Issue link: https://maltatoday.uberflip.com/i/1396480
14 maltatoday | WEDNESDAY • 28 JULY 2021 ŻEUROPE This article is part of a content series called Ewropej. This is a multi-newsroom initiative part-funded by the European Parliament to bring the work of the EP closer to the citizens of Malta and keep them informed about matters that affect their daily lives. These articles reflect only the authors' view. The European Parliament is not responsible for any use that may be made of the information it contains. A recent legal report calls on the European Commission to trigger the Rule of Law Con- ditionality mechanism with respect to Hungary before any funding is disbursed to the country under its national re- covery and resilience plan. The report was authored by three rule of law experts, Pro- fessor Kim Lane Scheppele (Princeton University), Profes- sor R. Daniel Kelemen (Rutgers University) and Professor John Morijn (University of Gro- ningen) at the request of the Greens/MFA group in the par- liament. It provides a blueprint for applying the mechanism by issuing already now a written notification to the Hungarian government. By now the Commission has received almost all national plans and approved the major- ity of them but Hungary has missed the deadline for sub- mitting its plan and asked for an extension of the time. The so-called rule of law condition- ality mechanism is part of the post-Coronavirus crisis recov- ery package. When adopting the regula- tion (2020/2092) establishing the mechanism, the European Council agreed on a compro- mise which will allow for the suspension or reduction of EU funding to member states with focus on financial irregulari- ties. However, according to the Council decision further legal clarification by the European Court of Justice (ECJ) is re- quired. Only after its judgement, which has not yet been issued, will the Commission finalise guidelines on the application of the mechanism. Both Hun- gary and Poland have filed le- gal complaints to the court. In the meantime, the Commission is not proposing any meas- ures under the mechanism but has assured that it already has started to look at possible cas- es. Despite the delay, the Com- mission has assured that the mechanism can be applied ret- roactively and that no cases will be lost. When presenting its second annual rule of law report on Tuesday, while a dif- ferent exercise than the rule of law conditionality mechanism, it stated that the findings in the report might serve as input to the assessment when applying the mechanism on suspending EU funding. According to the assessment by the three law professors, the regulation itself does not require any guidelines and is already applicable by issuing a notification letter. The regulation explicitly de- mands the Commission to take a proactive, risk-based approach to protect the EU budget. This does not require the Commission to wait until specific instances of fraud or abuse of EU funds under the new budget can be document- ed. Their report lists three con- ditions for triggering the con- ditionality mechanism: A) the lack of transparent manage- ment of EU funds, B) the lack of an effective national pros- ecution service to investigate and prosecute fraud, and C) the lack of guarantee of inde- pendent courts to ensure that EU law is reliably enforced, in- cluding measures affecting the Union's budget and financial interest. The European Parliament has its own research service (EPRS) which provides MEPs with analysis of policy issues related to the EU. MEP Daniel Freund (Greens/EFA) told The Brus- sels Times that he wanted in- dependent, external experts to assess whether the situation in Hungary merits the activation of the rule of law conditionality mechanism. "All pro-European groups in the EP also see the necessity of applying the rule of law mecha- nism against Hungary," he said. They welcomed the report as a tool to increase pressure on the Commission to act in that re- gard. That's why the report was presented jointly by the mech- anism's negotiators from the Greens, EPP, S&D and Renew." The report deals explicitly with the application of the rule of law mechanism as regards Hungary. How relevant is it for other member states and can the conclusions and the tem- plate for a notification letter be applied to other countries? "Yes, the report deals explic- itly with the application of the mechanism against Hungary," he replied, "but it could nev- ertheless serve as a template for notification letters to oth- er countries. The rule of law mechanism has never been ac- tivated before." "This notification letter can show for example which rule of law deficiencies can be covered under the mechanism, which sources the Commission can draw from, in how much de- tail they need to prove the link between rule of law deficiency and impact on EU budget." Does the proposed notifica- tion letter in the report differ from current infringement procedures in place? "Yes," he confirmed. "In- fringement procedures are a tool for the Commission to en- sure that member states com- ply with specific EU legislation. Even if the European Court of Justice determines that a coun- try has violated EU law, it will not necessarily face any finan- cial sanctions. The rule of law conditionality mechanism is in the first place a tool to protect the EU budget from fraud and corruption." "The Rule of Law Condition- ality Regulation is not an in- fringement procedure and en- tails a totally different process," said Professor Daniel Kelemen, one of the authors of the re- port. "One key distinction is the language of the regulation de- mands that the Commission take a proactive, risk-based approach to protect the EU budget. The Commission need not wait until specific instances of fraud or abuse of EU funds under the new budget can be documented, but instead must act to address serious risk of such fraud or abuse created by existing breaches of rule of law principles." "Our report focused exclu- sively on Hungary. However, we provided a model of what the 'notification' required to trigger the first stage of the Rule of Law Conditionality Regulation could look like. We also provided a more gener- al analysis of the regulation, highlighting the sorts of rule of law breaches that would justi- fy triggering it. Certainly, our report can be used as a model for deploying the regulation against other member states as well, for instance Poland." "There is no time limit for how long the approval of the national recovery and resil- ience plans can be delayed," Freund concluded. "Given that corruption is systematic and widespread in Hungary, I hope the Commission will not ap- prove their plan unless it has very strong guarantees that the funds will not be misused." "It's vital to cut off the flow of EU funds that fuels Orban's authoritarian regime as soon as possible, Kelemen underlined. "Orban's patronage network of oligarchs and kleptocrats feeds off EU money. Nothing else the EU does will matter much if it keeps subsidizing his regime as it hardens its authoritarian rule." The same is happening in Po- land where the rule of law has ceased to exist in practice, ac- cording to Kelemen. The new banner NextGenerationEU being unveiled on the front of the Berlaymont building on 9 May 2021 European Parliament calls on Commission to apply rule of law conditionality on funding to Hungary