This is why Hungary and Poland block the EU budget

22 November 20203 years ago babelfish

Why Poland and Hungary do not digest the rules for the protection of the EU budget. Musso's comment for Atlantico Quotidiano

On 5 November 2020, the European Parliament and the rotating German Presidency agreed on a "regulation on a general regime of conditionality for the protection of the Union budget", intended to protect an uncertain thing (called the principle of the rule of law 'and to which we will return), as well as a more certain thing (called the' principle of sound financial management '). On November 16, it was approved by the conference of ambassadors of the member countries, by a qualified majority. Lacking only the vote of the European Parliament, with a predictable outcome, it could enter into force as early as January 1, 2021 (Article 8 of the Regulations).

The Regulation is problematic for several reasons.

(I) novative. It contains a definition of "violation of the rule of law" (articles 2a and 3), devoid of normative references in the Treaties, therefore sufficient in itself, therefore self-founding. As if it were a modification of the Treaty. This is all the more true, as the definition of "rule of law" (art. 2) lacks any normative references in the Treaties. Both are so self-founding that they are explicitly introduced "for the purposes of applying this regulation". Most significantly, the regulation does not contain a definition of 'good financial management', because this is established, as opposed to the previous one.

(II) twice novative. It introduces a sanctioning (art. 5) and de-sanctioning (art. 6) procedure unknown to the Treaties. Again, as if it were a treaty change. This is all the more true, given that the Treaties already have protective sanctioning procedures, which the Regulation comes to overlap: in the case of the 'rule of law' principle, it is the suspension of "some of the rights deriving from the Member State in question by the application of the Treaties, including the voting rights of the representative of the government of that Member State in the Council "(art. 7 Tfeu).

(III) discriminatory. It provides for the interruption / suspension / correction of the indistinct set of payments to the accused Member State, in some cases even the repayment of outstanding loans. This is an issue which Parliament is aware of, since it foresees that the sanctioned State remains obliged to continue the payments of the co-financed programs ("shared management"), despite the loss of the participation of EU funds; on the contrary, by assigning to the Commission the task of informing the final beneficiaries, inciting them to report against the accused Member State which had not promptly responded to its obligations towards them. But Parliament is unable to do anything for "direct management" and "indirect management" programs (classification pursuant to Article 62 – Financial Regulation), which include large items of expenditure, such as payments entrusted to the EIB, the EIF, and so on. Well, from these payments managed directly and indirectly, the beneficiaries in the sanctioned Member State would be excluded, substantially taking the form of the aforementioned and very forbidden 'discrimination based on nationality' (Article 18 of the TFEU).

(IV) activated on simple suspicion. It applies to the "case of violation of the principles [sic] of the rule of law in the Member States (Article 1)" but, then, this "violation of the rule of law" is defined in potential terms: something that "endangers the 'independence of the judiciary ”(art. 2a), those conducts that“ affect or seriously risk having an impact ”(art. 3.1).

(V) discretionary. The whole definition, "violations of the principles of the rule of law in a Member State which affect or seriously risk affecting the sound financial management of the EU budget or the protection of the financial interests of the Union in a sufficiently direct way" (Article 3.1 ), leaves the decision-maker a double discretion and the Member State a double uncertainty. Then, too, the remedy: “the measures adopted must be proportionate… due account is taken of the nature, duration, gravity and extent of the violations of the principles of the rule of law… as far as possible” (Article 4.3). In short, Parliament makes the Union institutions the Barbarian King who judges under the great oak … and decides what he likes.

(VI) unlimited by scope. The definition of "violation of the rule of law" continues (art. 2a), including: "failing to prevent, correct and sanction arbitrary or illegal decisions by public authorities, including law enforcement authorities" (ie Italy could be punished for the conduct of the tax collectors of the Port of Genoa), "withholding financial and human resources that affect their [public authorities, including law enforcement authorities] proper functioning" (i.e. Italy could be punished for not having hired enough tax collectors at the Port of Genoa), "not guaranteeing the absence of conflicts of interest" (that is, Italy could have been punished for the Berlusconi government), "limiting the availability and effectiveness of legal remedies, including through restrictive procedural rules, failure to execute sentences, or limit the effective investigation, prosecution or punishment of violations of the law "(ie Italy may be punished if it reintroduces the pres crition).

And then it continues (art. 3), including: the non "correct functioning of the authorities of that Member State that execute the Union budget" (ie Italy could be punished for the disorganization of the Calabria Region), the non " correct functioning of the authorities carrying out financial control, monitoring and auditing and the correct functioning of effective and transparent systems of accountability and financial management "(ie Italy could be punished for the laziness of the Court of Auditors), "Proper functioning of the investigative services and the prosecutor in relation to the investigation and prosecution of fraud, including tax fraud, corruption or other breaches of Union law relating to the implementation of the Union budget or to the protection of interests financial institutions of the Union "(that is, Italy could be punished for not having investigated all farmers), the non-" effective judicial control by independent finals on the actions or omissions of the aforementioned authorities (ie Italy could be punished for the laziness of the court clerks); the failure to "prevent and punish fraud, including tax fraud, corruption or other violations of Union law relating to the implementation of the Union budget or the protection of the Union's financial interests" (i.e. Italy could be punished for VAT evasion), the failure "to impose effective and dissuasive sanctions on the recipients, by national courts or administrative authorities" (ie Italy could be punished for not having raised the fines), the failure to "recover funds unduly paid "(ie Italy could be punished for the bankruptcy of its companies), the lack of" effective and timely cooperation "with OLAF and Eppo (ie Italy could be punished for conflicts of attribution ), finally … hear, hear … "other situations or behavior of the authorities of the Member States relevant to the sound financial management of the Union budget or to the protection of the financial interests of the Union" (that is, Italy could be punished for every and every thing that came to mind to the European Commission pro tempore reigning: whatever).

They make the offices of the Italian Chamber of Deputies laugh when they write: “it is an instrument with a scope limited to specific cases”.

(VII) invasive in terms of powers. All the behaviors listed above are of interest to Parliament as they affect "the sound financial management of the EU budget or the protection of the financial interests of the Union in a sufficiently direct way". Which is to say that, in a matter laqualunque (tax collectors-funds to tax collectors-Berlusconi-prescription-Calabria Region-Court of Accounts-farmers-clerks-VAT evasion-fines-companies-attribution conflicts), Italy should be subject to to the Commission's interpretation (extravagant and changeable) of the pure expressions 'rule of law' and 'good financial management'. And this despite the fact that the Treaties never, even remotely, assign such power to the EU. Undeniably, the European Parliament legislates 'ultra-vires'.

* * *

Only Poland and Hungary opposed the approval of the regulation on November 16, 2020. Which, in retaliation, blocked the approval of the multi-year budget, as well as the approval of the raising of the maximum threshold to be able to impose new Union taxes: here, the two member states find the weapons to defend themselves, as both measures must be approved unanimously.

Is the Hungarian Minister of Justice Judit Varga right when she comments: “The legal basis is unfounded, the scope is vast, the measures are arbitrary and the procedure is devoid of guarantees of any significance”? Is the Polish Minister of European Affairs, Konrad Szymański, right when he speaks of "lack of legal certainty"? Is Polish Deputy Foreign Minister Pawel Jablonski right when he says: "'potential risk' is something that could be triggered by literally anything"? Is your Polish colleague Zbigniew Ziobro right when he comments: “This is a question that will determine whether Poland is a sovereign subject in the EU community, or will it be enslaved politically and institutionally”? Yes, all of them are right, we just saw it.

Are they right to denounce that the new mechanism is contrary to the Treaties? Yes, it is enough to quote the President of Parliament, Sassoli: "There are legal limits that we understand, but we cannot debase the values on which the Union is founded".

(Extract of an article published on Atlantico Quotidiano, here the full version )

This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/ecco-perche-ungheria-e-polonia-bloccano-il-bilancio-ue/ on Sat, 21 Nov 2020 15:54:19 +0000.