2008/670/JHA: Council Decision of 24 July 2008 amending Council Decision 2000/265/EC on the establishment of a financial regulation governing the budgetary aspects of the management by the Deputy Secretary-General of the Council, of contracts concluded in his name, on behalf of certain Member States, relating to the installation and the functioning of the communication infrastructure for the Schengen environment, Sisnet
Date: 2008-07-24
Institutions: Council of the European Union
Subjects: Schengen Information System, contract, disclosure of information, financial regulation, implementation of the budget, invitation to tender

15.8.2008

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Official Journal of the European Union

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(Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory)

II

DECISIONS

COUNCIL

COUNCIL DECISION

of 24 July 2008

amending Council Decision 2000/265/EC on the establishment of a financial regulation governing
the budgetary aspects of the management by the Deputy Secretary-General of the Council, of
contracts concluded in his name, on behalf of certain Member States, relating to the installation
and the functioning of the communication infrastructure for the Schengen environment, ‘Sisnet’

(2008/670/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to first sentence of the second subparagraph of
Article 2(1) of the Protocol integrating the Schengen acquis into
the framework of the European Union, annexed to the Treaty
on European Union and to the Treaty establishing the European
Community,

Whereas:

(1)

(2)

(3)

of

The Deputy Secretary-General of
the Council was
authorised by Decision 1999/870/EC (1) and Decision
2007/149/EC (2) to act, in the context of the integration
of the Schengen acquis within the European Union, as
representative
the
certain Member
purposes of concluding contracts relating to the instal­
lation and the functioning of the communication infra­
structure for the Schengen environment, ‘SISNET’, and to
manage such contracts, pending its migration to a
communication infrastructure under
the responsibility
of the European Union.

States

for

The financial obligations arising under those contracts
are borne by a specific budget, hereinafter ‘the Sisnet
budget’,
communication infrastructure
referred to in those Council Decisions.

financing the

The Sisnet budget is governed by a specific Financial
Regulation
Decision
2000/265/EC (3), hereinafter referred to as the ‘Sisnet

established

Council

by

Financial Regulation’, which provides
from those of
procedures
applicable
to the general budget of
Communities, as set out
Euratom) No 1605/2002 (4).

for different
the Financial Regulation
the European
in Council Regulation (EC,

It is appropriate, by analogy, to bring the Sisnet Financial
Regulation into line with the Community Financial Regu­
lation, whilst simplifying the internal procedures within
the Council Secretariat,
in particular by abolishing the
role of the financial controller and where appropriate
replacing his functions by those of the internal auditor
established by Article 85 of Regulation (EC, Euratom) No
1605/2002.

Current procedures should also be made smoother and
more appropriate to actual practice,
for instance by
adapting deadlines in respect of calls for funds and
payments, and updating some provisions in the current
procedural or legislative frameworks.

2007/155/EC (5)

The Sisnet Financial Regulation was amended by Council
Decision
Council Decision
2008/319/EC in order to allow Switzerland to participate
in the Sisnet budget. Switzerland should also be allowed
to participate in possible future activities of the Advisory
Committee.

and

(4)

(5)

(6)

(1) OJ L 337, 30.12.1999, p. 41.
(2) OJ L 66, 6.3.2007, p. 19.
(3) OJ L 85, 6.4.2000, p. 12. Decision as last amended by Decision

2008/319/EC (OJ L 109, 19.4.2008, p. 30).

(4) OJ L 248, 16.9.2002, p. 1. Regulation as last amended by Regu­

lation (EC) No 1525/2007 (OJ L 343, 27.12.2007, p. 9).

(5) OJ L 68, 8.3.2007, p. 5.

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Official Journal of the European Union

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(7)

The proposed amendments have no financial impact on
the Member States’ contributions to the Sisnet budget,

The SIS/SIRENE Working Party shall deliver its opinion

3.
on that preliminary draft.

HAS DECIDED AS FOLLOWS:

Article 1

The Deputy Secretary-General shall establish the draft
4.
budget and forward it by 15 November to the States
referred to in Article 25.’;

Decision 2000/265/EC is hereby amended as follows:

4. Article 10(2) shall be replaced by the following:

1. Article 6(4) shall be replaced by the following:

‘4.
The expenditure of a financial year shall be entered in
the accounts for that year on the basis of expenditure
authorised no later than 31 December and for which the
corresponding payments were made by the accounting
officer before the following 15 January.’;

2. Article 7 shall be amended as follows:

(a)

in paragraph 2:

(i) the first subparagraph shall be replaced by the

following:

1,

‘Notwithstanding
the Deputy
paragraph
Secretary-General of the Council may forward to
the representatives of
the States referred to in
Article 25, meeting within the framework of the
SIS/SIRENE Working Party (Mixed Committee), here­
inafter referred to as the “SIS/SIRENE Working Party”,
before 31 January, duly substantiated requests to
carry over to the next financial year appropriations
not committed at 15 December when the appro­
priations provided for the headings concerned in
the budget for the following financial year do not
cover requirements.’;

An amending budget

‘2.
shall be submitted on an
in the three months following the closure
annual basis,
of the accounts as laid down in Article 46(1), with the
aim of entering the balance of the budget outturn from
the previous financial year as revenue in the case of a
positive balance or expenditure if the balance is negative.’;

5. Article 12 shall be replaced by the following:

‘Article 12

The budget shall be implemented in accordance with the
principle that the authorising officer and the accounting
officer are different individuals. The duties of authorising
officer, accounting officer and internal auditor shall be
mutually incompatible.’;

6. Article 13(2) shall be replaced by the following:

‘2.
The authorising officer may decide on transfers
between articles within each chapter. With the agreement
of
the SIS/SIRENE Working Party, he may decide on
transfers between chapters within the same title. The
SIS/SIRENE Working Party shall give its agreement under
the same conditions as for adopting its opinion on the
budget.’;

7. Article 14 shall be deleted;

(ii) the fourth subparagraph shall be replaced by the

following:

8. Article 16 shall be amended as follows:

‘The SIS/SIRENE Working Party shall act on such
requests for carrying over by 1 March at the latest.’;

(a) paragraph 1 shall be replaced by the following:

(b) paragraph 4 shall be deleted;

3. Article 8(2) to (4) shall be replaced by the following:

‘1.
For the collection of any amount owing pursuant
to Article 25, or of any debt due to the States
concerned by a third party relating to the conclusion,
installation and functioning of Sisnet, the issue of a
recovery order by the authorising officer
shall be
required. Recovery orders shall be forwarded to the
accounting officer.’;

‘2.
The Deputy Secretary-General shall forward the preli­
minary draft budget to the SIS/SIRENE Working Party before
15 October and attach an explanatory memorandum.

(b) paragraph 2 shall be deleted;

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9. the last sentence of Article 18(1) as well as Articles 18(2),

13. Article 29(6)(h) shall be replaced by the following:

20(2)(g), 20(4), (20)(5), and 22 shall be deleted;

10. Article 23 shall be replaced by the following:

‘Article 23

The liability to disciplinary action of the authorising officer
and accounting officer in the event of failure to comply
with the provisions of this Financial Regulation shall be as
the
laid down in the Staff Regulations of Officials of
European Communities.’;

his

and

‘(h) prohibit any contact between the Deputy Secretary-
the
staff,
representatives
General
the Member States referred to in
Governments of
Article 25,
the Governments of
Iceland, Norway and Switzerland and tenderers on
matters related to that invitation to tender save, by
way of
following
exception, under
conditions:

representatives of

special

the

of

before the closing date for the submission of tenders:

11. a Chapter shall be added as follows:

(i) at the instance of tenderers:

‘CHAPTER III A

Internal auditor

Article 24a

An internal auditor shall verify the proper operation of the
budgetary implementation systems and procedures set out
in this Regulation. By analogy, the internal auditor shall
benefit from all the powers, shall perform all the tasks,
and shall be subject
in
Council Regulation (EC, Euratom) No 1605/2002 of
25 June 2002 on the Financial Regulation applicable to
the general budget of the European Communities (*),
in
particular in Part I, Title IV, Chapter 8 thereof.

the rules provided for

to all

___________
(*) OJ L 248, 16.9.2002, p. 1. Regulation as last amended
by Regulation (EC) No 1525/2007 (OJ L 343,
27.12.2007, p. 9).’;

12. Article 28 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

‘1.
Until 31 December 2008, the States referred to
in Article 25 shall be required to pay 25 % of their
contribution by 15 February, 1 April, 1 July and 1
October at the latest.’;

information solely for the purpose of
additional
clarifying the nature of the invitation to tender
may be communicated to all tenderers;

(ii) at the instance of the Deputy Secretary-General:

if the Member States referred to in Article 25, or
Iceland, Norway and Switzerland, or the General
Secretariat of the Council notice an error, a lack of
precision, an omission or any other type of clerical
defect in the text of the invitation to tender, the
General Secretariat may, in a manner identical to
that applicable in respect of the original invitation
to
concerned
tender,
accordingly;

inform the

persons

(iii) after the tenders have been opened and at the
the Member States referred to in
instance of
Iceland, Norway or Switzerland, or
Article 25,
if some
the General Secretariat of the Council,
clarification is
required in connection with a
tender, or if obvious clerical errors contained in
the tender must be corrected, the General Secre­
tariat may contact the tenderer.’;

14. Article 31 shall be replaced by the following:

(b) the following paragraph shall be added:

‘Article 31

‘1a.
From 1 January 2009, the States referred to in
Article 25 shall be required to pay 70 % of their contri­
bution by 1 April and 30 % by 1 October at the latest.’;

No discrimination shall be practised between nationals of
Member States and of Iceland, Norway and Switzerland on
grounds of nationality in respect of contracts entered into
by the Deputy Secretary-General on behalf of the Member
States referred to in Article 25.’;

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15. the second subparagraph of Article 34 shall be replaced by

the following:

in point (a), where they consider that such contracts
involve questions of principle or are of a special
nature.’;

‘The tenders shall be opened together by a committee
appointed for
this purpose by the Deputy Secretary-
General. It shall be composed of three high-level officials
from different directorates of the Council General Secre­
tariat.’;

16. the first subparagraph of Article 35 shall be replaced by the

following:

‘Every tender shall be assessed by the Member States
referred to in Article 25, together with Iceland, Norway
and Switzerland. A report, approved unanimously by
these States, shall be presented by the competent official
within the Council General Secretariat designated by the
authorising officer or by an alternate, also designated by
the authorising officer, to the Advisory Committee referred
to in Article 36.’;

17. Article 36 shall be replaced by the following:

‘Article 36

Contracts to be concluded by the Deputy Secretary-General
on behalf of the Member States referred to in Article 25
and by the appropriate representatives of Iceland, Norway
and Switzerland after an invitation to tender has been
issued shall
the opinion of an
Advisory Committee on procurements and contracts.’;

first be submitted for

18. the first subparagraph of Article 37 shall be replaced by the

following:

representative

‘The Advisory Committee referred to in Article 36 shall
include one
from each Member State
referred to in Article 25, together with one representative
Iceland, Norway and Switzerland. The
from each of
together with
Member States referred to in Article 25,
Iceland, Norway and Switzerland, shall ensure that
the
representatives selected have adequate expertise in infor­
matics and/or financial matters and/or legal matters. Repre­
sentatives must not have participated in the assessment of
the files to be submitted to the Advisory Committee. A
representative of the internal auditor shall be present as
observer.’;

20. Article 40 shall be replaced by the following:

‘Article 40

The files submitted to the Advisory Committee for an
opinion pursuant
to (e), shall also be
accompanied by a report approved unanimously by the
referred to in Article 25, as well as
Member States
Iceland, Norway and Switzerland.’;

to Article 39(b)

21. Article 41 shall be replaced by the following:

‘Article 41

The opinions of the Advisory Committee shall be signed by
its chairman. In order to avoid delays in the process as a
result of the intervention of the Advisory Committee, the
Member States referred to in Article 25, as well as Iceland,
Norway and Switzerland, may, if they deem it necessary,
impose a reasonable deadline by which an opinion must be
furnished. Opinions shall be communicated to the Deputy
Secretary-General and to the Member States referred to in
Article 25, as well as to Iceland, Norway and Switzerland.
Following due consideration of that opinion, the Member
States referred to in Article 25, as well as Iceland, Norway
and Switzerland, shall take a final decision on the case by
unanimity. Once that decision has been taken, the contract
or contracts which form the subject of each case shall be
concluded by the Deputy Secretary-General on behalf of the
Member States referred to in Article 25 and by the appro­
priate representatives of Iceland, Norway and Switzerland.’;

22. Article 43(6) shall be replaced by the following:

that

ensure

the Member States

‘6. Where a contract has not been performed or
the Deputy Secretary-General
completion has been late,
shall
referred to in
Article 25, as well as Iceland, Norway and Switzerland,
are adequately compensated in respect of all damages,
interests and costs by the deduction of the amount from
the deposit, whether this has been lodged directly by the
supplier or contractor or by a third party.’;

19. Article 39(e) shall be replaced by the following:

23. Article 46(1) shall be replaced by the following:

‘(e) at the request of one of the Member States referred to
in Article 25 or of Iceland, Norway or Switzerland, or
of a member of the Advisory Committee, or of the
Deputy
contracts
involving an amount below the thresholds referred to

Secretary-General,

proposed

from the end of

The Deputy Secretary-General

‘1.
shall, within three
months
implementation
period, draw up a revenue and expenditure account and a
balance sheet and transmit them to the SIS/SIRENE Working
Party.’;

the budget

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24. Article 50(2) shall be replaced by the following:

‘2.
By derogation from Article 8, for the purposes of the budget referred to in paragraph 1, the
Deputy Secretary-General of the Council shall forward the preliminary draft budget to the SIS/SIRENE
Working Party as soon as possible after the adoption of this Financial Regulation. Following the
delivery of the opinion of the SIS/SIRENE Working Party and the establishment of the draft budget,
the Member States referred to in Article 25, meeting within the Council, shall adopt the budget without
delay.’.

1.

2.

This Decision shall take effect from the date of its adoption.

It shall be published in the Official Journal of the European Union.

Article 2

Done at Brussels, 24 July 2008.

For the Council
The President

B. HORTEFEUX