(Il Sole 24 Ore Radiocor) – The allocation of cohesion policy funds is conditioned by the presence of some regulatory and structural prerequisites that must be possessed by the Member States before programming and ensured throughout the implementation phase. These conditions are functional to ensure proper management of funds, to improve the use of resources and, therefore, the effectiveness of cohesion policy in line with the objectives of the European integration process.
They were called “ex ante conditionalities” when they were first introduced with Regulation (EU) 2013/1303, which laid down common provisions for the structural funds for the 2014-2020 period. These prerequisites have been revised in the new programming, in line with the evolution of the European legal system. Regulation (EU) 2021/1060, which dictates the common provisions for the use of structural funds for the period 2021-2027, renamed them “enabling conditions” (Article 15) and divided them into two categories: enabling conditions “Themes”, which apply to some specific objectives and the “horizontal” enabling conditions, applicable to all policy objectives. One of the novelties of the 2021-2027 programming is the provision, among the horizontal enabling conditions, of the “effective application and implementation of the Charter of Fundamental Rights of the European Union”.
States must demonstrate compliance with these criteria when approving Operational Programs and ensure that the enabling conditions are met throughout the programming period. Otherwise, the Commission will not reimburse the costs relating to operations linked to the specific objective concerned.
The evolution of conditionality in cohesion policy must be read in the broader context of the evolution of the European order, which in 2020 saw the establishment of a general regime of conditionality for the protection of the Union budget and the protection of the rule of law. .
This is Regulation (EU) 2020/2092 which introduces a mechanism in the light of which, in the event of violations of the principle of the rule of law affecting the financial interests and the Union budget, the Commission can suspend European funds. towards the defaulting state.
The knot of Poland and Hungary
The Regulation is located at the crossroads between political dynamics and more strictly legal aspects and concerns one of the most urgent issues that the Union is facing: the presence of Member States that ignore or challenge the fundamental values of the EU, to which they had adhered when accessing the European Union. This is an extremely delicate question, which touches sensitive chords relating to the very nature of the Union, to relations between the Union and the Member States and to the constitutional tensions which, although always present in the history of the Union and inevitable in a composite system , have exacerbated with the deterioration of relations with Poland and Hungary.Since the first stages of the crisis of the rule of law in Poland and Hungary, the Union has tried to adapt the pre-existing mechanisms or to adopt new measures capable of coping with this crisis , unprecedented in the integration landscape. The Regulation in question must therefore be contextualized in this legal and political process aimed at finding a legitimate instrument – that is, falling within the competences conferred on the EU – to address the crisis of the rule of law that is going through some Member States and which could extend to other national contexts The Court of Justice, referred to by the governments of Poland and Hungary, in cases C-156/21 and C-157/21 confirmed the legitimacy of the Regulation, affirming its compatibility with the Treaties and EU law, thus paving the way for the adoption of the Commission’s guidelines, issued in March 2022, which make the mechanism fully operational. What is the relationship between the protection of fundamental rights and the rule of law and the use of European funds? Does Italy respect the enabling conditions for cohesion policy? What is the situation in Europe with the crisis of the rule of law in Poland and Hungary? The Sole 24 ore journalist Giuseppe Chiellino will discuss these issues with Gabriella Saputelli, Researcher of Public Law at ISSiRFA-CNR and Antonia Baraggia, Associate Professor of Comparative Public Law at the University of Milan, during the live broadcast “The conditionality in cohesion policies: respect for fundamental rights and the rule of law “on Wednesday 28 September, 3.00 pm on the website and social channels of Il Sole 24 Ore. The webinar is organized as part of the Work4Future project co-financed by the European Commission – DG Regio and produced by Il Sole 24 Ore in collaboration with OBC Transeuropa and CNR ISSiRFA.
* Respectively researcher of Public Law at ISSiRFA-CNR and associate professor of comparative public law at the University of Milan