COUNCIL DECISION 2008/975/CFSP
of 18 December 2008
establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Articles 13(3) and 28(3) thereof,
Whereas:
(1)
The European Council, meeting in Helsinki on 10 and 11 December 1999, agreed in particular that, ‘cooperating voluntarily in EU-led operations, Member States must be able, by 2003, to deploy within 60 days and sustain for at least 1 year, military forces of up to 50 000 to 60 000 persons capable of the full range of Petersberg tasks’.
(2)
On 17 June 2002, the Council approved the arrangements for the financing of EU-led crisis-management operations having military or defence implications.
(3)
The Council, in its conclusions of 14 May 2003, confirmed the need for a rapid reaction capability, in particular for humanitarian and rescue tasks.
(4)
The European Council, meeting in Thessaloniki on 19 and 20 June 2003, welcomed the conclusions of the Council meeting on 19 May 2003, which in particular confirmed the need for a European Union military rapid reaction capability.
(5)
On 22 September 2003, the Council decided that the European Union should acquire the capacity to flexibly manage the financing of common costs of military operations of any scale, complexity or urgency, in particular by setting up, by 1 March 2004 at the latest, a permanent financing mechanism to assume charge of the financing of common costs of any future Union military operation.
(6)
On 23 February 2004, the Council adopted Decision 2004/197/CFSP establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (1) (ATHENA). The Decision has subsequently been amended several times. The Council therefore codified the Decision by adopting Decision 2007/384/CFSP (2) on 14 May 2007.
(7)
The EU Military Committee defined in detail the concept of EU Military Rapid Response in its Report of 3 March 2004. It further defined the EU Battle Groups concept on 14 June 2004.
(8)
The European Council on 17 June 2004 endorsed a Report on European Security and Defence Policy (ESDP) which underlined that work on EU Rapid Response capacities should be taken forward with a view to an initial operational capability by early 2005.
(9)
In that context, the pre-financing of the European Union's military operations should be improved. The scheme for early financing is therefore intended first and foremost for Rapid Response operations.
(10)
The Council decides on a case-by-case basis whether an operation has military or defence implications, within the meaning of Article 28(3) of the Treaty.
(11)
The second subparagraph of Article 28(3) of the Treaty provides that Member States whose representatives in the Council have made a formal declaration pursuant to Article 23(1), second subparagraph, shall not be obliged to contribute to the financing of the operation having military or defence implications concerned.
(12)
In conformity with Article 6 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not participate in the elaboration and implementation of decisions and actions of the European Union which have defence implications, and Denmark does not participate in the financing of the mechanism.
(13)
Pursuant to Article 43 of Decision 2007/384/CFSP, the Council has reviewed that Decision and agreed to amend it.
(14)
For the sake of clarity, Decision 2007/384/CFSP should be repealed and replaced by a new Decision,
HAS DECIDED AS FOLLOWS:
Article 1
Definitions
For the purpose of this Decision:
(a)
‘Participating Member States’ shall mean the Member States of the European Union, except Denmark;
(b)
‘contributing States’ shall mean the Member States contributing to the financing of the military operation in question in accordance with Article 28(3) of the Treaty on European Union and the third States contributing to the financing of the common costs of this operation pursuant to agreements between themselves and the European Union;
(c)
‘operations’ shall mean the European Union operations having military or defence implications;
(d)
‘military supporting actions’ shall mean the EU operations, or parts thereof, decided by the Council in support of a third State or a third organisation, which have military or defence implications, but which are not under the authority of European Union Headquarters.
CHAPTER 1
MECHANISM
Article 2
Establishment of the mechanism
1. A mechanism to administer the financing of the common costs of operations is hereby established.
2. The mechanism shall be called ATHENA.
3. ATHENA shall act on behalf of the participating Member States or, regarding the specific operations, the contributing States as defined in Article 1.
Article 3
Legal capacity
With a view to the administrative management of the financing of European Union operations with military or defence implications, ATHENA shall have the necessary legal capacity, in particular, to hold a bank account, acquire, hold or dispose of property, enter into contracts and administrative arrangements and be a party to legal proceedings. ATHENA shall be non-profit-making.
Article 4
Coordination with third parties
To the extent necessary to achieve its tasks, and in conformity with the objectives and policies of the European Union, ATHENA shall coordinate its activities with the Member States, Community institutions and international organisations.
CHAPTER 2
ORGANISATIONAL STRUCTURE
Article 5
Management bodies and staff
1. ATHENA shall be managed, under the authority of the Special Committee, by:
(a)
the administrator;
(b)
the commander of each operation, in relation to the operation which he/she commands (hereinafter referred to as the ‘operation commander’);
(c)
the accounting officer.
2. ATHENA shall use existing administrative structures of the European Union to the greatest possible extent. ATHENA shall resort to staff made available as necessary by the EU institutions or seconded by Member States.
3. The Secretary-General of the Council may provide the administrator or the accounting officer with the staff needed for them to carry out their functions, which may be on the basis of a proposal by a participating Member State.
4. ATHENA's bodies and staff shall be mobilised on the basis of operational needs.
Article 6
The Special Committee
1. A Special Committee composed of one representative of each participating Member State is established (hereinafter the ‘Special Committee’). The Commission shall attend the meetings of the Special Committee without taking part in its votes.
2. ATHENA shall be managed under the authority of the Special Committee.
3. When the Special Committee is discussing the financing of the common costs of a given operation:
(a)
the Special Committee shall be composed of one representative of each contributing Member State;
(b)
the representatives of contributing third States shall participate in the proceedings of the Special Committee. They shall neither take part in nor be present at its votes;
(c)
the operation commander or his/her representative shall participate in the proceedings of the Special Committee, without taking part in its votes.
4. The Presidency of the Council of the European Union shall convene and chair the meetings of the Special Committee. The administrator shall provide the secretariat for the Special Committee. He/she shall draw up the minutes of the result of the Committee's discussions. He/she shall not take part in its votes.
5. The accounting officer shall participate as necessary in the proceedings of the Special Committee, without taking part in its votes.
6. If a participating Member State, the administrator or the operation commander so requests, the Presidency shall convene the Special Committee within at most 15 days.
7. The administrator shall suitably inform the Special Committee of any claim or dispute addressed to ATHENA.
8. The Special Committee shall decide unanimously amongst its members, taking into account its composition as defined in paragraphs 1 and 3. Its decisions shall be binding.
9. The Special Committee approves all budgets, taking into account the relevant reference amounts, and generally exercises the competences foreseen by Articles 19, 20, 21, 22, 25, 26, 28, 30, 32, 33, 37, 38, 39, 40, 41 and 42.
10. The Special Committee shall be informed by the administrator, the operation commander and the accounting officer as provided for in thisDecision.
11. The text of the acts approved by the Special Committee pursuant to Articles 19, 20, 21, 22, 23, 25, 28, 30, 32, 33, 39, 40, 41 and 42 shall be signed by the chairman of the Special Committee at the time of their approval and by the administrator.
Article 7
The administrator
1. The Secretary-General of the Council, after informing the Special Committee, shall appoint the administrator and at least one deputy administrator for a period of three years.
2. The administrator shall discharge his/her duties on behalf of ATHENA.
3. The administrator:
(a)
shall draw up and submit to the Special Committee any draft budget. The ‘expenditure’ section for an operation in any draft budget shall be drawn up on the basis of a proposal from the operation commander;
(b)
shall adopt the budgets after their approval by the Special Committee;
(c)
shall be the authorising officer for the sections ‘ revenue’, ‘common costs incurred in preparation for, or further to, operations’ and ‘operational common costs’ incurred outside the active phase of the operation;
(d)
as regards revenue, shall implement the financial arrangements made with third parties in relation to the financing of the common costs of the Union's military operations.
4. The administrator shall ensure that the rules established by this Decision are complied with, and that the decisions of the Special Committee are applied.
5. The administrator shall be authorised to adopt any measures which he/she deems necessary to implement the expenditure financed through ATHENA. He/she shall inform the Special Committee thereof.
6. The administrator shall coordinate work on financial questions relating to the Union's military operations. He/she shall be the contact point with national administrations and, as appropriate, international organisations on these matters.
7. The administrator shall be accountable before the Special Committee.
Article 8
The operation commander
1. The operation commander shall discharge his/her duties on behalf of ATHENA in relation to the financing of the common costs of the operation which he/she commands.
2. For the operation which he/she commands, the operation commander shall:
(a)
send the administrator his/her proposals for the ‘expenditure - operational common costs’ section of the draft budgets;
(b)
as authorising officer, implement the appropriations relating to the operational common costs; he/she shall exercise his/her authority over any person participating in the implementation of those appropriations, including pre-financing; he/she may award contracts and enter into contracts on behalf of ATHENA; he/she shall open a bank account on behalf of ATHENA for the operation which he/she commands.
3. The operation commander shall be authorised to adopt any measures which he/she deems necessary to implement the expenditure financed through ATHENA, for the operation which he/she commands. He/she shall inform the administrator and the Special Committee thereof.
Article 9
The accounting officer
1. The Secretary-General of the Council shall appoint the accounting officer and at least one deputy accounting officer for a period of two years.
2. The accounting officer shall discharge his/her duties on behalf of ATHENA.
3. The accounting officer shall be responsible for:
(a)
proper implementation of payments, collection of revenue and recovery of amounts established as being receivable;
(b)
preparing the accounts for ATHENA each year, and, after completion of each operation, the accounts for that operation;
(c)
supporting the administrator when he/she submits the annual accounts or the accounts for an operation to the Special Committee for approval;
(d)
keeping the accounts for ATHENA;
(e)
laying down the accounting rules and methods and the chart of accounts;
(f)
laying down and validating the accounting systems for revenue and, where appropriate, validating systems laid down by the authorising officer to supply or justify accounting information;
(g)
keeping supporting documents;
(h)
treasury management, jointly with the administrator.
4. The administrator and the operation commander shall provide the accounting officer with all the information necessary for the production of accounts which accurately represent ATHENA's financial assets and budget implementation administered by ATHENA. They shall guarantee its reliability.
5. The accounting officer shall be accountable before the Special Committee.
Article 10
General provisions applicable to the administrator, the accounting officer and ATHENA's staff
1. The functions of administrator or deputy administrator, on the one hand, and accounting officer or deputy accounting officer, on the other, shall be mutually incompatible.
2. Any deputy administrator shall act under the authority of the administrator. Any deputy accounting officer shall act under the authority of the accounting officer.
3. A deputy administrator shall stand in for the administrator when he/she is absent or prevented from attending. A deputy accounting officer shall stand in for the accounting officer when he/she is absent or prevented from attending.
4. Officials and other servants of the European Communities, when carrying out functions on behalf of ATHENA, shall remain subject to the rules and regulations applicable to them.
5. The staff made available to ATHENA by the Member States shall be subject to the same rules as those set out in the Council decision concerning the rules applicable to national experts on secondment, and to the provisions agreed on by their national administration and the Community institution or ATHENA.
6. Before their appointment, the staff of ATHENA must have received clearance for access to classified information up to at least ‘Secret UE’ level held by the Council, or equivalent clearance by a Member State.
7. The administrator may negotiate and enter into arrangements with the Member States or Community institutions with a view to designating in advance those staff who could, if need be, be made immediately available to ATHENA.
CHAPTER 3
ADMINISTRATIVE ARRANGEMENTS WITH MEMBER STATES, EUROPEAN UNION INSTITUTIONS, THIRD STATES AND INTERNATIONAL ORGANISATIONS
Article 11
Administrative arrangements
1. Administrative arrangements may be negotiated with Member States, European Union institutions, third States or international organisations in order to facilitate procurement and/or the financial aspects of mutual support in operations in the most cost-effective manner.
2. Such arrangements shall be:
(a)
subject to consultation with the Special Committee if they are concluded with Member States or European Union institutions;
(b)
submitted for approval to the Special Committee if they are concluded with third States or international organisations.
3 These arrangements shall be signed by the operation commander or, in his/her absence, by the administrator, acting as representatives of ATHENA, and by the competent administrative authorities of the abovementioned States or organisations.
Article 12
Standing and ad hoc administrative arrangements on modalities for the payment of third States' contributions
1. In the framework of the agreements concluded between the European Union and third States indicated by the Council as potential contributors to EU operations or as contributors to a specific EU operation, the administrator shall negotiate with these third States standing or ad hoc administrative arrangements. These arrangements shall take the form of an exchange of letters between ATHENA and the competent administrative services of the third States concerned establishing the modalities necessary to facilitate swift payment of contributions to any future EU military operation.
2. Pending the conclusion of the agreements referred to in paragraph 1, the administrator may take the necessary measures to facilitate payments by the contributing third States.
3. The administrator shall inform the Special Committee in advance of the envisaged arrangements, before signing them on behalf of ATHENA.
4. When a military operation is launched by the Union, the administrator shall, for the amounts of contributions decided by the Council, implement the arrangements with the third States contributing to that operation.
CHAPTER 4
BANK ACCOUNTS
Article 13
Opening and purpose
1. The administrator shall open one or more bank accounts on behalf of ATHENA.
2. Any bank account shall be opened at a first-rate financial institution with its head office in a Member State.
3. The contributions from contributing States shall be paid into these accounts. They shall be used to pay for the costs administered by ATHENA and to make the necessary advances to the operation commander for the implementation of expenditure relating to the common costs of a military operation. No bank account may be overdrawn.
Article 14
Management of funds
1. Any payment from ATHENA's account shall require the joint signature of the administrator or a deputy administrator on the one hand and the accounting officer or a deputy accounting officer on the other.
2. Funds administered by ATHENA, including those entrusted to an operation commander, may not be deposited other than with a first-rate financial institution in euro in a current or short-term account.
CHAPTER 5
COMMON COSTS
Article 15
Definition of common costs and periods for eligibility
1. The common costs listed in Annex I shall be at the expense of ATHENA whenever they are incurred. When entered in an article of the budget showing the operation to which they are most related, they shall be regarded as operational costs of this operation. Otherwise, they shall be regarded as common costs incurred in preparation for, or following, operations.
2. Furthermore, ATHENA shall bear the operational common costs listed in Annex II during the period from the approval of the Crisis Management Concept for the operation until the appointment of the operation commander. In particular circumstances, after the Political and Security Committee has been consulted, the Special Committee may modify the period during which these costs shall be borne by ATHENA.
3. During the active phase of an operation, which runs from the date on which the operation commander is appointed to the day on which the operation headquarters ceases its activity, ATHENA shall bear as operational common costs:
(a)
the common costs listed in Annex III-A;
(b)
the common costs listed in Annex III-B, when the Council so decides;
(c)
the common costs listed in Annex III-C, when the operation commander so requests and if the Special Committee approves it.
4. During the active phase of a military supporting action, as determined by the Council, ATHENA shall bear as operational common costs the common costs defined by the Council on a case-by-case basis by reference to Annex III.
5. The operational common costs of an operation also include the expenditure necessary to wind it up, as listed in Annex IV.
The operation is wound up when the equipment and infrastructure commonly funded for the operation have found their final destination and the accounts for the operation have been drawn up.
6. No expenditure incurred with a view to covering costs which would in any case have been borne by one or more contributing States, a Community institution or an international organisation, independently of the organisation of an operation, may be eligible as a common cost.
7. The Special Committee may decide on a case-by-case basis that, in view of particular circumstances, certain incremental costs other than those listed in Annex IIIB shall be regarded as common costs for one given operation during its active phase.
8. If unanimity cannot be achieved in the Special Committee, the latter may, at the initiative of the Presidency, refer the question to the Council.
Article 16
Exercises
1. The common costs of the European Union's exercises shall be financed through ATHENA following rules and procedures similar to those for operations to which all participating Member States contribute.
2. These exercise common costs shall be composed of, firstly, incremental costs for deployable or fixed headquarters and, secondly, incremental costs incurred by EU recourse to NATO common assets and capabilities when made available for an exercise.
3. Exercise common costs shall not include costs related to:
(a)
capital acquisitions, including those related to buildings, infrastructure and equipment;
(b)
the planning and preparatory phase of exercises;
(c)
transport, barracks and lodging for forces.
Article 17
Reference amount
Any joint action by which the Council decides that the Union will conduct a military operation and any joint action or decision by which the Council decides to extend a Union operation shall contain a reference amount for the common costs of this operation. The administrator shall, with the support in particular of the Union military staff and, if he/she is in post, the operation commander, evaluate the amount judged necessary to cover the common costs of the operation for the planned period. The administrator shall propose this amount through the Presidency to the Council bodies responsible for examining the draft joint action or decision. The Special Committee shall at the same time be kept informed by the administrator of the proposal made.
CHAPTER 6
BUDGET
Article 18
Budgetary principles
1. The budget, drawn up in euro, is the act which for each financial year lays down and authorises all the revenue and expenditure relating to common costs administered by ATHENA.
2. All expenditure shall be linked to a specific operation, except where appropriate for the costs listed in Annex I.
3. The appropriations entered in the budget are authorised for the duration of a financial year which begins on 1 January and ends on 31 December of the same year.
4. Budget revenue and expenditure must balance.
5. No revenue or expenditure relating to common costs may be implemented other than by allocation to a heading in the budget and within the limit of the appropriations entered there.
Article 19
Establishment and adoption of the annual budget
1. Each year the administrator shall draw up a draft budget for the following financial year, with the assistance of each operation commander for the ‘operational common costs’ section. The administrator shall propose the draft budget to the Special Committee by 31 October at the latest.
2. The draft shall include:
(a)
the appropriations deemed necessary to cover the common costs incurred in preparation for, or further to, operations;
(b)
the appropriations deemed necessary to cover the operational common costs for ongoing or planned operations, including, where appropriate, to reimburse common costs which have been prefinanced by a State or third party;
(c)
a forecast of the revenue needed to cover expenditure.
3. The commitment and payment appropriations shall be classified in titles and chapters grouping expenditure together by type or purpose, subdivided as necessary into articles. Detailed comments by chapter or article shall be included in the draft budget. One specific title shall be dedicated to each operation. One specific title shall be the general part of the budget and shall include the common costs incurred in preparation for, or further to, operations.
4. Each title may include a chapter entitled ‘provisional appropriations’. These appropriations shall be entered where there is uncertainty, based on serious grounds, about the amount of appropriations needed or the scope for implementing the appropriations entered.
5. Revenue shall consist of:
(a)
contributions payable by the participating and contributing Member States and, where appropriate, by contributing third States;
(b)
miscellaneous revenue, subdivided by title, which includes interest received, revenue from sales and the budget outturn from the previous financial year, after it has been determined by the Special Committee.
6. The Special Committee shall approve the draft budget by 31 December. The administrator shall adopt the approved budget and notify the participating and contributing States.
Article 20
Amending budgets
1. In the case of unavoidable, exceptional or unforeseen circumstances, in particular when an operation arises during the course of the financial year, the administrator shall propose a draft amending budget. If the draft amending budget substantially exceeds the reference amount for the operation concerned, the Special Committee may request the Council to approve it.
2. The draft amending budget shall be drawn up, proposed, approved and adopted and notification given in accordance with the same procedure as the annual budget. However, when the amending budget is linked to the launch of a Union military operation, it shall be accompanied by a detailed financial statement on the common costs anticipated for the whole of the operation. The Special Committee shall discuss it taking account of its urgency.
Article 21
Transfers
1. The administrator, where appropriate on the basis of a proposal by the operation commander, may make transfers of appropriations. The administrator shall inform the Special Committee of his/her intention, insofar as the urgency of the situation permits, at least one week in advance. However, the prior approval of the Special Committee shall be required when:
(a)
the planned transfer will amend the total of the appropriations provided for an operation;
or
(b)
the planned transfers between chapters during the financial year exceed 10 % of the appropriations entered in the chapter from which the appropriations are being drawn, as appearing in the adopted budget for the financial year on the date when the proposal for the transfer in question is made.
2. When he/she deems this to be necessary for the proper conduct of an operation, in the three months following the date of launching of the operation, the operation commander may make transfers of appropriations allocated for the operation, between articles and between chapters in the ‘operational common costs’ section of the budget. He/she shall inform the administrator and the Special Committee thereof.
Article 22
Carryover of appropriations
1. In principle, the appropriations intended to cover the common costs incurred in preparation for, or further to, operations, which have not been committed are cancelled at the end of the financial year.
2. Appropriations intended to cover the cost of storing material and equipment administered by ATHENA may be carried over once to the following financial year, when a commitment to that effect was made before 31 December of the current financial year. Appropriations intended to cover operational common costs may be carried over if they are necessary for an operation which has not been fully wound up.
3. The administrator shall submit proposals for the carrying over of appropriations from the preceding financial year to the Special Committee by 15 February. These proposals shall be deemed approved unless the Special Committee decides otherwise by 15 March.
Article 23
Anticipated implementation
Once the annual budget has been approved, appropriations may be used to cover commitments and payments insofar as operationally necessary.
CHAPTER 7
CONTRIBUTIONS AND REIMBURSEMENTS
Article 24
Determination of contributions
1. Payment appropriations to cover the common costs incurred in preparation for, or further to, operations which are not covered by miscellaneous revenue shall be financed by contributions from the participating Member States.
2. Payment appropriations to cover the operational common costs of an operation shall be covered by contributions from the Member States and third States contributing to the operation.
3. The contributions payable by the contributing Member States for an operation shall be equal to the amount of the payment appropriations entered in the budget and intended to cover the operational common costs of that operation, minus the amounts of the contributions payable for the same operation by contributing third States pursuant to Article 12.
4. The breakdown of contributions between the Member States from whom a contribution is required shall be determined in accordance with the gross national product scale as specified in Article 28(3) of the Treaty on European Union and in accordance with the Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities' own resources (3), or any other Council decision which may replace it.
5. The data for the calculation of contributions shall be those set out in the ‘GNI own resources’ column in the ‘Summary of financing of the general budget by type of own resource and by Member State’ table appended to the latest budget adopted by the European Communities. The contribution of each Member State from whom a contribution is due shall be proportional to the share of Gross National Income (GNI) of that Member State in the total GNI aggregate of the Member States from whom a contribution is due.
Article 25
Schedule for payment of contributions
1. When the Council has adopted a reference amount for a Union military operation, the contributing Member States, shall pay their contributions at the level of 30 % of the reference amount, unless the Council decides on a higher percentage.
2. The Special Committee, on the basis of a proposal by the administrator, may decide that additional contributions will be called before the adoption of an amending budget for the operation. The Special Committee may decide to refer the matter to the competent preparatory bodies at the Council.
3. When the appropriations intended to cover the operational common costs of the operation have been entered in the budget, the Member States shall pay the balance of the contributions which they owe for that operation in application of Article 24 after deduction of the contributions already called from them for the same operation in the same financial year. However, when the operation is planned to last more than six months, the balance of contributions shall be paid in half-yearly instalments. In such a case, the first instalment shall be paid within two months of the launching of the operation; the second instalment shall be paid by a deadline to be set by the Special Committee acting on a proposal from the administrator, taking into account operational needs. The Special Committee may depart from these provisions.
4. When a reference amount or a budget has been adopted, the administrator shall send the corresponding calls for contributions by letter to the national administrations whose details have been communicated to him/her.
5. Without prejudice to the other provisions in this Decision, the contributions shall be paid within 30 days following despatch of the relevant call for contributions.
6. Each contributing State shall pay the bank charges relating to the payment of its own contribution.
7. The administrator shall acknowledge receipt of contributions.
Article 26
Early financing
1. In the case of an EU Military Rapid Response operation, contributions shall be due by contributing Member States at the level of the reference amount. Without prejudice to Article 25(3), payments shall be made as defined below.
2. For the purpose of the early financing of EU Military Rapid Response operations, the participating Member States shall:
(a)
either pay contributions to ATHENA in anticipation;
(b)
or, when the Council decides to conduct an EU Military Rapid Response operation to the financing of which they contribute, pay their contributions to the common costs of that operation within five days following despatch of the call at the level of the reference amount, unless the Council decides otherwise.
3. For the purpose referred to above, the Special Committee, composed of one representative of each of the Member States which have chosen to pay contributions in anticipation (hereafter anticipating Member States), shall establish provisional appropriations in a specific title in the budget. These provisional appropriations shall be covered by contributions payable by the anticipating Member States within 90 days following despatch of the call for these contributions.
4. Without prejudice to Article 25(3), the contributions due by an anticipating Member State for a Rapid Response operation, up to the level of the contribution it has paid to the provisional appropriations referred to in paragraph 3 of this Article, shall be payable within 90 days following despatch of the call. A similar amount may be made available to the operation commander from the contributions paid in anticipation.
5. Notwithstanding Article 21, any provisional appropriations referred to under paragraph 3 of this Article which are used for an operation shall be replenished within 90 days following despatch of the call.
6. Without prejudice to paragraph 1, any anticipating Member State may in specific circumstances authorise the administrator to use its contribution paid in anticipation to cover its contribution to an operation in which it participates, other than a Rapid Response operation. The contribution paid in anticipation shall be replenished by the Member State concerned within 90 days following despatch of the call.
7. Where funds are required for an operation, other than a Rapid Response operation, before sufficient contributions to that operation have been received:
(a)
contributions paid in anticipation by Member States which contribute to financing that operation after approval by the anticipating Member States, may be used up to 75 % of their amount to cover contributions due to that operation. The contributions paid in anticipation shall be replenished by the anticipating Member States within 90 days following despatch of the call;
(b)
in the case referred to in subparagraph a), contributions due for the operation under Article 25(1) from Member States that had not contributed in anticipation shall be paid, after approval by the Member States concerned, within five days following despatch of the call by the administrator.
8. Notwithstanding Article 32(3), the operation commander may commit and pay the amounts made available to him.
9. Any Member State may reverse its option by notifying the administrator at least three months in advance.
Article 27
Reimbursement of prefinancing
1. A Member State, a third State or, as appropriate, an international organisation which has been authorised by the Council to prefinance a part of the common costs of an operation may obtain reimbursement from ATHENA by making a request accompanied by the necessary supporting documents and addressed to the administrator at the latest two months after the date of completion of the operation concerned.
2. No request for reimbursement may be honoured if it has not been approved by the operation commander and by the administrator.
3. If a request for reimbursement presented by a contributing State is approved, it may be deducted from the next call for contributions addressed to that State by the administrator.
4. If no call for contributions is anticipated when the request is approved, or if the approved request for reimbursement would exceed the anticipated contribution, the administrator shall make payment of the amount to be reimbursed within 30 days, taking account of ATHENA's cash flow and of what is needed to finance the common costs of the operation concerned.
5. Reimbursement shall be due in accordance with this Decision even if the operation is cancelled.
Article 28
Management by ATHENA of expenditure not included in common costs
1. The Special Committee, on the basis of a proposal by the administrator or a Member State, may decide that the administrative management of certain expenditure in relation to an operation, particularly in the area of manpower support/messing and laundry, while remaining the responsibility of the Member State which it concerns, should be entrusted to ATHENA.
2. The Special Committee, in its decision, may authorise the operation commander to enter into contracts on behalf of the Member States participating in an operation, for the acquisition of the supplies described. It shall then decide that ATHENA will collect the necessary funds from the Member States in advance to honour the contracts entered into.
3. ATHENA shall keep accounts of the expenditure borne by each Member State the management of which has been entrusted to it. Each month it shall send each Member State a statement of the expenditure borne by it and incurred by it or by its staff during the preceding month, and shall call for the necessary funds to pay for this expenditure. The Member States shall pay ATHENA the funds required within 30 days following despatch of the call for funds.
Article 29
Interest on late payment
1. If a State does not fulfil its financial obligations, the Community rules on interest on late payment determined by Article 71 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (4) in relation to the payment of contributions to the Community budget shall be applicable by analogy.
2. When payment is late by no more than ten days, no interest shall be charged. When payment is late by more than ten days, interests shall be charged for the entire delay.
CHAPTER 8
IMPLEMENTATION OF EXPENDITURE
Article 30
Principles
1. ATHENA's appropriations shall be used in accordance with the principles of sound financial management, that is in accordance with the principles of economy, effectiveness and efficiency.
2. Authorising officers shall be responsible for implementing ATHENA's revenue or expenditure in accordance with the principles of sound financial management to ensure that the requirements of legality and regularity are complied with. The authorising officers shall make budgetary and legal commitments, clear and authorise expenditure and carry out actions prior to this implementation of appropriations. An authorising officer may delegate his/her duties by a decision determining:
(a)
staff at an appropriate level for such delegation;
(b)
the extent of the conferred powers;
(c)
the scope for beneficiaries to subdelegate their powers.
3. The implementation of appropriations according to the principle of the segregation of the authorising officer and the accounting officer shall be ensured. The duties of authorising officer and accounting officer shall be mutually incompatible. Any payment made on funds administered by ATHENA shall require the joint signature of an authorising officer and an accounting officer.
4. Without prejudice to this Decision, when the implementation of common expenditure is entrusted to a Member State, a Community institution or, as appropriate, an international organisation, that State, institution or organisation shall apply the rules applicable to the implementation of its own expenditure. When the administrator implements expenditure directly, it shall comply with the rules applicable to the implementation of the ‘Council’ section of the general budget of the European Communities.
5. However the administrator may provide the Presidency with elements for proposal to the Council or the Special Committee on rules for the implementation of common expenditure.
6. The Special Committee may approve rules for the implementation of common expenditure which depart from paragraph 4.
Article 31
Common costs incurred in preparation for, or further to, operations
The administrator shall perform the duties of authorising officer for expenditure covering the common costs incurred in preparation for, or further to, operations.
Article 32
Operational common costs
1. The operation commander shall carry out the duties of authorising officer for expenditure covering the operational common costs of the operation he/she commands. However, the administrator shall carry out the duties of authorising officer for expenditure covering the operational common costs incurred during the preparatory phase of a specific operation, which are implemented directly by ATHENA, or related to the operation after the end of its active phase.
2. The sums required for the implementation of expenditure on an operation shall be transferred by the administrator from ATHENA's bank account to the operation commander, upon his/her request, into the bank account opened on behalf of ATHENA, of which the operation commander has provided the details.
3. By way of derogation from Article 18(5), the adoption of a reference amount shall activate the right of the administrator and the operation commander, each in his/her area of competence, to commit and pay expenses for the operation concerned up to 30 % of the reference amount, unless the Council should set a higher percentage. The Special Committee, on the basis of a proposal from the administrator, may decide that additional expenditure may be committed and paid. The Special Committee may decide to refer the question to the competent preparatory bodies at the Council through the Presidency. This derogation shall no longer apply from the date of adoption of a budget for the operation concerned.
4. During the period prior to the adoption of a budget for an operation, the administrator and the operation commander or his/her representative shall report to the Special Committee every month, each reporting on the matters concerning him/her, as regards the expenses which are eligible as common costs for that operation. The Special Committee, on the basis of a proposal by the administrator, the operation commander or a Member State, may issue directives on the implementation of expenditure during this period.
5. By way of derogation from Article 18(5), in the case of imminent danger to the lives of personnel involved in a Union military operation, the operation commander for that operation may implement the necessary expenditure to save the lives of those personnel, in excess of the appropriations entered in the budget. He/she shall inform the administrator and the Special Committee as soon as possible. In such a case, the administrator shall, liaising with the operation commander, propose the transfers needed to finance this unexpected expenditure. If it is not possible to ensure sufficient funding for such expenditure by means of a transfer, the administrator shall propose an amending budget.
CHAPTER 9
FINAL DESTINATION OF EQUIPMENT AND INFRASTRUCTURE FINANCED IN COMMON
Article 33
1. With a view to winding up the operation which he/she has commanded, the operation commander shall act as necessary to find a final destination for the equipment and infrastructure acquired in common for that operation. He/she shall propose to the Special Committee the relevant rate of depreciation as necessary.
2. The administrator shall manage the equipment and infrastructure remaining after the end of the active phase of the operation, with a view if necessary to finding its final destination. He/she shall propose to the Special Committee the relevant rate of depreciation as necessary.
3. The depreciation rate for equipment, infrastructure and other assets shall be approved by the Special Committee at the earliest time possible.
4. The final destination of equipment and infrastructure financed in common shall be approved by the Special Committee, taking into account operational needs and financial criteria. The final destination may be as follows:
(a)
in the case of infrastructure, be sold or transferred through ATHENA to the host country, a Member State or a third party;
(b)
in the case of equipment, be sold through ATHENA to a Member State, the host country or a third party, or be stored and maintained by ATHENA, a Member State or a third party.
5. Equipment and infrastructure shall be sold to a contributing State, the host country or a third party for their market value, or, where no market value can be determined, taking account of the relevant rate of depreciation.
6. Sale or transfer to the host country or a third party shall be in accordance with the security rules in force, particularly within the Council, the contributing States or NATO, as appropriate.
7. When it is decided that ATHENA shall retain equipment acquired for an operation, the contributing Member States may ask for financial compensation from the other participating Member States. The Special Committee, composed of the representatives of all the participating Member States, shall take the appropriate decisions on the basis of a proposal from the administrator.
CHAPTER 10
ACCOUNTING AND INVENTORY
Article 34
Principles
When the implementation of common expenditure has been entrusted to a Member State, a Community institution or, as appropriate, an international organisation, that State, institution or organisation shall apply the rules which are applicable to accounting for its own expenditure and its own inventory.
Article 35
Accounting for operational common costs
The operation commander shall keep accounts of transfers received from ATHENA, of expenditure he/she has committed and of payments made, as well as an inventory of the movable property financed by the ATHENA budget and used for the operation which he/she commands.
Article 36
Consolidated accounts
1. The accounting officer shall keep the accounts of contributions called for and transfers made. He/she shall also draw up the accounts for the common costs incurred in preparation for, or further to, operations, and for operational expenditure implemented under the direct responsibility of the administrator.
2. The accounting officer shall draw up the consolidated accounts for ATHENA's revenue and expenditure. Each operation commander shall send him/her the accounts for the expenditure he/she has committed and the payments he/she has made, as well as for the prefinancing he/she has approved to cover the operational common costs of the operation which he/she commands.
CHAPTER 11
AUDIT AND PRESENTATION OF ACCOUNTS
Article 37
Regular reports to the Special Committee
Every three months, the administrator shall present to the Special Committee a report on the implementation of revenue and expenditure during the preceding three months and since the beginning of the financial year. To this end, every operation commander shall provide the administrator in good time with a report on expenditure relating to the operational common costs of the operation which he/she commands.
Article 38
Conditions for the exercise of controls
1. The persons responsible for auditing ATHENA's income and expenditure must, before carrying out their task, have received clearance for access to classified information up to at least ‘Secret UE’ level held by the Council, or equivalent clearance from a Member State or NATO, as appropriate. Those persons shall ensure that they respect the confidentiality of the information and protect the data of which they acquire knowledge during their audit task, in accordance with the rules applicable to that information and those data.
2. The persons responsible for auditing ATHENA's income and expenditure shall have access without delay and without giving prior notice to the documents and to the contents of all data supports relating to that income and expenditure, and to the premises where those documents and supports are kept. They may make copies. The persons involved in implementing ATHENA's income and expenditure shall give the administrator and the persons responsible for the audit of that income and expenditure the necessary assistance in performing their task.
Article 39
External auditing of the accounts
1. When the implementation of ATHENA's expenditure has been entrusted to a Member State, a Community institution or an international organisation, that State, institution or organisation shall apply the rules which apply to the auditing of its own expenditure.
2. However, the administrator or persons appointed by him/her may at any time carry out an audit of the common costs of ATHENA incurred in preparation for, or further to, operations, or the operational common costs of an operation. Furthermore, the Special Committee, on the basis of a proposal by the administrator or a Member State, may at any time appoint external auditors, whose tasks and conditions of employment it shall determine.
3. With a view to external audits, a six-member college of auditors shall be established. Each year, the Special Committee shall appoint as of 1 January of the following year two members for a three-year period, renewable once, from candidates proposed by the Member States. The Special Committee may extend a member's mandate by up to six months. The candidates must be members of a national audit body in a Member State and offer adequate guarantees of security and independence. They must be available to carry out tasks on behalf of ATHENA as needed. In carrying out these tasks:
(a)
the members of the college shall continue to be paid by their audit body of origin; ATHENA shall bear their mission expenses in accordance with the rules applicable to officials of the European Communities of an equivalent grade. Candidates must be members of the highest national audit body of a Member State, or recommended by that body, and must offer sufficient guarantees of security and independence;
(b)
they shall neither request nor receive instructions other than from the Special Committee; within its audit mandate the College of Auditors and its members shall be completely independent and solely responsible for the conduct of the external audit;
(c)
they shall only report on their task to the Special Committee;
(d)
they shall check during the financial year as well as ex post, through controls on the spot as well as on supporting documents, that expenditure financed or pre-financed through ATHENA is implemented in accordance with the legislation applicable and the principles of sound financial management, i.e. in accordance with the principles of economy, effectiveness and efficiency, and that internal controls are adequate.
Each year, the College of auditors shall elect to change or extend its chairman from amongst its members. It shall adopt the rules applicable to audits carried out by its members in accordance with the highest international standards. The College of Auditors shall approve the audit reports drawn up by its members before their transmission to the administrator and to the Special Committee.
4. The Special Committee may decide on a case-by-case basis and upon specific motivations to use other external bodies.
5. The cost of the audits carried out by auditors acting on behalf of ATHENA shall be considered as a common cost to be borne by ATHENA.
Article 40
Internal auditing of the accounts
1. On the basis of a proposal by the administrator and after informing the Special Committee, the Secretary-General of the Council shall appoint an internal auditor of the ATHENA mechanism, and at least one deputy internal auditor, for a period of three years, renewable once; internal auditors must have the necessary professional qualifications and offer sufficient guarantees of security and independence.
2. The internal auditor shall report to the administrator on dealing with risks, by issuing independent opinions on the quality of management and control systems and by issuing recommendations for improving the internal audit in operations and promoting sound financial management. He shall be responsible in particular for assessing the suitability and effectiveness of internal management systems and the performance of departments in implementing policies and reaching objectives by reference to the risks associated with them.
3. The internal auditor shall perform his duties on all departments involved in the collection of ATHENA's revenue or the implementation of expenditure financed through ATHENA.
4. The internal auditor shall perform one or more audits during the financial year as appropriate. He/she shall report to the administrator and inform the operation commander of his/her findings and recommendations. The operation commander and the administrator shall ensure that action is taken on recommendations resulting from audits.
5. The administrator shall submit a report each year to the Special Committee on the internal audit work done, indicating the number and type of internal audits carried out, observations made, recommendations put forward and how those recommendations were followed up.
6. Furthermore, each operation commander shall give the internal auditor full access to the operation which he/she commands. The internal auditor shall check that the financial and budgetary systems and procedures function correctly, and shall ensure that robust and effective internal audit systems are in operation. The internal auditor may not be either an authorising officer or accounting officer; he/she may not take part in the preparation of financial statements.
7. The proceedings and reports of the internal auditor shall be made available to the College of Auditors along with all supporting documents relating thereto.
Article 41
Annual presentation of accounts
1. Each operation commander shall provide ATHENA's accounting officer by 31 March following the end of the financial year, or within four months following the end of the operation which he/she commands, whichever is the earlier, with the necessary information to establish the annual accounts for common costs, the annual accounts for expenditure pre-financed and reimbursed pursuant to Article 28 and the annual activity report.
2. The administrator, with the assistance of the accounting officer and each operation commander, shall establish and provide to the Special Committee and the College of auditors, by 30 April following the end of the financial year, the provisional annual accounts and the annual activity report.
3. The Special Committee shall be provided by 31 July following the end of the financial year, by the College of Auditors with an annual audit report and by the administrator, assisted by the accounting officer and each operation commander, with ATHENA's final annual accounts. The Special Committee shall examine by 30 September following the end of the financial year the annual accounts in the light of the College's audit report, with a view to granting a discharge to the administrator, the accounting officer and each operation commander.
4. All accounts and inventories shall be retained, each at his/her level, by the accounting officer and each operation commander for a period of five years from the date on which the corresponding discharge was granted.
5. The Special Committee shall decide to enter the balance of the budget outturn for a financial year for which the accounts have been approved in the budget for the following financial year, as revenue or expenditure depending on the circumstances, by means of an amending budget.
6. That part of the balance of the budget outturn for a financial year which comes from the implementation of appropriations intended to cover common costs incurred in preparation for, or further to, operations, shall be entered against the next contributions from participating Member States.
7. That part of the balance of the budget outturn which comes from the implementation of appropriations intended to cover the operational common costs of a given operation shall be entered against the next contributions from the Member States which have contributed to that operation.
8. If reimbursement cannot be done by deduction from the contributions due to ATHENA, the balance of the budget outturn shall be repaid to the Member States concerned.
9. Each Member State participating in an operation shall provide on a voluntary basis information by 31 March each year to the administrator where appropriate through the operation commander, on the incremental costs it has incurred for the operation during the previous financial year. This information shall be broken down to show the main items of expenditure. The administrator shall compile this information in order to provide the Special Committee with an overview of the incremental costs of the operation.
Article 42
Presentation of the accounts of an operation
1. When an operation is complete, the Special Committee may decide, on the basis of a proposal by the administrator or by a Member State, that the administrator, with the assistance of the accounting officer and of the operation commander, shall submit to the Special Committee the management accounts and the balance sheet for that operation, at least up to the date on which it was completed, and, if possible, up to the date on which it was wound up. The deadline imposed on the administrator may not be less than four months from the date on which the operation was completed.
2. If the management accounts and balance sheet cannot, within the given deadline, include the revenue and expenditure connected with the winding up of that operation, then that revenue and expenditure shall appear in the annual management account and balance sheet for ATHENA and shall be examined by the Special Committee in connection with the annual presentation of accounts.
3. The Special Committee shall approve the management account and balance sheet for the operation which have been submitted to it. It shall grant a discharge to the administrator, the accounting officer and each operation commander for the operation in question.
4. If reimbursement cannot be done by deduction from the contributions due to ATHENA, the balance of the budget outturn shall be repaid to the Member States concerned.
CHAPTER 12
LEGAL LIABILITY
Article 43
1. The conditions governing the disciplinary or criminal liability of the operation commander, the administrator and other staff made available in particular by the Community institutions or Member States in the event of misconduct or negligence in the implementation of the budget shall be governed by the Staff Regulations or the arrangements applicable to them. In addition, ATHENA may at its own initiative or at the request of a contributing State bring a civil action against the abovementioned staff.
2. In no case may the European Communities or the Secretary-General of the Council be held liable by a contributing State as a result of the performance of their duties by the administrator, the accounting officer or the staff assigned to them.
3. The contractual liability which may arise from contracts concluded in the context of implementation of the budget shall be covered through ATHENA by the contributing States. It shall be governed by the law applicable to the contracts in question.
4. In the case of non-contractual liability, any damage caused by the operation headquarters, force headquarters and component headquarters of the crisis structure, the composition of which shall be approved by the operation commander, or by their staff in the course of their duties shall be covered through ATHENA by the contributing States, in accordance with the general principles common to the laws of the Member States and the Staff Regulations of the forces, applicable in the theatre of operations.
5. In no case may the European Communities or the Member States be held liable by a contributing State for contracts concluded in the framework of budget implementation or for damage caused by the units and departments of the crisis structure, the composition of which shall be approved by the operation commander, or by their staff in the course of their duties.
Article 44
Review and revision
All or part of the present Decision, including its Annexes, shall be reviewed, if necessary, at the request of a Member State or following each operation. It shall be revised at least every three years. In the course of review or revision, all experts relevant to the proceedings, including in ATHENA's management bodies, may be called upon.
Article 45
Final provisions
Decision 2007/384/CFSP is hereby repealed.
Article 46
Taking of effect
This Decision shall take effect on the date of its adoption.
Article 47
Publication
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 18 December 2008.