Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the general budget of the Union
Date: 2022-04-22
Institutions: Directorate-General for Budget, European Commission
Subjects: control of restrictive practices, financial control, financial management, financial regulation, general budget (EU), interest, restriction on competition, sanction (EU)

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   EUROPEAN COMMISSION  Brussels, 22.4.2022  COM(2022) 184 final 2022/0125 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the general budget of the Union  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
The Financial Regulation1 lays down the principles and general financial rules for establishing 
and implementing the Union budget and controlling Union finances.  

When a fine, other penalty or sanction is imposed by the Commission but contested before the 
Union  courts,  their  addressees  may  either  provisionally  pay  the  fine  or  provide  a  bank 
guarantee  covering  the  amount  of  the  fine  and  the  applicable  interest  for  deferred  payment, 
until the final judgment is rendered. In case of provisional payment, the party concerned shall 
credit the amount to a bank account of the Commission. Since 2009, the fines provisionally 
paid to the Commission are deposited in a dedicated fund (BUFI) to be directly or indirectly 
invested in very secure government bonds to preserve their value in case such amounts should 
be returned to the concerned party on foot of the cancellation or reduction of the fine by the 
Union courts. 

In its ruling of 20 January 2021 in case C-301/19 P, Commission v Printeos, the Court held 
that, when acting pursuant to the obligation under Article 266(1) TFEU to take the necessary 
measures to comply with a judgment of the Court of Justice of the European Union reducing 
or  annulling  a  competition  fine  provisionally  paid  by  an  undertaking,  the  Commission  is 
obliged  to  pay  default  interest  for  late  repayment  of  the  fine  from  the  date  on  which  the 
undertaking provisionally paid the fine until the date of repayment. 

In  the  context  of  its  appeal  in  case  C-221/22  P,  Commission  v  Deutsche  Telekom,  the 
Commission requested the Court to review its judgment in Printeos with a view to clarifying 
the  obligations  which  are  incumbent  on  the  Commission  in  the  event  of  the  reduction  or 
annulment of a provisionally paid fine to adequately compensate the addressee of a fine for 
the unavailability of the fine paid during the period when it was subject to judicial review. 

However,  as  long  as  the  Court  of  Justice  has  not  provided  the  clarifications  sought,  the 
Commission is faced with unprecedented interest claims far exceeding the interest earned on 
the amounts provisionally paid, and for which appropriate solution needs  to be found in the 
Union  budget.  Without  prejudice  to  the  outcome  of  the  appeal  in  case  C-221/22  P,  it  is 
therefore  urgent  to  propose  legislative  measures  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.  This  requires  a  number  of  targeted 
amendments to Articles 48(2), 99(4), 107(2) and 108(1), (2) and (4)  

Pursuant to the general principle of restitutio in integrum applicable to the reimbursement of 
fines, other  penalties  or  sanctions  imposed  by  Union  institutions  and  provisionally  paid  that 
are  later  cancelled  or  reduced  by  the  Court  of  Justice  of  the  European  Union,  it  should  be 
clarified  that  any  negative  return  on  the  provisionally  collected  amount  of  such  fines,  other 
penalties or sanctions should not be deducted from the amount to be repaid.  

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, it is proposed that 
the  amount  repaid  should  be  increased  by  an  interest  at  the  rate  applied  by  the  European 

1 

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on 
the  financial  rules  applicable  to  the  general  budget  of  the  Union,  amending  Regulations  (EU)  No 
1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) 
No  1316/2013,  (EU)  No  223/2014,  (EU)  No  283/2014,  and  Decision  No  541/2014/EU  and  repealing 
Regulation (EU, Euratom) No 966/2012. (OJ L 193, 30.7.2018, p. 1.) 

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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. 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.  

By  derogation  from  the  general  rule  that  the  budget  shall  not  contain  negative  revenue,  it 
should  be  specified  that  the  above-referred  interest  and  any  other  charge  due  on  such 
cancelled  or  reduced  amounts  of  fines,  other  penalties  or  sanctions,  including  any  negative 
return  related  to  those  amounts  should  be  considered  as  negative  revenue  of  the  Union’s 
budget, so as to avoid any undue effect on the expenditure side of the Union budget. 

In  order  to  remedy  as  soon  as  possible  the  excessive  strain  on  the  expenditure  side  of  the 
Union  budget,  this  proposal  is  presented  separately  from  the  upcoming  revision  of  the 
Financial Regulation. 

• 

Consistency with existing provisions on the policy area 

This proposal is fully consistent with the existing general financial rules and aims at avoiding 
excessive strain on the Union budget resulting from the Printeos case law. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article  322(1)  of  the  Treaty  on  the  Functioning  of  the  European 
Union (TFEU). 

• 

Subsidiarity (for non-exclusive competence)  

The adoption of Union’s general  financial rules falls under the exclusive competence of the 
Union. 

• 

Proportionality 

This proposal aims at ensuring an adequate compensation in the event of the reimbursement 
of provisionally paid fines, other penalties or sanctions and ensuring the ability of the Union 
to  satisfy  the  resulting  financial  obligations.  It  does  not  contain  rules  that  would  not  be 
necessary to achieve the objectives of the Treaty. 

RESULTS 

3. 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

OF 

EVALUATIONS, 

STAKEHOLDER 

• 

Stakeholder consultations 

No stakeholder consultation has been conducted for this limited amendment. 

Impact assessment 

• 
In line with the Commission’s statement on future revisions of the Financial Regulation2, no 
impact  assessment  is  required.  The  Financial  Regulation  provides  the  general  rules  and  the 
toolbox  for  the  implementation  of  the  spending  programmes.  There  are  therefore  no  direct 
economic, environmental or social impacts that result from revisions of the legislation, which 
could  effectively  be  analysed  in  an  impact  assessment.  The  value  added  of  impact 
assessments  comes  when  making  policy  choices  on  specific  spending  programmes,  which 
have to comply with the regulatory framework provided by the Financial Regulation. Instead, 

2 

2018/C 267 I/01. 

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an ex ante evaluation has been carried out for this proposal, in particular in order to identify 
the most appropriate way  to  reflect  the recent  case-law as  regards the companies concerned 
but also in terms of budgetary treatment of the corresponding amounts. 

• 

Regulatory fitness and simplification 

While this amendment of the Financial Regulation does not fall under the Regulatory Fitness 
and  Performance  Programme  (REFIT),  it  contributes  to  the  Better  Regulation  agenda.  This 
proposal responds to the need to revisit the provisions on default and compensatory interests, 
and negative revenue, in line with the recent case-law. The proposed approach is fully in line 
with the better regulation framework and simplification efforts. 

• 

Fundamental rights 

The proposal complies with the Charter of Fundamental Rights of the Union. 

4. 

BUDGETARY IMPLICATIONS 

The proposal does not have budgetary implications. 

DETAILED  EXPLANATION  OF  THE  SPECIFIC  PROVISIONS  OF  THE 

5. 
PROPOSAL 

As  indicated  under  section  4,  the  proposal  itself  does  not  have  implications  for  the  Union 
budget. The proposal clarifies the budgetary tools and procedures to address the consequences 
brought by the judgments by the Court of Justice of the European Union that reduce or cancel 
fines,  other  penalties  or  sanctions  initially  imposed  by  a  Union  institution.  Only  such 
judgments of the Court of Justice of the European Union may trigger the payment obligations 
towards third parties.  

Article 48(2) on negative revenue:  to  ensure an  appropriate budgetary  treatment  and  avoid 
undue financial strain on the expenditure side of the Union budget, it should be provided that 
interests,  and  any  compensation  due  where  a  fine,  other  penalty  or  sanction  has  been 
cancelled or the amount has been reduced, including any negative return related to such fines, 
other  penalties  or  sanctions  are  to  be  deducted  from  the  revenue  side  of  the  Union  budget 
(negative  revenue).  This  would  be  a  limited  and  duly  justified  derogation  from  the  general 
rule under Article 48(1) that the budget shall not contain negative revenue. 

Article 99(4) on default interest: it should be clarified that the rate applied by the European 
Central  Bank  to  its  principal  refinancing  operations  increased  by  one  and  a  half  percentage 
points  where  a  debtor  of  fines,  other  penalties  or  sanctions  provides  a  financial  guarantee 
which  is  accepted  by  the  accounting  officer  instead  of  payment,  is  excluded  from  this 
provision because it does not concern default interest. The reference to this rate should instead 
be moved to Article 108(1). 

Article 107 (2) on entry in the budget: In order to secure sufficient cash flow to compensate 
third  parties  for  the  loss  of  enjoyment  of  monies,  it  should  be  specified  that  the  amounts 
received by way of fines, other penalties or sanctions and any accrued interest or other income 
generated by them may be entered in the budget by the end of the following financial year. 

Article 108(1), (2) and (4) on recovery of fines, other penalties or sanctions imposed by 
Union institutions:  

As explained above, in the case of a financial guarantee, the reference to Article 99(4) in the 
first paragraph should be replaced by the interest rate applied by the European Central Bank 
to  its  principal  refinancing  operations,  increased  by  one  and  a  half  percentage  points  as 
currently indicated in Article 99(4)(a). 

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In Article 108(2), a reference to sound financial management should replace the reference to 
aiming  at  positive  returns.  Taking  into  account  the  possibility  of  negative  return  on 
investments,  the  Commission  should  not  aim  at  a  positive  expected  return,  if  this  requires 
taking an unduly high level of investment risk. Therefore, in accordance with the principle of 
sound  financial  management,  it  should  be  specified  that  the  Commission  when  investing  in 
financial assets should prioritise the aim of security and liquidity of the monies. 

Pursuant to the general principle of restitutio in integrum applicable to the reimbursement of 
fines,  other  penalties  or  sanctions  provisionally  paid  when  later  annulled  or  reduced  by  the 
Court of Justice of the European Union, it should be clarified that any negative return on the 
provisionally collected  amount of fines,  other penalties or sanctions  should not  be deducted 
from the amount to be repaid. Accordingly, the second subparagraph of Article 108(4) should 
be deleted. To compensate for the loss of enjoyment of monies, the amount 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, by analogy to the rate of 
interest  that  a  debtor  bears  in  case  of  deferred  payment  of  a  fine,  other  penalty  or  sanction 
covered by a financial guarantee.  

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2022/0125 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the 
general budget of the Union 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 322(1) 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, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the Court of Auditors1,  
Acting in accordance with the ordinary legislative procedure2, 

Whereas: 

(1) 

(2) 

(3) 

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2 
3 

4 

In its judgment of 20 January 2021 in Case C-301/19 P3, 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. 

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.  

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  Council4,  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 

Opinion No XXX of XXX (OJ C , , p. ). 
Position of the European Parliament of XXX and decision of the Council of XXX. 
Judgment of the Court of Justice of 20 January 2021, European Commission v Printeos, SA, C-301/19 
P, ECLI:EU:C:2021:39. 
Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on 
the  financial  rules  applicable  to  the  general  budget  of  the  Union,  amending  Regulations  (EU)  No 
1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) 
No  1316/2013,  (EU)  No  223/2014,  (EU)  No  283/2014,  and  Decision  No  541/2014/EU  and  repealing 
Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1). 

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(4) 

(5) 

(6) 

(7) 

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. 

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. 

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. 

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.  

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, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EU, Euratom) 2018/1046 is amended as follows: 

(1) 

Article 48 is amended as follows: 

(a) 

paragraph 1 is replaced by the following: 

‘1. The budget shall not contain negative revenue.’; 

(b) 

the following paragraph 1a is inserted: 

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‘1a.  By way of derogation from paragraph 1, the following shall be deducted from 
the revenue of the budget: 

(a) negative remuneration of deposits in total; 

(b) where the amounts of the fines, other penalties or sanctions under the TFEU or 
the  Euratom  Treaty  referred  to  in  Article  108(1)  are  cancelled  or  reduced  by  the 
Court  of  Justice  of  the  European  Union,  any  interest  or  other  charge  due  to  the 
parties concerned, including any negative return related to those amounts.’. 

(2) 

in Article 99(4), the first subparagraph is replaced by the following: 

‘In  the  case  of  fines,  other  penalties  or  sanctions,  the  interest  rate  for  amounts 
receivable not paid or covered by a financial guarantee acceptable to the accounting 
officer  of  the  Commission  within  the  deadline  set  in  the  decision  of  the  Union 
institution imposing a fine, other penalty or sanction shall be the rate applied by the 
European Central Bank to its principal refinancing operations, as published in the C 
series  of  the  Official  Journal  of  the  European  Union,  in  force  on  the  first  calendar 
day of the month in which the decision imposing a fine, other penalty or sanction has 
been adopted, increased by three and a half percentage points.’; 

(3) 

in Article 107(2), the following second subparagraph is inserted: 

‘For  the  purposes  of  applying  Article  48(1a),  point  (b),  the  necessary  amounts 
referred to in paragraph 1 may be entered in the budget by the end of the following 
financial year.’; 

(4) 

Article 108 is amended as follows: 

(a) 

paragraphs 1 and 2 are replaced by the following: 

‘1.  Where an action is brought before the Court of Justice of the European Union 
against  a  decision  of  a  Union  institution  imposing  a  fine,  other  penalty  or  sanction 
under the TFEU or the Euratom Treaty and until such time as all legal remedies have 
been exhausted, the debtor shall either provisionally pay the amounts concerned on 
the bank account designated by the accounting officer of the Commission or lodge a 
financial  guarantee  acceptable  to  the  accounting  officer  of  the  Commission.  The 
guarantee  shall  be  independent  of  the  obligation  to  pay  a  fine,  other  penalty  or 
sanction and shall be enforceable on demand. It shall cover the claim as to principal 
and interest that the debtor shall pay in the case referred to in point (b) of paragraph 3 
at  the  rate  applied  by  the  European  Central  Bank  to  its  principal  refinancing 
operations,  as  published  in  the  C  series  of  the  Official  Journal  of  the  European 
Union, in force on the first calendar day of the month in which the decision imposing 
a  fine,  other  penalty  or  sanction  has  been  adopted,  increased  by  one  and  a  half 
percentage  points,  as  from  the  deadline  set  in  the  decision  of  the  Union  institution 
imposing a fine, other penalty or sanction.; 

The  Commission  may  invest  the  provisionally  collected  amounts  in  financial 
2. 
assets, prioritising the aim of security and liquidity of the monies in accordance with 
the principle of sound financial management.’;  

(b)  paragraph 4 is amended as follows: 

(i) the first subparagraph is replaced by the following: 

‘4. After all legal remedies have been exhausted and where the fine, other penalty or 
sanction  has  been  cancelled  or  the  amount  has  been  reduced,  one  of  the  following 
measures shall be taken: 

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the provisionally collected amounts or, in the event of a reduction, the relevant 

(a) 
part thereof shall be repaid to the third party concerned; 

(b)  where a financial guarantee has been lodged, it shall be released accordingly. 

The  amount  or  the  relevant  part  thereof  referred  to  in  point  (a)  of  the  first 
subparagraph  shall  be  increased  by  interest  at  the  rate  applied  by  the  European 
Central Bank to its principal refinancing operations, as published in the C series of 
the Official Journal of the European Union in force on the first calendar day of the 
month in which the decision imposing a fine, other penalty or sanction was adopted, 
increased by one and a half percentage points.’ 

(ii) the second subparagraph is deleted.  

Article 2 

This  Regulation  shall  enter  into  force  on  the  day  following  that  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 Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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