Article 140 Publication of exclusion and financial penalties
1. In order to, where necessary, reinforce the deterrent effect of the exclusion and/or financial penalty, the Commission shall, subject to a decision of the authorising officer responsible, publish on its website the following information related to the exclusion and, where applicable, the financial penalty in the cases referred to in points (c) to (h) of Article 136(1): (a) the name of the person or entity referred to in Article 135(2) concerned; (b) the exclusion situation; (c) the duration of the exclusion and/or the amount of the financial penalty. Where the decision on the exclusion and/or financial penalty has been taken on the basis of a preliminary classification as referred to in Article 136(2), the publication shall indicate that there is no final judgment or, where applicable, final administrative decision. In such cases, information about any appeals, their status and their outcome, as well as any revised decision of the authorising officer responsible shall be published without delay. Where a financial penalty has been imposed, the publication shall also indicate whether that penalty has been paid. The decision to publish the information shall be taken by the authorising officer responsible either following the relevant final judgment or, where applicable, final administrative decision, or following the recommendation of the panel referred to in Article 143, as the case may be. That decision shall take effect three months after its notification to the person or entity concerned, as referred to in Article 135(2). The information published shall be removed as soon as the exclusion has come to an end. In the case of a financial penalty, the publication shall be removed six months after payment of that penalty. Where personal data are concerned, the authorising officer responsible shall in accordance with Regulation (EC) No 45/2001 inform the person or entity concerned, as referred to in Article 135(2) of this Regulation, of their rights under the applicable data protection rules and of the procedures available for exercising those rights. 2. The information referred to in paragraph 1 of this Article shall not be published in any of the following circumstances: (a) where it is necessary to preserve the confidentiality of an investigation or of national judicial proceedings; (b) where publication would cause disproportionate damage to the person or entity referred to in Article 135(2) concerned or would otherwise be disproportionate on the basis of the proportionality criteria set out in Article 136(3) and having regard to the amount of the financial penalty; (c) where a natural person is concerned, unless the publication of personal data is justified by exceptional circumstances, inter alia, by the seriousness of the conduct or its impact on the financial interests of the Union. In such cases, the decision to publish the information shall duly take into consideration the right to privacy and other rights provided for in Regulation (EC) No 45/2001.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 140 Publication of exclusion and financial penalties):
(a) the name of the person or entity referred to in Article 135(2) concerned; (b) the exclusion situation; (c) the duration of the exclusion and/or the amount of the financial penalty. Where the decision on the exclusion and/or financial penalty has been taken on the basis of a preliminary classification as referred to in Article 136(2), the publication shall indicate that there is no final judgment or, where applicable, final administrative decision. In such cases, information about any appeals, their status and their outcome, as well as any revised decision of the authorising officer responsible shall be published without delay. Where a financial penalty has been imposed, the publication shall also indicate whether that penalty has been paid. The decision to publish the information shall be taken by the authorising officer responsible either following the relevant final judgment or, where applicable, final administrative decision, or following the recommendation of the panel referred to in Article 143, as the case may be. That decision shall take effect three months after its notification to the person or entity concerned, as referred to in Article 135(2). The information published shall be removed as soon as the exclusion has come to an end. In the case of a financial penalty, the publication shall be removed six months after payment of that penalty. Where personal data are concerned, the authorising officer responsible shall in accordance with Regulation (EC) No 45/2001 inform the person or entity concerned, as referred to in Article 135(2) of this Regulation, of their rights under the applicable data protection rules and of the procedures available for exercising those rights. The information referred to in paragraph 1 of this Article shall not be published in any of the following circumstances: (a) where it is necessary to preserve the confidentiality of an investigation or of national judicial proceedings; where publication would cause disproportionate damage to the person or entity referred to in Article 135(2) concerned or would otherwise be disproportionate on the basis of the proportionality criteria set out in Article 136(3) and having regard to the amount of the financial penalty; (c) where a natural person is concerned, unless the publication of personal data is justified by exceptional circumstances, inter alia, by the seriousness of the conduct or its impact on the financial interests of the Union. In such cases, the decision to publish the information shall duly take into consideration the right to privacy and other rights provided for in Regulation (EC) No 45/2001.
Article 141 Rejection from an award procedure
1. The authorising officer responsible shall reject from an award procedure a participant who: (a) is in an exclusion situation established in accordance with Article 136; (b) has misrepresented the information required as a condition for participating in the procedure or has failed to supply that information; (c) was previously involved in the preparation of documents used in the award procedure where this entails a breach of the principle of equality of treatment, including distortion of competition, that cannot be remedied otherwise. The authorising officer responsible shall communicate to the other participants in the award procedure the relevant information exchanged in the context of or resulting from the involvement of the participant in the preparation of the award procedure as referred to in point (c) of the first subparagraph. Prior to any such rejection the participant shall be given the opportunity to prove that its involvement in preparing the award procedure does not breach the principle of equality of treatment. 2. Article 133(1) shall apply unless the rejection has been justified in accordance with point (a) of the first subparagraph of paragraph 1 of this Article by a decision concerning exclusion taken with regard to the participant, following an examination of its observations.
Article 142 The early-detection and exclusion system
1. Information exchanged within the early-detection and exclusion system referred to in Article 135 shall be centralised in a database set up by the Commission (‘the database’) and shall be managed in accordance with the right to privacy and other rights provided for in Regulation (EC) No 45/2001. Information on cases of early detection, exclusion and/or financial penalties shall be entered in the database by the authorising officer responsible after notifying the person or entity concerned, as referred to in Article 135(2). Such notification may be deferred in exceptional circumstances, where there are compelling legitimate grounds to preserve the confidentiality of an investigation or of national judicial proceedings, until such compelling legitimate grounds to preserve the confidentiality cease to exist. In accordance with Regulation (EC) No 45/2001, the Commission shall upon request inform the person or entity subject to the early-detection and exclusion system, as referred to in Article 135(2), of the data stored in the database relating to that person or entity. The information contained in the database shall be updated, where appropriate, following a rectification, an erasure or any modification of data. It shall only be published in accordance with Article 140. 2. The early-detection and exclusion system shall be based on facts and findings as referred to in the fourth subparagraph of Article 136(2) and on the transmission of information to the Commission, in particular, by: (a) EPPO in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, or OLAF in accordance with Regulation (EU, Euratom) No 883/2013 where an investigation completed or in progress shows that it might be appropriate to take precautionary measures or actions to protect the financial interests of the Union, with due regard to the respect for procedural and fundamental rights, and to the protection of whistle-blowers; (b) an authorising officer of the Commission, of a European office set up by the Commission or of an executive agency; (c) a Union institution, a European office, an agency other than those referred to in point (b) of this paragraph, or a body or a person entrusted with implementation of CFSP actions; (d) entities implementing the budget in accordance with Article 63, in cases of detected fraud and/or irregularity and their follow up, where the transmission of information is required by sector-specific rules; (e) persons or entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1), in cases of detected fraud and/or irregularity and their follow up. 3. Except where information is to be submitted in accordance with sector-specific rules, the information to be transmitted pursuant to paragraph 2 of this Article shall include: (a) the identification of the entity or person concerned; (b) a summary of the risks detected or the facts in question; (c) information that could assist the authorising officer in carrying out the verification referred to in paragraph 4 of this Article or in taking a decision on exclusion as referred to in Article 136(1) or (2), or a decision to impose a financial penalty as referred to in Article 138; (d) where applicable, information on any special measures necessary to ensure the confidentiality of the information transmitted, including measures for the safeguarding of evidence to protect the investigation or the national judicial proceedings. 4. The Commission shall without delay transmit the information referred to in paragraph 3 to its authorising officers and those of its executive agencies, all other Union institutions, Union bodies, European offices and agencies through the database referred to in paragraph 1 in order to allow them to carry out the necessary verification in respect of their ongoing award procedures and existing legal commitments. In carrying out that verification, the authorising officer responsible shall exercise his or her powers as set out in Article 74 and shall not go beyond what is foreseen in the terms and conditions of the award procedure and legal commitments. The retention period for the information related to the early detection transmitted in accordance with paragraph 3 of this Article shall not exceed one year. If, during that period, the authorising officer responsible requests the panel to issue a recommendation in a case concerning exclusion or financial penalties, the retention period may be extended until such time as the authorising officer responsible has taken a decision. 5. All persons and entities involved in budget implementation in accordance with Article 62 shall be granted access by the Commission to the information on decisions on exclusion pursuant to Article 136 to enable them to verify whether there is an exclusion in the system with a view to taking this information into account, as appropriate and on their own responsibility, when awarding contracts in budget implementation. 6. As part of the annual report of the Commission to the European Parliament and to the Council pursuant to Article 325(5) TFEU, the Commission shall provide aggregate information on the decisions taken by the authorising officers under Articles 135 to 142 of this Regulation. That report shall also provide further information on any decisions taken by the authorising officers pursuant to point (b) of the first subparagraph of Article 136(6) of this Regulation and Article 140(2) of this Regulation and on any decisions by the authorising officers to deviate from the recommendation of the panel pursuant to the third subparagraph of Article 143(6) of this Regulation. The information referred to in the first subparagraph of this paragraph shall be provided with due regard to confidentiality requirements and shall, in particular, not allow for the identification of the person or entity concerned, as referred to in Article 135(2).
Article 143 Panel
1. A panel shall be convened at the request of an authorising officer of any Union institution, Union body, European office or body or person entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU. 2. The panel shall be composed of: (a) a standing high-level independent chair appointed by the Commission; (b) two permanent representatives of the Commission as the owner of the early-detection and exclusion system, who shall express a joint position; and (c) one representative of the requesting authorising officer. The composition of the panel shall ensure the appropriate legal and technical expertise. The panel shall be assisted by a permanent secretariat, provided by the Commission, which shall ensure the continuous administration of the panel. 3. The Chair shall be chosen from among former members of the Court of Justice of the European Union, the Court of Auditors or former officials who have had at least the rank of Director-General in a Union institution other than the Commission. He or she shall be selected on the basis of his or her personal and professional qualities, extensive experience in legal and financial matters and proven competence, independence and integrity. The term of office shall be five years and shall not be renewable. The Chair shall be appointed as special adviser within the meaning of Article 5 of the Conditions of Employment of Other Servants of the European Union. The Chair shall preside all sessions of the panel. He or she shall be independent in the performance of his or her duties. He or she shall not have a conflict of interests between his or her duties as Chair and any other official duties. 4. The rules of procedure of the panel shall be adopted by the Commission. 5. The panel shall uphold the right of the person or entity concerned, as referred to in Article 135(2), to submit observations on the facts or findings referred to in Article 136(2) and on the preliminary classification in law before adopting its recommendations. The right to submit observations may be deferred in exceptional circumstances where there are compelling legitimate grounds to preserve the confidentiality of an investigation or of national judicial proceedings, until such legitimate grounds cease to exist. 6. The recommendation of the panel to exclude and/or impose a financial penalty shall, where applicable, contain the following elements: (a) the facts or findings referred to in Article 136(2) and their preliminary classification in law; (b) an assessment of the need to impose a financial penalty and its amount; (c) an assessment of the need to exclude the person or entity referred to in Article 135(2) and, in that case, the suggested duration of such an exclusion; (d) an assessment of the need to publish the information related to the person or entity referred to in Article 135(2) who is excluded and/or subject to a financial penalty; (e) an assessment of remedial measures taken by the person or entity referred to Article 135(2), if any. Where the authorising officer responsible envisages taking a more severe decision than what has been recommended by the panel, he or she shall ensure that such a decision is taken with due respect for the right to be heard and for the rules of personal data protection. Where the authorising officer responsible decides to deviate from the recommendation of the panel, he or she shall justify such decision to the panel. 7. The panel shall revise its recommendation during the exclusion period on request from the authorising officer responsible in the cases referred to in Article 136(8) or following the notification of a final judgment or a final administrative decision establishing the grounds for exclusion where such a judgment or decision does not set the duration of the exclusion, as referred to in the second subparagraph of Article 136(2). 8. The panel shall notify the requesting authorising officer without delay of its revised recommendation, following which the authorising officer shall review his or her decision. 9. The Court of Justice of the European Union shall have unlimited jurisdiction to review a decision whereby the authorising officer excludes a person or entity referred to in Article 135(2) and/or imposes a financial penalty on a recipient, including annulling the exclusion, reducing or increasing its duration and/or annulling, reducing or increasing the financial penalty imposed. Article 22(1) of Regulation (EC) No 58/2003 shall not apply when the decision of the authorising officer to exclude or impose a financial penalty is taken on the basis of a recommendation of the panel.
Article 144 Functioning of the database for the early-detection and exclusion system
1. Information requested from the entities referred to in point (d) of Article 142(2) shall be transmitted only through the automated information system established by the Commission currently in use for reporting of fraud and irregularities (‘the Irregularity Management System’), in accordance with sector-specific rules. 2. The use of the data received through the Irregularity Management System shall take into consideration the status of the national procedure that existed at the time when the information was submitted. Such use shall be preceded by a consultation of the Member State that has submitted the relevant data through the Irregularity Management System.
Article 145 Exception applicable to the Joint Research Centre
Articles 135 to 144 shall not apply to the JRC.
Article 146 Electronic management of operations
1. Where revenue and expenditure operations or document exchanges are managed by means of computer systems, documents may be signed by a computerised or electronic procedure providing authentication of the signatory. Such computer systems shall include a full and up-to-date description of the system defining the content of all data fields, describing how each individual operation is treated and explaining in detail how the computer system guarantees the existence of a complete audit trail for each operation. 2. Subject to the prior agreement of the Union institutions and Member States concerned, any transmission of documents between them may be done by electronic means.
Article 147 e-Government
1. Union institutions, the executive agencies and the Union bodies referred to in Articles 70 and 71 shall establish and apply uniform standards for the electronic exchange of information with participants. In particular, they shall, to the greatest possible extent, design and implement solutions for the submission, storage and processing of data submitted in award procedures, and to that end, put in place a single ‘electronic data interchange area’ for participants. The Commission shall report regularly to the European Parliament and to the Council on the progress made in that regard. 2. Under shared management, all official exchanges of information between Member States and the Commission shall be carried out by means indicated in sector-specific rules. Those rules shall provide for interoperability of data gathered or received, and transmitted in the management of the budget.
Article 148 Electronic exchange systems
1. All exchanges with recipients, including the entering into legal commitments and any amendments thereto, may be done through electronic exchange systems. 2. Electronic exchange systems shall satisfy the following conditions: (a) only authorised persons may have access to the system and to documents transmitted through it; (b) only authorised persons may electronically sign or transmit a document through the system; (c) authorised persons are identified through the system by established means; (d) the time and date of the electronic transaction are determined precisely; (e) the integrity of documents is preserved; (f) the availability of documents is preserved; (g) where appropriate, the confidentiality of documents is preserved; (h) the protection of personal data in accordance with Regulation (EC) No 45/2001 is ensured. 3. Data sent or received through such a system shall enjoy legal presumption of the integrity of the data and the accuracy of the date and time of sending or receiving the data indicated by the system. A document sent or notified through such a system shall be considered as equivalent to a paper document, shall be admissible as evidence in legal proceedings, shall be deemed original and shall enjoy legal presumption of its authenticity and integrity, provided that the document does not contain any dynamic features capable of automatically changing it. The electronic signatures referred to in point (b) of paragraph 2 shall have a legal effect equivalent to handwritten signatures.
Article 149 Submission of application documents
1. The arrangements for the submission of application documents shall be determined by the authorising officer responsible who may choose an exclusive method of submission. The means of communication chosen shall be such as to ensure that there is genuine competition and 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 application documents is preserved; (d) the protection of personal data in accordance with Regulation (EC) No 45/2001 is ensured. 2. The Commission shall ensure by appropriate means and in accordance with Article 147(1) that participants may submit the application documents and any supporting evidence in an electronic format. Any electronic communication system used to support communications and information exchanges shall be non-discriminatory, generally available and interoperable with information and communication technology products in general use and shall not restrict participants’ access to the award procedure. The Commission shall report regularly to the European Parliament and to the Council on the progress of the application of this paragraph. 3. Devices for the electronic receipt of application documents shall guarantee, through technical means and appropriate procedures, that: (a) the participant can be authenticated with certainty; (b) the exact time and date of the receipt of application documents can be determined precisely; (c) only authorised persons have access to the data transmitted and may set or change the dates for opening the application documents; (d) during the different stages of the award procedure only authorised persons have access to all data submitted and may give access to the data as needed for the procedure; (e) it is reasonably ensured that any attempt to infringe any of the conditions set out in points (a) to (d) can be detected. The first subparagraph shall not apply to contracts below the thresholds referred to in Article 175(1). 4. Where the authorising officer responsible authorises submission of application documents by electronic means, the electronic documents submitted by means of such systems shall be deemed to be the originals. 5. Where submission is by letter, participants may choose to submit application documents: (a) either by post or by courier service, in which case the evidence shall be constituted by the postmark or the date of the deposit slip; (b) by hand-delivery to the premises of the authorising officer responsible by the participant in person or by an agent, in which case the evidence shall be constituted by the acknowledgement of receipt. 6. By submitting application documents, participants accept to receive notification of the outcome of the procedure by electronic means. 7. Paragraphs 1 to 6 of this Article shall not apply to the selection of persons or entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1).
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 149 Submission of application documents):
1. The arrangements for the submission of application documents shall be determined by the authorising officer responsible who may choose an exclusive method of submission. The means of communication chosen shall be such as to ensure that there is genuine competition and 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 application documents is preserved; (d) the protection of personal data in accordance with Regulation (EC) No 45/2001 is ensured. 2. The Commission shall ensure by appropriate means and in accordance with Article 147(1) that participants may submit the application documents and any supporting evidence in an electronic format. Any electronic communication system used to support communications and information exchanges shall be non-discriminatory, generally available and interoperable with information and communication technology products in general use and shall not restrict participants’ access to the award procedure. The Commission shall report regularly to the European Parliament and to the Council on the progress of the application of this paragraph. 3. Devices for the electronic receipt of application documents shall guarantee, through technical means and appropriate procedures, that: (a) the participant can be authenticated with certainty; (b) the exact time and date of the receipt of application documents can be determined precisely; (c) only authorised persons have access to the data transmitted and may set or change the dates for opening the application documents; (d) during the different stages of the award procedure only authorised persons have access to all data submitted and may give access to the data as needed for the procedure; it is reasonably ensured that any attempt to infringe any of the conditions set out in points (a) to (d) can be detected. The first subparagraph shall not apply to contracts below the thresholds referred to in Article 175(1). 4. Where the authorising officer responsible authorises submission of application documents by electronic means, the electronic documents submitted by means of such systems shall be deemed to be the originals. 5. Where submission is by letter, participants may choose to submit application documents: (a) either by post or by courier service, in which case the evidence shall be constituted by the postmark or the date of the deposit slip; (b) by hand-delivery to the premises of the authorising officer responsible by the participant in person or by an agent, in which case the evidence shall be constituted by the acknowledgement of receipt. Where submission is by letter, participants may choose to submit application documents: (a) either by post or by courier service, in which case the evidence shall be constituted by the postmark or the date of the deposit slip; (b) by hand-delivery to the premises of the authorising officer responsible by the participant in person or by an agent, in which case the evidence shall be constituted by the acknowledgement of receipt. 6. By submitting application documents, participants accept to receive notification of the outcome of the procedure by electronic means. 7. Paragraphs 1 to 6 of this Article shall not apply to the selection of persons or entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1).
Article 150 Evaluation committee
1. Application documents shall be evaluated by an evaluation committee. 2. The evaluation committee shall be appointed by the authorising officer responsible. The evaluation committee shall be made up of at least three persons. 3. The members of the evaluation committee evaluating grant applications or tenders shall represent at least two organisational entities of Union institutions or Union bodies referred to in Articles 68, 70 and 71 with no hierarchical link between them, at least one of which does not come under the authorising officer responsible. Where representations and local units outside the Union, such as a Union delegation, office or branch office in a third country, and Union bodies referred to in Articles 68, 70 and 71 have no separate entities, the requirement of organisational entities with no hierarchical link between them shall not apply. External experts may assist the evaluation committee pursuant to a decision of the authorising officer responsible. Members of the evaluation committee may be external experts where that possibility is provided for in the basic act. 4. The members of the evaluation committee evaluating applications in a contest for prizes may be persons referred to in the first subparagraph of paragraph 3 or external experts. 5. The members of the evaluation committee and the external experts shall comply with Article 61.
Article 151 Clarification and correction of application documents
The authorising officer responsible may correct obvious clerical errors in application documents after confirmation of the intended correction by the participant. Where a participant fails to submit evidence or to make statements, the evaluation committee or, where appropriate, the authorising officer responsible shall, except in duly justified cases, ask the participant to provide the missing information or to clarify supporting documents. Such information, clarification or confirmation shall not substantially change application documents.
Article 152 Guarantees
1. With the exception of contracts and grants the value of which does not exceed EUR 60 000, the authorising officer responsible may, if proportionate and subject to the authorising officer’s risk analysis, require a guarantee to be lodged: (a) by contractors or beneficiaries in order to limit the financial risks connected with a payment of pre-financing (‘guarantee on pre-financing’); (b) by contractors to ensure compliance with substantial contractual obligations in the case of works, supplies or complex services (‘performance guarantee’); (c) by contractors to ensure full performance of the contract during the contract liability period (‘retention money guarantee’). The JRC shall be exempted from lodging guarantees. As an alternative to requesting a guarantee on pre-financing, for grants, the authorising officer responsible may decide to split the payment into several instalments. 2. The authorising officer responsible shall decide whether the guarantee is to be denominated in euro or in the currency of the contract or of the grant agreement. 3. The guarantee shall be issued by a bank or by an authorised financial institution accepted by the authorising officer responsible. At the request of the contractor or the beneficiary and provided it is accepted by the authorising officer responsible: (a) the guarantees referred to points (a), (b) and (c) of the first subparagraph of paragraph 1 may be replaced by a joint and several guarantee of the contractor or the beneficiary and a third party; (b) the guarantee referred to in point (a) of the first subparagraph of paragraph 1 may be replaced by an irrevocable and unconditional joint guarantee of the beneficiaries who are parties to the same grant agreement. 4. The guarantee shall have the effect of making the bank or financial institution or the third party provide irrevocable collateral security, or stand as first-call guarantor of the contractor’s or beneficiary’s obligations. 5. Where, in the course of implementation of the contract or the grant agreement, the authorising officer responsible discovers that a guarantor is not or is no longer authorised to issue guarantees in accordance with the applicable national law, he or she shall require that the contractor or the beneficiary replaces the guarantee issued by such a guarantor.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 152 Guarantees):
With the exception of contracts and grants the value of which does not exceed EUR 60 000 , the authorising officer responsible may, if proportionate and subject to the authorising officer’s risk analysis, require a guarantee to be lodged: (a) by contractors or beneficiaries in order to limit the financial risks connected with a payment of pre-financing (‘guarantee on pre-financing’); (b) by contractors to ensure compliance with substantial contractual obligations in the case of works, supplies or complex services (‘performance guarantee’); (c) by contractors to ensure full performance of the contract during the contract liability period (‘retention money guarantee’). The JRC shall be exempted from lodging guarantees. As an alternative to requesting a guarantee on pre-financing, for grants, the authorising officer responsible may decide to split the payment into several instalments. 2. The authorising officer responsible shall decide whether the guarantee is to be denominated in euro or in the currency of the contract or of the grant agreement. 3. The guarantee shall be issued by a bank or by an authorised financial institution accepted by the authorising officer responsible. At the request of the contractor or the beneficiary and provided it is accepted by the authorising officer responsible: (b) the guarantee referred to in point (a) of the first subparagraph of paragraph 1 may be replaced by an irrevocable and unconditional joint guarantee of the beneficiaries who are parties to the same grant agreement. 4. The guarantee shall have the effect of making the bank or financial institution or the third party provide irrevocable collateral security, or stand as first-call guarantor of the contractor’s or beneficiary’s obligations. 5. Where, in the course of implementation of the contract or the grant agreement, the authorising officer responsible discovers that a guarantor is not or is no longer authorised to issue guarantees in accordance with the applicable national law, he or she shall require that the contractor or the beneficiary replaces the guarantee issued by such a guarantor.
Article 153 Guarantee on pre-financing
1. A guarantee on pre-financing shall be for an amount not exceeding the amount of the pre-financing and shall be valid for a period sufficiently long to allow it to be activated. 2. The guarantee on pre-financing shall be released as and when the pre-financing is deducted from interim payments or payments of the balance to the contractor or the beneficiary in accordance with the terms of the contract or the conditions of the grant agreement.
Article 154 Indirect management
1. The selection of the persons and entities to be entrusted with the implementation of Union funds or budgetary guarantees pursuant to point (c) of the first subparagraph of Article 62(1) shall be transparent, justified by the nature of the action and shall not give rise to a conflict of interests. For entities referred to in points (c)(ii), (v), (vi) and (vii) of the first subparagraph of Article 62(1) the selection shall also take due account of their financial and operational capacity. Where the person or entity is identified in a basic act, the financial statement provided for in Article 35 shall include a justification for the choice of that particular person or entity. In cases of implementation by a network, requiring the designation of at least one body or entity per Member State or per country concerned, the body or entity shall be designated by the Member State or the country concerned in accordance with the basic act. In all other cases, the Commission shall designate such bodies or entities in agreement with Member States or countries concerned. 2. Persons and entities entrusted with the implementation of Union funds or budgetary guarantees pursuant to point (c) of the first subparagraph of Article 62(1) shall respect the principles of sound financial management, transparency, non-discrimination and visibility of Union action. Where the Commission establishes financial framework partnership agreements in accordance with Article 130 those principles shall be further described in such agreements. 3. Prior to signing contribution agreements, financing agreements or guarantee agreements, the Commission shall ensure a level of protection of the financial interests of the Union equivalent to the one that is provided for when the Commission implements the budget in accordance with point (a) of the first subparagraph of Article 62(1). The Commission shall do so by carrying out an assessment of the systems, rules and procedures of the persons or entities implementing Union funds, if it intends to rely on such systems, rules and procedures for the implementation of the action, or by taking appropriate supervisory measures in accordance with paragraph 5 of this Article. 4. The Commission shall, in accordance with the principle of proportionality and with due consideration for the nature of the action and the financial risks involved, assess that persons and entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1): (a) set up and ensure the functioning of an effective and efficient internal control system based on international best practices and allowing in particular to prevent, detect and correct irregularities and fraud; (b) use an accounting system that provides accurate, complete and reliable information in a timely manner; (c) are subject to an independent external audit, performed in accordance with internationally accepted auditing standards by an audit service functionally independent of the person or entity concerned; (d) apply appropriate rules and procedures for providing financing to third parties, including transparent, non-discriminatory, efficient and effective review procedures, rules for recovering funds unduly paid and rules for excluding from access to funding; (e) make public adequate information on their recipients equivalent to that provided for under Article 38; (f) ensure protection of personal data equivalent to that referred to in Article 5. In addition, in agreement with the persons or entities concerned, the Commission may assess other rules and procedures such as the costs of administrating the accounting practices of the persons or entities. On the basis on the results of that assessment, the Commission may decide to rely on those rules and procedures. Persons or entities which have been assessed in accordance with the first and second subparagraphs shall inform the Commission without undue delay if any substantive changes are made to their systems, rules or procedures which may impact the reliability of the Commission’s assessment. 5. Where the persons or entities concerned comply only in part with paragraph 4, the Commission shall take appropriate supervisory measures ensuring the protection of the financial interests of the Union. Those measures shall be specified in the relevant agreements. Information about any such measures shall be made available to the European Parliament and to the Council at their request. 6. The Commission may decide not to require an ex ante assessment as referred to in paragraphs 3 and 4: (a) for Union bodies referred to in Articles 70 and 71 and for bodies or persons referred to in point (c)(viii) of the first subparagraph of Article 62(1) which have adopted financial rules with prior consent of the Commission; (b) for third countries or the bodies they designate, in so far as the Commission retains financial management responsibilities that guarantee a sufficient protection of the financial interests of the Union; or (c) for those procedures specifically required by the Commission, including its own and those specified in basic acts. 7. Where the systems, rules or procedures of the persons or entities referred to in point (c) of the first subparagraph of Article 62(1) are assessed as appropriate, Union contributions to those persons or entities may be implemented in accordance with this Title. Where such persons or entities participate in a call for proposals they shall comply with the rules of the call for proposals contained in Title VIII. In such a case, the authorising officer may decide to sign a contribution agreement or a financing agreement instead of a grant agreement.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 154 Indirect management):
1. Where the person or entity is identified in a basic act, the financial statement provided for in Article 35 shall include a justification for the choice of that particular person or entity. In cases of implementation by a network, requiring the designation of at least one body or entity per Member State or per country concerned, the body or entity shall be designated by the Member State or the country concerned in accordance with the basic act. In all other cases, the Commission shall designate such bodies or entities in agreement with Member States or countries concerned. 2. Persons and entities entrusted with the implementation of Union funds or budgetary guarantees pursuant to point (c) of the first subparagraph of Article 62(1) shall respect the principles of sound financial management, transparency, non-discrimination and visibility of Union action. Where the Commission establishes financial framework partnership agreements in accordance with Article 130 those principles shall be further described in such agreements. 3. Prior to signing contribution agreements, financing agreements or guarantee agreements, the Commission shall ensure a level of protection of the financial interests of the Union equivalent to the one that is provided for when the Commission implements the budget in accordance with point (a) of the first subparagraph of Article 62(1). The Commission shall do so by carrying out an assessment of the systems, rules and procedures of the persons or entities implementing Union funds, if it intends to rely on such systems, rules and procedures for the implementation of the action, or by taking appropriate supervisory measures in accordance with paragraph 5 of this Article. The Commission shall, in accordance with the principle of proportionality and with due consideration for the nature of the action and the financial risks involved, assess that persons and entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1): (a) set up and ensure the functioning of an effective and efficient internal control system based on international best practices and allowing in particular to prevent, detect and correct irregularities and fraud; (b) use an accounting system that provides accurate, complete and reliable information in a timely manner; (c) are subject to an independent external audit, performed in accordance with internationally accepted auditing standards by an audit service functionally independent of the person or entity concerned; (d) apply appropriate rules and procedures for providing financing to third parties, including transparent, non-discriminatory, efficient and effective review procedures, rules for recovering funds unduly paid and rules for excluding from access to funding; (e) make public adequate information on their recipients equivalent to that provided for under Article 38; (f) ensure protection of personal data equivalent to that referred to in Article 5. In addition, in agreement with the persons or entities concerned, the Commission may assess other rules and procedures such as the costs of administrating the accounting practices of the persons or entities. On the basis on the results of that assessment, the Commission may decide to rely on those rules and procedures. Persons or entities which have been assessed in accordance with the first and second subparagraphs shall inform the Commission without undue delay if any substantive changes are made to their systems, rules or procedures which may impact the reliability of the Commission’s assessment. 5. Where the persons or entities concerned comply only in part with paragraph 4, the Commission shall take appropriate supervisory measures ensuring the protection of the financial interests of the Union. Those measures shall be specified in the relevant agreements. Information about any such measures shall be made available to the European Parliament and to the Council at their request. The Commission may decide not to require an ex ante assessment as referred to in paragraphs 3 and 4: (b) for third countries or the bodies they designate, in so far as the Commission retains financial management responsibilities that guarantee a sufficient protection of the financial interests of the Union; or (c) for those procedures specifically required by the Commission, including its own and those specified in basic acts. 7. Where the systems, rules or procedures of the persons or entities referred to in point (c) of the first subparagraph of Article 62(1) are assessed as appropriate, Union contributions to those persons or entities may be implemented in accordance with this Title. Where such persons or entities participate in a call for proposals they shall comply with the rules of the call for proposals contained in Title VIII. In such a case, the authorising officer may decide to sign a contribution agreement or a financing agreement instead of a grant agreement.
Article 155 Implementation of Union funds and budgetary guarantees
1. Persons and entities implementing Union funds or budgetary guarantees shall provide the Commission with: (a) a report on the implementation of Union funds or budgetary guarantees, including the fulfilment of the conditions or the achievement of results referred to in point (a) of the first subparagraph of Article 125(1); (b) where the contribution reimburses expenditure, their accounts drawn up for the expenditure incurred; (c) a management declaration covering the information referred to in point (a) and, where appropriate, point (b) confirming that: (i) the information is properly presented, complete and accurate; (ii) the Union funds were used for their intended purpose, as defined in the contribution agreements, financing agreements or guarantee agreements, or where applicable, in the relevant sector-specific rules; (iii) the control systems put in place give the necessary guarantees concerning the legality and regularity of the underlying transactions; (d) a summary of the final audit reports and of controls carried out, including an analysis of the nature and extent of errors and weaknesses identified in systems, as well as corrective action taken or planned. Where cross-reliance on audits as referred to in Article 127 takes place, the summary referred to in point (d) of the first subparagraph of this paragraph shall include all relevant audit documentation to be relied upon. For actions terminating before the end of the financial year concerned, the final report may replace the management declaration referred to in point (c) of the first subparagraph, provided it is submitted before 15 February of the following financial year. The documents referred to in the first subparagraph shall be accompanied by an opinion of an independent audit body, drawn up in accordance with internationally accepted audit standards. That opinion shall establish whether the control systems put in place function properly and are cost-effective, and whether the underlying transactions are legal and regular. The opinion shall also state whether the audit work puts in doubt the assertions made in the management declaration referred to in point (c) of the first subparagraph. Where such an opinion is absent, the authorising officer may seek an equivalent level of assurance through other independent means. The documents referred to in the first subparagraph shall be provided to the Commission no later than 15 February of the following financial year. The opinion referred to in the third subparagraph shall be provided to the Commission no later than 15 March of that year. The obligations set out in this paragraph shall be without prejudice to agreements concluded with the EIB, the EIF, Member State organisations, international organisations and third countries. With regard to the management declaration, such agreements shall include at least the obligation of those entities to provide the Commission annually with a statement that, during the financial year concerned, the Union funds were used and accounted for in compliance with Article 154(3) and (4) and with the obligations laid down in such agreements. Such statement may be incorporated in the final report if the action implemented is limited to 18 months. 2. When implementing Union funds, persons and entities shall: (a) comply with applicable Union law and agreed international and Union standards and, therefore, not support actions that contribute to money laundering, terrorism financing, tax avoidance, tax fraud or tax evasion; (b) when implementing financial instruments and budgetary guarantees in accordance with Title X, not enter into new or renewed operations with entities incorporated or established in jurisdictions listed under the relevant Union policy on non-cooperative jurisdictions or that are identified as high-risk third countries pursuant to Article 9(2) of Directive (EU) 2015/849, or that do not effectively comply with Union or internationally agreed tax standards on transparency and exchange of information. Entities may derogate from point (b) of the first subparagraph only if the action is physically implemented in one of those jurisdictions, and does not present any indication that the relevant operation falls under any of the categories listed in point (a) of the first subparagraph. When concluding agreements with financial intermediaries, entities implementing financial instruments and budgetary guarantees in accordance with Title X shall transpose the requirements referred to in this paragraph into the relevant agreements and shall request the financial intermediaries to report on their observance. 3. When implementing financial instruments and budgetary guarantees in accordance with Title X, persons and entities shall apply the principles and standards set out in Union law on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, in particular Regulation (EU) 2015/847 of the European Parliament and of the Council ( 53 ) and Directive (EU) 2015/849. They shall make funding under this Regulation contingent upon the disclosure of beneficial ownership information in accordance with Directive (EU) 2015/849 and publish country-by-country reporting data within the meaning of Article 89(1) of Directive 2013/36/EU of the European Parliament and of the Council ( 54 ) . 4. The Commission shall verify that the Union funds or budgetary guarantees have been used in accordance with the conditions laid down in the relevant agreements. Where the costs of the person or entity are reimbursed based on a simplified cost option in accordance with points (c), (d) and (e) of the first subparagraph of Article 125(1), Article 181(1) to (5) and Articles 182 to 185 shall apply mutatis mutandis . Where Union funds or budgetary guarantees have been used in breach of the obligations laid down in the relevant agreements, Article 131 shall apply. 5. In multi-donor actions, where the Union contribution reimburses expenditure, the procedure set out in paragraph 4 shall consist in verifying that an amount corresponding to that paid by the Commission for the action concerned has been used by the person or entity in accordance with the conditions laid down in the relevant grant, contribution or financing agreement. 6. Contribution agreements, financing agreements and guarantee agreements shall clearly define the responsibilities and obligations of the person or entity implementing Union funds, including the obligations set out in Article 129 and the conditions for payment of the contribution. Such agreements shall also, where applicable, define the mutually agreed remuneration which shall be commensurate with the conditions under which the actions are implemented, taking due account of situations of crisis and fragility, and, where appropriate, be performance-based. Those agreements shall also include rules on reporting to the Commission on how the tasks are performed, the results expected, including indicators on measuring performance, and the obligation for persons or entities implementing Union funds to notify the Commission without delay of cases of detected fraud and irregularities and their follow-up. 7. All contribution agreements, financing agreements and guarantee agreements shall be made available to the European Parliament and to the Council at their request. 8. This Article shall not apply to the Union contribution to Union bodies which are subject to a separate discharge procedure under Articles 70 and 71, with the exception of possible ad-hoc contribution agreements.
Article 156 Indirect management with international organisations
1. The Commission may, in accordance with point (c)(ii) of the first subparagraph of Article 62(1), implement the budget indirectly with international public-sector organisations set up by international agreements (‘international organisations’) and with specialised agencies set up by such organisations. Those agreements shall be transmitted to the Commission as part of the assessment carried out by the Commission in accordance with Article 154(3). 2. The following organisations shall be assimilated to international organisations: (a) the International Committee of the Red Cross; (b) the International Federation of National Red Cross and Red Crescent Societies. 3. The Commission may adopt a duly justified decision assimilating a non-profit organisation to an international organisation provided that it satisfies the following conditions: (a) it has legal personality and autonomous governance bodies; (b) it has been established to perform specific tasks of general international interest; (c) at least six Member States are members of the non-profit organisation; (d) it is provided with adequate financial guarantees; (e) it operates on the basis of a permanent structure and in accordance with systems, rules and procedures which can be assessed in accordance with Article 154(3). 4. Where international organisations implement funds under indirect management, verification agreements concluded with them shall apply.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 156 Indirect management with international organisations):
2. The following organisations shall be assimilated to international organisations: (a) the International Committee of the Red Cross; (b) the International Federation of National Red Cross and Red Crescent Societies. The following organisations shall be assimilated to international organisations: (a) the International Committee of the Red Cross; (b) the International Federation of National Red Cross and Red Crescent Societies. The Commission may adopt a duly justified decision assimilating a non-profit organisation to an international organisation provided that it satisfies the following conditions: (a) it has legal personality and autonomous governance bodies; (b) it has been established to perform specific tasks of general international interest; (c) at least six Member States are members of the non-profit organisation; (d) it is provided with adequate financial guarantees; (e) it operates on the basis of a permanent structure and in accordance with systems, rules and procedures which can be assessed in accordance with Article 154(3). 4. Where international organisations implement funds under indirect management, verification agreements concluded with them shall apply.
Article 157 Indirect management with Member State organisations
1. The Commission may in accordance with points (c)(v) and (vi) of the first subparagraph of Article 62(1) implement the budget indirectly with Member State organisations. 2. Where the Commission implements the budget indirectly with Member States organisations, it shall rely on the systems, rules and procedures of those organisations which have been assessed in accordance with Article 154(3) and (4). 3. Financial framework partnership agreements concluded with Member State organisations in accordance with Article 130 shall further specify the extent and the modalities of the cross-reliance on systems, rules and procedures of Member State organisations and may include specific provisions on the cross-reliance on assessments and audits as referred to in Articles 126 and 127.
Article 158 Indirect management with third countries
1. The Commission may implement the budget indirectly with a third country or the bodies designated by that country, as referred to point (c)(i) of the first subparagraph of Article 62(1) by concluding a financing agreement describing the Union’s intervention in the third country and laying down the method of implementation for each part of the action. 2. For the part of the action implemented indirectly with the third country or the bodies it has designated, the financing agreement shall, in addition to the elements referred to in Article 155(5), clearly define the roles and responsibilities of the third country and of the Commission in the implementation of the funds. The financing agreement shall also determine the rules and procedures to be applied by the third country when implementing Union funds.
Article 159 Blending operations
1. Blending operations shall be managed either by the Commission or by persons or entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1). 2. Where financial instruments and budgetary guarantees are implemented within a blending facility or platform Title X applies. 3. For financial instruments and budgetary guarantees implemented within blending facilities or platforms, point (h) of the first subparagraph of Article 209(2) shall be deemed to be complied with if an ex ante evaluation is carried out prior to the establishment of the relevant blending facility or platform. 4. Annual reports pursuant to Article 249 shall be drawn up at the level of the blending facility or platform taking into account all financial instruments and budgetary guarantees grouped under the facility or platform and clearly identifying the different types of financial support within it.
Article 160 Principles applicable to contracts and scope
1. All contracts financed in whole or in part by the budget shall respect the principles of transparency, proportionality, equal treatment and non-discrimination. 2. All contracts shall be put out to competition on the broadest possible basis, except when use is made of the procedure referred to in point (d) of Article 164(1). The estimated value of a contract shall not be determined with a view to circumventing the applicable rules, nor shall a contract be split up for that purpose. The contracting authority shall divide a contract into lots, whenever appropriate, with due regard to broad competition. 3. Contracting authorities shall not use framework contracts improperly or in such a way that their purpose or effect is to prevent, restrict or distort competition. 4. The JRC may receive funding charged to appropriations other than research and technological development appropriations in respect of its participation in procurement procedures financed in whole or in part from the budget. 5. The rules on procurement laid down in this Regulation shall not apply to the activities of the JRC on behalf of third parties, with the exception of the principles of transparency and equal treatment.
Article 161 Annex on procurement and delegation of powers
Detailed rules on procurement are laid down in Annex I to this Regulation. To ensure that Union institutions, when awarding contracts on their own account, apply the same standards as those imposed on contracting authorities covered by Directives 2014/23/EU and 2014/24/EU, the Commission is empowered to adopt delegated acts in accordance with Article 269 of this Regulation to amend Annex I to this Regulation, in order to align that Annex to amendments to those Directives and to introduce related technical adjustments.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Article 162 Mixed contracts and common procurement vocabulary
1. A mixed contract covering two or more types of procurement (works, supplies or services) or concessions (works or services) or both, shall be awarded in accordance with the provisions applicable to the type of procurement that characterises the main subject matter of the contract in question. 2. In the case of mixed contracts consisting of supplies and services, the main subject matter shall be determined by a comparison of the values of the respective supplies or services. A contract covering one type of procurement (works, supplies or services) and concessions (works or services) shall be awarded in accordance with the provisions applicable to the public contract concerned. 3. This Title shall not apply to contracts for technical assistance concluded with the EIB or the EIF. 4. Any references to nomenclatures in the context of procurement shall be made using the Common Procurement Vocabulary (CPV) as set out in Regulation (EC) No 2195/2002 of the European Parliament and of the Council ( 55 ) .
Article 163 Publicity measures
1. For procedures with a value equal to or greater than the thresholds referred to in Article 175(1) or Article 178, the contracting authority shall publish in the Official Journal of the European Union : (a) a contract notice to launch a procedure, except in the case of the procedure referred to in point (d) of Article 164(1); (b) a contract award notice on the results of the procedure. 2. Procedures with a value below the thresholds referred to in Article 175(1) or Article 178 shall be advertised by appropriate means. 3. Publication of certain information on a contract award may be withheld where its release would impede law enforcement, or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators or might prejudice fair competition between them.
Article 164 Procurement procedures
1. Procurement procedures for awarding concession contracts or public contracts, including framework contracts shall take one of the following forms: (a) open procedure; (b) restricted procedure, including through a dynamic purchasing system; (c) design contest; (d) negotiated procedure, including without prior publication; (e) competitive dialogue; (f) competitive procedure with negotiation; (g) innovation partnership; (h) procedures involving a call for expression of interest. 2. In open procedures any interested economic operator may submit a tender. 3. In restricted procedures, competitive dialogues, competitive procedures with negotiation and innovation partnerships, any economic operator may submit a request to participate by providing the information that is requested by the contracting authority. The contracting authority shall invite all candidates, that satisfy the selection criteria and that are not in any of the situations referred to in Articles 136(1) and 141(1), to submit a tender. Notwithstanding the first subparagraph, the contracting authority may limit the number of candidates to be invited to participate in the procedure on the basis of objective and non-discriminatory selection criteria, which shall be indicated in the contract notice or the call for expression of interest. The number of candidates invited shall be sufficient to ensure genuine competition. 4. In all procedures involving negotiation, the contracting authority shall negotiate with tenderers the initial and any subsequent tenders or parts thereof, except their final tenders, in order to improve their content. The minimum requirements and the criteria specified in the procurement documents shall not be subject to negotiation. A contracting authority may award a contract on the basis of the initial tender without negotiation where it has indicated in the procurement documents that it reserves the possibility to do so. 5. The contracting authority may use: (a) the open or restricted procedure for any purchase; (b) the procedures involving a call for expression of interest for contracts with a value below the thresholds referred to in Article 175(1), to preselect candidates to be invited to submit tenders in response to future restricted invitations to tender, or to collect a list of vendors to be invited to submit requests to participate or submit tenders; (c) the design contest to acquire a plan or design selected by a jury after being put out to competition; (d) the innovation partnership to develop an innovative product, service or innovative works and for the subsequent purchase of the resulting supply, services or works; (e) the competitive procedure with negotiation or the competitive dialogue for concession contracts, for the service contracts referred to in Annex XIV to Directive 2014/24/EU, in cases where only irregular or unacceptable tenders were submitted in response to an open or restricted procedure after the initial procedure has been completed, and for cases where this is justified by the specific circumstances linked, inter alia, to the nature or the complexity of the subject matter of the contract or to the specific type of contract, as further detailed in Annex I to this Regulation; (f) the negotiated procedure for contracts with a value below the thresholds referred to in Article 175(1), or the negotiated procedure without prior publication for specific types of purchases falling outside the scope of Directive 2014/24/EU or in the clearly defined exceptional circumstances set out in Annex I to this Regulation. 6. A dynamic purchasing system shall be open throughout its duration to any economic operator who satisfies the selection criteria. The contracting authority shall follow the rules of the restricted procedure for procurement through a dynamic purchasing system.
Article 165 Interinstitutional procurement and joint procurement
1. Where a contract or a framework contract is of interest to two or more Union institutions, executive agencies or Union bodies referred to in Articles 70 and 71, and whenever there is a possibility for realising efficiency gains, the contracting authorities concerned may carry out the procedure and the management of the subsequent contract or framework contract on an interinstitutional basis under the lead of one of the contracting authorities. The bodies and persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU as well as the Office of the Secretary of the Board of Governors of the European Schools may also participate in interinstitutional procedures. The terms of a framework contract shall only apply between those contracting authorities that are identified for that purpose in the procurement documents and those economic operators that are party to the framework contract. 2. Where a contract or framework contract is necessary for the implementation of a joint action between a Union institution and one or more contracting authorities from Member States, the procurement procedure may be carried out jointly by the Union institution and the contracting authorities. Joint procurement may be conducted with EFTA States and Union candidate countries if that possibility has been specifically provided for in a bilateral or multilateral treaty. The procedural provisions applicable to Union institutions shall apply to the joint procurement. Where the share pertaining to or managed by the contracting authority of a Member State in the total estimated value of the contract is equal to or above 50 %, or in other duly justified cases, the Union institution may decide that the procedural rules applicable to the contracting authority of a Member State shall apply to the joint procurement, provided that those rules may be considered as equivalent to those of the Union institution. The Union institution and the contracting authority from a Member State, an EFTA State or a Union candidate country concerned by the joint procurement shall agree in particular upon the detailed practical arrangements for the evaluation of the requests for participation or of the tenders, the award of the contract, the law applicable to the contract and the competent court for hearing disputes.
Article 166 Preparation of a procurement procedure
1. Before launching a procurement procedure, the contracting authority may conduct a preliminary market consultation with a view to preparing the procedure. 2. In the procurement documents, the contracting authority shall identify the subject matter of the procurement by providing a description of its needs and the characteristics required of the works, supplies or services to be bought, and shall specify the applicable exclusion, selection and award criteria. The contracting authority shall also indicate which elements define the minimum requirements to be met by all tenders. Minimum requirements shall include compliance with applicable environmental, social and labour law obligations established by Union law, national law, collective agreements or the applicable international social and environmental conventions listed in Annex X to Directive 2014/24/EU.
Article 167 Award of contracts
1. Contracts shall be awarded on the basis of award criteria provided that the contracting authority has verified the following: (a) the tender complies with the minimum requirements specified in the procurement documents; (b) the candidate or tenderer is not excluded under Article 136 or rejected under Article 141; (c) the candidate or tenderer meets the selection criteria specified in the procurement documents and is not subject to conflicts of interest which may negatively affect the performance of the contract. 2. The contracting authority shall apply the selection criteria to evaluate the capacity of the candidate or tenderer. Selection criteria shall only relate to the legal and regulatory capacity to pursue the professional activity, the economic and financial capacity, and the technical and professional capacity. The JRC shall be presumed to meet the requirements relating to financial capacity. 3. The contracting authority shall apply the award criteria to evaluate the tender. 4. The contracting authority shall base the award of contracts on the most economically advantageous tender, which shall consist in one of three award methods: lowest price, lowest cost or best price-quality ratio. For the lowest cost method, the contracting authority shall use a cost-effectiveness approach including life-cycle costing. For the best price-quality ratio, the contracting authority shall take into account the price or cost and other quality criteria linked to the subject matter of the contract.
Article 168 Submission, electronic communication and evaluation
1. The contracting authority shall lay down time limits for the receipt of tenders and requests to participate in accordance with point 24 of Annex I and taking into account the complexity of the purchase, leaving an adequate period for economic operators to prepare their tenders. 2. If deemed appropriate and proportionate, the contracting authority may require tenderers to lodge a guarantee to make sure that the tenders submitted are not withdrawn before contract signature. The required guarantee shall represent 1 to 2 % of the total estimated value of the contract. The contracting authority shall release the guarantees: (a) in respect of tenderers or tenders rejected as referred to in point 30.2(b) or (c) of Annex I, after having provided the information on the outcome of the procedure; (b) in respect of tenderers ranked as referred to in point 30.2(e) of Annex I, after the contract is signed. 3. The contracting authority shall open all requests to participate and tenders. However, it shall reject: (a) requests to participate and tenders which do not comply with the time limit for receipt, without opening them; (b) tenders already open when they are received, without examining their content. 4. The contracting authority shall evaluate all requests to participate or tenders not rejected during the opening phase as laid down in paragraph 3 on the basis of the criteria specified in the procurement documents with a view to awarding the contract or to proceeding with an electronic auction. 5. The authorising officer may waive the appointment of an evaluation committee as provided for in Article 150(2) in the following cases: (a) the value of the contract is below the thresholds referred to in Article 175(1); (b) on the basis of a risk analysis for the cases referred to in points (c), (e), (f)(i), (f)(iii) and (h) of the second subparagraph of point 11.1 of Annex I; (c) on the basis of a risk analysis when reopening competition within a framework contract; (d) for procedures in the field of external actions having a value of less than or equal to EUR 20 000. 6. Requests to participate and tenders which do not comply with all the minimum requirements set out in the procurement documents shall be rejected.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 168 Submission, electronic communication and evaluation):
1. The contracting authority shall lay down time limits for the receipt of tenders and requests to participate in accordance with point 24 of Annex I and taking into account the complexity of the purchase, leaving an adequate period for economic operators to prepare their tenders. 2. If deemed appropriate and proportionate, the contracting authority may require tenderers to lodge a guarantee to make sure that the tenders submitted are not withdrawn before contract signature. The required guarantee shall represent 1 to 2 % of the total estimated value of the contract. The contracting authority shall release the guarantees: in respect of tenderers or tenders rejected as referred to in point 30.2(b) or (c) of Annex I, after having provided the information on the outcome of the procedure; (b) in respect of tenderers ranked as referred to in point 30.2(e) of Annex I, after the contract is signed. 3. The contracting authority shall open all requests to participate and tenders. However, it shall reject: (a) requests to participate and tenders which do not comply with the time limit for receipt, without opening them; (b) tenders already open when they are received, without examining their content. The contracting authority shall open all requests to participate and tenders. However, it shall reject: (a) requests to participate and tenders which do not comply with the time limit for receipt, without opening them; (b) tenders already open when they are received, without examining their content. 4. The contracting authority shall evaluate all requests to participate or tenders not rejected during the opening phase as laid down in paragraph 3 on the basis of the criteria specified in the procurement documents with a view to awarding the contract or to proceeding with an electronic auction. The authorising officer may waive the appointment of an evaluation committee as provided for in Article 150(2) in the following cases: (a) the value of the contract is below the thresholds referred to in Article 175(1); (c) on the basis of a risk analysis when reopening competition within a framework contract; (d) for procedures in the field of external actions having a value of less than or equal to EUR 20 000 . 6. Requests to participate and tenders which do not comply with all the minimum requirements set out in the procurement documents shall be rejected.
Article 169 Contacts during the procurement procedure
1. Before the time limit for receipt of requests to participate or tenders, the contracting authority may communicate additional information about the procurement documents if it discovers an error or omission in the text or upon request from candidates or tenderers. Information provided shall be disclosed to all candidates or tenderers. 2. After the time limit for receipt of requests to participate or tenders, in every case where contact has been made, and in the duly justified cases where contact has not been made as provided for in Article 151, a record shall be kept in the procurement file.
Article 170 Award decision and information to candidates or tenderers
1. The authorising officer responsible shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria specified in the procurement documents. 2. The contracting authority shall notify all candidates or tenderers, whose requests to participate or tenders are rejected, of the grounds on which the decision was taken, as well as the duration of the standstill periods referred to in Articles 175(2) and 178(1). For the award of specific contracts under a framework contract with reopening of competition, the contracting authority shall inform the tenderers of the result of the evaluation. 3. The contracting authority shall inform each tenderer who is not in an exclusion situation referred to in Article 136(1), who is not rejected under Article 141, whose tender is compliant with the procurement documents and who makes a request in writing, of any of the following: (a) the name of the tenderer, or tenderers in the case of a framework contract, to whom the contract is awarded and, except in the case of a specific contract under a framework contract with reopening of competition, the characteristics and relative advantages of the successful tender, the price paid or contract value, whichever is appropriate; (b) the progress of negotiation and dialogue with tenderers. However, the contracting authority may decide to withhold certain information where its release would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of economic operators or might distort fair competition between them.
Article 171 Cancellation of the procurement procedure
The contracting authority may, before the contract is signed, cancel the procurement procedure without the candidates or tenderers being entitled to claim any compensation. The decision shall be justified and brought to the attention of the candidates or tenderers as soon as possible.
Article 172 Performance and modifications of the contract
1. Performance of the contract shall not start before it is signed. 2. The contracting authority may modify a contract or framework contract without a procurement procedure only in the cases provided for in paragraph 3 and provided the modification does not alter the subject matter of the contract or framework contract. 3. A contract, a framework contract or a specific contract under a framework contract may be modified without a new procurement procedure in any of the following cases: (a) for additional works, supplies or services by the original contractor that have become necessary and that were not included in the initial procurement, where the following conditions are fulfilled: (i) a change of contractor cannot be made for technical reasons linked to interchangeability or interoperability requirements with existing equipment, services or installations; (ii) a change of contractor would cause substantial duplication of costs for the contracting authority; (iii) any increase in price, including the net cumulative value of successive modifications, does not exceed 50 % of the initial contract value; (b) where all of the following conditions are fulfilled: (i) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee; (ii) any increase in price does not exceed 50 % of the initial contract value; (c) where the value of the modification is below the following thresholds: (i) the thresholds referred to in Article 175(1), and in point 38 of Annex I in the field of external actions, applicable at the time of the modification; and (ii) 10 % of the initial contract value for public service and supply contracts and works or services concession contracts and 15 % of the initial contract value for public works contracts; (d) where both of the following conditions are fulfilled: (i) the minimum requirements of the initial procurement procedure are not altered; (ii) any ensuing modification of value complies with the conditions set out in point (c) of this subparagraph, unless such modification of value results from the strict application of the procurement documents or contractual provisions. The initial contract value shall not take into account price revisions. The net cumulative value of several successive modifications under point (c) of the first subparagraph shall not exceed any threshold referred to therein. The contracting authority shall apply the ex post publicity measures set out in Article 163.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The Commission has been conducting borrowing and lending operations to provide financial assistance in the form of loans to a beneficiary country for several decades . The borrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. G eneral rules for such operations are laid down in Article 220 of Regulation ( EU, Euratom ) 2018/1046 1 (“Financial Regulation”) , which provides that the Commission can be empowered in a basic act to borrow on behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings. The cash flows between the borrowed funds and the loans are matched one-to-one. This means that market operations are based on disbursement needs, which limits the possibility to plan various borrowing operations coherently with the best market opportunities and structure maturities to achieve the best costs. The funding needs for Ukraine require mobilisation and disbursement in a cost-effective flexible and financially sound manner, integrating all funding needs including for N ext G eneration EU (“ NGEU ”) . I t is of paramount importance that this funding be organised under a single funding method in order to allow different policy needs to be met concurrently . To that end, it is necessary to amend Regulation (EU, Euratom) 2018/1046 to establish the diversified funding strategy , currently implemented for borrowings under Decision (EU, Euratom) 2020/2053 2 as the baseline method for the implementation of borrowing operations. This strategy has allowed the successful mobilisation of funds for non-repayable support and loans under Regulation (EU) 2021/241 3 and a range of other EU policies in 2022. This will allow the Commission to finance the assistance to Ukraine under the proposed Regulation establishing an instrument to provide support to Ukraine 4 in a cost-efficient, flexible and financially sound manner to ensure parallel financing of all Union programmes relying on borrowing . T he extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraine and would be available to any future programmes . It will enable the Commission to use the infrastructure, which allows an integrated funding planning and communication to markets. In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness. The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilises resources through bond issuance. Recourse to a diversified funding strategy as a single funding method will allow the Commission to decouple the timing and the maturity of single funding transactions from the disbursements to beneficiaries. A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This then allows payments to be made to beneficiaries independently of market conditions pre vailing at the time of the disbursement , and avoid s having to raise fixed amounts in volatile o r adverse conditions. Over the life time of the programme of financial assistance , the net liabilities generated are fully matched by countervailing assets ( amounts outstanding, still to be repaid under loans as they mature 5 ) . On this basis, the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent and proportional allocation of costs . The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation. The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls. To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments. The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules. Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology. These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093. The Commission proposed a recast of the Financial Regulation 6 that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency and the changes incorporated in the pending recast during the legislative process . Consistency with existing policy provisions in the policy area The diversified funding strategy has been introduced for NGEU borrowing and has proven successful so far in that context. Consistency with other Union policies The diversified funding strategy will allow efficient use of borrowing capacity for Union policies which may make use of borrowing and lending operations.

EUROPEAN COMMISSIONBrussels, 9.11.2022COM(2022) 596 final2022/0370(COD)Proposal for aREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILamending Regulation (EU, Euratom) 2018/1046 as regards the establishment of a diversified funding strategy as a general borrowing methodEXPLANATORY MEMORANDUM1.CONTEXT OF THE PROPOSAL•Reasons for and objectives of the proposalTheCommission has been conducting borrowing and lending operationsto providefinancial assistance in the form of loansto a beneficiary countryfor several decades. Theborrowing and lending operations are guaranteed under the Union’s budget and come under the wider scope of budgetary implementation. General rules for such operations are laid down in Article 220 of Regulation (EU, Euratom) 2018/10461(“Financial Regulation”),whichprovides that the Commissioncan be empowered in a basic act to borrowon behalf of the Union or Euratom to on-lend the corresponding amounts to the beneficiary Member States or third countries under the conditions applicable to the borrowings.The cash flows between theborrowed funds and the loans are matched one-to-one. This means that market operationsarebased on disbursement needs, which limits the possibility to plan various borrowing operationscoherently withthe best market opportunities and structure maturities to achieve the best costs.Thefundingneedsfor Ukrainerequire mobilisation and disbursementin a cost-effectiveflexible and financially soundmanner,integrating allfundingneeds includingforNextGenerationEU(“NGEU”).It is of paramount importance that this funding beorganised underasingle funding methodin order to allow different policy needs to be metconcurrently.To that end, it is necessary to amend Regulation (EU, Euratom)2018/1046 to establish the diversified funding strategy,currently implemented for borrowings underDecision (EU, Euratom) 2020/20532as the baseline method fortheimplementation of borrowing operations.This strategy has allowed the successful mobilisation of funds fornon-repayable supportand loans under Regulation (EU) 2021/2413and a range of other EU policies in 2022.Thiswill allowtheCommissionto finance the assistance toUkraineunder the proposedRegulation establishing an instrumentto providesupport to Ukraine4in a cost-efficient, flexible and financially sound mannerto ensureparallelfinancingof all Unionprogrammesrelying on borrowing.The extension of the scope of application of the diversified funding strategy goes beyond the funding needs for Ukraineand would be available to any future programmes. It willenablethe Commission to use the infrastructure,which allowsan integrated funding planning and communication to markets.In the absence of such a single funding method, the Commission would be required to continue financing different programmes of financial assistance separately. This would create cost and complexity as the different programmes of financial assistance would compete for a limited number of funding opportunities. It would fragment the supply of Union’s debt and reduce liquidity and investor interest in the separate programmes. Financing all financial assistance through a single funding method would therefore enhance the liquidity of the Union’s bonds their attractiveness and cost-effectiveness.The diversified funding strategy is a financing method through which funding transactions are organised in a manner consistent with the limits of financial liability authorised in the basic acts in order to achieve the policy objectives. The implementation of a diversified funding strategy does not change the financial liabilities arising from the borrowing. It provides the Commission with more flexibility in how the Union mobilisesresources through bond issuance.Recourse to adiversified funding strategyas asingle fundingmethodwill allow theCommissionto decouple the timingand the maturityof single funding transactions from the disbursements to beneficiaries.A common liquidity pool financed by the issuance of short-term funding (EU-bills) enables the Commission to organise payments in accordance with a regular and agreed schedule, independently of the exact timing of the long-term bond issuance. This thenallowspayments tobe made tobeneficiaries independently of market conditionsprevailingat the time of the disbursement, and avoidshaving to raise fixed amounts in volatile oradverse conditions.Over the lifetimeof theprogramme offinancial assistance,thenetliabilities generated are fully matched by countervailing assets (amounts outstanding, still to be repaid underloans as they mature5).On this basis,the principles of budgetary neutrality and budgetary balance as set out in Article 310(1) TFEU are respected. The costs are fully borne by the beneficiaries based on a single cost allocation methodology that ensures transparent andproportionalallocation of costs.The repayment obligations should remain with the beneficiaries of the financial assistance, in compliance with Article 220(5)(e) of the Financial Regulation.The common liquidity pool should be maintained at levels that would allow the Commission to meet all expected outflows over the short-term, based on a robust liquidity forecasting capacity. The existence of a large, well-stocked liquidity buffer, capable of managing disbursements over long periods, allows the diversified funding strategy to function without the need for other solutions to address temporary cash shortfalls.To support the most successful implementation of the diversified funding strategy, the Commission should, as far as possible, ensure a continuous market presence and to this end implement all necessary transactions aiming at achieving the best possible funding costs and at facilitating of transactions in debt securities of the Union and Euratom. The latter is crucial in supporting the active involvement of the widest range of investors to markets for Union’s debt instruments.The conduct of the diversified funding strategy requires that a single set of rules is followed in respect of all borrowing and lending programmes which rely on it. The Financial Regulation in its role of a single rulebook for the implementation of the EU budget should provide the basis for those rules.Following the entry into force of this amendment of the Financial Regulation, the Commission will adopt and implement a wider governance framework, risk management procedures, and cost allocation methodology.These new rules of the Financial Regulation should only apply to new financial assistance to third countries for which the basic acts enter into force on or after the date of entry into force of these amendments of the Financial Regulation and the parallel amendment of Regulation (EU, Euratom) 2020/2093.The Commission proposed a recast of the Financial Regulation6that is being examined by the European Parliament and the Council. The present stand-alone proposal should be adopted as a matter of urgency andthe changes incorporated in the pending recast during the legislative process.
Revised version (Article 172 Performance and modifications of the contract):
1. Performance of the contract shall not start before it is signed. 2. The contracting authority may modify a contract or framework contract without a procurement procedure only in the cases provided for in paragraph 3 and provided the modification does not alter the subject matter of the contract or framework contract. A contract, a framework contract or a specific contract under a framework contract may be modified without a new procurement procedure in any of the following cases: for additional works, supplies or services by the original contractor that have become necessary and that were not included in the initial procurement, where the following conditions are fulfilled: (i) a change of contractor cannot be made for technical reasons linked to interchangeability or interoperability requirements with existing equipment, services or installations; (ii) a change of contractor would cause substantial duplication of costs for the contracting authority; (iii) any increase in price, including the net cumulative value of successive modifications, does not exceed 50 % of the initial contract value; where all of the following conditions are fulfilled: (i) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee; (ii) any increase in price does not exceed 50 % of the initial contract value; where all of the following conditions are fulfilled: (i) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee; (ii) any increase in price does not exceed 50 % of the initial contract value; where the value of the modification is below the following thresholds: (i) the thresholds referred to in Article 175(1), and in point 38 of Annex I in the field of external actions, applicable at the time of the modification; and (ii) 10 % of the initial contract value for public service and supply contracts and works or services concession contracts and 15 % of the initial contract value for public works contracts; 10 % of the initial contract value for public service and supply contracts and works or services concession contracts and 15 % of the initial contract value for public works contracts; where both of the following conditions are fulfilled: (i) the minimum requirements of the initial procurement procedure are not altered; (ii) any ensuing modification of value complies with the conditions set out in point (c) of this subparagraph, unless such modification of value results from the strict application of the procurement documents or contractual provisions. The initial contract value shall not take into account price revisions. The net cumulative value of several successive modifications under point (c) of the first subparagraph shall not exceed any threshold referred to therein. The contracting authority shall apply the ex post publicity measures set out in Article 163.