Proposal for a Council Regulation laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes
Date: 2000-12-13
Institutions: European Commission
Subjects: EU office or agency, EU programme, legal status, management, project management

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Official Journal of the European Communities

24.4.2001

Proposal for a Council Regulation laying down the statute for executive agencies to be entrusted
with certain tasks in the management of Community programmes

(2001/C 120 E/08)

COM(2000) 788 final (cid:151) 2000/0337(CNS)

(Submitted by the Commission on 14 December 2000)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 308 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1) The Legislative Authority is creating an increasing number
of programmes in a wide range of
fields targeting a
variety of categories of beneficiaries which are operations
provided for in Article 3 of
the Treaty (Community
programmes). The Commission is normally responsible
for adopting measures to implement such programmes.

(2) Implementation of

these Community programmes

is
financed, at least in part, from appropriations entered in
the general budget of the European Union. Under Article
274 of
the Commission is responsible for
executing that budget.

the Treaty,

(3) To enable the Commission to fulfil its proper responsi-
bilities towards the other Institutions and the citizens of
the Union, it must be able to focus primarily on its insti-
tutional missions. It should therefore be able to delegate
relating to the management of
some
Community programmes to third parties. Moreover, exter-
nalising certain management
tasks could be a more
efficient and effective way of achieving the goals of such
Community programmes.

tasks

its

if

(6) One form of externalisation consists in using Community
in their own right

bodies which are legal entities
(executive agencies).

(7) In order to ensure uniformity of executive agencies in
institutional terms, their statute should be laid down by
regulation, and in particular certain essential aspects of
their structure,
tasks, operation, budget system, super-
vision and responsibility.

(8) As

the Institution responsible for

implementing the
the Commission is
various Community programmes,
qualified to assess whether, and to what extent,
is
appropriate to entrust management tasks relating to one
or more specific Community programmes to an executive
agency. Recourse to an executive agency does not relieve
the Commission of its responsibilities under the Treaty,
particularly Article 274.
therefore be able to
closely circumscribe the action of each executive agency
and maintain real control over its operation, particularly
its governing bodies.

It must

it

(9) This means that the Commission must have the power to
decide to create (and, where appropriate, abolish) an
executive agency in accordance with rules laid down by
the legislator. Since the decision to set up an executive
agency is a measure of general scope within the meaning
of Article 2 of Council Decision 1999/468/EC of 28 June
1999 laying down the procedures for the exercise of
implementing powers conferred on the Commission (1),
such decisions should be adopted by use of the regulatory
procedure provided for in Article 5 of that Decision.

(4) Externalisation of management tasks should stay within
the limits set by the institutional system as laid out in
the Treaty. This means that missions assigned to the Insti-
to the
tutions by the Treaty where anything is left
discretion of
Institution concerned and which
involve translating political choices into practice may
not be externalised.

the

(10) The Commission must also be able to appoint both the
the steering committee of each executive
members of
in delegating
to ensure that
agency and its director,
tasks which are its own prerogative to an executive
agency,
thereby relinquish
control of it.

the Commission does not

(5) Externalisation should only be used after assessment of a
number of factors (such as a cost-benefit analysis that
includes the costs for coordination and controls, efficiency
and flexibility in the implementation of externalised tasks,
simplification of the procedures used, proximity of exter-
nalised activities to final beneficiaries, visibility of
the
Community as promoter of the programme concerned,
the need to maintain an adequate level of know-how
inside the Commission).

(11) The activities performed by an executive agency must also
fully comply with the programming that the Commission
defines for the Community programmes which the agency
involved in managing. The agency’s annual work
is
programme must
the
Commission’s approval.

therefore

subject

be

to

(1) OJ L 184, 17.7.1999, p. 23.

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(12) To ensure that externalisation is effective and that full
benefit is drawn from the expertise which an executive
agency can offer, the Commission must be allowed to
delegate to it all or part of the implementing tasks for
one or more Community programmes, except for those
demanding discretionary powers in translating political
into action. Tasks which may be delegated
choices
include managing all or some of
the phases in the
lifetime of
executing the budget,
gathering and processing information to be passed on
to the Commission, and preparing recommendations for
the Commission.

a given project,

(13) Since the budget of an executive agency would be
intended to finance only its operating costs, its revenue
should consist chiefly of a percentage, to be determined
by the Budgetary Authority, of the financial allocation to
the Community programme which the agency is involved
in managing.

of

operating

(14) In order to protect the scope of Article 274 of the Treaty,
the
the Community
appropriations
programmes which an executive agency is involved in
managing must continue to be entered in the general
budget of the European Union and must be implemented
by direct charging to the general budget. The financial
appropriations must
operations
therefore be
in accordance with the
Financial Regulation governing the general budget of the
European Communities.

carried out

relating

these

to

(15) It should also be possible to entrust an executive agency
with tasks relating to the management of programmes
that are financed from sources other than the general
budget of the European Union. In such cases, this Regu-
lation should apply, subject to specific provisions in the
legal bases of the programmes concerned.

(16) The objective of

transparency and reliability in the
management of executive agencies requires that internal
and external checks be made on their operation,
that
agencies be made accountable for their actions and that
the public should have access to the documents they hold,
on terms and within limits similar to those referred to in
Article 255 of the Treaty.

(17) Each executive agency must collaborate intensively and
departments
continuously with
the
responsible for the Community programmes that
is
involved in managing. To facilitate this collaboration as
much as possible, each executive agency should be located
at the place where the Commission departments are sited.

Commission

it

HAS ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation defines the statute of executive agencies to
which the Commission, under its own control and responsi-
bility, may entrust certain tasks relating to the management of
Community programmes.

Article 2

Definitions

For the purposes of this Regulation:

(a) (cid:145)Executive agency(cid:146) means a legal entity established in

accordance with this Regulation,

(b) (cid:145)Community programme(cid:146) means any operation or set of
operations or other
legal
basis or budgetary authorisation requires to be imple-
mented by the Commission for the benefit of one or
more categories of specific beneficiaries, by committing
expenditure.

initiative which the relevant

Article 3

Creation and winding-up of executive agencies

1.
The Commission may decide to set up an executive
agency with a view to entrusting it with certain tasks
relating to the management of one or more Community
programmes. That decision may set the duration of existence
of the agency.

2. Where the Commission considers that it no longer needs
the services of an executive agency which it has created, it may
decide to wind it up.
In such cases, the Commission shall
appoint two liquidators to liquidate the agency. In the same
decision, the Commission shall specify the conditions on which
the executive agency is to be liquidated. The net assets after
liquidation shall be transferred to the general budget of the
European Union.

The Commission shall adopt the decisions referred to in
3.
paragraphs 1 and 2 in accordance with the procedure laid
down in Article 23(2) hereof.

All executive agencies set up under paragraph 1 must

4.
comply with this Regulation.

Article 4

Legal status

(18) The Treaty provides for no powers for the adoption of
this Regulation other than those conferred by Article 308,

An executive agency is a Community body and has a

1.
public service mission.

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An executive agency shall be a legal entity in its own
2.
right. In each of the Member States, it shall enjoy the most
extensive legal capacity accorded to legal entities under
national
in particular, acquire or dispose of
movable and immovable property and be a party to legal
proceedings.

It may,

law.

Article 5

Headquarters

An executive agency shall have its headquarters in one of the
places where the Commission departments are located. It may
decide to set up branch offices, both inside and outside the
territory of the Member States, if this will serve to improve the
performance of
its tasks in implementing the Community
programmes it is called on to manage.

Article 6

Tasks

To attain the object stated in Article 3(1), the Commission may
required to
entrust an executive agency with any tasks
those
implement
demanding
in translating political
choices into action.

a Community programme,
discretionary powers

except

for

In particular, executive agencies may be entrusted with the
following tasks:

(a) drawing up recommendations to the Commission about the

implementation of a Community programme;

(b) managing some or all of

the phases in the lifetime of
specific individual projects in the context of implementing
a Community programme, and carrying out the necessary
checks to that end, by adopting the relevant decisions
where the Commission has empowered it to do so;

(c) adopting budget execution acts concerning both revenue
and expenditure in implementation of a Community
programme, and all other
related actions, where the
Commission has empowered it to do so;

(d) gathering, analysing and passing on to the Commission all
the information needed to guide the implementation of a
Community programme.

Article 7

Structure

An executive agency shall be managed by a steering

1.
committee and a director.

An executive agency’s director shall have authority over

2.
its staff.

Article 8

Steering Committee

Each steering committee shall consist of five members

1.
appointed by the Commission.

the members of

The term of office of

2.
the steering
committee shall be at least two years. The appointment may
be renewed. On expiry of their term of office, or should they
resign,
their
appointment is renewed or a replacement has been appointed.

remain in office until

the members

shall

The steering committee shall choose a chairperson and

3.
vice-chairperson from among its members.

4.
The steering committee shall meet when convened by the
chairperson, at least twice a year. It may also be convened at
the request of its members, by at least a simple majority, or at
the request of the director.

Any member of the steering committee unable to attend
5.
a meeting may be represented by another member specially
empowered for the meeting concerned. Each member may
represent only one other member. Should the chairperson be
unable to attend, the steering committee shall be chaired by the
vice-chairperson.

6.
The steering committee’s decisions shall be adopted by a
simple majority of votes. In the event of a tie, the chair shall
have the casting vote.

Article 9

Tasks of the steering committee

Each steering committee shall adopt

1.
procedure.

its own rules of

On the basis of a draft submitted by the director after
2.
the steering committee shall
approval by the Commission,
adopt
the executive agency’s annual work programme no
later than the beginning of each year. The work programme
must
the
Commission in accordance with the legal acts establishing
the Community programmes which the executive agency is
involved in managing.

comply with the programming

defined by

The terms, criteria, parameters and procedures with which an
executive agency must comply when performing the tasks
referred to above and the details of
to be
applied by the Commission departments
responsible for
Community programmes which an agency is involved in
managing shall be defined by the Commission in the
instrument of delegation.

the controls

The annual work programme may be amended during the year
following the same procedure, in particular to take account of
Commission decisions on the Community programmes
included in the annual work
concerned. The operations
programme shall be accompanied by an estimate of
the
necessary expenditure.

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The steering committee shall adopt the executive agency’s
3.
operating budget in accordance with the procedure laid down
in Article 13 hereof.

The steering committee shall obtain the Commission’s
4.
agreement before deciding to accept any legacies, gifts and
grants from sources other than the Community.

The steering committee may decide to set up branch
the executive agency as referred to in Article 5

5.
offices of
hereof.

The steering committee shall adopt any special rules
6.
needed to implement
the right of access to the executive
agency’s documents in accordance with Article 22(1) hereof.

7.
No later than 31 March each year, the steering committee
shall adopt and present to the Commission an annual report on
the activities of the executive agency during the previous year
and their financing.

The steering committee shall perform the other tasks

8.
entrusted to it by this Regulation.

Article 10

Director

The Director of the agency shall be appointed by the
1.
Commission, and shall be an official within the meaning of
the rules and regulations applicable to officials and other
servants of the European Communities.

2.
The director shall be appointed for a term of four years.
The appointment may be renewed. After receiving an opinion
of the steering committee, the Commission may remove the
director from office before expiry of this term of office.

Article 11

Tasks of the director

The director shall represent the executive agency. He or

1.
she shall be responsible for its management.

The director shall prepare the work of

2.
the steering
committee, in particular the draft annual work programme of
the executive agency. The director shall participate, without
voting, in the work of the steering committee.

the

that

shall

implemented.

The director

3.
ensure
annual work
In
the executive agency is
programme of
particular, the director shall be responsible for performance
of
the
the tasks referred to in Article 6 and shall adopt
relevant decisions to that effect. The director shall act as the
executive agency’s delegated authorising officer for executing
the operational appropriations relating to the programmes
which the agency is
involved in managing, where the
Commission has empowered the agency to perform budget
execution tasks.

4.
The director shall draw up the provisional statement of
revenue and expenditure and, as authorising officer, shall
execute the executive agency’s operating budget in accordance
with the Financial Regulation as referred to in Article 15
hereto.

The director

shall be responsible for preparing and
5.
publishing the reports which the executive agency must
present to the Commission. This includes the annual report
on the activities of the executive agency referred to in Article
9(7) and all other reports, of a general or specific nature, which
the Commission asks the executive agency to produce.

6.
The director shall be empowered under the arrangements
applicable to other servants of the European Communities to
act vis-(cid:224)-vis the staff of the executive agency as the authority
authorised to conclude employment contracts. The director
shall be in charge of all other matters relating to the staff of
the executive agency.

Article 12

Operating budget

1.
All revenue and expenditure of an executive agency shall
be the subject of forecasts for each financial year (identical with
the calendar year) and shall be entered in its operating budget,
include the establishment plan submitted to the
which shall
consisting
Budgetary Authority. The
exclusively of
specify the number,
grade and category of
the staff employed by the executive
agency during the financial year concerned.

establishment plan,

temporary posts,

shall

The revenue and expenditure of the executive agency’s

2.
operating budget shall be in balance.

An executive agency’s revenue shall

3.
entered in the general budget of
without prejudice to other revenue.

include a grant
the European Union,

Article 13

Preparation of the operating budget

1.
Each year the director shall draw up a draft operating
covering the agency’s
budget
running costs for the following financial year, and submit it
to the steering committee.

executive agency,

the

for

No later than 1 March each year, the steering committee
2.
shall adopt the draft operating budget for the following year
and submit it to the Commission.

On the basis of this draft budget and in the light of the
3.
Commission’s programming for the Community programmes
which the executive agency is involved in managing,
the
the annual budget
Commission shall propose, as part of
agency’s
procedure,
executive
to the
annual grant
the annual
operating budget as a specified percentage of
financial allocation to the programmes concerned.

the

At

shall

adopt

executive

the beginning of each budget year,
the

the steering
4.
agency’s operating
committee
budget, on the basis of the annual grant thus determined by
the competent Budgetary Authority, at the same time as it
adopts the annual work programme, adjusting the budget in
accordance with the different contributions granted to the
executive agency and any funds from other sources.

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Article 14

Execution and discharge of the operating budget

The director shall execute an executive agency’s operating

1.
budget.

No later than 31 March each year,

the director shall
2.
the
submit detailed accounts to the European Parliament,
steering
Court of Auditors,
committee showing all the revenue and expenditure for the
previous budget year.

the Commission and the

The European Parliament shall grant discharge to an
its budget no later

3.
executive agency for the execution of
than 30 April of year n+2.

Article 15

Financial regulation applying to the operating budget

The financial regulation applicable to the operating budget of
the executive agency shall be adopted by the Commission, after
receiving the opinion of the Court of Auditors, in accordance
with the procedure laid down in Article 23(2) and in
compliance with Article 142 of
the Financial Regulation
applicable to the general budget of the European Union (1).

Article 16

Financial regulation applying to operating appropriations

agency

relating

to the
1. Where the Commission has delegated tasks
executive
execution of
operating appropriations for Community programmes under
Article 6(c),
shall be entered in the
general budget of the European Union and shall be executed
by direct charging to that budget.

such appropriations

to the budget

European Communities. The steering committee, in agreement
with the Commission, shall adopt the necessary implementing
rules.

An executive agency’s

consist partly of
2.
Community officials
to the
executive agency as temporary officials, and partly of other
servants recruited by the executive agency.

seconded by the Institutions

shall

staff

3.
The Protocol on the privileges and immunities of the
European Communities shall apply to both the executive
agency and its staff as referred to in paragraph 2.

Article 19

Supervision

The Commission’s

1.
financial
internal
controller shall enjoy the same powers and perform the same
tasks with regard to an executive
to the
Commission’s departments.

auditor

agency

and

as

The auditor shall report findings and recommendations to both
the Commission and the executive agency, each of which shall
implement such recommendations according to its respective
powers.

As

2.
soon as an executive agency is created it shall
subscribe to the inter-institutional agreement on internal inves-
conducted by the European Anti-Fraud Office
tigations
(OLAF) (2). The steering committee shall formalise this assent
and adopt the provisions needed to facilitate OLAF’s conduct of
its internal inquiries.

The Court of Auditors

3.
scrutinise an executive
agency’s accounts in accordance with Article 248 of the Treaty.

shall

2.
The director shall act as the executive agency’s delegated
authorising officer for executing these operating appropriations
and shall comply to that end with the obligations laid down in
the Financial Regulation applicable to the general budget of the
European Communities.

Article 17

Programmes financed from sources other than the general
budget

Articles 13 and 16 shall apply without prejudice to the specific
provisions laid down in the legal bases of programmes financed
from sources other than the general budget of the European
Union.

Article 18

Staff

An executive agency’s staff shall be subject to the rules
1.
and regulations applicable to officials and other servants of the

4.
All acts of an executive agency, in particular all decisions
adopted and contracts concluded by it, must provide explicitly
that the Commission’s internal auditor, OLAF and the Court of
Auditors may inspect
files and, where necessary, make
including at the premises of final bene-
on-the-spot checks,
the intermediaries
ficiaries of
that distribute them.

funds and, where applicable,

Article 20

Liability

The contractual liability of an agency shall be governed

1.
by the law applicable to the contract in question.

In the case of non-contractual

2.
liability, an executive
agency shall make good any damage caused by the agency or
its servants in the performance of their duties, in accordance
with the general principles common to the laws of the Member
States. The Court of Justice shall have jurisdiction in disputes
relating to compensation for any such damage.

(1) OJ L 356, 31.12.1977, p. 1. Regulation last amended by Council

Regulation (EC, ECSC, Euratom) No 2673/1999.

(2) OJ L 136, 31.5.1999, p. 15.

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Article 21

Legality of acts

Article 23

Committee procedure

The Court of Justice shall monitor the legality of acts of an
executive agency intended to have binding legal effect on the
same terms and conditions as laid down in Article 230 of the
Treaty relating to the control of
legality of the acts of the
Commission.

The Commission shall be assisted by a Committee for
the
the

1.
representatives of
composed of
Executive Agencies,
Member States and chaired by a representative of
Commission.

Article 22

Access to documents and confidentiality

All citizens of the European Union and all physical and
1.
legal persons resident
in or having their head office in a
Member State shall have right of access to the documents of
an executive agency subject to the same conditions and limits
the
as those laid down in Regulation (EC) No . . ./. . . of
European Parliament and of
to
the Council on access
documents of . . . (1).

An agency’s steering committee shall adopt any provisions
than
needed to implement such right of access no later
during the first year after the creation of the executive agency.

2.
The members of the steering committee, the director and
members of staff and all persons involved in the activities of an
executive agency shall be required, even after termination of
their appointments, not to disclose information which, by its
nature, is covered by confidentiality.

2. Where reference is made to this paragraph, the regulatory
procedure provided for in Article 5 of Decision 1999/468/EC
shall apply, subject to Article 7 of that Decision.

The period provided for in Article 5(6) of Decision

3.
1999/468/EC shall be three months.

Article 24

Entry into force

This Regulation shall enter
into force on the third day
following its publication in the Official Journal of the European
Communities.

This Regulation shall be binding in its entirety and directly
applicable in all Member States.

(1) Proposal for a Regulation of the European Parliament and of the
Council regarding public access to European Parliament, Council
and Commission documents (COM(2000)30 final/2, 21.2.2000).