Amended 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: 2001-12-28
Institutions: European Commission
Subjects: EU office or agency, EU programme, drafting of EU law, legal status

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Amended proposal for a Council Regulation laying down the statute for executive agencies to be
entrusted with certain tasks in the management of Community programmes (1)

(2002/C 103 E/21)

COM(2001) 808 final — 2000/0337(CNS)

(Submitted by the Commission on 28 December 2001)

(1) OJ C 120 E, 24.4.2001, p. 140.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

Unchanged

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:

Unchanged

Having regard to the opinion of the Court of Auditors,

(1) An increasing number of programmes are being created
in a wide range of fields targeting a variety of categories
of beneficiaries, as part of the operations provided for in
Article 3 of the Treaty. The Commission is, as a rule,
responsible for adopting measures to implement such
programmes (‘Community programmes’).

(2) Implementation of Community programmes is financed,
at least in part, from appropriations entered in the general
budget of the European Communities.

(3) Under Article 274 of

the Treaty,

the Commission is

responsible for executing that budget.

(4) If the Commission is to fulfil its proper responsibilities
towards the other institutions and citizens, it must focus
primarily on its institutional tasks. It should therefore be
relating to the
able to delegate some of
management of Community programmes
to third
parties. Moreover,
certain management
externalising
tasks could be a more efficient and effective way of
achieving the goals of such Community programmes.

the tasks

(5) 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-
tutions by the Treaty where anything is left
to the
discretion of
institution concerned and which
involve translating political choices into practice may
not be externalised.

the

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INITIAL PROPOSAL

AMENDED PROPOSAL

factors such as identification of

(6) Externalisation should be used only after assessment of a
the tasks
number of
that
justifying externalisation, a cost-benefit analysis
includes the costs for coordination and controls,
the
impact on human resources, efficiency and flexibility in
the implementation of externalised tasks, simplification of
the procedures used, proximity of externalised activities to
as
visibility of
final beneficiaries,
promoter of the programme concerned and the need to
maintain an adequate level of knowhow inside the
Commission.

the Community

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

bodies which are legal entities
(‘executive agencies’).

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

(9) 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. It must therefore be able closely
to circumscribe the action of each executive agency and
maintain real control over its operation, particularly its
governing bodies.

it

(10) This means that the Commission must have the power to
decide to create and, where appropriate wind up, an
executive agency in accordance with this Regulation.
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
exercise of
implementing powers conferred on the Commission (1),
such decisions should be adopted by the regulatory
procedure provided for in Article 5 of that Decision.

down the procedures

the

for

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

the Commission does not

to ensure that

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

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INITIAL PROPOSAL

AMENDED PROPOSAL

(12) 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
subject
Commission's approval
and comply with budgetary
decisions.

therefore

be

to

(13) 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 some of the implementing tasks for
one or more Community programmes, except for those
requiring discretionary powers
in translating political
into action. Tasks which may be delegated
choices
the phases in the
include managing all or some of
lifetime of
executing the budget,
gathering and processing information to be forwarded
to the Commission and preparing recommendations for
the Commission.

a given project,

(14) Since the budget of an executive agency is intended to
finance only its running 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

the

operational

appropriations

(15) With a view to the application of Article 274 of the
Treaty,
the
Community programmes which an executive agency is
involved in managing must continue to be entered in
the general budget of the European Communities and
must be implemented by direct charging to the budget.
The financial operations relating to these appropriations
must therefore be carried out in accordance with the
Financial Regulation governing the general budget of the
European Communities.

(16) An executive agency may be entrusted with tasks relating
to the management of programmes that are financed from
sources other than the general budget of the European
Communities. However,
lead even
this
indirectly to extra administrative costs, which should be
covered by additional appropriations entered in the
general budget.
this Regulation should
apply, subject
to specific provisions in the basic acts
relating to the programmes concerned.

In such cases,

should not

(17) 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 held by
the agencies, on terms and within limits similar to those
in Article 255 of the Treaty.

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INITIAL PROPOSAL

AMENDED PROPOSAL

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

Commission

(19) The Treaty does not provide, for the adoption of this
conferred by

than those

Regulation, powers other
Article 308,

HAS ADOPTED THIS REGULATION:

Article 1

Aim

This Regulation lays down 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 purpose of this Regulation:

(a) ‘Executive agency’ means a legal entity established in

accordance with this Regulation,

(b) ‘Community programme’ means any operation or set of
operations or other initiative which the relevant basic
instrument
the
Commission to implement for the benefit of one or more
categories of specific beneficiaries, by committing expen-
diture.

authorisation

budgetary

requires

or

Article 3

Setting-up 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.
It may set the duration of existence of the agency.

2. Where the Commission considers that
it no longer
requires the services of an executive agency which it has set
up, it shall decide to wind it up. In that event, it shall appoint
two liquidators. The Commission shall
the
conditions for the liquidation of the executive agency. The
net result after liquidation shall be transferred to the general
budget of the European Communities.

determine

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INITIAL PROPOSAL

AMENDED PROPOSAL

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

All executive agencies set up under paragraph 1 must

4.
comply with this Regulation.

Article 4

Legal status

An executive agency is a Community body and has a

1.
public service mission.

2.
An executive agency shall be a legal entity in its own
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 shall organise its departments according to the management
needs of the programmes for which it is responsible.

Article 6

Tasks

To attain the objective set out in Article 3(1), the Commission
may entrust an executive agency with any tasks required to
implement a Community programme, with the exception of
tasks requiring discretionary powers in translating political
choices into action.

Executive agencies may in particular 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 using
the powers delegated to it by the Commission;

(c) adopting the instruments of budget execution for

the
revenue and expenditure and carrying out all operations
required to implement a Community programme on the
basis of a delegation from the Commission, and in
particular those linked to the awarding of contracts and
grants;

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INITIAL PROPOSAL

AMENDED PROPOSAL

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

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

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

The Steering Committee shall consist of five members

1.
appointed by the Commission.

the members of

The term of office of

the Steering
2.
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 replacements have been appointed.

remain in office until

the members

shall

The Steering Committee shall choose a chairperson and

3.
vice-chairperson from among its members.

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

twice a year.

least

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.

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INITIAL PROPOSAL

Article 9

Tasks of the Steering Committee

The Steering Committee shall adopt

1.
procedure.

its own rules of

AMENDED PROPOSAL

comprising

programme

annual work

comply with the programming

On the basis of a draft submitted by the director and after
2.
approval by the Commission, the Steering Committee shall, no
later than the beginning of each year, adopt the executive
agency's
detailed
objectives and performance indicators. The work programme
the
must
Commission in accordance with the instruments establishing
the Community programmes which the executive agency is
involved in managing. 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 concerned. The projects included in
the annual work programme shall be accompanied by an
estimate of the necessary expenditure.

defined by

The Steering Committee

3.
executive
agency's administrative budget by the procedure laid down in
Article 13.

adopt

shall

the

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 shall decide on the organisation

5.
of the departments of the executive agency.

The Steering Committee shall adopt any special rules
the right of access to the executive

6.
needed to implement
agency's documents in accordance with Article 22(1).

No later than 31 March of each year,

7.
the Steering
Committee shall adopt and present to the European Parliament
and the Commission an annual report on the activities of the
executive agency during the preceding year and their financing.
In particular, the report shall highlight any disparities between
the objectives set in the work programme for the year in
question and achievements during that same period.

The Steering Committee shall adopt and apply measures

8.
to combat fraud and irregularities.

The Steering Committee shall perform the other tasks

9.
entrusted to it by this Regulation.

Article 10

Director

1.
The director of the executive agency shall be appointed
by the Commission, which shall to that end appoint 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 the opinion
of the Steering Committee, the Commission may remove the
director from office before expiry of the term of office.

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AMENDED PROPOSAL

Article 11

Tasks of the director

1.
The director shall represent
shall be responsible for its management.

the executive agency and

The director shall prepare the work of

2.
Committee,
of
the
without voting, in the work of the Steering Committee.

the Steering
in particular the draft annual work programme
shall participate,

agency. The director

executive

the

that

shall

implemented.

The director

annual work
ensure
3.
programme of
In
the executive agency is
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
authorising officer by delegation for
executive
executing the operational
relating to the
programmes which the agency is
involved in managing,
where the Commission has delegated powers to the agency
to perform budget execution tasks.

appropriations

agency's

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

administrative budget

executive

agency's

the

The director

5.
shall be responsible for preparing and
publishing the reports which the executive agency must
present to the Commission. These are 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.

The director shall be empowered under the arrangements
6.
applicable to other servants of the European Communities to
conclude employment contracts in respect of staff of
the
executive agency. The director shall be responsible for all
other matters relating to staff of the executive agency.

The director

shall
systems adapted to the

set up management and internal
7.
control
entrusted to the
executive agency to ensure the operations it performs are
lawful, comply with the rules and are effective.

tasks

Article 12

Administrative budget

Forecasts of all

the revenue and expenditure of

1.
the
executive agency shall be prepared for each financial year,
which shall be the same as the calendar year, and shall be
shown in its administrative budget. The forecasts, which shall
include the establishment plan of the executive agency, shall be
sent to the budgetary authority with the documents relating to
establishment plan,
the preliminary
consisting only of
and specifying the
number, grade and category of
the staff employed by the
executive agency during the financial year concerned, shall be
approved by the budgetary authority and published in an
annex to the Commission budget.

budget. The
temporary posts

draft

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AMENDED PROPOSAL

The revenue and expenditure of the executive agency's

2.
administrative budget shall be in balance.

The executive agency's revenue shall

include a subsidy
3.
entered in the general budget of
the European Union,
without prejudice to other revenue, which represents 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.

Article 13

Preparation of the administrative budget

1.
Each year the director shall draw up a draft adminis-
trative budget for the executive agency covering the agency's
running costs for the following financial year and shall submit
it to the Steering Committee.

2.
No later than 1 March each year, the Steering Committee
shall adopt the draft administrative budget, including the estab-
lishment plan, for the following year and shall submit it to the
Commission.

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

At

the beginning of each budget year,

4.
the Steering
Committee shall adopt the executive agency's administrative
budget, on the basis of the annual subsidy 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.

The administrative budget of the agency may not be
5.
adopted definitively until the general budget of the European
Communities has been adopted.

6. Within the limits set by the Financial Regulation referred
to in Article 15, all amendments to the budget, including the
establishment plan, shall be submitted in a supplementary and
amending budget adopted in accordance with the procedure
provided for in this Article.

Article 14

Execution of the administrative budget and discharge

The director shall execute the executive agency's adminis-

1.
trative budget.

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INITIAL PROPOSAL

AMENDED PROPOSAL

2.
No later than 31 March of each year, the director shall
submit detailed accounts of all revenue and expenditure for the
previous budget year to the Steering Committee, which shall
forward them to the European Parliament,
the Court of
Auditors and the Commission.

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

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

Such discharge shall be granted together with that relating to
the general budget of the European Communities.

Financial regulation applying to the administrative budget

Article 15

The financial regulation applicable to the administrative budget
of the executive agency shall be adopted by the Commission,
after
in
the Financial Regulation
accordance with Article 142 of
applicable to the general budget of the European Communities.

receiving the opinion of

the Court of Auditors,

Article 16

Financial regulation applying to the operational appro-
priations

to the
1. Where the Commission has delegated tasks
executive agency relating to the budget execution of oper-
ational appropriations
such
appropriations shall be entered in the general budget of the
European Communities and shall be executed by direct
charging to that budget.

for Community programmes,

2.
The director shall act as the executive agency's auth-
orising officer by delegation for executing these operational
appropriations and shall comply to that end with the obli-
gations 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 specific
provisions laid down in the basic instruments relating to
programmes financed from sources other than the general
budget of the European Communities.

Article 18

Staff

1.
The executive agency's staff shall be subject to the rules
and regulations applicable to officials and other servants of the
European Communities. The steering committee, in agreement
with the Commission, shall adopt the necessary implementing
rules.

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INITIAL PROPOSAL

AMENDED PROPOSAL

staff

and partly of other

The executive agency's

2.
shall consist partly of
Community officials seconded as temporary officials by the
responsibility in the executive
institutions to positions of
agency,
recruited by the
executive agency on renewable contracts. The nature of the
contract, governed by either private law or public law, the
duration of the obligations binding such staff to the agency,
and the appropriate qualifications criteria shall depend on the
specific content and duration of the tasks to be performed, and
shall comply with current national legislation.

servants

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

Article 19

Supervision

of

Implementation

1.
programmes
the
entrusted to executive agencies shall be supervised by the
Commission. Such supervision shall follow the procedures it
shall adopt in accordance with the third paragraph of Article 6.

Community

2.
The functions of internal auditor and financial controller
shall be performed in the executive agencies by the competent
departments of the Commission.

The Commission and the

3.
implement
each according to their respective powers.

the recommendations of

executive

shall
agency
the internal auditors,

The European Anti-Fraud Office (OLAF) shall enjoy the
4.
same powers in respect of executive agencies and their staff as
it enjoys in respect of Commission departments. As soon as the
executive agency is set up it shall subscribe to the interinstitu-
tional agreement on internal
investigations conducted by
OLAF. The Steering Committee shall formalise this acceptance
and adopt the provisions needed to facilitate OLAF's conduct of
its internal inquiries.

The Court of Auditors shall scrutinise the executive
5.
agency's accounts in accordance with Article 248 of the Treaty.

6.
All acts of the 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
on-the-spot checks, including at the premises of recipients of
funds and, where applicable, the intermediaries that distribute
them.

Article 20

Liability

The contractual liability of the executive agency shall be

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

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liability,

In the case of non-contractual

2.
the 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 of the European Communities shall
have jurisdiction in disputes relating to compensation for any
such damage.

The personal

3.
liability of staff
agency shall be governed by the rules applicable to them.

towards the executive

Article 21

Legality of acts

1.
Any act of the executive agency having binding legal
effects which is liable to prejudice the interests of a third
party may be referred to the Commission by that third party,
by any other person directly and individually concerned or by
a Member State for a review of its lawfulness.

2.
Actions shall be referred to the Commission within one
month of the day on which the applicant learnt of the act
challenged.

3.
After hearing the arguments of the applicant and those of
the executive agency, the Commission shall take a decision on
the action within one month. Failure to produce a decision
within that period shall mean that
the action has been
implicitly rejected.

4.
The Commission may examine any act of an executive
agency within one month of the day on which the act was
adopted and may decide, having heard the reasons of
the
agency, to annul it.

5.
Executive agencies must take the necessary measures as
soon as possible to act on decisions taken pursuant to this
Article by the Commission.

Article 22

Access to documents and confidentiality

Executive agencies shall be subject to Regulation (EC)
1.
No 1049/2001 of
the
Council on public access to European Parliament, Council
and Commission documents (1) when it receives a request for
access to a document in its possession.

the European Parliament and of

The Steering Committee shall adopt any special rules needed to
implement these provisions no later than six months after the
setting-up of the executive agency.

___________
(1) OJ L 145, 31.5.2001, p. 43.

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

Article 23

Committee

The Commission shall be assisted by a Committee for
the
the

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

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 laid down in Article 5(6) of Decision

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

Article 24

Evaluation

An external evaluation report on the first
three years of
operation of each executive agency shall be drawn up by the
Commission and presented to the steering committee of the
executive agency, the European Parliament, the Council and the
Court of Auditors.

Article 25

Entry into force

This Regulation shall enter
into force on the third day
following that of 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.