EN Official Journal of the European Union L 162/11

COMMISSION DECISION

of 20 January 2006

laying down detailed rules for the implementation of Council Decision 2004/904/EC as regards procedures for making financial corrections in the context of actions co-financed by the European Refugee Fund

(notified under document number C(2006) 51/2)

(Only the Czech, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Swedish, Latvian, Lithuanian, Polish, Portuguese, Slovakian, Slovenian and Spanish texts are authentic)

(2006/400/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Decision 2004/904/EC of 2 December 2004 establishing a European Refugee Fund for the period 2005 to 2010 (1), and in particular Article 25(3) and 26(5) thereof,

Having consulted the Committee established by Article 11(1) of Decision 2004/904/EC,

Whereas:

(1) To allow recovery, pursuant to Article 24(1) of Decision 2004/904/EC, of amounts unduly paid, Member States should inform the Commission of cases of irregularities detected and the progress of administrative or legal proceedings.

(2) Article 25(2) of Decision 2004/904/EC lays down that Member States must make the financial corrections required in connection with the individual or systemic irregularity by cancelling all or part of the Community contribution. To ensure that this provision is applied uniformly throughout the Community, it is necessary to lay down rules for determining the corrections to be made and to provide for the Commission to be informed.

(3) If a Member State fails to comply with its obligations under Article 25 of Decision 2004/904/EC the Commission may itself make the financial corrections under Article 26 of Decision 2004/904/EC. To ensure that this provision is applied by the Commission in a transparent manner, it is necessary to lay down rules for determining the corrections to be made by the Commission and to provide for the Member States’ right to submit comments.

(4) These rules should be in accordance with 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 (2) (hereafter ‘Implementing Rules of the Financial Regulation’).

(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 takes part in Council Decision 2004/904/EC and by consequence in this present 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 takes part in Council Decision 2004/904/EC and by consequence in this present decison.

(7) In accordance with Articles 1 and 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 does not take part in Council Decision 2004/904/EC and is not bound by it nor by this present decision.

HAS ADOPTED THIS DECISION:

Article 1

1. Investigations of systematic irregularities under Article 26(1) of Decision 2004/904/EC shall cover all projects liable to be affected.

2. When cancelling all or part of the Community contribution, Member States shall take into account the nature and gravity of the irregularities and the financial loss to the fund.

3. Member States shall inform the Commission, in a list annexed to the report referred to in Article 28(2) of Decision 2004/904/EC, of any proceedings to cancel assistance initiated in the course of the preceding year.

Article 2

1. Where amounts need to be recovered following the cancellation of the Community contribution under Article 25(1) of Decision 2004/904/EC, the department or organisation responsible shall initiate the recovery procedure and inform the responsible authority. Information on recovery shall be passed on to the Commission and the accounts shall be kept in accordance with Article 3 of this Decision.

2. Member States shall inform the Commission in the report referred to in Article 28(2) of Decision 2004/904/EC how they have decided or propose to re-use the funds cancelled.

Article 3

1. Any functional body of the Member State or national public body designated by a Member State under Article 13, paragraph 1 of Decision 2004/904/EC (hereafter ‘Responsible Authority’) shall keep an account of amounts recoverable from payments of Community assistance that have already been made and shall ensure that the amounts are recovered without delay. After recovery, the Responsible Authority shall reduce its next declaration of expenditure to the Commission by an amount equal to the sums recovered, or, if this amount is insufficient, it shall reimburse the Community. The amounts to be recovered shall accrue interest from their due date at the rate laid down in accordance with Article 86 of the Implementing Rules of the Financial Regulation.

2. When submitting the report referred to in Article 28(2) of Decision 2004/904/EC, Member States shall send the Commission a list of irregularities detected, indicating the amounts recovered or awaiting recovery and if appropriate, any administrative or judicial proceedings launched with a view to recovering amounts unduly paid.

Article 4

1. The amount of financial corrections made by the Commission under Article 26(3b) of Decision 2004/904/EC for individual or systemic irregularities shall be assessed wherever possible and practicable on the basis of individual files and be equal to the amount of expenditure wrongly charged to the Fund, having regard to the principle of proportionality.

2. Where it is not possible or practicable to quantify precisely the amount of irregular expenditure or where it would be disproportionate to cancel all the expenditure concerned, the Commission shall base its financial corrections on:

(a) extrapolation, using a representative sample of transactions that are homogeneous in nature; or

(b) a flat-rate, in which case it shall assess the seriousness of the infringement of the rules and the extent and financial implications of the irregularity established.

3. Where the Commission bases its position on facts established by auditors from outside its own departments it shall draw its own conclusions on the financial implications after examining the measures taken by the Member State concerned under Article 25(2) of Decision 2004/904/EC.

4. The period of time within which the Member State concerned may respond to a request under Article 26(3) of Decision 2004/904/EC shall be two months. In duly justified cases, a longer period may be agreed by the Commission.

5. Where the Commission proposes financial corrections determined by extrapolation or at a flat rate, the Member State shall be given the opportunity to demonstrate, on the basis of an examination of the files concerned, that the actual extent of irregularity was less than the Commission’s assessment. In agreement with the Commission, the Member State may limit the scope of this examination to an appropriate proportion or sample of the files concerned. Except in duly justified cases, the time allowed for this examination shall not exceed a further period of two months after the two-month period referred to in paragraph 4. The Commission shall take account of any evidence supplied by the Member State within the time-limits.

6. Where the Commission suspends payments under Article 26(1) of Decision 2004/904/EC or where after expiry of the period referred to in paragraph 4, the reasons for the suspension remain or the Member State concerned has not notified the Commission of the measures taken to correct the irregularities, Article 26(3) will apply.

7. Guidelines on the principles, criteria and indicative scales to be applied by Commission departments in determining the flat-rate corrections are set out in the Annex to this Decision.

Article 5

1. Any repayment to the Commission under Article 26(3) of Decision 2004/904/EC shall be made by the deadline set in the recovery order drawn up in accordance with Article 81 of the Implementing Rules of the Financial Regulation.

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 repayment. The applicable rate of interest shall be that referred to in Article 3(1) of this Decision.

3. A financial correction under Article 26(2) of Decision 2004/904/EC shall not prejudice the Member State’s obligation to pursue recoveries under Article 25(2) of Decision 2004/904/EC and Article 2(1) of this Decision and to recover State aid under Article 14 of Regulation (EC) No 659/1999.

Article 6

Member States may apply national rules on financial corrections that are more rigorous than those prescribed here.

Article 7

The present decision is addressed to the Kingdom of Belgium, the Czech Republic, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, 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, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland.

Done at Brussels, 20 January 2006. For the Commission Franco FRATTINI Vice-President

(1) OJ L 381, 28.12.2004, p. 52.

(2) OJ L 357, 31.12.2002, p. 1. Regulation as last amended by Regulation (EC, Euratom) No 1261/2005 (OJ L 201, 2.8.2005, p. 3).