COMMISSION DECISION
of 2 March 2011
amending Decision 2008/458/EC laying down rules for the implementation of Decision No 575/2007/EC of the European Parliament and of the Council establishing the European Return Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ as regards Member States’ management and control systems, the rules for administrative and financial management and the eligibility of expenditure on projects co-financed by the Fund
(notified under document C(2011) 1159)
(Only the Bulgarian, Czech, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish texts are authentic)
(2011/177/EU)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Decision No 575/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Return Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ (1), and in particular Article 23 and Article 35(4) thereof,
Whereas:
(1)
In the light of the experience gained since the launch of the European Return Fund, it is appropriate to clarify the obligations in the Commission Decision 2008/458/EC (2) relating to transparency, equal treatment and non-discrimination when implementing projects.
(2)
Member States are required to report on the implementation of the annual programmes. It is therefore appropriate to clarify which information Member States have to provide.
(3)
In order to reduce the administrative burden on the Member States and to provide a greater legal certainty the rules on the eligibility of expenditure of actions co-financed by the European Return Fund should be simplified and clarified.
(4)
Most of the changes introduced by this Decision should apply immediately. However, since the 2009 and 2010 annual programmes are ongoing, the revised rules on the eligibility of expenditure of actions co-financed by the European Return Fund should apply from the 2011 annual programme. Member States should nonetheless be given the possibility to apply those rules earlier under certain conditions.
(5)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom is bound by the basic act and, as a consequence, by this Decision.
(6)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland is bound by the basic act and, as a consequence, by this Decision.
(7)
In accordance with Article 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not bound by this Decision or subject to the application thereof.
(8)
The measures provided for in this Decision are in accordance with the opinion of the common Committee ‘Solidarity and management of Migration Flows’ established by Decision No 574/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the External Borders Fund for the period 2007 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ (3).
(9)
Decision 2008/458/EC should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Decision 2008/458/EC is amended as follows:
(1)
in Article 9(1), the second sentence is replaced by the following:
‘Any substantial change to the content of the calls for proposals shall also be published under the same conditions.’;
(2)
Article 11 is replaced by the following:
‘Article 11
Implementation contracts
When awarding contracts for the implementation of the projects, the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or several of such bodies governed by public law shall act in accordance with the applicable Union and national public procurement law and principles.
Entities other than those referred to in the first paragraph shall award contracts for the implementation of the projects following appropriate publicity in order to ensure compliance with the principles of transparency, non-discrimination and equal treatment. Contracts with a value of less than EUR 100 000 may be awarded provided the concerned entity requests at least three offers. Without prejudice to national rules, contracts with a value of less than EUR 5 000 shall not be subject to any procedural obligations.’;
(3)
in Article 21, paragraph 1 is replaced by the following:
1. The responsible authority shall notify the Commission by formal letter of any substantial change in the management and control system and shall send a revised description of the management and control system to the Commission as soon as possible and at the latest at the time any such change takes effect.’;
(4)
in Article 24, paragraph 3 is replaced by the following:
3. The financial tables linked to the progress reports and final reports shall present a breakdown of the amounts both by priority and by specific priority, as defined in the strategic guidelines.’;
(5)
Article 25 is amended as follows:
(a)
in paragraph 1 the following sentences are added:
‘Any changes to the audit strategy submitted in respect of Article 30(1)(c) of the basic act and accepted by the Commission shall be sent to the Commission as soon as possible. The revised audit strategy shall be established in accordance with the model in Annex VI, marking the revisions introduced.’;
(b)
paragraph 2 is replaced by the following:
2. Except when each of the last two annual programmes adopted by the Commission corresponds to an annual Community contribution of less than EUR 1 million, the audit authority shall submit an annual audit plan before 15 February each year, as from 2010. The audit plan shall be established in accordance with the model in Annex VI. Member States are not required to resubmit the audit strategy when submitting the annual audit plans. In the case of a combined audit strategy, as provided for in Article 30(2) of the basic act, a combined annual audit plan may be submitted.’;
(6)
Article 26 is replaced by the following:
‘Article 26
Documents established by the certifying authority
1. The certification relating to the request for a second pre-financing payment referred to in Article 39(4) of the basic act shall be drawn up by the certifying authority and transmitted by the responsible authority to the Commission in the format in Annex VIII.
2. The certification relating to the request for a final payment referred to in Article 40(1)(a) of the basic act shall be drawn up by the certifying authority and transmitted by the responsible authority to the Commission in the format in Annex IX.’;
(7)
Article 37 is replaced by the following:
‘Article 37
Electronic exchange of documents
In addition to the duly signed paper versions of the documents referred to in Chapter 3, the information shall also be sent by electronic means.’;
(8)
the Annexes are amended in accordance with the Annex to this Decision.
Article 2
1. Points 1 to 7 of Article 1 and points 1 to 5 of the Annex shall apply from the date of adoption of this Decision.
2. Point 6 of the Annex shall apply from the implementation of the 2011 annual programmes at the latest.
3. Member States may decide to apply point 6 of the Annex in respect of ongoing or future projects as from the 2009 and 2010 annual programmes in full respect of the principles of equal treatment, transparency and non-discrimination. In that case Member States shall apply the new rules in their entirety to the project concerned and, where necessary, shall amend the grant agreement. In respect of technical assistance expenditure only, Member States may decide to apply point 6 of the Annex as from the 2008 annual programme.
Article 3
This Decision is addressed to the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
Done at Brussels, 2 March 2011.