1 82 JOIN(2017) 18 final, supra ref. 70, 5. 83 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and Change in the legal relations between the EU and its

neighbours: a result of path dependency and spill-over effects. in: BOURIS, D., SCHUMACHER, T., The Revised

European Neighbourhood Policy: Continuity and Change in EU Foreign Policy, Basingstoke: Palgrave Macmillan,

2016, 108. 84 P. RIEKER, The European Neighbourhood Policy: an instrument for security community building, NUPI

Working Paper 832, 2014, 10. 85 S. POLI,, The European Neighbourhood Policy: Differentiation without Political Conditionality?, Yearbook of

Polish European Studies, 18, 2015, 152..

16

Tunisia is the only country undergoing fledgling democratisation in the Southern

Neighbourhood, and as such has been the silver lining of the turmoil in the Middle East in the

past decade. Tunisia has very ambitious agreements with the EU, as well as high adaptation to

EU rules and norms86. Consequently, Tunisia signed a Privileged Partnership with the EU in

2012.

Finally, the clear outlier in the Southern Neighbourhood is the State of Israel. Whereas it remains

the only established democracy with a developed economy in the Neighbourhood, and thus

admittedly an awkward fit for the objectives of the ENP, its continuing belligerent occupation of

Palestinian territories remains problematic87.

Undoubtedly, a coherent categorisation of the state Southern Neighbourhood is a thankless task

since an already heterogeneous region has become if anything more fragmented after the Arab

Spring.88 Unlike the Eastern Neighbourhood, this high degree of fragmentation raises questions

about the effectiveness of the ENP’s comprehensive approach.

In conclusion, the process of development that the ENP has enjoyed throughout its existence can

be characterised search for an overarching strategy that takes into account the complexities and

high heterogeneity of the EU’s Neighbourhood.

1.2 The ENP in the EU constitutional order

Having traced the development of the ENP from its origins to its current state of play, it is

pertinent at this point to situate the position of neighbourhood policies within the constitutional

order of the EU and to establish the parameters which govern the EU’s conduct as an actor in

the wider world.

86 A. DANDASHLY, Building a Security Community in the Neighbourhood. Zooming in on the EU-Tunisia

Relations, Norwegian Institute of International Affairs, NUPI Working Paper 836, 2014, 26. 87 Report of the Middle East Quartet, 12 February 2016, 1. http://www.un.org/News/dh/infocus/middle_east/Report-

of-the-Middle-East-Quartet.pdf 88 R. BALFOUR, EU political dilemmas in North Africa and the Middle East: The logic of diversity and the limits to

foreign policy in: NOUTCHEVA, G., POMORSKA, K., BOSSE, G., The EU and its neighbours: values versus

security in European foreign policy. Manchester: Manchester University Press, 2013, 77.

17

1.2.1 Constitutional basis of the ENP

The Lisbon treaty introduces a new legal basis for the ENP under Art.8 TEU, which states:

1.“The Union shall develop a special relationship with neighbouring

countries, aiming to establish an area of prosperity and good neighbourliness,

founded on the values of the Union and characterised by close and peaceful

relations based on cooperation”.

2. “For the purposes of paragraph 1, the Union may conclude specific

agreements with the countries concerned. These agreements may contain

reciprocal rights and obligations as well as the possibility of undertaking

activities jointly. Their implementation shall be the subject of periodic

consultation. “89

Through its mandatory formulation, Art.8 TEU entails a legal obligation for the EU to develop a

relationship with neighbouring countries90. Though admittedly broader than the ENP itself, Art.

8 TEU can be characterised as an attempt to formalise the previously existing policy framework

of the ENP into the constitutional order of the EU91.

First, the notion of neighbouring countries under Art. 8 TEU must be understood beyond the

strict sense of sharing a border with the EU, as the membership of the Caucasus countries in the

ENP, as well as that of Palestine and Jordan, attests92.

The next point of interest is the question of what kind of special relationship shall be pursued

with neighbouring countries. This is akin to the special privileged links of Art. 217 TFEU, but

sufficiently ambiguous to grant the required flexibility of not referring directly to the context of

Association Agreements (AAs)93.

89 Art. 8 TEU. 90 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU: A legal analysis,

Oxford, Hart, 2014, 60. 91 M. COMELLI, Article 8 TEU and the Revision, supra ref. 26, 267. 92 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 60. 93 P. VAN ELSUWEGE, R. PETROV, Article 8 TEU: towards a new generation of agreements with the

neighbouring countries of the European Union?, European Law Review, 36, 5, 2011, 692.

18

This ambiguity points out to an intentional lack of precision94. However, it has been suggested

that Art. 8 TEU may be regarded as a lex specialis to the lex generalis of Art. 217 TFEU, i.e.

defining a specific type of relationship with regard to the Neighbourhood95.

In turn, Art. 8 TEU states that it is the values of the EU upon which the special relationship with

the Neighbourhood is founded. This is peculiar. In other words, adherence to the founding values

of the EU is fundamental to the development of a special relationship between the EU and

neighbouring countries96. It follows that the EU’s bilateral relation shall be founded on its

unilaterally proclaimed values.

As to which values are implied herein, these are the values mentioned in Art. 2 TEU:

“The Union is founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including

the rights of persons belonging to minorities. These values are common to the

Member States in a society in which pluralism, non-discrimination, tolerance,

justice, solidarity and equality between women and men prevail”.97

Read together, Art. 2 jo. 8 TEU establish that the EU can only pursue a special relationship with

neighbouring countries in which the values of Art. 8 TEU possess this foundational character.

Hence, Art. 8 jo. Art. 2 TEU establish the normative character of the EU’s relations towards the

Neighbourhood predicated on the founding values of the EU.98

This stance is mirrored in other provisions. The Treaty of Lisbon is very clear about respect for

the founding values as a precondition for accession99, as is also the case with regard to the

prohibition of “serious and persistent breach” thereof by Member States.100

94 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy in the East: A

Difficult Marriage or Singing in Unison?, Cambridge Yearbook of European legal studies, Vol. 15, 23, 2012-2013,

638. 95 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and Change, supra ref. 83, 100. 96 S. POLI, Promoting EU values in the neighbourhood through EU financial instruments and restrictive measures,

in: S. POLI, The European Neighbourhood Policy: values and principles., Abingdon, Oxon, Routledge, 2016, 34. 97 Art. 2 TEU. 98 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 66.

19

However, it is much less clear how far this adherence should extend with regard to the

Neighbourhood. This could range from simple lip service to the values of Art. 2 TEU, to a

measure of progress towards them, to full adherence101. Certainly, a strict interpretation that

would regard full adherence to the values of Art. 2 TEU as an essential element of the EU’s

bilateral relationship to its neighbours is not warranted empirically102: A generous assessment of

the partner countries would struggle to find many Neighbourhood countries committed in

practice to the values of Art. 2 TEU103. Hence, adherence by the partner countries to the

foundational values of the EU cannot be regarded too strictly as a precondition for a special

relationship in the sense of Art. 8 TEU104.

Clear indication hereof is provided by the ENI regulation, which refers to a “shared commitment

to the universal values of democracy and the rule of law and respect of human rights in

accordance with the TEU”105. Whereas the EU’s intention is clear in making a reference to the

universal character of these values, there is some conceptual discord106. If the founding values of

the EU stated in Art. 2 TEU, which are common to the Member States also have universal

character, it must follow that there is no particularity to them as European founding values. This

is purportedly to avoid the notion that these values are imposed, though this creates undoubtedly

some ambiguity107.

Within the Treaty of Lisbon, Art. 8 TEU is located in the Common Provisions of Title I and

technically leaves it outside of Title V TEU, which establishes the ‘General provisions on the

Union’s external action and specifics of the CFSP’; as well as outside of Part Five of the TFEU,

‘External Action by the Union108. This makes Art. 8 TEU an outlier among external policies.

99 Art. 49 TEU. 100Art. 7(2) TEU. 101 L. FALALIEIEVA, Legal Aspects of the European Neighbourhood Policy, supra ref. 20, 71. 102 P. VAN ELSUWEGE, R. PETROV, Article 8 TEU: towards a new generation, supra ref. 93, 695. 103 Annex, Fig. 1. 104 S. POLI, Promoting EU values in the neighbourhood, supra ref. 96, 39. 105 Art. 1, Reg. 232/2014. 106 S. GSTÖHL, S., The contestation of values in the European Neighbourhood Policy: Challenges of capacity,

consistency and competition in: S. POLI, The European Neighbourhood Policy: values and principles, Abingdon,

Oxon, Routledge, 2016, 61. 107 S. GSTÖHL, S., The contestation of values, supra ref. 106, 61. 108 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy, supra ref. ?, 635,

cf. M. COMELLI, Article 8 TEU and the Revision, supra ref. 26, 275.

20

Nevertheless, as a cross-treaty policy, the ENP itself is required to pursue the objectives of Art.

21 TEU.109 This means that it should remain unaffected by the CFSP/Non-CFSP distinction in

Art. 40 TEU and the principle of supremacy110.

Furthermore, the location of Art. 8 TEU within the treaty suggests its relationship to the

accession provisions of Art. 49 TEU is alternative, though not necessarily exclusive. This is the

case at least with regard to the countries in the Eastern Neighbourhood111. This notion is

mirrored again in the finality of Art. 8 TEU, “close and peaceful relations based on

cooperation”, an objective in itself, detached but not exclusive of future accession to the EU112.

However, formally speaking, it is a matter of debate whether Art. 8(2) TEU creates a new legal

basis for concluding international agreements113. This is in principle not ruled out by the treaties,

but the lack of procedural guidelines, as well as the location of Art. 8 in the TEU, do not seem to

support this114.

1.2.2 Normative basis of EU external action

As has been established, the normative character of the EU’s relationship with its Neighbours is

provided by Art. 8 jo. Art. 2 TEU. In order to be conform with the normative character of EU

external action, the ENP should also be consistent with Art. 3(5) TEU and 21 TEU.

Art. 3(5) TEU states:

In its relations with the wider world, the Union shall uphold and promote its

values and interests and contribute to the protection of its citizens. It shall

contribute to peace, security, the sustainable development of the Earth,

solidarity and mutual respect among peoples, free and fair trade, eradication

109 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy, supra ref. 94, 636. 110 C. HILLION, The EU neighbourhood competence under Article 8 TEU, Think Global-Act European IV, Paris,

Notre Europe-Jacques Delors Institute, 2013, 205. 111 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 61 112 P. VAN ELSUWEGE, R. PETROV, Article 8 TEU: towards a new generation, supra ref. 93, 695. 113 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy, supra ref. 94, 637. 114 P. VAN ELSUWEGE, R. PETROV, Article 8 TEU: towards a new generation, supra ref. 93, 696-697.

21

of poverty and the protection of human rights, in particular the rights of the

child, as well as to the strict observance and the development of international

law, including respect for the principles of the United Nations Charter.

Nevertheless, as relates to external action, Art. 21 (3) TEU states that:

“The Union shall respect the principles and pursue the objectives set out in

paragraphs 1 and 2”115.

Art. 21(1) TEU reiterates the values of Art. 2 TEU, but refers to them as principles

“which have inspired the Union’s creation”116:

“Democracy, the rule of law, the universality and indivisibility of human rights

and fundamental freedoms, respect for human dignity, the principles of

equality and solidarity, and respect for the principles of the United Nations

Charter and international law.”117.

In turn, Art. 21(2) TEU details the list of objectives to be pursued in the EU’s external action,

prominently to:

(a) safeguard [the Union’s] values, fundamental interests, security, independence and

integrity;

(b) consolidate and support democracy, the rule of law, human rights and the

principles of international law[…]118.

The first question that must be asked is whether a constitutional distinction was intended

between values on the one hand, and principles, on the other hand. Since the values of Art. 3(5)

TEU largely overlap with either the principles or the objectives of Art. 21 TEU, it’s most likely

not warranted to speak of a theoretical distinction in this case119.

115 Art. 21(3) TEU. 116 Art. 21(1) TEU. 117 Art. 21(1) TEU. 118 Art. 21(2) TEU. 119 I. VIANELLO, Guiding the Exercise of the Union's Administrative Power in the EU Wider Neighbourhood: The

Rule of Law from Paper to Operationalisation, EUI Department of Law Research Paper No. 2015/08, 2015, 12,

https://ssrn.com/abstract=2587694 .

22

Hence, the founding values of Art. 2 TEU, must be regarded as founding principles, i.e.

overarching and constitutive legal norms upon which the foundation of the EU rests120. It follows

that these should be upheld not only in the EU’s internal, but also in its external dimension. This

proclamation, cast in mandatory terms, establishes the normative basis of the EU’s external

action121, and establishes “a paradigm of external policy designed to project the EU’s values”122.

This raises an essential question, namely whether Art. 3(5) TEU is not only an ontological

proclamation, i.e. one that establishes the EU is constructed to uphold and promote its values and

interests in the wider world123, but also a normative one, i.e. that suggests that the EU should

promote and uphold its values and interests124, or a positivist one, i.e., one that observes that the

EU acts to uphold and promote values and interests125. A generous interpretation leans to the

former, a notion of normative external action as a telos, a purpose or an objective, i.e. a series of

“criteria for the detection of deficits and guidelines to overcome them”126, pointing to a

“constitutional doctrine of normative action”127.

The case law of the Court of Justice on values and principles is relatively limited, but it

nevertheless tends to support this notion. For instance, Art. 3(5) TEU has been read as

enshrining the EU’s commitment to multilateralism128. In the Air Transport Association of

America129, and the E and F cases, the Court of Justice stressed that all acts of the EU’s

institutions are subject to the Court’s review for compatibility with the rule of law130, therefore

confirming its role as a constitutional principle of the EU131.

120 A. VON BOGDANDY, Founding Principles Of EU Law: A Theoretical And Doctrinal Sketch, European Law

Journal 16, 2, 2010, 106. 121 P. EECKHOUT, A Normative Basis for EU External Relations? Protecting Internal Values

Beyond the Single Market in: KRAJEWSKI, M. (ed.) ‘Services of General Interest Beyond the Single Market:

External and International Law Dimensions’, The Hague: Asser Press, 2015, 220. 122 M. CREMONA, Introduction: multilateralism as a principle of EU external policy, supra ref. 14, 82. 123 P. EECKHOUT, A Normative Basis for EU External Relations?, supra ref. 121, 225. 124 P. EECKHOUT, A Normative Basis for EU External Relations?, supra ref. 121, 225. 125 P. EECKHOUT, A Normative Basis for EU External Relations?, supra ref. 121, 225. 126 A. VON BOGDANDY, Founding Principles Of EU Law, supra ref. 120, 110. 127 A. VON BOGDANDY, Founding Principles Of EU Law, supra ref. 120, 110. 128 M. CREMONA, Introduction: multilateralism as a principle of EU external policy, supra ref. 14, 82. 129 Judgment, Air Transport Association of America and Others, 21 December 2011, C-366/10,

ECLI:EU:C:2011:864, para 101. 130 Judgment (Grand Chamber), Criminal Proceedings against E and F, C-550/09, 29 June 2010,

ECLI:EU:C:2010:382, para 44. 131 I. VIANELLO, Guiding the Exercise of the Union's Administrative Power, supra ref. 119, 6.

23

A consequence of the normative character of the EU’s external action is that it results in a

particular character of the Union as an actor of international relations. By definition, this results

in the EU becoming a constrained actor. As Larik puts it: “States, given their all-encompassing

Kompetenz-Kompetenz, do not need objectives […] In contrast, international organizations, as

derivative subjects of international law and created to perform certain functions, exist only by

virtue of their own functionality”132. That the EU transcends the character of international

organisation in this sense is very clear. This was confirmed by the Court of Justice in Opinion

1/91133, and reiterated in Opinion 2/13134. Nevertheless, the EU remains an entity of conferred

powers135, devoid of Kompetenz-Kompetenz and therefore relying on its declared objectives, in

other words, its Zielbedarf136.

This Zielbedarf, or need for objectives, translates into a predisposition for normative action is

characterised by the transfer of rules and practices and relates to the wider world in general and

to the Neighbourhood in particular as both a projection of its own interests, and a projection of

its proclaimed values137. It follows that only in the cases when values and interests are aligned

will the EU behave in the international scene as all other actors, that is unconstrained by its own

normative character. Concretely for the ENP, this means that we can expect consistency when

values and interests align, and a series of contradictions when they do not.

In conclusion, the construction of the EU as a normative actor in its external relations informs

the behaviour of the EU in very particular ways as opposed to all other actors in the international

scene, including the partner countries in the Neighbourhood, but also Member States. It is in

light of this Zielbedarf, or need for objectives, that policy formation in the ENP must be viewed.

132 J. LARIK, Foreign policy objectives in European constitutional law, Oxford: Oxford University Press, 2016,

141. 133 Opinion 1/91, EU:C:1991:490, 21., cf. LARIK, J., Foreign policy objectives in European constitutional law,

supra ref. 132, 143. 134 Opinion 2/13, EU:C:2014:2454, 158. cf. LARIK, J., Foreign policy objectives in European constitutional law,

supra ref. 132, 143. 135 J. LARIK, Foreign policy objectives in European constitutional law, supra ref. 132, 146. 136 J. LARIK, Foreign policy objectives in European constitutional law, supra ref. 132, 149. 137 R. A. DEL SARTO, Normative empire Europe: the European Union, its borderlands, and the ‘Arab spring’,

Journal of Common Market Studies, 54, 2, 227.

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1.3 Key Instruments of the ENP

The ENP is constructed as an umbrella policy encompassing a wide range of instruments and

policies conceived to advance the EU’s policy objectives in the Neighbourhood. These cover the

bilateral, regional and multilateral tracks of the EU’s relationship to the Eastern and Southern

Neighbourhoods.

The ENI is the unilateral instrument which operationalises financial assistance to the

Neighbourhood and is designed to support the bilateral and multilateral tracks of the ENP.

Before proceeding to the ENI itself, a very brief overview of these instruments and policies is

due in light of their relationship with the ENI and ENP objectives at large in order to assess its

place in the wider policy framework.

1.3.1 Regional and Multilateral Cooperation

As already discussed, the ENP can be regarded as a procedural shift from an early era of

multilateral ambition towards bilateralism138. However, efforts have been gradually made to

retain elements of regional and multilateral cooperation in the ENP at the sub-regional level by

means of a series of initiatives to complement the ENP139.

These are first and foremost two sub-regional fora, namely Eastern Partnership (EaP) and the

Union of the Mediterranean (UfM), which effectively split multilateral cooperation in the ENP

along geographical lines. In addition to this, a third forum, the Black Sea Synergy was created as

a forum for cooperation issues specific for the region around the Black Sea. The multilateral

track is complemented by the Interregional initiatives and Cross-Border Cooperation (CBC).

138 I. TÖMMEL, The New Neighborhood Policy of the EU, supra ref. 12, 22. 139 R. PETROV, The Principle of Good Neighbourliness and the European Neighbourhood Policy in: D.

KOCHENOV, E. BASHESKA, Good Neighbourliness In the European Legal Context, Leiden, Brill Nijhoff, 2015,

290.

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1.3.1.1 The Eastern Partnership

The Eastern Partnership (EaP) is a framework for enhanced cooperation for the six countries of

the Eastern Neighbourhood. It was launched in 2009 with the purpose of offering the Eastern

Neighbourhood “tangible support for their democratic and market-oriented reforms and the

consolidation of their statehood and territorial integrity140, and as such it is the cornerstone of

efforts to enhance differentiation between both dimensions of the Neighbourhood. As such it is a

complementary framework to the ENP, as well as to bilateral relationships and other regional

initiatives.141

A short clarification is due here. The EaP reaches out across both the bilateral and multilateral

tracks, with the former consisting of the Comprehensive Institution Building Programme

(CIB)142, which supports the implementation of commitments in the respective AAs in terms of

administrative capacity143. The CIB was financed initially by the ENPI and currently by the

ENI.144

Moving on to the multilateral track, the EaP provides for a framework for “cooperation activities

and open and free dialogue serving the objectives of the Partnership145”, providing new fora for

multilateral high-level meetings along four thematic platforms for cooperation146: 1) Democracy,

good governance and stability; 2) Economic integration and convergence with EU policies;

3)Energy security; and 4) contacts between people147.

140 Communication From The Commission To The European Parliament And The Council, Eastern Partnership, 3

December 2008, COM(2008) 823 final, 2. 141 COM(2008) 823 final, supra ref. 140, 5. 142 COM(2008), 823 final, supra ref. 140, 3. 143 COM(2008), 823 final, supra ref. 140, 4. 144 G. GROMADZKI, The Eastern Partnership after Five Years, supra ref. 72, 7-8. 145 Council of the European Union (2009) Joint Declaration of the Prague Eastern Partnership Summit, Prague, 7

May 2009, 8435/09, 9. 146 N. GHAZARYAN, The fluid concept of ‘EU values’ in the neighbourhood: A change of paradigm from East to

South? in: S. POLI, The European Neighbourhood Policy: values and principles, Abingdon, Oxon, Routledge,

2016, 18. 147 COM(2008), 823 final, supra ref. 140, 11-12.

26

In terms of economic integration, an integral element of the EaP’s strategy is the promotion of

the DCFTAs148. Furthermore, the EaP’s multilateral component has made some progress for

instance in building parliamentary and civil society links149. Finally, the EaP covers sectoral

cooperation in a series of areas.

1.3.1.2 Union for the Mediterranean

The Union for the Mediterranean (UfM) is the forum for multilateral cooperation in the Southern

Neighbourhood. It comprises not only all EU Member States and the Southern Neighbourhood,

also Turkey and the Western Balkan countries, as well as Mauritania and Monaco.

As such, it is the successor of the Barcelona Process, a process characterised by ambitious

cooperation in the realms of security, economy, trade and culture.150 The UfM sought initially to

build upon the Barcelona Process by “upgrading the political level of the EU's relationship with

its Mediterranean partners; providing more co-ownership to our multilateral relations; and

making these relations more concrete and visible through additional regional and

sub-regional projects, relevant for the citizens of the region”151.

However, the UfM has seen a gradual turn towards intergovernmentalism, along with a measure

of restraint in its ambitions152. A consequence of the focus on a differentiated approach is that

early ambitious plans for regionalisation were to an extent put on the back burner. What emerged

was a compromise allowing for limited sub-regional cooperation153.

148 E. LANNON, P. VAN ELSUWEGE, The Eastern partnership: prospects of a new regional dimension within the

European neighbourhood policy, In: E. LANNON,, The European neighbourhood policy’s challenges, Brussels/New

York, P.I.E. Peter Lang, 2012, 293. 149 N. GHAZARYAN, The fluid concept of ‘EU values’ supra ref. 146, 19. 150 T. HENÖKL, A. STEMBERGER, EU Policies in the Arab World: Update and Critical Assessment, European

Foreign Affairs Review, 21, 2, 2016, 235. 151 Communication From The Commission To The European Parliament and The Council, Barcelona Process:

Union for the Mediterranean, COM(2008) 319 final, 5. 152 R. BALFOUR, EU political dilemmas in North Africa and the Middle East, supra ref. 88, 69. 153 J. C. VÖLKEL, More for More, Less for Less–More or Less: A Critique of the EU’s Arab Spring Response à la

Cinderella, European Foreign Affairs Review, 19, 2, 2014, 267-268.

27

Hence, the countries of the Southern Neighbourhood can only point to modest achievements

within the framework of the UfM in recent years, notably the role of the Civil Society Forum

(CSF), created in 2009, but progress overall could be assessed as limited154.

Admittedly, there is some asymmetry between the EaP and the UfM. The latter remains

multilateral and inter-governmental, as well as more heterogenous and detached from the ENP,

while the latter is more directly linked to the ENP and based on a bilateral-new multilateral

approach155.

1.3.1.3 Black Sea Synergy

The Black Sea Synergy is a regional cooperation initiative It aims to strengthen cooperation

between countries of the Black Sea region in a particular sectors, such as the environment,

marine policy, energy, and transport. It focuses on sectoral cooperation and does not include all

Member States156.

1.3.1.4 Other multilateral instruments.

Completing the multilateral track are the instruments of Interregional cooperation and Cross-

Border Cooperation (CBC). The former consist primarily of Technical Assistance and

Information Exchange and Twinning Instrument (TAIEX) and Support for Improvement in

Governance and Management (SIGMA),and of these are exclusively devoted to technical

assistance157. CBC is a series of cooperation programmes taking place in regions where one or

more Member States and one or more Neighbourhood partners share a border. CBC was largely

154 N. GHAZARYAN, The fluid concept of ‘EU values’, supra ref. 146, 22. 155 P. MILTNER, The Union for the Mediterranean and the Eastern Partnership: A Comparative Analysis, Natolin

Best Master Thesis, 2010, 73-74,

https://www.coleurope.eu/sites/default/files/thesis/miltner.pdf 156 E. WESSELINK, R. BOSCHMA, European Neighbourhood Policy: History, Structure, and Implemented Policy

Measures, Tijdschrift voor economische en sociale geografie, Vol. 108, 1, 2017, 14-15. 157 E. LANNON, Politique européenne de voisinage supra ref. 4, 37.

28

inspired by the early Interreg Initiative, and is partly co-financed by Members States via the

European Regional Development Fund (ERDF)158 as joint operational programmes159.

1.3.2 Bilateral Instruments

1.3.2.1 Bilateral base agreements

The ENP is underpinned by a series of bilateral agreements which form the basis of the EU’s

bilateral relationship to the partner countries. In the context of the ENI, these agreements are a

precondition for the preparation of the Action Plans (AP). Given their tangential relationship to

the ENI, they will not be discussed in depth.

In the Eastern Neighbourhood, a new generation of Association Agreements (AA) have entered

into force in the case of the three willing countries of Georgia, Moldova and Ukraine. This new

generation of AA establish Joint Association Councils, which can take legally binding

decisions160. Furthermore, these AAs recognise the “European aspirations” of the partner

countries161.

The new generation of AAs replaces the Partnership and Cooperation Agreements (PCAs),

which were in place in the relationship with post-Soviet states in the early phases of the ENP162.

Currently, PCAs are still in force with Armenia, and Azerbaijan, while the PCA with Belarus is

frozen. Both the AAs and the PCAs are mixed agreements163. Alas, the PCAs lacked the

presence of institutions and the ability to adopt legally binding decisions164.

158 E. CANCIANI, European Financial Perspective and the European Neighbourhood Partnership Instrument,

Mediterranean yearbook. Barcelona, IEMed, 2007, 148-149. 159 Art. 6(1)(b), Reg. 1638/2006. 160 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 102. 161 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 102. 162 E. LANNON, P. VAN ELSUWEGE, The Eastern partnership: prospects, supra ref. 148, 291-292. 163 L. FALALIEIEVA, Legal Aspects of the European Neighbourhood Policy, supra ref. 20, 64. 164 E. LANNON, P. VAN ELSUWEGE, The Eastern partnership: prospects, supra ref. 148, 306.

29

In the Southern Neighbourhood, the counterpart of the PCAs are the Euro-Mediterranean

Association Agreements (EMAAs), of which seven were signed in the context of the Barcelona

Process (with Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, and Tunisia). These cover free

trade in industrial goods and are an element of the very early ambitious policy with regard to the

Mediterranean, which characterised the Barcelona Process165. Unlike the PCAs, the EMAAs

provide for institutions which can adopt legally-binding decisions166. Interestingly, legislative

approximation in some of the EMAAS includes mutual approximation clauses, which on the one

hand creates a less asymmetrical relationship between the EU and partner countries such as Israel

and Egypt. but on the other hand are not particularly realistic167. The seven original EMAAs

remain still in place.

1.3.2.2 DCFTAs

As an important innovation of the ENP in the recent years, the Deep and Comprehensive Free

Trade Agreements/Areas (DCFTAs) are worth discussing slightly more in depth. As previously

mentioned, the DCFTAs are an innovation of the second phase of the ENP, as part of the

Commission’s strategy to further commercial and economic integration in 2006 in the “On

strengthening the European Neighbourhood Policy” communication168. and were given an

enhanced role after the 2011 revision. They are a part of the new generation of trade agreements,

purportedly more ambitious than traditional FTAs,169 and specific to the Neighbourhood. These

agreements ultimately envisage the integration of neighbours into a Deep and Comprehensive

Free Trade Area (also DCFTA), partially integrated to the EU internal market170.

In the DCFTA’s name, Deep stands for the notion that integration should go further than the

liberalisation of industrial and agricultural goods and focuses primarily on the removal of Non-

165 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 97. 166 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 98. 167 A. MATTA, The EU’s differentiated integration frameworks: legislative approximation and lessons for the

Eastern Partnership in: GSTÖHL, S., The European Neighbourhood Policy in a comparative perspective: models,

challenges, lessons. Abingdon, Oxon, Routledge, 2016, 207. 168 COM(2006) 726 final, supra ref. 23. 169 G.VAN DER LOO, Mapping out the scope and contents of the DCFTAs with Tunisia and Morocco, Euromesco

Series, 28, 2016, 17. 170 R. PETROV, The Principle of Good Neighbourliness, supra ref. 139, 298.

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Tariff barriers171. Comprehensive refers in turn to all agricultural products and services and

stems from Art. XXIV GATT: substantially all trade172. Moreover, the DCFTAs include several

legislative approximation clauses173. In spite of some initial uncertainty, it has been put forward

that DCFTAs have proved some of the most innovative instruments and they have been

particularly effective in implementing the objectives of the ENP174. One reason is that the

DCFTAs amount to a shift from soft law instruments to hard law ones175. This is a welcome

development, since the ENP’s soft law approach arguably doesn’t offer enough clarity about the

roadmap for alignment, the costs involved and the benefits to be enjoyed by closer links with the

Union176. Furthermore, the move towards a consolidation of hard law instruments via the

DCFTAs, notably in their new dispute settlement mechanisms, should facilitate legislative

approximation177.

The DCFTAs are also a product of the conditionality approach, linking economic integration

with the question of values178. Hence, the DCFTAs are another feature of the ambitious approach

which characterised the ENP before the 2015 Review. Keeping up with the EU’s overarching

strategy of fomenting open regionalism to advance effective multilateralism, the DCFTAs should

pave the way for an ambitious Neighbourhood Economic Community in the Eastern

Neighbourhood179, and help further the early ambitious goals set out in the Barcelona Process for

the Mediterranean.

1.3.2.2 Action Plans (AP)

Before all else, Action Plans (AP) are not strictly bilateral instruments. As negotiated and tailor-

made documents, “based on the [respective] country’s needs and capacities, as well as their and

171 E. LANNON, Entry into force, supra ref. 39, 231. 172 E. LANNON, Entry into force, supra ref. 39, 231. 173 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 103. 174 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 104-106. 175 A. MATTA, The EU’s differentiated integration frameworks, supra ref. 167, 208. 176 G. HARPAZ, Approximation of laws under the European Neighbourhood Policy: the challenges that lie ahead,

European Foreign Affairs Review, 19, 3, 2014, 434. 177 A. MATTA, The EU’s differentiated integration frameworks, supra ref. 167, 212. 178 P. VAN ELSUWEGE, G. VAN DER LOO, Continuity and change, supra ref. 83, 104. 179 E. LANNON, P. VAN ELSUWEGE, The Eastern partnership: prospects, supra ref. 148, 295.

31

the EU’s interests. They jointly define an agenda of political and economic reforms by means of

short and medium-term (3-5 years) priorities180.

The APs are technically unilateral documents, whose content is negotiated bilaterally and

therefore customised to both the partner country’s and the EU’s priorities. They are not legally

binding, nor do they require negotiation mandates181. We can therefore speak of the unilateral-

bilateral character of the APs182. As such, they are the methodological successor of the Accession

Partnerships of the enlargement methodology183.

The AP possess three functions184. First, the priorities articulated in the APs serve as a key

reference in the ENI, as was previously the case under the ENPI. Their function is to provide a

“key point of reference for setting the priorities for Union support”185 in the regulations. As

mentioned before, APs require a previous AA, PCA or DCFTA to have been adopted186. This is

their preparatory function187.

Second is the interpretative function of the APs188. Given that the APs are linked to the bilateral

base agreements, they are highly indicative of the EU’s differentiated relationship to its

Neighbours189, and form the basis of the differentiated approach in the ENP.

Finally, the “A new response to a changing Neighbourhood” communication set out the strategy

to be followed by the APs under the revised ENP of 2011. The APs should therefore formulate

180 COM(2011) 200 final, supra ref. 24, 14. 181 T. BÖRZEL, V. VAN HÜLLEN, One voice, one message, but conflicting goals, cohesiveness and consistency in

the European Neighbourhood Policy, Journal of European Public Policy, Vol. 21, 7, 2014, 1036. 182 E. LANNON, Instruments, principes et méthodologie de la Politique européenne de voisinage, supra ref. 2, 44. 183 M. CREMONA, C. HILLION, L’Union fait la force?, supra, ref. 9, 13. 184 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy : a paradigm for

coherence, New York, NY: Routledge, 2012, 200. 185 Art. 3(1) Reg. 1638/2006, Art. 3(2), Reg. 232/2014. 186 P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy: the principle of differentiation

and its consequences. In: E. LANNON, The European neighbourhood policy’s challenges, Brussels/New York,

P.I.E. Peter Lang, 2012, 64. 187 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 200. 188 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 200. 189 P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy, supra ref. 186, 64.

32

guidelines focused on short- and medium term priorities, with emphasis on key deliverables190,

establishing their steering function191.

1.3.3 Unilateral Instruments

The unilateral track of the ENP supports cooperation via the provision of financial and technical

assistance. Its current primary instrument is the ENI, which implements this assistance in order

to advance the objectives of the ENP192.

Having traced the evolution of the ENP and situated it in the constitutional order of the EU, a

third dimension is necessary before proceeding to evaluate the ENI, namely the evolution of the

process of financial implementation of the ENP. A historical overview of the technical aspects

and the funding priorities of these financial instruments will provide a clearer look at the gradual

development of the unilateral track of the ENP.

Two clarifications are essential here. First of all, one has to take into account that the EU’s

budgetary programming cycle, financial implementation will not always “match” with the

current political objectives of the ENP193. This is currently the case, after the “drastic

alteration”194 of the ENP’s objectives, and in expectation of the 2017 mid-term review.

A second clarification concerns the terminology of the budget. The implementation of the

financial instruments makes a distinction between allocations, commitments, and disbursements.

First, allocations detail spending plans not yet committed to specific priorities. Second,

commitments are entries in the budget actually linked to specific priorities. Finally,

disbursements detail the actual amount spent on the programmes in question195.

190 COM(2011) 303 final, supra ref. 25, 19. 191 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 200. 192 Art. 1, Reg. 232/2014. 193 European Parliament Research Service, La Politique européenne de voisinage, analyse approfondie (FR),,

December 2016 PE 595.865, 23.

194 L. DELCOUR, L., The ENP Review: Beyond stocktaking supra ref. 50, 2. 195 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 326.

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1.3.3.1 Early financing of the ENP: TACIS and MEDA

The ENP launch in 2003 coincided with the programming period 2000-2006. This means that for

its initial phase no specialised mechanisms of financial assistance were in place to complement

the policy. Therefore, in its initial phase, the ENP was financed overwhelmingly, but not

exclusively196, via two already existing financial programmes split along geographical lines,

respectively the Mesures D'accompagnement/Middle East Development Assistance (MEDA) for the

Southern Neighbourhood,197 and the Technical Assistance to the Commonwealth of Independent

States and Georgia (TACIS)198 for the Eastern Neighbourhood.

Consistently with the ambitious multilateral approach of the Barcelona Process, for which it was

designed, the MEDA (specifically MEDA II199) focused primarily on the multilateral approach

and lacked a strong bilateral component200. Furthermore, the focus of MEDA lay on

administrative and technical cooperation, and much less on democracy promotion201.

MEDA II allocations for the period 2002-2006 amounted to 2.264 bn. €202 and only six of the

current ten Southern Neighbourhood countries were beneficiaries thereof (Algeria, Egypt,

Jordan, Lebanon, Morocco, and Tunisia).

Conversely, TACIS (specifically TACIS II) was primarily an instrument of technical assistance

launched after the collapse of the Soviet Union in 1991. It lay emphasis on the transfer of know-

how to government agencies203, focusing in turn less on economic reform.204. Nor did it allow for

196 Notably the INTERREG mechanism for cross-border cooperation. 197 European Parliament Research Service, La Politique européenne de voisinage, supra ref. 193, 23.

198 Council Regulation (EC, Euratom) No 99/2000 of 29 December 1999 concerning the provision of assistance to

the partner States in Eastern Europe and Central Asia, OJ L 12, 18.1.2000. 199 Council Regulation (EC) No 2698/2000 of 27 November 2000 amending Regulation (EC) No 1488/96 on

financial and technical measures to accompany (MEDA) the reform of economic and social structures in the

framework of the Euro-Mediterranean partnership, OJ L 311, 12.12.2000. 200 E. WESSELINK, R. BOSCHMA, European Neighbourhood Policy: History, Structure, and Implemented Policy

Measures, supra ref. 156, 5-6. 201 B. COSKUN, Values and security, supra ref. 18, 88. 202 Annex, Fig. 2. 203 T. A. BÖRZEL, B. LEBANIDZE, European Neighbourhood Policy at the Crossroads: Evaluating the Past to

Shape the Future, MAXCAP Working Paper No. 12, July 2015, 15. 204 E. WESSELINK, R. BOSCHMA, European Neighbourhood Policy: History, Structure, and Implemented Policy

Measures, supra ref. 156, 6.

34

support for investment projects205, or develop a coherent regional approach, focusing instead on

specific sectoral needs206.

Whereas the six Eastern Neighbourhood countries were detached from TACIS, the programme

remained in place for the post-Soviet countries of Central Asia. TACIS allocations for the six

Easter Neighbourhood countries between 2002-2006 amounted to 467 Mio. €207.

What both MEDA and TACIS had in common that they were much less differentiated208, and

that they only covered external activities209. Crucially, both instruments included essential

elements clauses210, which entailed a burdensome suspension process and affected the

mechanisms’ reactivity211.

In sum, MEDA and TACIS were not specifically designed for the financial implementation of

the ENP. Instead, they were adapted from previously existing programmes. This meant that these

were occasionally an awkward fit to the objectives of the ENP during its first phase, which

signalled the need for a specialised mechanism of financial assistance.

1.3.3.2 The European Neighbourhood Partnership Instrument (ENPI)

The advent of a new programming period with the MFF 2007-2013 allowed finally for a

specialised, consolidated financial instrument for the ENP. With The European Neighbourhood

Partnership Instrument (ENPI), financial implementation for the ENP was brought together

under one specialised hard law instrument.

205 E. CANCIANI, European Financial Perspective, supra ref. 158, 152. 206 cf. L. DELCOUR, H. DUHOT, Bringing South Caucasus closer to Europe? Achievements and challenges in

ENP implementation, Natolin Research Papers, 2011, 5-6. 207 Annex, Fig. 2. 208 I. SANDU, G. DRAGAN, Financing The EU Neighbourhood-Key Facts And Figures For The Eastern

Partnership, CES Working Papers, 8, 3, Iasi, 2016, 468. 209 D. MAHNCKE, S. GSTÖHL, Europe's near abroad, supra ref. 5, 40. 210 E. LANNON, Politique européenne de voisinage supra ref. 4, 25. 211 cf. E. LANNON, Politique européenne de voisinage supra ref. 4, 25-26

35

The ENPI regulated financial assistance to the Neighbourhood between 2007-2013. Regulation

1638/2006212 was formally adopted on the basis of Art. 179 and 181a TEC (currently Art. 209

and 212 TFEU), concerning development cooperation and economic, financial and technical

cooperation with Third countries.

By linking to the bilateral base agreements, the ENPI contributed to shifting the focus to the

bilateral framework213, a consistent trend in the ENP214.

The primary scope of assistance of Reg. 1638/2006. followed the broader objectives of

promoting “enhanced cooperation and progressive economic integration”215. To this effect, the

regulation identified a wide range of 29 thematic policy objectives216.

The ENPI regulation referred to the founding values of the EU and sets out explicitly to promote

commitment to these in the Neighbourhood.217. However, the recital of the ENPI regulation

referred instead to commitment to “common values and principles” 218. As we shall see, this

ambiguity about the nature of values was retained in the ENI.

Art. 7(2) of the ENPI regulation codified the principle of differentiation for the first time,

introducing five criteria upon which allocations for each programme shall be based: 1) needs, 2)

ambition, 3) progress, and 4) absorption capacity219. These differentiation criteria drive the

conditional approach in the ENPI regulation and were also retained in the ENI.

212 Regulation 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general

provisions establishing a European Neighbourhood and Partnership Instrument, OJ L 310, 9.11.2006. 213 CHEVREAU, A., “Political, social and economic impacts of EU policies with its Mediterranean partners – focus

on investment”, European Parliament, Study DG-External Policies, 2014, PE 457.128, 2014, 25. 214 Art. 2(1), Reg. 1638/2006. 215 Art. 2(1), Reg. 1638/2006. 216 Art. 2(2), Reg. 1638/2006. 217 Art. 1(3) Reg. 1638/2006, cf. P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy,

supra ref. 186, 77. 218 Recital 8, Reg. 1638/2006. 219 Art. 7(2), Reg. 1638/2006.

36

Negative conditionality was also a feature of the ENPI adopted from the Accession Partnerships

of the enlargement methodology220. Art. 28 of the ENPI regulation contained a suspension

clause221, for those situations where a partner country failed to observe the “values of liberty,

democracy, respect for fundamental freedoms and the rule of law”222.

Furthermore, the ENPI regulation contained an urgency clause which permitted an ad hoc

review of strategy papers “in the event of crises or threats to democracy, the rule of law, human

rights and fundamental freedoms”223. The urgency clause is a supple alternative to the

burdensome suspension procedures224. Hence, before the advent of the less for less approach in

the ENI, negative values conditionality was already feature of the ENPI225.

The ENPI Regulation also signalled the launch of the Cross-Border Cooperation (CBC)

component of the ENP.226 This has already been introduced in the multilateral instruments.

Implementation of the ENPI was achieved by means of two soft law instruments, Country

Strategy Papers (CSP), which reflected the policy framework and the objectives in the APs and

National Indicative Programmes (NIP), which listed financial allocations and policy objectives

for each country227.

Furthermore, the ENPI ensued in the creation of two twin regional framework (“umbrella”)

Programmes, the Eastern Partnership Integration and Cooperation Programme (EaPic) and

Support for Partnership, Reforms and Inclusive Growth (SPRING) for the Southern

Neighbourhood. The ENPI also provided for launch of a new funding instrument, the

Neighbourhood Investment Facility (NIF), for interregional projects.

220 M. CREMONA, C. HILLION, L’Union fait la force?, supra, ref. 9, 13. 221 Art. 28, Reg. 1638/2006. 222 Art. 28(1) jo. Art. 1(3), Reg. 1638/2006. 223 Art. 7(6), Reg. 1638/2006. 224 E. LANNON, Politique européenne de voisinage supra ref. 4, 25. 225 P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy, supra ref. 186, 77. 226 Art. 6(1)(a)(ii), Reg. 1638/2006. 227 Art. 7(1) Reg. 1638/2006.

37

Financial allocations to the ENPI for 2007-13 amounted to 11.18 bn. €, with 95% allocated to

country and multi-country programmes and 5% to CBC.228 Commitments in the ENPI amounted

to around 13.4 bn. €, of which 9.8 bn. €. Around 73% of the commitments was ultimately

disbursed. 229

Assessing the ENPI’s effect, the consolidation of Neighbourhood assistance under one

instrument led to some gains in efficiency. Sectoral evaluations of the ENPI came to the

conclusion that consolidating financial assistance to the Neighbourhood under one umbrella

produced a “cross-fertilisation effect”230, particularly in relation to aid delivery mechanisms in

support of reform231.

However, the lengthy list of 29 thematic priorities in the ENPI lacked a clear hierarchy, which

made it difficult to establish priorities232. Furthermore, the principle of differentiation was not

sufficiently conceptualised. As for programming documents, the CSP under the ENPI followed

the methodology of development cooperation and thus required extensive and burdensome

analysis of a country’s situation, which made the process less responsive233.

In conclusion, In replacing the fragmented regimes of MEDA and TACIS234, the introduction of

the ENPI was an important step towards a coherent approach. Whilst the ENPI introduced

considerable innovations, it was also beset by several shortcomings.

228 Art. 29 (1), Reg. 1638/2006. 229 Annex, Fig.3 230 COM(2011) 303, supra ref. 25, 28-29. 231 COM(2011) 303, supra ref. 25, 28-29. 232 E. LANNON, Politique européenne de voisinage supra ref. 4, 26. 233 Proposal for a regulation of the European Parliament and of the Council establishing a European Neighbourhood

Instrument, Brussels, 7 December 2011, COM(2011) 839 final, 3. 234 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 298.

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2. The European Neighbourhood Instrument (ENI)

2.1 Introduction

On the basis of the two communications which formed the 2011 revision of the ENP, the

Commission presented a proposal for a regulation adapting the financial assistance mechanism to

bring the EU’s policy implementation in line with its new objectives235. Following the ordinary

legislative procedure, and after some substantial amendments236, Regulation 232/2014 was

adopted in March 2014, replacing the ENPI with the the ENI.

Analogously to the ENPI, the ENI Regulation covers a six-year programming period 2014-2020,

consistent with the current MFF. Taking this into consideration, the publication of a new review

of the ENP one year into after the entry into force of the new financial implementation

instrument is rather incongruent from a financial programming perspective237. Subsequently,

until the mid-term review of 2017, the ENI will have to remain in place in its current form238,

that is, unaligned from the policy objectives of the 2015 Review.

2.2 Regulation 232/2014

Regulation 232/2014 replaces the ENPI with the ENI. Though Art. 8 TEU is declared as

providing “the general thrust and the basis for the ENP”, its former legal basis are Art. 209(1)

TFEU and Art. 212(2) TFEU239. As such, it follows the ordinary legislative procedure, under

which the Parliament is co-equal to the Council240.

235 Proposal COM(2011) 839 final, supra ref.233, 3. 236 European Parliament, Report on the proposal for a regulation of the European Parliament and of the Council

establishing a European Neighbourhood Instrument, 6 December 2013, A7-0449/2013. 237 E. LANNON, More for more or less for less: from the rhetoric to the implementation of European

Neighbourhood Instrument in the Context of the 2015 ENP review, IEMed Mediterranean Yearbook. Barcelona,

Spain: IEMed, 2015, 220–224. 238 E. LANNON, The 2015 review of the European neighbourhood policy, supra ref. 51, 75. 239 Proposal COM(2011) 839 final, supra ref. 233, 10. 240 Art. 212(2) TEU.

39

A first innovation of the ENI regulation241 is that values are formulated more elaborately: “The

Union shall develop “a special relationship242 founded on peace and security, mutual

accountability and a shared commitment to the universal values of democracy, the rule of law

and respect for human rights in accordance with the TEU243”. Moreover, when referring to the

founding values of the EU, the ENI regulation refers explicitly to “the indivisibility of Human

Rights, and the principles of equality and the rule of law”244.

A purported second innovation of Regulation 232/2014 is a “much higher level of differentiation

among partners”245. Art. 4(1) of the regulation indicates the elements to be taken into account to

conduct this differentiated approach. These are:

a) needs, using indicators such as population and level of development;

b) commitment to and progress in implementing mutually agreed political,

economic and social reform objectives;

c) commitment to and progress in building deep and sustainable democracy;

d) partnership with the Union, including the level of ambition for that

partnership;

e) absorption capacity and the potential impact of Union support under this

Regulation246.

However, with the exception of criterium c) deep and sustainable democracy, the differentiation

criteria of Art. 4(1) of the ENI regulation mirror the criteria of the ENPI regulation.247

Interestingly, the differentiation criteria likely follow a hierarchy.

241 E. LANNON, Entry into force, supra ref. 39, 229. 242 cf. Art. 8 TEU. 243 Art. 1(1), Reg. 232/2014. 244 Art. 1(4), Reg. 232/2014. 245 Proposal COM(2011) 839 final, supra ref. 233, 2. 246 Art. 4(1), Reg. 232/2014. 247 Art. 7(2), Reg. 1638/2006.

40

Another element of the purported enhanced differentiation under the ENI regulation is the

introduction of Multi-Country Umbrella Programmes. These should amount to around 10% of

the financial package of the ENI, with the actual amounts allocated on the basis to commitment

to the deep democracy criteria and the “implementation of the agreed reform objectives”248.

A third innovation pertains to conditionality, which had been a feature of the ENPI and part of

the ENP methodology since its inception. In its proposal for the ENI regulation, the Commission

argued that it wasn’t sufficiently elaborated and rather a blunt instrument, and therefore had been

difficult to apply consistently249.

The ENI regulation transposes the more for more principle from the 2011 revision, which adapts

the allocation of resources to partner countries in relation to their progress in implementing

jointly agreed objectives in the AP, thereby rewarding the most ambitious reformers 250, and

incentivising partners to reform251.

Just as partner countries should be incentivised to advance reforms, an approach based on

conditionality mandates that they should be disincentivised from stalling on their progress, or a

fortiori for regressing on reform. The other side of the coin of the more for more principle is the

less for less principle, articulated in Art. 4(2) of the regulation: “Support may be reconsidered in

the event of serious of persistent regression”252.

Art. 4(3) of the ENI regulation goes on further to clarify that negative conditionality does not

apply to civil society, which mirrors the provision on Art. 28(2) of the ENPI regulation.

However, in contrast to the provision in Art. 28(1) of the ENPI regulation, the ENI regulation no

longer envisions the possibility of suspending financial assistance. This is surprising. One would

expect this feature to have been retained as part of a comprehensive incentive-based approach. If

248 Art. 7(6), Reg. 232/2014. 249 H. KOSTANYAN, The EEAS and the European neighbourhood policy: a change in rhetoric or reality? CIES

Neighbourhood Policy Papers, Center for International and European Studies at Kadir Has University, 9, 2013, 3. 250 Proposal COM(2011) 839 final, supra ref. 233, 2. 251 Art. 4(2), Reg. 232/2014. 252 Art. 4(2), Reg. 232/2014.

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this was due to concerns for the burdens of suspension, the urgency clause of the ENPI could

also have been retained. In any event, the EP retains its prerogative under the ordinary legislative

procedure to suspend assistance253.

A fourth innovation is a more focused scope of the instrument, replacing the previous list of 29

thematic areas with a non-exhaustive list of six objectives, namely:

(a) promoting human rights and fundamental freedoms, the rule of law, principles of equality and the fight

against discrimination in all its forms, establishing deep and sustainable democracy, promoting good

governance, fighting corruption, strengthening institutional capacity at all levels and developing a thriving

civil society including social partners;

(b) achieving progressive integration into the Union internal market and enhanced sectoral and cross-

sectoral cooperation, including through legislative approximation and regulatory convergence towards

Union and other relevant international standards, and improved market access including through deep and

comprehensive free trade areas, related institution-building and investment, particularly in

interconnections;

(c) creating conditions for the better organisation of legal migration and the fostering of well-managed

mobility of people, for the implementation of existing or future agreements concluded in line with the

Global Approach to Migration and Mobility, and for the promotion of people-to-people contacts, in

particular in relation to cultural, educational, professional and sporting activities;

(d) supporting smart, sustainable and inclusive development in all aspects; reducing poverty, including

through private-sector development, and reducing social exclusion; promoting capacity-building in

science, education and in particular higher education, technology, research and innovation; promoting

internal economic, social and territorial cohesion; fostering rural development; promoting public health;

and supporting environmental protection, climate action and disaster resilience;

(e) promoting confidence-building, good neighbourly relations and other measures contributing to security in

all its forms and the prevention and settlement of conflicts, including protracted conflicts;

(f) enhancing sub-regional, regional and European Neighbourhood-wide collaboration as well as cross-

border cooperation.254

253 Statement by the EP on the suspension of assistance, Reg. 232/2014. 254 Art. 2(2), Reg. 232/2014.

42

In order to assess progress in the above-mentioned objectives, the Regulation introduces

benchmarks to evaluate the achievement of these specific objectives, linked to international

indicators, regulatory convergence, and relevant agreements and cooperation actions255.

A simplified list of objectives seeks to strike “a balance between flexibility of the instrument and

focus on the policy objectives and areas of cooperation256, thereby purportedly enhancing

horizontal coherence (infra, part 2.5.2.3). The new list of objectives mirrors the priorities listed

in the A New Response to a Changing Neighbourhood Communication257. However, the problem

of a lack of hierarchy of objectives in the ENPI is not solved in the ENI.

A fifth innovation concerns programming documents. A problematic issue under the ENPI was

that implementation provisions therein were partly outdated258. The CSPs and NIPs “had to

specify the detailed policy objectives and measures for implementation in the framework of the

Action Plans”259, hindering horizontal coherence between external instruments. The ENI

regulation creates a single programming tool for bilateral support in the form of a new unilateral

instrument of bilateral assistance, the Single Support Framework (SSF),260 designed to simplify

the programming process.

The SSF shall “review progress in relation to the policy objectives” and “set out the objectives

and priorities for support”, “indicate expected results”, as well as “set out the indicative level of

funding, broken down by priority”261.

The SSF relies on the existence of key points of reference, such as APs or other equivalently

agreed documents, such as association agendas.262 In practice, the SSFs contain no more than

three priority sectors263, derived from the negotiated APs or equivalents (such as Association

255 Art. 2(3), Reg. 232/2014. 256 Proposal COM(2011) 839 final, supra ref. 233, 11. 257 COM(2011) 303 final, supra ref. 25. 258 Proposal COM(2011) 839 final, supra ref. 233, 2. 259 I. TÖMMEL, The New Neighborhood Policy of the EU, supra ref. 12, 29. 260 Art. 7(2), Reg. 232/2014. 261 Art. 7(2), in fine, Reg. 232/2014. 262 Art. 7(2) jo. 3(2), Reg. 232/2014. 263 Cf. Annex, Fig. 5.

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Agendas), along with separate financial provisions for technical assistance and twinning, and for

support to civil society264.

Where no such document is in place, a CSP and a MIP will be put in place instead of a SSF265,

following the old methodology of the ENPI. The difference between these and the SSFs is that

the priorities are not derived from the APs or equivalent and that these only have to take the

partner countries’ strategies into account insofar as these are consistent with the ENP266. This is

currently the case only for Belarus and Libya. Syria currently has no programming documents.

For multi-country programmes the key points of reference are the Strategy Papers (SPs) and

Multi-annual Indicative Programmes (MIP), which seek to involve the fora of regional

cooperation, the EaP and UfM, whenever possible linking assistance to the objectives set out

therein267.

A sixth innovation of the ENI regulation is the addition of new provisions to Cross-Border

Cooperation (CBC), and while the provisions in place in the ENPI arguably worked well, some

provisions were added268, for instance a relaxation of the criteria for geographical eligibility in

duly justified cases269.

A seventh innovation, the ENI seeks to strengthen the links between internal instruments and

policies of the EU and the ENP, promoting “complementarity, coherence and mainstreaming of

EU policy areas”270. To this end, provisions to ensure coherence between the EU and Member

States, between different institutional actors of the EU, and between policies and instruments is

further elaborated271.

264 European External Action Service – European Commission, DG Development Cooperation, Instructions for the

Programming of the European Neighbourhood Instrument (ENI) – 2014-2020, 6.

https://ec.europa.eu/europeaid/sites/devco/files/ENI%20programming%20instructions.pdf 265Instructions for the Programming of the ENI, supra ref. 264, 5. 266 Art. 7(3)(a), Reg. 232/2014. 267 Art. 7(4), Reg. 232/2014. 268 Proposal COM(2011) 839 final, supra ref. 233, 2. 269 Art. 8(3), Reg. 232/2014. 270 Proposal COM(2011) 839 final, supra ref. 233, 2. 271 Art. 5, Reg. 232/2014.

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Finally, the annex to the ENI stipulates the list of priorities and indicative allocations272.

Currently these are:

Bilateral programmes, up to 80%

Multi-country programmes, up to 35%

CBC, up to 5%273

In accordance with Art. 290 TFEU, the list of priorities in Annex II can be revised by the

Commission through a delegated act274.

A compulsory amendment of Annex II is scheduled after the mid-term review275. Delegated acts

can be vetoed by the EP and by the Council within two months of its adoption276.

This delegation of power can be revoked by the EP or by the Council277. Furthermore, Annex II

contains a declaration by the Commission stating that it will conduct strategic dialogue with the

Parliament prior to the programming of the regulation, in accordance with Art. 14 TEU278.

For the sake of completeness, regulation 232/2014 also removes Russia as a formal beneficiary

of the ENI, a status it enjoyed under the ENPI. Instead it becomes a limited beneficiary of CBC,

regional cooperation and multi-country initiatives279. The Regulation refers to Russia’s improved

finances and to its new status as a strategic partner280. It must be remarked that as a consequence

of sanctions against Russia following the annexation of Crimea, any enhanced cooperation

within the framework of the ENP has been suspended281.

272 Annex II, 2., Reg. 232/2014. 273 Annex II, 3, Reg. 232/2014. 274 Recital 25, Reg. 232/2014. 275 Art. 13, Reg. 232/2014. 276 Art. 14(4), Reg. 232/2014. 277 Art. 14(3), Reg. 232/2014. 278 Annex II, Reg. 232/2014. 279 Art. 1(3), Reg. 232/2014. 280 Proposal COM(2011) 839 final, supra ref. 233, 2. 281 European Parliament Research Service, La Politique européenne de voisinage, analyse approfondie, supra ref.

193, 14.

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For 2014-2020 the financial allocation to the ENI amounts to 15.4 bn. €282, an increase of

37.5%283 from allocations under the ENPI for the programming period 2007-2013.

2.3 Regulation 236/2014

An innovation of the post-Lisbon institutional set-up is that all EU instruments of external

assistance, such as the ENI, are complemented by a horizontal financial Regulation which lays

down the common rules and procedures for all of these instruments284. This is Reg. 236/2014.

As well as the ENI, the regulation also covers the European Instrument for Democracy and

Human Rights (EIDHR), the Development Cooperation Instrument (DCI), the Instrument

contributing to Stability and Peace (IcSP), the Instrument for Pre-accession Assistance (IPA),

and the Partnership Instrument (PI)285.

Regulation 236/2014 refers to the indicative programming documents for each of the instruments

of external actions covered therein. These specify the objectives pursued and expected results, as

well as methods of implementation, budget indicative timetable, monitoring and eventual support

measures286. Specifically for the ENI, these are the SSF, and the MIP, where the former cannot

be put in place. Based on these indicative documents, the Commission shall adopt Annual Action

Programmes (AAP) following the same specifications and outlining implementation for the year

in question287. These take the form of a Commission decision.

Furthermore, the horizontal financial regulation stipulates the activities for which expenditure

may be covered in the implementation of the ENI288. These link to the general objectives in Art.

2(2) of the ENI regulation.

282 Art. 17(1), Reg. 232/2014. 283 In 2016 prices, cf. European Parliament Research Service, Briefing, European Neighbourhood Instrument,

October 2016, PE 593.485, 1.

http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/593485/EPRS_BRI(2016)593485_EN.pdf 284 Regulation 236/2014 of the European Parliament and the Council of March 11 2014 laying down common rules

and procedures for the implementation of the Union's instruments for financing external action, OJ L 77, 15.3.2014. 285 Recital 1, Reg. 236/2014, 286 Art. 2(1), Reg. 236/2014. 287 Art. 2(1), Reg. 236/2014. 288 Art. 3(1), Reg. 236/2014.

46

Analogously to Reg. 232/2014, the horizontal financial regulation lays particular emphasis on

conditionality and differentiation in its general provisions. Reg. 236/2014 identifies

commitment, record and progress on “democracy, human rights and the rule of law”289 as a key

determinant, making also reference to the specific context of partner countries, “taking into

account situations of fragility”290.

Reg. 236/2014 also includes procedures for the Commission to monitor its actions, allowing for

the evaluation of the impact and effectiveness of programming, allowing as well for external

evaluations291. Moreover, the horizontal financial regulation stipulates that annual reports shall

be submitted to the Parliament and the Council on the achievement of the objectives of each

external assistance regulation, including the ENI regulation292.

The horizontal financial regulation also lays out eligibility criteria for cooperation with third

countries in the context of multi-country and CBC programmes293.

Finally, Regulation 236/2014 mandates a mid-term Review on the implementation of all relevant

instruments, to be submitted no later than 31 December 2017294.

2.4 Multiannual Financial Framework 2014-2020

The Multiannual Financial Framework (MFF) is the document which sets out the EU’s spending

priorities for a seven-year period.295 It is laid out in a Council Regulation. For the programming

period 2014-2020 the relevant regulation is Reg. 1311/2013 (Council)296.

289 Art. 4(2), Reg. 236/2014. 290 Art. 4(2), Reg. 236/2014. 291 Art. 12, Reg. 236/2014. 292 Art. 13, Reg. 236/2014. 293 Art. 9(1)(b), Reg. 236/2014. 294 Art. 17, Reg. 236/2014. 295 European Commission, “The Multiannual Financial Framework: The Proposals on External Action Instruments”,

MEMO/11/878, 7 December 2011, 1. 296 Council Regulation (EU, Euratom) No. 1311/2013 of 2 December 2013, para 94.

laying down the multiannual financial framework for the years 2014-2020, OJ L 347, 20.12.2013.

47

The ENI forms part of Heading IV: Global Europe of the MFF 2014-2020 and comprises 23.2%

of all Heading IV allocations in the MFF for 2014-2020, making it the second most important

instrument, after the DCI,297 and 1.43% of the current financial envelope298.

Reg. 1311/2013 (Council) defines a series of overarching principles for all components of the

Global Europe heading: 1) A differentiated approach with different forms of cooperation, 2)

Concentration of spending, 3) More Flexibility, 4) Simplification of rules and 5) Greater focus

on Human Rights, democracy and good governance299.

Lastly, an important innovation of the 2014-2020 programming period concerns added

flexibility. For the first time in 2014-2020, the financing will provide for some of the funds to be

kept unallocated300 in order to be able to react more swiftly to changes on the ground301,

particularly in cases of humanitarian crisis. This will take the form of two layers of flexibility

cushions.

The first layer of flexibility is internal to the ENI and the MFF. This is the 10% allocated to

multi-country umbrella programmes302. The second layer are the Flexibility Instruments (FI),

which are placed outside of the MFF and cover external action303. This added flexibility comes

necessarily at the expense of predictability. Alas, the FI for 2014-2020 have already been used

up halfway through, leaving little budgetary room to manoeuvre304. Given that the 2015 ENP

Review planned for the creation of a ENI flexibility cushion for stability, this development is

discouraging.

297 Multiannual Financial Framework 2014-2020 as established by Council Regulation No 1311/2013 (excluding

adjustments), http://ec.europa.eu/budget/mff/lib/data/MFF2014-2020.xls 298 European Parliament Research Service, Briefing, European Neighbourhood Instrument, supra ref. 283, 2. 299 MEMO/11/878, supra ref. 295, 1. 300 R. BLOMEYER, S. PAULO, E. PERREAU, The budgetary tools for financing the EU external policy, European

Parliament Study, January 2017, PE 572.708, 16,

http://www.europarl.europa.eu/RegData/etudes/STUD/2017/572708/IPOL_STU%282017%29572708_EN.pdf 301 S. GÖRTZ, A. SHERRIFF, 1st Among Equals? The Instrument for Stability and Conflict Prevention and

Peacebuilding in the EU’s new financial perspective, Briefing Note 39, Maastricht: ECDPM, 2012, 7. 302 Art. 7(6), Reg. 232/2014. 303 R. BLOMEYER, S. PAULO, E. PERREAU, The budgetary tools for financing the EU external policy, supra ref.

300, 16. 304 P. BECKER, The EU budget's mid-term review: with its promising reform proposals, the Commission lays the

groundwork for the next, post-2020 budget, Stiftung Wissenschaft und Politik, SWP Comments 48, 2016, 2.

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In the same spirit of flexibility, other instruments of Heading IV can be implemented in the

Neighbourhood independently of the ENI. For instance, the EIDHR will fund thematic projects

in the Neighbourhood that do not feature in the APs, and do not always enjoy the approval of the

involved countries305.

2.5 Novelties of the ENI

2.5.1 Conceptualisation

Having discussed the formal or sensu stricto novelties put in place in the ENI regulation, there is

also a series of effects brought about by the regulation, which must also be taken into account as

thematic or sensu lato novelties of the ENI. This conceptual distinction is necessary for many

reasons.

First of all, the formal and thematic novelties of the ENI overlap only partially. Whereas

conditionality and differentiation are addressed explicitly in the ENI regulation, this is only

tangentially the case for coherence and naturally not at all in the case of politicisation.

Second, the novelties of the regulation have to be read in light of the evolving objectives of the

ENP, taking into account both the 2011 revision, on the basis of which the ENI regulation

originated, but also fully aware of the effects of the 2015 review in anticipation of the 2017 mid-

term Review.

Third, a comprehensive view of the novelties of the ENI requires a thorough look at its

associated programming documents, the corpus of soft law instruments which form the

framework of the ENP. These are in the first place APs and SSFs, but also Progress Reports (PR)

and Annual Action Programmes (AAP), which complement the programming process.

305 E. WESSELINK, R. BOSCHMA, European Neighbourhood Policy: History, Structure, and Implemented Policy

Measures, supra ref. 156, 9.

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Finally, an overview of the novelties of the ENI needs to be placed in the broader context of

processes of continuity and change, and in light of the normative basis of external action of the

EU.

Therefore, this review of the novelties of the ENI shall be conducted along the following

dimensions in order to come to a comprehensive evaluation of the ENI:

i) Coherence (consistency)

ii) Differentiation

iii) Conditionality

iv) Politicisation

v) Joint Ownership

2.5.2 Coherence (consistency)

Coherence (consistency) in external relations is embedded in Art. 21(3) TEU. An a priori

clarification is necessary here. In its English version, the Treaty of Lisbon refers in Art. 21(3) to

ensuring “consistency”. In other languages, however, the treaty refers to “coherence”306.

This distinction is not trivial. According to Van Elsuwege, coherence refers to: “the positive

obligation of ensuring synergy between the different elements of the EU’s action”, whereas

consistency refers to “the absence of contradictions between the various external policies”307.

However, based on a functional interpretation of the treaty, the broader, dynamic concept of

coherence is how the provision should be understood308.

306“Kohärenz”, “coherencia”, “cohérence”, etc. 307 P. VAN ELSUWEGE, EU external action after the collapse of the pillar structure. In search of a new balance

between delimitation and consistency. Common Market Law Review, 47, 4, 2010, 1013. 308 P. VAN ELSUWEGE, EU external action after the collapse of the pillar structure, supra ref. 307, 1014.

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The literature is certainly not of one mind on the matter of conceptualising coherence309.

However, the framework of coherence advanced by Van Vooren has proved itself very useful in

assessing the multiple functions involved therein.

Building up on Cremona’s previous work310, Van Vooren identifies three layers along which

coherence should be measured in the EU’s constitutional order and links them to constitutional

principles311. This means that whereas coherence is formally embedded in Art. 21(3), its remit

across the Treaty is broader:

i) Consistency, i.e. “rules which aim to avoid and resolve conflict” and relates to the

principles of pre-emption and supremacy Art. 3 and 40 TEU).312313

ii) Effective allocation of tasks, related undoubtedly to the principle of conferral of Art.

5 TEU.314

iii) Positive synergy between norms, actors and instruments, related to Art. 21(3) TEU,

but also to the duty of loyalty of Art. 4(3) TEU.315

Taking into account these three layers and their mutual interaction, Van Vooren proposes the

following definition of coherence:

“To attain coherence, between norms, actors and instruments towards a common objective,

between them conflicts should be avoided and resolved [i], tasks should be allocated effectively,

and positive synergy should be achieved”316.

Departing from Van Vooren’s framework, it is possible to conceptualise coherence across these

three functional layers and along three separate, yet interrelated levels of interaction317, vertically

309 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 119-120. 310CREMONA, M., MONAR, J., POLI, S, The external dimension of the European Union's area of freedom,

security and justice. New York: Peter Lang, 2011, 91. 311 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 68-71. 312 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 68-71. 313 Cf. Van Elsuwege’s definition of consistency, supra p.49. 314 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 70. 315 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 71. 316 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 69.

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(between the EU and Member States), institutionally (between institutions of the EU), and

horizontally (between policies and instruments).

With this framework in place, it will be possible to evaluate coherence of the ENI, as well as

wider effects to the coherence of the ENP.

2.5.2.1 Vertical Coherence

The first level pertains to vertical coherence, that is, whether the EU and the Member States

speak with one voice and act in unison in their external action. Admittedly, the issue of vertical

coherence is certainly in the background when evaluating the ENI.

The ENI regulation includes a coordination clause in order to ensure vertical coherence of the

EU and Member States’ support programmes.318 A similar clause appeared already in the ENPI

Regulation319. Furthermore, the ENI regulation stipulates that programming documents refer to

the activities of other Union donors320. Regarding cooperation mechanisms, the ENI regulation

identifies joint programming as preferable to delegated cooperation and stresses the need for

coordination. Joint programming primarily concerns CBC.

In addition to this, the bilateral base agreements upon which the policy framework of the ENI

rests321, are mixed agreements322. Emphasising the role of the institutions of these bilateral

agreements in fostering cooperation323, Van Vooren laments that Member States were not

sufficiently included in the preparation of the APs under the ENPI324. This remains alas

unchanged in the ENI, to the detriment of vertical coherence.

317 A. NERVI CHRISTENSEN, The making of the European Neighbourhood policy, Baden-Baden, Nomos, 2010,

138, cf. H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 4. 318 Art. 5(3), Reg. 232/2014. 319 Art. 5(3), Reg. 1638/2006. 320 Art. 5(5), Reg. 232/2014. 321 Art.3, Reg. 232/2014, cf. Art. 3 Reg. 1638/2016. 322 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 184. 323 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 184. 324 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 303.

52

The obvious obstacle to vertical coherence is the fact that Member States’ values and interests

will not always be aligned with each other. Certainly, the degree of discord with regard to any

particular issue will determine the forum where the issue is addressed.

For instance, there is a considerable North-South divide concerning the role the promotion of

values should have in the Neighbourhood, with Northern Member States advocating for more

proactive promotion and the Southern ones opting for maintaining good relations and furthering

technocratic cooperation325.

Comelli states that the benefit of the ENP as a single framework is that it incentivises

specialisation among Member States326, e.g. Poland’s leadership in the EaP, as opposed to

France’s in the Mediterranean. This specialisation, however, has the effect of driving the content

of the ENP down to the lowest common denominator327.

Whereas disagreements between Member States must to an extent be regarded as a fixed

variable, the test of a vertically coherent institutional construct lies in its ability to nudge

diverging interests beyond the lowest common denominator, taking into account the duty of

cooperation of Art. 4(3) TEU, and the realisation that partner countries need to perceive the EU

as a cohesive actor in order for the policy framework of the ENP to be effective. Otherwise

vertical coherence along the layer of synergy is impaired.

At the institutional level, the general approach by the EEAS has been to address the issue at the

lowest possible institutional level. This would be the Council’s working groups, COEST and

MaMa. At a higher level, the issue would be discussed by the PSC, then checked horizontally by

COREPER and with the FAC having the ultimate say328.

An example of a prominent divide in the Council concerns the Nagorno-Karabakh conflict

between Azerbaijan and an ethnic-Armenian unrecognised State supported by Armenia. With

325 R. BALFOUR, EU political dilemmas in North Africa and the Middle East, supra ref. 88, 78-79. 326 M. COMELLI, Potential and Limits of EU Policies, supra ref. 46, 3. 327 M. COMELLI, Potential and Limits of EU Policies, supra ref. 46, 3. 328 H. KOSTANYAN, The EEAS and the European neighbourhood policy, supra ref. 249, 3.

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regard to this conflict, Member States are split for a multiplicity of reasons, such as energy links

or a historical relationship, as in the case of Azerbaijan, and strong diaspora links and a

perceived close relationship to Russia, with regard to Armenia329, resulting in a reticence to take

collective action on the matter330.

This duly translates into the ENI reference documents. A cursory look at both the Armenian and

Azerbaijani APs reveals that while the former refers to the “self-determination of peoples”331, the

latter emphasises “respect for sovereignty, territorial integrity and inviolability of international

borders”.332 Thus, the ambiguity in the programming documents mirrors the discord in the

Council with regard to the Nagorno Karabakh conflict333, and contrasts with the ambitious

objectives of set out in the revision concerning the settlement of protracted conflicts334.

The final test of vertical coherence is whether partner countries perceive the EU and Member

State as coherent actors335. Lack of engagement or blatant obstruction by Member States will

stand in the way of coherent policy. Furthermore, beyond the ENI, overall vertical coherence

throughout the ENP seems to remain weak336.

The 2015 Review in fact identifies this issue and wants to strengthen the role of the Council and

Member States in identifying priorities and in supporting their implementation337. In conjunction

with the new focus on stability of the 2015 Review this means that we can come to expect more

reliance on the intergovernmental method. This issue will be discussed further in the evaluation.

329 L. VAN HOOF, Why the EU is Failing in its Neighbourhood: The Case of Armenia, European Foreign Affairs

Review 17.2, 2012, 294-295. 330 L. VAN HOOF, Why the EU is Failing in its Neighbourhood, supra ref. 329, 294-295. 331 European External Action Service/European Commission, EU-Armenia Action Plan, 4.2

https://eeas.europa.eu/sites/eeas/files/armenia_enp_ap_final_en.pdf 332 European External Action Service/European Commission, EU-Azerbaijan Action Plan, 1.

https://eeas.europa.eu/sites/eeas/files/azerbaijan_enp_ap_final_en.pdf 333 FREIZER, S., “The revised European Neighbourhood Policy and Conflicts in the South Caucasus: The EU’s

Growing Conflict Transformation Role” in: BOURIS, D., SCHUMACHER, T., The Revised European

Neighbourhood Policy: Continuity and Change in EU Foreign Policy, Basingstoke: Palgrave Macmillan, 2016, 163. 334 Art. 2(2)(e), Reg. 232/2014. 335 A. NERVI CHRISTENSEN, The making of the European Neighbourhood policy, supra ref. 317, 142. 336 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 127.

337 JOIN(2015) 500 final, supra ref. 49, 5.

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2.5.2.2 Institutional Coherence

The second level of coherence concerns institutional relations within the EU, in casu the

European External Action Service (EEAS), the Commission and the Parliament. Institutional

coherence refers to to the clear allocation of tasks between institutional actors, clear division of

labour delimitated by rules and finally the presence of synergies between the institutional actors

involved.

A first point concerns the soft law nature of the tools of the ENI. These can play a positive role

in fostering institutional coherence, in the sense that they have no influence on the division of

competences338. Hence, policy-makers are able concentrate on policy issues “without the shadow

of turf battles often veiled as legal as a legal debate over existence or nature of competence”339.

Nevertheless, within a soft law policy framework such as the ENP, the policy-making process

itself requires a clear division of labour between the two institutional actors involved, namely the

EEAS and the Commission.

In the Post-Lisbon institutional set-up, the EEAS as an autonomous inter-institutional service is

tasked with the preparation of basic regulations and programming documents with regard to the

ENI340, together with the Commission341.

Specifically, whereas the ENP is formally under the responsibility of the Neighbourhood

Commissioner, the ENI is shared by the EEAS and the Commission. This is a specificity for the

ENP, as opposed to the other instruments of external assistance342. Within the Commission, the

creation of a DG for Neighbourhood and Enlargement Negotiations (DG NEAR) in 2015,

338 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 190-191. 339 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 191. 340 Art. 9(5), Council Decision No. 2010/427/EU of 26 July 2010 establishing the organisation and functioning of

the European External Action Service. 341 European Commission, Secretariat General, Working Arrangements Between Commission Services And The

European External Action Service (EEAS) In Relation To External Relations Issues, 12 January 2012, SEC(2012)48,

17, http://ec.europa.eu/transparency/regdoc/rep/2/2012/EN/2-2012-48-EN-1-1.PDF 342 I. TANNOUS, The Programming of EU's External Assistance and Development Aid and the Fragile Balance of

Power between EEAS and DG DEVCO, European Foreign Affairs Review, 18, 2013, 344-346.

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shifting tasks from the DG for International Cooperation and Development (DG DEVCO), who

previously had to report to the Neighbourhood Commissioner, was meant to enhance

institutional coherence343.

Concretely for the ENI’s set of tools, strategic planning (SPs and MIPs where applicable) and

programming (SSF) are prepared jointly by the EEAS and the Commission, but factually under

the lead of the EEAS, while implementation (AAP) is solely the Commission’s responsibility344,

as provided for in the horizontal financial regulation345. EU Delegations in the neighbourhood

countries monitor and report on the implementation of the APs346.

Initially, the division of labour between the EEAS and the Commission worked reasonably well.

This is because of some early synergies involved in the restructuring of the EEAS. Most of the

Commission staff specialised in the ENP were moved to the EEAS at the creation of the latter,

and without the presence of a specialised DG at the Commission, the same staff remained de

facto at the service of then Commissioner Štefan Füle347.

Although upheaval in the Mediterranean caught the EU in the middle of its post-Lisbon

institutional restructuring348, the policy implementation of the 2011 revision is considered to

have been successful, with the EEAS able to “put on the table the full toolbox of Union

measures”349, though slightly less so in “[translating] these coordination efforts into effective

policies on the ground”350.

343 H. KOSTANYAN, The EEAS and the Revised European Neighbourhood Policy: What institutional balance? in:

D. BOURIS, T. SCHUMACHER, The Revised European Neighbourhood Policy: Continuity and Change in EU

Foreign Policy, Basingstoke: Palgrave Macmillan, 2016, 130. 344 I. TANNOUS, The Programming of EU's External Assistance, supra ref. 342, 344. 345 Art. 2, Reg. 236/2014. 346 European Commission, Secretariat General, Working Arrangements, supra ref. 341, 4. 347 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 127.

348 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 320. 349 J. WOUTERS, G. DE BAERE, B. VAN VOOREN et al, The organisation and functioning of the European

external action service: Achievements, challenges and opportunities. European Parliament, DG-External Policies,

PE 457.111, 2013, 54, cf. H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30,

127. 350 J. WOUTERS, G. DE BAERE, B. VAN VOOREN et al, The organisation and functioning of the European

external action service, supra ref. 349, 54.

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Furthermore, after these early synergies, the division of labour between the EEAS and the

Commission has resulted in “mutual restraint and horizontal checks”351 wherever competence is

unclear or goals incompatible352. This is detrimental to institutional coherence along the layer of

effective allocation of tasks.

Even assuming the best of working arrangements, the formal joint responsibility between the

EEAS and the Commission for strategic planning and programming raises questions about inter-

institutional competition, accountability and the presence of rules to deter inter-institutional

conflict.

As for the European Parliament (EP), since the ENI Regulation falls under the ordinary

procedure, coordination with the EP is paramount for institutional coherence. Moreover, the EP

amended the ENI regulation so that parliament resolutions form integral part of the policy

framework of the ENI353.

In her account of the ENI Regulation negotiations, Kaminska describes how the EP was

instrumental in furthering two important aspects regulation 232/2014: engaging in consultations

to address the shortcomings of the ENPI, and reinforcing conditionality, giving the more for

more and less for less principles “greater and de facto legal salience”354. Crucially, it was the

EP’s endeavours355 that led to the introduction of benchmarks, meant to aid horizontal

coherence356.

Given that the institutional allocation of tasks is codified elsewhere, the ENI regulation

introduces little in terms of institutional coherence along the layer of synergy. In spite of the

351 H. KOSTANYAN, The EEAS and the Revised European Neighbourhood Policy, supra ref. 30, 129. 352 H. KOSTANYAN, The EEAS and the Revised European Neighbourhood Policy, supra ref. 30, 129. 353 Art. 3(1), Reg. 232/2014, cf. Proposal COM(2011) 839 final, supra ref. 233, 16. 354 J. KAMINSKA, The European Parliament and the revised European Neighbourhood Policy in: D. BOURIS, T.

SCHUMACHER, The Revised European Neighbourhood Policy: Continuity and Change in EU Foreign Policy,

Basingstoke: Palgrave Macmillan, 2016, 146. 355 European Parliament, Report, ENI regulation, A7-0449/2013, supra ref. 236, 102. 356 J. KAMINSKA, The European Parliament and the revised European Neighbourhood Policy, supra ref. 354, 146.

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abovementioned shortcomings, the ENP has been regarded as an instance of successful inter-

institutional cooperation357.

However, the core innovations were already in place under the ENPI. Van Vooren states that the

characterisation of the ENP as an umbrella policy in the ENPI, involving its 29 thematic areas358,

encompassing all areas of external action enhanced synergy between actors359. These are largely,

but not entirely360, mirrored in the more focused list of objectives in the ENI regulation.

Finally, the ENPI recognised the hybrid composition361 of soft and hard law instruments which

comprise the ENP as a facilitator of institutional coherence362. This was made explicit in Art. 3

of the ENPI regulation and retained in the ENI regulation while alluding to innovations, such as

the regional cooperation fora363.

2.5.2.3 Horizontal Coherence

The third level of coherence examines the relationship between EU policies and instruments, and

is known as horizontal coherence. This relates to coherence between the objectives of the ENP,

in the implementation of these in the reference documents, as well as with instruments and

policies inside and outside of the ENP364.

Van Vooren’s resort to content analysis in his 2012 review of the APs under the ENPI regulation

is a possible approach for assessing horizontal coherence365. However, the pitfalls of combining

quantitative and qualitative analysis are many and operationalising the content of the APs by

357 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 134. 358 Art. 2(2), Reg. 1638/2006. 359 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 183. 360 Infra, Politicisation, part 2.5.5. 361 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 184. 362 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 184. 363 Art. 3(1), Reg. 232/2014. 364 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 119. 365 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 332-339.

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their relative strength so as to be made measurable366, following the example of Van Vooren,

carries necessarily a subjective element, which may the significance of any attained results.

Furthermore, such methodology relies strongly on the assumption that language in the APs is

being applied consistently. In any event, such an approach is beyond the scope of a review of the

novelties of the ENI. Hence, a qualitative analysis of horizontal coherence seems better placed to

deliver some insights in the context of this dissertation.

The resort to soft law instruments in the ENPI was designed to focus on synergy between the

instruments367. The ENI regulation contains a more elaborate provision which strives to further

ensure horizontal coherence by linking the implementation of the ENI to the bilateral base

agreements and the APs, as well as the EU’s interests, policy priorities and strategies and

multilateral commitments368. This is meant to enhance horizontal coherence along the layer of

synergy.

The ENI Regulation sought to add focus to the regulation’s objectives. This is the rationale

behind the streamlining of the 29 objectives of the ENPI into a non-exhaustive list of 6

objectives in the ENI. However, as the external evaluation of the ENI points out, the priorities of

the ENI were not in practice consolidated in the ENI itself, but rather spread out over a series of

documents, including the base bilateral agreements, communications, conclusions and

declarations by EU institutions369. In spite of the narrowed-down list in the ENI regulation, the

objectives of the ENI remain fragmented and without hierarchy.

Whereas soft law instruments may have positive effects for institutional coherence, as mentioned

before, this is not necessarily the case with regard to horizontal coherence370. Certainly, some

366 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 332-339. 367 B.VAN VOOREN, EU external relations law and the European Neighbourhood Policy, supra ref. 184, 292. 368 Art. 5(1), Reg. 232/2014. 369 European Commission, DG Development Cooperation, External Evaluation of the European Neighbourhood

Instrument (ENI), 2014 –mid 2017, Final Report Volume 1: Main report, June 2017, 8.

https://ec.europa.eu/europeaid/sites/devco/files/eni-eval-final-report-vol-i-main_en.pdf 370 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy in the East, supra

ref. 94, 623-624.

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degree of ambiguity is intrinsic to the nature of soft law instruments. In the context of the ENP

this should a fortiori be expected in light of the principle of differentiation.

However, a horizontally coherent approach demands some consistency in the content of the APs.

In light of the more focused list of objectives we should see more consistent terminology and this

in some instances the case. This is for instance true of migration provisions in the APs of the

three Caucasus countries, Armenia371, Azerbaijan372 and Georgia373, which constitute a mixture

of willing and reluctant partners and nevertheless articulate the same priorities in consistent

terminology.

Furthermore, and in contradiction to the spirit of the 2011 revision, the emphasis of provisions in

the APs under the ENI has been on stabilisation, to the detriment of democratisation, which

points out to a lack of coherent strategy374. Predictably, only the SSFs for Jordan, Morocco and

Tunisia include sectoral priorities related to democratic governance375. This is a tendency which

if anything will grow in light of the new focus that the 2015 Review gives to stability and

resilience.

Moreover, there is an inherent contradiction in the simultaneous pursuit of both stabilisation and

democratisation as goals when negotiating with overwhelmingly authoritarian or transitional

regimes376. In fact, it’s hard to conceive of a horizontally coherent approach which reconciles

both of these objectives.

Another important dimension of horizontal coherence is geographical coherence. A horizontally

coherent approach must take account of the regional context of policies. Therefore, objectives in

the programming documents must take account of broader regional strategies and of the progress

371 European External Action Service/European Commission, EU-Armenia Action Plan, 26,

https://eeas.europa.eu/sites/eeas/files/armenia_enp_ap_final_en.pdf 372 European External Action Service/European Commission, EU-Azerbaijan Action Plan, 15,

https://eeas.europa.eu/sites/eeas/files/azerbaijan_enp_ap_final_en.pdf 373 European External Action Service/European Commission, EU-Georgia Action Plan, 19,

https://eeas.europa.eu/sites/eeas/files/georgia_enp_ap_final_en_0.pdf

T. BÖRZEL, V. VAN HÜLLEN, One voice, one message, but conflicting goals, supra ref. 181, 1037-1038. 375 Annex, Fig. 5 376 T. BÖRZEL, V. VAN HÜLLEN, One voice, one message, but conflicting goals, supra ref. 181, 1040.

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achieved in the regional multilateral fora. For instance, the application of a regional approach

had been more coherent in the Caucasus since the ENPI377. This is likely due to synergies with

the EaP. Geographical coherence is another aspect given more salience in the 2015 Review and

we can therefore expect some progress in this dimension in the upcoming mid-term Review.

A horizontally coherent geographical approach also requires some level of consistency in the

sectoral priorities of the SSFs according to the region in question. A cursory look at the priorities

in the first batch of SSFs in 2014 provides some indication.378 In the Eastern Neighbourhood,

priorities between Georgia and Moldova largely overlap in their prioritisation of Public

Administration Reform, Agricultural and Rural Development and justice sector reform, and in

relatively constant sectoral allocations. This is again likely in the context of their respective

AA/DCFTAs and due to the multilateral framework of the EaP.

Similarly, in North Africa there is some overlap in prioritising socio-economic development,

with Algeria, Egypt, Morocco, and Tunisia broadly assigned priorities in that sector. Of course, a

geographically coherent approach which consistently assigns priorities according to their

regional context may come in conflict with the principle of differentiation.

Finally, horizontal coherence of given policies and instruments cannot be examined in a vacuum.

The coherent promotion of neighbourhood policies will certainly depend on both a country’s

stability and its perception of the EU’s intentions.379 This was for instance demonstrated by the

contrasting experiences of the Task Forces of the Special Representative for the Southern

Mediterranean in Tunisia and Libya respectively.380 The effectiveness of any measures will

therefore be dependent to an extent on exogenous factors. This calls for a flexible and diversified

approach.

377 L. DELCOUR, H. DUHOT, Bringing South Caucasus closer to Europe?, supra ref. 206, 11. 378 Annex, Fig. 5. 379 P. MORILLAS, From Policies to Politics: The European Union as an International Mediator in the

Mediterranean, IEMed Euromesco series, No. 23, European Institute of the Mediterranean, Barcelona, 2015, 30. 380 P. MORILLAS, From Policies to Politics, supra ref. 379, 19-20.

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In conclusion, it is a fair assessment to state that the ENI hasn’t brought much innovation to

horizontal coherence381 along the layer of consistency among the different objectives it

articulates both in the ENI and in the implementation documents, in spite of some improvements

in more consistent terminology.

2.5.2.4 Assessment

In conclusion, whereas vertical and institutional coherence are essential to the functioning of the

ENI, the overwhelming majority of the novelties in the ENI do not concern these, and instead

focus on horizontal coherence. These do not seem to have brought about considerable

improvement. Turning back to the three layers of coherence, whereas the ENI strives for a more

effective allocation of tasks and a measure of synergy between policies and instruments, it’s not

clear that these have been achieved. As for the layer of consistency, one has to take into account

that two ex-ante conditions which make this more difficult: the soft law nature of ENP

instruments and the principle of differentiation. As such, coherence in the ENI faces largely the

same challenges as the ENPI.

2.5.3 Differentiation

As the product of the early accession methodology, the principle of differentiation was

incorporated into the ENP from its inception. Its first rationale was first and foremost not to let

the lack of progress of the worst performers affect the reform efforts of the better ones382 Given

the heterogeneity of the Neighbourhood383, the principle of differentiation might even seem like

a necessity. The second rationale of a differentiated approach is to stimulate competition among

ENP countries in order to increase its effectiveness384. This of course presupposes the existence

of incentives for which to compete.

381 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 121.

382 J. KELLEY, New wine in old wineskins: Promoting political reforms through the new European Neighbourhood

Policy, Journal of Common Market Studies, 44, 1, 2006, 34.. 383 J. KELLEY, New wine in old wineskins, supra ref. 383, 34. 384 P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy, supra ref. 186, 64.

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There are, however, critics of a differentiated approach. Interestingly, Comelli argues, that

increased differentiation in the 2011 revision fails to take into account that Art. 8 TEU envisions

an “area of prosperity and good neighbourliness”385, which seems to suggest that a uniform

approach towards the entire Neighbourhood is due386. However, this does not take into account

the fact that the Neighbourhood itself is not a static notion, and while the ENP is not explicitly

linked to accession, neither does it rule it out for some partner countries.

In any event, the coherence (consistency)387 requirement of Art. 21(3) TEU implies that

countries in a comparable situation in relation to the objectives of the ENP should be treated in a

similar way.388 It should follow a contrario that coherence (consistency) requires that countries

in different situations with regard to the objectives of the ENP should be treated differently.

It is imperative that differentiation itself is done with some degree of consistency. A possible

downside of a differentiated approach may be that the EU is perceived by its partners as

engaging in double standards389. This is the logic behind the differentiation criteria in Art. 4(1) of

the ENI regulation. The criteria are meant to guide an objective assessment of the partner

countries’ progress. Consequently, the PR are tasked with the tracking of the differentiation

criteria390.

This might not be as straight-forward as envisaged. Paradoxically, a country undergoing

democratic transition may perform worse at given benchmarks due to the frictions of the

transition process itself391. Given the fact that countries in transition by definition experience

more instability, as well as likely reduced institutional absorption capacity, the more for more

principle may translate in practice into “less of the same”392.

385 Art. 8(1) TEU. 386 M. COMELLI, Article 8 TEU and the Revision, supra ref. 26, 287-288.

387 Supra, coherence. 388 cf. S. GSTÖHL, S., The contestation of values, supra ref. 233, 64. 389 P. VAN ELSUWEGE, O. BURLYUK, Exporting the rule of law to the EU’s eastern neighbours in: S. POLI,

The European Neighbourhood Policy: values and principles, Abingdon, Oxon, Routledge, 2016, 168. 390 Art. 4(2), Reg. 232/2014. 391 E. LANNON, More for more or less for less, supra ref. 237, 221. 392 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 325.

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A closer look at the differentiation criteria reveals that the first two, a) needs, and b)

implementing mutually agreed objectives are uncontroversial, since they’re linked to

international indicators and reference documents. Onward, criteria d) partnership with the Union,

and e) absorption capacity (i.e. institutional absorption capacity of funds)393, are subject to the

political and technical assessment by the EEAS and the Commission (and are thus more opaque,

subject to discretion and prone to politicisation). Lastly, criterium c) commitment to deep and

sustainable democracy, links to the deep democracy criteria of 2011 revision. This last category

is also to some extent measurable, but the benchmarks it’s set against correspond to a specific

vision of democracy, which as mentioned early can be broadly characterised as “liberal

democracy”.394

The benchmarks for the deep democracy criteria as stipulated in the A New Response to a

Changing Neighbourhood Communication are:

- free and fair elections;

- freedom of association, expression and assembly and a free press and media;

- the rule of law administered by an independent judiciary and right to a fair trial;

- fighting against corruption;

- security and law enforcement sector reform (including the police) and the establishment

of democratic control over armed and security forces395.

It has been put forward that predicating representative democracy only on free and fair elections

to the detriment of more institutionalised criteria, such as the separation of powers and

entrenched political participation is a shortcoming of this formulation396.

393 cf. European External Action Service/European Commission, Single Support Framework for EU support to

Palestine*, 2014-2016, 7, https://eeas.europa.eu/sites/eeas/files/palestine_ssf_2014-2016_en.pdf 394 T. THEUNS, Promoting democracy through economic conditionality in the ENP, supra ref. 33, 290. 395 COM(2011) 303 final, supra ref. 25, 3. 396 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90,

137.

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Elsewhere, these criteria has led some to criticise the apparent Eurocentrism of the Deep

Democracy criteria397: “There are no Copenhagen Criteria […]available that the transformative

regimes [of the Southern Neighbourhood] could be measured against.”398

Yet in general, the PR seem to be working reasonably well in assessing the deep democracy

criteria. For example, in the year 2014, moderate progress was acknowledged in Georgia399,

while Egypt was rebuked for serious regressions400. However, assessing progress is necessarily a

relativistic endeavour. In the same year, Jordan was commended for moderate progress on deep

democracy401, in spite of a troubling402 constitutional amendment which devolved powers to the

king, while Israel’s raising of its electoral threshold was noted for possible criticism403404.

Furthermore, financial assistance is supposed to follow a process of consistent differentiation at

the time of introduction of the ENI. Indeed, partner countries which achieved a considerable

measure of progress in 2014 were duly rewarded via the ‘umbrella programme’ of Art. 7(6) of

the ENI regulation. In the Eastern Neighbourhood these were the three willing countries,

Georgia, Moldova, and Ukraine.405 In the Southern Neighbourhood these were Lebanon, Jordan,

Morocco, and Tunisia406. In 2016, this was limited to Georgia, Tunisia, and Ukraine407.

However, a cursory look at per capita assistance does not entirely seem to match with progress

on the incentive-based approach.408 This is likely in function of the other differentiation criteria,

which as we have seen, seem slightly opaque.

397 J. C. VÖLKEL, More for More, Less for Less– More or Less, supra ref. 153, 272. 398 J. C. VÖLKEL, More for More, Less for Less– More or Less, supra ref. 153, 272. 399 European Commission, Implementation of the European Neighbourhood Policy in Georgia. Progress In 2014

and Recommendations For actions, SWD(2015) 66 Final, 1. 400 European Commission, Implementation of the European Neighbourhood Policy in Egypt. Progress In 2014 and

Recommendations For actions, SWD(2015) 65 Final, 3. 401 European Commission, Implementation of the European Neighbourhood Policy in Jordan. Progress In 2014 and

Recommendations For actions, SWD(2015) 67 Final, 4. 402 GROTE, R., RÖDER, T. J., Constitutionalism, Human Rights, and Islam After the Arab Spring, Oxford, Oxford

University Press, 2016, 735. 403 European Commission, Implementation of the European Neighbourhood Policy in Israel. Progress In 2014 and

Recommendations For actions, SWD(2015) 72 Final, 4. 404 Currently, 11 Member States have higher electoral thresholds than Israel’s current threshold of 3.25%. 405 European Commission, Implementation of the European Neighbourhood Policy

Eastern Partnership Implementation Report, SWD(2015) 76 Final, 5. 406 European Commission Implementation of the European Neighbourhood Policy Partnership for Democracy and

Shared Prosperity with the Southern Mediterranean Partners Report, SWD(2015) 75 Final, 15. 407 JOIN(2017) 18 final, supra ref. 70, 14. 408 Annex. Fig. 4.

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The principle of differentiation will also suffer when values and interests come into conflict. An

interesting example is that of Morocco: Like its corresponding AP409, the 2014 PR for

Morocco410 makes no reference to the issue of the non-self-governing territory of Western

Sahara and gives Morocco an overall “encouraging assessment”411. This despite consistent

reports of “widespread impunity”412 and “arbitrary detention”413 occurring in the Western Sahara

in the same year, which directly touch upon the rule of law and law enforcement414 criteria that

make up the concept of deep and sustainable democracy.

Since Morocco is one of the partner countries otherwise most favoured by the principle of

differentiation, the question might be posed whether a deficit in the deep democracy criteria

should have any impact on Morocco’s Advanced Status. Alas, since the issue of the Western

Sahara is a non-negotiable issue for Morocco, this is not really an issue whose progress can be

subject to conditionality. This places the EU in a dilemma between consistently applying the

principle of differentiation and respecting the principle of joint ownership.

Finally, the programming cycle itself plays an important role in how differentiation is

implemented. Even though longer programming cycles yield the most effect, countries in

transition with comparatively more needs were given shorter programming documents. As

Schumacher points out that whilst Tunisia was given a four-year AP and Lebanon a two-year

SSF, Egypt was only given a one-year SSF415.

Whereas differentiation is identified as the hallmark of the 2015 Review, another stipulation

therein was that PR would no longer be released simultaneously, but instead timed to coincide

with upcoming high-level meetings and with a much more narrow focus on mutually agreed

409 European External Action Service/European Commission, Projet de Plan d’Action Maroc pour la mise en oeuvre

du statut avancé, 2013-2017,

https://eeas.europa.eu/sites/eeas/files/morocco_enp_ap_final_en.pdf 410 European Commission, Document De Travail Conjoint Des Services Mise en oeuvre de la politique européenne

de voisinage au Maroc. Progrès réalisés en 2014 et actions à mettre en oeuvre, SWD(2015) 70 final. 411 SWD(2015) 70 final, supra ref. ?, 4. 412 United States Department of State, Human Rights Report for Western Sahara 2015, 1,

https://www.state.gov/documents/organization/253165.pdf 413 United States Department of State, Human Rights Report for Western Sahara 2015, supra ref. 412, 4. 414 COM(2011) 303 final, supra ref. 25, 3. 415 T. SCHUMACHER, Back to the Future, supra ref. 61, 3.

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goals.416 This is not in line with the current ENI regulation, which means it will have to be

amended417. Furthermore, this will likely create a double standard between willing and reluctant

countries418.

How detrimental to the promotion of democracy this double standard will be is not clear. As

early as 2007, Tocci found that the potential for the promotion of democracy and human rights

ranged from low among willing partners, to non-existent among hesitant ones.419 In any event,

this is further confirmation of the tempering of ambition of the 2015 Review.

In conclusion, the differentiated approach amounts in essence to the multi-speed Europeanisation

of the Neighbourhood420. This could be optimistically regarded as the operationalisation of the

distinction between willing and hesitant partners. However, the multi-speed neighbourhood will

result in increased complexity and challenges to a coherent Neighbourhood-wide approach.

2.5.4 Conditionality

As previously mentioned, the principle of conditionality is closely linked to the principle of

differentiation, since conditionality is the means by which differentiation is advanced and the

consistent application of conditionality implies differentiation421. As with differentiation, the

conditionality has its origin in the methodology of enlargement422, and efforts to improve its

effectiveness has been an overarching theme of the EU’s engagement with the Neighbourhood.

In the context of the ENP, conditionality presupposes that partner countries shall submit itself to

the EU's scrutiny and agree to fulfil the demands articulated by the EU. Conditionality comprises

two elements: the ex-ante presence of certain conditions and the ex post emergence of certain

416 COM(2015) 500 final, supra ref. 49, 5. 417 E. LANNON, The 2015 review of the European neighbourhood policy, supra ref. 51, 77. 418 E. LANNON, The 2015 review of the European neighbourhood policy, supra ref. 51, 77. 419 N. TOCCI, Can the EU promote democracy, supra ref. 74, 31. 420 A. MATTA, The EU’s differentiated integration frameworks, supra ref. 167, 209. 421 P. VAN ELSUWEGE, O. BURLYUK, Exporting the rule of law, supra ref. ?, 174. 422 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 79.

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conditions.423 This is followed by either a positive or a negative evaluation of these ex-post

conditions in relation to the situation ex-ante.

As we have seen in the discussion of the ENI regulation, the innovativeness of the more for more

approach might have been be overestimated. Naturally, conditionality will be most effective in

light of the asymmetry between the EU and the partner countries424. Predictably, however, this

will never be made explicit in reference documents425, in order not to obviate the asymmetrical

relationship between the EU and the partner in question.

However, an essential distinction has to be made between values conditionality and technical

conditionality. This distinction is related to the objectives pursued. The first one pertains to

conditions related to the promotion of values whilst the latter is connected broadly the

application of the acquis. The determining factor for this distinction is of course the degree of

willingness of partner countries to fulfil the conditions imposed on them by the EU.

2.5.4.1 Values Conditionality

In principle, all active partner countries commit to the values outlined in the ENI, at least

rhetorically426. The application of the more for more principle entails an assessment by the EU of

the commitment to these values in practice. Such an assessment should be applied consistently.

Admittedly, this has not been the case. The presence of double standards in assessing

commitment to values has plagued the ENP since its inception.

A notable example is the differential treatment of Azerbaijan and Belarus. Both are

incontrovertibly authoritarian regimes with severe shortcomings in the enjoyment of civil and

423 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 75.

424 D. KOCHENOV, Overestimating conditionality, in: I. GOVAERE, E. LANNON et al, The European Union in

the world : essays in honour of professor Marc Maresceau. Leiden, Nijhoff, 2014, 547-548.

425 M. COMELLI, Potential and Limits of EU Policies, supra ref. 46, 2. 426 D. KOCHENOV, E. BASHESKA, The European Neighbourhood Policy’s value conditionality: From

enlargements to post-Crimea in: S. POLI, The European Neighbourhood Policy: values and principles, Abingdon,

Oxon, Routledge, 2016, 152.

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political rights.427 Whilst Belarus has been consistently the object of sanctions and has been

frozen out of the ENP, Azerbaijan has been treated with particular leniency428. This is

undoubtedly due to the presence of strategic interests in Azerbaijan, notably in the realm of

energy429, as opposed to Belarus430.

The ENI programming documents seem to have continued this practice. The Azerbaijan PR is

considerably uses more measured language431 regarding Human Rights than the Belarus MIP432.

Of course, as we have seen, there is a an important procedural difference between the two kinds

of programming documents mentioned. Nevertheless, the presence of double standards in

applying conditionality is a challenge to the EU’s credibility.

Naturally, inconsistence in applying value conditionality is not only a question of double

standards, but also a product of the interaction between the simultaneous pursuit of values and

interests. A prominent example hereof is the EU’s assistance to the Palestinian Authority, in light

of the promotion of values and the broader objective of contributing to a resolution of the Arab-

Israeli conflict433.

The SSF 2014-2016 for the PA allocates 55% of the 2014-2016, as part of temporary special

measures to the Mécanisme Palestino-Européen de Gestion et d'Aide Socio-Economique

(PEGASE)434, a mechanism of “systematic, predictable and unconditional contributions to the

payment of PA civil servant's salaries, pensions and of social allowances”,435 amounting to

427 Annex, Fig. 1 428 S. LEHNE, Time to Reset the European Neighborhood Policy, Carnegie endowment for international peace,

Briefing, 2014, 10, http://carnegieendowment.org/files/time_reset_enp.pdf 429 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90,

146. 430 S. LEHNE, Time to Reset the European Neighborhood Policy, supra ref. 428, 10. 431 European Commission, Implementation of the European Neighbourhood Policy in Azerbaijan. Progress In 2014

and Recommendations For actions, SWD(2015) 64 Final, 2-3. 432 European External Action Service/European Commission, Strategy Paper and Multiannual Indicative Programme

for EU support to Belarus 2014-2017, 3, https://eeas.europa.eu/enp/pdf/financing-the-

enp/belarus_2014_2017_programming_document_en.pdf 433 European External Action Service/European Commission, EU-Palestinian Authority Action Plan, 3,

https://eeas.europa.eu/sites/eeas/files/pa_enp_ap_final_en.pdf 434 SSF for the PA, 2014-2016, supra ref. 393, 9. 435 SSF for the PA, 2014-2016 , supra ref. 393, 20.

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252.5 mio. € in 2016.436 This is purportedly in line with the EU’s declared interest in maintaining

the viability of the Two-State solution437, which in the EU’s assessment is predicated on the

continued solvability of the PA438.

However, the issue of values comes to the front in light of the PA’s direct budgetary support for

the notorious PA Law No. 14 and Amended Law 19 (2004) on Aid for Prisoners in Israeli

Prisons439, which qualify all Palestinian prisoners in Israeli jails and their dependents “without

discrimination”440 for PA salaries and other forms of economic preferential treatment, scaling up

in proportion with the severity of their jail sentences, and hence the severity of their crimes441.

These provisions translate into a direct economic incentive by the PA for committing acts of

violence, and as such are antithetical to the values of the EU. Whereas it’s very unlikely that the

salaries in question are directly funded from PEGASE442, in line with the preventive measures

against illegal activities which are in place in the horizontal financial regulation443, these salaries

are not explicitly excluded from PEGASE’s list of recipients444. Crucially, the salaries for

prisoners are funded from salary deductions from other PA civil servants445, who may

themselves well be PEGASE recipients.

436 Art. 2, Commission Implementing Decision of 29.2.2016 on the Annual Action Programme 2016 part 1 in favour

of Palestine to be financed from the general budget of the European Union, C(2016) 1359 final, . 437 SSF for the PA, 2014—2016 , supra ref. 393, 20. 438 Council of the European Union, CFSP Report – Our Priorities in 2016, 17 October 2016, CFSP/PESC 796, 20. 439 Palestinian Authority, Law No. 14 (2004) on Aid for Prisoners in Israeli Prisons and Law No. 19 (2004).

Amended Palestinian Prisoners Law No. 19 (2004). English translation in: Y. KUPERWASSER, “Incentivizing

Terrorism: Palestinian Authority Allocations to Terrorists and their Families”, Jerusalem Centre for Public Affairs,

2016, http://jcpa.org/paying-salaries-terrorists-contradicts-palestinian-vows-peaceful-intentions/#appendix-5 440 Art. 6, Law No. 19 (2004), Amended Palestinian Prisoners Law, 2004, supra ref. 440. 441 D. MAKOVSKY, G. AL-OMARI, L. WEINER, If Palestinians are serious about peace, ‘martyr’ violence

should not pay, Washington Post, 6 April 2017. https://www.washingtonpost.com/news/global-

opinions/wp/2017/04/06/if-palestinians-are-serious-about-peace-martyr-violence-should-not-pay 442 European Parliament, Parliamentary questions, Answer given by Mr. Hahn on behalf of the Commission, 12

February 2016, P-2015-015614,

http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2015-015614&language=EN 443 Art .7, Reg. 236/2014. 444 European Court Of Auditors, European Union Direct Financial Support To The Palestinian Authority, Special

Report No.14, 2013, 38.

http://www.eca.europa.eu/Lists/ECADocuments/SR13_14/SR13_14_EN.pdf 445 Art. 3, Law No. 14 (2004) on Aid for Prisoners in Israeli Prisons, supra ref. 440,

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Whether PEGASE funds reach the prisoners directly or indirectly is ultimately not the issue.

Given that the latest conclusions of the Middle East Quartet identify incitement as

“fundamentally incompatible”446 with a peaceful resolution of the conflict, and given that

PEGASE is the single biggest item447 for the biggest bilateral recipient of the ENI in both

absolute and per capita terms448, the question that comes to mind is why conditionality is not

applied more consistently with the PA in order to put an end to this practice.

The answer to this question has three elements, two of them technical and one strategic. First,

PEGASE is qualified as temporary special measure449 and therefore does not fall under the

criteria of Art. 7(2) of the ENI regulation. Second, given the unilateral-bilateral character of the

APs which inform the SSFs, the issue is very unlikely to be successfully pressed if it’s essential

for the partner country in question. Third, the EU attributes strategic importance of retaining the

viability of the Two-State solution450, which depends on the PA’s financial continuity451.

Consequently the promotion of this interest takes precedence over values considerations.

This example goes on to show the limits of value conditionality. However, it’s particularly in

situations where the EU retains significant leverage in its bilateral relationship to the partner

country452, such as in its relationship with the PA as a large and reliable donor453, where a

conditional approach should prove most fruitful.

2.5.4.2 Technical Conditionality

A second dimension of conditionality concerns the application of the incentive-based approach

of Art. 4(3) ENI regulation for progress achieved in economic or social reform predicated on

446 Report of the Middle East Quartet, 12 February 2016, supra ref. 87, 3. 447 SSF for the PA, 2014—2016 , supra ref. 393, 20, cf. Annex, Fig. 3, 4, 5. 448 Annex, Fig. 4. 449 Annex, Fig. 5. 450 Foreign Affairs Council, Council conclusions on the Middle East Peace Process

3166th Foreign Affairs Council meeting, 14 May 2012, 9110/12 PRESSE 166, PR CO 28, 2. 451 SSF for the PA, 2014—2016 , supra ref. 393., 21. 452 D. KOCHENOV, Overestimating conditionality, supra ref. 424, 547-548. 453 P. MÜLLER, The revised European Neighbourhood Policy and the EU’s comprehensive approach towards the

Israeli-Palestinian conflict: Not so new, after all, In: D. BOURIS, T. SCHUMACHER, The Revised European

Neighbourhood Policy: Continuity and Change in EU Foreign Policy, Basingstoke: Palgrave Macmillan, 2016, 205.

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technical issues454. In these issues, the partner countries have identified the reforms in question

as desirable and beneficial in the APs. Therefore, the question of willingness is resolved.

Progress therein becomes therefore a depoliticised, technical issue.

One obstacle to technical progress is insufficient promotion of capacity- and trust-building

measures, which are crucial in order to reduce the cost of reform455. Therefore, an institutional

design should be conceived that would incentivise reform and would conduct the transfer of

expertise required to implement reform most efficiently.

Regarding incentives, the ENP has been relatively successful in incentivising technical

cooperation. Notably, the Visa Liberalisation Dialogue with Georgia, Moldova, and Ukraine

brought substantial reform in multiple areas, such as document security, asylum, anti-corruption,

and money-laundering456. Visa liberalisation has proved a very successful incentive in

facilitating reform, building trust and increasing the EU’s perception in the partner countries. As

such, it can be regarded as a prime example of the EU’s soft power in action.

Regarding the transfer of expertise, a crucial thing to understand is that expertise to implement

progress is diffuse. Therefore any transfer of expertise should be decentralised457. Furthermore,

“the local context; the willingness of the partners to undertake reforms; and the level (political

or technical) on which the transfer happens”458 are all factors to be taken into account. A good

example, from the DCFTAs however, is market access conditionality and the comprehensive

monitoring measures to aid the technically demanding approximation in the cases of Georgia,

Moldova, and Ukraine459.

454 T. A. BÖRZEL, B. LEBANIDZE, European Neighbourhood Policy at the Crossroads, supra ref. 203, 13. 455 A. KATSARIS, Europeanization through Policy Networks in the Southern Neighbourhood: Advancing

Renewable Energy Rules in Morocco and Algeria, Journal of Common Market Studies, 54, 2016, 660-662.

456 T. A. BÖRZEL, B. LEBANIDZE, European Neighbourhood Policy at the Crossroads, supra ref. 203, 14. 457 B. SZENT-IVÁNYI, The EU's Support for Democratic Governance, supra ref. 19, 1108. 458 B. SZENT-IVÁNYI, The EU's Support for Democratic Governance, supra ref. 19, 1109. 459 R. PETROV, EU Values in Integration-oriented Agreements with Ukraine, Moldova and Georgia, in: S. POLI,

The European Neighbourhood Policy: values and principles., Abingdon, Oxon, Routledge, 2016, 106.

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Hence, technical conditionality will tend to be more effective the more trust- and capacity-

building measures are built into financial assistance programmes. This will result in improved

transfer of transition expertise.

2.5.4.3 Assessment

It could be argued that conditionality, as applied to the Neighbourhood at large is inherently

weak for a multiplicity of reasons.

First of all, incentives may not strong enough to warrant the high costs of reform required in

order to motivate elites to undergo reforms460. Lavenex and Schimmelfennig’s dictum for the

effectiveness of EU leverage that “a government introduces democratic changes in state

institutions and behaviour according to EU conditions if the benefits of EU rewards exceed the

domestic adoption costs”461 seems to hold. With regard to democratisation. the more

authoritarian a regime, the higher the costs of reform and the higher risks to internal and regional

stability, and consequently the lower likelihood of achieving progress462.

This may be marginally less problematic in the context of the EaP, where all of the partner

countries, albeit to different degrees of likelihood, ultimately harbour the ambition to accede into

the EU. Following the EU’s rejection of Morocco’s application in 1987, this is likely not the case

for most of the countries in the Southern Neighbourhood.

Furthermore, the experience of the big-bang enlargement of the EU shows that the prospect of

accession, even in the very long-term is an exceptional incentive to reform, which may not be

matched by the incentives of the ENI, with the caveat that this is only the case when prospects of

accession have been deemed by partners to be credible.463

460 D. KOCHENOV, E. BASHESKA, The European Neighbourhood Policy’s value conditionality, supra ref. 426,

154. 461 S. LAVENEX, F. SCHIMMELFENNIG, Democracy promotion in the EU's Neighbourhood : from leverage to

governance?, London: Routledge, 2013, 9. 462 T. BÖRZEL, V. VAN HÜLLEN, One voice, one message, but conflicting goals, supra ref. 181, 1042. 463 T. A. BÖRZEL, B. LEBANIDZE, European Neighbourhood Policy at the Crossroads, supra ref. 203, 10-12.

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Hence, it should not come as a surprise that the ruling out of the golden carrot464 of eventual

membership of the Union, necessitates further incentives to nudge partner countries into reform.

This is an inherent problem of repurposing the methodology of accession into the

Neighbourhood465, which lacks the clear finality, law-like466 promise of the acquis . This comes

with the caveat that even in the context of enlargement, conditionality may have been greatly

overestimated, because of issues such as lack of clarity or transparency467.

Second, this reticence to implement reform is furthermore compounded by the effect of

budgetary constraints. Whereas allocations from the MEDA/TACIS period, through the ENPI

and onto the current ENI have risen constantly in real terms468, the sums involved may not be

sufficient to warrant tangible reforms. The leverage of added financial assistance must

furthermore be regarded in light of the partner countries’ relative wealth469. In certain cases, the

gains of positive conditionality may seem modest and likely not worth the cost conducting them.

Third, the logic of conditionality may in fact translate into less flexibility470. When conditions on

the ground are not met, the EU is left with no alternative but not to spend, which in turn creates

more uncertainty in allocating other funds471. This is one of the reasons for the prominent gap

between commitments and disbursements472, which as Bicchi remarks, should please European

taxpayers, but comes at some expense in terms of increased bureaucracy and uncertainty473.

Fourth, there is a considerable lag between commitments and disbursements of instruments of

external assistance474. Of course, these are not supposed to match each year-to-year, since some

464 cf. T. A. BÖRZEL, B. LEBANIDZE, European Neighbourhood Policy at the Crossroads, supra ref. 203, 7. 465 466 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90.

128. 467 D. KOCHENOV, Overestimating conditionality, supra ref. 424, 542. 468 cf. Annex, Fig. 2,3,4. 469 Annex, Fig. 4 470 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 328. 471 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 328. 472 Annex, Fig. 3 473 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 328. 474 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 327-328.

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commitments will be carried over, stretching the process over many years475, while others will

not be realised. However, particularly in times of transition, the lag between commitments and

disbursements will be substantial. A prime example hereof is Egypt, which saw a disbursement

rate476 of respectively 42.3% and 37.2% in the two years after the Tahrir revolution of 2011, a

significant decrease from the previous years477 This is necessarily partly due to decreased

absorption capacity in times of crisis, but the consequence of a conditional approach means that

these conditions are less likely to be met on the ground, thereby reducing flexibility and

effectiveness precisely where it’s needed most478.

Moreover, the application of negative conditionality will have some repercussions on the

efficiency of the programming process. Committed cooperation activities cannot be cancelled

without some friction. The associated costs therein will result in some cash drain479.

These factors go a long way in explaining the limited effectiveness of the incentive-based

approach. This issue was explicitly recognised in the 2015 Review of the ENP: ”[the incentive-

based approach] has not proven a sufficiently strong incentive to create a commitment to

reform, where there is not the political will”480.

Consequently, the ENP’s use of conditionality and capacity building remains lacking481. The

tempering of the ENP’s ambitions and the shift away from conditionality, characterised by the

damning indictment in the 2015 Review that the more for more principle: “has not proven a

sufficiently strong incentive to create a commitment to reform, where there is not the political

will”482 is a reflection of the realisation of a more constrained policy in times of austerity.

475 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 327-328. 476 As a percentage of commitments for the same year. 477 Annex, Fig. 3. 478 F. BICCHI, The Politics of Foreign Aid and the European Neighbourhood Policy, supra ref. 36, 328. 479 J. C. VÖLKEL, More for More, Less for Less– More or Less, supra ref. 153, 274. 480 JOIN(2015) 500 final, supra ref. 49, 5. 481 T. BÖRZEL, V. VAN HÜLLEN, One voice, one message, but conflicting goals, supra ref. 181, 1034. 482 JOIN(2015) 500 final, supra ref. 49, 4.

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Therefore, lacking incentives in conjunction with the chronic under-funding of financial

assistance483 and the realisation of the high costs incurred in ambitious endeavours, such as the

massive legislative approximation that DCFTAs entail484 will likely result in a tempering of

expectations of what is possible to achieve after the mid-term review.

In conclusion, the strengthened incentive-based approach put in place in the ENI regulation

brought some innovation to the principle of conditionality, in spite of some structural

shortcomings. Alas, conditionality seems to have been entirely abandoned in the 2015 Review,

instead of some efforts to address its shortcomings.

2.5.5 Politicisation

Politicisation can be defined as “The demand for or the act of transporting an issue into the field

of politics – making previously apolitical matters political”485. Translated into the ENP, the

content of policies towards the Neighbourhood will undergo politicisation in the manner that the

development of relationships with Neighbourhood countries in the sense of Art. 8(1) TEU makes

increased emphasis on political discretion and less on technical cooperation.

An a priori remark is necessary here. Whilst the methodology of accession in its original context

in a sense behaved “like primary law”486, i.e. given their clear and unambiguous finality of the

adoption of the acquis, the same methodology repurposed in the context of the ENP will function

483 KOCHENOV, D., BASHESKA, E., “The European Neighbourhood Policy’s value conditionality: From

enlargements to post-Crimea” in: POLI, S., The European Neighbourhood Policy: values and principles. Abingdon,

Oxon, Routledge, 2016, 158. 484 DELCOUR, L., “Conclusions. Plus ça change, plus c'est la même chose? The European Neighbourhood Policy

and Dynamics of Internal and External Change” in: BOURIS, D., SCHUMACHER, T., The Revised European

Neighbourhood Policy: Continuity and Change in EU Foreign Policy, Basingstoke: Palgrave Macmillan, 2016, 294. 485 NITOIU, C., “The Politicization of the Neighbourhood in the European Parliament: From 2009 to 2014”,

Transnational Advocacy, Public Opinion, and the Politicisation of International Organisations: Patterns and

Explanations, Workshop, Warsaw, 2015, 8. https://ecpr.eu/Filestore/PaperProposal/6e89fa03-a655-4be6-bb65-

e399b47ea830.pdf 486 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90,

128.

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primarily like a set of political documents, little more than guidelines487. It follows that the APs,

given their unilateral-bilateral character, make cooperation largely dependent on political will488.

The friction between the law and the political objectives of the ENP is indeed an important issue

to be considered. Ghazaryan has described the introduction of Art. 8 TEU can be described as

“the legalisation of the political objectives of the ENP or conversely the politicisation of the

law”489 .

Among the EU’s institutions, the EP has consistently argued for increasing support for the

promotion of democracy490. As such, it has been the primary actor in enhancing positive

conditionality in the realm of Human Rights, democracy, and rule of law under the ENI491.

Whilst this stance is undoubtedly consistent with the normative character of EU external action,

it has also inevitably resulted in the politicisation of the ENP.

The political influence of the EP has if anything been enhanced in light of the strategic dialogue

declaration on Annex II of the ENI regulation. Whereas in accordance with Art. 14 TEU this is

only a consultative role, the political pressure the EP exercises cannot be underestimated.492

Since strategic dialogue will be conducted at the mid-term Review, we can expect the EP to exert

political influence on the programming for 2017-2020.

The EP’s enhanced role has resulted so far in the ENI weighing in much more on values and

much less on exporting the EU’s economic model. For instance, the objective of the development

of a market economy, which was present in the ENPI493 is conspicuously absent from the ENI

Regulation494. Given that the promotion of values is by nature more dependent on political

discretion than economic discretion, this has also resulted in a more politicised ENI.

487 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90,

128. 488 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy in the East, supra

ref. 94, 621-625. 489 N. GHAZARYAN, The Law and Political Objectives of the European Neighbourhood Policy in the East, supra

ref. 94, 621. 490C. NITOIU, The Politicization of the Neighbourhood in the European Parliament, supra ref. 485, 30. 491 C. NITOIU, The Politicization of the Neighbourhood in the European Parliament, supra ref. 485, 27. 492 E. LANNON, Entry into force, supra ref. 39, 230. 493 Art. 2(2)(n), Reg. 1638/2006. 494 S. POLI, Promoting EU values in the neighbourhood, supra ref. 96, 41.

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Moreover, as discussed above in under institutional coherence, the post-Lisbon division of labour

in the programming process, which allocates strategic implementation of the programming

process to the EEAS gives it a considerable degree of discretion, meaning that programming is

not solely a technical issue495. This undoubtedly has resulted in more politicisation.

Alas, the politicisation of the ENP can have repercussions on its effectiveness. As Harpaz argues,

“[the] reinforced linkage between trade benefits and socio-political reforms may affect the

[Neighbours’] perception in terms of sovereignty and legitimacy”.496 Prioritising financial

assistance towards values alignment may affect alignment efforts in other areas.

Conversely, a less ambitious, bilateral, project-based and quasi technocratic approach with

emphasis on capacity- and trust-building measures can result in otherwise politically difficult

progress. For example, Reich suggests that technical measures, such as recognising diagonal

cumulation of origin between Israel and its neighbours (Egypt, Jordan, and Palestine497) could

play a useful role in fostering economic interdependence and contribute to peaceful relations in

the Middle East498. Katsaris concurs and emphasises that the value of “undisturbed technical

networks”499 can be powerful drivers of Europeanisation.

Nevertheless, politicisation can also permeate into the realm of purely technical cooperation.

Katsaris goes on to describe how top-down interference by the Commission on the issue of

renewable energies went on to disrupt well-functioning technical cooperation networks in

Algeria, which places strategic importance on fossil fuels and viewed the Commission’s efforts

with distrust500. As we have seen, technical cooperation networks rely on horizontal trust-

building501, and one must be aware of the unintended consequences of political interference.

495 E. LANNON, Politique européenne de voisinage supra ref. 4, 25. 496 G. HARPAZ, Approximation of laws, supra ref. 176, 437-438. 497This is due to the absence of an FTA between these countries. 498 A. REICH, The European Neighbourhood Policy and Israel: Achievements and disappointments, Journal of

World Trade, 49, 4, 2015, 628-629. 499 A. KATSARIS, Europeanization through Policy Networks in the Southern Neighbourhood, supra ref. 455, 657. 500 A. KATSARIS, Europeanization through Policy Networks in the Southern Neighbourhood, supra ref. 455, 669

501 A. KATSARIS, Europeanization through Policy Networks in the Southern Neighbourhood, supra ref. 455, 659-

660.

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Finally, the ENP’s previous emphasis on a technocratic approach has been criticised in the

literature502. However, recent innovative initiatives such as the Synchrotron-light for

Experimental Science and Applications in the Middle East503 (SESAME)504, a diplomatic

initiative based on scientific cooperation, may prove fruitful in providing much needed

incentives for cooperation and should not be disregarded.

The discussion on the politicisation of the ENP ultimately lands on the long-lasting dilemma of

fostering functional cooperation with autocratic regimes or to abide the EU’s normative agenda

at the risk of high politicisation and the externalities it carries. This is at its core debate over the

possibility of bringing about a liberal democratic order via the gradual creation of institutions.

However, one should be sceptical of this “functionalist logic that progress in some areas would

create the conditions for progress in others”505.

2.5.6 Joint Ownership

The principle of joint ownership is the third original element of the adapted enlargement

methodology506. It can be defined thus: “the (potential) equality in the relationship, or at least

the idea that both the EU and the partner state will contribute to shaping a policy and identifying

common responses to common problems, as well as carrying them out.”507 Or as the

Commission stated the ENP Orientation document: “Joint ownership of the process, based on the

awareness of shared values and common interests, is essential. The EU does not seek to impose

priorities or conditions on its partners”508.

The principle of joint ownership is the rationale behind the APs as reference documents linking

to the bilateral base agreements. Admittedly, this feature may have been inserted into the ENP to

502 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 105. 503 FP7 (DG Research and Innovation) initiative. 504 JOIN(2017) 18 final, supra ref. 70, 10. 505 T. HENÖKL, A. STEMBERGER, EU Policies in the Arab World, supra ref. 150, 248. 506 D. MAHNCKE, S. GSTÖHL, Europe's near abroad, supra ref. 5, 27. 507 M. CREMONA, C. HILLION, L’Union fait la force?, supra, ref. 9, 20. 508 Communication From The Commission, European Neighbourhood Policy, Strategy Paper, 12 May 2004

COM(2004) 373 final, 8, cf. D. MAHNCKE, S. GSTÖHL, Europe's near abroad, supra ref. 5, 27.

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compensate for the “profoundly asymmetrical power relationship”509 of the EU and its

Neighbours, in light of the need to secure the neighbours’ cooperation510. It’s essential to the

functioning of the ENP that the EU involves the partner countries as stakeholders, since

inadequate co-ownership may impact negatively on the effectiveness of any assistance to partner

countries. Joint ownership is for instance crucial for the CFSP component of the ENP, where the

task lies in involving partners in the development of security strategies511.

The same preoccupation is mirrored by the horizontal financial regulation, which strives to

promote development cooperation making use of partner countries’ own institutions, systems and

processes.512 Reg. 236/2014 furthermore provides for due consultation, “whenever possible and

appropriate”513.

The ENI regulation retains the joint ownership principle of the ENPI.514 In fact, the

Commission’s proposal for the regulation had envisaged a much bigger role for beneficiaries in

preparing, implementing and monitoring support.515

Furthermore, one of the guiding principles of the SSF is the joint ownership of the programming

process. This should ideally involve both government and civil-society actors in order to perform

effectively516.

Policy dialogue with stakeholders is key to the principle of joint ownership The external

evaluation of the ENI reports mixed results in terms of coherent policy dialogue with partner

countries’ needs and priorities, following a predictable partner of positive results in willing

countries, weak results in reluctant countries and non-existent ones in extremely unstable ones517.

509 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 81. 510 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 81 511 L. FALALIEIEVA, Legal Aspects of the European Neighbourhood Policy, supra ref. 20, 62. 512 Recital 18, Reg. 236/2014. 513 Art. 13, Reg. 236/2014. 514 Art. 4(4), Reg. 232/2014, cf. Art. 4(2) jo. 4(3), Reg. 1638/2006. 515 Proposal COM(2011) 839 final, supra ref. 233, 17. 516 Instructions for the Programming of the ENI, supra ref. 264, 6. 517 European Commission, DG Development Cooperation, External Evaluation of the European Neighbourhood

Instrument (ENI), supra ref. 369, 8.

80

An unwanted consequence of the unilateral-bilateral character of APs is that too much emphasis

on joint ownership will result in partners keeping any sensitive issues at bay, hindering the

prospect of reform.518 As Gstöhl remarks, the EU’s assumption that all partner countries were

trying to emulate the European model was mistaken519.

This in conjunction with a more realistic and less ambitious approach by the EU, such as that

followed by the 2015 Review, this may lead to vagueness and lack of differentiation520.

Therefore, overemphasising the principle of joint ownership may turn into mere rhetorical

proclamations for reform521. In sum, the increased prominence given to joint ownership in the

2015 Review means that this principle of the ENP is in urgent need of reconceptualisation.

518 S. GSTÖHL, S., The contestation of values, supra ref. 233, 74. 519 S. GSTÖHL, S., The contestation of values, supra ref. 233, 74. 520 P. SEEBERG, European Neighbourhood Policy, Post-Normativity and legitimacy. EU policies towards Jordan,

Lebanon and Syria, Syddansk Universitet, Working Paper Series, No. 14, 2008, 17-18.

N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 149.

81

3. Evaluation

Having zoomed into the novelties introduced by the ENI, this dissertation will proceed to place

the ENI in the broader context of the development of the ENP. In particular, this evaluation will

focus on four sources of tension which have characterised the development of the ENP: 1) The

inherent contradictions between the principles which guide the ENP; 2) The shift of competence

to the CFSP entailed in the pursuit of security objectives; 3) The challenge of promoting and

upholding both values and interests in the EU’s external action, and; 4) The influence of other

actors in the Neighbourhood.

3.1 The inherent contradictions of the ENP

As this analysis has sought to demonstrate, the principles which have guided the development of

the ENP will often come in conflict with each other. This is because the realisation of some

these principles entails coming to policy choices which work against the realisation of other

principles.

In other words, there may be trade-offs implied in the advancement of the principles of the ENP.

The reflex in those situations would be to call for a balance between the principles in conflict,

but this is not always plausible or desirable. In a brief conceptual exercise, this part will detail

the challenges involved.

The first contradiction pertains to reconciling a coherent framework towards the Neighbourhood

with a differentiated approach in bilateral relationships. Any progress achieved by means of

regional and bilateral differentiation adds a measure of complexity in articulating a coherent

framework for the Neighbourhood. One solution is to categorise, as is the case with the

distinction between willing and reluctant partners522. But even within those groups the trade-off

522 P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy, supra ref. 186, 82.

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of differentiation and coherence arises. This in turn decreases the attractiveness for the excluded

partners523.

Secondly, it is very hard to reconcile the principle of joint ownership on the one hand and

conditionality and differentiation on the other. Other than in a best-case scenario of a partner

country willing to submit itself to comprehensive reforms, any conditions predicated on joint

ownership will be weak524. The solution here would be to strengthen incentives. However, given

the shortcomings of conditionality in the context of the ENP, this might prove highly inefficient.

Finally, an approach which gives precedence to joint ownership will find itself facing challenges

of coherence. The more the principle of joint ownership is advanced, the harder it will be to

articulate common objectives in the ENP and the more the policy will be driven by particularity

and lack of coherence.

In sum, this conceptual exercise provides indication that the proclaimed principles of the ENP

are subject to trade-offs at best and at worst pursue diametrically opposed ends. This is only

justifiable if we understand these principles as (mostly) political proclamations. In any event,

some reconceptualisation of the principles of the ENP is required. The emphasis on joint

ownership in the promotion of democratic governance in the 2015 Review is emblematic of this

problem.

3.2 Conflict between values and interests

The simultaneous pursuit of the EU’s values and interests, as established in Art. 3(5) TEU, and

reiterated and elaborated in Art. 21(2)(a) TEU is not without inherent tension.

As argued before, the consequence of the EU’s “constrained” nature as an actor in the wider

world, devoid of Kompetenz-Kompetenz means that a need for objectives translates into an

emphasis on values. As Larik states: “The proclamation of these values as the flagship of the

523 P. VAN ELSUWEGE, Variable geometry in the European neighbourhood policy, supra ref. 186, 82. 524 M. CREMONA, C. HILLION, L’Union fait la force?, supra, ref. 9, 20.

83

European policy serves to evade or minimize the ever-present resistance of the member states in

the Council to a common European neighbourhood policy”525.

Nevertheless, the Treaties “do not stipulate that EU external action is to be conducted

exclusively in the pursuit of normative or ethical ends. In other words, the Treaties condone

foreign policy that is self-interested”526.

In this case, the principle of coherence embedded in Art. 21(3) TEU does require that some

balance be struck.527 Of course, this is not always the case in practice. The promotion of values

will often take a subsidiary role to the advancement of EU interests.

The example of Morocco and the Western Sahara is once more illustrative of this issue.

Emphasis on values with regard to the Western Sahara issue could be regarded as

counterproductive to the interests of the EU.

Given Morocco’s otherwise stellar performance on the differentiation criteria of Art. 4 of the

ENI regulation, the EU relationship with Morocco can be regarded as of the most fruitful

bilateral relationships in the Neighbourhood. The question here is whether an otherwise

successful instance of cooperation should be jeopardised by emphasis on values in a particular

issue, and whether this is compatible with the normative character of external action.

An interesting finding in the original Polisario v. Council Judgment by the Court of Justice

seemed to offer a pragmatic stance. Concerning the application of the EMAA with Morocco, the

Court asserted that if an agreement envisages the liberalisation of products whose exploitation

does not respect the fundamental rights of the population of the territory from which they

originate, that the conclusion of said agreement might incentivise such infringements528.

525 I. TÖMMEL, The New Neighborhood Policy of the EU, supra ref. 12, 34. 526 J. LARIK, Foreign policy objectives in European constitutional law, supra ref. 132, 141. 527 J. LARIK, Foreign policy objectives in European constitutional law, supra ref. 132, 243. 528 Judgment, Front Populaire pour la Libération de la Saguia-el-Hamra et du Rio de Oro (Front Polisario) v

Council of the European Union, T-512/12, 10 December 2015, ECLI:EU:T:2015:953, para 231 jo. 238.

84

Nevertheless, the Court also went on to state that the exploitation of natural resources in the

Western Sahara by Morocco in the context of the agreement is not ipso facto detrimental to the

inhabitants of the Western Sahara, thereby relativising the question of the promotion of values.529

More importantly, the Court confirmed that the EU enjoys wide discretion in its external action,

and that the normative character of the EU’s external action does not preclude the conclusion of

such an agreement530.

The same relativisation of values can be observed elsewhere. For instance, in her study of the

conceptualisation of the rule of law, Burlyuk shows that when dealing with non-accession

countries, such as in the framework of the ENP, the EU will use the concept of the rule of law

rather fluidly and inconsistently, in order to […]advance in integration with the EU, thereby

minimising risks from such integration for European citizens and businesses”531.

This does not necessarily translate into an indictment of the EU’s value-promoting capacity. A

fluid conception of the rule of law may still be of added value to the partner countries. However,

such inconsistency raises questions about the effectiveness of the EU as a normative power532.

One approach in the literature has been to attribute the emphasis on democratic governance, as

guided by the founding values of the EU, to the pursuit of so-called milieu goals, which are

normative and intangible in nature,533 as opposed to possession goals, which are tangible and

quantifiable534.

However, this formulation describes the pursuit of democratic governance as another interest of

the EU in shaping its external environment according to its image. Following this approach,

values and interests are aligned and the assertion of both is consistent with each other.

529 T-512/12, supra ref. 528, para 240. 530 T-512/12, supra ref. 528, para 159-167. 531 O. BURLYUK, An ambitious failure: Conceptualising the EU approach to Rule of Law Promotion (in Ukraine),

Hague Journal on the Rule of Law, 6, 2014, 45. 532 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 8. 533 K.L. NIELSEN, M. VILSON, The Eastern Partnership: Soft Power Strategy or Policy Failure?, European

Foreign Affairs Review, Issue 2, 19, 2014, 245. 534 K.L. NIELSEN, M. VILSON, The Eastern Partnership: Soft Power Strategy or Policy Failure?, supra ref. 537,

245.

85

The alignment of values and interests is in most cases reserved to the long-run perspective, as

the examples in Chapter 2 attest. In the short-run, the promotion of values results in instability,

which can be detrimental to the EU’s short-term interests. In this light it becomes particularly

clear why the 2015 Review of the ENP is very focused on the short-term.

In conclusion, the conflict between values and interests proves less problematic when the task

lies in articulating the EU’s values than it is in aggregating and advancing its interests and in

striking a balance between the pursuit of both values and interests. This is a challenge of

coherence. In the long run, the projection the EU’s values and interests should align. In the short

run, however, these contradictions will prevail.

3.3 Securitisation of the ENP

A further point of discussion in this evaluation concerns a trend rather than a feature of the ENP.

Given the multiple security challenges throughout the Eastern and Southern Neighbourhoods,

there is a pressing need for a reinforced security component of the ENP. Arguably, the notion

that security and development are complementary was brought forward by the Commission as

early as 2005535. Furthermore, the ENI Regulation makes a clear link between the objectives of

the CFSP and those of the ENP536.

However, the focus on stability and resilience in the 2015 Review will result in a shift of the

ENP’s objectives into CFSP. Moreover, 2016 ESS identifies “State and societal resilience” as a

strategic priority in the Neighbourhood,537 a sentiment echoed by the Parliament in its recent

report of the implementation of the CFSP538, whilst stressing that “The European

Neighbourhood Policy is key for both the EU's Common Foreign and Security Policy and other

535 Communication From The Commission To The Council, The European Parliament And The European Economic

And Social Committee, Policy Coherence for Development, Accelerating progress towards attaining the Millennium

Development Goals, 12 April 2005, COM(2005) 0134 final, 9. 536 Art. 2(2)(e), Reg. 232/2014., cf. S. POLI, Promoting EU values in the neighbourhood, supra ref. 96, 41. 537 European External Action Service, Shared Vision, Common Action: A Stronger Europe, A Global Strategy for the

European Union’s Foreign And Security Policy, June 2016, 25. 538 European Parliament, AFET, Report on the implementation of the Common Foreign and Security Policy, 30

November 2016, A8-0360/2016, 4,7,17,18,37,40.

86

areas of the EU's external action”539. Hence, the ENP could be said to have “slipped into the

intergovernmental framework of the CFSP”540. Securitisation of the ENP therefore refers to this

gradual shift into CFSP areas.

It’s questionable whether such a development is desirable. In its current constellation, he ENP

has not been particularly successful in the realm of security, as the escalation of border conflicts

in the Eastern Neighbourhood attests541. The securitisation of the ENP signals a shift towards to

the intergovernmental approach, with the lowest common denominator dynamics it implies542.

This process of securitisation will require a reconceptualisation of the role the Neighbourhood

should play in addressing security challenges in the EU’s proximity and beyond. On the one

hand, the Neighbourhood is a security threat in itself, a “ring of fire”. On the other hand, it

should act as a buffer between the EU and other security threats further away543.Moreover, the

process of securitisation of the ENP could be said to have a “centrifugal” effect, shifting priority

to the Member States to the detriment of the EU’s normative agenda.544 Hence, an approach

focused on security has been described as narrow or short-term545. Moreover, it raises concerns

that merging different policies under the mantle of a security strategy will have negative

consequences for genuine development issues.546

However, Rieker’s proposition that security-building in the Neighbourhood is contingent on the

level of integration with the EU and its attractiveness to the partner countries547 is an

539 Council of the European Union, Outcome of the 3438th Council meeting, Foreign Affairs, 14 December 2015,

15278/15, PRESSE 81PR CO 73,

http://www.consilium.europa.eu/en/meetings/fac/2015/12/st15278_en15_pdf/ 540 E. LANNON, Reappraisal of the European Neighbourhood Policy, supra ref. 27, 233. 541 R. PETROV, The Principle of Good Neighbourliness, supra ref. 139, 295. 542 E. LANNON, The 2015 review of the European Neighbourhood Policy, supra ref. 51, 79. 543 N. GHAZARYAN, ‘Good Neighbourliness’ and Conflict Resolution in Nagorno-Karabakh: Rhetoric or Part of

the Legal Method of the European Neighbourhood Policy? in: D. KOCHENOV, E. BASHESKA, Good

Neighbourliness In the European Legal Context, Leiden, Brill Nijhoff, 2015, 314. 544 N. GHAZARYAN, The European Neighbourhood Policy and the democratic values of the EU, supra ref. 90, 18. 545 E. LANNON, S. GSTÖHL, The European Union’s broader neighbourhood: challenges and opportunities for

cooperation beyond the European Neighbourhood Policy. Routledge series on global order studies, Abingdon:

Routledge, 2015, 315. 546 I. TANNOUS, The Programming of EU's External Assistance, supra ref. 342, 352. 547 P. RIEKER, The European Neighbourhood Policy: an instrument for security community building, supra ref. 84,

7.

87

encouraging sign of the possibility of reconciling a securitised ENP with the ambitions of its

predecessors. However, we should be wary of the ENP drifting too far into CFSP areas.

3.4 Exogenous factors

A last point to consider pertains to the influence that exogenous factors have on the

implementation of the ENP. This encompasses on one hand the involvement of other

international actors in the Neighbourhood, and the presence that global and transnational effects

can have on the Neighbourhood on the other hand.

It’s important to realise that the EU’s efforts in the Neighbourhood occur in parallel to the efforts

of other international actors. In the Eastern Neighbourhood which entirely consists of former

Soviet Republics, Russia’s perception of, and attitude towards the ENP is the dominating factor.

Alas, Russia has come to perceive the EU’s involvement in the Eastern Neighbourhood as a

zero-sum game, that is, as a hindrance to its own interests.548, and the EU’s efforts in the

Neighbourhood as power projection and the assertion of hegemonic control in its near abroad549.

Russia’s undermining of the conclusion of the AA with Ukraine, insisting that it’s “necessary

and just”550 that it should be involved in negotiations thereof. Moreover, it was President

Yanukovych’s refusal to sign the AA arguably under Russian pressure551 which was the catalyst

of the Maidan protests of 2014 leading to his eventual removal and the onset of the Ukrainian

crisis. Moreover, Russia had identified the DCFTA with Ukraine as a threat to the Russian

economy552. The EU’s decision to delay the implementation of the DCFTA with Ukraine553,

purportedly on a technical issue, but in fact on the basis Russian concerns raised questions on the

548 S. LEHNE, Time to Reset the European Neighborhood Policy, supra ref. ?, 7. 549 N. TOCCI, Can the EU promote democracy and human rights through the ENP?, supra ref. 74, 32. 550 R. PETROV, The Principle of Good Neighbourliness, supra ref. 139, 300. 551 M.A. PĂDUREANU, More Expectations Towards The European Neighbourhood Policy: The Case Of Ukraine,

Europolity, 9, 2, 2015, 232-233. 552 M. NATORSKI, The EU and Crisis in Ukraine: Policy continuity in Times of Disorder? in: D. BOURIS, T.

SCHUMACHER, The Revised European Neighbourhood Policy: Continuity and Change in EU Foreign Policy,

Basingstoke: Palgrave Macmillan, 2016, 183-185. 553 European Commission, ‘Joint Ministerial Statement on the Implementation of the EU-Ukraine AA/DCFTA’,

Statement, 12 September 2014, http://europa.eu/rapid/press-release_STATEMENT-14-276_en.htm

88

EU’s commitment to its own strategy of convergence,554 possibly creating a perilous

precedent.555

A last thing to consider is that Russia seems to operate in the Eastern Neighbourhood on the

basis of a particular sort of conditionality, that of political loyalty556. In this context, and efforts

of the early ENP notwithstanding in integrating Russia into the policy, it will be hard to

transcend zero-sum dynamics in the Eastern Neighbourhood.

In the Southern Neighbourhood, the influence of international actors is certainly more diffuse.

The list of relevant actors certainly includes Russia, particularly in the context of its engagement

in Syria, but also other global actors such as China, or regional actors, such as the Gulf

Cooperation Council (GCC), which must be taken into account.

China pursues a two-pronged strategy of pursuing stability based on the principle of non-

intervention in countries’ internal affairs and stronger economic links as a springboard for

approaching European markets557. In turn, the oil-rich autocracies of the GCC make use of their

considerable funds to expand their regional influence. For instance, between 2011-2014, Saudi

Arabia provided 3.7 bn. US$ to countries affected by the Arab Spring558. Qatar in turn committed

3.6 bn. US$ only to post-revolutionary Egypt before the fall of the Morsi regime.559

These are all international actors which place a different, illiberal emphasis on values. Therefore,

their engagement in the Neighbourhood may have negative effects on the EU’s ability to

effectively exercise conditionality. In the market for financial assistance in exchange for

influence, the EU’s conditional package may seem increasingly less attractive. In other words,

554 M. NATORSKI, The EU and Crisis in Ukraine: Policy continuity in Times of Disorder?, supra, ref. 556, 185. 555 R. PETROV, The Principle of Good Neighbourliness, supra ref. 139, 301. 556 T. A. BÖRZEL, B. LEBANIDZE, European Neighbourhood Policy at the Crossroads, supra ref. 203, 12. 557 A. BRYN, R. COLETTI, Global Empires and the European Neighbourhood: China, Russia and the US in: F.

CELATA, R. COLETTI, (eds.), Neighbourhood Policy and the Construction of the European External Borders.

GeoJournal Library, vol. 115, Cham: Springer, 2015, 188-189. 558 P. RIEKER, N. BREMBERG, The ENP as an Instrument for Building a Security Community: The Case of

Morocco, Norwegian Institute of International Affairs, NUPI Working Paper 835, 2014, 18. 559 J. C. VÖLKEL, More for More, Less for Less– More or Less, supra ref. 153, 278.

89

the conditional approach is likely to experience diminishing returns or be entirely “priced out” of

the market for global influence.

It must also be taken into account that the perception of the EU as a value-driven actor is one

factor behind the EU’s attractiveness560. This perception of the EU as a source of “norms and

laws of the highest level”561, a community based on democracy, human rights, and the rule of

law. In the case of the EaP, this has even come to be regarded as a civilizational discourse,

conceptualised as a choice in these countries between Russia and the West.562

However, this “civilizational attractiveness” must be matched with appropriate funds. Therefore,

it’s possible that the EU’s abandonment of the principle of conditionality in the 2015 Review is

the reflection of a competitive market for influence in times of decreased capacity. This is

regrettable. The normative character of the EU’s external action should be read as a

programmatic or teleological mandate to advance the founding values of the EU onto the wider

world. For, as we have seen, these values will tend to align with the EU’s interests, by means of

the expansion of the community of values. Therefore, the lack of ambition of the 2015 ENP

Review must also be regarded as a lack of foresight.

Also important, but decidedly more elusive set of exogenous factors which have an impact on the

Neighbourhood is the presence of regional and transnational challenges beyond the

Neighbourhood’s borders. Addressing these challenges requires the cooperation of partner

countries beyond the Neighbourhood, the “Neighbours of the Neighbours”563. This is the case for

issues such as migration, energy, and security564. The 2015 Review of the ENP takes account of

these factors and provides for the (limited) involvement of countries beyond the

Neighbourhood.565 This move away from the ‘silo mentality’566 of EU external assistance and in

favour of a wider regional approach is a welcome development.

560 H. KOSTANYAN, (ed.), Assessing the European Neighbourhood Policy, supra ref. 30, 11. 561 D. BALTAG, G. BOSSE, The ENP as an instrument for building a security community? The case of Moldova,

Norwegian Institute of International Affairs, NUPI Working Paper 833, 2014, 26. 562 D. BALTAG, G. BOSSE, The ENP as an instrument for building a security community?, supra ref. 561, 26. 563 E. LANNON, S. GSTÖHL, The European Union’s broader neighbourhood, supra ref. 545, 17. 564 E. LANNON, The 2015 review of the European Neighbourhood Policy, supra ref. 51, 78. 565 E. LANNON, The 2015 review of the European Neighbourhood Policy, supra ref. 51, 78. 566 E. LANNON, S. GSTÖHL, The European Union’s broader neighbourhood, supra ref. 545, 318.

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3.5 Conclusion

This analysis of the novelties of the European Neighbourhood Instrument has provided a

valuable opportunity to assess several aspects of European external action through the prism of

one of its financial assistance mechanisms. This review of the ENI in light of the processes of

continuity and change in the ENP has come to the following conclusions:

The ENI regulation can first and foremost be described as following the path traced by of the

ambitions of the early ENP, and as such shows remarkable continuity, introducing innovations

increasingly more ambitious in scope following the 2011 revision of the ENP, but largely

retaining the same paradigm with regard to the Neighbourhood, whilst reflecting the new

institutional arrangements after the Lisbon treaty.

Purported improvements to horizontal coherence may have had limited effect. Significant

challenges to coherence remain in particular in those instances when values and interests are not

aligned.

As for the more for more approach, its conceptual ambitiousness was not matched by appropriate

incentives. As such, it failed to take into account that conditionality in the context of the ENP

may be inherently weak. This mismatch between the idealism of the more for more approach and

the dynamics of the ENP is a good example of the conception-performance gap567.

Increased differentiation has resulted in the multi-speed Neighbourhood, with all the challenges

it implies to coherence and complexity. Therefore, reconceptualising the ENP in a way that both

further formally distinguishes and functionally differentiates both regionally and bilaterally, i.e.

between ‘European Neighbours’ and ‘Neighbours of Europe’ and within the Neighbourhood

between willing and reluctant partner countries. is a desirable development. This would continue

the application of the incentive-based approach where it has been most successful.

567 N. KOENIG, Taking The ENP Beyond The Conception-Performance Gap, supra ref. 60, 3.

91

The procedures for programmed measures in the ENI have largely remained unchanged from the

ENPI. In terms of monitoring compliance or establishing benchmarks, the programming

documents still seem to an extent opaque and arbitrary. The huge divergence in allocations568

between partner countries suggests more arbitrariness than the application of the incentive-based

approach.

In her assessment of the instruments under the ENPI (NIPs and CSPs), Vianello suggested that

these “while seemingly technical, bear important discretionary power” and yet “find

[themselves] in a general vacuum of norms”569. Alas, this still seems to be still largely the case

regarding the SSFs under the ENI.

Regarding politicisation, the content of the ENI has become more politicised primarily due to

the institutional post-Lisbon set-up and the emphasis on values of the 2011 revision. Perhaps this

is not necessarily a negative development, but one should be wary of disturbing well-functioning

technical cooperation through increased politicisation.

Beyond the ENI, the clear trade-off between the flexibility that soft law instruments provide, to

the detriment of clarity, binding commitments and a sense of direction continues to reverberate.

Therefore, the proliferation of DCFTAs as hard law components which advance economic

integration in the Neighbourhood is also a welcome development.

The effect of the EU’s normative power at the global stage may be overstated. Moreover, due to

increased competition on the global stage, it might find itself experiencing diminishing returns.

However, this doesn’t mean normative power shouldn’t be pursued. The promotion of values is

the key to the EU’s attractiveness. Therefore, a targeted approach should be considered.

Finally, it is evident how substantially the 2015 Review makes break with the path the ENP had

followed since its inception. The emphasis on stability and the abandonment of conditionality

signal a different vision towards the Neighbourhood, but also a predilection for the short-term

568 Annex, Fig. 4. 569 I. VIANELLO, Guiding the Exercise of the Union's Administrative Power, supra ref. 119, 12.

92

strategy and a lack of ambition. Therefore, we can expect some considerable adaptation at the

mid-term Review.

93

4. Annex

List of Figures

Fig. 1: Assessment of civil and political rights and corruption perceptions in

Neighbourhood countries (2017).

Fig. 2 Comparison of MEDA II/TACIS II 2002-2006 and ENPI 2007-2010 (Allocations).

Fig. 3: ENPI 2007-2013 (Commitments and Disbursements)

Fig. 4: ENI 2014 (Commitments and Disbursements)

Fig. 5: Single Support Frameworks: Sectors of intervention 2014-16/17

94

Fig. 1: Assessment of civil and political rights and corruption perceptions in

Neighbourhood countries (2017).

Country

Freedom

Status570 Political Rights Civil Rights

Corruption

Perception571

EaP

Armenia Partly Free 5 4 33

Azerbaijan Not Free 7 6 30

Belarus Not Free 7 6 40

Georgia Partly Free 3 3 57

Moldova Partly Free 3 3 30

Ukraine Partly Free 3 3 29

Mediterranean

Algeria Not Free 6 5 34

Egypt Not Free 6 5 34

Israel Free 1 2 64

Jordan Not Free 6 5 48

Lebanon Partly Free 5 4 28

Libya Not Free 6 6 16

Morocco Partly Free 5 4 37

Palestine* Not Free 6 6 N/A

Syria Not Free 7 7 13

Tunisia Free 1 3 41

1=Free

7=Not Free

100=Low

0= High

570 Freedom House, Freedom in the World 2017, Populists and Autocrats: The Dual Threat to Global Democracy,

20-24, https://freedomhouse.org/sites/default/files/FH_FIW_2017_Report_Final.pdf 571 Transparency International, Corruption Perceptions Index 2016,

http://www.transparency.org/cpi2016

95

Fig. 2: Comparison of MEDA II/TACIS 2002-2006 and ENPI 2007-2010 Allocations572

MEDA II/Tacis v. Early ENPI Allocations, Mio. € (2008 prices)

MEDA II/Tacis v. Early ENPI Allocations

ENPI Per Annum

TACIS 2002-2006 Per Annum 2007-2010 Per Annum

Armenia 30 6 98 24.5

Azerbaijan 44 8.8 92 23

Belarus 10 2 20 5

Georgia 42 8.4 20 5

Moldova 62 12.4 210 52.5

Ukraine 279 55.8 494 123.5

Sub-Total 467 93.4 934

MEDA II 2002-2006 2007-2010

Algeria 256 51.2 220 55

Egypt 594 118.8 558 139.5

Israel N/A

8 2

Jordan 197 39.4 265 66.25

Lebanon 122 24.4 187 46.75

Libya N/A

8 2

Morocco 701 140.2 654 163.5

Palestine* N/A

632 158

Syria N/A

130 32.5

Tunisia 394 78.8 300 75

Sub Total 2264 452.8 2962

Total Tacis /MEDA II 2731 546.2

Total ENPI

3896

572 European Parliament, DG Internal Policies, Study, Global Evaluation Of The European Neighbourhood Policy

Instrument (sic), 1 February 2008, 35,

http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/200/200804/20080402_ENPI_final_en.pdf

96

Fig. 3: ENPI 2007-2013 (Commitments and Disbursements)573574

573 European Commission, ‘DG Development Cooperation, European Neighbourhood Partnership Instrument 2007-

2013: Overview of Activities and Results, September 2011’, 74-76.

https://ec.europa.eu/europeaid/sites/devco/files/overview_of_enpi_results_2007-2013_en_0.pdf 574 Author’s Compilation.

Cou

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43.1

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75.0

25.5

66.0

25.7

28

1.5

13

0.0

46.2

%3.2

49

40.0

1

Aze

rbaijan

19.0

3.7

22.0

6.5

20.0

5.1

7.0

11.3

31.0

15.2

19.5

18.7

25.0

8.6

14

3.5

69

.148.2

%8.9

97

7.6

8

Bela

rus

6.0

0.6

5.0

3.0

10.0

2.7

10.0

5.1

17.1

1.1

22.3

9.3

23.8

15.7

94

.23

7.5

39.8

%9.4

83.9

6

Geo

rgia

24.0

14.7

90.3

32.7

70.9

69.0

37.2

41.7

50.7

66.3

104.0

61.2

75.0

47.6

45

2.1

33

3.1

73.7

%4.4

36

75.0

9

Mo

ldo

va

40.0

8.0

62.3

23.7

57.0

66.1

66.0

56.6

78.6

79.3

122.0

53.1

135.0

65.0

56

0.9

35

1.8

62.7

%3.5

63

98.7

4

Ukra

ine

142.0

64.8

138.6

62.3

116.0

39.0

126.0

42.3

135.0

22.2

149.0

9.0

199.0

6.7

10

05

.62

46

.224.5

%45.7

82

5.3

8

Ru

ssia

13.0

52.1

5.0

123.3

18.0

100.9

26.5

121.3

4.0

103.7

0.0

79.9

0.0

152.8

66

.57

33

.91103.6

%142.8

49

5.1

4

Su

b-t

ota

l B

ilat.

265.0

154.8

347.2

258.4

316.6

300.3

300.4

239.9

359.5

315.5

491.8

256.6

523.8

322.1

26

04

.31

90

1.6

73.0

%

Reg

./In

terr

eg

.131.2

36.7

99.5

51.4

112.7

70.2

186.5

110.6

209.5

80.7

236.9

123.8

304.1

116.6

1280.3

590.1

46.1

%

Tota

l E

aP

+R

us.

396.2

191.5

446.7

309.8

429.3

370.5

486.9

404.6

569.0

396.2

728.7

380.4

827.9

438.7

38

84

.62

49

1.7

64.1

%

Medit

erran

ean

20

07

20

07

20

08

20

08

20

09

20

09

20

10

20

10

20

11

20

11

20

12

20

12

20

13

20

13

Tota

lT

ota

lD

/CP

op. 2

01

0

CD

CD

CD

CD

CD

CD

CD

CD

Alg

eri

a57.0

51.3

32.5

46.1

35.6

47.9

59.0

28.1

58.0

42.9

74.0

30.3

50.0

37.3

36

6.1

23

8.3

65.1

%35.9

78

6.6

2

Eg

yp

t137.0

170.3

149.0

148.1

140.0

151.0

192.0

106.2

92.0

39.1

250.0

93.2

47.0

28.2

10

07

.07

36

.073.1

%78.2

78

9.4

0

Isra

el

2.0

2.8

2.0

2.7

1.5

2.5

2.0

3.5

2.0

4.5

2.0

3.5

2.0

3.6

13

.52

3.0

170.4

%7.6

23

3.0

2

Jord

an

62.0

46.1

65.0

63.6

68.0

49.0

70.0

92.0

116.0

76.3

120.0

91.6

139.6

96.6

64

0.6

51

5.1

80.4

%6.1

13

84.2

6

Leb

an

on

50.0

32.6

50.0

43.5

43.0

24.6

44.0

26.1

33.0

14.1

92.0

29.3

143.0

79.3

45

5.0

24

9.5

54.8

%3.7

85

65.9

2

Lib

ya

2.0

0.0

4.0

1.2

0.0

1.3

12.0

0.6

10.0

8.0

25.0

2.9

30.0

7.7

83

.02

1.6

26.0

%6.5

45

3.3

0

Mo

rocco

190.0

227.5

228.7

224.9

145.0

200.7

158.9

170.1

156.6

151.5

207.0

110.1

334.9

84.1

14

21

.11

16

8.9

82.3

%31.8

94

36.6

5

Pale

sti

ne*

452.7

381.4

387.0

425.9

352.6

327.8

377.9

325.5

413.7

322.3

224.0

264.7

313.7

305.5

25

21

.62

35

3.1

93.3

%4.0

48

581.3

0

Sy

ria

20.0

34.1

20.0

26.5

40.0

31.2

50.0

18.4

10.0

18.8

48.4

1.8

51.0

29.4

23

9.4

16

0.3

67.0

%20.6

19

7.7

7

Tu

nis

ia103.0

97.9

73.0

56.0

77.0

74.4

77.0

68.5

180.0

114.3

130.0

145.2

135.0

80.3

77

5.0

63

6.6

82.1

%10.5

47

60.3

6

Su

b-t

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l B

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1075.7

1043.9

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1038.5

902.7

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1042.8

838.9

1071.3

791.8

1172.4

772.6

1246.2

752.0

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.36

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7.9

82%

Reg

./In

terr

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.152.7

106.9

146.5

97.7

196.7

99.8

165.6

156.8

233.3

115.6

301

118.3

323.1

97.1

1518.9

792.1

52%

Tota

l M

ed.

1228.4

1150.8

1157.7

1136.2

1099.4

1010.1

1208.4

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1304.6

907.3

1473.4

890.9

1569.3

849.1

9041.2

6940.6

77%

CB

C2007

2008

2009

2010

2011

2012

2013

To

tal C

To

tal D

D/C

EN

PI

co

ntr

.4.2

28.6

60.0

39.1

69.2

54.6

68.4

67.1

83.5

77.5

95.2

76.8

82.6

60.8

463.1

404.5

87%

Tota

l E

NP

I1628.8

1370.9

1664.4

1485.1

1597.9

1435.2

1763.7

1467.4

1957.1

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2297.3

1348.1

2479.8

1348.6

13

38

8.9

98

36

.273%

Fig

ure

C=

Co

mm

itm

en

ts

D=

Dis

bu

rsem

en

ts

D/C

= D

isb

urs

em

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ts a

s p

ct.

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= P

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ts (

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013, €

)

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C =

Cro

ss B

ord

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n)

97

Fig. 4: ENI 2014 (Commitments and Disbursements)575576577

Country Commitments Disbursements Population

Per Capita

Disb.

Mio. €

€

EaP 2014 2014 2014

Armenia 34.0 23.2 3.0 7.73

Azerbaijan 21.0 6.8 9.5 0.72

Belarus 19.0 22.3 9.5 2.35

Georgia 131.0 41.1 4.8 8.56

Moldova 131.0 93.7 4.1 22.85

Ukraine 242.0 314.1 42.9 7.32

Sub-total Bilat. 578.0 501.1

Reg./Multi-c.

Prog. 152.4 47.0

Total EaP 730.4 548.1 73.8 7.43

Mediterranean 2014 2014

C D

Algeria 26.3 33.0 39.6 0.83

Egypt 115.0 91.1 87.9 1.04

Israel N/A 4.4 8.2 0.54

Jordan 174.5 56.3 7.6 7.41

Lebanon 146.1 78.2 5.0 15.64

Libya 8.0 11.0 6.3 1.75

Morocco 218.0 76.2 33.3 2.29

Palestine* 309.5 303.7 4.4 69.02

Syria578 61.3 2.0 22.0 0.09

Tunisia 169.0 178.5 11.0 16.23

Sub-total Bilat. 1227.7 834.4 225.3 114.8

Reg./Multi-c.

Prog. 229.1 92.8

Total Med. 1456.8 927.2

Other 2014 2014

CBC (ENI Contr.) 6.9 45.0

Erasmus+ 102.9 99.9

Total ENI 2297.0 1620.2

575 European Commission, Implementation of the European Neighbourhood Policy Statistics, Implementation of the

European Neighbourhood Policy in 2014, Joint Staff Working Document, 25 March 2015, Com(2015) 75 Final, 60-

61. https://eeas.europa.eu/sites/eeas/files/enp-regional-report-southern-mediterranean_en.pdf 576 Author’s compilation 577 Note: The latest publicly available statistics for both commitments and disbursement are those for 2014. 578 Bilateral programmes have been suspended with Syria since 2011.

98

Fig. 5: Single Support Frameworks: Sectors of Intervention 2014-2016/17579

Country Interv. Sector 1 Alloc.

Interv. Sector 2 Alloc. Interv. Sector 3 Alloc.

Compl.

Support580 Alloc.

EaP

Armenia Private Sector Dev. 35%

Public Adm. Reform 25%

Justice Sector

Reform 20%

Capacity/Inst.

Dev. 15%

Civil Society

Org. 5%

Azerbaijan Regional and Rural 40%

Justice Sector Reform 20%

Education and

Skills Dev. 20%

Capacity/Inst.

Dev. 15%

Dev.

Civil Society

Org. 5%

Belarus

(MIP) Social Inclusion 30%

Environment 25%

Local/Reg. Econ.

Dev. 25%

Capacity/Inst

Dev. 10%

Civil Society

Org. 10%

Georgia Public Adm. Reform 25%

Agricultural/Rural Dev. 30%

Justice Sector

Reform 25%

Capacity/Inst

Dev. 15%

Civil Society

Org. 5%

Moldova Public Adm. Reform 30%

Agricultural/Rural Dev. 30% Police Reform 20%

Capacity/Inst

Dev. 15%

and Border Management

Civil Society

Org. 5%

Ukraine

Association

Agenda581

Mediterranean

Algeria Justice Reform 25%

Labour Market Reform and 30%

Economic

Diversification 30%

Capacity Dev.

and 15%

Citizen Participation Employment Creation

Civil Society

Org.

Egypt #582 Poverty alleviation 40% Governance Transparency/ 20% Quality of life 40% N/A

Local Socio-Econ. Dev. Business Environment

Environment

Israel583 Twinning 90% Procurement 8.3% Evaluation/Audit 1.6 %

Jordan Reinf. Rule of Law 25%

Employment and 30% Renewable Energies 30%

Civil Society

Org. 15%

Accountability in public serv. Private sector dev.

Energy Efficiency

10%

Lebanon # Justice and security 15%

Promotion of Social

cohesion 40% Sust. Management 20% Capacity Dev. 10%

system reform Sust. Dev., Vulnerable groups of natural resources

Civil Society

Org. 15%

Libya (MIP)

Democratic

Transition 45%

Youth: Active citizenship

and 28% Health 16%

Capacity/Inst

Dev. 6%

Socioeconomic integration

Civil Society

Org. 5%

Morocco Equitable access 30%

Democratic Governance, 25% Jobs and 25%

Capacity/Inst

Dev. 20%

to basic services Rule of Law and Mobility

Sustainable Growth

Civil Society

Org.

Palestine* # Support to national 5% Supp. to private sector 5% Water/Land Dev. 5% PEGASE 55%

and local governance and sustainable Dev.

UNRWA 25%

East Jerusalem >5%

Syria

Tunisia # Socio-Economic 40%

Democratic Consolidation 15%

Sustainable Reg.

Dev. 30%

Capacity Dev.

and 15%

Reforms for growth

Civil Society

Org.

579 SSF 2014-2017, author’s compilation. 580 In the case of Palestine, complementary support is replaced by Temporary Special Measures. 581 The Ukrainian association agenda was already in place before the advent of the SSFs. 582 # SSF for 2014-16 (instead of 2017). 583 Special Measures 2015

99

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