Council Regulation (EC) No 85/2009 of 19 January 2009 amending Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund concerning certain provisions relating to financial management
Date: 2009-01-19
Institutions: Council of the European Union
Subjects: Cohesion Fund, European Development Fund, competitiveness, cross-border cooperation, economic and social cohesion, financial management, investment, operation of the Institutions, powers of the institutions (EU), regional development

29.1.2009

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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 obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 85/2009

of 19 January 2009

amending Regulation (EC) No 1083/2006 laying down general provisions on the European Regional
Development Fund, the European Social Fund and the Cohesion Fund concerning certain provisions
relating to financial management

THE COUNCIL OF THE EUROPEAN UNION,

(3)

Having regard to the Treaty
establishing the European
Community, and in particular Article 161 third subparagraph
thereof,

Having regard to the proposal from the Commission,

Having regard to the assent of the European Parliament,

Having regard to the opinion of the European Economic and
Social Committee,

Having regard to the opinion of the Committee of the Regions,

Whereas:

(1)

(2)

The unprecedented crisis hitting international
financial
markets has brought about major challenges for the
Community, which necessitates a rapid response in
order to counter effects on the economy as a whole
and,
in particular, to support investments in order to
promote growth and employment.

for

the

regulatory

framework

The
2007-2013
programming period has been adopted with a view to
achieving further simplification in the programming and
management of
the European Regional Development
the European Social Fund and the Cohesion
Fund,
Fund,
their effectiveness and subsidiarity in terms of
their implementation.

The adaptation of certain provisions of Council Regu­
lation (EC) No 1083/2006 of 11 July 2006 laying
down general provisions on the European Regional
Development Fund, the European Social Fund and the
Cohesion Fund (1) is necessary in order to facilitate the
mobilisation of Community financial resources for the
start-up
assisted
projects within the framework of these programmes in
such a manner as to accelerate implementation and the
impact of such investments on the economy.

programmes

operational

and

of

It is necessary to strengthen the possibility of provision
by the European Investment Bank (EIB) and the European
Investment Fund (EIF) of assistance to Member States in
the preparation and implementation of operational
programmes.

entities

the EIB and EIF as
the status of
Taking account of
financial
the Treaty, when
recognised by
financial engineering operations are organised involving
them as holding funds, it should be possible to directly
award them a contract.

financial engineering
In order to facilitate the use of
sustainable
instruments, notably within the field of
urban development,
it is necessary to provide for the
possibility of in-kind contributions being considered as
eligible expenditure in the constitution of, or contri­
butions to, funds.

In order to support enterprises, and in particular small
is also necessary to
and medium-sized enterprises,
make more
conditions governing the
payment of advances within the framework of State
aids under Article 87 of the Treaty.

flexible

the

it

(4)

(5)

(6)

(7)

(1) OJ L 210, 31.7.2006, p. 25.

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Official Journal of the European Union

29.1.2009

(8)

(9)

(10)

(11)

to accelerate the implementation of major
In order
projects,
it is necessary to allow expenditures relating
to major projects which have not yet been adopted by
the Commission
expenditure
declarations.

included

be

to

in

procurement law, the award of a grant, defined for
this purpose as a direct financial contribution by
way of donation to a financial
institution without
a call for proposals, if this is in accordance with a
national law compatible with the Treaty;’;

To bolster the financial resources of Member States thus
facilitating the rapid start-up of operational programmes
in a crisis context, it is necessary to amend the provisions
concerning pre-financing.

(b) the following point (c) shall be added:

‘(c) the award of a contract directly to the EIB or the

EIF.’;

The payment of a payment on account at the beginning
of operational programmes should allow a regular cash
flow and facilitate payments
to beneficiaries during
programme implementation. For this reason provisions
should be established for such payments on account
for the Structural Funds: 7,5 % (for Member States of
the European Union as constituted before 1 May 2004)
and 9 % (for the Member States that acceded to the
European Union on or after 1 May 2004) in order to
operational
implementation
accelerate
programmes.

the

of

legal security,

By reason of the principles of equality of treatment and
of
the amendments relating to Articles
56(2) and 78(1) should apply during the whole 2007-
2013 programming period. Retroactive application is
therefore necessary with effect
from 1 August 2006,
the date on which Regulation (EC) No 1083/2006
came into force. As the unprecedented crisis affecting
international
rapid
response in order to counter effects on the economy as
a whole, other amendments should enter into force on
the day following its publication in the Official Journal of
the European Union.

financial markets necessitates

a

(12)

Regulation (EC) No 1083/2006 should therefore be
amended,

2.

in Article 46(1), the following second subparagraph shall be
added:

‘The EIB or the EIF may, upon request of the Member States,
take part in technical assistance activities referred to in the
first subparagraph.’;

3. Article 56(2) shall be replaced by the following:

‘2.
By way of derogation from paragraph 1, contributions
in kind, depreciation costs and overheads may be considered
as incurred expenditure by beneficiaries for the implemen­
tation of operations under the conditions laid down in the
third subparagraph of this paragraph.

as

regards

financial

engineering instruments

By way of derogation from paragraph 1, contributions in
kind,
as
defined in Article 78(6), first subparagraph, can be treated
as expenditure paid at
the funds or
holding funds or contributing to those funds or holding
funds, under the conditions established in the third subpara­
graph of this paragraph.

the constitution of

HAS ADOPTED THIS REGULATION:

Expenditure mentioned in the first and second subpara­
graphs must fulfil the following conditions:

Article 1

Regulation (EC) No 1083/2006 is hereby amended as follows:

(a)

the eligibility rules drawn up on the basis of paragraph 4
foresee the eligibility of such expenditure;

1.

in Article 44, the second paragraph shall be amended as
follows:

(a) point (b) shall be replaced by the following:

‘(b) when the agreement is not a public service contract
public

the meaning

applicable

within

of

(b) the amount of

the expenditure is duly justified by
supporting documents having
equivalent probative
value to invoices, without prejudice to provisions set
out in specific Regulations;

(c)

in the case of contributions in kind, the co-financing
from the Funds does not exceed the total of eligible
expenditure, excluding the value of such contributions.’;

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4. Article 78 shall be amended as follows:

(a)

last

the
of
Article 78(1) shall be replaced by the following:

sentence

subparagraph

first

the

Funds to the operational programme, and in 2009
2,5 % of the contribution from the Structural Funds to
the operational programme;

of

‘Expenditure paid by beneficiaries shall be supported by
receipted invoices or accounting documents of equivalent
probative value, unless otherwise provided in specific
Regulations for each Fund.’;

(b) in Article 78(2) point (b) shall be deleted;

(c) Article 78(4) shall be replaced by the following:

in application of Article 41(3),

‘4. When,
the
Commission refuses to make a financial contribution
to
declaration
the
following the adoption of
the Commission decision
must be rectified accordingly.’;

expenditure

a major

project,

(b) for Member States that acceded to the European Union
on or after 1 May 2004:
in 2007 2 % of the contri­
bution from the Structural Funds to the operational
programme, in 2008 3 % of the contribution from the
Structural Funds to the operational programme and in
2009 4 % of the contribution from the Structural Funds
to the operational programme;

(c)

if the operational programme falls under the European
territorial cooperation objective and at least one of the
participants is a Member State that acceded to the
European Union on or after 1 May 2004, in 2007 2 %
of the contribution from the ERDF to the operational
programme, in 2008 3 % of the contribution from the
ERDF to the operational programme and in 2009 4 % of
the contribution from the ERDF to the operational
programme.’.

5.

in Article 82(1), second subparagraph, points (a), (b) and (c)
shall be replaced by the following:

‘(a) for Member States of the European Union as constituted
before 1 May 2004:
in 2007 2 % of the contribution
from the Structural Funds to the operational programme,
in 2008 3 % of the contribution from the Structural

Article 2

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

However, Article 1(3) and Article 1(4)(a) shall apply from
1 August 2006.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 19 January 2009.

For the Council
The President
P. GANDALOVIČ