The effectiveness of public investments and the durability of their results depend on having in place suitable policy, regulatory and institutional conditions. Indeed, unsound policy frameworks and regulatory, administrative and institutional weaknesses are major systemic bottlenecks hindering effective and efficient public spending. It is therefore of the utmost importance that such systemic weaknesses are identified upfront and addressed in a proactive manner so that the prerequisites for an optimal use of resources from the EU budget are in place .
Regulation no. 1303/2013 that sets the general framework for the programming, management, implementation and control of the ESI funds introduces a new concept – the “ex-ante conditionality”. The definition provided for this concept is “a concrete and precisely pre-defined critical factor, which is a prerequisite for and has a direct and genuine link to, and direct impact on, the effective and efficient achievement of a specific objective for an investment priority” . The purpose of these prerequisites is to ensure, even before the approval of the operational programmes, that there is a strategic and coherent vision and the corresponding administrative capacity at the level of each member state for the regional development interventions to be appropriately implemented. The experience of the past programming periods proved that sometimes the efficiency of the investments was undermined by delays or bottlenecks generated by the institutional, political or regulatory frameworks of the member state.
These conditions are linked to :
1. policy and strategic frameworks, to ensure that the strategic documents at national and regional level which underpin ESI Funds investments are of high quality and in line with standards commonly agreed by Member States at EU level;
2. regulatory frameworks, to ensure that implementation of operations co-financed by ESI Funds complies with the EU acquis;
3. sufficient administrative and institutional capacity of public administration and stakeholders implementing the ESI Funds.
There are 7 general ExAC linked to the horizontal aspects of programme implementation and 29 thematic ExAC, which set out sector-specific conditions for relevant investment areas eligible for support under cohesion policy (investment priorities).
Ex ante conditionalities are anchored in the General Regulation (EU) 1303/2013 and we can define the as a key prerequisite for efficient drawing of funds from the European Structural and Investment Funds. Ex-ante conditionalities represent pre-conditions that all Member States will have to fulfil by the time of submitting the Partnership Agreement. Where the fullfilment of exante conditionalities is not perceived by the European Commission as sufficient, this fact may lead to non-payment or suspension of interim payments to the programme part concerned. Fulfilment of ex ante conditionalities and, where applicable, the schedule of their implementation is part of the Partnership Agreement and individual programmes. Ex-ante conditionalities must be fulfilled no later than 31 December 2016 (or within two year following the adoption of the PA).
The required ex-ante conditionalities define three categories of arrangements that Member States have to put in place:
1. Arrangements for the effective application of Union State aid rules.
2. Arrangements for training and dissemination of information for staff involved in the implementation of the funds.
3. Arrangements to ensure administrative capacity for implementation and application of Union State aid rules.
The European Commission has elaborated the implications of these ex-ante conditionalities in a document entitled “Guidance on Ex Ante Conditionalities for the European Structural and Investment Funds” . Since many State aid granting authorities also utilise structural funds in their measures for the support of undertakings, they need to comply with the ex ante conditionalities. But even if they would not use any structural funds, public authorities should still take into account the guidance issued by the Commission. This is because the Commission is indicating how public authorities can avoid granting aid that contravenes EU procedural and substantive rules.
The essence of the Commission guidance can be condensed into the following motto: Good procedures make good State aid. The most convincing proof that this simple motto is right is the striking difference between the outcome of assessment of notified and non-notified aid.
The Commission has elaborated the three elements of the ex-ante conditionalities in the structural funds Regulation as follows:
1. Arrangements for the effective application of Union State aid rules in the field of ESI Funds:
1.1 Measures are in place to prevent the granting of illegal aid
• Systematic verification to ensure that measures are covered by a Commission decision or the General block exemption Regulation.
• Consultation with authority with State aid expertise.
1.2 Capacity to enforce recovery orders with respect to both illegal and incompatible aid.
1.3 Capacity to ensure proper controls of compliance with the GBER and approved schemes.
• Procedures for checking eligibility and compatibility conditions.
1.4 Appropriate knowledge about any aid granted, including de minimis aid.
• Procedures for complete, accurate and timely reporting and publication of aid granted.
2. Arrangements for training and dissemination of information for staff involved in the implementation of the funds:
2.1 Existence of effective training strategy with quantitative indicators.
2.2 System of dissemination and exchange of information and experience and publication of guidance documents.
3. Arrangements to ensure administrative capacity for implementation and application of Union State aid rules:
3.1 Existence of a central body having the administrative capacity (sufficient number and qualified staff) to give substantive practical and legal advice.
3.2 Provision of appropriate technical assistance.
Ex-ante conditionalities were separately negotiated by each member state with the European Commission. Romania negotiated 36 conditionalities accepted by the government in 2014; 20 have been fulfilled so far, 11 are awaiting confirmation, while another five are under implementation.
The Commission has been closely monitoring the fulfilment of ExAC and has provided support to Member States to complete the action plans, including through technical assistance. It is to be considered how to make this process more effective in view of timely fulfilment of ExAC.
In order to assume the ex-ante conditionalities was signed the Memorandum on "The fulfillment and assumption of the ex-ante conditionalities in the context of the preparation and approval of the European funds programming documents allocated to Romania in 2014-2020 for the business, competitiveness and energy domains" between the Ministry of Regional Development and Public Administration and the Ministry of Economy.
The suspension of payments may be applied also later, if the member state does not report in the 2017 annual implementation report that all “ex-ante conditionalities” have been accomplished. Therefore, it is important to underline the role these conditionalities play in imposing on the member state to conceive and integrate the interventions that have an impact on regional development inside a larger strategic framework, at both national and European level, with the purpose of improving their results.