EN Official Journal of the European Union C 101/1

OPINION No 2/2007

on the draft Council Regulation amending the Financial Regulation applicable to the ninth European Development Fund

(pursuant to Article 248(4) second subparagraph, EC Treaty)

(2007/C 101/01)

THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in particular Article 248(4) thereof,

Having regard to the Partnership Agreement between the ACP States and the European Community and its Member States signed in Cotonou (Benin) on 23 June 2000 (1), hereinafter referred to as the ‘ACP-EC Partnership Agreement’, as revised by the Agreement signed in Luxembourg on 25 June 2005 (2),

Having regard to Decision No 5/2005 of the ACP-EC Council of Ministers of 25 June 2005 on transitional measures applicable from the date of signing to the date of entry into force of the revised ACP-EC Partnership Agreement (3),

Having regard to Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (4),

Having regard to the Internal Agreement between Representatives of the Governments of the Member States, meeting within the Council, on the Financing and Administration of Community Aid under the Financial Protocol to the ACP-EC Partnership Agreement and the allocation of financial assistance for the overseas countries and territories to which part IV of the EC Treaty applies (5),

Having regard to the Financial Regulation of 27 March 2003 applicable to the ninth European Development Fund (EDF) (6),

Having regard to the Court's Opinion No 12/2002 on the proposal for a Council regulation on a Financial Regulation applicable to the ninth European Development Fund under the ACP-EC Partnership Agreement signed at Cotonou on 23 June 2000 (7),

Having regard to Decision No 2/2002 of the ACP-EC Council of Ministers of 7 October 2002 regarding the implementation of Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement (8),

Having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (9), hereinafter referred to as the ‘General Financial Regulation’, as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (10),

Having regard to the Court's Opinion No 4/2006 on the draft Council Regulation amending Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (11),

Having regard to the Commission's proposal for a Council Regulation amending the Financial Regulation applicable to the ninth EDF of 27 November 2006 (12),

Having regard to the Council's request for an opinion on that proposal sent to the Court on 15 January 2007,

HAS ADOPTED THE FOLLOWING OPINION:

1. As the explanatory memorandum indicates, the proposal for a Regulation amending the Financial Regulation applicable to the ninth EDF aims at transposing a limited number of amendments made to the recently revised General Financial Regulation.

2. The proposed amendments are mainly intended to: (a) make it possible to entrust implementation tasks to national public-sector bodies in the Member States where management has been decentralised: — they allow indirect implementation in cases of decentralised management (proposed amendment to Article 14), — they allow the delegation of tasks to bodies in the Member States in cases of decentralised management (proposed amendment to Article 13), — they confer to the relevant Authorising Officer at the Commission the responsibility for endorsing contracts and estimates in cases of decentralised management (proposed amendment to Articles 54(3), 80(4) and 80(5)), (b) anticipate the envisaged amendments to Annex IV of the revised Cotonou Agreement, by deleting references to specific articles of Annex IV (amendments to Articles 74, 76 to 78).

3. The proposal fails to justify why the proposed changes are ‘considered necessary and urgent in order to facilitate the implementation of the ninth EDF’. In particular, the recitals of the proposal do not make any reference to the reasons why it is considered necessary to allow implementation tasks to be entrusted to national public-sector bodies in the Member States at this stage of implementation of the ninth EDF.

4. As the proposal indicates, in its second recital the Financial Regulation applicable to the ninth EDF ‘takes into account as a cornerstone’ the General Financial Regulation. For this reason, it is unclear why the proposal does not propose to transpose the relevant amendments that have recently been made to the General Financial Regulation by Regulation (EC, Euratom) No 1995/2006 with a view to strengthening the protection of the financial interests of the Community and reinforcing the principle of accountability, such as: — Article 28a regarding the need for effective and efficient internal control as appropriate in each management mode, — Article 29(2) regarding the publication in the Official Journal of the report on financial management, — Article 60(7) regarding the content of the Authorising Officer's annual activity report clearly setting out the Authorising Officer's responsibility for specifying any reservation he may have on the trueness and fairness of any view formed on the basis of the information presented in the report, — Article 61(1)(e) regarding the Accounting Officer's power to verify compliance with the criteria for the validation of the accounting systems, — Article 61(2a) to (2c) regarding the Accounting Officer's obligation to sign off the accounts, — Article 166(2) regarding the starting date for the implementation period of the financing agreements, the starting date being the date of the corresponding financing agreement and no longer the date of the corresponding financial commitment.

5. In addition, the amendments to Article 143(2) and (5) of the General Financial Regulation regarding the timetable for the transmission of the Court's Statement of Assurance and Annual Report have not been transposed in the presented proposal, leaving the problem of an unrealistic timetable already mentioned in paragraph 3 of the Court's Opinion No 12/2002 unresolved and re-introducing differences between the provisions of the General Budget and the EDF respectively.

6. The Court wishes to draw attention to its Opinion No 12/2002, in which it suggested that the legislator should be innovative and adopt a single Financial Regulation applicable to all present and future EDFs which, like the General Financial Regulation, would be amended whenever there was felt to be a need. A measure of this type would ensure continuity of approach, without the risk of interrupting implementation of the EDFs, and would greatly simplify management. The Court also invited the legislator to produce clear, straightforward legislation concentrating on the provisions that are essential and necessary for the implementation of the EDFs.

This Opinion was adopted by the Court of Auditors in Luxembourg at its meeting of 8 March 2007. For the Court of Auditors Hubert WEBER President

(1) OJ L 317, 15.12.2000, p. 3.

(2) OJ L 287, 28.10.2005, p. 4.

(3) OJ L 287, 28.10.2005.

(4) OJ L 314, 30.11.2001, p. 1 and OJ L 324, 7.12.2001.

(5) OJ L 317, 15.12.2000, p. 355.

(6) OJ L 83, 1.4.2003, p. 1.

(7) OJ C 12, 17.1.2003, p. 19.

(8) OJ L 320, 23.11.2002.

(9) OJ L 248, 16.9.2002.

(10) OJ L 390, 30.12.2006.

(11) OJ C 273, 9.11.2006, p. 2.

(12) COM(2006) 721 final.