On Wednesday 2 March, the European Commission adopted guidelines which aim to clarify a number of elements related to the application of Regulation 2020/2092 on a conditionality regime to protect the EU budget.
This text, in force since 1 January 2021, allows the Union to take measures, such as the suspension of payments or financial corrections, to protect the budget in case of non-compliance with the Rule of law in an EU country.
The final decision of the EU Council against a Member State under the Regulation could take between five and nine months after the notification letter is sent (see EUROPE 12894/4).
The Commission could therefore send notification letters to Poland and Hungary under this text.
The guidelines explain the different stages of the procedure, from the sending of a written notification to the proposal of measures to the EU Council and their adoption.
The guidelines take into account the rulings of the Court of Justice of the EU (see EUROPE 12892/1) which confirmed the legality of the regulation. Poland and Hungary had filed an appeal to have the text annulled.
The guidelines explain: the conditions to adopt measures, the complementarity between the Conditionality Regulation and other EU budget protection tools, the need for proportionality of the measures, the procedure and assessment process and the protection of the rights of final recipients or beneficiaries.
The Commission will initiate the procedure under the conditionality regulation where it has reasonable grounds to consider the following points, as detailed in the guidelines, fulfilled:
- at least one of the principles of the Rule of law referred to in the conditionality regulation has been breached in a Member State. These includes the principles of legality, legal certainty, prohibition of arbitrariness of the executive powers, effective judicial protection, separation of powers, non-discrimination and equality before the law;
- the breach concerns situations or conducts of public authorities or can be attributed to them, if they are relevant for the sound financial management of the Union budget or for the protection of the financial interests of the Union. This includes authorities implementing the EU budget and carrying out financial control, monitoring and audit; investigation and public prosecution services; national courts or administrative authorities; authorities implementing the Recovery and Resilience Plans, or those collecting the sources of revenue to the EU budget;
- the breach affects or risks seriously affecting the sound financial management of the EU budget or the protection of the EU’s financial interests, covering both revenue and expenditure of the budget. There must also be a sufficiently direct link between the breach and its effects. This assessment will be made on a case-by-case basis.
Where these conditions are met, the Commission will initiate the procedure, unless it considers that other procedures set out in Union legislation would allow it to protect the Union budget more effectively.
In assessing whether the measures are proportionate, the Commission will take into account the nature, duration, seriousness and extent of the breaches of the principles of the Rule of law involved. The guidelines provide details on each of these elements.
Where the Commission proposes that the EU Council adopt measures, it will indicate which specific programmes or funds are or may be affected by the breaches and propose measures related to those programmes or funds.
In order to identify and assess breaches of the principles of the Rule of law under the Conditionality Regulation, the Commission will carry out a thorough qualitative assessment on a case-by-case basis, taking due account of the specific circumstances and contexts of each Member State.
To see the guidelines: https://aeur.eu/f/ko (Original version in French by Lionel Changeur)