[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 6.4.2005

COM(2005) 123 final

2005/0046 (COD)

2005/0047 (COD)

2005/0048 (CNS)

2005/0049 (COD)

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

establishing a framework programme on Solidarity and the Management of Migration Flows for the period 2007-2013

Proposal for a

DECISION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL

establishing the European Refugee Fund for the period 2008-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’

Proposal for a

DECISION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL

establishing the External Borders Fund for the period 2007-2013 as part of the general programme ‘Solidarity and Management of Migration Flows’

Proposal for a

COUNCIL DECISION

establishing the European Fund for the Integration of Third-country nationals for the period 2007-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’

Proposal for a

DECISION OF THE EUROPEAN PARLIAMENT AND COUNCIL

establishing the European Return Fund for the period 2007-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’

(presented by the Commission) {SEC(2005) 435}

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Establishing a framework programme for Solidarity and the management of migration flows for the period 2007-2013

The Communication establishing a Framework programme on “Solidarity and the management of migration flows” is part of a coherent set of proposals aiming at providing an adequate support to an area of freedom, security and justice under the financial perspectives 2007-2013. Indeed, the three key objectives of freedom, security and justice are to be developed in parallel and to the same degree of intensity, thus allowing for a balanced approach, based on the principles of democracy, respect for fundamental rights and freedoms, and the rule of law. Each of these objectives is supported by a Framework programme, providing for the necessary coherence between relevant interventions in each policy area, and clearly linking political objectives and the resources available to support them. Furthermore, this structure represents a major simplification and rationalisation of existing financial support in the area of freedom, justice and security, thus allowing for greater flexibility in the allocation of priorities and increasing overall transparency.

1. INTRODUCTION

The progressive establishment of the area of freedom, security and justice has become, since its first introduction as an objective in the Treaty of Amsterdam, one of the cornerstones of the development of the European Union. This objective is the corollary to the overarching objectives of economic growth and sustainable development: increased prosperity at the level of our continent can only be achieved in a climate of safety and security which guarantees citizens and the business sector an effective exercise of their rights and freedoms, as well as protection from crime and terrorism.

The area of freedom, security and justice comprises a balance between guaranteeing the core rights of the individual (freedom, security and justice) as well as delivering the core responsibilities (security, justice) expected of the Union[1]. The citizens of Europe rightly expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, joint approach to cross-border problems such as illegal migration and trafficking in and smuggling of human beings, as well as to terrorism and organised crime.

Building upon the results of the Tampere programme, the European Council adopted in November 2004 a multiannual programme (‘The Hague Programme’) defining a new agenda to enable the Union to further develop what has already been achieved and to meet challenges ahead. Among the objectives set out are the further development of common migration and asylum policies and the establishment of an integrated management system for controls and surveillance of external borders, which must be envisaged in the context of the general principle of solidarity and fair sharing of responsibility between the Member States, including their financial consequences. These concepts are also enshrined in the Constitution as governing principles for the development of common policies on border checks, asylum and immigration.

In its Communications setting out its strategic orientations for the definition of the Financial Perspectives 2007-2013[2], the Commission has already highlighted the objective of supporting the development of the area of Freedom, Security and Justice with adequate financial resources, to be included in a new Heading relating to “Citizenship, Freedom, Security and Justice”. In accordance with the objectives set out by the European Council, the proposed framework programme “Solidarity and management of migration flows” will aim at addressing the issue of a fair share of responsibilities between Member States as concerns the financial burden arising from the introduction of an integrated management of the Union’s external borders and from the implementation of common policies on asylum and immigration.

2. THE PROPOSED INTERVENTION - FRAMEWORK PROGRAMME ON SOLIDARITY AND MANAGEMENT OF MIGRATION FLOWS

2.1. Objectives of the framework programme

The implementation of Community financial programmes must be part of an effective policy mix aiming at achieving specific objectives linked to the development of EU policies. In this respect, the choice of areas and types of intervention must be established on the basis of an assessment of the needs to be addressed, and take into account the complementarity with other possible tools, in particular legislation. So far, common asylum, migration and border management policies have been mainly established through legislation. The standards have laid the foundations of Community policy in these areas. However, the implementation of the standards implies a differential burden imposed on individual Member States, some of whom bear a disproportionate part of the responsibilities that will benefit the Community as a whole, and uneven application would endanger the project of creating a level-playing field.

The number of persons affected by these policy areas is considerable. In the EU 25 the Member States are responsible for controlling about 6.000 km of land border and about 85.000 km of coastline; it is estimated that annually 100 million passengers arrive at international airports of the EU amidst whom persons to be refused entry. Member States refuse annually more than 340.000 third country nationals the right to enter into the EU, apprehend about 500.000 third country nationals illegally residing on their territories and remove about 300.000 third country nationals who have entered illegally, have resided illegally or are returned to their country for other reasons. In the EU 25 about 2.2 million permits are granted each year to third country nationals to reside or stay, for the purpose of employment, family reunification, study, research or other reasons. The total number of third country nationals legally residing in the EU 25 is currently double the number of the EU citizens having chosen to exercise their right to reside in another Member State; the population continues to grow mainly due to net migration.

Financial solidarity of the Community must be able to support further development and implementation of the comprehensive and balanced approach defined by the EU as regards management of migration flows. It must contribute adequately to the four essential pillars of this approach:

- First, the Member States have committed themselves to applying the Schengen acquis and establishing a common integrated border management system in the EU. Accordingly, they are obliged to manage efficiently the flows of persons at external borders, in order to ensure, on the one hand, a high level of protection at the external borders for the internal security of the Member States, and, on the other, a smooth crossing of these borders by bona fide travellers, such as those issued visas by consular services of Member States abroad. These objectives imply, particularly in terms of reducing illegal entries, securing the coastlines in the Mediterranean and the Eastern land borders and enhancing the activities of Member States’ consular services in third countries;

- Second, with the adoption of a European Return Action Programme in 2002, Member States have pledged to develop a common return policy on the basis of common standards and best practices. An effective Community return policy is a necessary complement to a credible legal immigration and asylum policy as well as an important component in the fight against illegal immigration. The efforts of individual Member States regarding return management are not only limited in financial terms, but also in terms of political impact and signal effect; Member States face similar difficulties in implementing return operations and they can collectively be better overcome by pooling resources and experience. Moreover, Member States should be encouraged to develop ‘integrated return management’: analysing and assessing the potential group of returnees, the legal and logistical constraints in the Member State and the situation in the country of return, and developing specific and targeted actions commensurate to the challenge. This should contribute to reducing, in the EU without internal borders, secondary movements of illegally staying third country nationals.

- Third, the implementation of a common immigration policy requires that the Community provides a credible response to the multidimensional issue of integration of third country nationals. The common immigration policy has clear implications for competitiveness and the fulfilment of the Lisbon objectives. While immigration in itself is not a solution to demographic ageing, more sustained immigration flows could increasingly be required to meet the needs of the EU labour market and ensure Europe’s prosperity. This highlights the importance of ensuring that an EU migration policy delivers a secure legal status and a guaranteed set of rights to assist the integration of those who are admitted, to promote their integration into all aspects of society, over and above integration into the labour market. A common approach concerning the rights and obligations of immigrants should be developed. The Common Basic Principles for immigration integration policy in the European Union adopted by the Council and the representatives of the governments of the Member States in 2004, recognise that immigration is a permanent feature of European society and that all Member States should maintain and further develop societies in which newcomers feel welcome, as the failure of an individual Member State to develop and implement a successful integration policy for migrants can have in different ways adverse implications for other Member States. Accordingly, Member States should be encouraged to develop and implement programmes and activities welcoming newcomers, to promote active citizenship for all third country nationals through more civic, cultural, religious and political participation, to improve the capacity of public and private service providers to respond to their needs and to assist society in adjusting to diversity.

- Last, to prevent unnecessary secondary movements in an EU where only one Member State is responsible for examining a particular asylum claim, possible divergences in the practice of reception and admission, should be minimized as much as possible. An equivalent implementation of high quality of the common European asylum policy across the Member States must be encouraged through a balance of efforts between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.

Another essential element of this approach is that of cooperation with third countries. In accordance with the proposed structure of the financial framework, this external dimension will not be included in the framework programme “Solidarity and management of migration flows”, but will be duly taken into account under Heading 4 of the proposed financial framework, through the implementation of external aid instruments presented by the Commission in September 2004.

2.2. Structure of the framework programme

The framework programme will establish financial solidarity mechanisms (Funds) covering four areas:

- controls and surveillance of external borders (‘integrated border management’), visa policy, in complementarity with the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX Agency);

- return of third country nationals illegally residing in the EU;

- integration of legally residing third country nationals; and

- asylum (building upon the existing European Refugee Fund[3]).

It is clear that the development and implementation of common policies, including Community legislation, in each of these four areas respond to the need to ensure complementary but different operational objectives. It implies a dissimilar level and intensity of obligations for Member States which must be met by adequate financial support. It also means that each Member State must put in place and sustain measures at national level allowing for a proper fulfilment of their obligations with regard to each of the four policy areas, even if they are only affected to a limited degree.

Furthermore, these actions have a different legal basis in the Treaties, and cover areas that are subject to the provisions of the Protocols relating to the position of Denmark, Ireland and the United Kingdom or to the Schengen acquis.

Therefore, the “solidarity and management of migration flows” framework programme shall be made of four separate instruments (establishing four “Funds”) corresponding to each of the four policy areas.

Even though implemented through four different legal instruments, the four Funds constitute a coherent ensemble both politically and operationally: each Fund reflects the objectives of a policy which will, in association with the three others, allow the development of an area of Freedom. It is the successful implementation of each of the four dimensions that will lead to the achievement of the overall objectives. Therefore, the four Funds will operate according to common implementation and management rules, in accordance with the same strategic calendar, and be the subject of coordinated evaluation and review processes (see section 3).

Once the Constitutional Treaty has entered into force, the Commission may examine the possibilities for further streamlining and simplification that could result from a new legal basis (in particular article III-268).

The allocation of financial resources to Member States within each Fund will be based on specific and objective criteria which reflect the situation of the Member State with regard to the obligations undertaken on behalf of or for the overall benefit of the Community for the policy area concerned. These criteria will mostly be of a quantitative nature. In order to take into account both the baseline situation of the Member States and the evolution of this situation, criteria will be as far as possible based on “stock” data and “flows” data: this will allow for a reinforcement of available funds in one Member State to support, for example, a growing number of persons falling within the target population.

For this purpose, the instruments foresee the use of Community statistics, and where these are not available, national statistics. While some technical difficulties may arise, it is felt that the use of statistics in the allocation of funds would have the positive effect of increasing the attention paid at national level to the correct and timely provision of data The proposed use of these statistics in the allocation of the funds for the period 2007-2013 is feasible, in particular because the forthcoming legislation on migration statistics is expected to result in better availability and harmonisation of statistics.

For the External Borders Fund, the possibility of a weighting mechanism is created, to be based inter alia on the common risk analysis carried out by the FRONTEX Agency. Special provisions are foreseen in order to cover the specific additional costs linked to the implementation of the FTD and FRTD scheme in accordance with Council Regulation (EC) No 693/2003 and Council Regulation (EC) No 694/2003.

For the European Refugee, Integration and Return Funds, building on the example of the European Refugee Fund, each Member State will receive a small fixed amount in order to ensure a minimum level of resources for the implementation of the objectives.

2.3. Complementarity with other instruments and policy measures

The framework programme constitutes one element of the policy mix set up for the further development of common asylum, migration and external border policies: it must be closely linked to the implementation and development of other policy tools, in particular legislation. Financial solidarity must serve clearly identified objectives and allow for the cofinancing of actions that bring a high level of added value to the Community. The use of the Funds must be intrinsically linked to the improvement of the national situation with regard to common standards, or bring collective benefits at EU level through the implementation of coordinated or joint actions.

The establishment and operation of the framework programme will be complementary to other initiatives and bodies set up within the context of common migration, asylum and external border policy.

In particular, the development of large scale IT systems in support of the implementation of external border and visa policy (Visa Information System, Schengen Information System) and asylum policy (EURODAC) constitute substantial contributions to Community solidarity through the establishment of cooperation and cost/effective exchange of information between the Member States. Although not covered by the budget forecast under the “Solidarity and Management of migration flows” framework programme, the development and operation of these information systems are long term commitments, and the legal acts establishing them do not contain provisions limiting their duration. In addition to the extension anticipated for enlargement, further developments of functionalities cannot be excluded over the period 2007-2013, which will need to be covered by the budget forecast under Heading 3 of the proposed financial framework.

The activities of the FRONTEX Agency also constitute an effective tool to enhance cooperation through technical and operational assistance, pooling of equipment and resources that can be made available to all participating States. The progressive development of the scope and activities of the agency, in particular after the evaluation scheduled for 2007, will require adequate resources under Heading 3 of the future financial framework. The Commission services will associate the FRONTEX Agency to the programming and evaluation

Based on the results of the preparatory action currently running, the Commission will consider the creation of a European Migration Observatory, in order to reinforce the monitoring and analysis of multidimensional aspects of the migration and asylum phenomena.

Provisions have been made not only to avoid any kind of duplication between Funds, but also to ensure the development of synergies wherever possible. In particular, financing return measures for rejected asylum seekers shall become ineligible within the framework of the European Refugee Fund from the first year of the multiannual programme starting on 1st January 2008.

Funding for the Return Fund will only be foreseen from 2008 onwards, taking into account, as suggested in the Hague programme, the need to evaluate the results of the preparatory actions on return (2005 – 2006) beforehand.

Particular attention has also been given to the issue of complementarity and synergy of actions between the Integration Fund and the European Social Fund (ESF), both in the definition of the objectives of the Integration Fund and in its implementation. Through its specific and innovation oriented approach, the Integration Fund will indeed be able to complement the wider objectives of the ESF as well as to identify successful strategies and practices that can be further mainstreamed within the ESF.

3. RATIONALISATION AND SIMPLIFICATION

3.1. Transition with existing instruments

The four Funds implemented under the “Solidarity and Management of Migration Flows” framework programme provide a coherent ensemble and fully support to the development of common policies in the areas of external border, migration and asylum, in full agreement with the principles of solidarity, added value, additionality and complementarity. They will take over and develop to their full operational level the actions of existing programmes and preparatory actions such as ARGO, INTI, the preparatory actions in the area of return management and the European Refugee Fund (ERF).

The second phase of the ERF started on 1st January 2005 and ends in 2010. In addition to clarifying the eligibility conditions of the voluntary return strand, the proposal to amend the ERF attached to the Communication simply aims at putting its calendar and implementing arrangements as regards management and control system in line with those proposed for the other three instruments : its duration is prolonged until 2013, and the new provisions will come into force as of 1st January 2008, in order to allow for the full implementation of the first multiannual programming cycle under the current decision, from 2005 to 2007. After these dates, the programming cycle will be in line with the other three Funds.

It should however be anticipated that revisions on the substance of the ERF should be presented at a later stage in 2005, together with Communications by the Commission concerning in particular:

- The Declaration on persons under national resettlement programmes in light of the scope of the Council Decision on the ERF II for the period 2005 – 2010 where the Commission is invited to present a proposal for a modification of the European Refugee Fund by the end of 2005 to take into account the Council Conclusions of 2 November 2004 on improving access to durable solutions. Those Council Conclusions had asked the Commission to come forward with a proposal for an EU Resettlement Scheme. The arrangements for funding or part-funding of resettlement which takes place under the EU Resettlement Scheme, or indeed outside it, will need to be settled.

- The Hague Programme calling for the establishment, in 2005, of “appropriate structures involving the national asylum services of the Member States with a view to facilitating practical and collaborative cooperation”. The questions of the inclusion of these structures under ‘Community actions’ and the options envisaged for the European Support Office therefore need to be addressed.

3.2. Common management and control arrangements

As the objectives of the framework programme are to strengthen the implementation of common policies at national level, it will be implemented within the framework of shared management between the Member States and the Commission. This will enable the Member States to select the actions in accordance with a thorough assessment of needs and a strategy adapted to the local situation, this strategy being agreed in cooperation with the Commission.As shared management cannot be applied to third countries, there will be a delegation of tasks in decentralised management to the countries associated with the implementation, application and development of the Schengen acquis which participate in the External Borders Fund. The Community actions and the technical assistance of the Commission, as referred to within the draft instruments, will be implemented by the Commission within the framework of direct management.

The same provisions have been defined for the operation of the four instruments: multiannual strategic programming cycles (with two periods defined as 2007-2010 and 2011-2013) on the basis of guidelines communicated by the Commission, annual allocation of resources and operational programming, multiannual evaluations.

Similarly, the management and control systems of the four Funds are to be aligned, and to that end the draft decisions provide for common or shared implementation provisions or structures (Committee, national arrangements for management and audit).

The need for coherence and transparency are the driving forces in the management modalities of the respective Funds. Coherence, as the draft instruments lay down the minimal conditions applicable to the management, internal control and audit systems as well as the involvement of each actor. Transparency, as the results and outcome of each part of the instrument are known to the different actors. The four draft decisions also take into account the conclusions of the evaluations of the programming and delivery mechanism of the Structural Funds, in order to set up delivery mechanisms that ensure at the same time a concentration of resources on key and strategic objectives, a delivery mechanism that ensures effective implementation at both national and Community level, and a sound management and control of Community funding.

3.3. Evaluation and review

Evaluation of the implementation, results and impacts of policy instruments must be carried out at regular intervals, in order to ensure effectiveness of action. This is particularly crucial in the context of the framework programme “Solidarity and management of migration flows”:

- first, during the years 2005-2006, additional studies will be carried out in order to define the priorities of the initial multiannual guidelines under the new programme, as well as establish a coherent and complete monitoring and evaluation framework (including the definition of common sets of input, output, result and outcome indicators both quantitative or qualitative) ;

- second, the results of a first evaluation on the operation of the framework programme to be made available in 2010, at the time of the review of the Hague Programme; the results of this evaluation will also feedback into the management and operation of the programme ;

- third, evaluations of the results of the multiannual programmes under the Funds, to be made available in 2012, to draw useful lessons in view of their renewal and 2015, to ascertain their impact.

The policy developments and the results of evaluations also require the possibility to review the programme, and to adapt it if necessary to new or changing needs and priorities:

- in 2009, the possibility of reviewing certain aspects of the operation of the Funds, such as the financial distribution keys in the areas of integration and external borders, notably, in the case of integration, in light of the results of the final evaluation of preparatory actions initiated in 2005.

- by the end of 2010, on the basis of the first evaluation, in order to set out the main orientations and priorities on the future of the framework programme.

4. FINANCIAL RESOURCES

The overall amount foreseen for the framework programme “Solidarity and management of migration flows” is 5.866 million euro for the period 2007-2013 (in current prices). Within this envelope, 1.184 million euro are foreseen for asylum; 759 million for the return Fund; 1.771 million euro for integration of third-country nationals; and finally 2.152million euro for external borders management. The amounts allocated to the Member States will not be transferable from one Fund to another.

In addition to the overall amount for the above framework programme, for the FRONTEX Agency, an indicative amount of 285.1 million euro is foreseen for the period 2007-2013, while the implementation of large-scale information systems has been estimated at over 900 million euro; finally, the possible setting-up of an European Migration Observatory as a follow-up to current preparatory actions has also been budgeted for, to an indicative amount of 62.3 million euro for the same period.

ANNEX

Establishing a framework programme on Solidarity and the Management of Migration Flows for the period 2007-2013

Complementarity with agencies and other instruments in the area of Freedom, Security and Justice

Several complementary instruments are foreseen under the Financial Perspectives to contribute to the achievement of the policy objectives set in the area of Justice, Freedom and Security:

- The framework programmes that will replace the multitude of budget lines that the Commission currently manages in this field ;

- Community financing of agencies and Community or Union bodies ;

- Development and management of related large scale information systems.

The following agency related to the area of the above framework programme will be covered under the new financial perspectives:

- European Agency for the Management of Operational Cooperation at the External Borders, established by Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1).

Other existing instruments will remain in force, while not being covered by the new framework programme. These instruments relate to the development and implementation of large scale IT systems in the areas of asylum, migration and external border policies, and were established by legislative acts of the Council and/or European Parliament:

- The EURODAC system , established by Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention (OJ L 316, 15/12/2000, p. 1) and of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 050 , 25/02/2003 p. 1).

- the Visa Information System (VIS), established by Council Decision 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS) (OJ L 213, 15/06/2004 p. 5), and for which the Commission has put forward a proposal (COM(2004)835) setting out the purpose, the functionalities of and responsibilities for the Visa Information System (VIS),

- The Schengen Information System (SIS II), for which the Commission intends to present a proposal for a European parliament and Council Regulation by the end of the first quarter 2005 .

The development and operation of these information systems are long term commitments, and the legislative acts establishing them do not contain provisions limiting their duration. In addition to the extension anticipated for enlargement, further developments of functionalities cannot be excluded over the period 2007-2013.

EXPLANATORY MEMORANDUM

1. INTRODUCTION

The preparation of the financial perspectives for 2007-2013 has been guided from the outset by a policy-led approach, in order to ensure consistency between political objectives and the amounts allocated to pursue them. In this context, the establishment of an area of freedom, security and justice is considered to be one of the main priorities of the European Union for the years to come, to be supported through substantially increased financial means. In its Communications « Building our common Future - Policy challenges and Budgetary means of the Enlarged Union 2007-2013 »[4] and « Financial Perspectives 2007 – 2013 »[5], the Commission also underlined the importance of using the revision of the legal instruments for the next financial perspectives to create a significant movement towards greater simplicity. Structuring its proposals around three general and policy-led programmes (“Solidarity and management of migration flows”, “Fundamental Rights and Justice”, “Security and safeguarding freedoms”), the Commission sets out a clear framework for the development of financial interventions of the Community in support of the three objectives of Justice, Freedom and Security.

The content of these programmes was outlined in a Commission working document[6], which identified the following key objective for the “Solidarity and management of migration flows” general programme: to support the principle of solidarity in managing people flows by ensuring a fair share of responsibilities between Member States as concerns the financial burden arising from the introduction of an integrated management of the Union’s external borders and from the implementation of common policies on asylum and immigration. (..)

This solidarity should enhance and support the implementation of Community policy and legislation relating to four complementary dimensions of management of migration flows:

- integrated management of external borders, in order to ensure an equivalent and uniform level of protection at the external borders;

- asylum policy, as is already the case under the European Refugee Fund[7] in order to support the development and implementation of a common European asylum policy based on solidarity between Member States and promote a balance in the efforts made by Member States in bearing the consequences of receiving refugees and displaced persons;

- fight against illegal immigration, and in particular the return of illegally resident third-country nationals in the EU or persons irregularly migrating towards the EU;

- admission and integration of third country nationals, in particular as regards their social, civic and cultural integration, in order to enable them to settle and take actively part in all aspects of European societies.

2. JUSTIFICATION OF THE ACTION - MODIFICATION TO THE EUROPEAN REFUGEE FUND

The first expression of this solidarity was the creation of the ERF in 2000[8], on the basis of three years of preparatory actions. The Fund, which was backed by the European Parliament and based on a proposal by the Commission, has been instrumental in laying the foundations of collective action by the Community for the reception of asylum-seekers and people requiring international protection as part of a comprehensive approach. It has also helped to secure agreement on the Directive on temporary protection in the event of a mass influx of displaced persons. The first phase of legislative harmonisation establishing the common European asylum system is nearing completion, and under the terms of the original decision the Council had to review this decision by 31 December 2004 at the latest on the basis of a proposal by the Commission.

A thorough evaluation and extensive consultation of the parties concerned was carried out in 2003: mid-term evaluation of ERF I completed in November 2003, a broad-based review conference held on 30-31 October 2003. Building on the results of this evaluation as well as on an extended impact assessment[9], the Commission adopted on 12 February 2004 a proposal for the establishment of the ERF for a second phase running from 2005 to 2010[10]. The Decision was adopted by the Council on 2 December 2004.

The second phase of the ERF contains many provisions and mechanisms that are now proposed for the three other Funds composing the “solidarity and management of migration flows” general programme:

- more strategic programming of Fund operations, with the Commission being given a bigger leadership role and account being taken of the legislative framework adopted by the Community on asylum policy;

- the inclusion in the criteria for distributing funds among the Member States not only the target population, but also the fact that the new Member States in particular must make structural investments to guarantee the effectiveness of national asylum systems;

- Programming and action lifecycles that yield more useful and viable results through multi-annual strategies based on a consultation process (between national partners and between the Member States and the Commission);

- a reinforcement of the provisions regarding shared management, backed up by increased support at Community level (a common financial and administrative framework and common management tools), as a guarantee that the instrument is implemented in accordance with the principle of sound financial management.

Furthermore, the proposal provided for a gradual increase in the budget, more substantial from 2008, as a solid expression of Community solidarity, with a view to reaching significant results and having a strong impact not only on target groups, but also on the systems themselves.

In view of the recent evaluation and review of this proposal, as well as of the duration of this instrument, the modifications to be made to the ERF within the framework of the adoption of the “Solidarity and Management of Migration Flows” general programme under the new Financial perspectives therefore need to be focused on rationalisation of procedures (to align them to those proposed for the three other Funds), duration of implementation (extension until 2013) and complementarity and synergy (in particular as regards the actions under the “Return Fund”).

2.1. Duration of the instrument

As the current phase of the ERF runs into 2010, it is proposed to prolong its duration until the end of the financial perspectives, i.e. 2013. In operational terms, this will translate into the implementation of a third multiannual programme (2011-2013). However, as the Member States are currently beginning under ERF II the implementation of the first strategic multiannual programme, which runs from 2005 to the end of 2007, it is proposed that the date of entry into force of this proposal is at the beginning of the first year of the second multiannual programme, that is on 1 January 2008.

2.2. Rationalisation of the management and control systems

The E RFII (2005-2010) already contains detailed provisions on the operational implementation of shared management. In order to ensure the consistency and possible common arrangements with the management and control procedures of the other three funds proposed as part of this general programme, the Commission is proposing to adopt the same provisions for all four Funds.

These provisions have been defined taking into account in particular the reform of the structural funds delivery system[11], as well as the orientations set out by the Commission for the definition of respective responsibilities of the Commission and the Member States in its Communication of 6 September 2004[12]. In order not to complicate the implementation of the management and control systems, it is proposed that they also enter into force after the completion of the first multiannual cycle on 1 January 2008.

2.3. Complementarity and synergy

The ERF was the first Community financial instrument expressing solidarity between the Community and the Member States dealing with the consequences of the establishment of common policies in the area of external borders, and common immigration and asylum policies. With the proposal put forward of the creation of a coherent general programme , the ERF becomes part of an ensemble of measures aiming at creating a level-playing-field at European level.

To this end, this proposal, along with the draft decisions establishing the Fund for integration of legally staying third country nationals, the External Borders Fund and the Return Fund provides for the creation of mechanisms ensuring a coherent approach of the programming, implementation and evaluation of the four instruments. It also contains a modification of the scope of eligible actions as regards return, in order to prevent any overlap with the proposed Return Fund. Financing return measures for rejected asylum seekers should be done under the Return Fund and shall therefore become ineligible within the framework of the European Refugee Fund from the first year of the multiannual programme starting on 1st January 2008.

The reasons for this dividing line between the two Funds are set out in more detail in the extended impact assessment.

3. ADAPTATION TO FURTHER DEVELOPMENTS

The Commission shall bring forward a proposal revising the substance of the ERF at a later stage. Amendments would take into account in particular the Hague Programme and the Declaration on persons under national resettlement programmes in light of the scope of the Council Decision on the ERF II for the period 2005 – 2010.

The amendments would relate to the following issues:

- In the Declaration on persons under national resettlement programmes the Commission is invited to present a proposal for a modification of the European Refugee Fund by the end of 2005 to take into account the Council Conclusions of 2 November 2004 on improving access to durable solutions. Those Council Conclusions had asked the Commission to come forward with a proposal for an EU Resettlement Scheme. Consequently, in a proposal for revising the ERF the arrangements for funding or part-funding of resettlement which takes place under the EU Resettlement Scheme, or indeed outside it, will need to be settled.

- The Hague Programme calling for the establishment, in 2005, of “appropriate structures involving the national asylum services of the Member States with a view to facilitating practical and collaborative cooperation”. Consequently, consideration will need to be given how to support these structures.

The Communications on these aspects as well as the proposal modifying the ERF are scheduled for the autumn of 2005.

4. BUDGETARY IMPLICATIONS

The financial statement attached to the proposal for the second phase of the ERF in February 2004 remains valid, in view of the still significant number of asylum applications in the member States. Voluntary return of rejected asylum seekers represents today a small part of the actions implemented through the Fund, and therefore it is unlikely that the suppression of these actions from the scope of the Fund will have significant consequences in budgetary terms.

The prolongation of the Fund for the years 2011-2013 should remain in line with the estimates made in 2004, taking into account the new priorities and actions that are likely to be added by the proposal forecast for the autumn of 2005. The financial allocation for the Fund for 2005 and 2006 was EUR 114,09 million. Under the Financial Perspectives proposed by the Commission for 2007-2013 the allocation amounts to EUR 1.184million. For the period 2008 – 2013 the amount is EUR 1.112,7 million.

A specific amount must also remain available as a reserve for the implementation of emergency measures. This amount (10 M€ per year) will remain unchanged during the period; it is necessary to cover the first few weeks of action in case of a mass influx of refugees, and can be after this time complemented by relevant modifications of the normal multiannual and annual programmes in the Member States.

2005/0046 (COD)

Proposal for a

DECISION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL

establishing the European Refugee Fund for the period 2008-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63(2)(b) thereof,

Having regard to the proposal from the Commission[13],

Having regard to the opinion of the European Economic and Social Committee[14],

Having regard to the opinion of the Committee of the Regions[15]

Acting in accordance with the procedure laid down in Article 251 of the Treaty[16],

Whereas:

(1) With a view to the progressive establishment of an area of freedom, security and justice, the Treaty establishing the European Community provides both for the adoption of measures aimed at ensuring the free movement of persons, in conjunction with flanking measures relating to external borders controls, asylum and immigration, and for the adoption of measures relating to asylum, immigration and safeguarding the rights of third country nationals.

(2) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, reaffirmed its resolve to create an area of freedom, security and justice. For that purpose, a common European policy on asylum and migration should aim both at fair treatment of third country nationals and better management of migration flows. A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union.

(3) Implementation of this policy should be based on solidarity between Member States and requires the existence of mechanisms to promote a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons. To that end, a European Refugee Fund was established for the period 2000-2004 by Decision 2000/596/EC[17]. This decision was replaced by Council Decision 2004/904/EC of 2 December 2004 establishing the European Refugee Fund for the period 2005 to 2010[18]. This ensured continued solidarity between Member States in the light of recently adopted Community legislation in the field of asylum, taking account of the experience acquired when implementing the Fund for the period 2000-2004.

(4) In light of the Commission proposals establishing the Fund for the Integration of legally staying third country nationals, the Fund for the return of illegally staying third country nationals (hereafter ‘Return Fund’) and the external borders Fund for the period 2007-2013, as part of the general programme ‘Solidarity and Management of Migration Flows’, in particular in view of setting out common management, control and evaluation arrangements, a new European Refugee Fund should be established.

(5) It is necessary to adapt the duration of the Fund to the duration of the multiannual financial framework as set out in the Inter-institutional agreement applicable for the period 2008-2013.

(6) This instrument is designed to form part of a coherent framework entitled the General programme ‘Solidarity and Management in Migration Flows’, which aims at addressing the issue of a fair share of responsibilities between Member States as concerns the financial burden arising from the introduction of an integrated management of the Union’s external borders and from the implementation of common policies on asylum and immigration, as developed in accordance with Title IV of the Treaty establishing the European Community.

(7) It is appropriate to support the efforts made by Member States to grant appropriate reception conditions to refugees and displaced persons and to apply fair and effective asylum procedures so as to protect the rights of persons requiring international protection.

(8) The integration of refugees into the society of the country in which they are established is one of the objectives of the Geneva Convention of 28 July 1951 relating to the Status of Refugees, as supplemented by the New York Protocol of 31 January 1967. Such persons must be enabled to share the values set out in the Charter of Fundamental Rights of the European Union. To this end, there should be support for action by Member States to promote their social, economic and cultural integration in so far as it contributes to the economic and social cohesion, the maintenance and strengthening of which is one of the Community’s fundamental objectives provided for by Articles 2 and 3(1)(k) of the Treaty.

(9) Practical support is needed to create or improve conditions enabling refugees and displaced persons to take an informed decision to leave the territory of the Member States and return home, should they so wish, in complementarity with the provisions of the European Return Fund.

(10) A financial reserve should be established for the implementation of emergency measures to provide temporary protection in the event of a mass influx of refugees pursuant to Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [19].

(11) The support provided by the Fund will be more efficient and better targeted if co-financing of eligible actions is based on two multiannual programmes and on an annual work programme drawn up by each Member State taking into account its situation and needs.

(12) It is fair to allocate resources proportionally to the burden borne by each MemberState through its efforts in receiving refugees and displaced persons, including refugees enjoying international protection within the framework of national programmes.

(13) In the context of shared management as referred to in Article 53 (1), point (b) of the Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities[20], the conditions allowing the Commission to exercise its responsibilities for implementation of the general budget of the European Communities should be specified and the obligations for the cooperation of the Member States clarified. Applying these conditions will enable the Commission to satisfy itself that Member States are using the Fund in a lawful and correct manner and in accordance with the principle of sound financial management within the meaning of Article 27 of the Financial Regulation.

(14) The Commission should establish the indicative breakdown of available commitment appropriations using an objective and transparent method.

(15) Under technical assistance, the Fund should provide support for evaluations, improvement of administrative capacity linked to the management of the Fund, studies, pilot projects and exchanges of experience intended, in particular, to encourage innovative approaches and practices.

(16) Member States should adopt adequate measures to guarantee the proper functioning of the management and control system. To this end, it is necessary to establish general principles and necessary functions which all programmes shall fulfil.

(17) It is necessary to provide for the designation of a single responsible authority for the management of the Fund’s interventions in each Member State and to clarify its responsibilities. Designation and the functions of the audit authority should be also be foreseen. In addition, in order to guarantee uniform quality standards concerning the certification of expenditures before their transmission to the Commission and to clarify the nature and quality of the information on which declarations of expenditure are based it is necessary to provide for the designation of the certification authority.

(18) In accordance with the principles of subsidiarity and proportionality, Member States have the primary responsibility for the implementation and control of the interventions.

(19) The obligations on the Member States as regards management and control systems, the certification of expenditure, and the prevention, detection and correction of irregularities and infringements of Community law should be specified to guarantee efficient and correct implementation of their multiannual and annual programmes. In particular, as far as management and control are concerned , it is necessary to establish the modalities by which Member States ensure that the systems are in place and function satisfactorily.

(20) Without prejudice to the Commission’s powers as regards financial control, cooperation between the Member States and the Commission in this field should be increased and the criteria should be established which allow the Commission to determine, in the context of its strategy of control of national systems, the level of assurance it can obtain from national audit bodies.

(21) The effectiveness and impact of actions supported by the Fund also depend on their evaluation. The responsibilities of the Member States and the Commission in this regard, and arrangements to ensure the reliability of evaluation, should be formalised.

(22) Actions should be evaluated with a view to a mid-term review and impact assessment, and the evaluation process should be incorporated into project monitoring arrangements.

(23) This Decision establishes a financial framework for the entire duration of the programme, which is to be the principal point of reference for the budgetary authority within the meaning of point 33 of the interinstitutional agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure[21].

(24) Since the objective of this Decision, namely to promote a balance of effort between Member States in receiving refugees and displaced persons, cannot be sufficiently achieved by the Member States and can therefore by reason of the scale and effects of the action be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Decision does not go beyond what is necessary to achieve this objective.

(25) The measures necessary for the implementation of this Decision should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.[22]

(26) 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 is not taking part in the adoption of this Decision and is not bound by it nor subject to its application,

HAVE ADOPTED THIS DECISION:

CHAPTER I SUBJECT-MATTER, OBJECTIVES AND ACTIONS

Article 1

Subject matter and scope

This decision establishes for the period from 1 January 2008 to 31 December 2013 the European Refugee Fund, hereinafter referred to as « The Fund », as part of the general programme "Solidarity and Management of Migration Flows" , in order to contribute to the strengthening of the area of Freedom, Security and Justice.

This decision defines the objectives to which the Fund contributes, its implementation, the available financial resources and the distribution criteria for the allocation of the available financial resources. .

It establishes the Fund’s management rules, including financial ones as well as monitoring and control mechanisms based on a share of responsibilities between the Commission and the Member States.

Article 2

General Objectives of the Fund

1. The general objective of the Fund shall be to support and encourage the efforts made by the Member States in receiving and bearing the consequences of receiving refugees and displaced persons, taking account of Community legislation in these matters by co-financing the actions provided for by this Decision.

2. The Fund shall contribute to the financing of the technical assistance on the initiative of the Member States or the Commission.

Article 3

Eligible actions in the Member States

1. The Fund shall support actions in Member States relating to one or more of the following:

1. reception conditions and asylum procedures;

2. integration of persons referred to in Article 6 whose stay in the Member State is of a lasting and stable nature;

3. voluntary return of persons referred to in Article 6 (1), (2) and (4), provided they have not acquired a new nationality, and of persons referred to in Article 6 (3), provided they have not received a negative decision further to their request for international protection.

2. As regards reception conditions and asylum procedures, eligible actions shall include the following:

4. accommodation infrastructure or services;

5. provision of material aid and medical or psychological care;

6. social assistance, information or help with administrative formalities;

7. legal aid and language assistance;

8. education, language training and other initiatives which are consistent with the status of the person;

9. the provision of support services such as translation and training to help improve reception conditions and the efficiency and quality of asylum procedures;

10. information for local communities who will be interacting with those being received in the host country.

3. As regards integration into Member States' society of persons referred to in Article 6and members of their family, eligible actions shall include the following :

11. advice and assistance in areas such as housing, means of subsistence, integration into the labour market, medical, psychological and social care;

12. actions enabling recipients to adapt to the society of the Member State in socio-cultural terms, and to share the values enshrined in the Charter of Fundamental Rights of the European Union;

13. actions to promote durable and sustainable participation in civil and cultural life;

14. measures focusing on education, vocational training, recognition of qualifications and diplomas;

15. actions designed to promote self-empowerment and to enable these persons to provide for themselves;

16. actions that promote meaningful contact and constructive dialogue between these persons and the receiving society, including actions which promote the involvement of key partners such as the general public, local authorities, refugee associations, voluntary groups, social partners and the broader civil society;

17. measures to support the acquisition of skills by these persons, including language training;

18. actions that promote both equality of access and equality of outcomes in relation to these persons' dealings with public institutions.

4. As regards actions relating to voluntary return, the following, in particular, shall be eligible for support from the Fund:

19. information and advisory services concerning voluntary return initiatives or programmes;

20. information on the situation in the country or region of origin or former habitual residence;

21. general or vocational training and help with reintegration;

22. action by communities of origin resident in the European Union to facilitate the voluntary return of the persons referred to in this Decision;

23. actions which facilitate the organisation and implementation of national voluntary return programmes.

5. Actions provided for by paragraph 1 to 4 shall, in particular, promote the implementation of the provisions of the relevant Community legislation in the field of the common European asylum system.

6. Actions shall take account of the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

Article 4

Actions of interest to the Community

1. At the Commission's initiative, up to 7% of the Fund's available resources may be used to finance transnational actions or actions of interest to the Community as a whole (“Community actions”) concerning asylum policy and measures applicable to the target groups referred to in Article 6.

2. To be eligible for funding, Community actions shall in particular:

24. further Community cooperation in implementing Community law and good practices;

25. support the setting-up of transnational cooperation networks and pilot projects based on transnational partnerships between bodies located in two or more Member States designed to stimulate innovation, facilitate exchanges of experience and good practice and improve the quality of return policy;

26. support transnational awareness-raising campaigns;

27. support studies, dissemination and exchange of information on best practices and all other aspects of the Fund, including on the use of state of the art technology;

28. support pilot projects and studies exploring the possibility of new forms of Community cooperation and Community law in this area;

29. support development of statistical tools, methods and common indicators.

3. The annual work programme laying down the priorities for Community actions shall be adopted in accordance with the procedure referred to in Article 51(2).

Article 5

Emergency Measures

1. In the event of temporary protection mechanisms within the meaning of Directive 2001/55/EC being implemented, the Fund shall also finance measures to help the Member States, such measures being separate from, and in addition to, the actions referred to in Article 3.

2. Eligible emergency measures shall concern the following types of action:

30. reception and accommodation;

31. provision of means of subsistence, including food and clothing;

32. medical, psychological or other assistance;

33. staff and administration costs linked to the reception of persons concerned and implementation of measures;

34. logistical and transport costs.

Article 6

Target Groups

1. For the purposes of this Decision the target groups shall comprise the following categories:

35. any third-country national or stateless person having the status defined by the Geneva Convention of 28 July 1951 relating to the Status of Refugees and the 1967 protocol thereto and who is permitted to reside as refugee in one of the Member States;

36. any third-country national or stateless person enjoying a form of subsidiary protection within the meaning of Council Directive 2004/83/EC[23];

37. any third-country national or stateless person who has applied for one of the forms of protection described in points 1 and 2;

38. any third-country national or stateless person enjoying temporary protection within the meaning of Directive 2001/55/EC.

2. Third country national means any person who is not a Union citizen within the meaning of Article 17(1) of the Treaty.

CHAPTER II PRINCIPLES OF ASSISTANCE

Article 7

Complementarity, consistency and compliance

1. The Fund shall provide assistance which complements national, regional and local actions, integrating into them the priorities of the Community.

2. The Commission and the Member States shall ensure that assistance from the Fund and the Member States is consistent with the activities, policies and priorities of the Community. This consistency shall be indicated in particular in the multiannual programme referred to in Article 19.

3. Operations financed by the Fund shall comply with the provisions of the Treaty and of acts adopted under them.

Article 8

Programming

1. The objectives of the Fund shall be pursued in the framework of two multiannual programming periods (2008-2010 and 2011-2013). The multiannual programming system shall include the priorities and a process of management, decision making, auditing and certification.

2. The multiannual programmes adopted by the Commission shall be implemented by means of annual programmes.

Article 9

Subsidiary and proportional intervention

1. Implementation of multiannual and annual programmes referred to in Articles 19 and 21 shall be the responsibility of Member States at the appropriate territorial level, in accordance with the institutional system specific to each Member State. This responsibility shall be exercised in accordance with this Decision.

2. The means employed by the Commission and the Member States shall vary according to the size of the Community contribution in relation to audit provisions. Differentiation shall also apply to provisions on evaluation and to the reports on multiannual and annual programmes.

Article 10

Implementation methods

1. The Community budget allocated to the Fund shall be implemented in accordance with Article 53 (1), point (b) of Council Regulation (EC, Euratom) No 1605/2002, with the exception of the Community Actions referred to in Article 4 and the technical assistance referred to in Article 16.

The Member States and the Commission shall ensure compliance with the principle of sound financial management.

2. The Commission exercises its responsibility for implementing the general budget of the European Communities by:

a) checking the existence and proper functioning of management and control systems in the Member States in accordance with the procedures described in Article 32;

b) interrupting or suspending all or part of payments in accordance with Articles 41 and 42 if the national management and control systems fail, and by applying any other financial correction required, in accordance with the procedures described in Articles 45 and 46.

Article 11

Additionality

1. Contributions from the Fund shall not replace public or equivalent expenditure by a Member State.

2. The Commission shall, in cooperation with each Member State, verify additionality mid-term by 31 December 2012 and ex-post by 31 December 2015.

Article 12

Partnership

1. Each Member State shall organise, in accordance with current national rules and practices, a partnership with the authorities and bodies which it designates, namely:

a) the competent regional, local, urban and other public authorities;

b) any other appropriate body representing civil society, non-governmental organisations, including the social partners.

Each Member State shall ensure broad and effective involvement of all the appropriate bodies, in accordance with national rules and practices.

2. The partnership shall be conducted in full compliance with the respective institutional, legal and financial jurisdiction of each partner category.

The partnership shall cover preparation, implementation, monitoring and evaluation of the multiannual programmes.

CHAPTER III FINANCIAL FRAMEWORK

Article 13

Global resources

1. The financial reference amount for the implementation of the Fund from 1 January 2008 to 31 December 2013 shall be EUR 1.112,7 million.

2. The annual appropriations for the Fund shall be authorised by the budgetary authority within the limits of the financial perspectives.

3. The Commission shall make indicative annual breakdowns by Member States in accordance with the criteria established in Article 14.

Article 14

Annual distribution of resources for eligible actions in the Member States

1. Each Member State shall receive a fixed amount of EUR 300.000 from the Fund's annual allocation.

This amount shall be fixed at EUR 500.000 per annum for the period 2008-2013 for the states which acceded to the European Union on 1 May 2004.

This amount shall be fixed at EUR 500.000 per annum for Member States which will accede to the European Union in the period 2008 – 2013 for the remaining part of the period 2008 - 2013 from the year following their accession.

2. The remainder of the available annual resources shall be broken down between the Member States as follows:

39. 30% in proportion to the number of persons admitted in one of the categories referred to in Articles 6 (1) and (2) over the previous three years ;

40. 70 % in proportion to the number of persons referred to in Article 6 (3) and (4) registered over the previous three years.

3. The reference figures shall be the latest statistics produced by the Statistical Office of the European Communities in accordance with Community law on the collection and analysis of asylum data.

4. Where the statistics referred to in paragraph 3 are not available, Member States shall provide the necessary figures.

Article 15

Financing structure

1. The Fund’s financial contribution shall take the form of grants.

2. Actions supported by the Fund shall be co-financed by public or private sources, shall be of a non-profit nature and shall not be eligible for funding from other sources covered by the general budget of the European Communities.

3. Fund appropriations shall be complementary to public or equivalent expenditure allocated by Member States to the measures covered by this Decision.

4. The Community contribution to supported projects, as regards actions implemented in the Member States under Article 3 shall not exceed 50% of the total cost of a specific action.

This may be increased to 60% for projects addressing specific priorities identified in the Commission multiannual guidelines as defined in Article 18.

This shall be increased to 75% in the Member States covered by the Cohesion Fund.

5. As a general rule, Community financial aid granted for actions supported by the Fund shall be given for a period of no more than three years, subject to periodic progress reports.

Article 16

Technical assistance at the initiative of the Commission

1. At the initiative of and/or on behalf of the Commission, the Fund may finance the preparatory measures, monitoring, administrative and technical support measures, as well as evaluation, audit and inspection measures necessary for implementing this Decision, within the limits of 0,20% of the Fund’s annual allocation.

2. Those actions shall include:

41. studies, evaluations, expert reports and statistics, including those of a general nature concerning the operation of the Fund;

42. measures aimed at the partners, the beneficiaries of assistance from the Fund and the general public, in particular information measures;

43. the installation, operation and interconnection of computerised systems for management, monitoring, inspection and evaluation;

44. improvements in evaluation methods and the exchange of information on practices in this field.

Article 17

Technical assistance of the Member states

1. At the initiative of the Member State in question, for each annual programme, the Fund may finance preparatory measures, management, monitoring, evaluation, information and control measures, as well as measures for the reinforcement of the administrative capacity for the implementation of the Fund.

2. The annual amount set aside for technical assistance may not exceed 4 % of the total annual amount of co-financing allocated to the Member State, plus EUR 30 000.

CHAPTER IV PROGRAMMING

Article 18

Adoption of strategic guidelines

1. For each multiannual programme, the Commission shall adopt strategic guidelines setting out a framework for the intervention of the Fund, taking into account the progress in development and implementation of Community legislation in the area of asylum policy as well as the indicative distribution of the financial resources of the Fund for the period of the multiannual programme.

2. For each of the objectives of the Fund, those guidelines shall in particular give effect to the priorities of the Community with a view to promoting the implementation of the Common European Asylum System.

3. The Commission shall adopt the strategic guidelines relating to the first multiannual programming period (2008-2010) on 31 March 2007 at the latest, and those relating to the second multiannual programming period (2011-2013) on 31 March 2010 at the latest.

4. The strategic guidelines shall be adopted in accordance with the procedure referred to in Article 52(2).

Article 19

Preparation and approval of national multiannual programmes

1. Each Member State shall for each programming period and on the basis of the strategic guidelines referred to in Article 18 propose a draft multiannual programme which shall include the following elements:

45. a description of the current situation in the Member State as regards arrangements for reception, asylum procedures, integration and voluntary return of the persons covered by Article 6;

46. an analysis of requirements in the Member State in question in terms of reception, asylum procedures, integration and voluntary return and an indication of operational objectives designed to meet these requirements during the period covered by the multiannual programme;

47. presentation of an appropriate strategy to achieve these objectives and the priorities attached to their attainment, and a description of the actions envisaged to implement these priorities;

48. indication of whether this strategy is compatible with other regional, national and Community instruments;

49. information on the priorities and their specific targets. Those targets shall be quantified using a limited number of indicators for implementation, results and impact, taking into account the proportionality principle. The indicators must make it possible to measure the progress in relation to the baseline situation and the effectiveness of the targets implementing the priorities;

50. a draft financing plan which sets out, for each priority and each year, the Fund’s proposed financial contribution and the overall amount of public or private co-financing;

51. implementing provisions for the multiannual programme, including:

52. designation by the Member State of all the entities stipulated in Article 25;

53. a description of the implementation, monitoring, control and evaluation systems;

54. a definition of the procedures for the mobilisation and circulation of financial flows in order to ensure their transparency;

55. the provisions laid down to ensure that the multiannual programme is publicised;

2. The Member States shall establish each multiannual programme in close cooperation with the partners referred to in Article 12.

3. Member States shall submit their draft multiannual programme no later than four months after the Commission has provided the strategic guidelines for the period in question.

4. The Commission shall appraise the proposed multiannual programme in light of:

56. its consistency with the objectives of the Fund and the strategic guidelines defined in Article 18,

57. the relevance, appropriateness and expected results of the strategy and operational priority themes proposed by the Member State;

58. the compliance of the management and control arrangements set up by the Member State for the implementation of the Fund’s interventions with the provisions set out in this Decision;

59. its compliance with Community law and in particular with Community law aiming at ensuring the free movement of persons in conjunction with the directly related flanking measures with respect to external borders controls, asylum and immigration.

5. Where the Commission considers that a multiannual programme is inconsistent with the strategic guidelines or does not comply with the provisions of this decision setting out management and control arrangements, it shall request the Member State to revise the proposed programme accordingly.

6. The Commission shall adopt each multiannual programme within four months following its formal submission, in accordance with the procedure referred to inArticle 52(2).

Article 20

Revision of multiannual programmes

1. At the initiative of the Member State in question or the Commission, multiannual programme shall be re-examined and, if necessary, revised for the rest of the programming period in order to take greater or different account of the Community priorities, particularly in the light of Council conclusions. Multiannual programmes may be re-examined in the light of evaluations and / or following implementation difficulties.

2. The Commission shall adopt a decision on the revision of the multiannual programme as soon as possible after the formal submission of a request by the Member State concerned.

Article 21

Annual programmes

1. The multiannual programmes adopted by the Commission shall be implemented by means of annual work programmes.

2. The Commission shall provide the Member States, no later than 1 July of each year, with an estimate of the amounts to be allocated to them for the following year from the total appropriations allocated under the annual budgetary procedure, calculated as provided by Article 14.

3. The Member States shall submit to the Commission, no later than 1 November of each year, a draft annual programme for the following year, established in accordance with the multiannual programme and including :

60. the general rules for selection of projects to be financed under the annual programme;

61. a description of the tasks to be carried out by the responsible authority when implementing the annual programme;

62. the proposed financial breakdown of the Fund’s contribution between the programme’s various actions and an indication of the amount requested to cover technical assistance under Article 17 for the purpose of implementing the annual programme.

4. When examining the Member State’s proposal, the Commission shall take account of the final amount of the appropriations allocated to the Fund under the budgetary procedure and shall adopt the decision on co-financing from the Fund no later than 1 March of the year in question. The decision shall indicate the amount allocated to the Member State and the period for which the expenditure is eligible.

Article 22

Special provisions concerning emergency measures

1. Member States shall provide the Commission with a statement of requirements and an implementation plan for the emergency measures provided for by Article 5, including a description of the planned measures and the bodies responsible for implementing them.

2. Financial assistance from the Fund for the emergency measures provided for by Article 5 shall be limited to a period of six months and shall not exceed 80 % of the cost of each measure.

3. Available resources shall be distributed among the Member States on the basis of the number of persons benefiting from temporary protection in each Member State as referred to in Article 5(1).

CHAPTER V MANAGEMENT AND CONTROL SYSTEMS

Article 23

Implementation

The Commission shall be responsible for implementing this Decision and shall adopt such implementing rules as may be necessary.

Article 24

General Principles in the management and control systems

The management and control systems of multiannual programmes set up by Member States shall provide for:

63. a clear definition of the functions of the bodies and / or departments concerned in management and control and a clear allocation of functions within each body;

64. a clear separation of functions between bodies and departments concerned in management, certification of expenditure and control and between those functions within each body;

65. adequate resources for each body and / or department to carry out the functions which have been allocated to it throughout the period of implementation of actions financed by the Fund;

66. effective internal control arrangements of the responsible authority and any delegated authority;

67. reliable accounting, monitoring and financial reporting systems in computerised form;

68. effective system of reporting and monitoring where the performance of tasks is delegated;

69. detailed manuals of procedures in relation to the functions to be performed;

70. effective arrangements for the audit of the functioning of the system;

71. systems and procedures to ensure a sufficient audit trail;

72. procedures concerning the reporting and the monitoring of irregularities and the recover of amounts unduly paid.

Article 25

Designation of authorities

1. For each multiannual programme the Member State shall designate the following :

73. a responsible authority : a functional body of the Member State or national public authority or body designated by the Member State, which shall be responsible for the management of multi-annual and annual programmes supported by the Fund and shall handle all communication with the Commission ;

74. a certifying authority: national public authority or body operationally independent of any authorising department of the responsible authority, designated by the Member State to certify declarations of expenditure and applications for payment before they are sent to the Commission;

75. an audit authority: national public authority or body operationally independent of the responsible authority designated by the Member State and responsible for verifying the sound operation of the management and control system;

76. where appropriate, a delegated authority;

77. a compliance assessment body which shall be designated at the time of submission to the Commission of each draft multiannual programme. The Commission may accept the designated audit authority as the compliance assessment body where it has the necessary capacity and operational independence. It must carry out its work according to the international audit standards.

2. The Member State shall lay down rules governing its relations with those authorities and bodies and their relations with the Commission..

3. Subject to Article 24 (b), control and certification functions may be carried out by the same body or department.

4. The rules for implementing Articles 26 to 30 shall be adopted by the Commission in accordance with the procedure referred to in Article 52(2).

Article 26

Responsible authority

1. The responsible authority may be a body of the Member State itself, a national public authority, as well as a body governed by the private law of the Member State and which has a public-service mission. Where the Member State designates a responsible authority which is not a body of the Member State itself, it shall lay down all the arrangements governing its relations with the said authority and the latter’s relations with the Commission.

2. The responsible authority shall meet the following minimum conditions. It shall:

78. have legal personality, except where it is a functional body of the Member State;

79. have the infrastructure required for easy communication with a wide range of users and with the responsible bodies in the other Member States and the Commission;

80. work in an administrative context allowing it to carry out its tasks correctly and avoiding any conflict of interest;

81. be in a position to apply Community fund management rules;

82. have financial and management capacities proportionate to the volume of Community funds which it will be called upon to manage;

83. have at its disposal personnel with appropriate professional qualifications and language skills for administrative work in an international environment.

3. The Member State shall provide the responsible authority with adequate funding so that it can carry out its tasks properly and uninterruptedly throughout the period 2008-2013.

Article 27

Tasks of the responsible authority

1. The responsible authority shall have responsibility for efficient, effective and correct managing and implementation of the multiannual programme.

It shall in particular:

84. consult relevant partners (non-governmental organisations, local authorities, competent international organisations, social partners etc.) through the partnership established in Article 12;

85. submit to the Commission proposals for multiannual and annual programmes defined in Articles 19 and 21;

86. organise and advertise calls for tenders and proposals;

87. organise selection and award procedures for Fund co-financing in accordance with the principles of transparency, equal treatment and non-combination of grants;

88. receive payments made by the Commission, and make payments to the beneficiaries;

89. ensure consistency and complementarity between co-financing under the Fund and from other relevant national and Community financial instruments;

90. verify the delivery of the co-financed products and services and that the expenditure declared for actions has actually been incurred and complies with Community and national rules;

91. ensure that there is a system for recording and storing in computerised form detailed accounting records of each action under the annual programmes and that the data on implementation necessary for financial management, monitoring, control and evaluation is collected;

92. ensure that beneficiaries and other bodies involved in the implementation of actions cofinanced by the Fund maintain either a separate accounting system or an adequate accounting code for all transactions relating to the operation;

93. ensure that the evaluations of multiannual programmes referred to in Article 49 are carried out within the time limits laid down in this Decision and meet the quality standards agreed between the Commission and the Member State;

94. set up procedures to ensure that all documents regarding expenditure and audits required to ensure an adequate audit trail are held in accordance with the requirements referred to in Article 43;

95. ensure that the audit authority receives, for the purposes of carrying out the audits defined in Article 29(1) all necessary information on management procedures operated and the projects co-financed by the Fund;

96. ensure that the certifying authority receives all necessary information on the procedures and audits carried out in relation to expenditure for the purpose of certification;

97. draw up and submit to the Commission reports, statements of expenditure certified by the certifying authority and applications for payment ;

98. carry out information and advisory activities; and disseminate results of supported actions;

99. cooperate with the Commission and the responsible authorities in the other Member States.

2. The responsible authority’s management activities for projects implemented in the Member States can be financed under the technical assistance arrangements referred to in Article 17.

Article 28

Delegation of tasks by the responsible authority

3. Where all or some of the responsible authority's tasks are delegated to a delegated authority, the responsible authority shall define the scope of the tasks delegated, and set out detailed procedures for the implementation of the delegated tasks, which shall comply with the conditions laid down in Article 26.

4. These procedures shall include supplying the responsible authority with regular information on the effective performance of the delegated tasks and a description of the means employed.

Article 29

Certifying authority

1. The certifying authority of a multiannual programme shall:

100. certify that:

101. the statement of expenditure is accurate, results from reliable accounting systems and is based on verifiable supporting documents,

102. the expenditure declared complies with applicable Community and national rules and has been incurred in respect of actions selected in accordance with the criteria applicable to the programme and complying with Community and national rules;

103. ensure for the purposes of certification that it has received adequate information from the Responsible Authority on the procedures and audits carried out in relation to expenditure included in statements of expenditure;

104. take account for the purposes of certification of the results of all audits carried out by or under the responsibility of the audit authority;

105. maintain accounting records in computerised form of expenditure declared to the Commission;

106. ensure the recovery of any Community financing found to have been unduly paid as a result of irregularities detected, together with interest where appropriate, keeping an account of amounts recoverable and repaying amounts recovered to the Commission, where possible by deducting them from the next statement of expenditure.

2. The certifying authority’s activities relating to projects implemented in the Member States can be financed under the technical assistance arrangements referred to in Article 17, provided that the prerogatives of this authority as described in Article 25 are respected.

Article 30

Audit authority

1. The audit authority of a multiannual programme shall :

107. ensure that audits are carried out in accordance with international audit standards to verify the effective operation of the management and control system of the multiannual programme;

108. ensure that audits are carried out on actions on the basis of an appropriate sample to verify expenditure declared; the sample shall represent at least 10% of the total eligible expenditure for each annual programme;

109. present to the Commission within six months of the approval of the multiannual programme an audit strategy covering the bodies which will perform the audits referred to under points (a) and (b), the method to be used, the sampling method for audits on actions supported by the Fund and the indicative planning of audits to ensure that the main beneficiaries of co-financing by the Fund are audited and that audits are spread evenly throughout the programming period.

2. Where the designated audit authority under this decision is also the designated audit authority under Decisions….., …… and ………… [24], or where common systems apply to two or more of these Funds, a single combined audit strategy may be submitted under point (c).

3. The audit authority shall draft a final report on the implementation of the annual programmes as defined in Article 50(2), which shall comprise:

110. an annual audit report setting out the findings of the audits carried out in accordance with the audit strategy in respect of the annual programme reporting any shortcomings found in the systems for the management and control of the programme.

111. an opinion as to whether the management and control system has functioned effectively to give a reasonable assurance on the correctness of the statements of expenditure presented to the Commission and the legality and regularity of the underlying transactions.

112. a declaration assessing the validity of the application for payment of the final balance and the legality and regularity of the underlying transactions covered by the final statement of expenditure.

4. Where the audits referred to in paragraph 1 are carried out by a body other than the audit authority, the audit authority shall ensure that such bodies have the necessary operational independence and that the work is performed according to internationally accepted audit standards.

5. The activities of the audit authority or of the body referred to in paragraph 4 relating to projects implemented in the Member States can be financed under the technical assistance arrangements referred to in Article 17, provided that the prerogatives of this authority as described in Article 25 are respected.

CHAPTER VI CONTROLS

Article 31

Responsibilities of the Member States

1. Member States shall be responsible for ensuring sound financial management of multiannual and annual programmes and the legality and regularity of underlying transactions.

2. They shall ensure that responsible authorities and any delegated authority, certifying authorities, audit authorities and any other bodies concerned receive adequate guidance on setting up the management and control systems referred to in Articles 24 to 30 to ensure that Community financing is used efficiently and correctly.

3. The Member States shall prevent, detect and correct irregularities. They shall notify these to the Commission, and keep the Commission informed of the progress in the administrative and legal proceedings.

When amounts unduly paid to a beneficiary cannot be recovered, the Member State is responsible for reimbursing the amounts lost to the budget of the European Communities.

4. Member States shall be primarily responsible for the financial control of actions and shall ensure that management systems and audits are implemented in such a way as to guarantee that Community funds are used properly and effectively. They shall provide the Commission with a description of these systems.

5. Member States shall cooperate with the Commission for the collection of the statistics needed for the implementation of Article 14.

6. The detailed rules for implementing paragraphs 1 to 5 shall be adopted in accordance with the procedure referred to in Article 52(2).

Article 32

Management and control systems

1. Prior to the adoption of a multiannual programme, the Member States shall ensure that management and control systems have been set up in accordance with Articles 24 to 30. They shall be responsible for ensuring that the systems function effectively throughout the programming period.

2. Member States shall submit to the Commission, together with each draft multiannual programme, a description of the organisation and procedures of the responsible authorities, delegated authorities and certifying authorities, and the internal audit systems operating in those authorities and bodies, the audit authority, and any other bodies carrying out audits under its responsibility.

3. Within three months of the submission to the Commission of each draft multiannual programme, Member States shall submit a report established by the compliance assessment body setting out the results of an assessment of the systems and giving an opinion on their compliance with Articles 24 to 30. In the event that the opinion contains reservations, the report shall indicate the shortcomings and their seriousness. Member States shall draw up, in agreement with the Commission, a plan setting out the corrective measures to be taken and the timetable for their implementation.

4. The detailed rules for implementing paragraphs 1 to 3 shall be adopted in accordance with the procedure referred to in Article 52(2).

Article 33

Responsibilities of the Commission

1. The Commission shall satisfy itself in accordance with the procedure laid down in Article 31 that Member States have set up management and control systems that comply with Articles 24 to 30, and on the basis of the annual audit reports and its own audits that the systems function effectively during the period of implementation of the multiannual programmes.

2. Without prejudice to audits carried out by Member States, Commission officials or authorised Commission representatives may carry out on-the-spot audits to verify the effective operation of the management and control systems, which may include audits on actions included in the annual programmes, with a minimum of one working day’s notice. Officials or authorised representatives of the Member State concerned may take part in such audits.

3. The Commission may require Member States to carry out an on-the-spot checks to verify the correct functioning of the systems or the correctness of one or more transactions. Commission officials or authorised Commission representatives may take part in such audits.

4. The Commission shall, in cooperation with the Member States, ensure that appropriate information, publicity and follow-up are provided for actions supported by the Fund.

5. The Commission shall, in cooperation with the Member States, ensure that actions are consistent with, and complementary to, other relevant Community policies, instruments and initiatives.

Article 34

Cooperation with the control bodies of the Member States

1. The Commission shall cooperate with the audit authorities of multiannual programmes to coordinate their respective control plans and audit methods and shall immediately exchange the results of audits carried out on management and control systems in order to make the best possible use of control resources and to avoid unjustified duplication of work.

The Commission shall provide its comments on the audit strategy presented under Article 30 not later than three months or at the first meeting following its reception.

2. In determining its own audit strategy, the Commission shall identify those multiannual programmes

113. which comply with the system established under Article 32 without reservations or for which reservations have been withdrawn following corrective measures; and

114. for which the audit strategy of the audit authority under Article 29 is satisfactory and where reasonable assurance has been obtained that the management and control systems function effectively on the basis of the results of audits by the Commission and the Member State.

For those programmes, the Commission may inform the Member States concerned that it will rely principally on the opinion of the audit authority as to the correctness, legality and regularity of expenditure declared and will carry out its own on-the-spot audits only in exceptional circumstances.

CHAPTER VII FINANCIAL MANAGEMENT

Article 35

Eligibility – declarations of expenditure

1. All declarations of expenditure shall include the amount of expenditure incurred by beneficiaries in implementing the actions and the corresponding contribution from public or private funds.

2. Expenditure shall correspond to the payments effected by the beneficiaries. It shall be justified by receipted invoices or accounting documents of equivalent evidential value.

3. Expenditure may be considered eligible for support from the Fund only if it is actually paid no earlier than 1 January of the year referred to in the Commission decision on co-financing indicated in Article 21(4). The co-financed actions must not have been completed before the starting date for eligibility.

4. The following expenditure shall not be eligible for a contribution from the Fund:

- VAT;

- interest on debt;

- the purchase of land for an amount exceeding 10% of the total eligible expenditure for the operation concerned;

- housing.

5. The rules governing eligibility of expenditure within the framework of actions implemented co-financed by the Fund in the Member States under Article 3 shall be adopted in accordance with the procedure provided for by Article 52(2).

Article 36

Wholeness of payment to beneficiaries

Member States shall satisfy themselves that the responsible authority ensures that the beneficiaries receive the total amount of the contribution from public funds as quickly as possible. No amounts shall be deducted or withheld, nor any further specific charge or other charge with equivalent effect shall be levied that would reduce these amounts for the beneficiaries.

Article 37

Use of the euro

All amounts mentioned in the financing decisions by the Commission, in the commitments and payments made by the Commission as well as the amounts of certified expenditure and requests for payment from the Member States shall be expressed and carried out in euro.

Article 38

Commitments

Community budgetary commitments shall be made annually on the basis of the Commission decision on co-financing referred to in Article 21(4).

Article 39

Payments - Prefinancing

1. Payments by the Commission of the contribution from the Funds shall be made in accordance with the budget commitments.

2. Payments shall take the form of pre-financing and payment of the balance. They shall be made to the responsible authority designated by the Member State.

3. A pre-financing payment representing 50% of the amount allocated in the Commission’s annual decision on co-financing by the Fund shall be made to the Member State within sixty days following the adoption of the co-financing decision.

4. A second pre-financing payment shall be made no more than three months after the Commission has approved a progress report on implementation of the annual programme and a certified declaration of expenditure drawn up in accordance with Articles 29, point (a) and 35 accounting for at least 70% of the amount of the initial payment.