Council Regulation (EU, Euratom) 2022/615 of 5 April 2022 amending Regulation (EU, Euratom) No 609/2014 in order to enhance predictability for Member States and to clarify procedures for dispute resolution when making available the traditional, VAT and GNI based own resources

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 322(2) thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 106a thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Court of Auditors (1),

Whereas:

(1) While Council Regulation (EU, Euratom) No 609/2014 (2) has provided a solid and stable anchor for the financing mechanics of the Union, the provisions on the making available of own resources need to be improved to enhance its predictability for Member States and to clarify procedures for dispute resolution.

(2) Currently, only Member States manage own resources accounts opened in the name of the Commission. A reduction in the number of bank accounts used for collection of own resources would be more efficient and allow for a common approach to cash management. In order to modernise the management of own resources accounts, the Commission should be able to establish a centralised own resources account. It should be possible for Member States to choose whether to use that centralised own resources account or an account opened in the name of the Commission with their treasury or national central bank. In order to enable Member States to make an informed choice, the Commission should produce a detailed cost-benefit analysis of the use of the centralised own resources account.

(3) Currently, Regulation (EU, Euratom) No 609/2014 does not allow Member States to make advance payments. However, in the past some Member States have paid their national contributions in advance following agreement by the Commission. In the interest of legal certainty, that Regulation should provide that Member States have the possibility to make advance payments on a case-by-case basis, provided they inform the Commission in advance. For reasons of fairness, where a Member State avails itself of that possibility, the other Member States should not bear any costs related to the advanced payment, such as negative interest.

(4) The date of payment by the Member States of the adjustments to the VAT and GNI-based own resources of previous financial years should be moved to March of the following year to enhance predictability for the national budgetary procedures. The date of payment by the Member States of adjustments should also apply to amounts for which information has been provided by the Commission before the entry into force of this Regulation.

(5) To provide a stable budget that is necessary to finance the policy objectives of the Union, the procedure for calculating interest should ensure in particular that own resources are made available in a timely manner and in full.

(6) The current threshold below which interest amounts are waived needs to be adapted. It is therefore necessary to increase the amount for which the recovery of interest is waived to improve the cost-effectiveness of the recovery procedures.

(7) Regulation (EU, Euratom) No 609/2014 limits the increase in interest above the base rate to 16 percentage points. However, this ‘capping’ at 16 percentage points only applies to cases that became known after the entry into force of Council Regulation (EU, Euratom) 2016/804 (3). Consequently, cases already known before the entry into force of Regulation (EU, Euratom) 2016/804, where particularly high amounts of interest are at stake, cannot benefit from that limit regardless of whether the amount of interest has already been notified to the Member States. In those cases, Member States are still required to pay amounts of interest that are disproportionate compared to the amount of the principal due. In order to ensure the proportionality of the system while maintaining the deterrent effect, the increase in interest above the base rate should be further limited to 14 percentage points. In order to clarify and simplify the relevant provisions of Regulation (EU, Euratom) No 609/2014, the limitation of the increase to 14 percentage points should be applied to any amount of interest not communicated to the Member State before the entry into force of this Regulation.

(8) Under the current legal framework, the practice has demonstrated that it can be difficult to identify the starting date of late payment interest due to the difficulty in identifying the exact point in time at which recovery efforts can be deemed to have been insufficient. For the purposes of simplification, there should be a ‘grace period’ of 5 years following the date of establishment of the amount, under the condition that the amount has been established, entered in a timely manner in the separate accounts and kept in the separate accounts in accordance with Regulation (EU, Euratom) No 609/2014. Accordingly, the interest should only start running after 5 years, while the liability for the principal amount should be maintained.

(9) In order to ensure the fair treatment of cases where amounts corresponding to established entitlements of traditional own resources prove irrecoverable, Member States should be released from the obligation to place at the disposal of the Commission the amounts corresponding to established entitlements of traditional own resources, where the Member State can prove that an error committed by the Member State after the establishment of the entitlements had no influence on the irrecoverability of the amount corresponding to those entitlements. Examples of such an error could include a belated entry in the separate accounts or shortcomings in the recovery procedure.

(10) Regulation (EU, Euratom) No 609/2014 contains only one deadline, requiring the Commission to communicate its comments on the write off cases reported to the Commission to the Member State concerned within 6 months from the receipt of the report by that Member State. In order to conduct the follow-up of write-off reports in a timely and more flexible manner and to support a swift and fully transparent assessment of the Member State’s decision not to make the irrecoverable amount of traditional own resources available, procedural deadlines for the Commission and Member States should be adjusted.

(11) In order to allow for the interruption of the period for which interest accrues, in the case of a disagreement between the Members States and the Commission, provisions should be introduced to reflect the current practice of the payment under reservation concerning amounts of own resources due to the budget of the Union, which opens the possibility to initiate an action for unjust enrichment against the Commission in accordance with Article 268 and Article 340, second paragraph, of the Treaty on the Functioning of European Union (TFEU).

(12) In the case of a disagreement between Member States and the Commission regarding the making available of traditional own resources, a review procedure should be provided for in Regulation (EU, Euratom) No 609/2014 to improve transparency and to clarify Member States’ rights of defence. At the request of the Member State concerned, the outcome of the review procedure, as well as the state of play of pending cases, should be discussed with the Commission at a yearly meeting to be organised. That meeting should be held at an appropriate level of managerial representation with a view to reconsidering the respective positions and to striving to prevent the recourse to possible infringement proceedings, in accordance with the case law of the Court of Justice.

(13) The Commission should review the functioning of the review procedure in the framework of a possible revision of Regulation (EU, Euratom) No 609/2014 or by the end of 2026 at the latest and, in particular, assess opportunities to streamline the review procedure, which, if appropriate, may be concluded by a Commission decision.

(14) Articles 6 and 10a of Regulation (EU, Euratom) No 609/2014 should be adapted to delete the reference to the correction granted to the United Kingdom and to include Germany as beneficiary of lump-sum corrections in line with Council Decision (EU, Euratom) 2020/2053 (4).

(15) In line with the principles of better regulation, the parallel existence of several making available regulations should be only temporary and such legal acts should be merged into one single regulation as soon as possible.

(16) Regulation (EU, Euratom) No 609/2014 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EU, Euratom) No 609/2014 is amended as follows:

(1) in Article 6(3), third subparagraph, the introductory sentence is replaced by the following: ‘However, the VAT-based own resource and the GNI-based own resource, taking into account the effect on those resources of the gross reduction granted to Denmark, Germany, the Netherlands, Austria and Sweden, shall be recorded in the accounts as specified in the first subparagraph as follows:’;

(3) Article 10a is replaced by the following: ‘Article 10a Making available the VAT and GNI-based own resources (1)  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ L 347, 20.12.2013, p. 608)." (2)  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ L 347, 20.12.2013, p. 320)." (*3)  Regulation (EU) 2019/516 of the European Parliament and of the Council of 19 March 2019 on the harmonisation of gross national income at market prices and repealing Council Directive 89/130/EEC, Euratom and Council Regulation (EC, Euratom) No 1287/2003 (GNI Regulation) (OJ L 91, 29.3.2019, p. 19).’;"

(4) in Article 10b(5), the third subparagraph is replaced by the following: ‘The Commission shall inform the Member States of the amounts resulting from this calculation before 1 February of the year following that in which the data for the adjustments was supplied. Each Member State shall enter the net amount in the account referred to in Article 9(1) on the first working day of March of the year following that in which the Commission informed the Member States of the amounts resulting from the calculation. The deadline for the Member States to pay the adjustments shall also apply to amounts for which information has been provided by the Commission before 3 May 2022.’;

(7) the following Chapter is inserted: ‘CHAPTER IIIa PAYMENT UNDER RESERVATION AND REVIEW PROCEDURE

Article 13a

Payment under reservation

Article 13b

Review procedure

Article 2

This Regulation shall enter into force on the twentieth day following the date of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Luxembourg, 5 April 2022.

For the Council The President B. LE MAIRE

(1) OJ C 402 I, 5.10.2021, p. 1.

(2) Council Regulation (EU, Euratom) No 609/2014 of 26 May 2014 on the methods and procedure for making available the traditional, VAT and GNI-based own resources and on the measures to meet cash requirements (OJ L 168, 7.6.2014, p. 39).

(3) Council Regulation (EU, Euratom) 2016/804 of 17 May 2016 amending Regulation (EU, Euratom) No 609/2014 on the methods and procedure for making available the traditional, VAT and GNI-based own resources and on the measures to meet cash requirements (OJ L 132, 21.5.2016, p. 85).

(4) Council Decision (EU, Euratom) 2020/2053 of 14 December 2020 on the system of own resources of the European Union and repealing Decision 2014/335/EU, Euratom (OJ L 424, 15.12.2020, p. 1).