Intensification of controls in the matter of EU funds
The number of people applying for non-refundable EU funds is on a noticeable increase, and the financed fields are among the most diverse: agriculture, tourism, transport, etc.
However, we have noticed lately a significant increase of the controls of the competent authorities. One of their objectives is to verify and sanction any irregularities committed in connection with the funds obtained.
It should be noted that the term "irregularity" has an extremely broad legal definition, covering a multitude of hypotheses:
"irregularity - any deviation from legality, regularity and compliance in relation to national and/or European provisions, as well as the provisions of contracts or other legal commitments concluded on the basis of these provisions, resulting from an action or inaction of the beneficiary or the authority with competences in the management of EU funds, which has damaged or may damage the budget of the European Union/the budgets of international public donors and/or the national public funds related to them through an improperly paid amount;" (art. 2 para. 1 letter a of G.E.O. no. 66/2011 regarding the prevention, detection and sanctioning of irregularities arising in the obtaining and use of EU funds and/or national public funds related to them)
What happens when the control team detects such an irregularity?
It is important to know that during the control, the person subject to verification has the right to express his point of view, which is analyzed by the control team.
In the event that, following the verifications, the suspicion of misconduct is not confirmed or is confirmed without financial impact, the authority will issue a control report/note of closure of the suspicion of irregularity.
In the opposite case, that of finding that some irregularities have been committed, the control team will, in a first phase, draw up a draft of the minutes of the irregularities and the establishment of the budget claims, which will be communicated to the verified person. The beneficiary of the funds has the right to present his point of view towards the draft minutes within 5 working days from the communication. Thus, one can observe the similarity between the control carried out in the matter of EU funds and the tax inspection, which, as is known, initially involves the issuance of a draft of the tax inspection report.
Afterwards, the draft minutes is subject to the approval of the competent authority. Most of the time, the approval is a simple formality, in the sense that in most cases the draft "ends up" as a minutes. However, this does not mean that expressing your point of view during the control is useless.
Challenging and suspending the minutes of ascertaining irregularities and establishing budgetary claims
What is essential to remember is that it is not the draft, but the minutes of ascertaining irregularities and establishing budgetary claims that constitutes a title of claim. According to art. 21 para. (19) and (20) of G.E.O. no. 66/2011, this minutes constitutes both an administrative act and a title of claim. Moreover, according to art. 43 para. (1) from G.E.O. no. 66/2011, the minutes constitutes an enforceable title, so that it can be immediately enforced, without obtaining a court decision.
The fact that it is an enforceable title does not mean that it cannot be contested, on the contrary. In a first phase, it is necessary to follow the preliminary administrative procedure, in the sense of formulating a administrative challenge within a term of 30 calendar days from the communication of the minutes, which will be resolved by the authority issuing the minutes.
It should be noted that the simple introduction of the administrative challenge does not suspend the execution of the minutes, as happens, for example, in the case of contravention complaints. In order to obtain the suspension of this administrative act, thus preventing a forced execution that could even generate the insolvency of the sanctioned person, it is necessary to formulate a request for suspension under art. 14, respectively art. 15 of Law no. 554/2004, as the case may be. There are also courts that suspend the execution of the minutes based on the provisions of the Code of Civil Procedure, in the context of the formulation of a challenge on enforcement, but this solution is debatable due to the rule specialia generalibus derogant.
To obtain the suspension of the minutes, art. 50 para. (9) from G.E.O. no. 66/2011 provides that it is necessary to deposit a surety up to 20% of the disputed amount.
The decisions pronounced in the settlement of the administrative challenges are not final, they can be challenged and annulled at the competent administrative courts, in accordance with the provisions of Law no. 554/2004.
In the situation where you are in such a control, it is advisable to contact a lawyer, in order to be able to properly defend your interests in the whole procedure.
For more information you can write to us at: firstname.lastname@example.org.