July 1, 2022

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An important court order has been received in the case of the rule of Hungarian law

Wednesday In our article We have now elaborated on why the Advocate General’s document is important. About this comment Rule of law What he proposes to the European Court. This regulation provides for a legal framework that is closely linked to EU funds Permission option In the hands of the European Commission against member states.

The information now released recalls, “On 16 December 2020, the EU legislature adopted a provision that would introduce a general framework for protecting the EU budget in the event of a breach of the rule of law in member states. Allows the Council to adopt measures such as approving one or more funded projects.

Both Hungary and Poland have taken steps to overturn this regulation before the European Court of Justice. Their action alleges that the legal basis chosen for the regulation is inappropriate, that there is no appropriate legal basis, that Section 7 does not comply with the TEU, and that the principle of legal commitment is violated.

That was decided by the Advocate General

In his opinion presented today, Advocate General Manuel Campos Sanchez-Portona points out, first and foremost, the purpose of the discipline. Establishing a specific mechanism to ensure the proper implementation of the EU budget In case of violation of the rule of law by a member state which may affect the efficient and effective management of the Union Funds or the financial interests of the Union. It is in this context that he has emphasized this This regulation does not seek to protect the rule of law through an acknowledgment mechanism similar to Rule 7 TEU, but through a financial mechanism;Creates a conditional tool to protect this EU value. In the view of the Advocate General, this legislative decision is subject to the discretion of EU institutions, which cannot be explicitly misunderstood, as respect for the rule of law is essential for the proper functioning and implementation of public funds. EU budget.

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The Advocate General further points out Adequate direct contact needed Between the rule of law and the implementation of the budget, This way This does not apply to all violations of the law, but only to those directly involved in the implementation of the EU budget. On the other hand, the protection of the final beneficiaries of expenditures funded by the EU budget is a common and logical measure in the shared management of these funds, and must therefore be accepted by the member in violation of the financial amendment adopted by the EU institutions. Not provided to the state and those end beneficiaries. . According to the Advocate General, both the purpose and the content of the regulation prove it Article 322 (1) (a) is the budgetary provision in the subject of the TFEU, and therefore that article forms the appropriate legal basis for adopting this regulation.

Second, Advocate General, Section 7 TEU considers that the EU Legislature has no right to establish another similar mechanism by secondary law. Protection of the rule of law Use purpose and similar barriers. However, according to the Advocate General, it is

Section 7 TEU does not preclude the provision of such protection other than as provided in that provision.

Their essential properties differ from the protection mechanisms provided in this article. The Advocate General reminded that the court already has consequences for violating EU values, especially the European arrest warrant and the independence of the national courts, although Section 7 TEU has not been used in these cases, ”the source said.

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Advocate General The rules adopted by the EU institutions to deal with certain violations of the rule of law in certain areas that have an impact on budget management are in line with the agreements. Section 7 of the TEU stipulates the acceptance of actions by a member state upon detection of serious and persistent violations of union values, the regulation only covers violations of the laws of a member state law, which directly affect sound and efficiency. Management of the Union Budget, safeguarding the financial interests of the Union or where it is at serious risk.

According to the Advocate General, the mechanism of regulation is similar to other financial conditional tools and instruments for implementing the budget in various parts of EU law, and not for the instrument provided for in Section 7 TEU. In addition, Unlike regulation, Section 7 TEU requires that not only the rule of law, but any values ​​of the Union be seriously and permanently violated. Therefore, the jurisdiction of the Judicial Court given in Article 269 TFEU in relation to Article 7 TFEU does not apply to a regulation legally and fully reviewed by the Judicial Court under TFEU. Similarly, the decision-making process provided for in Section 6 of the Regulation is different from that provided for in Section 7 TFEU and does not violate the principle of institutional equity because Article 317 gives the Commission the power to implement the budget in the strict sense of the word, without discrimination to the TFEU. The Advocate General therefore considers that this regulation is compatible with Section 7 TEU.

Third, according to the Advocate General, although the concept of the rule of law as the value of the EU is broad, The EU legislature has the power to make that clear For the purpose of establishing the financial conditioning mechanism, to a specific legal area such as the budget implementation area. The Advocate General points out that Rule 2 lists seven legal principles that need to be explained in light of other EU values ​​and policies mentioned in the TEU. In addition, Section 3 of the Regulation describes the possible circumstances under which a rule violation may be presumed and Rule 4 (2) contains a list of factors that may lead to a violation of the rule of law. This list is for identifying violations that may lead to the adoption of actions that result from the organization of the conditions under the regulation, if there is a direct connection to the implementation of the Union Budget. Both factors reflect the legislature’s efforts to improve the rule of law and increase legitimacy.

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According to the Advocate General, the characteristic of the rule of law by referring to the above principles meets the minimum requirements of clarity, accuracy and foresight laid down by the principles of law enforcement. Member States have sufficient knowledge of the obligations arising from them, and most of them were created by the court case-law.

Considering these circumstances

The Advocate General argues that the court should dismiss the revocation measures brought by Hungary and Poland.

Even the now-published Prospectus reminds us of that The opinion of the Advocate General is not binding on the Court. The Advocate-General shall act with full impartiality and independence and shall submit to the Court a proposal for a legal settlement of the case before him. Court judges are currently investigating the case. Judgment will be given later.

We have written extensively about history in our previous articles:

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