CHALLENGING THE LEGAL CHARACTER OF THE FINANCIAL CORRECTIONS APPLIED TO SOME TRANSGRESSIONS RELATED TO THE USE OF THE EUROPEAN UNION FUNDS (ICCJ , Decision No. 1353 from 18th March 2014, the Administrative-Contentious and Fiscal Department)

The current analysis will debate the grounds and lawfulness of the financial corrections applied to the transgression of the procedure for purchasing assets/works/services using the European Union funds. For this purpose, the reference point is the special legislation and legal literature in the field, mainly Decision No. 1353 from 18th March 2014 of the High Court of Cassation and Justice (ICCJ), the Administrative-Contentious and Fiscal Department. In their essence, financial corrections are regulated by the Government Emergency Ordinance No. 66/2011 pm the prevention, acknowledgement and punishment of irregularities emerging in the use of European Union funds and/or national public funds corresponding to them , they constitute a novelty element which the legal act mentioned above brings, in comparison to the former regulation. Special law, at article 2 letter o) speaks of “administrative measures taken by the competent authorities (…), consisting in the exclusion from the European Union funds and/or national public funds corresponding to them of the expenses for which an irregularity was noted”. The definition mentioned above points out that the essential condition for applying the financial correction is the existence of an irregularity in the use of European Union funds, which receives the following meaning according to special law: “action or inaction of the beneficiary or the authority with competences to administer European Union funds, which caused or can cause prejudices to the European Union budget/the budgets of international public donors and/or the national public funds corresponding to them, as a result of an amount of money which was unworthily paid”. Irregularities are taken into account as transgressions and not as a fraud, the latter having another legal regime according to law. At the same time, the law also includes the condition for the EU budget to be prejudiced or potentially prejudiced by the transgression committed, an aspect which will also be subsequently analysed. Corrections are applied by means of the transgression finding and financial corrections enforcement reports, issued by the authority administering EU funds, according to the procedure provided for by the special law; these are qualified by the special law as administrative acts (with financial character – our note) – debt titles. The immediate effect of applying the correction resides in the exclusion from the EU funds/national public funds corresponding to them of the expenses in regard to which a irregularity was noticed. Concretely speaking, the exclusion (financial correction) consists in the total or partial diminishment by percentages of the amounts of money coming from the EU Funds, which were used by infringing the law, according to the Methodological Norms for Enforcement of the Government Emergency Ordinance No. 66/2011. The diminishment percentage is different, in relation to the transgression committed. In a case file which will be subsequently discussed, the Ministry of Regional Development and Tourism (MDRT – the authority for the funds management), by means of its authorized control structure, acknowledges that the Regional County of Buzau (CJBz) – which was the beneficiary of the contract financed from EU Funds, having the objective “Modernisation of infrastructure of access to tourist areas with proven potential of Buzau county”) – had vitiated the procurement procedure organized for attributing the contract in question for being enforced, by transgressing the provisions of G.E.O. No. 34/2006 on the attribution of public procurements contracts, contracts for concession of public works and the contracts for concession of services, enforceable in the case file involved. For this reason, MDRT issued the transgressions finding and financial corrections enforcement report, amounting to 5% of the value of the financing contract under litigation. The grounds and lawfulness of enforcing such corrections will be subsequently analysed in the present work.