(1)

In accordance with the fourth subparagraph of Article 122(2) of Regulation (EU) No 1303/2013, when an amount unduly paid to a beneficiary cannot be recovered and this is as a result of fault or negligence on the part of a Member State, the Member State is responsible for reimbursing the amount concerned to the budget of the Union.

(2)

The document on irrecoverable amounts submitted by the certifying authority to the Commission, as part of the annual accounts in accordance with Article 137(1)(b) and Article 138(a) of Regulation (EU) No 1303/2013 each year from 2016 until and including 2025, establishes the irrecoverable amounts at the level of each priority. That document should also include explicit information regarding the amounts that should not, according to the Member State, be reimbursed to the Union budget, in particular by demonstrating the administrative and legal measures taken by the Member State to effectively pursue the recovery of the irrecoverable amounts. However, as that document refers to amounts previously included in certified accounts submitted to the Commission, it should be submitted for the first time in 2017.

(3)

In accordance with point (b) of Article 126 and with Article 137(1) of Regulation (EU) No 1303/2013, deductions made before submission of certified accounts cannot be considered as recoveries if they relate to the expenditure included in the final interim payment application of a given accounting year for which the accounts are prepared. It should therefore be clarified that the information on irrecoverable amounts submitted under this Delegated Regulation should only concern amounts already included in certified accounts previously submitted to the Commission.

(4)

To allow the Commission to decide whether the irrecoverable amounts should be reimbursed to the Union budget, the Member State should submit the required information, at the level of each operation and beneficiary, before the deadline set for the submission of accounts in Article 59(5) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (2). In accordance with that provision, it should be possible to extend also the deadline for the document on irrecoverable amounts.

(5)

It is necessary to establish criteria that will enable the Commission to assess whether a Member State has been at fault or negligent in the recovery during the administrative and legal measures. The presence of one or more of these criteria should not automatically mean that the Member State has in fact been at fault or negligent.

(6)

For reasons of legal certainty, the Commission should conclude its assessment by a given deadline, and Member States should react to the Commission's assessment by another given deadline. For the same reasons, the Commission should be able to conclude its assessment even where the Member State does not provide additional information. However, in the cases preceding a bankruptcy or of suspected fraud, as referred to in the third subparagraph of Article 122(2) of Regulation (EU) No 1303/2013, the deadlines should not apply.

(7)

Pursuant to the second sentence of the fourth subparagraph of Article 122(2) of Regulation (EU) No 1303/2013, a Member State may decide not to recover from a beneficiary an amount unduly paid at the level of an operation in the accounting year concerned that does not exceed EUR 250, not including interest, in contribution from the Funds. In this case, the amount does not need to be reimbursed to the budget of the Union. No information will be requested on such de minimis amounts.

(8)

With regard to programmes under the European territorial cooperation goal subject to Regulation (EU) No 1299/2013 of the European Parliament and of the Council (3), that Regulation does not establish a different system with regard to amounts referred to in the second sentence of the fourth subparagraph of Article 122(2) of Regulation (EU) No 1303/2013. It is therefore for the Member States and third countries participating in a given European territorial cooperation programme to decide that neither the lead beneficiary nor the programme's managing authority is obliged to recover an amount unduly paid that does not exceed EUR 250, not including interest, in contribution from the Funds,

(a)

the Member State did not submit any description of the administrative and legal measures, with dates, taken by the Member State to recover the relevant amount (or to reduce or cancel the level of support or withdraw the document in accordance with Article 125(3)(c) of Regulation (EU) No 1303/2013, where such a withdrawal is subject to a separate procedure);

(b)

the Member State did not provide any copy of the first and any subsequent recovery order (and of any copy of the letter reducing or cancelling the level of support or withdrawing the document in accordance with Article 125(3)(c) of Regulation (EU) No 1303/2013, where such withdrawal is subject to a separate procedure);

(c)

the Member State did not provide the date of the last payment of the public contribution to the beneficiary of the given operation and a copy of proof of this payment;

(d)

the Member State, after detection of the irregularity, made one or more undue payments to the beneficiary in relation to the part of the operation that was affected by the irregularity;

(e)

the Member State did not send the letter reducing the level of support or withdrawing the document in accordance with Article 125(3)(c) of Regulation (EU) No 1303/2013, where such withdrawal is subject to a separate procedure, or take any equivalent decision within 12 months of the detection of the irregularity;

(f)

the Member State did not initiate the recovery procedure within 12 months of the grant being definitively reduced or cancelled (either after an administrative or judicial procedure or by agreement of the beneficiary);

(g)

the Member State did not exhaust all recovery possibilities available through the national institutional and legal framework;

(h)

the Member State did not provide documents related to insolvency and bankruptcy procedures, when applicable;

(i)

the Member State did not reply to the Commission's request for further information in accordance with Article 3.