The impasse in the approval of the Community budget and the Recovery Fund can be overcome with the creation of a mechanism for the rapid appeal of sanctions proposals to the Court of the European Union, defends Miguel Poiares Maduro.
The approval of the European Union (EU) budget for 2021-2027 and the Recovery Fund has been blocked by Hungary and Poland, who disagree with the conditionality in accessing Community funds to respect for the rule of law.
Hungarians and Poles, with no strength to veto the rule of law mechanism, which only needs a qualified majority to pass, then vetoed another matter on which they have no reservations, that of own resources, which it does require. unanimously, blocking the entire process.
Hungary and Poland received the support of Slovenia, which although it does not threaten to veto the agreement, says it understands the position of those countries.
For European law expert Miguel Poiares Maduro, the introduction of a mechanism for the rapid appeal of possible sanctions proposals to the EU Court of Justice would allow to respond to the argument of those countries that the assessment of the rule of law in the Member States should be a legal and not a political issue, and at the same time, “not giving in to these States” and maintaining the principle of respect for European values in the EU.
“Using the question that especially the Slovenian Prime Minister came to raise, that deciding whether or not there is a violation of the rule of law is up to a court, one of the hypotheses could be to allow a ‘fast tracking’ appeal mechanism [rápido] of the proposal “to apply sanctions, he explained.
“To provide that a Member State subject to this sanction would have a chance of appeal during the proceedings, even before the Council’s decision, or possibly even allowing the Council to raise the matter with the EU Court of Justice,” he added.
Something similar to a precautionary measure, in which “a Member State could request the suspension of the decision before the Council in order for the Court of Justice to rule on whether there was actually a situation of violation of fundamental rights by that State”.
Such a mechanism would be all the more “preferable” because it would not imply a revision of the treaties, provided that the regulation that provides for the possibility of suspension of funds is included in the provision that this “does not occur while the appeal is being considered”, under of an “accelerated procedure provided for in the Statute of the Court”.
The initiative should be complemented, in Poiares Maduro’s opinion, by a regime that guarantees that “the institutions that certify the use of funds at national level […] they would be independent institutions, that the independence of those who managed them be certified at European level, as is already the case in part with central banks and partly even more with the members that States indicate, for example, to the European Public Prosecutor’s Office or the Court of Justice “.
“Basically, an internal control mechanism, by the States, […] which made it possible to guarantee from the outset that these funds would not be captured politically “, since in the Member States concerned” one of the questions that arises “is that the funds have often been used by these governments to strengthen their power and favor those close to them “.
This regime could be quickly decided, “it can almost be negotiated on the basis of programs with the Member States” in the context of the application of the regulations.
The expert also dismisses hypotheses for resolving the impasse that have been put forward, such as a political declaration, making the mechanism of funds conditionality more legally, or that of enhanced cooperation to approve the multi-annual budget and the Recovery Fund. .
Enhanced cooperation is a procedure in which a minimum of nine EU countries are authorized to institute advanced cooperation in a given area, without the participation of the other member countries, to overcome situations of paralysis.
Regarding a political statement, Poiares Maduro has doubts that it will be accepted by Hungary or Poland: “I don’t think that is enough for these Member States”.
As for enhanced cooperation, the expert admits that the possibility is being used “only as a negotiating mechanism”, “to make it clear to Hungary and Poland […] that, if they want to oppose, the other States can find an alternative way, either through reinforced cooperation, or through, as has happened in the past, through intergovernmental mechanisms “.
“I would prefer it not to be this mechanism. On the one hand, I do not like this logic of resorting to an intergovernmental mechanism outside the treaties, and it would not be useful,” he said, pointing out the costs that such a solution involves.
“Right from the start for these Member States, but it also has costs eventually on the EU’s reputation in these Member States, because it is natural for these populist governments to use this against the EU,” he concluded.
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