TRIDIMAS, Takis ; University of Luxembourg > Luxembourg Centre for European Law (LCEL) ; Dickson Poon School of Law, King’s College London, Pennsylvania State University, United States
External co-authors :
no
Language :
English
Title :
Editorial Note: Recovery Plan and Rule of Law Conditionality: A New Era Beckons?
Publication date :
2020
Journal title :
Croatian Yearbook of European Law and Policy
eISSN :
1845-5662
Publisher :
University of Zagreb, Faculty of Mining, Geology and Petroleum Engineering
1 Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget [2020] OJ L433/I/1.
2 Commission, ‘Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, Europe’s moment: Repair and Prepare for the Next Generation’ COM(2020) 456 fi nal.
3 Commission, ‘Amended proposal for a Council Decision on the system of Own Resources of the European Union’ COM(2020) 445 fi nal Brussels, 1.
4 See Conclusions of the Special meeting of the European Council (17, 18, 19, 20 and 21 July 2020) EUCO 10/20, CO EUR 8, CONCL 4, Brussels, 21 July 2020 (‘July Conclusions’).
5 See July Conclusions (n 4) para A2.
6 Commission, ‘Proposal for a Regulation of the European Parliament and the Council on the protection of the Union’s budget in case of generalised defi ciencies as regards the rule of law in the Member States’ COM(2018) 324 fi nal.
7 See July Conclusions (n 4) para A24 and annex to the conclusions, paras 22-23.
8 See the text of the mandate granted by COREPER on 30 September 2020 for the negotiations with Parliament: Multiannual Financial Framework (MFF) 2021-2027 and Recovery Package - Regulation of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, Interinstitutional File: 2018/0136(COD), 11322/20, Brussels, 30 September 2020.
9 See joint declaration by the Prime Ministers of Hungary and Poland, 26 November 2020
10 European Council meeting (10 and 11 December 2020) Conclusions, EUCO 22/20, CO EUR 17 CONCL 8, Brussels, 11 December 2020 (‘December Conclusions’).
11 Council Regulation No 2020/2093 laying down the multiannual fi nancial framework for the years 2021 to 2027 [2020] OJ L433 I/11.
12 Council Decision (EU, Euratom) 2020/2053 of 14 December 2020 on the system of own resources of the European Union and repealing Decision 2014/335/EU [2020] OJ L424/1.
13 Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget [2020] OJ L433/I/1.
14 See July Conclusions (n 4) para A6 and Council Decision, 2020/2053 (n 12) Article 5(1).
15 Council Decision 2020/2053 (n 12) Article 5(2).
16 ibid, Article 5.
17 July Conclusions (n 4) para A4; and see Council Decision, 2020/2053 (n 12) Article 5.
18 See July Conclusions (n 4) para A14. The programmes are: Recovery and Resilience Facility: €672.5 billion (loans: €360 billion, grants: €312.5 billion); ReactEU: €47.5 billion; Horizon Europe: €5 billion; InvestEU: €5.6 billion; Rural Development: €7.5 billion; Just Transition Fund (JTF): €10 billion; RescEU: €1.9 billion.
19 See Special European Council, 17-21 July 2020
20 July Conclusions (n 4) para A19.
21 Decision 2020/2053 (n 12) Article 2.
22 See July Conclusions (n 4) para A29. The Commission is also to put forward a proposal on a revised emissions trading scheme (ETS), possibly extending it to the aviation and maritime sectors. The possibility of introducing a Financial Transaction Tax will be looked at in the course of the next MFF.
23 See Special European Council (n 19).
24 In presenting his proposals to the European Council, its President, Mr Charles Michel, stated as follows: ‘The goals of our recovery can be summarised in three words: fi rst convergence, second resilience and third transformation. Concretely, this means: repairing the damage caused by COVID-19, reforming our economies and remodelling our societies’. Press release, 10 July 2020
25 See Special European Council (n 19).
26 See, eg in relation to the migration crisis, Case T-257/16 NM v European Council ECLI:EU:T:2017:130, and, in relation to the EuroGroup, Joined Cases C-105/15 P to C-109/15 P Mallis and Malli v Commission and ECB ECLI:EU:C:2016:702, and, especially, the recent judgment in Joined Cases C597/18 P, C598/18 P, C603/18 P and C604/18 P Council v Chrysostomides ECLI:EU:C:2020:1028.
27 See (n 8).
28 Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget [2020] OJ L433 I/1.
29 See (n 6).
30 Hungary and Poland voted against the regulation. See voting result, Position of the Council at fi rst reading with a view to the adoption of a Regulation of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, Interinstitutional File: 2018/0136 (COD), Brussels, 14 December 2020 (OR en) 14020/20.
31 Preamble, recitals 7 and 8.
32 Article 10. It is not intended to have retroactive effect. Under the December 2020 European Council conclusions, the measures will apply only in relation to budgetary commitments starting under the new Multiannual Financial Framework, including Next Generation EU. See European Council meeting (10 and 11 December 2020), Conclusions, EUCO 22/20 CO EUR 17 CONCL 8, Brussels, 11 December 2020, Conclusions, para 2(k).
33 Regulation 2018/1046 of the European Parliament and of the Council of 18 July 2018.
34 See Joint statement by the Parliament, the Council and the Commission annexed to the European Parliament legislative resolution of 16 December 2020 on the Council position at fi rst reading with a view to the adoption of a regulation of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget (09980/1/2020 - C9-0407/2020 - 2018/0136(COD)),
35 Article 4(1).
36 Under Article 2(a), the concept includes the principles of legality, implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law.
37 See Commission Proposal (n 6) Article 3(1).
38 ibid, Article 2(b).
39 Article 4(1).
40 The December 2020 European Council Conclusions expressly state that the Regulation does not relate to generalised defi ciencies. See December Conclusions (n 10) para 2(f).
41 See Article 1, Article 3, and Article 4(1).
42 See preamble, recital 15 (emphasis added).
43 Article 4(2) of the Regulation. Cf Article 3(1) of the Commission’s Proposal (n 6).
44 See Commission Proposal (n 6) Article 3(1). In some respects the language of the Regulation has been tightened (see eg Article 4(1) of the Regulation vis-à-vis Article 3, opening paragraph of the Commission’s proposal) but in others extended (see Article 4(2), points (c) (e)(h) of the Regulation vis-à-vis Article 3(1) of the Commission Proposal).
45 July Conclusions (n 4) para 2(e).
46 ibid, para 2(f).
47 See Article 5(3) of the Regulation.
48 Case C-619/18 Commission v Poland ECLI:EU:C:2019:531.
49 July Conclusions (n 4) para 2(c).
50 See Case C-387/97 Commission v Greece ECLI:EU:C:2000:356, para 84.
51 ibid, para 87.
52 See Interinstitutional File: 2018/0136 (COD) (n 30).
53 Case C-292/89 The Queen v Immigration Appeal Tribunal, ex parte Antonissen ECLI:EU:C:1991:80, para 17. However, in other cases the Court has attributed some importance to statements by the Council annexed to the minutes of its meetings. See Case C-24/83 Gewiese ECLI:EU:C:1984:62.
54 Article 5(3). Compliance with proportionality is also stressed in the preamble, recital 18, and the July Council Conclusions (n 4) para 2(e).
55 Article 5(2).
56 Joined Cases C-6 and C-9/90 Francovich and others ECLI:EU:C:1991:428.
57 July Conclusions (n 4) para 2(d).
58 See recital 17.
59 See Article 6.
60 Article 6(5).
61 Article 6(7).
62 See preamble, recital 16, and Article 6(3).
63 Commission Proposal (n 6) Article 5(6).
64 ibid, Article 5(7).
65 Article 6(9). In the event that the Member State makes no observations, the Commission must submit its proposal without undue delay and in any case within one month after the deadline for the submission of the Member State’s observations.
66 Article 6(10). If exceptional circumstances arise, the period may be extended by a maximum of two months.
67 See Article 16(3) TEU.
68 Article 6(11).
69 See Article 293(1) TFEU. Note however that, under the exceptions stated in Article 293(1), the general default rules do not apply to fi nancial matters, ie Articles 310, 312, 314 and 315(2).
70 Article 7.
71 Article 7(2). See also the safeguards stated in recital 26.
