COMMISSION REGULATION (EC) No 1071/2005
of 1 July 2005
laying down detailed rules for applying Council Regulation (EC) No 2826/2000 on information and promotion actions for agricultural products on the internal market
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2826/2000 of 19 December 2000 on information and promotion actions for agricultural products on the internal market (1), and in particular Articles 4, 5(1), 6 and 12 thereof,
Whereas:
(1)
In the light of experience gained in recent years, Commission Regulation (EC) No 94/2002 laying down detailed rules for applying Council Regulation (EC) No 2826/2000 on information and promotion actions for agricultural products on the internal market (2) should be amended. In the interests of clarity and rationality, that Regulation should be replaced by a new one.
(2)
In the interests of sound management, the drawing up and regular updating of lists of themes and products covered by information and promotion actions for agricultural products on the internal market, the national authorities responsible for implementing this Regulation and the duration of the programmes should be specified.
(3)
In the interests of informing and protecting consumers, it should be specified that any message about the nutritional value of a product passed on to consumers and other target groups under the programmes must have a recognised scientific basis and that the sources of that information must be recognised.
(4)
In order to prevent any risk of distortion of competition, general and specific guidelines to be followed for products covered by information and promotion campaigns should be drawn up.
(5)
In the interests of legal certainty, it should be specified that the programmes proposed must comply with the body of Community legislation on the products concerned and the marketing thereof and with those guidelines.
(6)
The procedure for submitting programmes and selecting the implementing body should be laid down to ensure wide competition and the free movement of services, bearing in mind, where the proposing organisation is a public body, the provisions of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (3).
(7)
Criteria governing the selection of programmes by the Member States and the scrutiny of the selected programmes by the Commission should be established with a view to ensuring that the Community rules are complied with and that the measures to be implemented are effective. After examining the programmes, the Commission must decide which programmes are to be accepted and lay down the relevant budgets.
(8)
In the case of programmes involving more than one Member State, provision should be made for measures to ensure that the Member States concerned cooperate in submitting and scrutinising programmes.
(9)
In the interests of sound financial management, programmes should contain detailed rules on the financial contribution of Member States and proposing organisations.
(10)
The various arrangements for fulfilling the commitments entered into should be laid down in contracts to be concluded between the parties concerned and the competent national authorities within a reasonable time limit, using models supplied to the Member States by the Commission.
(11)
To avoid a risk of duplication of financing, information and promotion measures receiving support under Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (4) should be excluded from support under Regulation (EC) No 2826/2000.
(12)
To ensure the proper performance of such contracts, contractors should lodge a security equal to 15 % of the Community contribution and that of the Member States concerned in favour of the competent national authority. To the same end, a security should be lodged where an advance payment for each annual phase is applied for.
(13)
The checks to be carried out by the Member States should be determined.
(14)
It should be specified that the implementation of the measures covered by the contracts is to be a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (5).
(15)
With a view to compliance with budget management requirements, a financial penalty should be laid down for failure to submit intermediate payment applications or to do so on time and for late payment by Member States.
(16)
In the interests of sound financial management and in order to avoid any risk of the payments to be made taking up the whole of the Community financial contribution and leaving no balance to pay, it should be laid down that advances and intermediate payments must not exceed 80 % of the total contribution from the Community and the Member States. To the same end, applications for payment of the balance must reach the competent national authorities within a specified time limit.
(17)
The Member States should check all information and promotion material produced under the programmes. The terms for the use of such material after the end of the programmes should be laid down.
(18)
In the light of experience and in order to monitor the proper implementation of the programmes, detailed rules should be laid down for the monitoring by the group set up to this end under Regulation (EC) No 2826/2000.
(19)
The Member States should check the implementation of the measures covered by this Regulation and the Commission should be kept informed of the results of the checks provided for by this Regulation. In the interests of sound financial management, provision should be made for cooperation between the Member States concerned where measures are implemented in a Member State other than the one in which the competent contracting authority is established.
(20)
To protect the Community's financial interests effectively, adequate measures should be adopted to combat fraud and gross negligence. Reimbursements and penalties should be introduced to this end.
(21)
It should be clearly laid down that, in the case of multiannual programmes, an internal evaluation report should be submitted on completion of each annual phase, even where no payment request has been made.
(22)
The interest rate payable by the beneficiary of a wrongful payment should be aligned on the interest rate for amounts receivable not repaid on the due date referred to in Article 86 of 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 Communities (6).
(23)
To ease the transition from Regulation (EC) No 94/2002 to this Regulation, transitional measures should be taken for information and promotion programmes for which funding is decided on by the Commission before the entry into force of this Regulation.
(24)
The measures provided for in this Regulation are in accordance with the opinion of the Joint Management Committee for the Promotion of Agricultural Products,
HAS ADOPTED THIS REGULATION:
CHAPTER 1
GENERAL PROVISIONS
Article 1
Purpose and definition
This Regulation lays down detailed rules for applying Regulation (EC) No 2826/2000, in particular as regards the drawing up, selection, implementation, financing and checking of the programmes referred to in Article 6(1) of that Regulation and the rules applicable to the programmes part-financed by the Member States and the Community referred to in Article 7(1) of that Regulation.
‘Programme’ means a coherent set of operations of a scope that is sufficient to contribute towards improving information about, and sales of, the products concerned.
Article 2
Designation of competent authorities
The Member States shall designate the competent authorities responsible for implementing this Regulation (hereinafter, competent national authorities).
They shall notify the Commission of the name and full details of the authorities designated and any changes thereto.
The Commission shall place that information in the public domain in an appropriate form.
Article 3
Duration of programmes
Programmes shall be implemented over a period of at least one year but not more than three years from the date on which the relevant contract takes effect, as referred to in Article 11(1).
Article 4
Characteristics of information and promotion messages disseminated under programmes
1. In compliance with the criteria set out in Article 3 of Regulation (EC) No 2826/2000, all information and/or promotion messages passed on to consumers and other target groups under programmes (hereinafter referred to as the message) shall be based on the intrinsic qualities of the product concerned or its characteristics.
2. Any reference to the origin of products shall be secondary to the central message of a campaign. However, the origin of a product may be indicated as part of an information or promotion operation, in the case of a designation under Community rules or a typical product needed to illustrate the information or promotion measures.
3. Any reference in messages to be disseminated to the effects on health of consuming the products concerned shall be based on generally accepted scientific data.
Messages referring to such effects must be acceptable to the national authority responsible for public health.
A trade or interbranch organisation as referred to in Article 6(1) of Regulation (EC) No 2826/2000 which proposes a programme shall keep a list available for the Member State concerned and the Commission of the scientific studies and the opinions of authorised scientific institutions on which the messages in the programme referring to effects on health are based.
Article 5
Lists of themes and products
The lists of themes and products referred to in Article 3 of Regulation (EC) No 2826/2000 are set out in Annex I to this Regulation.
They shall be updated every two years, not later than 31 March.
Article 6
Programmes part-financed by the Member States and the Community
Where Article 7 of Regulation (EC) No 2826/2000 is applied, the procedure laid down in Article 8(1), (2) and (3) and Articles 10 to 19 of this Regulation shall apply.
The contracts for the programmes concerned shall be concluded between the Member States concerned and the selected implementing organisations.
CHAPTER 2
SELECTION OF PRODUCTS REFERRED TO IN ARTICLE 6 OF REGULATION (EC) No 2826/2000
Article 7
Presentation of programmes and pre-selection by Member States
1. For the purpose of implementing the operations under programmes, the Member State concerned shall publish a call for proposals each year.
No later than 30 November each year, the trade and interbranch organisations in the Community which are representative of the sectors concerned (hereinafter referred to as proposing organisations) shall submit their programmes to the Member State.
Programmes shall be submitted in a form prescribed by the Commission and available from its website. This format shall be attached to the calls for proposals referred to in the first subparagraph.
2. The programmes submitted in accordance with paragraph 1 shall comply with:
(a)
Community rules governing the products concerned and their marketing;
(b)
the guidelines for promotion on the internal market referred to in Article 5 of Regulation (EC) No 2826/2000 and set out in Annex II hereto;
(c)
the specifications stipulating exclusion, selection and award criteria distributed to that end by the Member States concerned.
Programmes must contain sufficient detail to comply with the rules applicable and enable their cost/benefit ratio to be evaluated.
The Member States shall draw up a provisional list of the programmes they select on the basis of the criteria laid down in the specifications referred to in point (c) of the first subparagraph.
3. For the purposes of implementing its programmes, each proposing organisation shall select one or more implementing bodies by a competitive procedure validated by the Member State concerned. Where this selection has been made before the programme is submitted, the implementing body may take part in drawing up the programme.
4. Where a programme involving more than one Member State is planned, the Member States concerned shall jointly select the programme and nominate a coordinating Member State. They shall undertake to contribute to the financing of the programmes in accordance with Article 10(2) and agree on administrative collaboration procedures to facilitate the monitoring, implementation and checking of the programmes.
Article 8
Selection of programmes by the Commission
1. No later than 15 February each year the Member States shall send the Commission the list referred to in Article 7(2) including, where applicable, the list of implementing bodies which they have selected, where these have already been selected in accordance with Article 7(3), and a copy of each programme.
In the case of programmes involving more than one Member State, this notification shall be made by common accord of the Member States concerned.
2. If the Commission finds that all or part of a programme submitted does not comply with the Community rules or the guidelines for promotion on the internal market, and thus that all or part of that programme is ineligible, it shall inform the Member States concerned, within 60 calendar days of receipt of the provisional list referred to in Article 7(2).
3. In accordance with the third subparagraph of Article 6(3) of Regulation (EC) No 2826/2000, the Member States shall send their amended programmes to the Commission within 30 calendar days of receiving the information referred to in paragraph 2 of this Article.
After checking the amended programmes the Commission shall decide, no later than 30 June, which programmes it may part-finance under the indicative budgets listed in Annex II to this Regulation, in accordance with the procedure referred to in Article 13(2) of Regulation (EC) No 2826/2000.
4. The proposing organisation shall be responsible for the proper implementation and management of the programmes selected.
Article 9
Approval of implementing bodies
1. The implementing body selected in accordance with Article 7(3) shall be approved by the Member State, which shall inform the Commission thereof before the contract referred to in Article 11(1) is signed.
The Member State shall check that the implementing body selected has the necessary financial and technical resources to ensure that the measures are implemented in the most effective manner in accordance with Article 10(1) of Regulation (EC) No 2826/2000. It shall inform the Commission of the procedure followed to this end.
2. A proposing organisation may implement certain parts of a programme as provided for in Article 6(5) of Regulation (EC) No 2826/2000 only under the following conditions:
(a)
the proposed implementation complies with Article 10(1) of Regulation (EC) No 2826/2000;
(b)
the proposing organisation has at least five years' experience of implementing such measures;
(c)
the part of the programme carried out by the proposing organisation accounts for no more than 50 % of its total cost, except in duly justified cases and after obtaining the written authorisation of the Commission;
(d)
the proposing organisation shall ensure that the cost of the measure which it plans to carry out itself is not in excess of the normal market rates.
The Member State shall check that these conditions are met.
3. Where the proposing organisation is a body governed by public law within the meaning of the second subparagraph of Article 1(b) of Directive 92/50/EEC, the Member States shall take appropriate measures to ensure that the authorities awarding contracts enforce the provisions of that Directive.
CHAPTER 3
FINANCING OF PROGRAMMES
Article 10
Financial contributions
1. The financial contribution of the Community shall be paid to the Member States concerned.
2. Where several Member States contribute to the financing of a programme, their shares shall complement the financial contributions of each of the proposing organisations established in their respective territories. In such cases, notwithstanding Article 9 of Regulation (EC) No 2826/2000, Community financing shall not exceed 50 % of the total cost of the programme.
3. Details of the financial contributions provided for in Article 9 of Regulation (EC) No 2826/2000 must be given in the programme communicated to the Commission.
4. Information and promotion operations receiving support under Council Regulation (EC) No 1257/1999 shall not be eligible for a financial contribution from the Community under this Regulation.
Article 11
Conclusion of contracts and provision of securities
1. As soon as the Commission adopts the decision referred to in Article 8(3), the proposing organisations concerned shall be informed by the Member States whether or not their applications have been accepted.
The Member States shall conclude contracts with the selected proposing organisations within 90 calendar days of notification of the Commission decision referred to in Article 8(3). Beyond that deadline, no contracts may be concluded without prior authorisation from the Commission.
2. The Member States shall use standard forms of contract provided by the Commission.
Where appropriate, the Member States may amend certain terms in the standard contracts in line with national rules, provided that this does not infringe Community legislation.
3. Contracts may not be concluded by the two parties until a performance security equal to 15 % of the maximum annual financial contribution from the Community and the Member States concerned has been lodged in favour of the Member State by the proposing organisation in accordance with Title III of Commission Regulation (EEC) No 2220/85 in order to ensure satisfactory performance of the contract.
However, if the contracting organisation is a body governed by public law or acts under the supervision of such a body, the competent national authority may accept a written guarantee from the supervisory body covering the percentage specified in the first subparagraph, provided the supervisory body undertakes to verify that:
(a)
the obligations entered into are properly discharged, and
(b)
the sums received are used properly to discharge the obligations entered into.
Proof that the performance security has been lodged must reach the Member State within the time limit laid down in paragraph 1.
4. The primary requirement within the meaning of Article 20 of Regulation (EEC) No 2220/85 shall be implementation of the measures provided for in the contract.
5. The Member State shall immediately send the Commission a copy of the contract and proof that the performance security has been lodged.
It shall also send a copy of the contract concluded by the selected proposing organisation with the implementing body. The latter contract shall contain the provision that the implementing body must submit to the checks provided for in Article 20.
Article 12
Arrangements for the payment of advances
1. Within 30 calendar days of the contract referred to in Article 11(1) being signed and, in the case of multiannual programmes, within 30 days of the beginning of each 12-month period, the contracting organisation may submit an application for an advance payment to the Member State concerned, together with the security provided for in paragraph 3 of this Article. Beyond that date, no applications for an advance may be made.
Each advance payment shall amount to no more than 30 % of the annual contribution from the Community and the Member State(s) concerned, as referred to in Article 9(2) and (3) respectively of Regulation (EC) No 2826/2000.
2. The Member State shall pay an advance within 30 calendar days of submission of the application for advance payment. Where payment is made late, Article 4 of Commission Regulation (EC) No 296/96 (7) shall apply.
3. The advance shall be paid on condition that the contracting organisation lodges a security equal to 110 % of that advance in favour of the Member State in accordance with Title III of Regulation (EEC) No 2220/85. The Member State shall forward a copy of each application for an advance payment and proof that the corresponding security has been lodged to the Commission immediately.
However, if the contracting organisation is a body governed by public law or acts under the supervision of such a body, the competent national authority may accept a written guarantee from the supervisory body covering the percentage specified in the first subparagraph, provided the supervisory body undertakes to pay the amount covered by its guarantee if entitlement to the advance as paid is not established.
Article 13
Intermediate payments
1. Applications for intermediate payments of the Community and Member State contributions shall be submitted by the proposing organisations to the Member States before the end of the calendar month following the month in which each period of three months calculated from the date of signing of the contract referred to in Article 11(1) expires.
Such applications shall cover the payments made during the quarter concerned and shall be accompanied by a summary financial statement, copies of the relevant invoices and supporting documents and an interim report on the implementation of the contract during the quarter concerned (hereinafter, quarterly report). Where no payment has been made or no activities have been carried out during the quarter concerned, these documents shall be sent to the competent national authority within the deadline referred to in the first subparagraph.
Except in cases of force majeure, where an application for intermediate payment accompanied by the documents referred to in the second subparagraph is submitted late, the payment shall be reduced by 3 % for each whole month by which it is overdue.
2. The intermediate payments shall be paid only on condition that the Member State has checked the documents referred to in the second subparagraph of paragraph 1.
3. Intermediate payments and the advance payments referred to in Article 12 taken together may not exceed 80 % of the total annual financial contribution from the Community and the Member States referred to in Article 9(2) and (3) respectively of Regulation (EC) No 2826/2000. Once that level is reached, no new intermediate payment applications may be submitted.
Article 14
Payment of the balance
1. Applications for payment of the balance shall be submitted by the proposing organisation to the Member State within four months of completion of the annual measures covered by the contract referred to in Article 11(1).
To be considered as admissible, the application shall be accompanied by:
(a)
a summary of the work carried out and an evaluation of the results obtained, which can be ascertained at the date of the report;
(b)
a summary financial statement showing all expenditure scheduled and incurred.
The annual report shall be accompanied by copies of the invoices and supporting documents relating to the payments made.
Except in cases of force majeure, where an application for payment of the balance is submitted late, the balance shall be reduced by 3 % for each month by which it is overdue.
2. The balance shall be paid only on condition that the Member State has checked the invoices and documents referred to in paragraphs 1(3).
Where the primary requirement referred to in Article 11(4) is not satisfied in full, the balance payable shall be reduced proportionately.
Article 15
Payments by the Member State
Member States shall make the payments referred to in Articles 13 and 14 within 60 calendar days of receipt of the application for payment.
However, this deadline may be suspended at any time in the 60-day period after the payment application is first registered by notifying the creditor contracting organisation that its application is not admissible, either because the sum is not payable, or because the application is not supported by the requisite evidence for all the additional applications, or because the Member State deems it necessary to have further information or to undertake checks. The payment period shall start running again from the date of receipt of the information requested or the date of the checks undertaken by the Member State, which must be forwarded or undertaken respectively within 30 calendar days of the notification.
Except in cases of force majeure, where the payments are made late the amount of the monthly advance paid by the Commission to the Member State shall be reduced in accordance with Article 4 of Regulation (EC) No 296/96.
Article 16
Securities
1. The security referred to in Article 12(3) shall be released on condition that definitive entitlement to the advance as paid has been established by the Member State concerned.
2. Performance securities as provided for in Article 11(3) must remain valid until the balance is paid and shall be released by means of a letter of discharge issued by the competent national authority.
Performance securities shall be released within the time limit and on the terms laid down in Article 15 for payment of the balance.
3. Any securities forfeit and penalties imposed shall be deducted from the expenditure part-financed by the Community and declared to the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section.
Article 17
Documents to be submitted to the Commission
1. The annual report shall be submitted after completion of each annual phase even where no application for payment of the balance is lodged.
2. Within 30 calendar days following payment of the balance referred to in Article 14(2), the Member State shall send the Commission the summary statement referred to in points (a) and (b) of the second subparagraph of Article 14(1).
3. The Member State shall send the Commission twice a year the quarterly reports required for intermediate payments in accordance with Article 13.
The first and second quarterly reports shall be sent within 60 calendar days of receipt of the second quarterly report by the Member State and the third and fourth quarterly reports together with the summary statements referred to in paragraph 2 of this Article.
The annual report for the previous year may include the quarterly report concerning the fourth quarter.
4. Within 30 calendar days following payment of the balance, the Member State shall send the Commission a financial statement detailing the expenditure incurred under the contract, presented in accordance with a format prescribed by the Commission and sent to the Member States. The statement shall be accompanied by a reasoned opinion of the Member State on the implementation of the tasks set for the phase ended.
The statement shall also certify that, in the light of checks carried out in accordance with Articles 13(2) and 14(2), all the expenditure may be considered eligible under the terms of the contract.
CHAPTER 4
MONITORING AND CONTROL
Article 18
Use of material
1. The Member States shall check that the information and promotion material produced and used under the programmes qualifying for financing under this Regulation complies with the Community rules.
They shall send the Commission a list of material approved.
2. The material produced and financed under a programme referred to in paragraph 1, including graphic, visual and audiovisual works and websites, may be used subsequently provided that prior written authorisation is obtained from the Commission, the proposing organisations concerned and the Member States which contribute financially to the programme, account being taken of the contractors' rights under the national law governing the contract.
Article 19
Monitoring of programmes
1. The monitoring group provided for in Article 10(2) of Regulation (EC) No 2826/2000 shall meet regularly to monitor progress in implementation of the various programmes in receipt of financing under this Regulation.
To that end, the monitoring group shall be informed of the timetable for the planned measures under each programme, the quarterly and annual reports and the results of the checks carried out in accordance with Articles 13, 14 and 20 of this Regulation.
The monitoring group shall be chaired by a representative of the Member State concerned. Where programmes involve more than one Member State, the monitoring group shall be chaired by a representative designated by the Member States concerned.
2. Commission officials and other staff may take part in activities organised under a programme in receipt of financing under this Regulation.
Article 20
Checks by the Member States
1. The Member State concerned shall determine the most appropriate means of checking the programmes and measures covered by financing under this Regulation and shall notify the Commission thereof.
The checks described shall be undertaken each year on at least 20 % of the programmes completed in the previous year, covering a minimum of two programmes, and shall relate to at least 20 % of the total budget of the programmes completed during the previous year. The selection of programmes for sampling shall be based on a risk analysis.
The Member State shall send the Commission a report on each programme checked, describing the results of the checks carried out and the anomalies detected. The report shall be sent as soon as it has been finalised.
2. In particular by means of technical and accounting checks at the premises of the contracting organisation and the implementing body, the Member States shall take the steps necessary to verify that:
(a)
the information and supporting documents supplied are accurate, and
(b)
all the obligations laid down in the contract referred to in Article 11(1) have been fulfilled.
Without prejudice to Council Regulation (EEC) No 595/91 (8), the Member States shall inform the Commission at the earliest opportunity of any irregularities detected during checks.
3. In the case of programmes involving more than one Member State, the Member States concerned shall take the necessary steps to coordinate their checks and shall inform the Commission thereof.
4. The Commission may take part at any time in the checks provided for in paragraphs 1, 2 and 3. To that end, the competent national authorities in the Member States shall send the Commission, at least 30 days prior to the checks, a provisional schedule of the checks to be carried out by the Member State.
The Commission may carry out any additional checks it considers necessary.
Article 21
Recovery of wrongful payments
1. In cases of wrongful payment, the beneficiary shall reimburse the amount in question plus interest for the period between payment and the reimbursement by the beneficiary.
The interest rate to be used shall be laid down in accordance with Article 86(2) of Regulation (EC, Euratom) No 2342/2002.
2. Amounts recovered and the relevant interest shall be paid to the Member States' paying agencies or departments and deducted by them from the expenditure financed by the EAGGF in proportion to the Community financial contribution.
Article 22
Penalties
1. In the case of fraud or gross negligence, the proposing organisation shall repay twice the difference between the amount initially paid and the amount actually due.
2. Subject to Article 6 of Council Regulation (EC, Euratom) No 2988/95 (9), the reductions and exclusions under this Regulation shall be without prejudice to additional sanctions pursuant to other provisions under Community or national law.
CHAPTER 5
REPEAL, TRANSITIONAL AND FINAL PROVISIONS
Article 23
Repeal of Regulation (EC) No 94/2002
Regulation (EC) No 94/2002 is hereby repealed. However, the provisions of that Regulation shall continue to apply to information and promotion programmes for which funding is decided on by the Commission before the entry into force of this Regulation.
References to the repealed Regulation shall be construed as references to this Regulation.
Article 24
Transitional provisions
1. For 2005, as well as the deadline provided for in the second subparagraph of Article 7(1), a second deadline for the submission of programmes shall be set at 31 July 2005.
2. Notwithstanding the first subparagraph of Article 8(1), for 2005, for programmes submitted not later than 31 July 2005, the deadline for sending the Commission the provisional list of programmes shall be 30 September 2005.
3. Notwithstanding Article 8(3), for 2005 the Commission shall take the decision referred to in that paragraph not later than 15 December 2005.
Article 25
Entry into force
This Regulation shall enter into force on the seventh day following 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, 1 July 2005.