The European Commission may set constitutional conditions for the payment of EU subsidies. The Advocate General of the European Court of Justice sees no reason to declare the so-called ‘rule of law mechanism’ invalid, according to a Thursday morning public opinion. A final ruling from the judges of the Court in Luxembourg is expected in January, but the Advocate General’s judgment is followed in almost all cases.
EU member states agreed last year after difficult negotiations on a new ‘rule of law test’ for the EU budget, which gives the Commission the opportunity to intervene. EU subsidies, such as corona support, are then linked to the rule of law. But Poland and Hungary, both repeatedly reprimanded by both the Commission and the Court for rule of law violations, challenged the instrument early this year.
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According to the two Member States, such a test is illegal and only intended to annoy them. The test would also lead to legal uncertainty, because it would be unclear beforehand which conditions EU countries must meet. The ‘rule of law’ is insufficiently defined to attach such conditions, the two member states argued during a session in October.
The Advocate General now dismisses all those objections one by one. The new instrument does make clear what conditions are meant ‘so that it does not apply to all violations of the rule of law, but only to those directly related to the management of the Union budget’.
The Advocate General also writes that while ‘the rule of law’ is a broad concept, the Commission can indeed ‘define it in a specific substantive area, such as that of budget implementation, in order to introduce a financial conditionality mechanism ”.
The instrument also provides sufficient examples of requirements to be considered, such as ‘the proper functioning of the public authorities carrying out financial control, monitoring and auditing’ and ‘the proper functioning of investigating and prosecuting authorities with regard to investigations and prosecutions’. of fraud”.
The Advocate General thus comes to the conclusion to dismiss the action brought by Poland and Hungary. That judgment represents another step in the long road to actually shortening the two countries for violation of the rule of law. In theory, the Commission has been able to do this since the beginning of this year, but for political reasons it is waiting for a judgment from the Court of Justice. This opinion increases the chance that the Court of Appeal will also quickly declare the ‘test’ legally valid. From that moment on, the political pressure on the European Commission to withhold money quickly will grow sharply.
There is growing impatience, especially in the European Parliament. Recently, the EP even started a lawsuit against the Commission to force it to start more quickly with financial sanctions. But several member states also want Brussels to take more action, including the Netherlands. Prime Minister Mark Rutte has repeatedly stated to the House of Representatives that he finds it legitimate that the Commission is waiting for a judgment from Luxembourg, but that swift action must be taken as soon as it is available.