Council Regulation (EC) No 309/2007 of 19 March 2007 amending the Financial Regulation of 27 March 2003 applicable to the 9th European Development Fund
Date: 2007-03-19
Institutions: Council of the European Union
Subjects: European Development Fund, financial management, financial regulation, general budget (EU), implementation of the budget

23.3.2007

EN

Official Journal of the European Union

L 82/1

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 309/2007

of 19 March 2007

amending the Financial Regulation of 27 March 2003 applicable to the 9th European Development
Fund

THE COUNCIL OF THE EUROPEAN UNION,

Whereas:

Having regard to the Treaty
Community,

establishing the European

Having regard to the Partnership agreement between the
members of
the African, Caribbean and Pacific Group of
States of the one part, and the European Community and its
Member States, of the other part, signed in Cotonou on 23 June
2000 (1) (ACP-EC Agreement),

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 (2),

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 (Overseas Asso-
ciation Decision) (3),

the Governments of

Having regard to the Internal Agreement between Represen-
tatives of
the Member States, meeting
within the Council, on the Financing and Administration of
Community Aid under the Financial Protocol to the Partnership
Agreement between the African, Caribbean and Pacific States
and the European Community and its Member States signed
in Cotonou (Benin) on 23 June 2000 and the allocation of
financial assistance for the Overseas Countries and Territories
(Internal
to which Part Four of
Agreement), and in particular Article 31 thereof,

the EC Treaty applies (4)

Having regard to the proposal from the Commission,

Having regard to the opinion of the Court of Auditors (5),

Having consulted the European Investment Bank,

(1) OJ L 317, 15.12.2000, p. 3. Agreement as amended by Agreement

of 25 June 2005 (OJ L 287, 28.10.2005, p. 4).

(2) OJ L 287, 28.10.2005, p. 1.
(3) OJ L 314, 30.11.2001, p. 1.
(4) OJ L 317, 15.12.2000, p. 355.
(5) OJ C 12, 17.1.2003, p. 19.

(1)

(2)

(3)

(4)

(5)

On 27 March 2003, the Council adopted the Financial
Regulation applicable to the 9th European Development
Fund (6), which lays down the legal framework for the
financial management of the 9th European Development
Fund (EDF).

That Regulation takes into account as a cornerstone
Council Regulation (EC, Euratom) No 1605/2002 of 25
June 2002 on the Financial Regulation applicable to the
European Communities (7),
general
budget of
(General Financial Regulation).

the

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)
and
general conditions applicable to works,
supply and
service contracts financed by the EDF, as well as the
rules governing procedure, conciliation and arbitration
in relation to such contracts.

the general

regulations

specifies

the

should

anticipate

This Regulation
envisaged
the amended ACP-EC
amendments to Annex IV of
Agreement which will refer in a more generic way to
the Community regulations for the tendering procedures
and which should be reflected by references to Annex IV
in Articles 74, 76, 77 and 78 of the Financial Regulation
applicable to the 9th EDF.

It is appropriate to take into account those amendments
and the modifications proposed by Regulation (EC,
Euratom) No 1995/2006 amending Regulation (EC,
Euratom) No 1605/2002 on the Financial Regulation
applicable
the European
Communities in order to facilitate the implementation
of the 9th EDF.

to the general budget of

(6) OJ L 83, 1.4.2003, p. 1.
(7) OJ L 248, 16.9.2002, p. 1. Regulation as amended by Regulation

(EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2006, p. 1).

(8) OJ L 320, 23.11.2002, p. 1.

L 82/2

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Official Journal of the European Union

23.3.2007

(6)

The Financial Regulation applicable to the 9th European
Development
amended
accordingly,

therefore

should

Fund

be

HAS ADOPTED THIS REGULATION:

Article 1

The Financial Regulation of 27 March 2003 applicable to the
9th European Development Fund is hereby amended as follows:

6. Articles 76, 77 and 78 shall be replaced by the following:

‘Article 76

Within the limits of the powers conferred on it by the
ACP-EC Agreement and in accordance with the conditions
laid down in Annex IV thereto, the Commission shall ensure
the broadest possible participation, on equal
in
tendering procedures for contracts financed by the EDF
and shall ensure compliance with the principles of trans-
parency, proportionality, equal treatment and non-discrimi-
nation.;

terms,

1. Article 13(1) shall be replaced by the following:

Article 77

In the context of decentralised management,

‘1.
the
Commission shall undertake the financial
implementation
of EDF resources in accordance with the detailed rules laid
down in paragraphs 2, 3, and 4 without prejudice to dele-
gation of residual
tasks to bodies referred to in Article
14(3).’;

2. The following subparagraph shall be added to Article 14(1):

‘Indirect implementation, in accordance with paragraphs 2 to
7 of this Article and with Article 15 also applies in the case
of delegation of residual
tasks to bodies referred to in
paragraph 3 of
this Article in the case of decentralised
management.’;

the Commission shall

Within the limits of the powers conferred on it by the
ACP-EC Agreement
take steps to
establish, by analogy with the relevant rules of the general
financial regulation, a central database containing details of
candidates and tenderers who are, according to the rules
in a
defined in Annex IV to the ACP-EC Agreement,
situation
in
procedures for the award of contracts relating to operations
financed by the EDF.;

them from participation

excludes

that

Article 78

Within the limits of the powers conferred on it by the
ACP-EC Agreement and in accordance with the conditions
laid down in Annex IV thereto, the Commission shall take
the necessary
tendering
have
procedures published in the Official Journal of the European
Union and on the Internet.’;

international

steps

to

3. The following second subparagraph shall be inserted in

Article 14(3):

7. In Title V, the heading shall be replaced by the following:

‘The Commission shall inform annually the Council of the
cases and bodies concerned by providing commensurate
motivation of the use of national agencies.’;

‘DIRECT
OPERATIONS’;

LABOUR AND INDIRECT DECENTRALISED

4. In Article 54(3), the first subparagraph shall be replaced by

the following:

8. Article 80 shall be replaced by the following:

‘Article 80

‘The Commission shall be under an obligation to effect
payment
the responsible
authorising officer:

from EDF resources whenever

1.
This Title shall govern the direct labour and indirect
decentralised operations provided for in Article 24 of Annex
IV to the ACP-EC Agreement. It shall apply mutatis mutandis
to financial cooperation with the OCTs.

(a) endorses

contracts
provided for in Article 80(4);

and

programme

estimates,

as

2.
In the case of direct labour operations, projects and
programmes shall be implemented directly through public
departments of the ACP State or States concerned.

(b) endorses grant agreements.’;

5. In Article 74(1), the first subparagraph shall be replaced by

the following:

‘The procedures for
the award of contracts relating to
operations financed by the EDF to assist ACP States shall
be those defined in Annex IV to the ACP-EC Agreement.’;

The Community shall contribute to the costs of
the
departments involved by providing the equipment and/or
materials that
they lack and/or the resources to acquire
any additional staff required, such as experts from within
the ACP States concerned or other ACP States. The
Community’s participation shall cover only costs incurred
by supplementary measures and temporary expenditure
relating to execution that are strictly confined to the
requirements of the project in question.

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Official Journal of the European Union

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implemented by
The financial management of a project
direct labour in accordance with the first and second subpar-
agraphs shall be carried out by imprest accounts admi-
nistered by an imprest administrator and an accounting
officer, appointed by the National Authorising Officer with
the prior
responsible
authorising officer.

the Commission’s

approval of

In the case of

indirect decentralised operations,

the
3.
contracting
authority within the meaning of Article
73(1)(a) shall entrust tasks relating to the implementation
of projects or programmes to bodies governed by public
law of
the ACP State or States concerned or bodies
governed by private law that are legally distinct from the
ACP State or States concerned.
the body
concerned shall assume responsibility for the management
and implementation of the programme or project in place of
the National Authorising Officer. Tasks so delegated may
to conclude contracts and manage
include the power
contracts and the supervision of works on behalf of or for
the account of the ACP State or States concerned.

In such cases,

Direct

required,

resources

implemented on the basis of

labour operations and indirect decentralised
4.
operations
a
shall be
programme of measures to be carried out and an estimate
their cost, hereinafter referred to as the “programme
of
estimate”. The programme estimate is a document laying
down the human and material
the
budget and the detailed technical and administrative imple-
menting arrangements for execution of a project over a
specified period by direct labour and, possibly, by means
of public procurement and the award of specific grants.
Each programme estimate shall be prepared by the imprest
administrator and the accounting officer
referred to in
paragraph 2, in the case of direct labour operations, or by
the body referred to in paragraph 3, in the case of indirect
decentralised operations, and shall then be approved by the
the Commission’s
National Authorising Officer
responsible
it
provides for commence.

authorising officer before

activities

and

the

In the

context of

5.
programme estimates
procurement and grant award procedures
with those laid down in Titles IV and VI respectively.

implementation of
referred to in paragraph 4,

the
the
shall comply

the

9. Article 81 shall be amended as follows:

(a) The introductory part shall be replaced by the following:

‘In the case of
indirect decentralised operations the
contracting authority referred to in Article 73(1)(a)
shall conclude a delegation agreement when entrusting
implementation tasks to a body governed by public laws
of the ACP State or States concerned or by private law
with a public service mission and a service contract
when entrusting those tasks to bodies governed by
private law. The Commission shall ensure that the dele-
gation agreement or service contract sets out:’;

(b) Point (b) shall be replaced by the following:

‘(b) a clear definition and precise delimitation of

the
powers delegated to the body concerned and the
powers
the National Authorising
Officer;’;

retained by

(c) Point (d) shall be replaced by the following:

‘(d) the possibility of

ex post

review and financial
penalties where the granting of funds or award of
contracts
does not
correspond to the procedures laid down at point
(c);’.

concerned

body

the

by

Article 2

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

It shall apply for the same period as the Internal Agreement.

Done at Brussels, 19 March 2007.

6.
The financing agreements referred to in Article 51(3)
must make provision for the implementation of direct labour
operations or indirect decentralised operations.’;

For the Council
The President

Horst SEEHOFER