Scenario of triggering the procedures for blocking funds against the Republic of Poland – time limits
By judgement of February 16, 2022, the Court of Justice of the European Union, en banc, dismissed the appeals filed by Hungary and Poland contesting the conditionality mechanism whereby the Member States are required to respect the rule of law as a condition for access to EU funding.
This article aims to outline a feasible scenario for triggering the procedures for blocking funds against Poland under Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.
This regulation stipulates two stages for triggering the conditionality mechanism: the administrative stage and the decision-making stage.
The administrative stage
The analysis of the Regulation 2020/2092 indicates that the European Commission shall first – as part of the internal procedure – examine whether breaches of the rule of law by a Member State affect or create a significant risk of affecting – in a sufficiently direct manner – the sound financial management of the Union budget or the protection of Union interests (Article 4(1) of the Regulation). The European Commission is using information from available sources for its assessment. There are no subject limitations in this respect (Article 6(3) of the Regulation). The European Commission may, but is not obliged to, request additional information from the Member State when conducting the assessment (Article 6(4) of Regulation 2020/2092). The European Commission used this option by forwarding a letter to Poland dated 23 November 2021.
Should the internal procedure triggered by the Commission lead to its conviction that there are likely premises for applying the so-called conditionality mechanism, a written notification, containing factual elements and specific reasons for this position, shall be forwarded to Poland (Article 6(1) of Regulation 2020/2092).
By forwarding to Poland the notification referred to in item 2, the European Commission shall set a time limit of not less than one month and not more than three months for Poland to present its position (Article 6(5) of Regulation 2020/2092).
Subsequently, the European Commission shall assess the Polish position or lack thereof (Article 6(6) of Regulation 2020/2092). With regard to the time limit that the Commission has in this respect, the regulation is very inaccurate. On the one hand, the time limit of one month is indicated, but on the other, the words ‘indicative time limit’ and ‘reasonable time limit’ are used, which does not exclude the situation when the Commission performs the assessment at any time, even within 1 day.
Should the European Commission not be satisfied with the Polish response, Poland shall be notified of the intended measures and, within one month, may respond only as to their proportionality (Article 6(7) of Regulation 2020/2092).
The decision-making stage
Upon submission of the Polish position or after the expiry of the time limit for its submission, the European Commission shall, within one month, request the Council of the European Union to decide on the application of the so-called conditionality mechanism (Article 6(9) of Regulation 2020/2092).
The Council of the European Union shall decide by qualified majority within one month upon receipt of the European Commission’s request and, in particularly justified circumstances, no later than three months upon receipt of the request (Article 6(10) of Regulation 2020/2092). Recital 26 of Regulation 2020/2092 stipulates that should Poland request the President of the European Council to refer the matter to the European Council for discussion, the measures shall not be decided before the European Council has taken a position, having no more than three months from the submission of the European Commission’s request to the Council of the European Union to do so.
Assuming that the Commission initiates the procedure on the day following the delivery of the judgement of the Court of Justice in case C-157/21 Poland/European Parliament and the Council of the European Union, the agenda for proceedings against Poland, adopting the minimum time limits set out in the regulation, is as follows:
- February 17, 2022 – institution of the procedure – a written notification to the European Commission,
- March 17, 2022 – presentation of a position by Poland,
- March 18, 2022 – The Commission provides an assessment of the Polish position (assuming that the Commission assesses the Polish position within 1 day and not within an “indicative time limit of one month”),
- April 18, 2022 – Poland takes a position on the measures based on the conditionality mechanism proposed by the Commission,
- May 18, 2022 – The European Commission requests the Council
to apply the so-called conditionality mechanism,
- June 18, 2022 – The Council shall vote by qualified majority on the application of the conditionality mechanism – provided that Poland does not request that the matter be referred to the European Council for consideration,
- not later than August 18, 2022 – The Council shall vote by qualified majority on the application of the conditionality mechanism – provided that Poland does not request that the matter be referred to the European Council for consideration, Should the European Council not meet within three months of the Commission request being submitted to the Council, the Council shall decide on the measures autonomously.
At the same time, it is worth indicating that the aforementioned agenda assumes the earliest time limit for triggering the procedures for blocking funds against Poland, however, this period may be extended. Further developments depend on the European Commission’s decision to initiate the procedure. In this context, it is important to remember that in the conclusions of the European Council of December 2020, the European Commission committed to develop and adopt guidelines on how it shall apply the Regulation. These guidelines, as announced by the Commission, are intended to cover all relevant aspects arising from the judgement. Time will tell, therefore, whether the EU institutions are interested in a thorough assessment of the proper use of EU funds, or merely in a swift procedure aimed at blocking funds for those Member States that are explicitly opposed to extending the competences of the European Union outside of treaties.