Considerations on COM(2022)184 - Amendment of Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the general budget of the Union

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dossier COM(2022)184 - Amendment of Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the general budget of the Union.
document COM(2022)184 EN
date April 22, 2022
 
(1) In its judgment of 20 January 2021 in Case C-301/19 P 5 , Commission v Printeos, the Court held that, on the basis of the obligation to take the necessary measures to comply with judgments of the Court of Justice of the European Union reducing or annulling a competition fine provisionally paid by an undertaking under Article 266(1) TFEU, the Commission was under an obligation to pay default interest for late repayment of the fine from the date the undertaking provisionally paid the fine to the Commission until the date of repayment.

(2) That recent case law has led to unprecedented interest claims, far exceeding the interest earned on the amounts provisionally paid, for which appropriate solution needs to be found in the Union budget. To ensure an appropriate level of compensation in the event of reimbursement of a provisionally paid fine and the ability of the Union budget to satisfy the resulting financial needs, it is urgent to make a number of targeted amendments to the Financial Regulation.

(3) In particular, it is necessary to include a derogation from the general rule set out in Article 48(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council 6 , which provides the budget is not to contain negative revenue. That derogation should allow to deduct from the revenue of the general budget of the Union any interest or other charge due, on the amounts of cancelled or reduced fines, other penalties or sanctions, including any negative return related to those amounts.

(4) In order to comply with the general principle of restoration to the prior state (restitutio in integrum) applicable to fines, other penalties or sanctions imposed by Union institutions that are later cancelled or reduced by the Court of Justice, it is necessary to provide that any negative return on the provisionally collected amount of such fines, other penalties or sanctions imposed by Union institutions is not deducted from the amount to be repaid. It is therefore appropriate to delete the relevant provision in Article 108(4) of Regulation (EU, Euratom) 2018/1046.

(5) To compensate for the loss of enjoyment of monies from the date the undertaking provisionally paid the fine to the Commission until the date of repayment, the amount to be repaid should be increased by an interest at the rate applied by the European Central Bank to its principal refinancing operations increased by one and a half percentage points as an adequate compensation for the undertaking in such situations, which excludes the need to apply any other interest rate on that amount. Furthermore, that rate corresponds to the interest rate applicable in relation to the debtor when the debtor chooses to defer the payment of a fine, another penalty or a sanction, and provides a financial guarantee instead of payment. It is also appropriate to clarify that the interest rate applicable in relation to the debtor when the debtor chooses to defer the payment of a fine, another penalty or a sanction, and provides a financial guarantee instead of payment does not constitute default interest for late payment, by amending Articles 99(4) and 108(1) of Regulation (EU, Euratom) 2018/1046.

(6) In order to secure sufficient cash flow to compensate the concerned third parties for the loss of enjoyment of monies in the cases referred to in Article 108(4) of Regulation (EU, Euratom) 2018/1046, it is necessary to allow for the amounts received by way of fines, other penalties or sanctions and any accrued interest or other income generated by them to be entered in the budget by the end of the following financial year.

(7) Taking into account the possibility of negative return on investments, the Commission should not aim at a positive expected return, should this require assuming a disproportionately high level of investment risk. The Commission should be allowed to invest in financial assets, while prioritising the aim of security and liquidity of the amounts provisionally paid as fines, other penalties or sanctions in accordance with the principle of sound financial management.

(8) Given the urgent need to address the budgetary impact of the recent case law, this Regulation should enter into force on the day following that of its publication in the Official Journal of the European Union.

(9) Regulation (EU, Euratom) 2018/1046 should therefore be amended accordingly.