2008/969/EC,Euratom: Commission Decision of 16 December 2008 on the Early Warning System for the use of authorising officers of the Commission and the executive agencies
Date: 2008-12-16
Institutions: European Commission
Subjects: Community budget, European Development Fund, access to information, data protection, database, financial management, financial regulation, fraud against the EU, nuclear energy

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Official Journal of the European Union

L 344/125

COMMISSION DECISION

of 16 December 2008

on the Early Warning System for the use of authorising officers of the Commission and the
executive agencies

(2008/969/EC, Euratom)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Euratom) No 1605/2002 on the Financial Regulation,
and following the recommendations of
the European
Data Protection Supervisor (3).

Having regard to the Treaty
Community,

establishing the European

Having regard to the Treaty establishing the European Atomic
Energy Community,

Having regard to Council Regulation (EC, Euratom) No
1605/2002 of 25 June 2002 on the Financial Regulation
applicable to the general budget of
the European Commu­
nities (1),

Having regard to Council Regulation (EC) No 215/2008 of
18 February 2008 on the Financial Regulation applicable to
the 10th European Development Fund (2),

Whereas:

(1)

(2)

The Commission, which is responsible for executing the
general budget of the European Union and any other
funds managed by the Communities with due regard to
the principle of sound financial management, is under an
obligation to counter fraud and any other illegal activities
affecting the financial interests of the Communities.

The current Commission Decision on the Early Warning
System (EWS) should be replaced by the present decision
following the amendments of Articles 93 to 96 of
Council Regulation (EC, Euratom) No 1605/2002 of
25 June 2002 on the Financial Regulation applicable to
the general budget of the European Communities (the
Financial Regulation)
corresponding
and
provisions of Commission Regulation (EC, Euratom) No
2342/2002 of 23 December 2002 laying down detailed
rules for the implementation of Council Regulation (EC,

the

of

(1) OJ L 248, 16.9.2002, p. 1.
(2) OJ L 78, 19.3.2008, p. 1.

(3)

(4)

(5)

(6)

Commission Regulation (EC, Euratom) No 1302/2008 of
17 December 2008 on the central exclusion database (4)
establishes a database containing the relevant details of
third parties who are in a situation of exclusion as
regards grant and procurement procedures and gives
the institutions, including those listed in Article 1(2) of
the Financial Regulation, executive agencies, Community
bodies covered by Article 185 of the Financial Regulation
as well as authorities of the Member States and third
international organisations and other bodies
countries,
participating in the implementation of
the budget,
access to this database.

the EWS is

The purpose of
to ensure, within the
Commission and its executive agencies, the circulation
of restricted information concerning third parties who
could represent a threat to the Communities’ financial
interests and reputation or to any other fund admi­
nistered by the Communities.

status of
Given that
agencies have
executive
authorising officers by delegation of
the Commission
for the implementation of operational appropriations,
they should have access
to the EWS in the same
manner as Commission services for the management of
the administrative and operational appropriations.

the

The European Anti-Fraud Office (OLAF) should have
access to the EWS for pursuing its regulatory investi­
gation tasks and its intelligence and fraud prevention
activities exercised pursuant to Article 1(2) of Regulation
(EC) No 1073/1999 of the European Parliament and of
the Council of 25 May 1999 concerning investigations
conducted by the European Anti-Fraud Office (OLAF) (5)
and Council Regulation (Euratom) No 1074/1999 of
25 May 1999 concerning investigations conducted by
the European Anti-Fraud Office (OLAF) (6).

(3) Opinion of the European Data Protection Supervisor on a notifi­
cation for Prior Checking received from the Data Protection Officer
of the Commission on the Early Warning System, Case 2005/120,
6.12.2006.

(4) See page 12 of this Official Journal.
(5) OJ L 136, 31.5.1999, p. 1.
(6) OJ L 136, 31.5.1999, p. 8.

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(7)

(8)

(9)

Internal Audit

The accounting officer should ensure the administration
of the EWS. The authorising officer responsible, OLAF
should be
and the
responsible
or
removal of warnings. In order to preserve an adequate
level of control, such requests should be made at an
appropriate hierarchical level.

(IAS)
entry, modification

requesting

Service

for

Regulation (EC) No 45/2001 of the European Parliament
and of
the Council of 18 December 2000 on the
protection of individuals with regard to the processing
of personal data by the Community institutions and
bodies and on the free movement of such data (1)
stipulates that the processing of personal data by the
processing
Commission must
requirements
relating to the
such
transfer of data laid down therein, and that
processing is subject to prior checking by the European
Data Protection Supervisor following notification by the
Commission Data Protection Officer.

requirements

and the

respect

lawful

the

meaning of point (c) of Article 93(1) of the Financial
Regulation in order to ensure that contracts or grants
are not awarded to the third party during the ongoing
penalty procedure.

(13)

The Commission must comply with various Council
regulations implementing Common Positions adopted
on the basis of Article 15 of the Treaty on European
Union (Common Foreign and Security Policy — CFSP),
under which it is forbidden to make available any funds
and economic resources, directly or indirectly, to, or for
the benefit of, designated natural or legal persons, groups
or entities,

HAS DECIDED AS FOLLOWS:

Data protection provisions should lay down the rights of
the persons whose data is or could be introduced in the
EWS in line with the opinion of the European Data
Protection Supervisor. As regards data introduced in the
EWS,
to be informed should differentiate
between third parties who are natural persons benefiting
from more extensive data protection rights and the ones
of legal persons.

the right

SECTION 1

GENERAL PROVISIONS

Article 1

Subject matter

the
This Decision establishes the Early Warning System of
‘the EWS’) as regards the implemen­
Commission (hereinafter:
tation of the general budget of the European Union and any
other fund managed by the Communities.

(10)

Certain data protection rights are subject to exceptions
laid down in Article 20 of Regulation (EC) No 45/2001,
which have to be considered case by case and applied on
a temporary basis. Application of these exceptions should
lay solely with the service responsible for requesting data
entry, modification, including rectification or removal of
relevant data.

Article 2

Definitions

For the purposes of this Decision, the following definitions shall
apply:

(11) Given that exclusions pursuant

to Article 94 of

the
Financial Regulation concern specific procurement/grant
procedures, these warnings should not fall under level
W5 but under a new category, namely W1d, whereas
W5 warnings
exclusively exclusion
situations concerning all procurement/grant procedures.

should indicate

(12)

In order to protect the financial interests of the Commu­
nities, the AOD responsible shall, pending a decision of
the Commission on the application of Article 96 of the
Financial Regulation, request provisional registration of
an exclusion warning if the conduct of the third party
also constitutes grave professional misconduct within the

(1) OJ L 8, 12.1.2001, p. 1.

— ‘third parties’ mean candidates,

tenderers,

contractors,
suppliers, service providers and their respective subcon­
tractors as well as grant applicants, grant beneficiaries,
contractors of grant beneficiaries and entities
receiving
from a beneficiary of a Community
financial
grant pursuant to Article 120 of the Financial Regulation,

support

rules

— ‘AOD responsible’ means authorising officer by delegation
of the Commission within the meaning of Article 59 of the
Financial Regulation responsible in accordance with the
the general
internal
budget of European Communities (hereinafter ‘the budget’),
including directors of executive agencies, and authorising
officer by subdelegation within the meaning of Article 59
of
the Financial Regulation exercising the function of
director.

implementation of

the

for

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Article 3

EWS warnings

The accounting officer shall adopt implementing measures
2.
concerning technical aspects and define associated supporting
procedures, including in the field of security.

1.

EWS warnings shall contain the following data:

(a)

information identifying third parties which represent a
threat to the Communities’ financial interests and reputation
or to any other fund administered by the Communities
because
suspected to have
committed fraud or serious administrative errors, or are
subject
recovery
to attachment orders or to significant
orders, or are excluded in accordance with the Financial
Regulation or the CFSP-related financial restrictions;

committed or

they

are

(b) information concerning persons with powers of represen­
tation, decision-making or control over legal entities which
are third parties, when those persons represent themselves a
threat to the Communities’ financial interests and reputation
or to any other fund administered by the Communities for
the reasons listed under (a);

(c)

the type of warning and the grounds for which third parties
referred to in point (a) or persons referred to in point (b)
represent such a threat and, if appropriate, its duration and
the warning contact person for that warning.

2. Without prejudice to Articles 1(2) and 1(3) of Regulation
(EC, Euratom) No 1302/2008, data contained in the EWS may
be used only for the purposes of the implementation of the
budget or of any other fund administered by the Communities,
including grant
as
payments to third parties.

and procurement procedures

as well

He shall notify those measures to the Commission services and
the executive agencies.

Article 5

Requests for registration, modification or removal of
warnings

All requests for registration of warnings,

1.
their modifi­
cation or removal shall be addressed to the accounting officer.

Only the AOD responsible, the Director General or a director of
OLAF or the IAS may submit such requests. For that purpose,
they shall use the template set out in the Annex.

2.
The service which has established that a third party is in
one of the situations described in Article 9 shall send a request
for an EWS warning to the accounting officer, with copy to the
EWS officer referred to in Article 7, even if the third party is
already subject to an EWS warning.

3.
In accordance with the procedure described in paragraph
2, the service that requested an EWS warning shall notify to the
accounting officer, using the template set out in the Annex:

(a) any change of

the information contained in the EWS

warning concerned;

European Anti-Fraud Office (OLAF) may use the data for its
investigations pursuant to Regulation (EC) No 1073/1999 and
Regulation (Euratom) No 1074/1999 as well as for its intel­
ligence and fraud prevention activities, including risk analyses.

(b) the removal of that EWS warning once the reason for the

warning no longer applies.

Article 4

Administration of the EWS

However, a change of the warning contact person can be sent
by registered note.

The Commission’s accounting officer or his subordinate
1.
staff to whom he delegated certain tasks pursuant to Article 62
of the Financial Regulation (hereinafter ‘the accounting officer’)
shall ensure the administration of the EWS and make appro­
priate technical arrangements.

4.
The service that requested registration of an EWS warning
is also responsible for coordinating actions to be taken as
regards budget
such
warning in accordance with Articles 15 to 22.

implementation in consequence of

The accounting officer shall enter, modify or remove EWS
warnings pursuant to requests by the AOD responsible, OLAF
and the Internal Audit Service (IAS).

5.
Activation of a warning for a person with powers of
representation, decision-making or control over given legal
person requires an additional request, distinct from that aimed
at the legal person concerned.

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Article 6

Access to and the use of the EWS

1.
The Commission services and executive agencies shall
have direct access to the data contained in the EWS via the
accounting system provided by the Commission (ABAC).

The AOD responsible or his staff shall verify according to
3.
paragraph 2 whether there is a warning in the EWS concerning
a person with power of representation, decision-making or
control over
in the following
situations:

the third party concerned,

The Commission service or executive agency responsible for a
local system may use that system to access the data contained
in the EWS, provided that data-consistency between the local
system and the ABAC accounting system is guaranteed.

(a) where the AOD responsible or his staff deems that such
verification is necessary on the basis of his risk analysis;

2.
The AOD responsible or his staff shall verify whether
there is a warning in the EWS concerning third parties at the
following stages:

(b) where the documents requested by the AOD responsible or
his staff as evidence that the third party concerned is not in
one of
the
Financial Regulation, relate to such persons.

the situations described in Article 93(1) of

(a)

in the case of individual budgetary commitments, before
such commitment is entered;

The specific warning contact person referred to in point
4.
(c) of Article 3(1) shall make available all relevant information
to the AOD responsible or his staff upon request. As regards
exclusion warnings, Article 12 of Regulation (EC, Euratom) No
1302/2008 applies.

(b) in the case of global budgetary commitments, before regis­
to the global

legal commitment

tering any individual
commitment;

(c)

in the case of provisional budgetary commitments, before
concluding the legal commitment giving rise to an enti­
tlement to subsequent payments.

Paragraphs 2 to 4 shall also apply to imprest accounts for
5.
the imprest
expenditure exceeding EUR 300.
administrator shall verify whether there is a warning in the
EWS, on the basis of information he has been granted, prior
to the conclusion of any legal commitment with a third party.

In that case,

Where the commitments referred to in point
(c) cover the
payment of staff and the reimbursement of travel expenditure
related to participation in meetings and competitions, the obli­
gation of prior verification of EWS registrations shall not apply.

In the case of procurement or grant award procedures the AOD
responsible or his staff shall verify whether there is a warning in
the EWS at the latest before the award decision.

However, where the awarding authority limits the number of
candidates invited to submit a tender or negotiate in a restricted
procedure,
competitive dialogue or negotiated procedure
following publication of a contract notice, such verifications
shall be carried out before the selection of candidates has
been completed.

As regards subcontractors submitted for prior approval,
the
AOD responsible or his staff may, on the basis of his risk
analysis, decide not to verify whether there is a warning in
the EWS.

Article 7

EWS officers

1.
The Director General of OLAF or the IAS and each
authorising officer by delegation shall designate at least one
official or temporary staff member under his supervision as
EWS officer.

He shall notify the list of designated persons and any change
thereof to the accounting officer.

third parties,

The EWS officer may consult the list of all third parties, or
2.
representation, decision-making or
persons with powers of
control over
for which an EWS warning is
registered. As regards matters concerning the EWS he shall
ensure the connection between the service and the accounting
officer. He shall also assist the service in the transmission of
information on EWS warnings requested by the service and as
regards the actions to be taken as consequences of such
warnings.

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The accounting officer shall regularly publish an updated
3.
list of all EWS officers on the internal website of the Direc­
torate-General for Budget.

Removed warnings shall be accessible for audit and inves­
4.
tigation purposes only and shall not be visible for the users of
the EWS.

Article 8

Data protection and rights of data subjects

In the calls for tender and calls for proposals and, in the
1.
absence of calls, before awarding contracts or grants, the AOD
responsible or his staff shall
inform third parties of the data
concerning them that may be included in the EWS and of the
entities to which the data may be communicated. Where third
parties are legal entities, the AOD responsible or his staff shall
also inform the persons who have powers of representation,
decision-making or control within these entities.

2.
The service that requested the registration of an EWS
warning shall be responsible for the relations with the natural
or legal person whose data are introduced into the EWS (here­
inafter ‘the data subject concerned’):

(a)

it shall inform the data subject concerned of the request for
activation, updating and removal of any exclusion warning
W5a directly concerning it and state the reasons thereof;

(b) it shall respond to requests from data subjects concerned to
rectify inaccurate or incomplete personal data and to any
other requests or questions from those subjects.

However, personal data contained in warnings referring to
natural persons shall remain accessible to such purposes only
for five years after the removal of the warning.

SECTION 2

INFORMATION ENTERED IN THE EWS

Article 9

Categories of warning

Depending on the nature or the seriousness of the facts brought
to the knowledge of the service requesting registration, EWS
warnings shall be divided into the following five categories:

1. W1, where information gives sufficient reason to believe that
findings of fraud or serious administrative errors are likely to
be recorded or where precautionary measures should be
taken following the exclusion of a third party pursuant to
Article 94 of the Financial Regulation;

2. W2, where a third party is subject to findings of serious

administrative errors or fraud;

However,
warning may
Article 20(1) of Regulation (EC) No 45/2001 apply.

the service that requested the registration of
down

restrictions

decide

that

laid

3. W3, where a third party is subject either to pending legal
proceedings entailing the notification of an attachment
order, or to judicial proceedings for serious administrative
errors or fraud;

the
in

3. Without prejudice to the information requirements set out
in paragraph 2, a duly identified natural person may request
from the accounting officer information on whether he is
registered in the EWS.

Subject to the decision of the service that requested the regis­
tration of the EWS warning on whether restrictions laid down
in Article 20(1) of Regulation (EC) No 45/2001 apply, the
accounting officer shall
inform the person in writing or by
electronic means whether he is registered in the EWS.

If the person is registered, the accounting officer shall attach the
data stored in the EWS concerning that person. He shall inform
the service that requested registration of the warning concerned
thereof.

4. W4, where third parties are subject to recovery orders issued
by the Commission exceeding a certain amount and on
which payment is significantly overdue;

5. W5, where a third party is excluded in accordance with the
Financial Regulation or Council regulations imposing CFSP-
related financial restrictions.

Article 10

W1 warnings

1.
OLAF shall request the activation of a W1a warning where
its investigations at an early stage give sufficient reason to
believe that findings of serious administrative errors or fraud
are likely to be recorded in relation to third parties, especially
those who are benefiting or have benefited from Community
funds. OLAF shall
the service
concerned of such requests.

inform the EWS officer of

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OLAF and IAS shall request

the activation of a W1b
2.
warning where their investigations give sufficient reason to
believe that final findings of serious administrative errors or
fraud are likely to be recorded in relation to third parties,
especially those who are benefiting or have benefited from
Community funds. They shall
inform the EWS officer of the
service concerned of such requests.

3.
The AOD responsible shall request the activation of a
W1c warning where investigations of the Court of Auditors,
his Internal Audit Capability (IAC) or any other audit or inves­
tigation made under his
to his
attention give sufficient reason to believe that final findings of
serious administrative errors or fraud are likely to be recorded
in relation to third parties, especially those who are benefiting
or have benefited from Community funds under his responsi­
bility.

responsibility or brought

Article 12

W3 warnings

The accounting officer shall enter a W3a warning upon
an

1.
receiving notification by
attachment order relating to a third party.

the Secretariat General of

The AOD responsible shall request the activation of a
2.
W3b warning where third parties, especially those who are
benefiting or have benefited from Community funds under his
responsibility,
judicial
subject of
are known to be
proceedings for serious administrative errors or fraud.

the

However, where investigations conducted by OLAF lead to such
judicial proceedings or OLAF offers assistance or follows up
those proceedings, OLAF shall request the activation of the
corresponding W3b warning.

4.
The AOD responsible shall request the activation of a
W1d warning where he excludes a candidate, tenderer or an
applicant from the award of a contract or grant in a given
procedure in accordance with points (a) or (b) of Article 94
of the Financial Regulation.

3.
A W3 warning shall remain active until a judgment
having the force of res judicata is rendered or the case has
been otherwise settled.

Exclusion warnings registered pursuant to Article 10(4) of Regu­
lation (EC, Euratom) No 1302/2008 shall be considered as W1d
warnings for the purposes of the EWS.

5.
A W1 warning shall remain active for a maximum of six
months. It shall be automatically removed. If the EWS warning
needs to remain and cannot be replaced with another type of
warning within this period, a new request shall be made.

Article 11

W2 warnings

OLAF and IAS shall request

1.
the activation of a W2a
warning where their investigations lead to findings of serious
administrative errors or fraud involving third parties, especially
those who are benefiting or have benefited from Community
funds.

2.
The AOD responsible shall request the activation of a
W2b warning where the European Court of Auditors, his IAC
or any other audit or investigation made under his responsi­
bility or brought to his attention have issued written findings of
serious administrative errors or fraud in relation to third parties,
especially those who are benefiting or have benefited from
Community funds under his responsibility.

3.
A W2 warning shall remain active for a maximum of six
months. It shall be automatically removed. If the EWS warning
needs to remain and cannot be replaced with another type of
warning within this period, a new request shall be made.

Article 13

W4 warnings

The accounting officer shall enter a W4 warning in
1.
recovery
relation to third parties who are the subject of
orders issued by the Commission exceeding a certain amount
and on which payment is significantly overdue.

2.
The accounting officer shall establish internal guidelines as
to the thresholds determining the relevant amounts and the
time limit for registration under W4 warnings.

3.
Any W4 warning shall remain active as long as the debt is
outstanding. The accounting officer shall remove the warning
when the debt has been settled.

Article 14

W5 warnings

1.
Exclusion warnings registered pursuant to paragraphs 1, 2
and 3 of Article 10 of Regulation (EC, Euratom) No 1302/2008
shall be considered as W5a warnings for the purpose of the
EWS.

2.
A W5b warning shall be registered at the request of the
Commission service responsible for the legislation concerned
with regard to natural or legal persons, groups or entities
listed in accordance with a Council regulation imposing CFSP-
related financial restrictions as long as the designation of the
person, group or entity concerned remains valid. The warning
shall mention the references of the regulation imposing the
restrictions or of the relevant implementing act.

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Registrations of exclusion warnings are subject

3.
following rules:

to the

request him to state the reasons why payment should be
made despite the existence of EWS warnings of categories
W2, W3b and W5a.

(c),

(b),

(a) Whenever the AOD responsible envisages to exclude a third
party in application of points (a),
(d) and (e) of
Article 93(1) of the Financial Regulation, he shall give the
third party concerned the opportunity to express its views
in writing. The third party shall be given at least 14 calendar
days to do so. Before excluding the third party in appli­
cation of point (c) of Article 93(1), the AOD responsible
shall consult the Legal Service and the Directorate-General
for Budget.

the exclusion,

Pending a possible decision by the Commission on the
duration of
the AOD responsible shall
request, in accordance with Article 9(2) of Regulation (EC,
Euratom) No 1302/2008, provisional registration of an
exclusion warning and refer the case as soon as possible
to the Commission. In order to protect the Communities’
financial interests, the AOD responsible may request provi­
sional registration of an exclusion warning W5a already
before having given the third party concerned the oppor­
tunity to express its views. Alternatively, he may request
registration of a W2 warning.

(b) Whenever the AOD responsible envisages launching the
procedure pursuant to Article 96 of the Financial Regu­
lation, he shall give the third party concerned the oppor­
tunity to express its views in writing. The third party shall
be given at least 14 calendar days to do so.

After having consulted the Legal Service and the Direc­
torate-General for Budget and pending a possible decision
by the Commission on the administrative penalty, the AOD
responsible shall request, in accordance with Article 9(2) of
Regulation (EC, Euratom) No 1302/2008, provisional regis­
tration of an exclusion warning W5a if the conduct of the
third party also constitutes grave professional misconduct
within the meaning of point (c) of Article 93(1) of the
Financial Regulation.

(c) Any request for definitive registration of a W5a warning in
accordance with points (b), (c), (e) or (f) of Article 93(1) of
the Financial Regulation shall specify the duration of the
exclusion decided by the Commission.

SECTION 3

CONSEQUENCES OF EWS WARNINGS AS REGARDS BUDGET
IMPLEMENTATION

Article 15

Effect of EWS warnings on budget transactions

1.
The accounting officer shall suspend any payment to a
beneficiary for whom a W2, W3, W4 or W5 warning has
been registered. He shall notify the AOD responsible and

2.
Except for W5b warnings and W3a warnings following
preventive attachment orders, payments proved to be actually
due after the verifications made by the AOD responsible when
suspending the time limit for payments in accordance with
Article 106(4) of Regulation (EC, Euratom) No 2342/2002 or
the contract or grant as
in accordance with the terms of
mentioned in point
(a) of
Article 22(1), shall be executed without delay.

(b) of Article 18(1) and point

However, the accounting officer may only release the suspended
payment on receipt of a reasoned confirmation from the AOD
responsible that payment due shall be executed. In the absence
of that confirmation, the payment shall remain suspended and
the payment order shall be,
if appropriate, sent back to the
AOD responsible.

Where a payment was released by offsetting in compliance with
Article 73 of the Financial Regulation and Article 83 of Regu­
lation (EC, Euratom) No 2342/2002 following a W4 warning or
where a payment was made following an executive attachment
order, the accounting officer shall draw up a duly registered
note.

legal commitment

No individual budgetary commitment, no registration of
3.
an individual
in the budgetary accounts
based on a global commitment and no conclusion of a legal
commitment based on a provisional commitment can be made
with regard to the third party subject to a W5 warning.

Article 16

Consequence of a W1 warning

A W1 warning shall be registered for information purposes
only and may entail no consequence other than reinforced
monitoring measures.

Article 17

Consequences of a W2, W3b or W4 warning on contract
or grant award procedures

stage of

the procedure

1. Where a W2, W3b or W4 warning is registered at the
time the AOD responsible or his staff consults the EWS in
inform,
accordance with point (a) of Article 6(2), he shall
if
the
evaluation
the
committee for the award of contract or grant concerned of
the existence of such warning in so far as the existence of
such warning constitutes a new element to be examined in
connection with the selection criteria for
that contract or
grant. The AOD responsible shall take this information into
account, in particular if the third party registered in the EWS
were to head the list of the evaluation committee.

so permits,

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the Community’s financial

If the third party for which a W2, W3b or W4 warning
2.
has been registered heads the list of the evaluation committee,
the AOD responsible, having due regard to the obligation to
protect
the
nature and seriousness of the justification for the warning, the
amount and duration of
the contract or grant and, where
applicable, the urgency with which it has to be implemented,
shall take one of the following decisions:

interests and image,

(a)

to award the contract or grant to the third party despite
registration in the EWS, and ensure that reinforced moni­
toring measures are taken;

(b) where the existence of such warning objectively calls into
question the initial assessment of compliance with the
to award the contract or
selection and award criteria,
grant to another tenderer or applicant on the basis of an
assessment of compliance with the selection and award
criteria differing from that of
the evaluation committee
and duly justify his decision;

(c)

to close the procedure without awarding any contract and
duly justify this closure in the information given to the
tenderer.

Where the AOD responsible decides to close the procedure in
accordance with point (c), a restricted procedure with the time
limits laid down for urgent cases pursuant to Article 142 of
Regulation (EC, Euratom) No 2342/2002 may be used to award
the contract through a new procedure.

Article 18

Consequences of a W2, W3b or W4 warning as regards
existing contracts or grants

1. Where a W2, W3b or W4 warning has been registered for
reasons related to the performance or award of an ongoing
contract or grant or to the relevant award procedure,
the
AOD responsible may, after giving due consideration to the
risks involved, to the nature of the warning and its justification,
to the consequences which it
likely to have on the
performance of the contract or grant, especially with regard
to the amount, duration and, where applicable, the urgency of
the latter, take one or more of the following actions:

is

(a)

to decide to let the contractor or beneficiary proceed with
the performance of the contract or grant, under prescribed
reinforced monitoring measures;

(b) to suspend the time limit for payments in accordance with
Article 106(4) of Regulation (EC, Euratom) No 2342/2002
for the purpose of further verification in order to ascertain,
prior
the expenditure is
eligible, and subsequently execute payments actually due;

to any further payment,

that

(c)

to suspend performance of
accordance with Articles 103 and 119 of
Regulation;

the contract or grant

in
the Financial

(d) to terminate the contract or grant where it contains a

provision to this effect.

2. Where a W2, W3b or W4 warning has not been
registered for reasons related to the ongoing contract or grant
or to the relevant award procedure, the AOD responsible may,
depending on the type of warning and the consequences, which
it is likely to have on the performance of the ongoing contract
or grant, and after giving due consideration to the risks
involved,
the
following actions:

litigation,

including

that of

judicial

take

(a)

to apply one or more of
paragraph 1(a) and (b);

the options

referred to in

(b) to terminate the contract or grant if there is a provision that
permits termination in the case of new elements, where
those elements justify a real
loss of trust on the part of
the Commission and a threat to the Communities’ repu­
tation.

Article 19

Consequences of a W3a warning

1. Where a third party is subject to a W3a warning corre­
sponding to a preventive attachment order,
the accounting
officer shall maintain the suspension of all payments pending
judicial ruling on the principal creditor’s claim,
a final
if the
national
law applicable so requires. Where the preventive
attachment order is limited to a specific sum according to a
judgment (‘cantonnement’), the accounting officer shall suspend
payments up to that amount.

2. Where a third party is subject to a W3a warning corre­
sponding to an enforceable attachment order,
the AOD
responsible or his
cooperation with the
staff,
accounting officer, shall execute the payment initially payable
the executive agency to the party
by the Commission or
the attaching party, up to the
attached,
amount attached.

for the benefit of

in close

3.
the
Paragraphs 2 and 3 apply unless enforcement of
attachment order is likely to disrupt the smooth operation of
the Commission or
the
accounting officer shall
invoke Article 1 of the Protocol on
Privileges and Immunities.

executive

In this

agency.

case,

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Article 20

Consequences of a W4 warning

Article 15 of the Treaty on European Union, on which W5b
warnings are based, the following rules shall apply:

1. Where a third party is subject to a W4 warning, the
accounting officer shall systematically examine the possibility
of offsetting Community entitlements with payment due to
that
the
third party in compliance with Article 73 of
Financial Regulation and Article 83 of Regulation (EC,
Euratom) No 2342/2002.

The AOD responsible shall

2.
take this information into
consideration before awarding any new contract or grant to
the third party.

Article 21

Consequences of a W5 warning as regards contracts and
grant award procedures

The AOD responsible shall exclude a third party subject to a
W5 warning from participating in the contract or grant award
procedure at the stage of the assessment of the exclusion criteria
in accordance with Articles 93 and 114(3) of the Financial
Regulation
applicable Council Regulation
imposing CFSP-related financial restrictions.

or with

the

Article 22

Specific consequences of a W5 warning on existing
contracts or grants

1. Where a W5a warning has been registered for reasons
that are likely to affect the implementation of contracts or
take the
grants already signed,
following action:

the AOD responsible shall

(a) where the terms of the contract or grant so permit, and
where the reason for the W5 warning is related to the
performance or award of an ongoing contract or grant:

(i) to suspend payments for the purpose of verification,
any
if possible by offsetting with

actually due

and recover

execute payments
amounts unduly paid,
any payment due;

(a) no funds may be made available, directly or indirectly to, or
for the benefit of, a natural or legal person, group or entity
listed in the relevant Council regulation;

(b) no economic resources may be made available, directly or
indirectly, to, or for the benefit of, a natural or legal person,
group or entity listed in the relevant Council regulation.

Article 23

Referral to the Commission

In exceptional circumstances, including situations where the risk
involved is of a reputational and political nature, and where
Articles 15 to 22 do not provide an adequate solution, the
AOD responsible shall refer the case to the Member of the
Commission in charge of the policy area concerned, who may
in turn refer the matter to the Commission.

The Secretariat General shall be kept informed of all relevant
exchanges.

SECTION 4

TRANSITIONAL AND FINAL PROVISIONS

Article 24

Transitional provisions

1.
The service that requested registration of an EWS warning
before the adoption of this Decision remains responsible for
modification or removal of warnings registered at its request
in accordance with this Decision.

2.
For exclusions decided by an AOD responsible pursuant
to points (b) and (e) of Article 93(1) of the Financial Regulation
before 1 May 2007, the duration of the period exclusion shall
take into account
records under
law. For such exclusions a maximum duration of
national
four years from the date of notification of the judgment shall
apply.
the AOD
elapsed,
responsible shall request removal of the warning.

this maximum period has

the duration of criminal

If

(ii) to terminate the contract or grant;

(b) in all other cases, to apply one of the options referred to in

Article 18(1).

Article 25

Repeal of the Decision on the Early Warning System

The Commission Decision C(2004)193/3 (1) on the Early
Warning System is hereby repealed with effect from 1 January
2009.

2.
Save where otherwise provided in Council regulations im­
plementing Common Positions adopted on the basis of

(1) Not published in the Official Journal.

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Article 26

Application

This Decision shall apply from 1 January 2009.

Article 27

Publication

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

It shall be annexed to the Internal Rules for the implementation
of the general budget of the European Communities.

Done at Brussels, 16 December 2008.

For the Commission

Dalia GRYBAUSKAITĖ
Member of the Commission

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ANNEX

Request by AOD of

the Commission, executive agency,

IAS, OLAF for data entry into the exclusion

database/EWS, its modification or removal

NB : one request per warning

The request has to be sent in conformity with the procedure for classified information. It has to be sent in a single closed
envelope.

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