Mainstreaming Hnman Rights in the Enropean Investment Bank*

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Mainstreaming Hnman Rights in the Enropean Investment Bank*

in Baltic Yearbook of International Law Online

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* This article is made available by courtesy of the European Master's Degree in Human Rights and Democratisation, as an excerpt of the thesis 'Mainstreaming Human Rights in the European Investment Bank' of Laure Amoyel published in E.MA Awarded Theses of the Academic Year 2001/2002, Marsilio Editori S.P.A., Venice, August 2003, pp. 93-168. ISBN 88-317-8293-2. 1 P. Maystadt, European Parliament Debates, 5 February 2002.

Z Article 2, UN Declaration on Social Progress and Development, 1969. 3 Article 267, Treaty establishing the European Community, 1957. 4 Sir Brian Unwin, 'Preface' (1998) 3 EIB Papers: International financial institutions in the 21'" century, pp. 4-5. 5 EIB, The EIB Group in the Year 2001: Projects financed and statistics, Luxembourg, 2002.

6 T. Gutner, Policy Process: Institutionalising Environmental Objectives, Banking on the Environment: Multilateral Development Banks and Their Environmental Performance in Central and Eastern Europe, Cambridge, MIT Press, 2002, p. 107.

7 (Article 267, Treaty establishing the European Community, 1957. 8European Parliament, Report on the EIB Annual Report for 2000, Committee on Economic and Financial Affairs, Rapporteur: Olle Schmidt, A5-0392/2001, 8 November 2001. 9 See Article 20.1, E1B Statutes. 10 One key European Council was in Edinburgh (1992). It invited the EIB to extend its field of action by increasing its participation in a project relating to the infrastructures of transport to 75% compared to the previous 50%. Another important European Council concerning the EIB, was that of Amsterdam (1997) which encouraged the EIB to invest in projects related to education, health and employment. 11 J.P. Minnaert, 'La Banque Europeenne d'Investissement', in Philippe Leger (ed), Commentaire article par article des traites UE et CE, Brussels, Dalloz, 2000, p. 1793.

12 S. Lewenhak, The role of the European Investment Bank, London, Croom Helm, 1982, p. 3. 13 B. Laffan, The Finances of the European Union, London, Macmillan Press Limited, 1997, p. 219. 14 EIB, The EIB Group in the Year 2000, Luxembourg, 2001.

15 ECJ case, 110/75, Mills, 15 June 1976. 16 ECJ case, 85/86, Commission v. EIB Board of Governors, 3 March 1988. 17 Minnaert, supra note 11, p. 1780. 18 Based on the Statutes of the EIB and Bankwatch's annexes, , http://www.bankwatch.org/ publications/studies/eib/eib2.html. 19 Minnaert, supra note 11, p. 1780. 20 There are approximately two bankers working on each country, see T. Gutner, Policy Process: Institutionalising Environmental Objectives ... , p. 169. See supra note 6.

2' Ibia., p.170. 22 Ibid., p. 173.

z3J. Baneth, 'Selecting Development Projects for the World Bank' (1996) 322 World Bank Discussion Papers, p. 59. 24 EIB, The Project Cycle at the European Investment Bank, Luxembourg, 2001. zs Based on interviews with EIB Officials.

26 The ECG gathers the heads of Evaluation in the Multilateral Development Banks 'in an effort to harmonise their methods and strengthen the use of evaluations towards improved effectiveness and accountability'. See EIB, Evaluation of the Risk capital operations carried out by the EIB in four ACP Countries, 1989-1999: A synthesis report, Luxembourg, 2000, p. I. 27 Ibid. 28 This however may be changing in so far as the most recent assessment reports seem to contain a similar structure. A more accurate and clear approach in evaluation might, however, be necessary to ensure the effectiveness of these reports.

29 EIB, The EIB Group in the Year 2000, p. 32. Supra note 14. 30 See European Parliament, Report on the EIB Annual Report for 2000, supra note 8.

31 Environment and the EIB: Answer to parliamentary written question to the Commission by Christopher Heaton-Harris, E-3488/01,16 December 2001. 32 This Article 21 procedure takes place in parallel to the negotiations between the promoters of the project and the Bank's specialised staff.

33 E1B, 'The Corporate Operational Plan 2001-2003', supra note 14, p. 7. 3a The E1B has, for instance, provided consultancy services regarding water management.

3s See Opinion of the Economic and Social Committee on the role of the European Investment Bank in the European regional policy, CES 1001/2000, 20 September 2000. 36 P. Maystadt, European Parliament Debates, 5 February 2002. 3� Based on an interview with European Parliament Officials. 38 See Philippe Maystadt's speech in front of the European Parliament, supra note 1.

39 Article 248 in Provisions relating to the European Investment Bank in the Treaty establishing the European Community, mainly regulates the legal power the ECA has as regards the EIB. 40 Although this Tripartite Agreement is a confidential and internal document, I was granted the privilege to consult it and am basing this section on the conclusions I can reach in the human rights field, whilst not revealing its entire content, as was agreed with the three parties involved. 41 Article 248 of the Treaty reads: 'In respect of the European Investment Bank's activity in managing Community expenditure and revenue, the Court's rights of access to information held by the Bank shall be governed by an agreement between the Court, the Bank and the Commission. In the absence of an agreement, the Court shall nevertheless have access to information necessary for the audit of Community expenditure and revenue managed by the Bank.'

42 According to EIB Officials, there has never been an internal study on the applicability of the European Ombudsman on the Bank. a3 Decision of the European Ombudsman on complaint 1338/98 ME v. EIB, 1998. 44 Articles 29 and 30 of the EIB's Statutes regulate the European Court of Justice's s jurisdiction over it.

45 ECJ case, 4/85, Commission v. Board of Governors, 1985. 46 As yet, no report on the E1B seems to have been prepared.

47 Decision of the European Ombudsman on complaint, 1338/98 ME v. EIB, supra note 43.

48 See supra note 6, p. 167. Tamar Gutner argues that the EIB even had to struggle to institutionalise its environmental mandate because its shareholders do not have high expectations for the Bank's activities in this field. 49 This is all the more surprising that the Bank's staff have much less strong incentives to actively promote environmental issues than its international counterparts. For a more complete comparison, see ibid, p.166. 50 http://www.eib.org/about/obj/obj 1 h.htm. 51 A human rights statement is considered to be a necessary step to mainstream human rights into the EIB. Such a statement should, like the Bank's one on sustainable development, reiterate the Union's position on the matter and highlight the relevance with the EIB's activities. 52 The degree of effectiveness of financing environmental projects as such has been raised by the Economic and Social Committee, although no genuine response has been as yet granted. See 'Opinion of the Economic and Social Committee on the role of the EIB', supra note 35.

53 Here again, the EU has a directive on the strategic and environmental assessment. The EU directive will only come into effect in 2004, whereas the Bank's EIA is already being applied. See Environment: public participation in plans and programmes, COM (2000)839, 2001. 54 See EIB, EIB Financing in the ACP: Supporting private enterprise and investment in developing economies, Luxembourg, 2002. 55 ENVU consists of 3 full time staff. 56 P. Maydstadt, European Parliament Debates, 14 February 2002. 57 Oral presentation given by Peter Carter at the Copenhagen NGO workshop, 28 June 2002.

5g The fact that the Bank under the heading of environmental projects funds for instance the preservation of cultural heritage, has been contested by members of staff of the European Court of Auditors and poses the question as to whether the definition of environmental loans is not too broad and if so, if it does not risk to dilute the positive effects of including the environmental dimension. 59 One example provided was that of a lending project in Lebanon, where out of the own initiative of the EIB Lending team, the Bank took on itself to consult with the three main monotheist religions present in Lebanon, possibly against the will of the government in power. 60 CEE Bankwatch claims that the EIB does.

61 H. Smith, European Union Foreign Policy: What it is and What it does, London, Pluto Press, 2002, p. 24. 62 Communication from the Commission to the Council and the European Parliament, The European Community's Development Policy, COM(2000)212, 2000. 63 European Parliament, Report on the EIB Annual Report for 2000, supra note 14. 64 F. Palanza and J.P. de Jong, 'The European Investment Bank and the Cotonou Investment Facility', The Courrier ACP-EU, March-April 2002, pp. 32-33. 65 It should also be noted that the Bank's added value in the Community's development strategy is barely acknowledged nor mentioned in the Commission's annual reports. Thus, there seems to be no systematic inclusion of the Bank in the European Union's development policy but rather an ad hoc cooperation between the two institutions varying according to the will and demands of the Member States. 66 Smith, supra note 61, p. 173. 67 See C. Leben, 'Is there a European Approach to Human Rights?', in Philip Alston (ed.), The EU and Human Rights, Oxford, Oxford University Press, 1999.

68Ibid. 69 J. Sjostedt, European Parliament Debates, supra note 1. 70 European Commission, Annual Report on the Implementation of the European Commission's External Assistance, Luxembourg, 2001. 71 The European Parliament also expects the E1B to impose a pseudo-human rights clause in certain specific cases. 'Framework agreement between the E1B and the People's Republic of China on investment funding', written question by Wolfgang Kreissl-Dorfler (V) to the Commission, E-3590/95, 10 January 1996.

72 P. Tabary, La Banque européenne d'investissement: des prets pour construire I'Europe, Paris, Notes et Etudes Documentaires, 1989, p. 99.

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