Opinion No 2/2007 on the draft Council Regulation amending the Financial Regulation applicable to the ninth European Development Fund
Date: 2007-03-08
Institutions: European Court of Auditors
Subjects: European Development Fund, financial regulation

4.5.2007

EN

Official Journal of the European Union

C 101/1

I

(Resolutions, recommendations, guidelines and opinions)

OPINIONS

COURT OF AUDITORS

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

OPINION No 2/2007

(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 Commu-
nity, 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 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 Agree-
ment 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 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 the Court’s Opinion No 12/2002 on the pro-
posal for a Council regulation on a Financial Regulation appli-
cable to the ninth European Development Fund under the ACP-EC
Partnership Agreement signed at Cotonou on 23 June 2000 (7),

Having regard to Council Decision 2001/822/EC of 27 Novem-
ber 2001 on the association of the overseas countries and terri-
tories with the European Community (4),

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),

(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.

C 101/2

EN

Official Journal of the European Union

4.5.2007

regard

Euratom)
to Council Regulation
Having
No 1605/2002 of 25 June 2002 on the Financial Regulation
applicable to the general budget of the European Communi-
ties (1), hereinafter referred to as the ‘General Financial Regula-
tion’, as amended by Council Regulation (EC, Euratom)
No 1995/2006 of 13 December 2006 (2),

(EC,

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 (3),

Having regard to the Commission’s proposal for a Council Regu-
lation amending the Financial Regulation applicable to the ninth
EDF of 27 November 2006 (4),

Having regard to the Council’s request for an opinion on that pro-
posal 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 amend-
ments 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 manage-
ment has been decentralised:

The proposal fails to justify why the proposed changes
3.
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 con-
sidered 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.

As the proposal indicates, in its second recital the Finan-
4.
cial Regulation applicable to the ninth EDF ‘takes into account
as a cornerstone’ the General Financial Regulation. For this rea-
son, 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 Jour-

nal of the report on financial management,

— Article 60(7) regarding the content of the Authorising
Officer’s annual activity report clearly setting out the Autho-
rising 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,

— they allow indirect implementation in cases of decentra-
lised management (proposed amendment to Article 14),

— Article 61(1)(e) regarding the Accounting Officer’s power to
verify compliance with the criteria for the validation of the
accounting systems,

— they allow the delegation of tasks to bodies in the
Member States in cases of decentralised management
(proposed amendment to Article 13),

— Article 61(2a) to (2c) regarding the Accounting Officer’s obli-

gation to sign off the accounts,

— 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)),

— Article 166(2) regarding the starting date for the implemen-
tation 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.

(b) anticipate the envisaged amendments to Annex IV of the
revised Cotonou Agreement, by deleting references to spe-
cific articles of Annex IV (amendments to Articles 74, 76
to 78).

(1) OJ L 248, 16.9.2002.
(2) OJ L 390, 30.12.2006.
(3) OJ C 273, 9.11.2006, p. 2.
(4) COM(2006) 721 final.

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, leav-
ing 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.

4.5.2007

EN

Official Journal of the European Union

C 101/3

The Court wishes to draw attention to its Opinion
6.
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