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After the Hamas Attack, Will the EU Suspend Aid to Palestine? A Legal and Political Analysis

Jacob Öberg  (University of Southern Denmark)*

After Hamas’ disastrous surprise attack on Israeli territory commencing Saturday on 7th of October, the European Union has been asked to reconsider and analyse its current aid commitment aid to the Palestinian State. Without assessing the political merits of suspending aid programmes to Palestine (or questions of whether the aid would be tunnelled to Hamas), this short post accounts briefly for the legal and political situation in the area of development aid. The decision whether to suspend development aid to Palestine is highly significant first as the EU is the most important donor for the Palestinian people. Only last year it gave some €283 million (including humanitarian aid and other financial assistance) to support the Palestinian Authority, the main UN agency for Palestinian refugees (UNRWA), and other projects, according to the European Commission (Euractiv). As explained by Commission Spokesperson Eric Mamer the urgent review concerns the development assistance allocated in the past three years, worth €681 million (EEAS Commission; Euronews). Thus, a potential decision to suspend EU aid to the Palestinian Authority has major implications for the Palestinian society.

As a first brief context, Olivér Várhelyi, the European commissioner for the EU neighbourhood first made a statement on X (formerly Twitter) that ‘all payments’ from the EU Commission were ‘immediately suspended’. On the contrary, subsequent to this statement, Janez Lenarčič, the European Commissioner for Humanitarian Aid and Crisis Management, however, stated on X that ‘EU humanitarian aid to Palestinians in need will continue as long as needed’. EU Member States such as Spain, Ireland and Luxembourg also communicated publicly that they were not supporting the suspension of the aid (Financial Times).

The Commission subsequently clarified in a press release that the review of non-humanitarian aid would be conducted ‘as soon as possible’ and it would ‘co-ordinate with member states and partners any follow up action necessary’. The review of non-humanitarian aid ‘is to ensure that no EU funding indirectly enables any terrorist organisation to carry out attacks against Israel’, and that it would also assess if “support programmes to the Palestinian population . . . need to be adjusted”. ( EU Commission Press Release ). At this stage, it seems that EU Member States, whilst supporting a review of the aid programme are not ready to discontinue their financial support to the Palestinian Authority. Per the press-statement by High Representative Jospeh Borrell there is an overwhelming majority (with “maybe two or three exceptions”) of the Member States stating clearly that the cooperation will the Palestinian Authority has to continue, and the funding has to continue, and the payments should not be interrupted. (Press remarks by high-representative Josep Borrell after informal EU Foreign ministers meeting) .

From a legal point of view, the first central point is that this development aid and humanitarian assistance is a parallel competence between the EU and the Member States per Art 4 TFEU. This entails importantly that Member States are competent to decide to grant or suspend aid arrangements with a third state independently of the actions by the European Union. The second observation is that it is not possible for an independent Commissioner to take a decision on the suspension of aid, even if Commission has been provided with implementation powers. The Commission needs to act as a college either by written procedure (ie the text is not discussed) or by oral procedure (with a discussion). If a vote is requested, the Commission decides by simple majority (Art 8 of the Commission’s Rules of Procedure, Art 250 TFEU). Since the suspension of aid is an issue of significant political importance, this power cannot be delegated to a single commissioner (Arts 13 and 14 of the Commission’s Rules of Procedure).

As a matter of clarification, the EU Commission is not contemplating whether it would suspend humanitarian assistance under the European Civil Protection and Humanitarian Aid Operations (ECHO, see Van Elsuwege and others) as might have been indicated by the earlier communication by Commissioner Várhelyi. The review of other financial assistance, which is the core issue here in the discussion on Palestine, is subject to the procedures laid down in the Neighbourhood and Development cooperation regulation. The current aid programme to Palestine is a multi-annual indicative programme which falls under the  Neighbourhood, Development and International Cooperation Instrument (NDICI) – ‘Global Europe’ – for the period 2021-2027 and is subject to the procedure in Art 16 of that regulation. This suggests that the programme shall be reviewed following the mid-term evaluation as well as on an ad hoc basis as necessary for effective implementation, in particular where there are substantive changes in the policy framework. However, on duly justified imperative grounds of urgency, such as “crises or immediate threats to peace, democracy, the rule of law, human rights or fundamental freedoms”, the Commission may amend multiannual indicative programmes by means of implementing acts. This is what is at stake in the current situation as there are substantiated threats to peace in respect of Palestine and Israel (Art 16(4)).

Nonetheless, there is also a specific urgency procedure for adopting such acts. The key part in this procedure is that Member States retain control in approving the amendment for aid programmes through the Neighbourhood, Development and International Cooperation Instrument committee, the latter being composed of representatives of the Member States (Art 45 of the Neighbourhood and Development cooperation regulation.). That committee acts and votes in a similar way as the Council of Ministers (Art 5 of Regulation 182/2011 on mechanisms for control by Member States of the Commission’s exercise of implementing powers and Arts 16(4) and (5) of the TEU, Art 238(3) TFEU). In theory, it would be possible to adopt the act directly without the approval of the Committee ‘on duly justified imperative grounds of urgency’ (eg crises or threats to peace) but in such a case the amended act needs to be submitted for the approval of the Committee subsequently to adoption. In case of a negative opinion, the act must be repealed (see Arts 5 and 8 of Regulation 182/2011 on mechanisms for control by Member States of the Commission’s exercise of implementing powers).

Whilst this may strike the reader as fairly technical, the key point is that suspending the aid programme will always require the approval of the Member States through the committee. As things stand, it seems that the EU MS will only approve a review of the aid programme to Palestine and not accept the Commission’s proposal to suspend the aid programme. Nonetheless, suspending current multi-annual EU aid programmes (like the one directed to Palestine) is a decision with significant financial, social and political implications for the receiving party. This entails following the correct procedure in place for this at EU level which offers certain safety valves (political approval by EU Member States) and substantive hurdles (crises or immediate threats to peace). Whilst the substantive hurdles seem to be satisfied, it is still required that a political decision be made by EU Member States acting in the Art 45 Committee that this is an appropriate political choice. Such a decision has not yet been made.

 

*Dr Jacob Oberg is a Full Professor of European Union Law at the Law Department at the University of Southern Denmark and a Visiting Fellow at Lund University. He previously held positions as Associate Professor in EU law at Örebro University (where he acted as Deputy Head of Department) and as a Postdoctoral Fellow in law at Lund University. Jacob Öberg earned his PhD in European Law from the European University Institute in Florence (2014). His research interests lie primarily in EU constitutional law and EU criminal law, including; (1) multidisciplinary and contextual perspectives on EU law, (2) theories of EU integration (3) the federal dimension of EU law, and (4) the Union’s criminal policy and its development under the Lisbon Treaty.  He has published widely in these areas in journals such as European Law Review, European Constitutional Law Review, Yearbook of European Law, and European Law Journal. He is a member of the Scientific Committee of the European Law Journal.  His forthcoming monograph ‘The Normative Foundations for EU Criminal Justice: Powers, Limits and Justifications’ will be published in the Modern Studies in European Law series at Hart Publishing  (during winter 2023).

Photo credits: European Union, 2023

The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.

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