Council Decision 2007/643/CFSP of 18 September 2007 on the financial rules of the European Defence Agency and on the procurement rules and rules on financial contributions from the operational budget of the European Defence Agency
Date: 2007-09-18
Institutions: Council of the European Union
Subjects: European Defence Agency, amending budget, audit, budget, expenditure, financial regulation, general budget, implementation of the budget, revenue

12.10.2007

EN

Official Journal of the European Union

L 269/1

III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE V OF THE EU TREATY

COUNCIL DECISION 2007/643/CFSP

of 18 September 2007

on the financial rules of the European Defence Agency and on the procurement rules and rules on
financial contributions from the operational budget of the European Defence Agency

THE COUNCIL OF THE EUROPEAN UNION,

and Rules on Financial Contributions from the Operational
Budget of the European Defence Agency’.

Having regard to Council Joint Action 2004/551/CFSP of 12 July
2004 on the establishment of the European Defence Agency (1),
and in particular Article 18(1) thereof,

Whereas:

(5) When adopting the decisions referred to above, the Steering
Board also proposed that the Council empower the Steering
Board on a permanent basis to modify those rules.

(1) On 13 September 2004, the Council adopted Decision
2004/658/CFSP on the financial provisions applicable to
the general budget of the European Defence Agency (2).

(6)

The new financial rules adopted by the Steering Board of
the Agency should be confirmed and the Steering Board of
the Agency should be empowered to review and amend
these rules as necessary, within certain limits,

(2) On 21 November 2005, the Council adopted Decision
2005/821/CFSP amending Decision 2004/658/CFSP (3),
which provided that the Steering Board of the Agency
should review or amend, as necessary,
these financial
provisions before 31 December 2006.

HAS DECIDED AS FOLLOWS:

Article 1

(3) On 13 November 2006,

the Steering Board adopted
Decision 2006/29 (Cor.), which amended and replaced
Titles I,
the existing ‘Financial Provisions
applicable to the general budget of the Agency’ by the
‘Financial rules of the European Defence Agency’.

II and IV of

1. The financial rules of the European Defence Agency, as well
as the procurement rules and rules on financial contributions
from the operational budget of the European Defence Agency,
are laid down in the Annex. These rules shall replace the
provisions
in the Annex to Decision 2004/658/CFSP, as
amended by the Steering Board (4).

(4) On 14 December 2006,

the Steering Board adopted
Decision 2006/34, which amended and replaced Title III
of
the existing ‘Financial Provisions applicable to the
general budget of the Agency’ by the ‘Procurement Rules

(1) OJ L 245, 17.7.2004, p. 17.
(2) OJ L 300, 25.9.2004, p. 52.
(3) OJ L 305, 24.11.2005, p. 43.

2. The Steering Board shall
technical
amendments to these rules as necessary, notably in order to
ensure consistency with relevant Community rules. Substantial
amendments to their scope and purpose, to the budgetary and

review and adopt

(4) Steering Board Decision 2005/06 of 21 June 2005.

L 269/2

EN

Official Journal of the European Union

12.10.2007

financial management principles and to the general provisions
regarding procurement, as well as any new rules having
significant budgetary implications shall be submitted to the
Council for approval.

Article 3

This Decision shall be published in the Official Journal of the
European Union.

Article 2

This Decision shall take effect on the day of its adoption.

Done at Brussels, 18 September 2007.

For the Council

The President

R. PEREIRA

12.10.2007

EN

Official Journal of the European Union

L 269/3

ANNEX

FINANCIAL RULES OF THE EUROPEAN DEFENCE AGENCY

CONTENTS

SCOPE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TITLE I

PRINCIPLES OF THE GENERAL BUDGET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 1

The general budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 2

The operational budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 3

Financial framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 4

Adoption of general budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 5

Earmarked revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 6

Management by the Agency of expenditure on behalf of a participating Member State . . . .

Article 7

Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 8

Budgetary surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 9

Budgetary principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 10

Accounting principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 11

Carry-overs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 12

Amending budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 13

Revised budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TITLE II

IMPLEMENTATION OF THE GENERAL BUDGET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 1

Finance staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 14

Principle of segregation of duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 15

Role of Authorising Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 16

Responsibilities of Authorising Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 17

Segregation of duties of initiation and verification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 18

Management and internal control procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 19

Role of Accounting Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 20

Responsibilities of Accounting Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 2

Liability of the finance staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 21

General rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 22

Rules applicable to Authorising Officers by delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 23

Rules applicable to Accounting Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

5

5

5

5

5

6

6

6

6

6

7

7

7

8

8

8

8

8

8

9

9

9

9

10

10

10

10

L 269/4

EN

Official Journal of the European Union

12.10.2007

CHAPTER 3 Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 24

Making available the Agency's revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 25

Estimate of amounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 26

Establishment of amounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 27

Authorisation of recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 28

Recovery of funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 29

Interest on late payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 4

Expenditure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 30

General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 31

Definition of the budgetary commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 32

Commitment procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 33

Authorisation of commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 34

Validation of expenditure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 35

Authorisation of expenditure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 36

Payment of expenditure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 37

Time limits for payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 5

IT systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 38

Accounting software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 6

Internal audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 39

Role of Internal Auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 40

Responsibilities of Internal Auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TITLE III

FINANCIAL REPORTING AND ANNUAL AUDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 41

Budgetary and reporting calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 42

Quarterly reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 43

College of Auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 44

Annual audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 45

Final article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

10

10

11

11

11

11

11

11

11

12

12

12

12

12

12

13

13

13

13

13

14

14

14

14

15

15

12.10.2007

EN

Official Journal of the European Union

L 269/5

SCOPE:

The financial rules of the European Defence Agency implement and complement related Articles on the financial aspects
from Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (1) (JA).

TITLE I

PRINCIPLES OF THE GENERAL BUDGET

Article 1

The general budget

2. The Head of the Agency shall propose the draft general budget to the
Steering Board by 30 September each year. The draft shall include:

1. The general budget shall consist of revenue and expenditure for one
financial year.

(a)

the appropriations deemed necessary:

2. The general budget shall fully respect the limits set in the Agency's
in accordance with
financial
Article 3.

framework approved by the Council,

3.
Expenditure shall consist of personnel, functioning, operational and
provisional appropriations. Revenue shall consist of miscellaneous
revenue,
including deductions from Staff remuneration and interest
earned on the Agency's bank accounts; and contributions from the
Member States participating in the Agency (participating Member States).

(i)

to cover the Agency's running, staffing and meeting costs;

(ii)

for procuring external advice, notably operational analysis,
essential for the Agency to discharge its tasks, and for specific
research and technology activities for the common benefit of
all participating Member States, notably technical case
studies and pre-feasibility studies;

Functioning Budget

4.
operational budget as defined in Article 2.

shall be the general budget except

(b)

a forecast of the revenue needed to cover expenditure.

the

Article 2

The operational budget

3. The Steering Board shall aim to ensure that the appropriations
referred to in paragraph 2(a)(ii) represent a significant share of the total
appropriations referred to in paragraph 2. These appropriations shall
reflect actual needs and shall allow for an operational role for the
Agency.

1. The operational budget shall form part of the general budget and
for procuring external advice, notably
consist of appropriations
operational analysis, essential for the Agency to discharge its tasks, and
for specific research and technology activities for the common benefit of
all participating Member States, notably technical case studies and pre-
feasibility studies.

2. The Chief Executive shall inform the Steering Board on current and
future activities under the operational budget on a regular basis.

Article 3

Financial framework

Every three years, the Council, acting by unanimity, shall approve a
financial framework for the Agency for the following three years. This
financial framework shall set out agreed priorities and constitute a legally
binding ceiling. The first financial framework shall cover the period 2007
to 2009.

Article 4

Adoption of the general budget

1. The Head of the Agency shall provide the Steering Board by 30 June
each year with an overall estimate of the draft general budget for the
following year, fully respecting the limits set down in the financial
framework.

4. The draft general budget shall be accompanied by a detailed staff
establishment plan and detailed justifications.

5. The Steering Board, acting by unanimity, may decide that the draft
cover a particular project or
general budget
shall
programme where this is clearly for
the common benefit of all
participating Member States.

furthermore

6. The appropriations shall be classified in titles and chapters grouping
expenditure together by type or purpose, subdivided as necessary into
articles.

7.
Each title may include a chapter entitled ‘provisional appropriations’.
These appropriations shall be entered where there is uncertainty, based
on serious grounds, as to the amount of appropriations needed or the
scope for implementing the appropriations entered.

8. Revenue shall consist of:

(a) miscellaneous revenue;

(1) OJ L 245, 17.7.2004, p. 17.

(b)

contributions payable by the participating Member States in the
Agency based on the Gross National Income (GNI) scale.

L 269/6

EN

Official Journal of the European Union

12.10.2007

The draft general budget shall carry lines to accommodate earmarked
revenue and, wherever possible, shall indicate the amount foreseen.

9. The Steering Board shall adopt
the draft general budget by
31 December of each year within the Agency's financial framework.
When doing so, the Steering Board shall be chaired by the Head of the
Agency, or by a representative appointed by him or her from within the
General Secretariat of the Council, or by a member of the Steering Board
invited to do so by him or her. The Chief Executive shall declare that the
budget has been adopted and notify the participating Member States
thereof.

10.
If, at the beginning of a financial year, the draft general budget has
not been adopted, a sum equivalent to not more than one twelfth of the
budget appropriations for the preceding financial year may be spent each
month in respect of any chapter or other subdivision of the budget. This
arrangement shall not, however, have the effect of placing at the disposal
of the Agency appropriations in excess of one twelfth of those provided
for in the draft general budget in course of preparation. The Steering
Board, acting by a qualified majority on a proposal from the Chief
Executive, may authorise expenditure in excess of one twelfth. The Chief
Executive may call
the
appropriations authorised under this paragraph, which shall be payable
within 30 days from dispatch of the call for contributions.

the contributions necessary to cover

for

Article 5

Earmarked revenue

1. The Agency may receive in its general budget as earmarked revenue
for a specific purpose financial contributions to cover costs other than
those referred to under Article 4(2)(a)(i):

(a)

from the general budget of the European Union on a case-by-case
basis, in full compliance with the rules, procedures and decision-
making processes applicable to it;

(b)

from participating Member States, third countries or other third
parties.

Earmarked revenue may be used only for the specific purpose to

2.
which it is assigned.

Article 6

Management by the Agency of expenditure on behalf of a
participating Member State

1. The Steering Board, on a proposal from the Chief Executive or a
participating Member State, may decide that
the Agency may be
entrusted by participating Member States, on a contractual basis, with the
administrative and financial management of certain activities within its
remit.

2. The Steering Board, in its decision, may authorise the Agency to
enter into contracts on behalf of certain participating Member States. It
may authorise the Agency to collect the necessary funds from these
participating Member States in advance to honour the contracts entered
into.

Article 7

Contributions

1.1. Where the GNI scale is applicable, the breakdown of contributions
between the participating Member States from whom a contribu-
tion is required shall be determined in accordance with the gross
national product scale as specified in Article 28(3) of the Treaty on
European Union and in accordance with Council Decision 2000/
597/EC, Euratom of 29 September 2000 on the system of the
European Communities' own resources (1), or any other Council
Decision which may replace it.

1.2. The data for the calculation of each contribution shall be those set
out in the ‘GNI own resources’ column in the ‘Summary of
financing of the general budget by type of own resource and by
Member State’ table appended to the latest budget adopted by the
European Communities. The contribution of each participating
Member State from which a contribution is due shall be
proportional to the share of that Member State's GNI in the total
GNI aggregate of the participating Member States from which a
contribution is due.

2.

Schedule for payment of contributions

2.1. The contributions intended to finance the general budget of the
European Union shall be paid by the participating Member States
in three equal instalments, by 15 February, 15 June and 15 October
of the financial year concerned.

2.2. When an Amending Budget is adopted, the necessary contributions
shall be paid by the participating Member States concerned within
60 days from dispatch of the call for contributions.

2.3. Each participating Member State shall pay the bank charges relating

to the payment of its own contributions.

Article 8

Budgetary surplus

Any budgetary surplus arising from the financial year, as the result of a
difference between revenues and expenditures, shall be considered as a
credit available for the participating Member States and returned to them
as a deduction from the third contribution of the following financial year
(15 October).

Article 9

Budgetary principles

1. Budgets, drawn up in euro, shall be the acts which for each financial
year
the revenue and expenditure
administered by the Agency.

lay down and authorise all

2. The appropriations entered in a budget shall be authorised for the
duration of a financial year which begins on 1 January and ends on
31 December of the same year.

3.
For each budget, revenue and expenditure shall be balanced. All
revenue and expenditure shall be entered in full in the relevant budget
without any adjustment against each other.

4. The budget shall contain differentiated appropriations, which shall
consist of commitment appropriations and payment appropriations and
non-differentiated appropriations.

1. Determination of contributions where the Gross National Income
(GNI) scale is applicable.

(1) OJ L 253, 7.10.2000, p. 42.

12.10.2007

EN

Official Journal of the European Union

L 269/7

5. Commitment appropriations shall cover the total cost of the legal
commitments entered into during the current financial year. However,
commitments may be made globally or
instalments.
Commitments shall be entered into the accounts on the basis of the
legal commitments entered into up to 31 December.

in annual

6.
Payment appropriations shall cover payments made to honour the
legal commitments entered into in the current financial year and/or
earlier financial years. Payments shall be entered in the accounts on the
basis of the budget commitments up to 31 December.

7. The revenue of a financial year shall be entered in the accounts for
the financial year on the basis of the amounts collected during the
financial year.

8. Neither revenue nor expenditure may be implemented other than by
allocation to a heading in the budget and within the limit of the
appropriations entered there.

9. Appropriations shall be used in accordance with the principles of
sound financial management, namely in accordance with the principles
of economy, efficiency and effectiveness.

charges and income derive from the same transaction, from similar
transactions or from hedging operations and provided that they are
not individually material;

(g)

(h)

(i)

reality over appearance, meaning that accounting events recorded
in the financial statements shall be presented by reference to their
economic nature;

accrual-based accounting, meaning that transactions and events
shall be entered in the accounts when they occur and not when
amounts are actually paid or recovered;

traceability of assets and write-offs, meaning that the Agency shall
keep inventories showing the quantity and value of all tangible,
intangible and financial assets, including any write-offs.

2. Where, in a specific case, the Accounting Officer considers that an
exception should be made to the content of one of the accounting
principles defined in paragraph 1,
that exception shall be duly
substantiated and reported.

Article 11

Carry-overs

10. Treatment of assets and depreciation:
in budgetary terms, all
expenses related to acquisition of assets shall be charged to the budget as
incurred; no depreciation charge shall be applied.

1. Appropriations which have not been used at the end of the financial
year for which they were entered shall be cancelled.

Article 10

Accounting principles

1. The financial statements shall be drawn up in accordance with the
generally accepted accounting principles of the European Union,
in
particular:

(a)

(b)

(c)

(d)

going-concern, meaning that the Agency shall be deemed to be
established for an indefinite duration;

prudence, meaning that assets and income shall not be overstated
and liabilities and charges shall not be understated;

consistent accounting methods, meaning that the structure of the
components of
the financial statements and the accounting
methods and valuation rules may not be changed from one year
to the next. The Accounting Officer may not depart from the
principle of consistent accounting methods other
than in
exceptional circumstances, in particular, where the change made
is for
the
accounting operations;

the sake of a more appropriate presentation of

shall

statements

comparability of information, meaning that for each item the
financial
the
corresponding item the previous year. Where the presentation or
the financial
the classification of one of
statements is changed, the corresponding amounts for the previous
year shall be made comparable and reclassified;

the components of

also show the

amount of

2. However, commitment appropriations not yet committed at the
close of the financial year may be carried over in respect of amounts
corresponding to commitment appropriations for which most of the
preparatory stages of the commitment procedure, namely the selection
of potential contractors, have been completed by 31 December. These
amounts may then be committed up to 31 March of the following year.

3.
Payment appropriations may be carried over in respect of amounts
needed to cover existing commitments or commitments linked to
commitment appropriations carried over, when the appropriations
provided for the relevant lines in the budget for the following financial
year do not cover requirements. Specific appropriations shall be carried
over only once.

4. Appropriations placed in reserve and appropriations for staff
expenditure may not be carried over.

5.
Earmarked revenue not used and appropriations available at
31 December arising from such revenue referred to in Article 5 shall
be carried over automatically and may only be used for the specific
purpose
available
assigned. The
corresponding to earmarked revenue carried over must be used first.

appropriations

to which it

is

6. The Chief Executive shall submit to the Steering Board a proposal on
carry-overs by 15 February. The Steering Board shall take a decision by
15 March.

Article 12

Amending budget

(e) materiality, meaning that all operations which are of significance
for the information sought shall be taken into account in the
financial statements. Materiality shall be assessed in particular by
reference to the nature of the transaction or the amount;

(f)

no netting, meaning that receivables and debts may not be offset
against each other, nor may charges and income, save where

1.
In the case of unavoidable, exceptional or unforeseen circumstances,
the Chief Executive may propose a draft amending budget within the
limits set down in the financial framework, as defined in Article 3.

2. The draft amending budget shall be drawn up, proposed, and
adopted and notification given in accordance with the same procedure as
the general budget, within the limits set down in the financial framework.
The Steering Board shall act with due account to the urgency.

L 269/8

EN

Official Journal of the European Union

12.10.2007

3.
Should the limits set down in the financial framework be considered
insufficient due to exceptional and unforeseen circumstances, taking also
in full account rules set out in Article 4(2) and 4(3), the Steering Board
shall submit the amending budget for adoption by the Council, acting by
unanimity.

2. The Chief Executive may make transfers from one title to another
within a total limit of 10 % of the appropriations for the financial year, or
from one chapter to another, or from one article to another.

Article 13

Revised budget

3. Three weeks before making the transfers referred to in paragraph 2,
the Chief Executive shall
inform the Steering Board of his or her
intentions. Should duly justified reasons be raised during this period by a
participating Member State, the Steering Board shall take a decision.

If necessary, the Chief Executive may submit to the Steering Board a
1.
revised budget of the current financial year based on actual expenses
incurred in the first nine months and estimated expenses until the end of
that financial year within the limit of the adopted budget.

4. The Chief Executive may make transfers within articles and propose
other transfers to the Steering Board.

TITLE II

IMPLEMENTATION OF THE GENERAL BUDGET

CHAPTER 1

Finance staff

Article 14

Principle of segregation of duties

and effectiveness, and for ensuring that the requirements of legality and
regularity are complied with.

The duties of Authorising Officer and Accounting Officer shall be
segregated and mutually incompatible.

2. To implement expenditure, the Authorising Officer by delegation
shall make budgetary commitments and legal commitments, validate
expenditure and authorise payments and undertake the preliminaries for
the implementation of appropriations.

Article 15

Role of Authorising Officer

1. The Chief Executive shall perform the duties of Authorising Officer
on behalf of the Agency.

2. The Agency shall lay down in its internal administrative rules the
staff of an appropriate level to whom the Chief Executive may delegate in
compliance with the conditions in the Agency's rules of procedure the
duties of Authorising Officer and the scope of the powers delegated.

3. The powers of Authorising Officer shall be delegated only to
personnel recruited directly by the Agency under fixed-term contracts,
selected among nationals of participating Member States, in accordance
with Article 11(3)(3.1) of Council Joint Action 2004/551/CFSP.

4. Authorising Officers by delegation may act only within the limits set
by the instrument of delegation. The responsible Authorising Officer by
delegation may be assisted in his or her task by one or more members of
staff entrusted, under his or her responsibility, to carry out certain
operations necessary for implementation of the budget and presentation
of the accounts.

Article 16

Responsibilities of Authorising Officer

1. The Authorising Officer shall be responsible for implementing
revenue and expenditure in accordance with the principles of sound
financial management, including the principles of economy, efficiency

3.
Implementation of revenue shall comprise drawing up estimates of
amounts receivable, establishing entitlements to be recovered and issuing
recovery orders. It shall involve waiving established entitlements where
appropriate.

in place,

in
4. The Authorising Officer by delegation shall put
compliance with the minimum standards adopted by the Agency and
having due regard to the risks associated with the management
environment and the nature of the actions financed, the organisational
structure and the internal management and control procedures suited to
the performance of his or her duties, including where appropriate ex post
verifications. Before an operation is authorised, the operational and
financial aspects shall be verified by members of staff other than the one
who initiated the operation. The initiation and the ex ante and ex post
verification of an operation shall be separate functions.

5. All staff responsible for controlling the management of financial
operations shall have the necessary professional skills. They shall comply
with the Agency's code of professional standards.

6. The Authorising Officer shall be informed in writing by any member
of staff involved in the financial management and control of transactions
who considers that a decision he or she is required by his or her superior
to apply or to agree to is irregular or contrary to the principles of sound
financial management or the professional rules he or she is required to
observe. If he or she fails to take action, the member of staff shall inform
in writing the panel referred to in Article 22(3). In the event of any illegal
activity, fraud or corruption which may harm the interests of the Agency,
inform the authorities and bodies
the Authorising Officer
designated by the applicable legislation.

shall

12.10.2007

EN

Official Journal of the European Union

L 269/9

7. The Authorising Officer shall report to the Steering Board on the
performance of his or her duties in the form of an annual activity report
together with financial and management information. The report shall
indicate the results of the operations by reference to the objectives set,
the risks associated with these operations, the use made of the resources
provided and the way the internal control system functions. The Internal
Auditor shall take note of the annual report and any other pieces of
information identified.

Article 17

Segregation of duties of initiation and verification

(e)

identify and prevent management risks;

(f)

(g)

(h)

ensure reliable production of financial and management informa-
tion;

keep supporting documents relating to, and subsequent to, budget
implementation and budget implementation measures;

keep documents relating to advance guarantees for the Agency and
keep a log to enable such guarantees to be adequately monitored.

1.
Initiation of an operation shall mean all the operations which are
normally carried out by the staff referred to in Article 16(4) and 16(5)
and which are preparatory to the adoption of the acts implementing the
budget by the competent Authorising Officer, by delegation.

Article 19

Role of Accounting Officer

Ex ante verification of an operation shall mean all the ex ante checks
2.
put in place by the Authorising Officer responsible by delegation in order
to verify its operational and financial aspects.

Each operation shall be subject at least to an ex ante verification. The

3.
purpose of that verification shall be to ascertain that:

(a)

the expenditure and revenue are in order and comply with the rules
applicable,
in particular those of the budget and the relevant
regulations and of any acts adopted in implementation of the
Treaties concerned, the legislation applicable and, where appro-
priate, the terms of contracts;

(b)

the principle of sound financial management is applied.

The Agency shall appoint an Accounting Officer
from amongst
personnel recruited directly by the Agency under fixed-term contracts,
selected among nationals of participating Member States, in accordance
with Article 11(3)(1) of Council
Joint Action 2004/551/CFSP. The
Accounting Officer shall be appointed by the Steering Board on the
grounds of his or her particular competence as evidenced by professional
qualifications or by equivalent professional experience.

Article 20

Responsibilities of Accounting Officer

1. The Accounting Officer shall be responsible in the Agency for:

(a)

proper implementation of payments, collection of revenue and
recovery of amounts established as being receivable,
including
interest on late payments as defined in Article 29;

4. The ex post and, where appropriate, on-the-spot verifications of
documents shall check that operations financed by the budget are
correctly implemented and in particular that the criteria referred to in
paragraph 3 are complied with. These verifications may be organised on
a sample basis using risk analysis.

(b)

preparing and presenting the accounts;

(c) maintaining the accounts;

5. The officials or other staff responsible for the verifications referred
to in paragraphs 2 and 4 shall be different from those performing the
tasks of initiation referred to in paragraph 1 and shall not be their
subordinates.

(d)

(e)

Article 18

establishing the accounting rules and methods and the chart of
accounts;

establishing and validating the accounting systems and, where
appropriate, validating systems laid down by the Authorising
Officer to supply or justify accounting information;

Management and internal control procedures

(f)

treasury management.

The management and internal control systems and procedures shall be
designed to:

(a)

achieve the objectives of the policies, programmes and actions of
the Agency in accordance with the principle of sound financial
management;

(b)

comply with the rules of EU law and control standards established
by the Agency;

(c)

safeguard the Agency's assets and information;

(d)

prevent and detect irregularities, errors and fraud;

2. The Accounting Officer shall obtain from Authorising Officers, who
shall guarantee its reliability, all
the information necessary for the
production of accounts which give a true statement of the Agency assets
and of budgetary implementation.

3. Only the Accounting Officer shall be empowered to manage monies
and other assets. He or she shall be responsible for their safekeeping.

4. The Accounting Officer may, in the performance of his or her duties,
delegate certain tasks to subordinates from the personnel recruited
directly by the Agency under fixed-term contracts, selected among
nationals of participating Member States,
in accordance with Arti-
cle 11(3)(1) of Council Joint Action 2004/551/CFSP. The instrument of
delegation shall lay down the tasks entrusted to the delegates.

L 269/10

EN

Official Journal of the European Union

12.10.2007

CHAPTER 2

Liability of the finance staff

Article 21

General rules

1. Without prejudice to any disciplinary action, Authorising Officers by
delegation may at any time have their delegation withdrawn temporarily
or permanently by the authority which appointed them.

2. Without prejudice to any disciplinary action, the Accounting Officer
may at any time be suspended temporarily or permanently from his or
her duties by the authority which appointed him or her.

3. The provisions of this chapter shall be without prejudice to the
criminal-law liability which the persons referred to in this Article may
incur as provided in the applicable national law and in the provisions in
force on the protection of the European Communities' financial interests
and on the fight against corruption involving officials of the European
Communities or officials of participating Member States.

4.
Each Authorising Officer or Accounting Officer shall be liable to
disciplinary action and payment of compensation. In the event of illegal
activity, fraud or corruption which may harm the interests of the Agency,
the matter shall be submitted to the authorities and bodies designated by
the applicable legislation.

Article 22

Rules applicable to Authorising Officers by delegation

to be recovered or

1. The Authorising Officer may be required to make good, in whole or
in part, any damage suffered by the Agency as a result of serious
misconduct on his or her part in the course of or in connection with the
performance of his or her duties, in particular if he or she determines
entitlements
recovery orders, commits
expenditure or signs a payment order without complying with these
financial rules. The same shall apply where, through serious misconduct,
he or she fails to draw up a document establishing an amount receivable
or if he or she fails to issue a recovery order or is, without justification,
late in issuing it, or if he or she fails to issue a payment order or is,
without justification, late in issuing it, thereby rendering the Agency
liable to civil action by third parties.

issues

2. An Authorising Officer by delegation who considers that he or she is
being asked to take a decision that is irregular or contrary to the
principles of sound financial management shall inform the delegating
authority in writing. If the delegating authority then gives a reasoned
written instruction to the Authorising Officer by delegation to take the
decision in question, the Authorising Officer shall not be held liable. In
the event of any illegal activity, fraud or corruption which may harm the
interests of the Agency, the Authorising Officer by delegation shall
inform the authorities and bodies designated by the applicable legislation.

3. The Agency shall set up a specialised financial irregularities panel
which shall function independently and determine whether a financial
irregularity has occurred and what the consequences, if any, should be.
On the basis of the opinion of this panel, the Agency shall decide
whether to initiate proceedings entailing liability to disciplinary action or
to payment of compensation. If the panel detects systemic problems, it
shall send a report with recommendations to the Authorising Officer and
to the Authorising Officer by delegation, provided the latter is not the
person involved, as well as to the Internal Auditor.

Article 23

Rules applicable to Accounting Officers

The Accounting Officer may be required to make good, in whole or in
part, any damage suffered by the Agency as a result of serious
misconduct on his or her part in the course of or in connection with the
performance of his or her duties. He or she may in particular render
himself liable by any of the following forms of misconduct:

(a)

if he or she loses or damages monies, assets and documents in his
or her keeping;

(b)

if he or she wrongly alters bank accounts;

(c)

if he or she recovers or pays amounts which are not in conformity
with the corresponding recovery or payment orders;

(d)

if he or she fails to collect revenue due.

CHAPTER 3

Revenue

Article 24

Article 25

Making available the Agency's revenue

An estimate of revenue constituted by miscellaneous revenue and the
participating Member States' contributions shall be entered in the general
budget in euro. The participating Member States' contributions shall
cover the total appropriations entered in the general budget of the
European Union after miscellaneous revenue has been deducted.

Estimate of amounts receivable

the amount receivable shall be made by the
1. An estimate of
Authorising Officer responsible in respect of any measure or situation
which may give rise to, or modify, an amount owed to the Agency.

2. The Authorising Officer responsible shall issue a recovery order in
respect of these amounts.

12.10.2007

EN

Official Journal of the European Union

L 269/11

Article 26

Establishment of amounts receivable

Establishment of an amount receivable shall be the act by which the

1.
Authorising Officer by delegation:

2. Where the responsible Authorising Officer is planning to waive
recovery of an established amount receivable, he or she shall ensure that
the waiver is in order and complies with the principle of sound financial
management and proportionality in accordance with the procedures and
the criteria laid down in the implementing rules. The waiver decision
shall be substantiated.

(a)

verifies that the debt exists;

Article 29

(b)

determines or verifies the reality and the amount of the debt;

Interest on late payments

(c)

verifies the conditions in which the debt is due.

1. Any amount receivable not repaid on the due date shall bear interest
in accordance with paragraphs 2 and 3.

2. The Agency's revenue and any amount receivable that is identified as
being of a fixed amount and due shall be established by a recovery order
to the Accounting Officer followed by a debit note to the debtor, both
drawn up by the Authorising Officer responsible.

3. Amounts wrongly paid shall be recovered.

Article 27

Authorisation of recovery

1. The authorisation of
recovery shall be the act whereby the
Authorising Officer by delegation responsible instructs the Accounting
Officer, by issuing a recovery order, to recover an amount receivable
which he or she has established.

2. The Agency may formally establish an amount as being receivable
from persons other than States by means of a decision the enforcement
of which is subject to the rules of civil procedure in force in the State in
the territory of which such procedure is carried out.

Article 28

Recovery of funds

1. The Accounting Officer shall act on recovery orders for amounts
receivable duly established by the Authorising Officer by delegation
responsible. He or she shall exercise due diligence to ensure that the
Agency receives its revenue and shall see that its rights are safeguarded.

The Accounting Officer shall recover amounts against any of
Agency's claims.

the

2. The interest rate for amounts receivable not repaid on the due date
shall be the rate applied by the European Central Bank to its principal
refinancing operations, as published in the C series of the Official Journal
of the European Union, in force on the first calendar day of the month in
which the due date falls, increased by:

(a)

seven percentage points where the obligating event is a public
supply and service contract;

(b)

three and a half percentage points in all other cases.

Interest shall be calculated from the calendar day following the due
3.
date specified in the debit note up to the calendar day on which the debt
is repaid in full.

4. Any partial payments shall first cover the interest determined in
accordance with paragraphs 2 and 3.

5.
In the case of fines, where the debtor provides a financial guarantee
which is accepted by the Accounting Officer in lieu of provisional
payment, the interest rate applicable from the due date shall be the rate
referred to in paragraph 2 increased by only one and a half percentage
points.

6. To prevent interest on late payments in the case of participating
Member States' contributions, such Member States shall receive from the
Agency the original signed call for contribution letters at least 30 days in
advance of the instalment dates, as defined in Article 7 paragraph 2.1.

CHAPTER 4

Expenditure

Article 30

General principles

Article 31

Definition of the budgetary commitment

Every item of expenditure shall be committed, validated, authorised

1.
and paid.

2. The commitment of the expenditure shall be preceded by a financing
decision adopted by the Agency or the authorities to which powers have
been delegated by the Agency.

1. The budgetary commitment shall be the operation reserving the
appropriation necessary to cover subsequent payments to honour a legal
commitment. The legal commitment shall be the act whereby the
Authorising Officer enters into, or establishes, an obligation which
results
in a charge. The budgetary commitment and the legal
commitment shall be adopted by the same Authorising Officer, save in
duly substantiated cases as provided for in the implementing rules.

L 269/12

EN

Official Journal of the European Union

12.10.2007

2. The budgetary commitment shall be individual when the beneficiary
the expenditure are known. The budgetary
and the amount of
commitment shall be global when at least one of the elements necessary
to identify the individual commitment is still not known. The budgetary
commitment shall be provisional when it is intended to cover routine
administrative
final
expenditure and either
beneficiaries are not definitively known.

the amount or

the

3. Budgetary commitments for actions extending over more than one
financial year may be broken down over several years into annual
instalments only where the basic act so provides and for administrative
expenditure. Where the budgetary commitment is thus divided into
annual instalments, the legal commitment shall stipulate this, except in
the case of expenditure on staff.

Article 32

Commitment procedure

1.
In respect of any measure which may give rise to expenditure
chargeable to the budget, the Authorising Officer responsible shall first
make a budgetary commitment before entering into a legal obligation
with third parties.

2. Global budget commitments shall cover the total cost of
corresponding
31 December of year n + 1.

the
concluded up to

commitments

individual

legal

to Article 31(3),

Subject
legal commitments relating to
individual or provisional budgetary commitments shall be concluded by
31 December of year n.

individual

the end of

At
the periods referred to in the first and second
subparagraphs, the unused balance of these budgetary commitments
shall be de-committed by the Authorising Officer responsible.

The amount of each individual legal commitment adopted following a
global commitment
shall, before signature, be registered by the
Authorising Officer responsible in the budgetary accounts and booked
to the global commitment.

3. The legal commitments entered into for actions extending over more
than one financial year and the corresponding budgetary commitments
shall, save in the case of staff expenditure, have a final date for
implementation set in compliance with the principle of sound financial
management.

(d)

the principle of sound financial management has been complied
with.

2. When registering a legal commitment, the Authorising Officer shall
ensure that:

(a)

(b)

the commitment
commitment;

is covered by the corresponding budgetary

the expenditure is regular and conforms to the provisions of the
Treaties, of the budget, of these provisions and the applicable
legislation;

(c)

the principle of sound financial management has been complied
with.

Article 34

Validation of expenditure

Validation of expenditure shall be the act whereby the Authorising
Officer responsible:

(a)

verifies the existence of the creditor's entitlement;

(b)

determines or verifies the reality and the amount of the claim;

(c)

verifies the conditions under which payment is due.

Article 35

Authorisation of expenditure

Authorisation of expenditure shall be the act whereby the Authorising
Officer responsible, having verified that the appropriations are available
and by issuing a payment order, instructs the Accounting Officer to pay
an amount of expenditure which he or she has validated.

Article 36

Payment of expenditure

1.
Payment shall be made on production of proof that the relevant
action is in accordance with the provisions of the basic act or the
contract and shall cover one or more of the following operations:

Any parts of such commitments which have not been executed six
months after such final date shall be de-committed and the appropria-
tions concerned cancelled.

(a)

payment of the entire amount due;

(b)

payment in one or more interim payments.

Where a legal commitment has not then resulted in a payment after a
period of three years, the Authorising Officer responsible shall de-
commit it.

2. A distinction shall be made in the accounts between the different
types of payment referred to in paragraph 1 at the time they are made.

Article 33

Authorisation of commitment

1. When adopting a budgetary commitment, the Authorising Officer
responsible shall ensure that:

(a)

the expenditure has been charged to the correct item in the budget;

(b)

the appropriations are available;

Payment of expenditure shall be made by the Accounting Officer

3.
within the limits of the funds available.

Article 37

Time limits for payment

1.
Sums due shall be paid within no more than 45 calendar days from
the date on which an admissible payment request is registered by the
authorised department of the Authorising Officer responsible. The date
of payment shall mean the date on which the Agency's account is
debited.

(c)

the expenditure conforms to the provisions of the Treaties, of the
budget, of these provisions and the applicable legislation;

The payment request shall not be admissible if at least one essential
requirement is not met.

12.10.2007

EN

Official Journal of the European Union

L 269/13

2. Notwithstanding paragraph 1, the payment period referred to in that
paragraph shall be 30 calendar days for payments relating to service or
supply contracts, save where the contract provides otherwise.

3.
For contracts or agreements under which payment depends on
approval of a report, time for the purposes of the payment periods
referred to in paragraphs 1 and 2 shall not begin to run until the report
in question has been approved, either explicitly with the beneficiary
being informed, or implicitly because the time allowed by the contract
for approval has expired without being suspended by means of a formal
document sent to the beneficiary.

The time allowed for approval may not exceed:

(a)

20 calendar days for straightforward contracts relating to the
supply of goods and services;

(b)

45 calendar days for other contracts and grant agreements;

(c)

60 calendar days for contracts involving technical services which
are particularly complex to evaluate.

4. The Authorising Officer responsible may suspend the time limit for
payment by informing creditors, at any time during the period referred to
in paragraph 1, that the payment request cannot be met, either because
the amount is not due or because the appropriate supporting documents

have not been produced. If information comes to the notice of the
Authorising Officer responsible which puts in doubt the eligibility of
expenditure appearing in a payment request, the Authorising Officer may
suspend the time limit
further
verification, including an on-the-spot check, in order to ascertain, before
payment, that the expenditure is indeed eligible. The Authorising Officer
shall inform the beneficiary in question as soon as possible.

the purpose of

for payment

for

Time for the purposes of the remainder of the payment period shall
begin to run again from the date on which the properly formulated
payment request is first registered.

5. On expiry of the time limits laid down in paragraphs 1 and 2, the
creditor may, within two months of receiving late payment, demand
interest in accordance with the following provisions:

(a)

(b)

the interest rates shall be those referred to in the first subparagraph
of Article 29(2);

the interest shall be payable for the period elapsing from the
calendar day following expiry of the time limit for payment up to
the day of payment.

The first subparagraph of this paragraph shall not apply to participating
Member States.

CHAPTER 5

IT systems

Article 38

Accounting software

1. The Agency's accounting software shall reflect the principles laid out in these financial rules.

2. Documents may be signed by a secure computerised or electronic procedure.

CHAPTER 6

Internal audit

Article 39

Role of Internal Auditor

Article 40

Responsibilities of Internal Auditor

1. The Agency shall establish an internal auditing function which must
be performed in compliance with the relevant international standards.
The Internal Auditor appointed by the Agency shall be answerable to the
latter for verifying the proper operation of budgetary implementation
systems and procedures. The Internal Auditor may be neither the
Authorising Officer nor the Accounting Officer.

1. The Internal Auditor shall advise the Agency on dealing with risks,
by issuing independent opinions on the quality of management and
control systems and by issuing recommendations for improving the
conditions of
implementation of operations and promoting sound
financial management.

The Internal Auditor shall be responsible in particular:

2.
Special rules applicable to the Internal Auditor shall be laid down by
the Agency and shall be such as to guarantee that he or she is totally
independent in the performance of his or her duties and to establish his
responsibility.

(a)

for assessing the suitability and effectiveness of internal manage-
ment systems and the performance of departments in implement-
ing policies, programmes and actions by reference to the risks
associated with them;

L 269/14

EN

Official Journal of the European Union

12.10.2007

(b)

for assessing the suitability and quality of the internal control and
audit systems applicable to every budgetary implementation
operation.

2. The Internal Auditor shall perform his or her duties on all the
Agency's activities and departments. He or she shall enjoy full and
unlimited access to all information required to perform his or her duties,
if necessary on the spot.

3. The Internal Auditor shall report to the Agency on his or her
findings and recommendations. The Agency shall ensure that action is

taken on recommendations resulting from audits. The Internal Auditor
shall also submit to the Agency an annual internal audit report indicating
the number and type of internal audits carried out, the recommendations
made and the action taken on those recommendations.

4.
Each year the Chief Executive shall forward a report to the Steering
Board summarising the number and type of internal audits carried out,
the recommendations made and the action taken on those recommenda-
tions.

TITLE III

FINANCIAL REPORTING AND ANNUAL AUDIT

Article 41

Budgetary and reporting calendar

shall be appointed respectively for three, two and one audits. A fair
rotation amongst
the participating Member States wishing to send
auditors shall be ensured.

The Agency shall provide the Steering Board with the following
documents:

by 15 February, a proposal on carry-overs, as stipulated in
Article 11;

4. The Steering Board shall appoint the College of Auditors from
candidates proposed by the participating Member States. The candidates
shall preferably be members of the supreme national audit institution of
the participating Member States and offer adequate guarantees of security
and independence. They shall be available to carry out tasks on behalf of
the Agency as needed. In carrying out these tasks:

by 30 June, an overall estimate of the draft general budget for the
following year, as stipulated in Article 4(1);

by 30 September, a draft general budget for the following financial
year, as stipulated in Article 4(9);

if necessary, after the first nine months of the financial year, a
revised budget of
financial year, as stipulated in
Article 13;

the current

(a)

(b)

(e)

quarterly financial reports, as stipulated in Article 42;

the members of the college shall continue to be paid by their audit
body of origin and shall only receive from the Agency
reimbursement of their mission expenses on the same basis as
provided for
the
European Communities of an equivalent grade;

to officials of

applicable

in the

rules

they shall neither request, nor receive, instructions other than from
the Steering Board; within its audit mandate,
the College of
Auditors and its members shall be completely independent and
solely responsible for the conduct of the external audit;

(a)

(b)

(c)

(d)

(f)

reports on the operational budget, as stipulated in Article 2;

(c)

they shall report on their task only to the Steering Board;

(g)

the audited financial report approved by the Steering Board on
1 September, as stipulated in Article 44.

(d)

Article 42

Quarterly reporting

Every three months the Chief Executive shall present the Steering Board
with a report on the implementation of revenue and expenditure during
the preceding three months and since the beginning of the financial year.

Article 43

College of Auditors

they shall check that revenue and expenditure administered by the
Agency has been implemented in conformity with the applicable
legislation and the principles of sound financial management and
that is in accordance with the principles of economy, effectiveness
and efficiency.

5.
Each year, the College of Auditors shall elect its chairman for the
forthcoming financial year. It shall adopt the rules applicable to audits
carried out by its members in accordance with the highest international
standards on auditing. The College of Auditors shall approve the audit
reports drawn up by its members before their transmission to the Chief
Executive and to the Steering Board.

1. An external audit of the expenditure,
including functioning and
operational budgets, and revenue administered by the Agency shall be
carried out following the end of each financial year.

6. The auditors shall ensure that they respect the confidentiality of the
information and protect the data of which they acquire knowledge
during their audit task, in accordance with the rules applicable to that
information and data.

2. The College of Auditors shall be composed of three auditors from
three different participating Member States, supported by staff as
required, acting under their responsibility.

3. The members of the College of Auditors shall be appointed for a
period of three subsequent audits, except for the initial members, who

7. The auditors shall have access without delay and without giving
prior notice to the documents and to the contents of all data supports
relating to that
including any written
documents referred to in Article 22, and to the premises where those
documents and supports are kept. They may make copies. The persons
involved in implementing the Agency's revenue and expenditure shall

revenue and expenditure,

12.10.2007

EN

Official Journal of the European Union

L 269/15

give the Chief Executive and the persons responsible for the audit of that
expenditure the necessary assistance in performing their task. Expenses
related to the audit shall be charged to the Agency's general budget.

2. By 15 June following the end of the financial year, the College of
Auditors shall submit to the Chief Executive its annual audit report
containing the College's opinion and observations on the draft financial
report referred to in paragraph 1.

8. The Steering Board, on the basis of a proposal by the Chief Executive
or a Member State, may at any time additionally appoint external
auditors, whose tasks and conditions of employment it shall determine.

Article 44

Annual audit

1. By 31 March following the end of the financial year, the Chief
Executive shall submit to the College of Auditors, for examination and
opinion, a draft of the annual financial report.

The financial report of the European Defence Agency shall be composed
of different sections, in particular:

(a)

(b)

(c)

the activity report, which shall describe major aspects of the
financial year;

the management accounts, which shall show for each budget
administered by the Agency, appropriations, expenditure com-
mitted and paid, as well as miscellaneous revenue and revenue
from participating Member States and other parties;

the balance sheet, as per end of the financial year, which shall show
the assets belonging to the Agency and liabilities, taking account of
depreciation and any disposals.

3. By 15 July following the end of the financial year, the Chief Executive
shall submit to the Steering Board the audited financial report and the
audit report accompanied by his replies.

4. By 1 September following the end of the financial year, the Steering
Board shall approve the audited financial report and grant the discharge
to the Chief Executive and the Accounting Officer for the financial year.

5. Once approved by the Steering Board, the publication of the audited
financial report shall be notified in the Official Journal of the European
Union.

6. All accounts and inventories shall be retained by the Accounting
Officer
five years from the date on which the
corresponding discharge was granted.

for a period of

Article 45

Final article

rules shall not affect existing measures taken by
These financial
participating Member States under Article 296 of the Treaty establishing
the European Community or under Articles 10 and 14 of Directive
2004/18/EC of the European Parliament and of the Council of 31 March
2004 on the coordination of procedures for the award of public works
contracts, public supply contracts and public service contracts (1).

(1) OJ L 134, 30.4.2004, p. 114. Directive as amended by Directive 2006/97/EC

(OJ L 363, 20.12.2006, p. 107).

L 269/16

EN

Official Journal of the European Union

12.10.2007

PROCUREMENT RULES AND RULES FOR FINANCIAL CONTRIBUTIONS FROM THE OPERATIONAL
BUDGET OF THE EUROPEAN DEFENCE AGENCY (THE AGENCY)

CONTENTS

CHAPTER 1 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 1

Definitions and scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 2

Award principles and contracts with lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 3

Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 4

Procurement procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 5

Thresholds and estimation of contract value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 6

Call for tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 7

Participation in tendering procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 8

WTO Agreement on Government Procurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 9

Exclusion criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 10

Absence of conflict of interest and of misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 11

Central database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 12

Administrative or financial penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 13

Selection criteria and award procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 14

General principles for tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 15

Contacts between the Agency and the candidates or tenderers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 16

Informing candidates and tenderers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 17

Cancellation or abandonment of the procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 18

Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 19

Vitiation of the procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 2

IMPLEMENTING MODALITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 20

Framework agreements and specific contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 21

Advertising of contracts covered by Directive 2004/18/EC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 22

Advertising of contracts not covered by Directive 2004/18/EC . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 23

Publication of notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 24

Other forms of advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 25

Types of procurement procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 26

Number of candidates in restricted or negotiated procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 27

Arrangements for negotiated procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 28

Contests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 29

Dynamic purchasing system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

18

18

19

19

19

20

20

20

20

20

21

21

21

21

21

21

22

22

22

22

22

23

23

24

24

24

24

25

25

25

12.10.2007

EN

Official Journal of the European Union

L 269/17

Article 30

Competitive dialogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 31

Use of a negotiated procedure without prior publication of a contract notice . . . . . . . . . . . . .

Article 32

Use of a negotiated procedure after prior publication of a contract notice . . . . . . . . . . . . . . . . .

Article 33

Calls for expressions of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 34

Low-value contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 35

Thresholds for pre-information notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 36

Thresholds applicable to the procedures under Directive 2004/18/EC . . . . . . . . . . . . . . . . . . . . . .

Article 37

Documents relating to the invitation to tender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 38

Technical specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 39

Price revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 40

Administrative and financial penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 41

Evidencing documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 42

Selection criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 43

Economic and financial capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 44

Technical and professional capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 45

Award arrangements and award criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 46

Use of electronic auctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 47

Abnormally low tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 48

Time limits for receipt of tenders and requests to participate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 49

Time allowed for access to invitation to tender documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 50

Time limits in urgent cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 51

Methods of communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 52

Opening of tenders and requests to participate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 53

Committee for the evaluation of tenders and requests to participate . . . . . . . . . . . . . . . . . . . . . . .

Article 54

Article 296 TEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 3 RULES FOR FINANCIAL CONTRIBUTIONS FROM THE OPERATIONAL BUDGET . . . . . . .

Article 55

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 56

Evaluation of proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 57

Content of calls for proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 58

Applications for financial contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 59

Content of financial contribution agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 60

Supporting documents for requests for payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

26

27

27

28

28

28

28

29

30

30

31

31

32

32

33

33

34

34

35

35

35

36

36

36

37

37

37

37

37

38

38

L 269/18

EN

Official Journal of the European Union

12.10.2007

CHAPTER 1

GENERAL PROVISIONS

Article 1

Definitions and scope

A contract having as its object services and involving works that
are only incidental
in relation to the principal object of the
contract shall be considered a service contract.

1.
Public contracts shall be contracts for pecuniary interest concluded
in writing by the Agency acting as a contracting authority, in order to
obtain, against payment of a price paid in whole or in part from the
general budget,
the
execution of works or the provision of services.

the supply of movable or

immovable assets,

A contract having as its object services covered by Annex IIA to
Directive 2004/18/EC and services covered by Annex IIB thereto
shall be considered as covered by Annex IIA if the value of the
services listed in that Annex exceeds that of the services listed in
Annex IIB;

Public contracts shall comprise:

(a)

contracts for the purchase or rental of a building;

(f) the description of the various types of contract shall be based on
the reference nomenclature constituted by the common procure-
ment vocabulary (CPV) within the meaning of Regulation (EC)
No 2195/2002 of the European Parliament and of the Council (2).

(b)

supply contracts;

(c)

works contracts;

(d)

service contracts.

In the event of differences between the CPV and the statistical
classification of economic activities in the European Community
(NACE), listed in Annex I to Directive 2004/18/EC, or between the
(provisional
CPV and the Central Product Classification (CPC)
version),
the NACE
to that Directive,
nomenclature or the CPC nomenclature respectively shall take
precedence;

listed in Annex II

2.

(a) Building contracts shall cover the purchase, long lease, leasing,
rental or hire purchase, with or without option to buy, of land,
existing buildings or other real estate;

(b) supply contracts shall cover the purchase, leasing, rental or hire
purchase, with or without option to buy, of products. A contract
for the supply of products and,
for siting and
incidentally,
installation shall be considered a supply contract;

(c) works contracts shall cover either the execution, or both the
execution and design, of works or a work related to one of the
activities referred to in Annex I to Directive 2004/18/EC of the
European Parliament and of the Council of 31 March 2004 on the
coordination of procedures
the award of public work
for
contracts, public supply contracts and public service con-
tracts (1) or
the realisation, by whatever means, of a work
corresponding to the requirements specified by the Agency.
‘Work’ shall mean the outcome of building or civil engineering
works taken as a whole that is sufficient of itself to fulfil an
economic or technical function;

(d) service contracts shall cover all intellectual and non-intellectual
services other than those covered by supply contracts, works
contracts and building contracts. Those services are listed in
Annexes IIA and IIB to Directive 2004/18/EC;

(g) the terms ‘contractor’, ‘supplier’ and ‘service provider’ shall refer to
any natural or legal person or public entity or consortium of such
persons and/or bodies which offers to execute works, supply
products and provide services respectively. The term ‘economic
operator’
and ‘service
‘contractors’,
providers’. Economic operators who have submitted a tender
shall be referred to as ‘tenderers’. Those who have asked to be
allowed to take part
including a
competitive dialogue, or in a negotiated procedure shall be
referred to as ‘candidates’;

in a restricted procedure,

‘suppliers’

cover

shall

(h) the term ‘operational budget’ shall refer to Article 2 of

the
Financial rules of the European Defence Agency and ‘functioning
budget’ to the general budget (as defined in Article 1 of the
Financial rules of the European Defence Agency), except the
operational budget;

(i) the term ‘contract related to defence’ shall refer to a contract to be
concluded by the Agency in the fields where Member States may
invoke the exception of Article 10 of Directive 2004/18/EC.

Article 2

Award principles and contracts with lots

(e) a contract covering both products and services shall be considered
a service contract where the value of the services in question
exceeds that of the products included in the contract.

1. All public contracts financed in whole or in part by the general
budget shall comply with the principles of transparency, proportionality,
equal treatment and non-discrimination.

(1) OJ L 134, 30.4.2004, p. 114. Directive as amended by Directive 2006/97/EC

(OJ L 363, 20.12.2006, p. 107).

(2) OJ L 340, 16.12.2002, p. 1.

12.10.2007

EN

Official Journal of the European Union

L 269/19

2. All procurement contracts shall be put out to tender on the broadest
possible base, except when use is made of the negotiated procedure
referred to in Article 4(1)(f).

(e)

the competitive dialogue;

(f)

the negotiated procedure.

3. The estimated value of a contract may not be determined with a view
to evading the requirements laid down in these Provisions, nor may a
contract be split up for that purpose.

Article 5

Thresholds and estimation of contract value

4. Where the subject of a supply, service or works contract
is
lots, each one the subject of an individual
subdivided into several
contract, the value of each lot shall be taken into account for the overall
evaluation of the applicable threshold.

Except as otherwise provided herein for those contracts related to
lay down the thresholds which

1.
defence, Directive 2004/18/EC shall
determine:

Where the overall value of lots is equal to, or exceeds, the thresholds laid
down in Article 36, then Articles 3 and 4 shall apply to each of the lots,
save those with an estimated value of less than EUR 80 000 in the case of
service or supply contracts, or less than EUR 1 million in the case of
works contracts, provided that the aggregate amount of those lots does
not exceed 20 % of the aggregate value of all the lots making up the
contract in question.

(a)

the publication arrangements referred to in Article 3;

(b)

the choice of procedures referred to in Article 4;

(c)

the corresponding time limits.

5. Where the planned purchase of standard supplies may give rise to
simultaneous contracts in separate lots, the estimated value of all those
lots shall be taken as the basis for determining the applicable threshold.

2.
It shall be for each Authorising Officer by delegation or sub-
delegation to assess whether the thresholds referred to in paragraph 1
have been reached.

Article 3

Publication

1.
Except in the case of secret contracts and except also as otherwise
provided herein for those contracts related to defence, all contracts
exceeding the thresholds provided for in Directive 2004/18/EC shall be
published in the Official Journal of the European Union.

Contract notices shall be published in advance except in the cases of low-
value contracts referred to in Article 34 and except as otherwise provided
herein.

Publication of certain information after the contract has been awarded
may be dropped where it would hinder application of the law, would be
contrary to the public interest or to the interest of the Agency or of the
Union, would harm the legitimate business interests of public or private
undertakings or could distort fair competition between them.

in
2. Contracts with a value below the thresholds provided for
Article 34 shall be advertised as appropriate, except as otherwise
provided herein.

Article 4

Procurement procedures

Procurement procedures shall take one of the following forms:

(a)

the open procedure;

(b)

the restricted procedure;

(c)

contests;

(d)

the dynamic purchasing system;

3.
For the purposes of calculating the estimated amount of a contract,
the Agency shall include the contractor's total estimated remuneration.

Where a contract provides for options or possible renewal, the basis for
calculation shall be the maximum amount authorised, including the use
of option clauses and renewal.

This estimate shall be made when the contract notice is sent or, where
there is no such publicity, when the Agency initiates the award
procedure.

4.
For framework agreements and dynamic purchasing systems, the
value to be taken into account shall be the maximum value of all the
contracts envisaged during the total lifetime of the framework agreement
or dynamic purchasing system.

5.

For service contracts, account shall be taken of:

(a)

(b)

(c)

in the case of insurance services, the premium payable and other
forms of remuneration;

in the case of banking or financial services, the fees, commissions,
interest and other types of remuneration;

in the case of design contracts, the fees, commissions payable and
other forms of remuneration.

6.
In the case of service contracts which do not specify a total price or
of supply contracts for leasing, rental or hire purchase of products, the
value to be taken as the basis for calculating the estimated value shall be:

(a)

in the case of fixed-term contracts:

(i)

where their term is 48 months or less in the case of services
or 12 months or less in the case of supplies, the total
contract value for their duration;

L 269/20

EN

Official Journal of the European Union

12.10.2007

(ii) where their term is more than 12 months in the case of
supplies, the total value including the estimated residual
value.

Article 8

WTO Agreement on Government Procurement

(b)

in the case of contracts for an indefinite period or, in the case of
services, for a period exceeding 48 months, the monthly value
multiplied by 48.

In the case of service or supply contracts which are awarded
7.
regularly or are to be renewed within a given time, the contract value
shall be established on the basis of:

(a)

(b)

either the actual aggregate cost of similar contracts for the same
categories of services or products awarded over the previous
financial year or 12 months, adjusted, where possible,
for
anticipated changes in quantity or value over the 12 months
following the initial contract; or

the estimated aggregate cost of successive contracts during the
12 months following the first service performed or first delivery or
during the term of
the contract, where this is greater than
12 months.

8.
In the case of works contracts, account shall be taken not only of the
value of the works but also of the estimated total value of the supplies
needed to carry out the works and made available to the contractor by
the Agency.

Article 6

Call for tenders

A full, clear and precise description of the subject of the contract shall be
given in the documents relating to the call for tenders.

Article 7

Participation in tendering procedures

1.
Participation in tendering procedures shall be open on equal terms
to all natural and legal persons coming within the scope of the Treaties
and to all natural and legal persons in a third country which has with the
European Communities a special agreement
in the field of public
procurement under the conditions laid down in that agreement.

2.
Participation in tendering procedures for contracts related to defence
shall be open on equal terms only to natural and legal persons having a
technological and/or industrial base appropriate for the related contract
on the territory of any of the Member States of the European Union or
on the territory of any third country having entered into an
administrative arrangement with the Agency providing that natural
and legal persons of such country may participate in tendering
procedures for contracts related to defence, under the conditions laid
down in that arrangement.

Except for those contracts related to defence, where the Multilateral
Agreement on Government Procurement concluded within the World
Trade Organisation applies, the contracts shall also be open to nationals
of states which have ratified that Agreement, under the conditions laid
down therein.

Article 9

Exclusion criteria

1. Candidates or tenderers shall be excluded from participation in a
procurement procedure if:

(a)

(b)

(c)

(d)

(e)

(f)

they are bankrupt or being wound up, are having their affairs
administered by the courts, have entered into an arrangement with
creditors, have suspended business activities, are the subject of
proceedings concerning those matters, or are in any analogous
situation arising from a similar procedure provided for in national
legislation or regulations;

they have been convicted of an offence concerning their
professional conduct by a judgment which has the force of res
judicata;

they have been guilty of grave professional misconduct proven by
any means which the Agency can justify;

they have not fulfilled obligations relating to the payment of social
security contributions or the payment of taxes in accordance with
the legal provisions of the country in which they are established or
with those of the country of the Agency or those of the country
where the contract is to be performed;

they have been the subject of a judgment which has the force of res
judicata for fraud, corruption, involvement in a criminal organisa-
tion or any other illegal activity detrimental to the Communities' or
the Agency's financial interests;

following another procurement procedure financed by the budget
of the European Union or the Agency's general budget, they have
been declared to be in serious breach of contract for failure to
comply with their contractual obligations.

2. Without prejudice to Article 41, candidates or tenderers must certify
that they are not in one of the situations listed in paragraph 1 of this
Article.

Article 10

Absence of conflict of interest and of misrepresentation

Contracts may not be awarded to candidates or tenderers who, during
the procurement procedure:

3. Consortia of economic operators shall be authorised to submit
tenders or to be candidates. The Agency may not demand that consortia
must have a given legal form in order to be allowed to submit a tender or
request to take part, but the consortium selected may be required to
adopt a given legal form after it has been awarded the contract if this
change is necessary for proper performance of the contract.

(a)

are subject to a conflict of interest;

(b)

are guilty of misrepresentation in supplying the information
required by the Agency as a condition of participation in the
contract procedure or fail to supply this information.

12.10.2007

EN

Official Journal of the European Union

L 269/21

Article 11

Central database

The Agency shall establish a central database containing details of
candidates and tenderers who are in one of the situations described in
Articles 9 and 10. The sole purpose of the database shall be to ensure, in
compliance with Community rules on the processing of personal data,
the correct application of Articles 9 and 10.

Article 12

Administrative or financial penalties

Administrative or financial penalties may be imposed by the Agency on
candidates or tenderers who are in one of the cases of exclusion provided
for in Articles 9 and 10, after they have been given the opportunity to
present their observations.

These penalties may consist:

(a)

(b)

in the exclusion of the candidate or tenderer concerned from
contracts financed by the Agency's general budget, for a maximum
period of five years;

in the payment of financial penalties by the contractor in the case
referred to in Article 9(1)(f) and by the candidate or tenderer in the
cases referred to in Article 10 where they are really serious and
without exceeding the value of the contract in question.

The penalties imposed shall be in proportion to the importance of the
contract and the seriousness of the misconduct.

Article 13

Selection criteria and award procedures

1. The selection criteria for evaluating the capability of candidates or
tenderers and the award criteria for evaluating the content of the tenders
shall be defined in advance and set out in the call for tender.

2. Contracts may be awarded by the automatic award procedure or by
the best-value-for-money procedure.

Article 14

General principles for tenders

1. The arrangements for submitting tenders shall ensure that there is
genuine competition and that the contents of tenders remain confidential
until they are all opened simultaneously.

2. The Agency may require tenderers, as provided in Article 18, to
lodge a security in advance as a guarantee that the bids made will not be
withdrawn.

3. With the exception of contracts with a value of less than or equal to
EUR 60 000, applications and tenders shall be opened by an opening
committee appointed for
this purpose. Any tender or application
declared by the committee not to satisfy the conditions laid down shall
be rejected.

Article 15

Contacts between the Agency and the candidates or tenderers

1. While the procurement procedure is underway, all contacts between
the Agency and candidates or tenderers shall satisfy conditions ensuring
transparency and equal
in
paragraphs 2 and 3. They may not lead to amendment of the conditions
of the contract or the terms of the original tender.

treatment under the conditions set out

2. Before the closing date for the submission of tenders, in respect of
the additional documents and information referred to in Article 49, the
Agency may:

(a)

(b)

at the instance of tenderers, communicate additional information
solely for the purpose of clarifying the nature of the contract, such
information to be communicated on the same date to all tenderers
who have asked for the specifications;

at its own instance, if it discovers an error, a lack of precision, an
omission or any other type of clerical defect in the text of the
contract notice, invitation to tender or specifications, inform the
persons concerned on the same date and in a manner identical
with that applicable in respect of the original invitation to tender.

3.
If, after the tenders have been opened, some clarification is required
in connection with a tender, or if obvious clerical errors in the tender
must be corrected, the Agency may contact the tenderer, although such
contact may not lead to any alteration of the terms of the tender.

In every case where contact has been made, a ‘note for the file’ shall

4.
be drawn up.

5.
In the case of contracts for legal services within the meaning of
Annex IIB to Directive 2004/18/EC and in the case of contracts related to
defence, the Agency may enter into the necessary contacts with tenderers
to check the selection and/or award criteria.

Article 16

Informing candidates and tenderers

1. The Authorising Officer shall decide to whom the contract is to be
awarded, in compliance with the selection and award criteria laid down
in advance in the documents relating to the call for tenders and the
procurement rules.

in writing, of

tenderers whose
2. The Agency shall notify all candidates or
applications or tenders are rejected of
the grounds on which the
decision was taken, and all tenderers whose tenders are admissible and
who make a request
the characteristics and relative
advantages of the successful tender and the name of the tenderer to
whom the contract is awarded. However, certain details need not be
disclosed where disclosure would hinder application of the law, would be
contrary to the public interest or to the interest of the Agency or of the
Union or would harm the legitimate business interests of public or
private undertakings or could distort fair competition between those
undertakings.

4. All applications or tenders declared by the opening committee to
satisfy the conditions laid down shall be evaluated, on the basis of the
selection and award criteria laid down in advance in the documents
relating to the call for tenders, by a committee appointed for this purpose
with a view to proposing to whom the contract should be awarded.

The Agency shall, at the same time as the unsuccessful candidates or
tenderers are informed that their tenders or applications have not been
accepted, inform the successful tenderer of the award decision, specifying
that the decision notified does not constitute a commitment on the part
of the Agency.

L 269/22

EN

Official Journal of the European Union

12.10.2007

Article 17

Cancellation or Abandonment of the procedure

The Agency may, before the contract is signed, either abandon the
procurement or cancel the award procedure without the candidates or
tenderers being entitled to claim any compensation. The decision must be
substantiated and be brought to the attention of the candidates or
tenderers.

Article 18

Guarantees

1. The Agency may and, in certain cases provided hereunder, shall,
require contractors to lodge a guarantee in advance in order to:

(a)

ensure full performance of the contract;

(b)

limit the financial risks connected with prepayment.

2. The Agency may require a tender guarantee representing 1 % to 2 %
of the total value of the contract. A tender guarantee shall be released
when the contract is awarded. If no tender is submitted by the deadline
set or if the tender is subsequently withdrawn, the guarantee shall be
retained.

3. Where suppliers, contractors or service providers are required to
lodge a guarantee in advance, it must be for an amount and a period that
are sufficient for it to be activated. The guarantee shall be supplied by a
bank or an authorised financial institution. It may be replaced by a joint
and several guarantee by a third party acceptable to the Agency. The
guarantee shall be denominated in euro. It shall have the effect of making
the bank or financial institution or the third party stand as irrevocable
collateral security, or first-call guarantor of the contractor's obligations.

for works contracts. A guarantee corresponding to 10 % of the total
value of the contract may be constituted by deductions from payments as
and when they are made. It may be replaced by an amount withheld from
the final payment in order to constitute a guarantee until final acceptance
of
the services, supplies or works. Guarantees shall be released in
accordance with the terms of the contract, save where the contract has
not been performed or has been performed incorrectly or completion is
late. In such cases a proportion of the guarantee shall be retained in
proportion to the seriousness of the damage suffered.

5. A guarantee shall be required in return for any prepayment
exceeding EUR 150 000 or in the cases referred to in Article 42(6).

However where the contractor is a public body, the Authorising Officer
responsible may, depending on his risk assessment, waive that obligation.

The guarantee shall be released as and when the prepayment is deducted
from interim payments or payments of balances to the contractor in
accordance with the terms of the contract.

Article 19

Vitiation of the procedure

1. Where the award procedure or performance of the contract is
vitiated by substantial errors or irregularities or by fraud, the Agency
shall suspend performance of the contract. Contracts shall be suspended
in order to verify whether presumed substantial errors or irregularities or
fraud have actually occurred. If they are not confirmed, performance of
the contract shall resume as soon as possible (and the Agency shall grant
an extension of the contractual time limits).

2. Where such errors,
irregularities or fraud are attributable to the
contractor, the Agency may in addition refuse to make payments or may
recover amounts already paid, in proportion to the seriousness of the
errors, irregularities or fraud.

4. A performance guarantee may be demanded by the Authorising
Officer in accordance with the usual commercial terms for supply and
service contracts and in accordance with the special specifications for
works contracts. This guarantee shall be mandatory above EUR 345 000

3. A substantial error or irregularity shall be any infringement of a
provision of a contract or regulation resulting from an act or an omission
which causes or might cause a loss to the Agency budget.

CHAPTER 2

IMPLEMENTING MODALITIES

Article 20

The term of a framework agreement may not exceed four years, save in
exceptional cases duly justified in particular by the subject of
the
framework agreement.

Framework agreements and specific contracts

1. A framework agreement shall be an agreement between the Agency
and one or more economic operators the purpose of which is to establish
the terms governing contracts which may be awarded during a given
period, in particular with regard to price and, where appropriate, the
quantities envisaged. Where a framework agreement is concluded with
several economic operators, the latter shall be at least three in number,
insofar as there is a sufficient number of economic operators who satisfy
the selection criteria and/or of admissible tenders which meet the award
criteria.

The Agency may not use framework agreements improperly or in such a
way that
restrict or distort
competition.

the purpose or effect

is to prevent,

Framework agreements shall be treated as procurement contracts for the
purposes of the award procedure, including advertising.

A framework agreement with a number of economic operators may take
the form of separate contracts but concluded in identical terms.

2.
Specific contracts based on framework agreements shall be awarded
in accordance with the terms of the framework agreement, only between
the Agency and the economic operators originally party to the
framework agreement.

12.10.2007

EN

Official Journal of the European Union

L 269/23

When awarding specific contracts, the parties may not make substantial
amendments to the terms laid down in that framework agreement, in
particular in the case referred to in paragraph 3.

procedures specified in point 3 of Annex VIII to Directive 2004/18/EC, a
notice announcing the publication of a pre-information notice on a
buyer profile.

3. Where a framework agreement is concluded with a single economic
operator, the specific contracts shall be awarded within the limits of the
terms laid down in the framework agreement.

For the award of those specific contracts, the Agency may consult in
writing the economic operator party to the framework agreement,
requesting it to supplement its tender if necessary.

4.
Specific contracts based on framework agreements concluded with a
number of economic operators shall be awarded in accordance with the
following arrangements:

(a)

by application of the terms laid down in the framework agreement
without reopening competition;

(b) where not all the terms are laid down in the framework agreement,
after the parties have again competed on the basis of the same and,
if necessary, more precisely formulated terms, and, where
terms referred to in the
appropriate, on the basis of other
specification for the framework agreement.

For every specific contract
to be awarded in accordance with the
arrangements in point (b) of the first subparagraph, the Agency shall
consult in writing the economic operators capable of performing the
contract, fixing a time limit which is sufficiently long to allow tenders to
be submitted. Tenders shall be submitted in writing. The Agency shall
award each specific contract to the tenderer who has submitted the best
tender on the basis of the award criteria set out in the specification for
the framework agreement.

5. Only specific contracts concluded under framework agreements
shall be preceded by a budget commitment.

3. The contract notice shall be the means by which the Agency makes
known its intention to launch a procurement procedure. It shall be
compulsory for contracts of an estimated value equal to or greater than
the thresholds laid down in points (a) and (c) of Article 36. It shall not be
compulsory for specific contracts awarded under a framework agree-
ment.

If the Agency wishes to award a specific contract based on a dynamic
purchasing system, it shall make known its intention by means of a
simplified contract notice.

Where there is unrestricted, direct and full access to the call for tenders
by electronic means, in particular in the dynamic purchasing systems
referred to in Article 29, the Internet address at which these documents
can be consulted shall appear in the contract notice.

In an open procedure the contract notice shall specify the date, time and
place of the meeting of the opening committee, which shall be open to
the tenderers, except for contracts related to defence.

The Agency, when wishing to organise a contest, shall issue a notice
announcing its intention.

4. The award notice shall give the outcome of
the procurement
procedure. In the case of contracts the value of which is equal to or
greater than the thresholds laid down in Article 36, the award notice
shall be compulsory. It shall not be compulsory for specific contracts
awarded under a framework agreement.

The award notice shall be sent to the Office for Official Publications of
the European Communities no later than 48 calendar days after the date
on which the contract is signed.

Article 21

Advertising of contracts covered by Directive 2004/18/EC

However, notices relating to contracts based on a dynamic purchasing
system may be grouped together on a quarterly basis. In such cases, they
shall be sent to the Office for Official Publications of the European
Communities no later than 48 days after the end of each quarter.

1.
In the case of contracts covered by the Directive 2004/18/EC,
publication shall consist in a pre-information notice, a contract notice
and an award notice.

If the Agency has held a design contest, it shall send the Office for
Official Publications of the European Communities a notice of the results
of the contest.

2. The pre-information notice shall be the notice by which the Agency
makes known, by way of
the estimated total value of
indication,
contracts, by category of service or groups of products, and the essential
characteristics of works contracts which they intend to award during a
budgetary year. The pre-information notice shall be compulsory only
where the estimated total value of the contracts is equal to or above the
thresholds laid down in Article 35 and the Agency intends to make use
of the possibility of shortening time limits for receipt of tenders in
accordance with Article 48(4).

The pre-information notice shall be sent to the Office for Official
Publications of the European Communities as soon as possible and by no
later than 31 March of each budgetary year in the case of supply and
service contracts and, in the case of works contracts, as soon as possible
after the decision approving the programme for those contracts.

5. The notices shall be drawn up in accordance with the standard forms
adopted by the Commission pursuant to Directive 2004/18/EC.

Article 22

Advertising of contracts not covered by Directive 2004/18/EC

1. Contracts with a value below the thresholds provided for
in
Articles 35 and 36 and the service contracts referred to in Annex IIB to
Directive 2004/18/EC and contracts related to defence, except secret
contracts, shall be advertised by appropriate means in order to ensure
competitive tendering and impartiality of the procurement procedure.
Such advertising shall involve:

If the Agency publishes the pre-information notice on its buyer profile, it
the European
shall send to the Office for Official Publications of
Communities, electronically and using the format and transmission

(a)

if no contract notice referred to in Article 21 has been published,
notice of a call for expressions of interest for contracts covering a
similar subject with a value equal to or greater than the amount
referred to in Article 33(1);

L 269/24

EN

Official Journal of the European Union

12.10.2007

(b)

the annual publication of a list of contractors, specifying the
subject and the value of the contract awarded, for contracts with a
value equal to or greater than EUR 25 000.

after publication of a contract notice in the Official Journal of the European
Union or by negotiated procedure without prior publication of a contract
notice, where appropriate following a contest.

The publication provided for in point (b) of the first subparagraph shall
not be compulsory for specific contracts based on a framework
agreement nor for the contracts related to defence.

2. A list of contractors to whom building contracts are awarded shall
be published annually, with an indication of the subject and value of the
contracts awarded. A list of contractors to whom contracts declared
secret in accordance with Article 31(1)(j) are awarded, shall be sent
annually to the Steering Board with an indication of the subject and value
of the contracts awarded.

Except for contracts related to defence,

3.
information relating to
contracts with a value equal to or greater than the amount referred to in
Article 33(1) shall be sent to the Office for Official Publications of the
European Communities. The annual lists of contractors shall be sent by
no later than 31 March following the end of the financial year.

Ex ante advertising and the annual publication of the list of contractors
for the other contracts, except the secret contracts, shall be on the
Internet website of the Agency; ex post publication shall take place by
31 March of the following financial year. Publication may also be in the
Official Journal of the European Union.

Article 23

Publication of notices

1. The Office for Official Publications of the European Communities
shall publish the notices referred to in Articles 21 and 22 in the Official
Journal of the European Union no later than 12 calendar days after their
dispatch.

That period specified in the first subparagraph shall be reduced to five
calendar days in the case of the fast-track procedures referred to in
Article 50.

2. The Agency must be able to provide evidence of the date of dispatch.

Article 24

Other forms of advertising

1.
In addition to the advertising provided for in Articles 21, 22 and 23,
contracts may be advertised in any other way, notably in electronic form.
Any such advertising shall refer to the notice published in the Official
Journal of the European Union as provided for in Article 23, if one has been
published, and may not precede the publication of that notice, which
alone shall be authentic.

Such advertising may not introduce any discrimination between
2.
candidates or tenderers nor contain details other than those contained in
the contract notice, if one has been published in the Official Journal of the
European Union.

Article 25

Types of procurement procedures

1. Contracts shall be awarded by call for tender, using the open,
restricted or negotiated procedure (including the competitive dialogue),

2. Calls for tenders are open where all interested economic operators
may submit a tender. That applies also in the case of the dynamic
purchasing systems referred to in Article 29. Calls for tenders are
restricted where all economic operators may ask to take part but only
candidates satisfying the selection criteria referred to in Article 42 and
invited simultaneously and in writing by the Agency may submit a tender
or a solution under the competitive dialogue procedure referred to in
Article 30.

The selection phase may be repeated for each individual contract, also in
the case of a competitive dialogue, or may involve drawing up a list of
potential candidates under the procedure referred to in Article 33.

3.
In a negotiated procedure, the Agency shall consult tenderers of its
choice who satisfy the selection criteria laid down in Article 42, and
negotiate the terms of the contract with one or more of them.

In negotiated procedures where a contract notice is published, as referred
to in Article 32, the Agency shall simultaneously and in writing invite the
selected candidates to negotiate.

4. Contests are procedures which enable the Agency to acquire, mainly
in the fields of architecture and civil engineering or data processing, a
plan or design proposed by a selection board after being put out to
competitive tender with or without the award of prizes.

Article 26

Number of candidates in restricted or negotiated procedures

In a restricted procedure,

1.
including the procedure referred to in
Article 33, the number of candidates invited to submit a tender may not
be less than five, provided that a sufficient number of candidates satisfy
the selection criteria.

The Agency may also provide for a maximum number of 20 candidates,
depending on the subject of the contract and on the basis of objective
and non-discriminatory selection criteria. In such cases, the range and
criteria shall be indicated in the contract notice or the call for expressions
of interest referred to in Articles 21 and 22.

In any event, the number of candidates invited to tender shall be
sufficient to ensure genuine competition.

2.
In negotiated procedures and in restricted procedures after a
competitive dialogue the number of candidates invited to negotiate or to
tender may not be less than three, provided that a sufficient number of
candidates satisfy the selection criteria.

In any event, the number of candidates invited to tender shall be
sufficient to ensure genuine competition.

The first and second subparagraphs shall not apply to the following:

(a)

(b)

contracts involving very small amounts, as referred to in Arti-
cle 34(3);

contracts for legal services within the meaning of Annex IIB of
Directive 2004/18/EC;

12.10.2007

EN

Official Journal of the European Union

L 269/25

(c)

contracts declared secret, as referred to in Article 31(1)(j);

Article 29

(d)

those cases listed in Article 31 where the Agency is entitled to
negotiate with one tenderer only or to award the contract to one
economic operator only.

3. Where the number of candidates meeting the selection criteria and
the minimum levels is below the minimum number specified in
paragraphs 1 and 2, the Agency may continue the procedure by inviting
the candidate or candidates with the required capacities. However, the
Agency may not include other economic operators who did not ask to
take part, or candidates who do not have the required capacities.

Article 27

Arrangements for negotiated procedures

In negotiated procedures, the Agency shall negotiate with tenderers the
tenders they have submitted in order to adapt them to the requirements
set out in the contract notice referred to in Article 21, or in the
specifications and in any additional documents,
in order to find the
tender offering best value for money. During the negotiation, the Agency
shall ensure equal treatment for all tenderers.

Where the Agency may, in accordance with Article 32, award contracts
using a negotiated procedure after publishing a contract notice, it may
arrange for the negotiated procedure to be conducted in stages so as to
reduce the number of tenders to be negotiated, while applying the award
criteria set out in the contract notice or specification. The contract notice
or specification shall state that use is to be made of this possibility.

Article 28

Contests

1. The rules for the organisation of a contest shall be communicated to
those interested in taking part. In any event, the number of candidates
invited to take part must be sufficient to ensure genuine competition.

2. The selection board shall be appointed by the Authorising Officer
responsible. It shall be made up exclusively of natural persons who are
independent of participants
in the contest. Where a particular
professional qualification is required for participation in a contest, at
least one third of the members of the selection board must have the same
or an equivalent qualification.

The selection board shall be autonomous in its opinions. Its opinions
shall be adopted on the basis of projects submitted to it anonymously by
the candidates and solely in the light of the criteria set out in the contest
notice.

3. The proposals of the selection board, based on the merits of each
project, and its observations, shall be recorded in a report signed by its
members. Candidates shall remain anonymous until the selection board
has given its opinion. Candidates may be asked by the selection board to
answer the questions recorded in the report in order to clarify a project.
A full report of the resulting dialogue shall be drawn up.

4. The Agency shall then take a decision giving the name and address
of the candidate selected and the reasons for the choice by reference to
the criteria announced in the contest notice, especially if it departs from
the proposals made in the selection board's opinion.

Dynamic purchasing system

1. The dynamic purchasing system, as referred to in Articles 1(6) and
33 of Directive 2004/18/EC, shall be a completely electronic process for
making commonly used purchases which is open throughout its duration
to any economic operator who satisfies the selection criteria and has
submitted an indicative tender that complies with the specification and
any additional documents. The indicative tenders may be improved at
any time provided that they continue to comply with the specification.

2.
For the purposes of setting up the dynamic purchasing system, the
Agency shall publish a contract notice stating that a dynamic purchasing
system is being used and containing a reference to the Internet address
offering unrestricted, direct and full access to the specification and to any
additional documents from the time of publication of the notice up to
the expiry of the system.

It shall indicate in the specification, amongst other matters, the nature of
the purchases envisaged under
the necessary
information concerning the purchasing system, the electronic equipment
used and the technical connection arrangements and specifications.

that system, and all

3. The Agency shall give any economic operator, throughout the
duration of the dynamic purchasing system, the possibility of submitting
an indicative tender with a view to being admitted to the system under
the conditions referred to in paragraph 1. It shall complete evaluation
within a maximum of 15 days from the date of submission of the
indicative tender. However, it may extend the evaluation period provided
that no invitation to tender is issued in the meantime.

The Agency shall inform tenderers at the earliest possible opportunity
that they have been admitted to the dynamic purchasing system or that
their tender has been rejected.

4.
Each specific contract shall be the subject of an invitation to tender.
Before issuing this invitation, the Agency shall publish a simplified
contract notice inviting all interested economic operators to submit an
indicative tender, within a time limit that may not be less than fifteen
days from the date on which the simplified notice is sent. The Agency
may not proceed with tendering until it has completed evaluation of all
the indicative tenders received by that deadline.

The Agency shall invite all tenderers admitted to the system to submit a
tender within a reasonable time. It shall award the contract to the
tenderer who has submitted the tender offering best value for money on
the basis of the award criteria set out in the contract notice for the
establishment of the dynamic purchasing system. Those criteria may, if
appropriate, be formulated more precisely in the invitation to tender.

5. A dynamic purchasing system may not last for more than four years,
except in duly justified exceptional cases.

The Agency may not resort to this system to prevent, restrict or distort
competition.

No charges may be billed to the interested economic operators or to
parties to the system.

L 269/26

EN

Official Journal of the European Union

12.10.2007

Article 30

Article 31

Competitive dialogue

Use of a negotiated procedure without prior publication of a
contract notice

In the case of particularly complex contracts, where the Agency
1.
considers that direct use of
the existing
arrangements governing the restricted procedure will not allow the
contract to be awarded to the tender offering best value for money, it
may make use of the competitive dialogue referred to in Article 29 of
Directive 2004/18/EC.

the open procedure or

A contract shall be considered to be ‘particularly complex’ where the
Agency is not objectively able to define the technical means capable of
satisfying the needs or objectives or able to specify the legal or financial
make-up of the project.

2. The Agency shall publish a contract notice setting out its needs and
requirements, which it shall define in that notice and/or in a descriptive
document.

3. The Agency shall open a dialogue with the candidates satisfying the
selection criteria set out in Article 42 in order to identify and define the
means best suited to satisfying its needs.

1. The Agency may use the negotiated procedure without prior
publication of a contract notice, whatever the estimated value of the
contract, in the following cases:

(a)

where no tenders or no suitable tenders, or no applications, have
been submitted in response to an open procedure or restricted
procedure after the initial procedure has been completed, provided
that the original terms of the contract as specified in the call for
tenders referred to in Article 37 are not substantially altered;

(b) where, for technical or artistic reasons, or for reasons connected
with the protection of exclusive rights, the contract can be awarded
only to a particular economic operator;

(c)

in so far as is strictly necessary where, for reasons of extreme
urgency brought about by unforeseeable events not attributable to
the Agency in the case of contracts covered by Directive 2004/18/
EC, it is impossible to comply with the time limits set for the other
procedures and laid down in Articles 48, 49 and 50;

During the dialogue, the Agency shall ensure equality of treatment
among all tenderers and confidentiality of the solutions proposed or
other information communicated by a candidate participating in the
dialogue unless he or she agrees to its disclosure.

(d) where a service contract follows a contest and must, under the
rules applying, be awarded to the successful candidate or to one of
the successful candidates; in the latter case, all successful candidates
shall be invited to participate in the negotiations;

The Agency may provide for the procedure to take place in successive
stages in order to reduce the number of solutions to be discussed during
the dialogue stage by applying the award criteria in the contract notice or
the descriptive document if provision is made for this possibility in the
contract notice or the descriptive document.

4. After informing the participants that the dialogue is concluded, the
Agency shall ask them to submit their final tenders on the basis of the
solution or solutions presented and specified during the dialogue. These
tenders shall contain all the elements required and necessary for the
performance of the project.

At the request of the Agency, these tenders may be clarified, specified and
fine-tuned provided this does not have the effect of changing basic
aspects of the tender or of the invitation to tender, variations in which
could distort competition or have a discriminatory effect.

At the request of the Agency, the tenderer identified as having submitted
the tender offering best value for money may be asked to clarify aspects
of the tender or confirm commitments contained in the tender provided
this does not have the effect of modifying substantial aspects of the
tender or of the call for tenders and does not risk distorting competition
or causing discrimination.

5. The Agency may specify prices or payments to the participants in
the dialogue.

(e)

(f)

for additional services and works not included in the project
initially envisaged nor in the initial contract but which, through
the
unforeseen circumstances, have become necessary for
performance of the services or works, subject to the conditions
set out in paragraph 2;

for new services or works consisting in the repetition of similar
services or works entrusted to the economic operator awarded the
initial contract by the Agency, provided that these services or
works conform to a basic project and that this project was the
subject of an initial contract awarded under the open or restricted
procedure, subject to the conditions set out in paragraph 3;

(g)

for supply contracts:

(i)

in the case of additional deliveries which are intended either
as a partial replacement of normal supplies or installations,
or as the extension of existing supplies or installations, where
a change of supplier would oblige the Agency to acquire
equipment having different technical characteristics which
would result in incompatibility or disproportionate technical
difficulties in operation and maintenance, the length of such
contracts may not exceed three years;

(ii) where the products are manufactured purely for the purpose
of research, experiment, study or development with the
exception of commercial viability tests and large-scale
production aimed at recovering research and development
costs;

12.10.2007

EN

Official Journal of the European Union

L 269/27

(iii)

in respect of supplies quoted and purchased on a commodity
market;

(iv)

in respect of purchases on particularly advantageous terms,
either from a supplier which is definitively winding up its
business activities, or from the receivers or liquidators of a
bankruptcy, an arrangement with creditors, or a similar
procedure under national law;

(h)

for building contracts, after prospecting the local market;

(i)

(j)

for contracts for legal services within the meaning of Annex IIB to
Directive 2004/18/EC, provided that such contracts are appro-
priately advertised;

for contracts declared to be secret by the Agency or for contracts
whose performance must be accompanied by special security
measures, in accordance with the administrative provisions in force
or when the protection of the essential interests of the Agency, of
one or more participating Member States, or of the Union so
requires;

(k)

for contracts with a value less or equal to EUR 60 000;

(l)

for research and development services contracts which are not
covered by Directive 2004/18/EC;

(m)

for contracts not covered by Directive 2004/18/EC, other than
those listed elsewhere in this paragraph, where a call
for
expressions of interest has been published;

(n) where the contract can be awarded only to a particular economic
operator, for reasons connected with major preliminary invest-
ments related to defence equipment or technology, to unique
specific defence facilities, or in order to ensure the security of
supply in defence equipment or technology or in view of the need
to further develop an innovative defence technology developed by
such operator;

(o) where the European Commission or another European or
international organisation or entity has entered into an agreement
with a particular economic operator in the field of security research
and it is appropriate to award a research contract related to defence
to the same economic operator;

(p)

for contracts related to defence, to be let in the framework of a
programme or project managed in cooperation with another
international organisation.

For the additional services and works referred to in point (e) of
2.
paragraph 1, the Agency may make use of the negotiated procedure
without prior publication of a contract notice on condition that the
award is made to the contractor performing the contract:

(a)

such additional

technically or
where
economically separated from the main contract without serious
inconvenience for the Agency; or

cannot be

contracts

3.
In the cases referred to in point (f) of the first subparagraph of
paragraph 1, the option of using the negotiated procedure shall be
pointed out as soon as the first operation is put out to competitive
tender, and the total estimated amount of the subsequent services or
work shall be taken into consideration in calculating the thresholds
referred to in Article 36. That procedure may be used only during the
three years following conclusion of the original contract.

Article 32

Use of a negotiated procedure after prior publication of a contract
notice

1. The Agency may use the negotiated procedure after having
published a contract notice whatever the estimated value of the contract,
in the following cases:

(a)

(b)

(c)

(d)

(e)

(f)

where tenders which are irregular or unacceptable, by reference in
particular to the selection or award criteria, are submitted in
response to an open or restricted procedure, or a competitive
dialogue, which has been completed, provided that the original
terms of the contract as specified in the call for tenders referred to
in Article 37 are not substantially altered, without prejudice to the
application of paragraph 2;

in exceptional cases involving work, supplies or services where the
nature or the risks do not permit prior overall pricing by the
tenderer;

where the nature of the service to be procured, in particular in the
case of financial services and intellectual services,
is such that
contract
specifications cannot be established with sufficient
precision to permit the award of the contract by selecting the
best
tender in accordance with the rules governing open or
restricted procedures;

for works contracts, where the works are performed solely for
purposes of research, testing or development and not with the aim
of ensuring profitability or recovering research and development
costs;

for the service contracts referred to in Annex IIB to Directive 2004/
18/EC, subject to points (i) and (j) of the first subparagraph of
Article 31(1) and the second subparagraph thereof;

without prejudice to Article 31(1), for contracts related to defence
where no call for expressions of interest nor any prior information
notice has been published.

2.
In the cases referred to in point (a) of paragraph 1, the Agency may
refrain from publishing a contract notice if it includes in the negotiated
procedure all the tenderers (and only those tenderers) satisfying the
selection criteria who, during the previous procedure, submitted tenders
the procurement
in accordance with the formal
procedure.

requirements of

(b) where such services or works, although separable from the
performance of the original contract, are strictly necessary for its
completion.

Article 33

Calls for expressions of interest

Except in the case of contracts related to defence, the aggregate value of
additional contracts may not exceed 50 % of the amount of the initial
contract.

1. A call for expressions of interest shall constitute a means of pre-
selecting candidates who will be invited to submit tenders in response to
future restricted invitations to tender for contracts with a value of more
than EUR 60 000, subject to Articles 31 or 32. A call for expressions of

L 269/28

EN

Official Journal of the European Union

12.10.2007

interest shall, subject to Articles 31 or 32, also be used as a means of pre-
selecting candidates who will be invited to submit tenders in response to
future invitations to tender for contracts related to defence, whatever the
amount of
the
negotiated procedure.

the contract and whether using the restricted or

2. The list drawn up following a call for expressions of interest shall be
valid for no more than three years from the date on which the notice
referred to in point (a) of Article 22(1) is sent to the Office for Official
Publications of the European Communities or published on the website
of the Agency. Any interested person may submit an application at any
time during the period of validity of the list, with the exception of the last
three months of that period. Such list may be divided into sub-categories
according to the type of contract for which the list is valid.

3. Where a specific contract is to be awarded, the Agency shall invite
either all candidates entered on the list or only some of them, on the
basis of objective and non-discriminatory selection criteria specific to
that contract, to submit a tender.

Article 34

Low-value contracts

1. A negotiated procedure with at least five candidates being consulted
to
may be used for contracts with a value of
EUR 60 000 under the functioning budget and with a value of less than
EUR 137 000 under the operational budget, subject to Articles 31 or 32.

less than or equal

(b)

EUR 211 000 for the service contracts listed in Annex IIB to
Directive 2004/18/EC and for the research and development
service contracts listed in category 8 of Annex IIA to that Directive;

(c)

EUR 5 278 000 for works contracts.

Article 37

Documents relating to the invitation to tender

1. Documents relating to the invitation to tender shall include at least:

(a)

the invitation to tender or to negotiate or to take part in the
dialogue under the procedure set out in Article 30;

(b)

the attached specifications, to which shall be annexed the general
terms and conditions applicable to contracts or, in the case of a
competitive dialogue as referred to in Article 30, a document
describing the needs and requirements of the Agency, or the
reference for the Internet address at which such specification or
document can be consulted;

If, following consultation of the candidates, the Agency receives only one
tender that is administratively and technically valid, the contract may be
awarded provided that the award criteria are met.

(c)

the model contract.

2. The negotiated procedure with at least three candidates may be used
for contracts with a value of less than or equal to EUR 25 000 under the
functioning budget and with a value of less than EUR 60 000 under the
operational budget.

3. Contracts with a value of less than or equal to EUR 3 500 under the
functioning budget and with a value of less than EUR 5 000 under the
operational budget may be awarded on the basis of a single tender.

4.
Payments of amounts lower than or equal to EUR 200 in respect of
items of expenditure may consist simply in payment against invoices,
without prior acceptance of a tender.

Article 35

Thresholds for pre-information notices

The thresholds for publication of a pre-information notice shall be:

(a)

EUR 750 000 for the supply and service contracts listed in
Annex IIA to Directive 2004/18/EC;

(b)

EUR 5 278 000 for works contracts.

The documents relating to the invitation to tender shall contain a
reference to the advertising measures taken under Articles 21 to 24.

2. The invitation to tender or to negotiate or to take part in the
dialogue shall at least:

(a)

(b)

specify the rules governing the lodging and presentation of tenders,
including in particular the closing date and time for submission,
any requirement as to the use of a standard reply form, the
documents to be attached, including those in evidence of financial,
economic,
technical and professional capacity referred to in
Article 42 if they are not specified in the contract notice, and
the address to which they must be sent;

state that submission of the tender implies acceptance of the
specifications and of the general terms and conditions referred to
in paragraph 1 to which the tender relates and that this submission
binds the contractor to whom the contract is awarded during
performance of the contract;

Article 36

(c)

specify the period during which a tender will remain valid and may
not be varied in any respect;

Thresholds applicable to the procedures under Directive 2004/18/
EC

The thresholds referred to in Article 5 shall be:

(a)

EUR 137 000 for the supply and service contracts listed in
Annex IIA to Directive 2004/18/EC, with the exception of the
research and development contracts listed in category 8 of that
Annex;

(d)

forbid any contact between the Agency and the tenderer during the
procedure, save, exceptionally and, where provision is made for an
on-the-spot visit, specify the arrangements for such a visit.

(e)

specify, in the case of a competitive dialogue, the date set and the
address for the start of the consultation phase.

12.10.2007

EN

Official Journal of the European Union

L 269/29

3. The specifications shall at least:

(a)

specify the exclusion and selection criteria applying to the contract,
save in the restricted procedure,
including after a competitive
dialogue, and in the negotiated procedures following publication of
a notice referred to in Article 32; in such cases those criteria shall
appear solely in the contract notice or the call for expressions of
interest;

(b)

specify the award criteria and their relative weighting, or, where
appropriate, the decreasing order of importance,
if this is not
specified in the contract notice;

tenderers shall be used, transmitted, stored, handled and safeguarded in
accordance with Council Decision 2001/264/EC of 19 March 2001
adopting the Council's security regulations (1).

Article 38

Technical specifications

1. Technical specifications shall afford equal access for candidates and
tenderers, and not have the effect of creating unjustified obstacles to
competitive tendering. The specifications shall define the characteristics
required of a product, service, material or work with regard to the
purpose for which they are intended by the Agency.

(c)

set out the technical specifications referred to in Article 38;

2. The characteristics referred to in paragraph 1 shall include:

state the minimum requirements which variants must meet in the
procedures referred to in Article 45(2) under which the contract is
awarded to the tender offering best value for money, where the
Agency has stated in the contract notice that such variants are
permitted;

(a)

the quality levels;

(b)

environmental performance;

(d)

(e)

state that the Decision of the representatives of the Governments
of the Member States of the European Union, meeting within the
Council, on the privileges and immunities granted to the European
Defence Agency and to its staff members, of 10 November 2004,
as supplemented by the additional protocol between the Kingdom
of Belgium and the Agency, applies;

(f)

specify the evidence of access to contracts, as set out in Article 41;

(g)

specify, in the dynamic purchasing systems referred to in Article 29,
the nature of the purchases envisaged, as well as all the necessary
information concerning the purchasing system,
the electronic
equipment used and the technical connection arrangements and
specifications.

4. The model contract shall in particular:

(a)

specify the penalties for failure to comply with its clauses;

(b)

(c)

specify the details which must be contained in invoices or in the
relevant supporting documents;

specify the law applicable to the contract and the competent court
for hearing disputes.

5. The Agency may demand information from the tenderer on any part
of the contract that the tenderer may intend to subcontract to third
parties and on the identity of any subcontractors.

6.
In the context of provision of technical specifications to interested
economic operators, of selection of economic operators and of award of
contracts,
the Agency may impose requirements with a view to
protecting the confidential or classified nature of information which
the Agency makes available.

7. Without prejudice to the provisions concerning the obligations
relating to the advertising of awarded contracts and to the information to
candidates and tenderers, the Agency shall not disclose information
forwarded to it by economic operators which they have designated as
confidential; such information includes, in particular, technical or trade
secrets and the confidential aspects of tenders or requests to participate.
Classified information exchanged between the Agency and candidates or

(c)

wherever possible,
disabilities or the design for all users;

the accessibility criteria for people with

(d)

the levels and procedures of conformity assessment;

(e)

fitness for use;

(f)

(g)

safety or dimensions, including, for supplies, the sales name and
user instructions, and, for all contracts, terminology, symbols,
testing and test methods, packaging, marking and labelling,
production procedures and methods;

for works contracts, the procedures relating to quality assurance
and the rules relating to design and costing, the test, inspection and
acceptance conditions for works and methods or techniques of
construction and all the other technical conditions which the
Agency may impose under general or specific regulations in
relation to the finished works and to the materials or parts which
they involve.

3. The technical specifications shall be formulated as follows:

(a)

(b)

by reference to European standards, or to European technical
approvals or common technical specifications, where such exist, to
international standards or to other technical reference material
produced by European standards bodies or,
their
national equivalents. Every reference shall be followed by the
expression ‘or equivalent’; or

failing this,

in terms of performance or of functional requirements which may
include environmental characteristics and shall be sufficiently
detailed to enable tenderers to determine the purpose of
the
contract and the Agency to award the contract; or

(c)

by a mixture of those two formulation methods.

4. Where the Agency makes use of the possibility of referring to the
specifications referred to in point (a) of paragraph 3, it may not reject a
tender on the grounds that it does not comply with those specifications if
the tenderer or candidate proves, to the satisfaction of the Agency, by any
appropriate means, that the tender meets in equivalent manner the
requirements set.

(1) OJ L 101, 11.4.2001, p. 1. Decision as last amended by Decision 2007/438/

EC (OJ L 164, 26.6.2007, p. 24).

L 269/30

EN

Official Journal of the European Union

12.10.2007

An appropriate means may take the form of a technical dossier of the
manufacturer or a test report from a recognised body.

5. Where the Agency makes use of the possibility provided for in
point (b) of paragraph 3, of prescribing specifications in terms of
performance or of functional requirements, it may not reject a tender
which complies with a national standard transposing a European
standard, a European technical approval or common technical specifica-
tions, an international standard or technical reference material produced
by a European standards body,
those specifications relate to the
if
necessary performance or functional requirements.

The tenderer must prove to the satisfaction of the Agency and by any
appropriate means that the tender meets the performance or functional
requirements set by the Agency. An appropriate means may take the
form of a technical dossier of the manufacturer or a test report from a
recognised body.

6. Where the Agency lays down environmental characteristics in terms
of performance or of functional requirements, it may use the detailed
specifications, or, if necessary, parts thereof, as defined by European,
multinational or national eco-labels, or by any other eco-label, provided
that the following conditions are satisfied:

(a)

the specifications used are appropriate to define the characteristics
of the supplies or services that are the object of the contract;

(b)

the requirements for the label are drawn up on the basis of
scientific information;

(c)

the eco-labels are adopted using a procedure in which all parties
concerned, such as government bodies, consumers, manufacturers,
distributors and environmental organisations, can participate;

(d)

the eco-labels are accessible to all interested parties.

The Agency may indicate that the products or services bearing the eco-
label are presumed to comply with the technical specifications laid down
in the contract documents. The Agency shall accept any other
appropriate means of proof,
the
manufacturer or a test report from a recognised body.

such as a technical dossier of

7. A recognised body for the purposes of paragraphs 4, 5 and 6 shall
be a test and calibration laboratory or a certification and inspection body
which complies with applicable European standards.

Save in exceptional cases, duly warranted by the subject of the
8.
contract, those specifications may not refer to a specific make or source,
or a particular process, or to trademarks, patents, types or a specific
origin or production which would have the effect of
favouring or
eliminating certain products or economic operators. Where it is not
possible to provide a sufficiently detailed and intelligible description of
the subject of the contract, the reference shall be followed by the
expression ‘or equivalent’.

Article 39

Price revision

2.
If that is not the case, the documents relating to the invitation to
tender shall lay down the conditions and/or formulas for revision of
prices during the lifetime of the contract. In such cases the Agency shall
take particular account of:

(a)

the object of
situation in which it is taking place;

the procurement procedure and the economic

(b)

the type of tasks and contract and their duration;

(c)

its financial interests.

Article 40

Administrative and financial penalties

1. Without prejudice to the application of penalties laid down in the
contract, candidates or tenderers and contractors who have been guilty of
making false declarations or have been found to have seriously failed to
meet their contractual obligations in an earlier procurement procedure
shall be excluded from all contracts financed by the Agency's general
budget
two years from the time when the
infringement is established, as confirmed after an adversarial procedure
with the contractor.

for a maximum of

That period may be extended to three years in the event of a repeat
offence within five years of the first infringement.

Tenderers or candidates who have been guilty of making false
declarations shall also receive financial penalties representing 2 to
10 % of the total value of the contract being awarded.

Contractors who have been found to have seriously failed to meet their
contractual obligations shall receive financial penalties representing 2 to
10 % of the total value of the contract in question.

That rate may be increased to 4 to 20 % in the event of a repeat offence
within five years of the first infringement.

2.
In the cases referred to in points (a), (c) and (d) of Article 9(1), the
candidates or tenderers shall be excluded from all contracts for a
maximum of
is
established, as confirmed after an adversarial procedure with the
contractor.

two years from the time when the infringement

In the cases referred to in points (b) and (e) of Article 9(1), the candidates
or tenderers shall be excluded from all contracts for a minimum of one
year and a maximum of four years from the date of notification of the
judgment.

Those periods may be extended to five years in the event of a repeat
offence within five years of the first infringement or the first judgment.

3. The cases referred to in point (e) of Article 9(1) shall be the
following:

(a)

cases of fraud as referred to in Article 1 of the Convention on the
protection of the European Communities' financial interests drawn
up by the Council Act of 26 July 1995 (1);

1. The documents relating to the invitation to tender shall clearly state
whether a firm, non-revisable price must be quoted.

(1) OJ C 316, 27.11.1995, p. 48.

12.10.2007

EN

Official Journal of the European Union

L 269/31

(b)

(c)

(d)

cases of corruption as referred to in Article 3 of the Convention on
the fight against corruption involving officials of the European
Communities or officials of Member States of the European Union,
drawn up by the Council Act of 26 May 1997 (1);

5. The Agency may waive the obligation of a candidate or tenderer to
submit the documentary evidence referred to in paragraph 1 if such
evidence has already been submitted to it for the purposes of another
procurement procedure and provided that the documents were not
issued more than one year previously and that they are still valid.

cases of participation in a criminal organisation, as defined in
Article 2(1) of Council Joint Action 98/733/JHA of 21 December
1998 on making it a criminal offence to participate in a criminal
organisation in the Member States of the European Union (2);

cases of money laundering as defined in Article 1 of Council
Directive 91/308/EEC of 10 June 1991 on prevention of the use of
the financial system for the purpose of money laundering (3).

In such a case, the candidate or tenderer shall declare on his honour that
the documentary evidence has already been provided in a previous
procurement procedure and confirm that no changes in his situation
have occurred.

6. The tenderers
indicate in which State they have their
headquarters or domicile and present the supporting evidence normally
acceptable under their own law.

shall

Article 41

Evidencing documents

1. The Agency shall accept, as satisfactory evidence that the candidate
or tenderer to whom the contract is to be awarded is not in one of the
situations described in points (a), (b) or (e) of Article 9(1), a recent extract
from the judicial record or, failing that, an equivalent document recently
issued by a judicial or administrative authority in the country of origin or
provenance showing that those requirements are satisfied. The Agency
shall accept, as satisfactory evidence that the candidate or tenderer is not
in the situation described in point (d) of Article 9(1), a recent certificate
issued by the competent authority of the country concerned.

Where the document or certificate referred to in the first subparagraph is
not issued in the country concerned and for the other cases of exclusion
referred to in Article 9, it may be replaced by a sworn or, failing that, a
solemn statement made by the interested party before a judicial or
administrative authority, a notary or a qualified professional body in his
country of origin or provenance.

For contracts with a value of

2.
less than EUR 60 000 under the
functioning budget and with a value of less than EUR 137 000 under the
operational budget, the Agency may, depending on the analysis of risks
by the Authorising Officer, ask candidates or tenderers to provide only a
declaration on their honour that they are not in one of the situations
referred to in Articles 9 and 10.

In the case of a consortium, whatever the amount of the contract, the
Agency may accept that only the leader of the consortium provides the
documents required under paragraph 1 above, provided that such leader
undertakes to be jointly and severally liable with all other members of
the consortium during the tendering procedure and the performance of
the other
the subsequent contract,
members of the consortium provide the Agency with a declaration on
their honour that they are not in one of the situations referred to in
Articles 9 and 10.

if any; and provided also that

Article 42

Selection criteria

1. The Agency shall draw up clear and non-discriminatory selection
criteria.

2. The selection criteria shall be applied in every procurement
procedure for
the purposes of assessing the financial, economic,
technical and professional capacity of the candidate or the tenderer.

The Agency may lay down minimum capacity levels below which
candidates may not be selected.

3. Any tenderer or candidate may be asked to prove that he is
authorised to perform the contract under national law, as evidenced by
inclusion in a trade or professional register, or a sworn declaration or
certificate, membership of a specific organisation, express authorisation,
or entry in the VAT register.

4. The Agency shall specify in the contract notice or in the call for
expressions of interest or the invitation to submit a tender, the references
chosen to test the status and the legal capacity of tenderers or candidates.

technical and professional capacity of

5. The information requested by the Agency as proof of the financial,
economic,
the candidate or
tenderer and the minimum capacity levels required in accordance with
paragraph 2 may not go beyond the subject of the contract and shall take
account of the legitimate interests of the economic operators as regards
in particular the protection of the firm's technical and business secrets.

3. Depending on the national legislation of the country in which the
candidate or tenderer is established,
the documents referred to in
paragraph 1 shall
relate to legal persons and/or natural persons
including, where considered necessary by the Agency, company directors
or any person with powers of representation, decision-making or control
in relation to the candidate or tenderer.

For contracts with a value of less than or equal to EUR 60 000 under
6.
the functioning budget and with a value of
less than or equal to
EUR 137 000 under the operational budget, the Agency may, depending
on the analysis of risks of the Authorising Officer, choose not to ask
candidates or tenderers to provide documentary proof of their financial
and economic, technical and professional capacity.
In that case no
prepayment or interim payment may be made.

4. Where the Agency has doubts as to whether candidates or tenderers
are in one of the situations of exclusion,
it may itself apply to the
referred to in paragraph 1 to obtain any
competent authorities
information it considers necessary about that situation.

(1) OJ C 195, 25.6.1997, p. 1.
(2) OJ L 351, 29.12.1998, p. 1.
(3) OJ L 166, 28.6.1991, p. 77. Directive as amended by Directive 2001/97/EC of
the European Parliament and of the Council (OJ L 344, 28.12.2001, p. 76).

7. The Agency may, in view of the specific requirements for the proper
performance of a contract, request the following additional information
in relation to the candidates or tenderers and their subcontractors, if any:
a valid facility security clearance in place at the appropriate level and
security clearances for
those persons who will participate in the
performance of the contract, information about their technological or
industrial basis within the territory of any of the participating Member
States. These requirements shall be indicated in the contract notice or in
the call for expressions of interest or in the invitation to submit a tender.

L 269/32

EN

Official Journal of the European Union

12.10.2007

8.
For contracts related to defence, the Agency may encourage, on a
transparent and non-discriminatory basis, consortia made of economic
operators satisfying the conditions set forth in Article 7(2), and promote
principles similar to the Agency's ‘Code of best practices in the supply
chain’ in order to encourage increased competition and fair opportunities
for all suppliers, including for small and medium-sized enterprises (SMEs)
down the supply chain. Reference to principles similar to the Agency's
‘Code of best practices in the supply chain’ may be specified in the
contract notice or in the call for expressions of interest or in the
invitation to submit a tender.

(b)

a list:

(i)

(ii)

Article 43

Economic and financial capacity

Proof of economic and financial capacity may in particular be

1.
furnished by one or more of the following documents:

(a)

(b)

appropriate statements from banks or evidence of professional risk
indemnity insurance;

the presentation of balance sheets or extracts from balance sheets
for at least the last two years for which accounts have been closed,
where publication of
the balance sheet is required under the
company law of the country in which the economic operator is
established;

(c)

a statement of overall turnover and turnover concerning the works,
supplies or services covered by the contract during a period which
may be no more than the last three financial years.

2.
If, for some exceptional reason which the Agency considers justified,
the tenderer or candidate is unable to provide the references requested by
the Agency, he may prove his economic and financial capacity by any
other means which the Agency considers appropriate.

3. An economic operator may, where appropriate and for a particular
contract, rely on the capacities of other entities, regardless of the legal
nature of the links which it has with them. It must in that case prove to
the Agency that it will have at its disposal the resources necessary for
performance of the contract, for example by producing an undertaking
on the part of those entities to place those resources at its disposal.

of the principal services provided and supplies delivered in
the past three years, with the sums, dates and recipients,
public or private;

of the works carried out in the last five years, with the sums,
dates and places. The list of the most important works shall
be accompanied by certificates of satisfactory execution,
in a
they have been carried out
specifying whether
professional manner and have been fully completed;

(c)

(d)

(e)

(f)

a description of the technical equipment, tools and plant to be
employed by the service provider or contractor for performing a
service or works contract;

a description of
the technical equipment and the measures
employed to ensure the quality of supplies and services, and a
description of
the service provider or contractor's study and
research facilities;

the technicians or technical bodies involved,
an indication of
whether or not belonging directly to the service provider or
contractor, especially those responsible for quality control;

in respect of supplies: samples, descriptions and/or authentic
photographs and/or certificates drawn up by official quality control
institutes or agencies of recognised competence attesting the
conformity of the products with the specifications or standards in
force;

(g)

a statement of the average annual manpower and the number of
managerial staff of the service provider or contractor in the last
three years;

(h)

an indication of the proportion of the contract which the service
provider or contractor may intend to subcontract.

Under the same conditions, a consortium of economic operators as
referred to in Article 7(2) may rely on the capacities of members of the
consortium or of other entities.

(i)

for public works contracts and public service contracts, and only in
appropriate cases, an indication of the environmental management
measures that the economic operator will be able to apply when
performing the contract.

Article 44

Technical and professional capacity

Where the services or supplies referred to in point (b)(i) are provided to
the Agency, evidence of performance shall be in the form of certificates
issued or countersigned by the competent authority.

1. The technical and professional capacity of economic operators shall
be evaluated and verified in accordance with paragraphs 2 and 3. In
procurement procedures for supplies requiring siting or installation
operations, services and/or works, such capacity shall be assessed with
regard in particular
to their know-how, efficiency, experience and
reliability.

2.
Evidence of the technical and professional capacity of the service
provider or contractor may, depending on the nature, quantity or scale
and purpose of the supplies, services or works to be provided, be
furnished on the basis of the following documents:

(a)

the educational and professional qualifications of
the service
provider or contractor and/or its managerial staff and, in particular,
those of the person or persons responsible for providing the
services or carrying out the works;

3. Where the services or products to be supplied are complex or,
exceptionally, are required for a special purpose, evidence of technical
and professional capacity may be secured by means of a check carried
out by the Agency or on its behalf by a competent official body of the
country in which the service provider or contractor is established, subject
to that body's agreement. Such checks shall concern the service provider
or contractor's technical capacity and production capacity and,
if
necessary, its study and research facilities and quality control measures.

4. Where the Agency requires the production of certificates drawn up
by independent bodies attesting the compliance of
the economic
operator with certain quality assurance standards, the Agency shall refer
to quality assurance systems based on the relevant European standards
series certified by bodies conforming to the European standards series
concerning certification.

12.10.2007

EN

Official Journal of the European Union

L 269/33

5. Where the Agency requires the production of certificates drawn up
the economic
by independent bodies attesting the compliance of
operator with certain environmental management standards, the Agency
shall refer to the Community Eco-Management and Audit Scheme
(EMAS) provided for in Regulation (EC) No 761/2001 of the European
Parliament and of the Council (1) or to environmental management
standards based on the relevant European or international standards
certified by bodies conforming to Community law or the relevant
European or
standards concerning certification. The
Agency shall recognise equivalent certificates from bodies established
in other Member States. It shall also accept other evidence of equivalent
environmental management measures from economic operators.

international

6. The service provider or contractor may, where appropriate and for a
particular contract, rely on the capacities of other entities, regardless of
the legal nature of the links which it has with them. It shall in that case
prove to the Agency that it will have at its disposal the resources
necessary for performance of the contract, for example by producing an
undertaking on the part of those entities to place those resources at its
disposal.

Under the same conditions, a consortium of economic operators as
referred to in Article 7(2) may rely on the capacities of members of the
consortium or of other entities.

Article 45

Award arrangements and award criteria

solution for the particular requirement, taking into account inter alia
technical
considerations of costs (both acquisition and life cycle),
compliance, quality assurance and delivery schedule as well as, where
relevant, security of supply and the approach proposed for the selection
of sources of supply having regard to the principles of the CoBPSC.

Article 46

Use of electronic auctions

1.
In open, restricted or negotiated procedures in the case referred to in
Article 32(1)(a), the Agency may decide that the award of a public
contract shall be preceded by an electronic auction, as referred to in
Article 54 of Directive 2004/18/EC, when the contract specifications can
be established with precision.

In the same circumstances, an electronic auction may be held on the re-
opening of competition among the parties to a framework agreement as
referred to in Article 20 and on the opening for competition of contracts
to be awarded under the dynamic purchasing system referred to in
Article 29.

The electronic auction shall be based either solely on prices, in which
case the contract is awarded to the lowest price, or on the prices and/or
the values of the features of the tenders indicated in the specification, in
which case the contract is awarded to the tender offering best value for
money.

1. Without prejudice to Article 10, contracts shall be awarded in one of
the following two ways:

If the Agency decides to hold an electronic auction, it shall state that

2.
fact in the contract notice.

(a)

under the automatic award procedure, in which case the contract is
awarded to the tender which, while being in order and satisfying
the conditions laid down, quotes the lowest price;

The specification shall include the following details:

(b)

under the best-value-for-money procedure.

2. The tender offering the best value for money shall be the one with
the best price-quality ratio, taking into account criteria justified by the
subject of the contract such as the price quoted, technical merit, aesthetic
and functional characteristics, environmental characteristics, running
costs, profitability, completion or delivery times, after-sales service and
technical assistance.

specify,

in the
3. The Agency shall
specifications or in the descriptive document, the weighting it will apply
to each of the criteria for determining best value for money. That
weighting may be expressed as a range with an appropriate maximum
spread.

in the contract notice or

The weighting applied to price in relation to the other criteria shall not
result in the neutralisation of price in the choice of contractor, without
prejudice to the scales laid down by the Agency for the remuneration of
certain services, such as those provided by experts for evaluation
purposes.

(a)

(b)

(c)

the features and values for which will be the subject of electronic
auction, provided that those features are quantifiable and can be
expressed in figures or percentages;

any limits on the values which may be submitted, as they result
from the specifications relating to the subject of the contract;

the information which will be made available to tenderers in the
course of the electronic auction and, where appropriate, when it
will be made available to them;

(d)

the relevant information concerning the electronic auction process;

(e)

the conditions under which the tenderers will be able to bid and, in
particular, the minimum differences which will, where appropriate,
be required when bidding;

(f)

the relevant information concerning the electronic equipment used
and the arrangements and technical specifications for connection.

If, in exceptional cases, weighting is technically impossible, particularly
on account of the subject of the contract, the Agency shall merely specify
the decreasing order of importance in which the criteria are to be applied.

3. Before proceeding with an electronic auction, the Agency shall make
a full
initial evaluation of the tenders in accordance with the award
criteria set and with the weighting fixed for them.

4.
For contracts related to defence, the fundamental criterion for the
selection of the contractor will be the most economically advantageous

(1) OJ L 114, 24.4.2001, p. 1.

All tenderers who have submitted admissible tenders shall be invited
simultaneously by electronic means to submit new prices and/or new
values. The invitation shall contain all relevant information concerning
individual connection to the electronic equipment being used and shall
state the date and time of the start of the electronic auction. The

L 269/34

EN

Official Journal of the European Union

12.10.2007

electronic auction may take place in a number of successive phases. The
electronic auction may not start sooner than two working days after the
date on which invitations are sent out.

Article 47

Abnormally low tenders

4. When the contract is to be awarded on the basis of the tender
offering best value for money, the invitation shall be accompanied by the
outcome of a full evaluation of the relevant tender, carried out in
accordance with the weighting provided for in the first subparagraph of
Article 45(3).

The invitation shall also state the mathematical formula to be used in the
electronic auction to determine automatic re-rankings on the basis of the
new prices and/or new values submitted. That formula shall incorporate
the weighting of all the criteria fixed to determine the tender offering best
value for money, as indicated in the contract notice or
in the
specification. For that purpose, any ranges shall, however, be reduced
beforehand to a specified value.

Where variants are authorised, a separate formula shall be provided for
each variant.

tenderers at

5. Throughout each phase of an electronic auction the Agency shall
instantaneously communicate
sufficient
to all
information to enable them to ascertain their relative rankings at any
moment. The Agency may also communicate other
information
concerning other prices or values submitted, provided that that is stated
in the specification. It may also at any time announce the number of
participants in that phase of the auction. In no case, however, may the
Agency disclose the identities of the tenderers during any phase of an
electronic auction.

least

1.
If, for a given contract, tenders appear to be abnormally low, the
Agency shall, before rejecting such tenders on that ground alone, request
in writing details of the constituent elements of the tender which it
considers relevant and shall verify those constituent elements, after due
hearing of the parties, taking account of the explanations received. These
details may relate in particular to compliance with the provisions relating
to employment protection and working conditions in force at the place
where the work, service or supply is to be performed.

The Agency may,
relating to:

in particular, take into consideration explanations

(a)

(b)

the economics of the manufacturing process, of the provision of
services or of the construction method;

the technical solutions chosen or the exceptionally favourable
conditions available to the tenderer;

(c)

the originality of the tender.

2. Where the Agency establishes that a tender is abnormally low as a
result of State aid provided, it may reject the tender on that ground alone
only if
the tenderer is unable to prove, within a reasonable time
determined by the Agency, that the aid in question has been awarded
definitively and in accordance with the procedures and decisions
specified in the Community rules on State aid.

6. The Agency shall close an electronic auction in one or more of the
following ways:

Article 48

(a)

in the invitation to take part in the auction, the Agency shall
indicate the date and time fixed in advance;

(b) when the Agency receives no more new prices or new values
which meet the requirements concerning minimum differences. In
that event, the Agency shall state in the invitation to take part in
the auction the time which it will allow to elapse after receiving the
last submission before it closes the electronic auction;

(c)

when the number of phases in the auction, fixed in the invitation
to take part in the auction, has been completed.

When the Agency has decided to close an electronic auction in
accordance with point (c), possibly in combination with the arrange-
ments laid down in point (b), the invitation to take part in the auction
shall indicate the timetable for each phase of the auction.

Time limits for receipt of tenders and requests to participate

1. The time limits for the receipt of tenders and requests to participate,
laid down in calendar days by the Agency, shall be long enough to allow
interested parties a reasonable and appropriate period to prepare and
submit their tenders, taking particular account of the complexity of the
contract or the need to visit the site or consult on the spot the documents
annexed to the specifications.

2.
In open procedures for contracts with a value equal to, or above, the
thresholds set in Article 36, the time limit for receipt of tenders shall be
no less than 52 days from the date on which the contract notice is
dispatched.

In restricted procedures, including cases of use of the competitive
3.
dialogue referred to in Article 30, and in negotiated procedures with
publication of a contract notice for contracts with a value equal to or
above the thresholds set in Article 36, the time limit for receipt of
requests to participate shall be no less than 37 days from the date on
which the contract notice is dispatched.

7. After closing an electronic auction, the Agency shall award the
contract in accordance with Article 45 on the basis of the results of the
electronic auction.

In restricted procedures for contracts with a value equal to or above the
thresholds set in Article 36, the time limit for receipt of tenders shall be
no less than 40 days from the date on which the invitation to tender is
dispatched.

The Agency may not have improper recourse to electronic auctions nor
may it use them in such a way as to prevent, restrict or distort
competition, or to change the subject matter of the contract, as put up
in the published contract notice and defined in the
for
specification.

tender

However, in the restricted procedures and the negotiated procedures after
a call for expressions of interest referred to in Article 33, the time limit
for receipt of tenders shall be no less than 21 days from the date on
which the invitation to tender is dispatched.

12.10.2007

EN

Official Journal of the European Union

L 269/35

4. Where the Agency, in accordance with Article 21(2), has sent a pre-
information notice for publication or has itself published a pre-
information notice on its buyer profile, the time limit for the receipt
of
in no
circumstances be less than 22 days from the date of dispatch of the
contract notice or the invitation to tender.

tenders may generally be reduced to 36 days but shall

The shortened time limits referred to in the first subparagraph shall be
permitted only if
the pre-information notice satisfies the following
conditions:

(a)

it contains all the information required for the contract notice,
insofar as that information is available at the time the notice is
published;

(b)

it was sent for publication between 52 days and 12 months before
the date on which the contract notice was sent.

5. The time limits for receipt of tenders may be shortened by five days
if unrestricted and direct access is available by electronic means to all
documents constituting the call for tenders from the date of publication
of the contract notice or the call for expressions of interest.

Article 49

Time allowed for access to invitation to tender documents

Provided that the request was made in good time before the deadline
1.
for submission of tenders, the specifications or descriptive documents in
the procedure referred to in Article 30 and additional documents shall be
sent, within six calendar days of
the request, to all
economic operators who have requested the specifications or expressed
interest in taking part in a dialogue or in submitting a tender, subject to
the provisions of paragraph 4. The Agency shall not be bound to reply to
requests for documents made less than five working days before the
deadline for submission of tenders.

the receipt of

Provided that the request was made in good time before the deadline
2.
for submission of
tenders or of requests to participate, additional
information relating to the call for tenders or the call for requests to
participate shall be supplied simultaneously to all economic operators
who have shown interest in participating in the procedure, no later than
six days before the relevant deadline or,
in the case of requests for
information received less than eight calendar days before the deadline, as
soon as possible after receipt of the request. The Agency shall not be
bound to reply to requests for additional information made less than five
working days before the relevant deadline.

If,

reason,

for whatever

3.
the specifications and the additional
documents or information cannot be supplied within the time limits
set in paragraphs 1 and 2, or where tenders can be made only after a visit
to the site or after on-the-spot consultation of the documents annexed to
the specifications, the time limits for receipt of tenders referred to in
Article 48 shall be extended to enable all economic operators to acquaint
themselves with all the requisite information for preparing tenders. That
extension shall be advertised in appropriate manner, in accordance with
Articles 21 to 24.

4.
In the open procedure, including the dynamic purchasing systems
referred to in Article 29, if there is unrestricted and full direct access by
for tenders and any additional
electronic means to the entire call

documents, paragraph 1 shall not apply. The contract notice referred to
in Article 21(3) shall give the Internet address at which those documents
may be consulted.

In such cases, any additional documents and information shall also be
made freely, fully and directly accessible as soon as they are supplied to
all the economic operators who have requested the specifications or
expressed interest in submitting a tender.

Article 50

Time limits in urgent cases

1. Where duly substantiated urgency renders
the
minimum time limits laid down in Article 48(3) for restricted procedures
and negotiated procedures where a contract notice is published as well as
for the negotiated procedure without publication for contracts related to
defence, the Agency may set the following time limits, expressed in
calendar days:

impracticable

(a)

a time limit for the receipt of requests to participate, which may
not be less than 15 days from the date on which the contract
notice was dispatched or 10 days if the notice is sent to the Office
for Official Publications of the European Communities electro-
nically;

(b)

a time limit for the receipt of tenders, which may not be less than
10 days from the date of the invitation to tender.

2.
In restricted procedures and fast-track negotiated procedures,
additional information on the specifications shall, provided it has been
requested in good time, be communicated to all candidates or tenderers
no later than four calendar days before the deadline for receipt of tenders.

Article 51

Methods of communication

1. The arrangements for the submission of tenders and requests to
participate shall be determined by the Agency, which may choose an
exclusive method of submission. Tenders and requests to participate may
be submitted by letter or electronic means. Requests to participate may
also be submitted by fax. Requests to participate submitted by fax or
electronic mail shall be confirmed by letter before expiry of the time
limits set in Article 48.

The means of communication chosen shall be non-discriminatory in
nature and shall not have the effect of restricting the access of economic
operators to the award procedure.

The means of communication chosen shall be such as to ensure that the
following conditions are satisfied:

(a)

each submission contains all the information required for its
evaluation;

(b)

the integrity of data is preserved;

(c)

the confidentiality of tenders is preserved and the Agency examines
the content of tenders only after the time limit set for submitting
them has expired.

The Agency may require that electronic tenders be accompanied by an
advanced electronic signature within the meaning of Directive 1999/93/
EC of the European Parliament and of the Council (1).

(1) OJ L 13, 19.1.2000, p. 12.

L 269/36

EN

Official Journal of the European Union

12.10.2007

2. Where the Agency authorises submission of tenders and requests to
the tools used and their technical
participate by electronic means,
characteristics shall be non-discriminatory in nature, generally available
and interoperable with the information and communication technology
products in general use. The information relating to the specifications
required for presentation of tenders and requests to participate, including
encryption, shall be made available to the tenderers or candidates.

Moreover, the devices for the electronic receipt of tenders and requests to
participate shall conform to the requirements of Annex X to
Directive 2004/18/EC.

3. Where submission is by letter, candidates or tenderers may choose to
submit requests to participate or tenders:

(b)

the cover page and the pages containing the financial details of
each tender, the integrity of the initial tender being guaranteed by
any appropriate technique employed by a department that is
independent of the authorising department.

Where the contract is awarded under the automatic award procedure in
accordance with point (a) of Article 45(1), the prices quoted in tenders
satisfying the requirements shall be made public.

The members of the committee shall sign the written record of the
opening of the tenders received, which shall identify those tenders which
satisfy the requirements and those which do not, and which shall give the
grounds on which tenders were rejected for non-compliance, by
reference to the methods of submitting tenders referred to in Article 51.

either by registered post, for which purposes the relevant date shall
be the effective date of receipt (during business hours) by the
Agency of the registered post; or

Article 53

(a)

(b)

by hand-delivery to the premises of the Agency by the candidate or
tenderer in person or by an agent, including courier service, for
which purposes the Agency shall specify the department to which
requests to participate or tenders are to be delivered against a
signed and dated receipt and that the relevant date shall be the
effective date of receipt (during business hours) by the Agency.

In order to maintain secrecy and to avoid any difficulties where
4.
tenders are sent by post, the invitation to tender must include the
following provision:

‘Tenders must be submitted in a sealed envelope itself enclosed within a
second sealed envelope. The inner envelope must bear, in addition to the
name of the department to which it is addressed, as indicated in the
invitation to tender, the words: “Invitation to tender — Not to be opened
by the mail service”. If self-adhesive envelopes are used, they must be
sealed with adhesive tape and the sender must sign across that tape.’

Article 52

Opening of tenders and requests to participate

1. All requests to participate and tenders that satisfy the requirements
of Article 51(1) and (2) shall be opened.

2. Where the value of a contract exceeds a value of EUR 60 000, the
Authorising Officer responsible shall appoint a committee to open the
tenders.

The opening committee shall be made up of at least three persons
representing at least two organisational entities of the Agency with no
hierarchical link between them, at least one of which does not come
under the Authorising Officer responsible. Those persons shall avoid any
conflict of interests.

3. Where requests to participate or tenders are submitted by post or
express courier, or are hand-delivered, one or more members of the
opening committee shall initial the documents proving the date and time
of receipt of each tender.

Committee for the evaluation of tenders and requests to participate

1. All requests to participate and tenders declared as satisfying the
requirements shall be evaluated and ranked by an evaluation committee
set up for each of the two stages on the basis of the pre-announced
exclusion and selection criteria and the award criteria respectively.

The evaluation committee shall be appointed by the Authorising Officer
responsible to give an advisory opinion for contracts with a value above
the threshold referred to in Article 34(2).

2. The evaluation committee shall be made up of at least three persons
representing at least two organisational entities of the Agency concerned
with no hierarchical link between them, at least one of which does not
come under the Authorising Officer responsible. Those persons shall
avoid any conflict of
interests. The evaluation committee may be
composed of the same members as the committee opening the tenders.

Outside experts may assist the committee by decision of the Authorising
Officer responsible. The Authorising Officer responsible shall ensure that
these experts have no conflict of interest.

3. Requests to participate and tenders which do not satisfy all the
essential requirements set out in the supporting documentation for
invitations to tender or the specific requirements laid down therein shall
be eliminated.

However, the evaluation committee or the Agency may ask candidates or
tenderers to supply additional material or to clarify the supporting
documents submitted in connection with the exclusion and selection
criteria, within the time limit it specifies.

4.
In the case of abnormally low tenders referred to in Article 47, the
evaluation committee shall request any relevant information concerning
the composition of the tender.

Article 54

Article 296 TEC

They shall also initial:

(a)

either each page of each tender; or

The present financial provisions shall not affect existing measures taken
by Member States under Article 296 of the Treaty establishing the
European Community or under Articles 10 and 14 of Directive 2004/
18/EC.

12.10.2007

EN

Official Journal of the European Union

L 269/37

RULES FOR FINANCIAL CONTRIBUTIONS FROM THE OPERATIONAL BUDGET

CHAPTER 3

Article 55

Scope

1. The Agency shall be entitled to contribute, from its operational
budget, to projects intended to help achieve an objective forming part of
the Agency's annual work programme, developed and co-financed by
private or public entities of any of the participating Member States or in
cooperation with any other European institution or
international
organisation.

2. The Steering Board shall decide on the amount of the operational
budget to be used through financial contributions. One project may give
rise to the award of only one Agency financial contribution.

Financial contributions from the Agency shall be covered by a

3.
written agreement with the beneficiary.

Financial contributions

shall be awarded following calls

for
4.
proposals except in such cases where the European Commission or
another European or international organisation or entity has entered into
an agreement with a particular economic operator in the field of security
research or defence, and it is appropriate for the Agency to award a
financial contribution to the same economic operator.

5. A financial contribution may be awarded for a project which has
already begun only where the applicant can demonstrate the need to start
the project before the agreement is signed. In such cases, expenditure
eligible for financing may not have been incurred prior to the date of
submission of
the financial contribution application, save in duly
substantiated exceptional cases. No financial contribution may be
awarded retrospectively for projects already completed.

6.
Financial contributions may not finance the entire costs of the
project. The project must involve co-financing. The beneficiary shall
supply evidence of the co-financing provided, either by way of own
resources, or in the form of financial transfers from third parties. The
Authorising Officer may, in duly substantiated exceptional cases, accept
co-financing in kind. In such cases the value of such contributions may
not exceed the costs actually borne and duly supported by accounting
documents.

7. The financial contribution may not have the purpose or effect of
producing a surplus of receipts over the costs of the project in question
when the request is made for final payment of a financial contribution
for a project.

8. The following provisions shall apply, mutatis mutandis,
to the
procedure for awarding a financial contribution and signing the
agreement with the beneficiary: Articles 2(1), 7, 9, 10, 12, 15, 16, 17,
18, 19, 22, 40, 41, 42, 43, 44, 48, 50, 51, 52 and 53, where the regime
to be applied for financial contributions shall be, if applicable, the regime
for contracts related to defence.

Article 56

Evaluation of proposals

1.
Proposals shall be evaluated, on the basis of pre-announced selection
and award criteria published in the call for proposals, by an evaluation
committee set up for that purpose, with a view to determining which
proposals may be financed.

2. The selection criteria shall be published in the call for proposals and
shall be such as to make it possible to assess the applicant's financial and
operational capacity to complete the proposed project. The applicant
must have stable and sufficient sources of funding to maintain his activity
throughout the period during which the project is being carried out or
the year for which the financial contribution is awarded and to
participate in its funding. The applicant must have the professional
competencies and qualifications required to complete the proposed
project.

3. The award criteria shall be such as to enable financial contributions
to be awarded to the projects which maximise the overall effectiveness of
the Agency's annual work programme which they implement. Those
criteria shall be defined in such a way as to ensure also that the Agency
funds are properly managed and that it will be possible subsequently to
carry out an evaluation.

4. Upon completion of
responsible shall, on the basis of
beneficiary and determine the financial contribution.

its evaluation,

the Authorising Officer
the

the evaluation made, select

Article 57

Content of calls for proposals

1. Calls for proposals shall specify:

(a)

the objectives pursued;

(b)

the eligibility, selection and award criteria and the relevant
supporting documents;

(c)

the arrangements for financing by the Agency;

(d)

the arrangements and final date for the submission of proposals
and the possible start-up date for the projects and the planned date
for closing the award procedure.

2. Calls for proposals shall be published on the Internet website of the
European Defence Agency and as appropriate, by any other medium,
including the Official Journal of the European Union, in order to provide
maximum publicity among potential beneficiaries.

Article 58

Applications for financial contributions

1. Applications shall be made in the form specified, and in accordance
with the criteria laid down, in the call for proposals.

2. The application shall show that the applicant exists as a legal person
and has the financial and operational capacity to complete the proposed
that purpose the Authorising Officer shall request a
project. For
declaration from potential beneficiaries on their honour. The profit and
loss account, the balance sheet for the last financial year for which the
accounts have been closed and any other supporting document requested
in the call for proposals shall, depending on the analysis of management
risks conducted by the Authorising Officer responsible, also be attached
to the application.

L 269/38

EN

Official Journal of the European Union

12.10.2007

3. The budget for the project or the operating budget attached to the
application shall have revenue and expenditure in balance and show
clearly the costs which are eligible for financing from the Agency budget.

4.
For financial contributions of over EUR 25 000, the application shall
be accompanied by an external audit report produced by an approved
auditor. That report shall certify the accounts for the last financial year
available and give an assessment of the financial viability of the applicant.
The provisions of
this subparagraph shall apply only to the first
application made by a beneficiary to an Authorising Officer in any one
budget year. The Authorising Officer responsible may, depending on his
analysis of management risks, waive that obligation for public bodies and
European institutions or international organisations.

5. The applicant shall indicate the sources and amounts of any other
funding received or applied for in the same financial year for the same
project or for any other project and for routine activities.

(h)

(i)

(j)

(k)

the pace of payments taking into account the financial risks
involved, the duration and progress of the project and the costs
incurred by the beneficiary;

the responsibilities of the beneficiary,
in particular in terms of
sound financial management and submission of activity and
financial reports;

the arrangements and time limits for approving those reports and
for payment by the European Defence Agency;

provisions for the European Defence Agency and its Auditors to
exercise their powers of control, on documents and on the
premises, over all contractors and subcontractors who have
received the Agency's funds.

Article 60

Article 59

Supporting documents for requests for payments

Content of financial contribution agreement

The financial contribution agreement shall in particular lay down:

(a)

the subject;

(b)

the beneficiary;

(c)

the duration, namely:

(i)

the date of its entry into force and its termination;

(ii)

the starting date and the duration of the project;

(d)

the maximum amount of the financial contribution; and

(e)

a detailed description of the project;

(f)

the general terms and conditions applicable to all agreements of
this type, such as IPR, determination of the applicable law, the
court competent to hear disputes and acceptance by the beneficiary
of audits by the European Defence Agency and its auditors and of
the ex post publication rules referred to in Article 3;

For each financial contribution, where financing is split, each new
1.
payment shall be subject to consumption of at least 70 % of the total
amount of any earlier pre-financing. The statement of the beneficiary's
outlay shall be produced in support of any request for a new payment.

2. The beneficiary shall certify on his or her honour that information
contained in requests for payments is full, reliable and true. He or she
shall also certify that the costs incurred can be considered eligible in
accordance with the financial contribution agreement and that requests
for payment are substantiated by adequate supporting documents that
can be checked.

3. An external audit of
the financial statements and underlying
accounts, produced by an approved auditor, may be demanded by the
Authorising Officer responsible in support of any payment on the basis
of his analysis of risks. In the case of a financial contribution for a project
or of an operating financial contribution, the audit report shall be
attached to the request for payment. Its purpose is to certify that the costs
declared by the beneficiary in the financial statements on which the
request for payment is based are real, exact and eligible in accordance
with the financial contribution agreement.

Depending on his analysis of risks, the Authorising Officer responsible
may also waive the obligation of an external audit in the case of public
bodies and of other European institutions and international organisa-
tions.

(g)

the estimated financial contribution and details of the eligible costs
of the project;

4. The amount of the financial contribution shall not become final
until after the institution has accepted the final reports and accounts,
without prejudice to subsequent checks.