Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities
Commission Regulation (EC, Euratom) No 478/2007of 23 April 2007amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to the Treaty establishing the European Atomic Energy Community,Having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European CommunitiesOJ L 248, 16.9.2002, p. 1. Regulation as amended by Regulation (EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2006, p. 1). and in particular Article 183 thereof,Having consulted the European Parliament, the Council of the European Union, the Court of Justice of the European Communities, the Court of Auditors, the European Economic and Social Committee, the Committee of the Regions, the European Ombudsman and the European Data Protection Supervisor,Whereas:(1)Regulation (EC, Euratom) No 1605/2002 (hereinafter "the Financial Regulation") was amended by Regulation (EC, Euratom) No 1995/2006. These changes should be reflected in the implementing rules established in Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European CommunitiesOJ L 357, 31.12.2002, p. 1. Regulation as last amended by Regulation (EC, Euratom) No 1248/2006 (OJ L 227, 19.8.2006, p. 3)..(2)In accordance with budgetary principles, in particular the principle of unity, the rules established in the Financial Regulation for recovering interest on pre-financing need to be specified in the implementing rules. Thus, it has to be clarified what amount has to be considered as a significant amount. Below these thresholds, interest on pre-financing should not be due to the European Communities. The cases where interest yielded on pre-financing has to be recovered annually in order to protect the financial interests of the Communities also have to be specified.(3)In respect of the principle of specification, a precise definition should be given of the methods of calculating the percentage limits to be respected for transfers of appropriations of the Commission and of the other institutions. In addition, as the provision on procedures for transfers by the institutions other than the Commission has been consolidated in the Financial Regulation; it can therefore be deleted from the implementing rules.(4)As regards the implementation of the budget, a definition should be provided in respect of the standard for effective and efficient internal control which should apply to each management mode, in accordance with the principle of sound financial management and, where appropriate, with the relevant sector-specific regulations.(5)Article 49(6)(c) of the Financial Regulation expressly provides for the financing of preparatory measures in the field of the Common Foreign and Security Policy (CFSP), in particular as regards envisaged EU crisis management operations. The rapid financing of such measures corresponds to an operational necessity: in most crisis situations, a number of measures for the setting up of a crisis management operation on the ground need to be taken rapidly before the adoption by the Council of a Joint Action on the basis of Article 14 of the EU Treaty or another necessary legal instrument. It is appropriate to clarify that the financing of such measures includes incremental costs such as high-risk insurance, travel and accommodation costs and per diem payments, directly arising from a specific field deployment of a mission or team involving personnel from the institutions to the extent that similar types of expenditure incurred in relation to crisis management operations covered by a Joint Action are generally imputed to the operational CFSP budget line.(6)In respect of methods of implementing the budget, in particular indirect centralised management, it has to be specified that the persons entrusted with the management of specific actions pursuant to Title V of the EU Treaty should be required to put in place the appropriate structures and procedures in order to assume responsibility for the funds that they will manage. At the same time, since the requirement for prior authorisation in the basic act for recourse to national bodies entrusted with public tasks has been removed from the Financial Regulation, it is necessary to remove the corresponding provisions from the implementing rules.(7)As regards shared management, the content of the annual summary of available audits and declarations referred to in Article 53b of the Financial Regulation should be specified.(8)As regards joint management, it is necessary to insert specific provisions detailing the content of the arrangements to be concluded by the Commission in its cooperation with international organisations and the obligation of publication of beneficiaries of funds deriving from the budget.(9)As regards the liability of the financial actors, it has to be clarified that the appointing authority may request the opinion of the financial irregularities panel on a case, based on information provided by a member of staff in accordance with the relevant provision of the Financial Regulation. In addition, the authorising officer by delegation should be entitled to refer a matter to the financial irregularities panel if he considers that a financial irregularity has occurred.(10)As regards the recovery of debts, given the general limitation period of five years established in the Financial Regulation for Community debts and entitlements, it is necessary to specify the rules regarding the starting dates and the grounds for interruption of the limitation period, both for the institutions and for third parties who have an enforceable claim against the institutions.(11)In order to strengthen the protection of the financial interests of the Communities, the Commission should establish a list of amounts receivable within the meaning of Article 73 of the Financial Regulation, stating the names of the debtors and the amount of the debt where the debtor has been ordered to pay by a Court decision that has the force of res judicata and where no or no significant payment has been made for one year after its pronouncement. This list should be published, taking into account the legislation applicable to data protection.(12)The rules governing payments due by the Communities should be strengthened in order to ensure that contractors and beneficiaries are fully and completely informed of the procedural requirements and automatically compensated with default interest in case of late payment whenever the interest due exceeds EUR 200. Each institution should submit to the budgetary authority a report concerning compliance with the established time limits.(13)As regards procurement, framework contracts without a re-opening of competition in sectors subject to a rapidly rising trend in prices and technological development should be subject to a mid-term review or a benchmarking system and the contracting authority should take appropriate measures, including termination of the framework contract.(14)In accordance with the principle of proportionality, for contracts with a value of not more than EUR 5000, and in the case of contracts for external aid with a value of not more than EUR 10000, the contracting authority should be able, depending on its risk analysis, to refrain from requiring the candidates or tenderers to give a declaration that they are not in one of the situations giving rise to exclusion.(15)For simplification reasons, payments against invoices without prior acceptance of a tender should be possible for amounts less than or equal to EUR 500, and for external aid the competitive negotiated procedure for awarding supply contract should be possible for contracts with a value of less than EUR 60000.(16)Whenever appropriate, technically feasible and cost efficient, procurement contracts with a value equal to or greater than the thresholds laid down in Article 158 of Regulation (EC, Euratom) No 2342/2002 should be awarded at the same time in the form of separate lots.(17)Information on available legal remedies should be indicated by the contracting authority to rejected tenderers.(18)Given the possibility for an institution to carry out a procurement procedure jointly with a contracting authority from a Member State, it should be specified which procurement procedure should apply to those cases and how it should be managed.(19)Further details should be set out in the practical modalities for the management of procurement procedures launched on an interinstitutional basis. In particular, provisions on evaluation of tenders and award decisions should be laid down.(20)In order to ensure proper management of the central data-base on exclusions, further details should be provided concerning the information to be transmitted to the Commission. The procedure for transmission and reception of information contained in the database should be laid down, taking due account of the protection of personal data.(21)In accordance with the principle of proportionality, economic operators that are in any of the situations of legal exclusion mentioned in the Financial Regulation should not be excluded indefinitely from participating in a procurement procedure. Accordingly, the criteria for determining the duration of exclusion and the procedure to be followed should be specified.(22)As a result of the revision of the Financial Regulation, the provisions on penalties need to be adapted accordingly.(23)In the interest of legal certainty, the modalities and exceptions to the standstill procedure before the signature of a contract should be specified.(24)It is appropriate to have a provision which determines to what extent the particular forms of financing laid down in Article 108(3) of the Financial Regulation should be treated in the same way as grants under Title VI of Part One of that Regulation.(25)In order to ensure consistency, the annual work programme shall determine whether a decision or written agreement should be used for awarding grants. It is necessary to adapt some articles in order to take account of the introduction of the decisions in the grant award procedure.(26)In order to ensure that Community law is applicable to all legal relationships to which institutions are party, it should be made compulsory for the authorising officers to insert in all their contracts and grant agreements a specific clause on the applicability of Community law, complemented as appropriate by the national law agreed by the parties.(27)In respect of the award of grants, the exceptions to the requirement for a call for proposals should be extended in order to cover the possibility which exists under the current regulations in the field of research and development to award grants directly to beneficiaries identified by the Commission for proposals of high quality which do not fall within the ambit of programmed calls for proposals for the financial year concerned. Furthermore, an additional derogation should be introduced to cover actions with specific characteristics that require an implementing body with particular expertise or administrative power without this necessarily qualifying as a monopoly.(28)In order to protect the financial interests of the Communities, it has to be specified that the representatives of beneficiaries who do not have legal personality should prove that they have the capacity to act on behalf of the beneficiaries and that they can offer financial guarantees equivalent to those provided by legal persons.(29)In order to facilitate the management of the award procedure, and in accordance with the principle of sound financial management, the possibility to restrict a call for proposals to a targeted category of beneficiaries should be provided for. The Commission would thus be able, while duly respecting the principles of equal treatment and non-discrimination, to reject applications from entities not concerned by the programme in question.(30)In order to help the applicants, and to increase the efficiency of the calls for proposals, certain procedural steps should be improved. The Commission should provide information and guidance to the applicants about the rules applicable to the award of grants and it should inform them as soon as possible of the possibility of success of their applications. It should be possible to divide the procedure of submission and the procedure of evaluation in different stages, and thus allow rejecting at an early stage the proposals which cannot have any prospect of success at later stage. In order to clarify which costs may be eligible for Community financing, criteria should be laid down and an indicative list should be provided for. It is also appropriate to determine the conditions for submission of the applications, especially for applications submitted by electronic means. Furthermore, it should be possible to ask for additional information from the applicants during the award procedure, in particular in the case of obvious clerical errors in applications.(31)The possibility of adoption of the annual work programme before the year to which it relates should be provided for, in order to allow the launching of the calls for proposals at an early stage, including before the beginning of the year which they are related to.(32)For reasons of transparency, the Commission, when requested, should annually inform the budgetary authority about the management of the grant award procedures and about exceptions applied to the publication of beneficiaries of funds deriving from the budget.(33)In order to protect the interests of the beneficiaries and to increase legal certainty, modifications of the content of the call for proposals should remain exceptional, and applicants should benefit from a supplementary deadline if these modifications are substantial. They should be subject to the same conditions of publication as the call itself.(34)Concerning lump sums, it has to be specified that the unit amounts of lump sums below a threshold of EUR 25000 and the amounts of flat rates is fixed by the Commission on the basis of objective elements, such as statistical data where available. These amounts should be reassessed regularly and updated by the Commission on the same basis. On the other hand, lump sums above a threshold of EUR 25000 are determined in the basic act. In addition, the authorising officer responsible should be required to carry out appropriate ex post controls in order to ascertain that the conditions for their award have been respected. These controls are independent of the controls to be carried out for grants intended for the reimbursement of the eligible costs actually incurred. The non-profit rule and the co-financing rule should be specified.(35)With regard to contracts necessary to implement a Community grant, it should be specified that, whenever these contracts are of low value, the rules to be followed by the beneficiary should be limited to what is strictly necessary, that is to say the principle of sound management and the absence of conflicts of interests. For contracts with a higher value, the authorising officer should be able to determine additional specific requirements, based on those applicable to the institutions for equivalent contracts.(36)The financial support to third parties which may be awarded by a beneficiary of a Community grant should be organised in a way that does not leave scope for discretion and is limited to a total amount of EUR 100000 as required by Article 120 of the Financial Regulation.(37)As regards the keeping and presentation of accounts, it should be clarified that the report on budgetary and financial management which accompanies the accounts in accordance with Article 122 of the Financial Regulation is separate from the report on the implementation of the budget referred to in Article 121 of the Financial Regulation. At the same time, following the modifications to the scope of consolidation established in the Financial Regulation, all previous references to the bodies referred to in Article 185 of the Financial Regulation should be replaced by a reference to the bodies referred to in Article 121 of the Financial Regulation.(38)As regards some components of Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA)OJ L 210, 31.7.2006, p. 82. and the Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership InstrumentOJ L 310, 9.11.2006, p. 1., in the event of multi-annual programmes using split commitments, the Financial Regulation introduced a "n+3" decommitment rule in Article 166(3)(a) of the Financial Regulation. It is therefore necessary to provide for specific detailed provisions, in particular concerning the procedure and the consequences of the automatic decommitment.(39)As for external actions, further measures of simplification are needed. In particular, the threshold for the negotiated procedure on the basis of a single tender should be raised. In addition, the possibility of secret procurement procedures for security reasons, which is already possible for procurement on behalf of the institutions, has to be extended to operational procurement in the field of external relations. In order to implement the obligations provided for in the Financial Regulation concerning the publication of beneficiaries of funds deriving from the budget, adequate provisions should be laid down in the financing agreements with third countries.(40)As regards interinstitutional European offices, the specific rules for the Office for Official Publications of the European Communities (Publications Office) need to be amended following the new possibility introduced in the Financial Regulation for interinstitutional delegation to the directors of interinstitutional European offices. In this respect, the budgetary commitment should remain the responsibility of each institution, which decides on the publication of its documents, whereas all subsequent acts could be delegated to the director of Publications Office.(41)Regarding external individual experts needed for the evaluation of proposals and other forms of technical assistance, it should be possible to select these experts from a list drawn up on the basis of their technical capacity, after publishing a call for expressions of interest.(42)Since the Financial Regulation, as amended by Regulation (EC, Euratom) No 1995/2006, will apply from 1 May 2007 at the latest, this Regulation should enter into force as a matter of urgency and apply from 1 May 2007.(43)Regulation (EC, Euratom) No 2342/2002 should therefore be amended accordingly,HAS ADOPTED THIS REGULATION:
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