COMMISSION REGULATION (EC) No 1424/2007
of 4 December 2007
amending Regulation (EC) No 2304/2002 implementing Council Decision 2001/822/EC on the association of the overseas countries and territories with the European Community and allocating the indicative amounts under the 10th European Development Fund
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2001/822/EC on the association of the overseas countries and territories with the European Community (Overseas Association Decision) (1), and in particular Article 23 thereof,
Having regard to Commission Regulation (EC) No 2304/2002 of 20 December 2002 implementing Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (Overseas Association Decision) (2),
Having regard to the Internal Agreement between the Representatives of the Governments of the Member States meeting within the Council on the financing of Community aid under the multiannual framework for the period 2008 to 2013 in accordance with the ACP-EC Partnership Agreement and the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty applies (3) (hereinafter referred to as Internal Agreement establishing the 10th EDF),
Having regard to the Financial Regulation applicable to the 10th EDF (4),
Whereas:
(1)
The provisions of Regulation (EC) No 2304/2002 adopted pursuant to Article 23 of the Overseas Association Decision should be brought into line with the amendments to that Decision, in the light of the newly established 10th European Development Fund (hereinafter referred to as 10th EDF). They should also be brought into line with the revision of the corresponding Articles in Annex IV of the Partnership Agreement between, on the one hand the members of the African, Caribbean and Pacific Group of States, and on the other hand the European Community and its Member States, signed in Cotonou on 23 June 2000 (5) (the ACP-EC Partnership Agreement).
(2)
Taking into account the specific needs, capabilities and constraints of the overseas countries and territories (hereinafter referred to as OCTs), 10th EDF financial assistance to the OCTs should be granted as budgetary support, provided the OCTs management of public expenditure presents sufficient transparency, accountability and effectiveness. In addition, the public procurement procedures of the OCTs should satisfy the standards of the 10th EDF Financial Regulation as to transparency and openness. On the basis of the experience acquired under the 9th EDF, 10th EDF financial assistance should only in exceptional circumstances be provided as support for projects or programmes, namely when the conditions for budgetary support are not met.
(3)
As a condition for their adoption, it should be verified that the Single Programming Documents (SPDs) contain all the elements required for the Commission to take the financing decision referred to in Article 20(4) of the Overseas Association Decision.
(4)
In accordance with Article 3(1) of Annex II Aa to the Overseas Association Decision, the SPDs should, where appropriate, pay particular attention to actions aimed at strengthening the governance and the institutional capacities of the beneficiary OCTs and, where relevant, to the likely timetable of the envisaged actions, including in the financial, tax and judicial areas.
(5)
Provision should be made for the programming of the allocation under the 10th EDF to support regional cooperation and integration, with a view to enhancing the resilience of the OCTs in coping with the challenges that they are facing as small island micro-economies, for example by means of regional disaster preparedness and mitigation initiatives. In this connection, coordination should be ensured in particular between support for regional cooperation and integration and support at territorial level. Special attention should also be paid to cooperation between the OCTs, the ACP States and, in coordination with other Community financial instruments, the outermost regions referred to in Article 299(2) of the Treaty.
(6)
The indicative amounts allocated to the beneficiary OCTs under the 10th EDF should be determined in accordance with Article 3(5) of Annex II Aa to the Overseas Association Decision.
(7)
The measures provided for in this Regulation have been subject to consultation with the OCTs.
(8)
The measures provided for in this Regulation are in accordance with the opinion of the EDF-OCTs Committee established by Article 24 of the Overseas Association Decision,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 2304/2002 is amended as follows:
1.
Article 1 is replaced by the following:
‘Article 1
Subject matter
This Regulation lays down the procedures for the programming, implementation and control of the Community financial assistance to the overseas countries and territories (OCTs) managed by the Commission under the Tenth European Development Fund (EDF), in accordance with the provisions of the Overseas Association Decision and the Financial Regulation applicable to the 10th EDF.’
2.
Article 3 is replaced by the following:
‘Article 3
Territorial programming
Operations financed by non-repayable aid under the 10th EDF within the framework of the Overseas Association Decision shall be programmed as soon as possible after the entry into force of the Internal Agreement establishing the 10th EDF by means of the adoption of an SPD following the model in the Annex to this Regulation.’
3.
Article 4 is replaced by the following:
‘Article 4
Preparation of the SPD
1. The competent OCTs authorities shall prepare a proposal for the SPD following consultations with the widest possible range of stakeholders in the development process, and shall draw on lessons learned and best practices.
Each proposal for an SPD shall be adapted to the needs and specific circumstances of each OCTs. It shall identify results-oriented indicators to be monitored and promote local ownership of cooperation programmes.
2. The proposal for the SPD shall be the subject of an exchange of views between the OCTs and Member State concerned and the Commission, via, if applicable, the relevant Delegation.
The OCTs shall provide all the necessary information, including the results of any feasibility studies, to make the appraisal of the draft SPD by the Commission as effective as possible.
3. The 10th EDF financial allocation shall in principle be provided as budgetary support, save in exceptional and duly justified circumstances.
Where the conditions for budgetary support are not met, the SPD shall provide for measures to create the conditions for budgetary support.
Any divergences between the OCTs’s own analysis and the Community’s shall be noted.’
4.
Article 5 is replaced by the following:
‘Article 5
Appraisal of the SPD by the Commission
The Commission shall appraise the proposal for the SPD to determine whether it contains all the elements required and is consistent with the aims of the Overseas Association Decision, of this Regulation and of the relevant Community policies.
The Commission shall also appraise the proposal for the SPD to determine whether it contains all the elements required for the Commission to take the financing decision referred to in Article 20(4) of the Overseas Association Decision.
It shall inform the European Investment Bank of the draft received.
Without prejudice to Article 4(3), the Commission shall decide whether 10th EDF financial assistance is to be granted as budgetary support, subject to a preliminary assessment of the transparency, accountability and effectiveness of public expenditure management and of the openness and transparency of public procurement in accordance with the standards set out in the Financial Regulation applicable to the 10th EDF, or is to be granted as support for programmes or projects.’
5.
Article 6 is replaced by the following:
‘Article 6
Regional programmes
1. Articles 3 to 5 shall apply mutatis mutandis to the financial support for regional cooperation and integration under Article 3(2) of Annex II Aa to the Overseas Association Decision.
In its assessment of the proposals, the Commission shall take particular account of the anticipated impact on the integration of the beneficiary OCTs within the region to which they belong.
As far as possible, coordination shall be ensured with programmes at territorial level and with actions involving ACP countries and/or the outermost regions referred to in Article 299(2) of the Treaty. This may involve the identification of the priorities and specific resources for the purpose of strengthening cooperation with ACP countries and/or outermost regions, and the modalities for identifying and coordinating the selection of common interest actions.
Commitment of expenditure shall be preceded by a Commission financing decision covering support for projects and programmes.
2. In order to achieve an adequate scale and to increase efficiency, regional and territorial funds may be mixed for financing regional programmes with a distinct territorial component.
3. Articles 8 and 16 to 30 apply to regional programmes mutatis mutandis.’
6.
Article 7 is replaced by the following:
‘Article 7
Use of the reserve
1. The Commission shall allocate resources from reserve B for the purposes referred to in Article 3(4)(b) of Annex II Aa to the Overseas Association Decision on the basis of the mid-term review referred to in Article 22 of this Regulation. The Commission shall adjust the indicative amounts already allocated accordingly and inform the OCTs and the Member States of its decision regarding the new allocations.
2. For the purposes of committing the resources provided for in Article 28 and Annex II D of the Overseas Association Decision, any OCTs which considers itself to be eligible for the support provided for therein shall submit a complete request on the forms made available by the Commission and include all the information needed for it to be assessed.
The request shall be submitted to the Commission at the latest by the end of the year following the year for which the additional support is required.
The Commission shall inform the OCTs within the shortest possible time of its decision.’
7.
Article 8 is replaced by the following:
‘Article 8
Commitments
1. Expenditure on financial assistance for the OCTs shall be committed by the Commission in accordance with the Financial Regulation applicable to the 10th EDF.
2. Within the scope of the SPD, commitment of expenditure shall be preceded by a Commission financing decision covering in principle budgetary support, save in exceptional and duly justified circumstances.
3. Outside the scope of the SPD, expenditure under the non-allocated reserve B set aside in accordance with Article 3(4) of Annex II Aa to the Overseas Association Decision shall be committed by the Commission and implemented in accordance with the Financial Regulation applicable to the 10th EDF.’
8.
Article 9 is replaced by the following:
‘Article 9
Paying agents
The financial institutions in the OCTs with which the Commission opens accounts in accordance with the Financial Regulation applicable to the 10th EDF for the purposes of implementing cooperation with the OCTs shall exercise the functions of “Paying Agents”.
Interest shall be payable on funds deposited with Paying Agents in the Community.
The Paying Agents shall receive no remuneration for their services and no interest shall be payable on deposited funds.’
9.
Article 10 is replaced by the following:
‘Article 10
General regulations for contracts
1. The procedures governing the award of contracts shall be indicated in the financing agreements.
2. Where financial assistance is granted by means of budgetary support, the procedures for public procurement of the OCTs in question shall apply.
3. In all other cases, award of contract shall follow the applicable provisions of the Financial Regulation applicable to the 10th EDF.’
10.
Article 13 is replaced by the following:
‘Article 13
Delegations
1. Where the Commission is represented by a Delegation under the authority of a Head of Delegation, it shall inform the OCTs concerned accordingly. In such cases, the provisions of the Financial Regulation applicable to the 10th EDF concerning authorising officers and accounting officers by subdelegation shall apply.
2. The Head of Delegation shall be the main contact for the different actors of cooperation in the OCTs concerned. He shall cooperate and work closely with the Territorial Authorising Officer.
3. The Head of Delegation shall have the necessary instructions and delegated powers to facilitate and expedite all operation under this Regulation.
4. On a regular basis, the Head of Delegation shall inform the OCTs authorities of Community activities which may directly concern cooperation between the Community and the OCTs concerned.’
11.
Article 14 is replaced by the following:
‘Article 14
Territorial Authorising Officer
1. The Government of each OCTs shall appoint a Territorial Authorising Officer to represent it in all operations financed from the resources of the EDF managed by the Commission and the Bank. The Territorial Authorising Officer shall appoint one or more deputy Territorial Authorising Officers to replace him when he is unable to carry out his duties and shall inform the Commission of this appointment. Wherever the conditions regarding institutional capacity and sound financial management are met, the Territorial Authorising Officer may delegate his functions for implementation of the programmes and projects concerned to the body responsible within the OCTs administration. The Territorial Authorising Officer shall inform the Commission of any such delegation.
When the Commission becomes aware of problems in carrying out procedures relating to the management of EDF resources, it shall, in conjunction with the Territorial Authorising Officer, make all contacts necessary to remedy the situation and take any appropriate steps.
The Territorial Authorising Officer shall assume financial responsibility only for the executive tasks entrusted to him.
Where EDF resources are managed in a decentralised way and subject to any additional powers that might be granted by the Commission, the Territorial Authorising Officer shall:
(a)
be responsible for the coordination, programming, regular monitoring and annual, mid-term and end of-term reviews of implementation of cooperation, and, if applicable, for coordination with donors;
(b)
in close cooperation with the Commission, be responsible for the preparation, submission and appraisal of programmes and projects;
(c)
prepare tender dossiers and, where appropriate, the documents for calls for proposals;
(d)
submit tender dossiers and, where appropriate, documents for calls for proposals, to the Commission for approval before launching invitations to tender and, where appropriate, calls for proposals;
(e)
in close cooperation with the Commission, launch invitations to tender and, where appropriate, calls for proposals;
(f)
receive tenders and, if applicable, proposals, and transmit copies of tenders to the Commission; preside over the opening of tenders and decide on the results of their examination within the period of validity of the tenders, taking account of the time required for approval of contracts;
(g)
invite the Commission to the opening of tenders and, if applicable, proposals and notify the Commission of the results of the examination of tenders and proposals for approval of the proposals for the award of contracts and grants;
(h)
submit contracts and programme estimates and any addenda thereto to the Commission for approval;
(i)
sign the contracts and addenda thereto approved by the Commission;
(j)
clear and authorise expenditure within the limits of the funds assigned to him; and
(k)
during the execution operations, make any adaptation arrangements necessary to ensure the proper execution of approved programmes or projects from the economic and technical viewpoint.
2. The Territorial Authorising Officer shall, during the execution of operations and subject to the requirement to inform the Commission, decide on:
(a)
technical adjustments and alterations to programmes and projects in matters of detail so long as they do not affect the technical solution adopted and remain within the limits of the reserve for adjustments provided for in the financing agreement;
(b)
changes of site for multiple-unit programmes or projects where justified on technical, economic or social grounds;
(c)
imposition or remission of penalties for delay;
(d)
acts discharging guarantors;
(e)
purchase of goods, irrespective of their origin, on the local market;
(f)
use of construction equipment and machinery not originating in the OCTs, Member States or ACP States provided there is no production of comparable equipment and machinery in the OCTs, Member States or ACP States;
(g)
subcontracting;
(h)
final acceptance, provided that the Commission is present at provisional acceptance, endorses the corresponding minutes and, where appropriate, is present at the final acceptance, in particular where the extent of the reservations recorded at the provisional acceptance necessitates major additional work; and
(i)
hiring of consultants and other technical assistance experts.
3. In addition the Territorial Authorising Officer shall:
(a)
draw up and, after obtaining the approval of the Monitoring Committee, submit to the Commission the annual implementation report;
(b)
carry out the mid-term review referred to in Article 22;
(c)
ensure that those bodies taking part in the management and implementation of EDF programmes maintain either a separate accounting system or an adequate accounting code for all transactions relating to the assistance; and
(d)
take any necessary measures to ensure the implementation of Articles 16, 19, 24 and 30.
4. When the annual implementation report referred to in Article 21 is submitted, the Commission and the Territorial Authorising Officer shall review the main outcomes of the previous year.
After this review, the Commission may make comments to the Territorial Authorising Officer. The Territorial Authorising Officer shall inform the Commission of any action taken on these comments. Where in duly substantiated cases the Commission considers that the measures taken are inadequate, it may make recommendations to the OCTs and the Territorial Authorising Officer for adjustments aimed at improving the effectiveness of the monitoring or management arrangements, together with the reasons for any such recommendations.
On receiving any such recommendations, the Territorial Authorising Officer shall subsequently demonstrate the steps taken to improve the monitoring or management arrangements or shall explain why no such steps have been taken.’
12.
Article 22 is replaced by the following:
‘Article 22
Mid-term review
1. The mid-term review shall be organised to examine the initial results of the SPD, their relevance and the extent to which the targets have been attained.
It shall also assess the use made of financial resources and the operation of monitoring and implementation.
2. The mid-term review shall be carried out under the responsibility of the Commission, in cooperation with the Territorial Authorising Officer and the Member State concerned.
The mid-term review shall be carried out in general between 30 and 42 months after the entry into force of the Internal Agreement establishing the 10th EDF.
A different deadline may be set in the SPD, in particular in respect of the indicators adopted in the case of budgetary support.
The mid-term review shall be carried out by an independent assessor, submitted to the Monitoring Committee and then sent to the Commission.
3. The Commission shall examine the relevance and quality of the review on the basis of criteria defined in the SPD, including in respect of the EDF financial allocation.’
13.
Article 27 is replaced by the following:
‘Article 27
Adaptation of EDF allocations
Using the results of monitoring, audit and evaluations as a basis and taking account of the comments of the Monitoring Committee, the Commission may adjust the amounts and conditions of the initial SPD on its own initiative or on a proposal from the OCTs concerned in the light of the current needs and performance of that OCTs and taking due account of the latest available statistical data for that OCTs.
This adaptation shall normally take place on the occasion of the mid-term review referred to in Article 22 or, in the case of irregularities, in the shortest possible time, in accordance with the procedure laid down in Article 24 of the Overseas Association Decision.’
14.
Article 29 is replaced by the following:
‘Article 29
Recovery and repayments
1. Any repayment due to be made to the Commission shall be made by the due date indicated in the order for recovery drawn up in accordance with the Financial Regulation applicable to the 10th EDF. This due date shall be the last day of the second month following the issuing of the order.
2. Any delay in effecting repayment shall give rise to interest on account of late payment, starting on the due date referred to in paragraph 1 and ending on the date of actual payment. The rate of such interest shall be one and a half percentage points above the rate applied by the European Central Bank in its main refinancing operations on the first working day of the month in which the due date falls.
3. The Territorial Authorising Officer shall keep an account of amounts recoverable from payments of Community assistance already made, and ensure that the amounts are recovered without unjustified delay.
The beneficiary shall repay any amount to be recovered, together with interest received on account of late payment, by deducting the amounts concerned from its next statement of expenditure and request for payment to the Commission, or, where this is insufficient, by making a refund to the Community.
The Territorial Authorising Officer shall send the Commission a statement once a year of the amounts awaiting recovery at that date, classified by the year of initiation of the recovery proceedings.’
15.
The Annex is replaced by a new Annex, the text of which is set out in the Annex to this Regulation.
Article 2
In accordance with Article 3(5) of Annex II Aa to the Overseas Association Decision, the indicative amounts allocated under the 10th EDF shall be the following:
(EUR in millions)
OCTs
10th EDF indicative allocation
New Caledonia
19,81
French Polynesia
19,79
Wallis and Futuna
16,49
Mayotte
22,92
St Pierre and Miquelon
20,74
Aruba
8,88
Netherlands Antilles
24
Falkland Islands
4,13
Turks and Caicos
11,85
Anguilla
11,7
Montserrat
15,66
Saint Helena and dependencies (Ascension, Tristan da Cunha)
16,63
Pitcairn
2,4
Regional cooperation and integration
40
Non-allocated B reserve
15
Article 3
This Regulation shall be published in the Official Journal of the European Union.
This Regulation shall enter into force on the day of the entry into force of the Internal Agreement establishing the 10th EDF.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 December 2007.