Activities of Barbara SPINELLI related to 2018/0136(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States
Amendments (42)
Amendment 31 #
Proposal for a regulation
Title 1
Title 1
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law, human rights and democracy in the Member States
Amendment 32 #
Proposal for a regulation
Citation 2 a (new)
Citation 2 a (new)
Having regard to the Charter of Fundamental Rights of the European Union,
Amendment 33 #
Proposal for a regulation
Citation 2 b (new)
Citation 2 b (new)
Having regard to the European Convention on Human Rights and to the European Social Charter, the Additional Protocol thereto and the revised version thereof,
Amendment 35 #
Proposal for a regulation
Recital 1
Recital 1
(1) The rule of law is oneUnion is founded ofn the essential values upon which the Union is foundedvalues of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. As recalled by Article 2 of the Treaty on European Union, these values are common to the Member States.
Amendment 37 #
Proposal for a regulation
Recital 1 a (new)
Recital 1 a (new)
(1 a) Respect for the rule of law entails the full observance and promotion of its core elements, namely legality, including a transparent, accountable and democratic process for enacting law; legal certainty; prohibition of arbitrariness; access to justice before independent and impartial courts, including judicial review of administrative acts; respect for human rights; and non-discrimination and equality before the law.
Amendment 42 #
Proposal for a regulation
Recital 2
Recital 2
(2) The rule of law requires that all public powers act within the constraints set out by law, in accordance with the valuprinciples of democracy and respect for fundamental rights, and under the control of independent and impartial courts. It requires, in particular, that the principles of legality7 , legal certainty8 , prohibition of arbitrariness of the executive powers9 , separation of powers10 , and effective judicial protection by independent courts11 are respected12 . __________________ 7 Judgment of the Court of Justice of 29 April 2004, CAS Succhi di Frutta, C- 496/99 PECLI:EU:C:2004:236, paragraph 63. 8 Judgment of the Court of Justice of 12 Judgment of the Court of Justice of 12 November 1981, Amministrazione delle finanze dello Stato v Srl Meridionale Industria Salumi and others Ditta Italo Orlandi & Figlio and Ditta Vincenzo Divella v Amministrazione delle finanze dello Stato. Joined cases 212 to 217/80, ECLI:EU:C:1981:270, paragraph 10. 9 Judgment of the Court of Justice of 21 September 1989, Hoechst, Joined cases 46/87 and 227/88, ECLI:EU:C:1989:337, paragraph 19. 10 Judgment of the Court of Justice of 10 November 2016, Kovalkovas, C-477/16, ECLI:EU:C:2016:861, paragraph 36; Judgment of the Court of Justice of 10 November 2016, PPU Poltorak, C-452/16, ECLI:EU:C:2016:858, paragraph 35; and Judgment of the Court of Justice of 22 December 2010, DEB,C-279/09, ECLI:EU:C:2010:811, paragraph 58. 11 Judgment of the Court of Justice of 27 February 2018, Associação Sindical dos Juízes Portugueses v Tribunal de Contas C- 64/16, ECLI:EU:C:2018:117, paragraphs 31, 40-41. 12 Communication from the Commission "A new EU Framework to strengthen the Rule of Law", COM(2014) 158 final, Annex I.
Amendment 48 #
Proposal for a regulation
Recital 3
Recital 3
(3) The rRule of law is a prerequisite for the protection of the other fundamental values on which the Union is, human rights and democracy are strictly interlinked and mutually reinforcing; the interdependence between a founded, such as freedom, democracy, equality and respect for human rights. Respect for the rule of law is inctioning democracy, strong and accountable institutions, triansically linked to respect for democracy and for fundamental rights: there can be no democracy and respect for fundamental rights without respect for the rule of lawparent and inclusive decision-making and effective rule of law is essential for an effective respect for human rights and vice versa.
Amendment 49 #
Proposal for a regulation
Recital 3 a (new)
Recital 3 a (new)
(3 a) Articles 2 and 6 TEU require Member States to fully respect, protect and promote the principle of rule of law, human rights and democracy as well as their constitutive elements. The Union principle of mutual trust does not preclude the establishment of mechanisms to assess the compliance of the Member States with the provisions enshrined in such articles.
Amendment 51 #
Proposal for a regulation
Recital 4
Recital 4
(4) Whenever the Member States implement the Union’s budget, and whatever method of implementation they use, respect for the rule of law, human rights and democracy is an essential precondition to comply with the principles of sound financial management enshrined in Article 317 of the Treaty on the Functioning of the European Union.
Amendment 54 #
Proposal for a regulation
Recital 6
Recital 6
(6) Judicial bodies should act iIndependentlyce and impartiallyity of the judiciary should always be guaranteed and investigation and prosecution services should be able to properly execute their function. They should be endowed with sufficient resources and procedures to act effectively and in full respect of the right to a fair trial. These conditions are required as a minimum guarantee against unlawful and arbitrary decisions by public authorities that could harmimpair these financial interests of the Unionundamental principles.
Amendment 58 #
Proposal for a regulation
Recital 8
Recital 8
(8) Respect for the rule of law is not only important for citizens of the Union, but also, human rights and democracy is essential for allowing citizens to fully participate in the democratic life of the Union. It is also important for business initiatives, innovation, and investment and for the proper motion of a social rights-based and well-functioning of the internal market, which will flourish most where a solid legal and institutional framework is in place compliant with the principles enshrined in Article 3 TEU.
Amendment 64 #
Proposal for a regulation
Recital 9
Recital 9
(9) Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, requires the Member States to provide effective judicial protection in the fields covered by Union law, including those relating to the implementation of the Union’s budget. The very existence of effective judicial review designed to ensure compliance with Union law is the essence of the rule of law and requireffectiveness of justice systems is a key aspect of the rule of law and it is essential for ensuring equal treatment, sanctioning government abuses iandependent courts13 preventing arbitrariness. Maintaining the independence of the courts is essential, as confirmed by the second subparagraph of Article 47 of the Charter of Fundamental Rights of the European Union14 . This is true, in particular, for the judicial review of the validity of the measures, contracts or other instruments giving rise to public expenditure or debts, inter alia in the context of public procurement procedures which may also be brought before the courts. __________________ 13 14__________________ 13 Case C-64/16, para 32-36. Case C-64/16, para 32-36. 14 Case C-64/16, para 40-41. Case C-64/16, para 40-41.
Amendment 66 #
Proposal for a regulation
Recital 10
Recital 10
(10) There is hence a clear relationship between respect for the rule of law, human rights and democracy and an efficient implementation of the Union budget in accordance with the principles of sound and socially responsible financial management.
Amendment 73 #
Proposal for a regulation
Recital 11
Recital 11
(11) Generalised deficiencies in the Member States as regards the rule of law which affect in particular the proper functioning of public authorities and effective judicial review, can seriously harm the financial interests of the Union, human rights and democracy can seriously harm the financial interests of the Union as well as the rights and interests of the citizens as a whole.
Amendment 77 #
Proposal for a regulation
Recital 12
Recital 12
(12) The identification of a generalised deficiency requires a qualitative assessment by the Commission, objective, transparent and impartial assessment carried out by the Commission in cooperation with a representative panel of independent experts. That assessment cshould be based on the information from all available sources and recognized institutions, including, inter alia, judgments of the Court of Justice of the European Union, reports of the Court of Auditors, and and of the European Court of Human Rights, reports of the Court of Auditors, the European Ombudsman and the European Union Agency for Fundamental Rights, conclusions and recommendations of relevant international organisations and networks, such as the bodies of the Council of Europe and the European networks of supreme courts and councils for the judiciary as well as reporting from non- governmental and civil society organisations working in the field of human rights protection and promotion.
Amendment 83 #
Proposal for a regulation
Recital 14
Recital 14
(14) The principles of necessity, proportionality and non-discrimination should apply when determining the measures to be adopted, in particular taking into account the seriousness of the situation, the time which has elapsed since the relevant conduct started, its duration and its recurrence, the intention, and the degree of cooperation of the Member State concerned in putting an end to the generalised deficiency as regards the rule of law, human rights and democracy and the effects of that deficiency on the respective Union funds.
Amendment 85 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14 a) It is of paramount importance that the fundamental rights and the legitimate interests of the final recipients and beneficiaries are duly taken into account in determining the measures to be adopted. The Commission should always assess in detail, before the adoption of any possible measure under this Regulation, the potential impact that these might have on final beneficiaries and how to ensure that their rights and legitimate interests will be properly safeguarded. The Commission should also assess, before determining the measures to be adopted, the possible budgetary implications of a reduction in Union funding for the national budget of the Member States concerned with due regard to the principles of proportionality and non- discrimination.
Amendment 90 #
Proposal for a regulation
Recital 15
Recital 15
(15) In order to ensure uniform implementation of this Regulation and in view of the importance of the financial effects of measures being imposed pursuant to this Regulation, implementing powers should be conferred on the Council which should act on the basis of a Commission proposal. To facilitate the adoption of decisions which are required to protect the financial interests of the Union, reversed qualified majority voting should be used, after obtaining the consent of the European Parliament.
Amendment 94 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
This Regulation establishes the rules necessary for the protection of the Union’s budget in the case of generalised deficiencies as regards the rule of law, human rights and democracy in the Member States.
Amendment 96 #
Proposal for a regulation
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) 'the rule of law, human rights and democracy' refers to the Union valueprovisions enshrined in Articles 2 and 6 of the Treaty on European Union whichand in the Charter of Fundamental Rights of the European Union, and includes also the principles of legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the execu; access to justivce powers;and effective judicial protection byefore independent and impartial courts, including of fundamentaljudicial review of administrative acts; respect for human rights; separation of powers; non-discrimination and equality before the law;
Amendment 98 #
Proposal for a regulation
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) 'generalised deficiency as regards the rule of law' means a widespread or recurrent, human rights and democracy' means any situation where a systemic threat to the rule of law, human rights and democracy may be established or where they are directly or indirectly undermined in a systemic way, either by the combined impact of practice ors, omissions, or measures or inactions by public authorities which affects the rule of law; or by widespread or recurrent practices, omissions, measures or inactions by public authorities;
Amendment 104 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Appropriate measures shall be taken where a generalised deficiency as regards the rule of law, human rights and democracy in a Member State affects or risks affecting the principles of soundoper implementation of the Union’s budget, in particular the management and control activities, in accordance with the principles of sound and socially responsible financial management orand the protection of the financial interests of the Union, in particularand if at least one of the following conditions is met:
Amendment 109 #
Proposal for a regulation
Article 3 – paragraph 1 – point a
Article 3 – paragraph 1 – point a
(a) the proper functioning of the authorities of that Member State implementing the Union budget, in particular in the context of public procurement or grant procedures,Commission considers that there is no satisfactory follow-up to the "rule of law recommendation" issued on the basis of the Communication of 11 March 2014 from the Commission to the European Parliament and wthen carrying out monitoring and controls Council entitled “A new EU Framework to strengthen the Rule of Law";
Amendment 111 #
Proposal for a regulation
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) the proper functioning of investigation and public prosecution services in relation to the prosecution of fraud, corruption or other breaches of Union law relating to the implementation of the Union budgetone third of the Member States, the European Parliament or the Commission submits a reasoned proposal to the Council in accordance with Article 7(1) TEU to determine that there is a clear risk of a serious breach by that Member State of the values referred to in Article 2 TEU;
Amendment 113 #
Proposal for a regulation
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) the effective judicial review by independent courts of actions or omissions by the authorities referred to in points (a) and b);one third of the Member States or the Commission submits a reasoned proposal to the European Council in accordance with Article 7(2) TEU to determine the existence of a serious and persistent breach by that Member State of the values referred to in Article 2 TEU.
Amendment 115 #
Proposal for a regulation
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
Amendment 117 #
Proposal for a regulation
Article 3 – paragraph 1 – point e
Article 3 – paragraph 1 – point e
Amendment 120 #
Proposal for a regulation
Article 3 – paragraph 1 – point f
Article 3 – paragraph 1 – point f
Amendment 121 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 129 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3 a Democracy, Rule of Law and Fundamental Rights Expert Panel 1. In the assessment of the state of generalised deficiencies as regards the rule of law, human rights and democracy, the Commission shall be assisted by a representative panel of independent experts (the Democracy, Rule of Law and Fundamental Rights Expert Panel). The Democracy, Rule of Law and Fundamental Rights Expert Panel shall assess the situation on the basis of a quantitative and qualitative review of all the data and information available. 2. The assessment by the Democracy, Rule of Law and Fundamental Rights Expert Panel shall be made public by the Commission. 3. The Democracy, Rule of Law and Fundamental Rights Expert Panel shall be composed of the following members: (a) one independent expert designated by the parliament of each Member State who shall be a qualified constitutional court or supreme court judge not currently in active service; (b) ten further experts designated by the European Parliament with a two-third majority, chosen from a list of experts nominated by: (i) the European Federation of Academies of Sciences and Humanities (ALLEA); (ii) the European Network of National Human Rights Institutions(ENNHRI); (iii) the Council of Europe (including the Venice Commission, the Group of States Against Corruption (GRECO) and the Council of Europe Commissioner for Human Rights); (iv) European Commission for the efficiency of justice (CEPEJ) and the Council of Bars and Law Societies of Europe (CCBE); (v) the United Nations (UN), the Organization for Security and Co-operation in Europe (OSCE) and the Organisation for Economic Co-operation and Development (OECD). 4. The composition of the Democracy, Rule of Law and Fundamental Rights Expert Panel shall ensure gender balance. 5. The Democracy, Rule of Law and Fundamental Rights Expert Panel shall elect its chairperson from among its members. 6. In order to facilitate the work of the Democracy, Rule of Law and Fundamental Rights Expert Panel, the Commission shall provide a secretariat to the Expert Panel, enabling it to function efficiently, in particular by gathering data and information sources to be reviewed and assessed, and by providing administrative support.
Amendment 138 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The measures taken shall be proportionate to the nature, gravity, duration and scope of the generalised deficiency as regards the rule of law, human rights and democracy. They shall, insofar as possible, target the Union actions affected or potentially affected by that deficiency.
Amendment 141 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Where the Commission finds, on the basis of the assessment carried out in full cooperation with the Democracy, Rule of Law and Fundamental Rights Expert Panel, that it has reasonable grounds to believe that the conditions of Article 3 are fulfilled, it shall send a written notification to that Member State, setting out the grounds on which it based its finding .
Amendment 143 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The Commission mayIn conducting the assessment pursuant to paragraph 1, the Commission and the Democracy, Rule of Law and Fundamental Rights Expert Panel shall take into account all relevant information, including decision, inter alia, judgments of the Court of Justice of the European Union, reports of the Court of Auditors, and conclusions and recommendations of relevant international organisations. and of the European Court of Human Rights, reports of the Court of Auditors, the European Ombudsman and the European Union Agency for Fundamental Rights, conclusions and recommendations of relevant international organisations and networks, such as the bodies of the Council of Europe and the European networks of supreme courts and councils for the judiciary as well as reporting from non-governmental and civil society organisations working in the field of human rights protection and promotion.
Amendment 151 #
Proposal for a regulation
Article 5 – paragraph 6
Article 5 – paragraph 6
6. Where the Commission considers that the generalised deficiency as regards the rule of law, human rights and democracy is established, it shall submit a proposal for an implementing act on the appropriate measures to the Council.
Amendment 153 #
Proposal for a regulation
Article 5 – paragraph 6 a (new)
Article 5 – paragraph 6 a (new)
6 a. Before submitting the proposal for an implementing act pursuant to article 5(6), the Commission shall carry out a detailed assessment regarding the potential impacts that these measures might have on the final beneficiaries and how to ensure that their rights and legitimate interests will be properly safeguarded. The Commission shall also assess the possible budgetary implications of a reduction in the Union funding for the national budget of the Member States concerned with due regard to the principles of proportionality and non- discrimination.
Amendment 156 #
Proposal for a regulation
Article 5 – paragraph 7
Article 5 – paragraph 7
Amendment 159 #
Proposal for a regulation
Article 5 – paragraph 8
Article 5 – paragraph 8
8. The Council, acting by a qualified majority and after obtaining the consent of the European Parliament, may amenddopt the Commission’s proposal and adopt the amended text, amended or otherwise, as a Council decision.
Amendment 163 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. The Member State concerned may, at any time, submit to the Commission evidence to show that the generalised deficiency as regards the rule of law, human rights and democracy has been remedied or has ceased to exist.
Amendment 165 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The Commission shall regularly assess the situation in the Member State concerned, covering also the impact, on human rights and fundamental freedoms, of the remedial measures adopted by the Commission. Once the generalised deficiencies as regards the rule of law which, human rights and democracy on the grounds of which the appropriate measures were adopted cease to exist in full or in part, the Commission shall, without delay, submit to the Council a proposal for a decision lifting those measures in full or in part. The procedure set out in paragraphs 2, 4, 5, 6, 6(a) and 78 of Article 5 shall apply.
Amendment 167 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Where measures concerning the suspension of the approval of one or more programmes or amendments thereof referred to in point (i) of Article 4(2)(b) or the suspension of commitments referred to in point (ii) of Article 4(2)(b) are lifted, amounts corresponding to the suspended commitments shall be entered in the budget subject to Article 7 of Council Regulation (EU, Euratom) No XXXX (MFF Regulation). Suspended commitments of year n may not be entered in the budget beyond year n+2. As from year n+3, an amount equivalent to the suspended commitments shall be entered in the Union Reserve for Commitments provided for in Article 12 of Council Regulation (EU, Euratom) No XXXX (MFF Regulation).
Amendment 169 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
The Commission shall immediately inform the European Parliament ofat any measures proposed or adopted pursuant to Articles 4 and 5stage of the procedure.
Amendment 170 #
Proposal for a regulation
Article 7 a (new)
Article 7 a (new)
Article 7 a Reporting The Commission shall report to the European Parliament and the Council on the application of this Regulation, in particular on the effectiveness of the measures adopted, if any, and on the impact of such measures on the rights and principles enshrined in the Charter of fundamental rights of the European Union, at the latest three years after its entry into force. The report shall be accompanied, where necessary, by appropriate proposals.