The European Commission has recently adopted Guidelines on the general regime of conditionality, a regime which aims to protect the EU budget against breaches of the principles of the rule of law.
These Guidelines clarify the application of the relevant Regulation (EU) 2020/2092, applicable since January 2021, which provides for sanctioning measures where it is established that breaches of the rule of law in an EU country affect or seriously risk affecting the sound financial management of the EU budget or the protection of the EU's financial interests.
These Guidelines also take into account the February 2022 Court of Justice's findings on the legality of said Regulation.
They address five important aspects of the Regulation:
1) it has reasonable grounds to consider that at least one of the principles of the rule of law has been infringed in a Member State.
2) the breach is attributable to an authority of a Member State. The Regulation applies to individual violations, systematic violations or failure to act by public authorities.
3) these situations or behaviors have consequences for the sound financial management of the Union's budget or for the protection of its financial interests.
4) this violation affects or seriously risks affecting the sound financial management or these financial interests, in a sufficiently direct manner, by a real link between the violation and the undermining or the serious risk of undermining.
The conditions for the adoption of sanction measures. The Commission must demonstrate that
- Complementarity between the conditionality Regulation and other tools to protect the EU budget. Before initiating the procedure under this Regulation, the Commission will check whether other more appropriate measures can be put in place under other EU legislation concerning the protection of the budget.
- The need to establish the proportionality of the proposed measures. The measures must be strictly necessary in the light of the actual or potential impact of the violations of the principles of the rule of law. The Commission will take into account the nature, gravity and scope of the violations of the rule of law principles at stake in an objective, impartial and fair manner.
- The steps to be taken before a decision is taken. The Commission gives indications on how it will conduct its preliminary assessment, lists the different sources of information it can use (the role of complaints, contacts with Member States), and describes the procedures for the adoption of measures as well as for the lifting of measures.
- Finally, the Commission addresses the need to protect the rights of final recipients or beneficiaries of EU funding. The Commission specifies that the financial and economic impact of the measures should be limited to the Member State concerned or the national entities managing the funds.
Marguerite Soete - Associate, Brussels
Annabelle Lepièce - Partner, Brussels