10.1 Introduction
We [colonial officials] must pretend to follow the laws. If we really would follow them, we would do nothing at all.Footnote 1
Its existence [the existence of the contrôleur-délégué of the European Development Fund] had only been possible through a double irregularity, financial and legal. Its creation had been decided without being accepted by the Council of Ministers. Its financing, based on EDF credits, had not been submitted to the EDF Committee [representing the Member States].Footnote 2
These statements come from two different contexts and two different times in history. The first one, from Robert Delavignette, a former colonial official in French Sudan and the director of the French colonial school from 1936 to 1946, echoes the sentiment prevalent among French colonial bureaucrats. The second one, which originates from an unnamed civil servant at the French Ministry of the Economy and Finance, highlights irregularities surrounding the establishment of the supervisory structure of the European Development Fund (EDF) by the Directorate General 8 (DG8), the European Commission service responsible for European development aid. These reflections find a common thread through Jacques Ferrandi, a former colonial official trained at the colonial school in the 1940s, who became the director of the EDF from 1962 to 1975 and was responsible for setting up the contrôleur-délégué of the fund.
The EDF was conceived in 1957 under the association regime with overseas countries and territories, which was regulated in Part IV of the Treaty of Rome and which primarily targeted French and Belgian colonies in sub-Saharan Africa. The EDF was continuously deployed as countries transitioned from colonial to independent governance in the early 1960s in the framework of the Yaoundé Convention with the Associated African and Malagasy States (AAMS). With a mandate to foster the economic, social, and cultural development of the associated countries and territories (Article 131 of the Treaty of Rome), the EDF received funding from European Economic Community (EEC) Member States, predominantly France and Germany. The fund amounted to 581.25 million ECU (EEC units of account) over a period of five years (1958–1962) and was run by the European Commission, the supranational body of the EEC.
The Implementing Convention attached to the Treaty of Rome established that it was the responsibility of the associated countries’ and territories’ authorities (later on to be metamorphosed from colonial into African governments) to put forward economic and social projects for EEC financing. It was also their task to implement them, that is to launch the calls for tender and prepare the technical specifications of the projects, the so-called cahier des charges. The role of the European Commission was to assess development projects proposed by the associated countries and territories (with the power to accept or reject projects), then to make financing proposals to be forwarded to the Council of Ministers for approval. A subsequent EDF Committee (representing the Member States) had the role of deciding by qualified majority which projects to finance. As far as the implementation of the projects was concerned, the Commission’s task was to monitor the projects implemented by the local authorities and supervise the calls for tender. As guardian of the treaties, it also became guardian of an equal share of tenders and contracts among companies from both the Member States and the associated countries, as specified by Article 132 of the Treaty of Rome.Footnote 3
Ferrandi’s creation of the contrôleur-délégué of the EDF aimed to aid newly independent AAMS in project development and oversight, circumventing Member States’ objections, notably France’s opposition to Commission control mechanisms. To address this resistance, Ferrandi leveraged a legal precedent,Footnote 4 by instituting in 1965 the contrôleur-délégué role via a Commission regulation, sidestepping Council approval.Footnote 5
Leveraging legal precedent mirrored the colonial bureaucracy’s practice of bending rules, emblematic of the institutional ethos of the colonial school, a public institution set up in 1887 to train colonial officials for sub-Saharan African and Asian territories.Footnote 6 This chapter contends that colonial-era rules permeated EEC development cooperation. But more importantly, it shows that with personnel transitions from colonial to European administrations, a colonial attitude towards legal compliance was transferred within the European Commission.
10.2 Navigating through Legal Ambiguity: Governing Techniques in a Colonial Context
As representatives of French state authority at the grassroots level, colonial officials held a diverse array of responsibilities during the 1940s, encompassing tax collection, judicial proceedings, and the initiation of development endeavours. However, in adherence to the principles espoused by the colonial school, they were mandated to transcend mere bureaucratic enforcement and ‘adapt’ general colonial regulations to the nuances of African realities. Such principles may appear unconventional for a state institution, particularly the first of its kind in France before the establishment of the École Nationale d’Administration (National School of Administration) in 1945. Typically, bureaucratic officials are expected to enforce laws and penalize transgressors, a cornerstone of their legitimacy and authority. In the colonial context, these laws were essentially regulations enacted by the colonial ministry in Paris or the governor-general in African capitals.Footnote 7 Consequently, they diverged from the French legal system applicable in the metropolis and strayed from the overarching principles outlined in Article 6 of the 1789 Declaration of Human and Civic Rights: ‘The law should be the same for all whether it protects or punishes.’Footnote 8
As Olivier Le Cour Grandmaison observed, ‘the colonial legal system was inherently discriminatory and derogatory’.Footnote 9 Derogatory because laws passed by the French parliament did not apply in colonial territories, except in extraordinary circumstances as dictated by competent authorities. Discriminatory because a dichotomy was established between French citizens, who retained the privileges of French laws even in colonial territories, and French ‘subjects’ (the native population), who were denied the same privileges. Consequently, within the same territories, two legal systems coexisted, tailored for two distinct populations and delineated along racial lines. ‘Unity was supplanted by radical legal diversity, equality was supplanted by hierarchy, and liberty was supplanted by the strict subjugation of natives and the perceived superiority of French citizens from the metropolis.’Footnote 10 The rationale behind this distinctive legal framework, where ‘exception became the norm’, rested on the premise that native peoples remained ‘backward’ or, as posited by social anthropologists of the 1930s, culturally distinct.Footnote 11
During the 1930s, Henri Labouret, a former colonial official in West Africa and anthropologist, asserted that ‘nothing is more detrimental in colonial matters than preconceived formulas and imported principles, which, being often extracted from our European ideas, cannot be applied to other regions or eras’.Footnote 12 Such rhetoric served to justify the native policy and colonial development discourse of the 1930s–1940s, emphasizing evolution while respecting tradition, pragmatism, and adaptation to African cultures and realities.Footnote 13 It also validated the significant variability and flexibility of colonial regulations and the role of colonial officials, whether governors or their subordinates, the district officers (the commandants de cercle), as intermediaries between the local elite, their demands, their customary laws, and regulations emanating from the metropolis. To address unforeseen circumstances unaccounted for by legislators in Paris or local capitals, and to establish legitimacy and authority, colonial officials were encouraged to negotiate the application of laws, seek compromises, and engage in negotiations with native legitimate chiefs. Negotiations and compromises were central to the system of indirect rule advocated by the colonial school.
The implementation of the system of indirect rule within the French empire remains a topic of debate.Footnote 14 Hubert Lyautey notably institutionalized this system during his tenure as Résident Général (governor) in Morocco, from 1912 to 1925. Often cited as an exemplar by instructors at the colonial school, Lyautey extolled the ‘illegal but efficient practices’ of his superior Joseph GallieniFootnote 15 during his time as an army officer in Indochina. Gallieni was known to operate ‘contrary to the rules’,Footnote 16 even going so far as to ‘use official papers as handkerchiefs after formally acknowledging their receipt’.Footnote 17 As noted by Maurice Delafosse, a former colonial official in West Africa and anthropologist at the colonial school (1909–1926), the vast distances between the metropolis and local administrations meant that such practices often went unnoticed, for better or for worse.
The orders canceling previous orders, the circulaires modifying the application of the orders, as well as countless decrees coming from Paris, unexpectedly, and contravening both the orders and the circulaires. All these texts contradict each other, visibly originating from different offices, though separated by partitions, which are too tight. The texts are long enough to make a Benedictine turn pale and often more confusing than a Chinese puzzle, and they follow one another in an avalanche so impetuous that I have not even finished running my blotter over a correction before I have to cross it out and replace it with a new modification […]. And now in despair I wonder if I will ever know which one is the fortunate paragraph which, among the hundreds of articles of the old decrees, might resist the debacle of being erased by one of the five décrets annulateurs. I fall asleep blissfully on the growing pile of official journals and explanatory circulaires, leaving it to chance to guide me in a maze darker than the darkness, dear to Stanley of the equatorial forest. I administer all of this haphazardly. Sometimes it turns out that by a happy coincidence, I have made the decision that needed to be made. Very often I have taken a decision, which no text, recent or old, could have justified. In these cases my error generally goes unnoticed or, which happens much more rarely, I receive a letter from the higher authority a few months later stating, without cordiality or surprise, that I have contravened Article 77 of the Decree of October 5, 1913, modified in its sixth and ninth paragraphs by Article 122, paragraph D, of the Decree of October 6 of the same year. I acknowledge receipt of the letter by stating the disapproval of my own error, and I do as my noirs administrés do, I continue.Footnote 18
This quotation serves as a caricature depicting the functioning of colonial bureaucracy, while also shedding light on a primary characteristic of the ideal colonial administrator championed by the colonial school: muddling through and occasionally circumventing rules constituted a method of governance. Following decolonization, this approach persisted among many African leaders, some of whom had previously collaborated closely with the colonial administration. Indeed, numerous postcolonial African states inherited features of colonial governance, particularly the ‘decentralized despotism’ characteristic of indirect rule.Footnote 19 These states evolved into neo-patrimonial systems, wherein the authority and legitimacy of leaders were grounded in patron–client relationships, the discretionary powers of select individuals, continual exceptions to established norms, and a lack of transparency, especially in financial management.Footnote 20 This system primarily relied on the ability of political leaders to cultivate client networks through the distribution of positions and funds obtained from external aid and other sources. As demonstrated elsewhere, these traits continued to influence colonial officials such as Ferrandi who pursued careers in Brussels.Footnote 21
10.3 Transitioning from the FIDES to the EDF: The Methodology of Jacques Ferrandi
Having served as an assistant to the district officer in Casamance (Senegal) from 1941 to 1943 during his tenure as a colonial official, Ferrandi’s post-war career trajectory was marked by significant roles within the Ministry of Overseas France in Paris. He began as the head of the ministry’s International Affairs Division in 1947, then assumed the position of French delegate to the Overseas Territories Committee at the Organisation Européenne de Coopération Économique (Organisation for European Economic Cooperation) in 1949, becoming a technical adviser to the Minister of Overseas France in 1951. His career took him to Dakar in 1953, where he was appointed Director General of the Economic Services of the French West African Federation. In this capacity, he oversaw the Fonds d’Investissement Economique et Social (The Investment Fund for Economic and Social Development (FIDES)), established in 1946 by the French metropolis to allocate funds for the initial colonial development plans.
During this period, France embarked on reforming its empire in sub-Saharan Africa, rebranding it as the Union Française (French Union) in 1946 and subsequently as the Communauté Française (French Community) in 1958. Supported by the African currency CFA franc and the commercial system of colonial preferences, the Union Française formed a substantial trade and monetary zone shielded from external competition. Trade barriers erected around France and its empire in 1928 facilitated French enterprises’ access to overseas markets and privileged the entry of products from these territories into the French market.Footnote 22 To sustain this protected zone and colonial reliance, social and economic development plans were implemented, accompanied by a revised discourse on development emphasizing the welfare of overseas inhabitants. Departing from the principle of colonial financial autonomy, FIDES was established to ensure this welfare through development plans. Local colonial authorities proposed funding projects with the assistance of public or private consultancy firms. These projects underwent assessment in Paris, were approved by a committee chaired by the minister of overseas France, and executed by local colonial authorities, awarding contracts to French firms.Footnote 23
As noted by Denis Cogneau, French imperial businesses still derived significant benefits from colonial ventures in the 1950s.Footnote 24 However, the economic strain caused by the Second World War, coupled with the increasing demands of African elites for parity in social benefits, alongside conflicts in Indochina and Algeria, rendered France financially incapable of sustaining this developmental model single-handedly. Consequently, the idea emerged to share this responsibility with future European partners. During the negotiations for the Treaty of Rome in 1956–1957, France proposed and obtained the association of its overseas territories in sub-Saharan Africa with the future EEC, thereby opening its African market to other Member States’ goods and enterprises in exchange for their participation in an EDF.Footnote 25 The association in Part IV of the Treaty of Rome encompassed trade agreements, including the extension of French colonial preferences to the EEC. As mentioned above, it introduced a financial aid mechanism known as the EDF for overseas territories, with its legal framework outlined in a specific Implementing Convention attached to the treaty.
As highlighted by Hanna Eklund, a clear distinction was drawn from the outset between the future European legal framework for citizens of European Member States and that for native inhabitants of associated overseas territories.Footnote 26 In my own work, I stress the ambiguity of France’s position during the negotiations on the Treaty of Rome.Footnote 27 The French government argued that excluding overseas territories from the EEC would be unconstitutional due to the recognition of the Union Française in the 1946 French Constitution: overseas territories were part of the Republic. However, their full integration into the EEC was not envisioned either, as these ‘underdeveloped’ territories were deemed too different economically, institutionally, and politically from European Member States. To some extent, underdevelopment, as a new means of categorizing peoples in the world through their level of economic growth,Footnote 28 was used to justify the perpetuation of exceptions as norms within the new European legal order and the absence of any provision for overseas territories’ representation in future EEC institutions. This was a source of significant disappointment for African deputies like Léopold Senghor, the representative of Senegal in the French National Assembly.Footnote 29 The 1946 French Constitution had granted all subjects of the empire citizenship in the Union Française: certain categories of former colonial subjects had voting rights and representation in the French National Assembly in Paris, albeit with a different electoral system to French citizens. In 1956, French overseas territories in sub-Saharan Africa were granted increased political autonomy through the Defferre laws.Footnote 30 The fact that these territories were considered different from the French metropolis by the EEC, the very fact that the association was decided unilaterally without consulting the emerging political elite of the territories concerned,Footnote 31 was viewed as ‘the most questionable form of colonialism’ by contemporary observers.Footnote 32
Another source of criticism for Senghor was the functioning of the EDF: its mechanisms were adapted from the French FIDES, with procedures designed to be under the control of French colonial authorities. The Implementing Convention attached to the Treaty of Rome stipulated that these authorities would propose economic and social projects for EEC financing in collaboration with local authorities or popular representatives. However, negotiations for the future EEC suggest that France aimed to maintain significant control over the decision-making process of the fund and restrict not only the intervention and oversight of local representatives but also that of other EEC Member States in territories still under its sovereignty.Footnote 33
Hence, from its inception, the EDF grappled with dual constraints: France’s design for it to serve its own colonial interests, both political and economic, and other Member States’ desire to exert control over it and ensure equitable treatment for their companies in the allocation of contracts. Under the first constraint, France ensured that the first commissioner responsible for the association was French: Robert Lemaignen, a prominent figure in the French patronat in Africa. Under the second constraint, Germany ensured that the director-general of the service overseeing the association within the European Commission (DG8) was German, represented by Helmuth Allardt.
As previously discussed, in 1958 Lemaignen appointed Ferrandi as his head of cabinet to assist in constructing the new multinational administration of DG8.Footnote 34 Given Ferrandi’s extensive personal network among the African elite and his expertise in FIDES procedures, he was well suited to aid the new commissioner in interpreting and executing the EDF. Ferrandi brought with him a small team of colonial officials who transposed to DG8 their methods rooted in indirect rule, as well as their connections with the local African elite. Subsequently, upon his promotion to Director of the EDF in 1962, Ferrandi established a system founded on personal relationships, mutual trust, and loyalty with African heads of state, characterized by opacity in fund allocation, a general disdain for transparency in project evaluation, and a disregard for rules.
Drawing from the philosophy of the colonial school, Ferrandi justified this system by emphasizing the necessity of adapting to African realities and cultures: ‘fighting against underdevelopment is not a technique. It does not consist of applying a solution pre-fabricated in a laboratory to a pre-determined situation.’Footnote 35 Addressing the European Committee of Engineers in Brussels, he argued:
What we expect from you, technicians, is to refuse any perfectionism, that is to say, to refuse to apply solutions that may have worked in Europe, but cannot be used in Africa […]. I will add that, in the same way there is no sickness but only sick patients, there is no underdevelopment but only underdeveloped countries, with their own characteristics, their particular needs, their possibilities and their specific solutions [underlined in the text].Footnote 36
Mirroring the colonial schools’ ethos, Ferrandi believed that Africa had to develop in its own way, which necessitated a commitment to compromise with African collaborators:
competence, modesty, courage, realism [underlined in the text] […]. All these qualities can flourish only in a context of loyal cooperation with the legitimate government and administrations of those countries. As was already said, and it is now a kind of cliché: the way we give is much more important than what we give. This essentially means that everything must be based on the style or in other words, human relations.Footnote 37
Ferrandi’s approach also involved interpreting EEC law in a manner conducive to his objectives, as evident in the creation of the contrôleur-délégué of the EDF and in addressing the ‘discrimination issue’ concerning EDF contracts awarded to EEC companies.
10.4 Skirting Regulations and Establishing Legal Precedents
Upon achieving independence, many African states lacked the capacity to develop the expected projects outlined by DG8 or to execute them. Consequently, they required technical assistance, for example to devise development projects or prepare the calls for tender and associated technical specifications, referred to as cahiers des charges. Aligned with the practices of the FIDES and the intentions of the French government, this technical support was primarily provided by French consultancy firms, sometimes in collaboration with firms from other Member States. Despite the appearance of independence, these firms remained closely tied to French companies established in former colonies and influenced by local legal frameworks based on former French colonial regulations. This influence extended to the technical specifications of projects attached to calls for tender, which, written in French and reflecting French technical terminology and legal requirements, tended to favour French companies over those from other Member States. German companies, in particular, frequently voiced complaints regarding this imbalance as they struggled to secure contracts from the EDF.Footnote 38
Another point of contention arose from the right of establishment and availability of information: while France, under pressure from other Member States, compelled its former African colonies to adopt a legal framework allowing the establishment of all EEC companies on their territories, it did not facilitate access to information regarding EDF tenders or establish a common legal framework for technical specifications easily understandable to non-French companies. Consequently, during the first years of the EDF, the latter secured 40 per cent of EDF contracts compared to only 3.28 per cent for German companies. When factoring in that 35.74 per cent of contracts were awarded to firms from associated states, which were essentially French entities in disguise, French companies monopolized the majority of EDF contracts, revealing a covert form of discrimination.Footnote 39
To challenge this discrimination and bolster his authority within DG8, Ferrandi devised a strategy to enlist German support and secure greater autonomy for the EDF from the French government. In 1960, immediately after several associated countries and territories had gained independence, he proposed the appointment of independent EDF contrôleurs recruited by the European Commission to oversee technical assistance and project control in associated states. These agents would assist in project development, ensure technical specifications allowed for fair competition, supervise local administration-led tenders, and monitor expenditure – tasks originally assigned to French consultancy firms per the French government’s plans. When France rejected these proposals, Ferrandi, employing his characteristic approach, established the contrôleur-délégué of the EDF without the consent of Member States. Recruitment occurred through the Association Européenne de Coopération (Association for European Cooperation), a Belgian-based non-profit organization, with contrôleurs contracted privately and funded through the EDF budget.
Furthermore, Ferrandi endeavoured to enhance transparency in adjudication procedures and increase access to information. Calls for tender were publicized in various specialist journals across Member States and in multiple languages, in addition to the Official Journal of the EEC and associated countries. The Commission disseminated project records, including technical and financial details, to Permanent Representations in Brussels and EEC information offices in Member States. In response to recurrent German criticisms and as negotiations for Yaoundé II approached in 1968, DG8 developed a common legal framework for technical specifications for all EDF-funded contracts (cahier des charges général), translated into the four languages of the Community.Footnote 40 This document represented an initial effort to modernize and standardize local technical specifications documents and depart from inherited colonial rules.
However, the reforms implemented were insufficient in addressing the discriminatory practices among Member States concerning EDF contracts. It became evident that the issue transcended legal boundaries. French companies, due to their close ties with local elites, were adept at employing practices such as bribery, thereby securing contracts. Consequently, Ferrandi’s team of contrôleurs found themselves compelled to adapt to this reality, compromising the very principles of competition they were mandated to uphold. To allow German companies (like Strabag) to have access to EDF tenders, they resorted to the same tactics as French and local companies, intervening on the ground and attempting to sway local administrations’ handling of tender processes. In 1962, following Strabag’s unsuccessful bid for an EDF road project in Somalia, the European Commission engaged the Somalian government to initiate a fresh tender process, excluding the Italian firm that had secured the contract.Footnote 41
These adaptations did not go unnoticed by firms, particularly French ones, which began losing contracts to German and other EEC Member State companies.Footnote 42 Certain Member States, notably the German government, endorsed Ferrandi’s actions where these were in their own interests. Conversely, the German government sometimes criticized Ferrandi for setting precedents by flouting regulations, as exemplified by the Trans-Gabon railway project.
The railway project, proposed by President Omar Bongo of Gabon in 1968 and revisited in 1973, aimed to facilitate forest exploitation and potentially exploit iron ore mines.Footnote 43 Despite objections from various agencies, such as the World Bank, and reservations from most EDF Committee members regarding its profitability, the project proceeded. Notably, concerns were raised within the EDF Committee about Ferrandi’s preselection of firms before official approval of the project by the EDF Committee and before the publication of a formal call for tender in the EEC Official Journal. Such action prompted questions about legality and potential lawsuits against the Commission. In particular, the Dutch and German representatives persistently asked that the procedures be respected. Despite objections, the project secured majority approval within the Committee. The fact that Ferrandi made sure, through his consortium of firms, to give a fair share of the project to companies of several Member States, probably helped towards this outcome.Footnote 44
10.5 Conclusion
This chapter highlights the perpetuation of a colonial mindset towards legal governance, which accompanied the arrival of Ferrandi and other colonial officials in DG8. Moreover, it underscores how this mindset was largely fuelled by the enduring competition among Member States to maximize benefits from the EDF for their respective enterprises. Consequently, the EEC legal framework underwent continual adjustments not only to accommodate African elites, but also to serve the interests of Member States.
More recently, in 2006, Louis Michel, the commissioner for development, urged the head of the Commission’s delegation in Eritrea to exercise ‘flexibility and constructiveness’ regarding President Isaias Afwerki’s decision to market the food aid given by the EU, an act which was not envisaged by the financial convention signed between the EU and the Eritrean administration under a programme named ‘Food for Free’.Footnote 45 Given the country’s strategic significance, few Member States opposed this decision or envisaged imposing sanctions despite facing one of the most authoritarian regimes on earth.
Flexibility and adaptation of law remained the guiding principles for successive generations of contrôleurs, renamed ‘delegates’ after 1975, then heads of delegation of the Commission.Footnote 46 In a European Commission publication dedicated to the delegations’ role and historical trajectory from 2004, the experience of René Calais, one of the first colonial officials to be recruited by Ferrandi to assume the role of contrôleur-délégué in Chad, was highlighted, precisely for his capacity to adapt, the same capacity which prompted those who were critical of Ferrandi’s style to label DG8’s civil servants and contrôleurs-délégués ‘colonial artists’.Footnote 47
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