A. European Structural and Investment Funds and the transition from institutional to independent living in the community

The current CPR for the programming period 2021–2027 contains measures and provisions aimed at promoting, inter alia, “social inclusion in the community”, “community-based care” for adults and family-based care for children with disabilities, but the term “independent living” is not mentioned. The previous CPR for the period 2014–2020 contained similar but even less stringent, and thus more prone to various interpretations, provisions that also aimed at promoting deinstitutionalization (DI). The flexibility of the wording, and perhaps the fact that the CRPD was still a fairly “young” treaty, resulted in those funds being widely used to support the development of different forms of institutional care, mostly the care organized in somewhat smaller groups. This paper assesses the previous programming period by addressing the complaints submitted to the European Commission (EC) and the European Court of Justice (ECJ) by organizations of persons with disabilities (OPDs) and non-governmental organizations (NGOs) in relation to the alleged misuse of ESIFs. The present programming period regulation is analysed in terms of its content and not through the application and interpretation by the EC and Member States due to the lack of data that would enable such analysis.

After the criticism of the use of those funds in the 2007–2013 programming period, the EU adopted certain measures that should have prevented misuse. For the programming period 2014–2020, the EU introduced so-called ex-ante conditionalities (EACs hereafter) to promote “effective and efficient use of the EU funding” (art. 19, CPR).[1] Also, article 19, paragraph 5 of the CPR enabled the EC to stop funds where a Member State did not fulfil EACs. One of the “general” EACs considered disability-related issues, while one “thematic” EAC was aimed at “promoting social inclusion, combating poverty and any discrimination”.[2] A general EAC “disability” considered “the existence of administrative capacity” to implement and apply the CRPD in the field of ESIFs.[3] As an “investment priority” under the thematic EAC 9 for the European Regional and Development Fund (ERDF) was “the transition from institutional to community-based services”.[4] Criteria for the fulfilment of those EACs were mainly related to having strategic documents in place and their implementation ongoing. However, none of those criteria specifically mentioned children or adults with disabilities.

The EACs, however, had not been efficient enough in preventing the use of ESIFs contrary to the CRPD and the CRPD Committee’s recommendations. Commenting on the general success of EACs, the European Court of Auditors found that those measures had questionable results, perhaps because the EC would not halt the funding when EACs were not met by a Member State.[5] This was the case with disability-related issues too. The CRPD Committee expressed concern that the ESIFs had still been used to build and expand institutions for persons with disabilities, in spite of the new regulation.[6] This treaty body called upon the EU to ensure the use of ESIFs “strictly for the development of support services for persons with disabilities in local communities and not for the redevelopment or expansion of institutions” and, where necessary, to halt funding if those requirements were breached.[7] The CRPD Committee also recommended improving the monitoring of the use of funds, which the EU has arguably partly fulfilled in the current financial regulation.[8] OPDs and civil society organizations (CSOs) had several (unsuccessful) attempts to hold Member States and the EC accountable for the use of EU funds that was not in line with the EU law in this period.[9] Most recently, the European Network on Independent Living, a watchdog for the use of ESIFs, uncovered several cases where those funds were invested in the development of residential care in the programming period 2014–2020, including the use of the Recovery and Resilience Facility (a fund for COVID-19 recovery) to support residential care in a number of Member States.[10]