13 November 2018 – an important date for applicants for EU funds

The previous implementation law (or, a more difficult name, the law on the principles of development policy) has not had much luck with the Constitutional Tribunal. So far, it has already ruled three times on the regulations governing the granting of EU funding, twice stating that the rules of spending EU money are inconsistent with the Constitution (and there almost would have been four verdicts if, in the old days, the legislator had not enacted in time provisions constituting a substitute for an appeal procedure). This time, the fourth time will be on 13 November, when the Constitutional Tribunal will hear the case, to which I also had the pleasure of making a small contribution in the form of a constitutional complaint and about which I wrote, among other things, here.

On 13 November, almost at high noon;), the Court will answer the question whether the policy of spending EU money set out in the Implementation Act, which can be summarised as 'fast and dirty’, is compatible with the Polish Constitution. The SK 17/17 case concerns the so-called exhaustion of allocations and the impact of this 'phenomenon’ on the rights of applicants for EU funds. In simpler terms, some time ago the legislator assumed that when it runs out of EU money for a given measure, the appeal procedures for projects will also 'run out’, i.e. in such a situation the administrative courts will only be able to issue 'moral’ judgments, i.e. stating that the assessment of a project is unlawful, without directing for its improvement, and the authorities will leave the appeals 'unprocessed’. The source of the problem is the fact that the appeal procedure does not hold up the signing of agreements with other beneficiaries, so it may turn out in the end that a project which was evaluated lower than a better one, but one which took part in the appeal procedure, received funding.

The problem is, however, that in my opinion such an action is a bit unfair – for what right does the legislator burden the participants of competitions with circumstances completely beyond their control and, moreover, with circumstances which it can control itself, and this is precisely the situation when all the money is spent before the end of the appeal procedure and the project is refused co-financing only for this reason? And anyway, what is the point of such a procedure, the outcome of which not only gives nothing to the person concerned, but is also contrary to the public interest?

Let us imagine such a situation: a player in the lottery hits a six as the only one, but due to an error in the coupon, which he has to claim, the payment of the winnings is delayed and in the end it turns out that the whole money was taken by several players who hit a five, because the lottery regulations state that all the money has to be spent within a week. Fair? Rather not. Who was at fault – the player or the totolot? The answer is obvious. Similarly, and to trivialise the matter, there is the case of a would-be beneficiary whose project was assessed badly and only the appeal procedure allowed him to correct this assessment.

The Sejm is trying to defend itself (the position can be found here) and, in my opinion, it does so unsuccessfully, claiming that after all such differentiation between applicants is justified, because the assessments of other projects cannot be touched upon if they have already been completed and thus the regulations do not violate the EU and constitutional rules of proportionality. All this, however, is based on the false axiom that the public funds allocated to applicants for a given action are finite, and the only possible solution to the situation would be to deprive those applicants who first concluded contracts of their grants.

The verdict of the Constitutional Court will show whether there will be consent to tolerate further legislative solutions that are disadvantageous for the participants in the competition, or whether the Constitutional Court will put a dam on further corruption of the law in the area of EU funds – a corruption which, politically, has no political provenance at the moment, as bad regulations have been tolerated for many years….

What will it be like on the 13th? I hope it turns out to be unlucky, but not for the beneficiaries;)