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Document 32007R0478
Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities
Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities
Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities
OJ L 111, 28.4.2007, p. 13–45
(BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, NL, PL, PT, RO, SK, SL, FI, SV) This document has been published in a special edition(s)
(HR)
OJ L 56M, 29.2.2008, p. 337–369
(MT)
No longer in force, Date of end of validity: 31/12/2012; Repealed by 32012R1268
Language
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Official Journal
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28.4.2007 |
EN |
Official Journal of the European Union |
L 111/13 |
COMMISSION REGULATION (EC, EURATOM) No 478/2007
of 23 April 2007
amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Treaty establishing the European Atomic Energy Community,
Having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (1) and in particular Article 183 thereof,
Having consulted the European Parliament, the Council of the European Union, the Court of Justice of the European Communities, the Court of Auditors, the European Economic and Social Committee, the Committee of the Regions, the European Ombudsman and the European Data Protection Supervisor,
Whereas:
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(1) |
Regulation (EC, Euratom) No 1605/2002 (hereinafter ‘the Financial Regulation’) was amended by Regulation (EC, Euratom) No 1995/2006. These changes should be reflected in the implementing rules established in Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (2). |
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(2) |
In accordance with budgetary principles, in particular the principle of unity, the rules established in the Financial Regulation for recovering interest on pre-financing need to be specified in the implementing rules. Thus, it has to be clarified what amount has to be considered as a significant amount. Below these thresholds, interest on pre-financing should not be due to the European Communities. The cases where interest yielded on pre-financing has to be recovered annually in order to protect the financial interests of the Communities also have to be specified. |
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(3) |
In respect of the principle of specification, a precise definition should be given of the methods of calculating the percentage limits to be respected for transfers of appropriations of the Commission and of the other institutions. In addition, as the provision on procedures for transfers by the institutions other than the Commission has been consolidated in the Financial Regulation; it can therefore be deleted from the implementing rules. |
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(4) |
As regards the implementation of the budget, a definition should be provided in respect of the standard for effective and efficient internal control which should apply to each management mode, in accordance with the principle of sound financial management and, where appropriate, with the relevant sector-specific regulations. |
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(5) |
Article 49(6)(c) of the Financial Regulation expressly provides for the financing of preparatory measures in the field of the Common Foreign and Security Policy (CFSP), in particular as regards envisaged EU crisis management operations. The rapid financing of such measures corresponds to an operational necessity: in most crisis situations, a number of measures for the setting up of a crisis management operation on the ground need to be taken rapidly before the adoption by the Council of a Joint Action on the basis of Article 14 of the EU Treaty or another necessary legal instrument. It is appropriate to clarify that the financing of such measures includes incremental costs such as high-risk insurance, travel and accommodation costs and per diem payments, directly arising from a specific field deployment of a mission or team involving personnel from the institutions to the extent that similar types of expenditure incurred in relation to crisis management operations covered by a Joint Action are generally imputed to the operational CFSP budget line. |
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(6) |
In respect of methods of implementing the budget, in particular indirect centralised management, it has to be specified that the persons entrusted with the management of specific actions pursuant to Title V of the EU Treaty should be required to put in place the appropriate structures and procedures in order to assume responsibility for the funds that they will manage. At the same time, since the requirement for prior authorisation in the basic act for recourse to national bodies entrusted with public tasks has been removed from the Financial Regulation, it is necessary to remove the corresponding provisions from the implementing rules. |
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(7) |
As regards shared management, the content of the annual summary of available audits and declarations referred to in Article 53b of the Financial Regulation should be specified. |
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(8) |
As regards joint management, it is necessary to insert specific provisions detailing the content of the arrangements to be concluded by the Commission in its cooperation with international organisations and the obligation of publication of beneficiaries of funds deriving from the budget. |
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(9) |
As regards the liability of the financial actors, it has to be clarified that the appointing authority may request the opinion of the financial irregularities panel on a case, based on information provided by a member of staff in accordance with the relevant provision of the Financial Regulation. In addition, the authorising officer by delegation should be entitled to refer a matter to the financial irregularities panel if he considers that a financial irregularity has occurred. |
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(10) |
As regards the recovery of debts, given the general limitation period of five years established in the Financial Regulation for Community debts and entitlements, it is necessary to specify the rules regarding the starting dates and the grounds for interruption of the limitation period, both for the institutions and for third parties who have an enforceable claim against the institutions. |
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(11) |
In order to strengthen the protection of the financial interests of the Communities, the Commission should establish a list of amounts receivable within the meaning of Article 73 of the Financial Regulation, stating the names of the debtors and the amount of the debt where the debtor has been ordered to pay by a Court decision that has the force of res judicata and where no or no significant payment has been made for one year after its pronouncement. This list should be published, taking into account the legislation applicable to data protection. |
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(12) |
The rules governing payments due by the Communities should be strengthened in order to ensure that contractors and beneficiaries are fully and completely informed of the procedural requirements and automatically compensated with default interest in case of late payment whenever the interest due exceeds EUR 200. Each institution should submit to the budgetary authority a report concerning compliance with the established time limits. |
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(13) |
As regards procurement, framework contracts without a re-opening of competition in sectors subject to a rapidly rising trend in prices and technological development should be subject to a mid-term review or a benchmarking system and the contracting authority should take appropriate measures, including termination of the framework contract. |
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(14) |
In accordance with the principle of proportionality, for contracts with a value of not more than EUR 5 000, and in the case of contracts for external aid with a value of not more than EUR 10 000, the contracting authority should be able, depending on its risk analysis, to refrain from requiring the candidates or tenderers to give a declaration that they are not in one of the situations giving rise to exclusion. |
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(15) |
For simplification reasons, payments against invoices without prior acceptance of a tender should be possible for amounts less than or equal to EUR 500, and for external aid the competitive negotiated procedure for awarding supply contract should be possible for contracts with a value of less than EUR 60 000. |
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(16) |
Whenever appropriate, technically feasible and cost efficient, procurement contracts with a value equal to or greater than the thresholds laid down in Article 158 of Regulation (EC, Euratom) No 2342/2002 should be awarded at the same time in the form of separate lots. |
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(17) |
Information on available legal remedies should be indicated by the contracting authority to rejected tenderers. |
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(18) |
Given the possibility for an institution to carry out a procurement procedure jointly with a contracting authority from a Member State, it should be specified which procurement procedure should apply to those cases and how it should be managed. |
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(19) |
Further details should be set out in the practical modalities for the management of procurement procedures launched on an interinstitutional basis. In particular, provisions on evaluation of tenders and award decisions should be laid down. |
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(20) |
In order to ensure proper management of the central data-base on exclusions, further details should be provided concerning the information to be transmitted to the Commission. The procedure for transmission and reception of information contained in the database should be laid down, taking due account of the protection of personal data. |
|
(21) |
In accordance with the principle of proportionality, economic operators that are in any of the situations of legal exclusion mentioned in the Financial Regulation should not be excluded indefinitely from participating in a procurement procedure. Accordingly, the criteria for determining the duration of exclusion and the procedure to be followed should be specified. |
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(22) |
As a result of the revision of the Financial Regulation, the provisions on penalties need to be adapted accordingly. |
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(23) |
In the interest of legal certainty, the modalities and exceptions to the standstill procedure before the signature of a contract should be specified. |
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(24) |
It is appropriate to have a provision which determines to what extent the particular forms of financing laid down in Article 108(3) of the Financial Regulation should be treated in the same way as grants under Title VI of Part One of that Regulation. |
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(25) |
In order to ensure consistency, the annual work programme shall determine whether a decision or written agreement should be used for awarding grants. It is necessary to adapt some articles in order to take account of the introduction of the decisions in the grant award procedure. |
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(26) |
In order to ensure that Community law is applicable to all legal relationships to which institutions are party, it should be made compulsory for the authorising officers to insert in all their contracts and grant agreements a specific clause on the applicability of Community law, complemented as appropriate by the national law agreed by the parties. |
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(27) |
In respect of the award of grants, the exceptions to the requirement for a call for proposals should be extended in order to cover the possibility which exists under the current regulations in the field of research and development to award grants directly to beneficiaries identified by the Commission for proposals of high quality which do not fall within the ambit of programmed calls for proposals for the financial year concerned. Furthermore, an additional derogation should be introduced to cover actions with specific characteristics that require an implementing body with particular expertise or administrative power without this necessarily qualifying as a monopoly. |
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(28) |
In order to protect the financial interests of the Communities, it has to be specified that the representatives of beneficiaries who do not have legal personality should prove that they have the capacity to act on behalf of the beneficiaries and that they can offer financial guarantees equivalent to those provided by legal persons. |
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(29) |
In order to facilitate the management of the award procedure, and in accordance with the principle of sound financial management, the possibility to restrict a call for proposals to a targeted category of beneficiaries should be provided for. The Commission would thus be able, while duly respecting the principles of equal treatment and non-discrimination, to reject applications from entities not concerned by the programme in question. |
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(30) |
In order to help the applicants, and to increase the efficiency of the calls for proposals, certain procedural steps should be improved. The Commission should provide information and guidance to the applicants about the rules applicable to the award of grants and it should inform them as soon as possible of the possibility of success of their applications. It should be possible to divide the procedure of submission and the procedure of evaluation in different stages, and thus allow rejecting at an early stage the proposals which cannot have any prospect of success at later stage. In order to clarify which costs may be eligible for Community financing, criteria should be laid down and an indicative list should be provided for. It is also appropriate to determine the conditions for submission of the applications, especially for applications submitted by electronic means. Furthermore, it should be possible to ask for additional information from the applicants during the award procedure, in particular in the case of obvious clerical errors in applications. |
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(31) |
The possibility of adoption of the annual work programme before the year to which it relates should be provided for, in order to allow the launching of the calls for proposals at an early stage, including before the beginning of the year which they are related to. |
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(32) |
For reasons of transparency, the Commission, when requested, should annually inform the budgetary authority about the management of the grant award procedures and about exceptions applied to the publication of beneficiaries of funds deriving from the budget. |
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(33) |
In order to protect the interests of the beneficiaries and to increase legal certainty, modifications of the content of the call for proposals should remain exceptional, and applicants should benefit from a supplementary deadline if these modifications are substantial. They should be subject to the same conditions of publication as the call itself. |
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(34) |
Concerning lump sums, it has to be specified that the unit amounts of lump sums below a threshold of EUR 25 000 and the amounts of flat rates is fixed by the Commission on the basis of objective elements, such as statistical data where available. These amounts should be reassessed regularly and updated by the Commission on the same basis. On the other hand, lump sums above a threshold of EUR 25 000 are determined in the basic act. In addition, the authorising officer responsible should be required to carry out appropriate ex post controls in order to ascertain that the conditions for their award have been respected. These controls are independent of the controls to be carried out for grants intended for the reimbursement of the eligible costs actually incurred. The non-profit rule and the co-financing rule should be specified. |
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(35) |
With regard to contracts necessary to implement a Community grant, it should be specified that, whenever these contracts are of low value, the rules to be followed by the beneficiary should be limited to what is strictly necessary, that is to say the principle of sound management and the absence of conflicts of interests. For contracts with a higher value, the authorising officer should be able to determine additional specific requirements, based on those applicable to the institutions for equivalent contracts. |
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(36) |
The financial support to third parties which may be awarded by a beneficiary of a Community grant should be organised in a way that does not leave scope for discretion and is limited to a total amount of EUR 100 000 as required by Article 120 of the Financial Regulation. |
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(37) |
As regards the keeping and presentation of accounts, it should be clarified that the report on budgetary and financial management which accompanies the accounts in accordance with Article 122 of the Financial Regulation is separate from the report on the implementation of the budget referred to in Article 121 of the Financial Regulation. At the same time, following the modifications to the scope of consolidation established in the Financial Regulation, all previous references to the bodies referred to in Article 185 of the Financial Regulation should be replaced by a reference to the bodies referred to in Article 121 of the Financial Regulation. |
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(38) |
As regards some components of Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (3) and the Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument (4), in the event of multi-annual programmes using split commitments, the Financial Regulation introduced a ‘n+3’ decommitment rule in Article 166(3)(a) of the Financial Regulation. It is therefore necessary to provide for specific detailed provisions, in particular concerning the procedure and the consequences of the automatic decommitment. |
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(39) |
As for external actions, further measures of simplification are needed. In particular, the threshold for the negotiated procedure on the basis of a single tender should be raised. In addition, the possibility of secret procurement procedures for security reasons, which is already possible for procurement on behalf of the institutions, has to be extended to operational procurement in the field of external relations. In order to implement the obligations provided for in the Financial Regulation concerning the publication of beneficiaries of funds deriving from the budget, adequate provisions should be laid down in the financing agreements with third countries. |
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(40) |
As regards interinstitutional European offices, the specific rules for the Office for Official Publications of the European Communities (Publications Office) need to be amended following the new possibility introduced in the Financial Regulation for interinstitutional delegation to the directors of interinstitutional European offices. In this respect, the budgetary commitment should remain the responsibility of each institution, which decides on the publication of its documents, whereas all subsequent acts could be delegated to the director of Publications Office. |
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(41) |
Regarding external individual experts needed for the evaluation of proposals and other forms of technical assistance, it should be possible to select these experts from a list drawn up on the basis of their technical capacity, after publishing a call for expressions of interest. |
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(42) |
Since the Financial Regulation, as amended by Regulation (EC, Euratom) No 1995/2006, will apply from 1 May 2007 at the latest, this Regulation should enter into force as a matter of urgency and apply from 1 May 2007. |
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(43) |
Regulation (EC, Euratom) No 2342/2002 should therefore be amended accordingly, |
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC, Euratom) No 2342/2002 is amended as follows:
|
1. |
Articles 2, 3 and 4 are replaced by the following: ‘Article 2 Legislative acts concerning the implementation of the budget
The Commission shall annually update in the preliminary draft budget the information on the acts referred to in Article 2 of the Financial Regulation Any proposal or amendment to a proposal submitted to the legislative authority shall clearly indicate the provisions containing derogations from the Financial Regulation or from this Regulation and state the specific reasons justifying such derogations in the relevant Explanatory Memorandum. Article 3 Scope of pre-financing
1. In the case of direct centralised management involving a number of partners, indirect centralised management and decentralised management within the meaning of Article 53 of the Financial Regulation, the rules laid down in Article 5a of the Financial Regulation shall apply solely to the entity receiving pre-financing directly from the Commission. 2. Pre-financing shall be regarded as representing a significant amount within the meaning of Article 5a(2)(a) of the Financial Regulation if the amount is higher than EUR 50 000. However, for external actions pre-financing shall be regarded as representing a significant amount if the amount is higher than EUR 250 000. For crisis management aid and humanitarian aid operations, pre-financing shall be regarded as representing a significant amount if it exceeds per agreement EUR 750 000 at the end of each financial year and is for projects of a duration of more than 12 months. Article 4 Recovery of interest yielded by pre-financing
1. The authorising officer responsible shall recover for each reporting period following the implementation of the decision or agreement the amount of interest generated by pre-financing payments which exceed EUR 750 000 per agreement at the end of each financial year. 2. The authorising officer responsible may recover at least once a year the amount of interest generated by pre-financing payments lower than those referred to in paragraph 1, taking account of the risks associated with his management environment and the nature of the actions financed. 3. The authorising officer responsible shall recover the amount of interest generated by pre-financing payments which exceeds the balance of the amounts due as referred to in Article 5a(1) of the Financial Regulation.’ |
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2. |
The following Article 4a is inserted: ‘Article 4a Accounting for interest yielded on pre-financing
1. Authorising officers shall ensure that, in grant decisions or agreements with beneficiaries and intermediaries, pre-financing is paid to bank accounts or sub-accounts which allow the funds and related interest to be identified. Otherwise, the accounting methods of the beneficiaries or intermediaries must make it possible to identify the funds paid by the Community and the interest or other benefits yielded by these funds. 2. In the cases referred to in the second subparagraph of Article 5a(1) of the Financial Regulation, the authorising officer responsible shall draw up before the end of each financial year estimates of the amount of any interest or equivalent benefit yielded by these funds and shall establish a provision for that amount. That provision shall be entered in the accounts and cleared by effective recovery, following the implementation of the decision or agreement. Where pre-financing is paid from the same budget line, under the same basic act and to beneficiaries covered by the same award procedure, the authorising officer may draw up a single estimate of amounts receivable for a number of debtors. 3. Articles 3 and 4 and paragraphs 1 and 2 of this Article shall be without prejudice to the entry of pre-financing on the assets side of financial statements, as laid down in the accounting rules referred to in Article 133 of the Financial Regulation.’ |
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3. |
In point (c) of Article 5, ‘Articles 157 and 181(5) of the Financial Regulation’ is replaced by ‘Articles 157 and 160a of the Financial Regulation’. |
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4. |
In Article 7, the following paragraph 1a is inserted: ‘1a. In order to avoid that currency conversion operations have a significant impact on the level of Community co-financing or a detrimental impact on the Community budget, the specific arrangements for conversion referred to in paragraph 1 shall provide, if appropriate, for a rate of conversion between the euro and other currencies to be calculated using the average of the daily exchange rate in a given period’. |
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5. |
Article 10 is amended as follows:
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6. |
The following Article 13a is inserted: ‘Article 13a Charges entailed by acceptance of donations to the Communities
For the purposes of the authorisation of the European Parliament and of the Council referred to in Article 19(2) of the Financial Regulation, the Commission shall estimate and duly explain the financial charges, including follow-up costs, entailed by the acceptance of donations made to the Communities.’ |
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7. |
Article 14 is replaced by the following: ‘Article 14 Passing for payment of the net amount
Pursuant to Article 20(1) of the Financial Regulation, the following deductions may be made from payment requests, invoices or statements, which shall then be passed for payment of the net amount:
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8. |
Article 16 is deleted. |
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9. |
Article 17 is replaced by the following: ‘Article 17 Rules concerning the calculation of percentages of transfers of the institutions other than the Commission
1. The percentages referred to in Article 22 of the Financial Regulation shall be calculated at the time the request for transfer is made and with reference to the appropriations provided in the budget, including amending budgets. 2. The amount to be taken into consideration shall be the sum of the transfers to be made on the line from which transfers are being made, after adjustment for earlier transfers made. The amount corresponding to the transfers which can be carried out autonomously by the institution concerned without a decision of the budgetary authority shall not be taken into consideration.’ |
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10. |
The following Article 17a is inserted: ‘Article 17a Rules concerning the calculation of percentages of transfers of the Commission
1. The percentages referred to in Article 23(1) of the Financial Regulation shall be calculated at the time the request for transfer is made and with reference to the appropriations provided in the budget, including amending budgets. 2. The amount to be taken into consideration shall be the sum of the transfers to be made on the line from which or to which transfers are being made, after adjustment for earlier transfers made. The amount corresponding to the transfers which can be carried out autonomously by the Commission without a decision of the budgetary authority shall not be taken into consideration.’ |
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11. |
In the introductory phrase of Article 20, ‘the first subparagraph of Article 26(2) of the Financial Regulation’ is replaced by ‘Article 26 of the Financial Regulation’. |
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12. |
In Article 22(1), the first subparagraph is deleted. |
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13. |
The following Article 22a is inserted: ‘Article 22a Effective and efficient internal control
1. Effective internal control shall be based on best international practices and include in particular the following:
2. Efficient internal control shall be based on the following elements:
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14. |
Article 23 is replaced by the following: ‘Article 23 Provisional publication of the budget
As soon as possible and no later than four weeks after the final adoption of the budget, the final detailed budget figures shall be published in all languages on the internet site of the institutions, on the Commission’s initiative, pending official publication in the Official Journal of the European Union.’ |
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15. |
In Article 25, point (a)(ii) is replaced by the following:
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16. |
Article 31 is deleted. |
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17. |
Article 32 is amended as follows:
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18. |
The following Article 32a is inserted: ‘Article 32a Preparatory measures in the field of the Common Foreign and Security Policy
The financing of measures agreed by the Council for the preparation of EU crisis management operations under Title V of the Treaty on European Union shall cover incremental costs directly arising from a specific field deployment of a mission or team involving inter alia personnel from the EU institutions, including high-risk insurance, travel and accommodation costs and per diem payments.’ |
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19. |
In the title of Article 33, ‘Article 49(2)(c)’ is replaced by ‘Article 49(6)(d)’. |
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20. |
In Article 34, the following paragraph 3 is added: ‘3. A conflict of interests shall be presumed to exist if an applicant, candidate or tenderer is a member of staff covered by the Staff Regulations, unless his participation in the procedure has been authorised in advance by his superior.’ |
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21. |
Article 35 is replaced by the following: ‘Article 35 Checks to be carried out by the Commission
1. Decisions entrusting implementing tasks to the entities or persons referred to in Article 56 of the Financial Regulation shall include all appropriate arrangements for ensuring the transparency of operations carried out. The Commission shall review those arrangements as necessary whenever there are substantial changes to the procedures or systems applied by such entities or persons, in order to ensure continued compliance with the conditions set out in Article 56. 2. The entities or persons concerned shall provide the Commission, within a specified time limit, with any information it requests and shall inform it without delay of any substantial changes in their procedures or systems. The Commission shall, as appropriate, set out the obligations in the decisions referred to in paragraph 1, or in the agreements concluded with those entities or persons. 3. The Commission may accept that the procurement procedures of the bodies referred to in Articles 54(2)(c) and of the beneficiaries referred to in Article 166(1)(a) of the Financial Regulation are equivalent to its own, with due account for internationally accepted standards. 4. Where the Commission implements the budget by joint management, the verification agreements concluded with the international organisations concerned shall apply. 5. The independent external audit referred to in Article 56(1)(d) of the Financial Regulation shall be at least performed by an audit service functionally independent of the entity to which the Commission entrusts implementation tasks and shall perform its duties in accordance with internationally accepted auditing standards.’ |
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22. |
The following Article 35a is inserted: ‘Article 35a Measures to promote best practices
The Commission shall compile a register of bodies responsible for management, certification and audit activities under the sector-specific regulations. In order to promote best practices in the implementation of the Structural Funds and the European Fisheries Fund, the Commission shall make available for information purposes to those responsible for management and control activities a methodological guide setting out its own control strategy and approach, including checklists, and best practice examples which have been identified.’ |
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23. |
In Article 36, ‘Article 53’ is replaced by ‘Article 53a’. |
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24. |
In Article 37, paragraph 2 is deleted. |
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25. |
Article 38 is replaced by the following: ‘Article 38 Eligibility of national or international public sector bodies or private law entities with a public service mission for the delegation of powers and conditions relating thereto
1. The Commission may delegate tasks involving the exercise of public authority to:
2. The Commission shall ensure that the bodies or entities referred to in paragraph 1 offer adequate financial guarantees, issued preferably by a public authority, in particular as regards full recovery of amounts due to the Commission. 3. Where the Commission intends to entrust tasks involving the exercise of public authority, and in particular tasks of budget implementation, to a body referred to in point (c) of Article 54(2) of the Financial Regulation, it shall analyse compliance with the principles of economy, effectiveness and efficiency.’ |
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26. |
Article 39 is amended as follows:
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27. |
The following Article 39a is inserted: ‘Article 39a Persons entrusted with the management of specific actions pursuant to Title V of the Treaty on European Union
Persons entrusted with the management of specific actions as referred to in point (d) of Article 54(2) of the Financial Regulation shall put in place the appropriate structures and procedures in order to assume the responsibility for the funds that they will manage. Those persons shall have the status of Common Foreign and Security Policy Special Advisers of the Commission pursuant to Articles 1 and 5 of the Conditions of Employment of Other Servants of the European Communities.’ |
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28. |
Article 41 is amended as follows:
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29. |
Article 42 is amended as follows:
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30. |
The following Article 42a is inserted: ‘Article 42a Summary of audits and declarations
1. The summary shall be provided by the appropriate authority or body designated by the Member State for the area of expenditure concerned in accordance with the sector-specific rules. 2. The part related to audits shall:
3. The part related to declarations shall:
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31. |
Article 43 is replaced by the following: ‘Article 43 Joint management
1. The Commission shall ensure that suitable arrangements exist for the control and audit of the action in its entirety. 2. The international organisations referred to in Article 53d of the Financial Regulation shall be:
For the purposes of Article 53d of the Financial Regulation, the European Investment Bank and the European Investment Fund shall be assimilated to international organisations. 3. Where the budget is implemented by joint management with international organisations in accordance with Articles 53d and 165 of the Financial Regulation, the organisations and the actions to be financed shall be chosen in an objective and transparent manner. 4. Without prejudice to Article 35 of this Regulation, agreements concluded with the international organisations referred to in Article 53d of the Financial Regulation shall contain in particular the following:
5. A project or programme shall be considered to be jointly elaborated when the Commission and the international public sector body jointly assess the feasibility and define the implementation agreements. 6. In the implementation of projects in joint management, international organisations shall comply with at least the following requirements:
Those requirements shall be expressly established in the agreements concluded with the international organisations.’ |
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32. |
The following Article 43a is inserted: ‘Article 43a Information on transfers of personal data for audit purposes
In any call made in the context of grants or procurements implemented in direct centralised management, potential beneficiaries, candidates and tenderers shall, in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council (*1) be informed that, for the purposes of safeguarding the financial interests of the Communities, their personal data may be transferred to internal audit services, to the European Court of Auditors, to the Financial Irregularities Panel or to the European Anti-Fraud Office (hereinafter “OLAF”). |
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33. |
In Article 48, point (e) is replaced by the following:
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34. |
In Article 49, the following paragraph is added: ‘Personal data contained in supporting documents shall be deleted where possible when those data are not necessary for budgetary discharge, control and audit purposes. In any event, as concerns the conservation of traffic data, Article 37(2) of Regulation (EC) No 45/2001 shall apply.’ |
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35. |
In Article 67, paragraph 4 is replaced by the following: ‘4. Payments from imprest accounts may be made by bank credit transfer, including the direct debit system referred to in Article 80 of the Financial Regulation, cheque or other means of payment, in accordance with the instructions laid down by the accounting officer.’ |
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36. |
In Article 72, ‘Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities (hereinafter “the Staff Regulations”)’ is replaced by ‘Staff Regulations’. |
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37. |
Articles 74 and 75 are replaced by the following: ‘Article 74 Financial irregularities
Without prejudice to the powers of OLAF, the Panel referred to in Article 43a (hereinafter “the Panel”) shall be competent in respect of any infringement of a provision of the Financial Regulation or of a provision relating to financial management or the checking of operations resulting from an act or omission of a member of staff. Article 75 Financial irregularities panel
1. Cases of financial irregularities as referred to in Article 74 of this Regulation shall be referred to the Panel by the appointing authority for an opinion referred to in the second subparagraph of Article 66(4) of the Financial Regulation. An authorising officer by delegation may refer a matter to the panel if he considers that a financial irregularity has occurred. The Panel shall deliver an opinion evaluating whether irregularities within the meaning of Article 74 have occurred, how serious they are and what their consequences might be. Where the Panel’s analysis suggests that the case referred to it is a matter for OLAF, it shall transmit the file to the appointing authority without delay and shall inform OLAF at once. When the panel is directly informed of a matter by a member of staff in accordance with Article 60(6) of the Financial Regulation, it shall transmit the file to the appointing authority and shall inform the member of staff accordingly. The appointing authority may request the panel’s opinion on the case. 2. The institution or, in the case of a joint panel, the participating institutions shall, depending on its or their own internal organisation, specify the operating arrangements of the panel and its composition, which shall include an external participant with the required qualifications and expertise.’ |
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38. |
In Article 77(2), the first sentence is replaced by the following: ‘Subject to Articles 160(1a) and 161(2) of the Financial Regulation, an estimate of amounts receivable shall not have the effect of making commitment appropriations available.’ |
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39. |
In Article 81, the following paragraphs 3 and 4 are added: ‘3. The accounting officer of each institution shall keep a list of amounts due to be recovered. Community entitlements shall be grouped in the list according to the date of issue of the recovery order. He shall transfer this list to the accounting officer of the Commission. The accounting officer of the Commission shall prepare a consolidated list showing the amount due per institution and per date of issue of the recovery order. The list shall be added to the Commission's Report on budgetary and financial management. 4. The Commission shall establish a list of Community entitlements stating the names of the debtors and the amount of the debt, where the debtor has been ordered to pay by a Court decision that has the force of res judicata and where no or no significant payment has been made for one year following its pronouncement. The list shall be published, taking account of the relevant legislation on data protection.’ |
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40. |
The following Article 85b is inserted: ‘Article 85b Rules for limitation periods
1. The limitation period for entitlements of the Communities in respect of third parties shall begin to run on the expiry of the deadline communicated to the debtor in the debit note as specified in Article 78(3)(b). The limitation period for entitlements of third parties in respect of the Communities shall begin to run on the date on which the payment of the third party's entitlement is due according to the corresponding legal commitment. 2. The limitation period for entitlements of the Communities in respect of third parties shall be interrupted by any act of an institution, or a Member State acting at the request of an institution, notified to the third party and aiming at recovering the debt. The limitation period for entitlements of third parties in respect of the Communities shall be interrupted by any act notified to the Communities by their creditors or on behalf of their creditors aiming at recovering the debt. 3. A new limitation period of five years shall begin to run on the day following the interruptions referred to in paragraph 2. 4. Any legal action relating to an amount receivable as referred to in paragraph 1, including actions brought before a court which later declares itself not to have jurisdiction, shall interrupt the limitation period. The new limitation period of five years shall not begin until a judgment having the force of res judicata is given or there is an extrajudicial settlement between the same parties on the same action. 5. Where the accounting officer allows the debtor additional time for payment in accordance with Article 85, this shall be considered as an interruption of the limitation period. The new limitation period of five years shall begin to run on the day following the expiry of the extended time for payment. 6. Entitlements shall not be recovered after the expiry of the limitation period, as established in paragraphs 1 to 5.’ |
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41. |
In Article 87(3), the second sentence is replaced by the following: ‘The authorising officer responsible shall waive recovery in accordance with Article 81.’ |
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42. |
Article 93 is deleted. |
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43. |
In Article 94(1), the following point (f) is added:
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44. |
In Article 104, paragraph 1 is replaced by the following: ‘1. Pre-financing, including cases where it is split into a number of payments, shall be paid either on the basis of the contract, the decision, the agreement or the basic act, or on the basis of supporting documents which make it possible to check the conformity of the actions financed with the terms of the contract, decision or agreement in question. If a date of payment for pre-financing is determined in those instruments, payment of the due amount shall not be dependent upon further demand. Interim payments and payments of balances shall be based on supporting documents which make it possible to check that the action financed has been carried out in accordance with the basic act or the decision in favour of the beneficiary, or in accordance with the terms of the contract or agreement concluded with the beneficiary.’ |
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45. |
Article 106 is amended as follows:
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46. |
In Article 112, the following paragraph 3 is added: ‘3. The internal auditor shall, during the elaboration of his report, particularly focus on the overall compliance with the principle of sound financial management and shall ensure that appropriate measures have been taken in order to steadily improve and enhance its application.’ |
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47. |
In the second paragraph of Article 115, ‘Staff Regulations’ is replaced by ‘Staff Regulations of Officials of the European Communities’. |
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48. |
In Article 116(6), the fourth sentence of the first subparagraph is replaced by the following: ‘Those who have asked to be allowed to take part in a restricted procedure, a competitive dialogue, or a negotiated procedure are referred to as “candidates”. ’ |
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49. |
In Article 117, paragraph 1 is replaced by the following: ‘1. Where a framework contract is to be concluded with several economic operators it shall be concluded with at least three operators provided that there is a sufficient number of economic operators who satisfy the selection criteria or a sufficient number of admissible tenders which meet the award criteria. A framework contract with a number of economic operators may take the form of contracts which are separate but concluded in identical terms. The term of a framework contract may not exceed four years, save in exceptional cases duly justified in particular by the subject of the framework contract. In sectors subject to a rapid price and technological evolution, framework contracts without reopening of competition shall contain a stipulation either on a mid-term review or on a benchmarking system. After the mid-term review, if the conditions initially laid down are no longer geared to the price or technological evolution, the contracting authority may not use the framework contract concerned and shall take appropriate measures to terminate it.’ |
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50. |
Article 118 is amended as follows:
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51. |
Article 119 is amended as follows:
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52. |
In Article 123(2), the first subparagraph is replaced by the following: ‘In negotiated procedures and after a competitive dialogue, the number of candidates invited to negotiate or to tender may not be less than three, provided that a sufficient number of candidates satisfy the selection criteria.’ |
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53. |
The following Article 125c is inserted: ‘Article 125c Joint procurement procedure with a Member State
In the case of a joint procurement procedure between one institution and the contracting authority from one or more Member States, the procedural provisions applicable to the institution shall apply. 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 institution may decide that the procedural rules applicable to the contracting authority from a Member State shall apply, provided that they can be considered as equivalent to those of the institution. The institution and the contracting authority from a Member State concerned by the joint procurement procedure shall agree in particular upon the practical modalities for the evaluation of the requests for participation or the tenders, the award of the contract, the law applicable to the contract and the competent court for hearing disputes.’ |
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54. |
In Article 129, paragraphs (3) and (4) are replaced by the following: ‘3. Contracts with a value less than or equal to EUR 5 000 may be awarded on the basis of a single tender. 4. Payments of amounts less than or equal to EUR 500 in respect of items of expenditure may consist simply in payment against invoices, without prior acceptance of a tender.’ |
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55. |
Article 130 is amended as follows:
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56. |
Article 133 is replaced by the following: ‘Article 133 Illegal activities giving rise to exclusion
The cases referred to in point (e) of Article 93(1) of the Financial Regulation shall be the following:
(*2) OJ C 316, 27.11.1995, p. 48." (*3) OJ C 195, 25.6.1997, p. 1." |
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57. |
The following Article 133a is inserted: ‘Article 133a Application of exclusion criteria and duration of exclusion
1. In order to determine duration of exclusion and to ensure compliance with the principle of proportionality, the institution responsible shall take into account in particular the seriousness of the facts, including their impact on the Communities’ financial interests and image and the time which has elapsed, the duration and recurrence of the offence, the intention or degree of negligence of the entity concerned and the measures taken by the entity concerned to remedy the situation. When determining the period of exclusion, the institution responsible shall give the candidate or tenderer concerned the opportunity to express their views. Where the duration of the period of exclusion is determined, in accordance with the applicable law, by the authorities or bodies referred to in Article 95(2) of the Financial Regulation, the Commission shall apply this duration up to the maximum duration laid down in Article 93(3) of the Financial Regulation. 2. The period referred to in Article 93(3) of the Financial Regulation is set at a maximum of five years, calculated from the following dates:
That period of exclusion may be extended to 10 years in the event of a repeated offence within five years of the date referred to in points (a) and (b), subject to paragraph 1. 3. Candidates and tenderers shall be excluded from a procurement and grant procedure as long as they are in one of the situations referred to in points (a) and (d) of Article 93(1) of the Financial Regulation.’ |
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58. |
Article 134 is amended as follows:
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59. |
The following Article 134a is inserted: ‘Article 134a Central database
1. The institutions, executive agencies and bodies referred to in Article 95(1) of the Financial Regulation shall transmit to the Commission, in the format established by the Commission, information identifying the economic operators which are in one of the situations referred to in Articles 93, 94, 96(1)(b) and 96(2)(a) of the Financial Regulation, the grounds for exclusion and the duration of the period of exclusion. They shall also transmit information concerning persons with powers of representation, decision making or control over economic operators which are legal entities, when these persons have found themselves in one of the situations referred to in Articles 93, 94, 96(1)(b) and 96(2)(a) of the Financial Regulation. The authorities and bodies referred to in Article 95(2) of the Financial Regulation shall transmit to the Commission, in the format established by the Commission:
2. The institutions, agencies, authorities and bodies referred to in paragraph 1 shall designate the persons authorised to communicate to and receive from the Commission the information contained in the database. In the case of the institutions, agencies, authorities and bodies referred to in Article 95(1) of the Financial Regulation, the designated persons shall address the information as soon as possible to the accounting officer of the Commission, and request, as appropriate, entry, modification or removal of data in the database. In the case of the authorities and bodies referred to in Article 95(2) of the Financial Regulation, the designated persons shall address the requisite information to the Commission authorising officer responsible for the programme or action concerned, within three months of the issue of the relevant judgement. The accounting officer of the Commission shall enter, modify or remove data in the database. He shall, via a secured protocol, provide on a monthly basis validated data contained in the database to the designated persons. 3. The institutions, agencies, authorities and bodies referred to in paragraph 1 shall certify to the Commission that the information communicated by them was established and transmitted in accordance with the principles set out in Regulation (EC) No 45/2001 and in Directive 95/46/EC of the European Parliament and of the Council (*6) concerning the protection of personal data. In particular, they shall inform in advance all economic operators or persons referred to in paragraph 1 that their data may be included in the database and communicated by the Commission to the designated persons referred to in paragraph 2. They shall update, where appropriate, the information transmitted, following rectification or erasure or any modification of data. Any party entered in the database shall have the right to be informed of the data stored concerning that party, upon request to the accounting officer of the Commission. 4. Member States shall take appropriate measures to assist the Commission in order to manage the database efficiently, in compliance with Directive 95/46/EC. Appropriate arrangements shall be laid down in the agreements with the authorities of third countries and all bodies referred to in Article 95(2) of the Financial Regulation, in order to ensure compliance with these provisions and with the principles concerning the protection of personal data. |
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60. |
The following Article 134b is inserted: ‘Article 134b Administrative and financial penalties
1. Without prejudice to the application of penalties laid down in the contract, candidates or tenderers and contractors who have made false declarations, have made substantial errors or committed irregularities or fraud, or have been found in serious breach of their contractual obligations may be excluded from all contracts and grants financed by the Community budget for a maximum of five years from the date on which the infringement is established as confirmed following an adversarial procedure with the contractor. That period may be extended to 10 years in the event of a repeated offence within five years of the date referred to in the first subparagraph. 2. Tenderers or candidates who have made false declarations, have committed substantial errors, irregularities or fraud, may also be subject to financial penalties representing 2 % to 10 % of the total estimated value of the contract being awarded. Contractors who have been found in serious breach of their contractual obligations may be subject to financial penalties representing 2 % to 10 % of the total value of the contract in question. That rate may be increased to 4 % to 20 % in the event of a repeat infringement within five years of the date referred to in the first subparagraph of paragraph 1. 3. The institution shall determine the administrative or financial penalties taking into account in particular the elements referred to in Article 133a(1).’ |
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61. |
In Article 140(3), the first subparagraph is replaced by the following: ‘In restricted procedures, in cases of use of the competitive dialogue referred to in Article 125b and in negotiated procedures with publication of a contract notice for contracts above the thresholds set in Article 158, the time limit for receipt of requests to participate shall be no less than 37 days from the date on which the contract notice is dispatched.’ |
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62. |
In Article 145(2), the following subparagraph is added: ‘In the case of a procurement procedure launched on an interinstitutional basis, the opening committee shall be appointed by the competent authorising officer from the institution responsible for the procurement procedure. The composition of the opening committee shall reflect, insofar as possible, the interinstitutional character of the procurement procedure.’ |
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63. |
Article 146 is amended as follows:
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64. |
Article 147 is amended as follows:
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65. |
Article 149 is amended as follows:
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66. |
The following Article 149a is inserted: ‘Article 149a Signature of the contract
Implementation of a contract may not start before the contract is signed.’ |
|
67. |
Article 155 is amended as follows:
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68. |
The following Article 158a is inserted: ‘Article 158a Standstill period before signature of the contract
1. The contracting authority shall not sign the contract or framework contract, covered by Directive 2004/18/EC, with the successful tenderer until 14 calendar days have elapsed. That period shall run from either of the following dates:
If necessary, the contracting authority may suspend the signing of the contract for additional examination if this is justified by the requests or comments made by unsuccessful or aggrieved tenderers or candidates or by any other relevant information received. The requests, comments or information must be received during the period set in the first subparagraph. In the case of suspension all the candidates or tenderers shall be informed within three working days following the suspension decision. Except in the cases provided for in paragraph 2, any contract signed before the expiry of the period set in the first subparagraph shall be null and void. Where the contract or framework contract cannot be awarded to the successful envisaged tenderer, the contracting authority may award it to the following best tenderer. 2. The period set in the first subparagraph of paragraph 1 shall not apply in the following cases:
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69. |
Article 160 is amended as follows:
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70. |
The following Articles 160a to 160f are inserted: ‘Article 160a Subscriptions
The subscriptions referred to in point (d) of Article 108(2) of the Financial Regulation shall be sums paid to bodies of which the Community is member, in accordance with the budgetary decisions and the conditions of payment established by the body concerned. Article 160b Participations
For the purposes of Article 108(2) and (3) of the Financial Regulation, the following definitions shall apply:
Article 160c Specific rules
1. Where grants as referred to in Article 108(3) of the Financial Regulation are awarded by the Commission under direct centralised management, they shall be subject to the provisions of this Title, with the exception of the following provisions:
The first subparagraph applies without prejudice to the accounting treatment of the grants concerned, which shall be determined by the accounting officer in accordance with international accounting standards. 2. In all cases where a financial contribution is made, the authorising officer responsible shall ensure that appropriate arrangements have been made with the recipient of the contribution defining the modalities for payment and control. Article 160d Prizes
For the purposes of point (b) of Article 109(3) of the Financial Regulation, prizes shall be the reward for an entry in a contest. They shall be awarded by a panel of judges who are free to decide whether or not to award prizes depending on their appraisal of the quality of the entries by reference to the rules of the contest. The amount of the prize shall not be linked to the costs incurred by the recipient. The rules of the contest shall lay down the award conditions and criteria and the amount of the prize. Article 160e Agreement and decision for grants
1. For each Community programme or action, the annual work programme shall determine whether grants shall be covered by a decision or by a written agreement. 2. To determine the instrument to be used, the following elements shall be taken into account:
3. In the case of programmes managed by several authorising officers, the instrument to be used shall be determined in consultation between those authorising officers. Article 160f Expenditure on the members of the institutions
Expenditure on the members of the institutions as referred to in Article 108(2)(a) of the Financial Regulation shall include contributions to associations of current and former members of the European Parliament. These contributions shall be implemented in accordance with the internal administrative rules of the European Parliament.’ |
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71. |
Article 163 is replaced by the following: ‘Article 163 Partnerships
1. Specific grants may form part of a framework partnership. 2. A framework partnership may be established as a long-term cooperation mechanism between the Commission and the beneficiaries of grants. It may take the form of an agreement or a decision. The framework partnership agreement or decision shall specify the common objectives, the nature of actions planned on a one-off basis or as part of an approved annual work programme, the procedure for awarding specific grants, in compliance with the principles and procedural rules of this Title, and the general rights and obligations of each party under the specific agreements or decisions. The duration of the partnership may not exceed four years, save in exceptional cases, justified in particular by the subject of the framework partnership. Authorising officers may not make undue use of framework partnership agreements or decisions or use them in such a way that the purpose or effect is contrary to the principles of transparency or equal treatment of applicants. 3. Framework partnership agreements or decisions shall be treated as grants for the purposes of the award procedure. They shall be subject to the ex ante publication procedures referred to in Article 167. 4. Specific grants based on framework partnership agreements or decisions shall be awarded in accordance with the procedures laid down in those agreements or decisions, and in compliance with this Title. They shall be subject to the ex post publication procedures laid down in Article 169.’ |
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72. |
Article 164 is amended as follows:
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73. |
In Article 165, paragraphs 1 and 2 are replaced by the following: ‘1. For the purposes of this Title, profit shall be defined as follows:
2. Lump sums and flat-rate financing shall be determined according to Article 181 on the basis of the costs or the category of costs to which they relate, established by statistical data and similar objective means, in such a way as to exclude a priori a profit. On the same basis, those amounts shall be reassessed and, where appropriate, adjusted by the Commission every two years. In that case, and for each grant, non-profit shall be verified at the time of the determination of the amounts. Where the ex post control on the generating event reveals that the event has not occurred and an undue payment has been made to the beneficiary on a lump sum or flat-rate financing, the Commission shall be entitled to recover up to the amount of the lump sum or flat-rate financing and, in the case of a false declaration regarding the lump sum or flat-rate financing, impose financial penalties up to 50 % of the total amount of the lump sum or flat-rate financing. Such controls are without prejudice to the verification and certification of actual costs required for the payment of grants or for grants consisting in the reimbursement of a specified proportion of the eligible costs.’ |
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74. |
The following Article 165a is inserted: ‘Article 165a Co-financing principle
1. Co-financing shall require that part of the cost of an action or of the running costs of an entity is borne by the beneficiary of a grant, or by contributions other than the Community contribution. 2. In the case of grants taking one of the forms provided for in points (b) or (c) of Article 108a(1) of the Financial Regulation, or a combination thereof, co-financing shall only be assessed at the stage of the evaluation of the grant application.’ |
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75. |
In Article 166(1), the first subparagraph is replaced by the following: ‘An annual work programme for grants shall be prepared by each authorising officer responsible. This work programme shall be adopted by the institution and published on the grants internet site of the institution concerned as soon as possible, if necessary during the year preceding budget implementation, and no later than 31 March of the year of implementation.’ |
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76. |
Article 167 is amended as follows:
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77. |
In Article 168, paragraph 1 is amended as follows:
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78. |
Article 169 is amended as follows:
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79. |
The following Article 169a is inserted: ‘Article 169a Information for applicants
The Commission shall provide information and advice to applicants by the following means:
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80. |
In Article 172, the following paragraph 4 is added: ‘4. The co-financing principle shall be considered to be respected where the Community contribution is designed to cover certain administrative costs of a financial institution, including, where appropriate, a variable fee constituting a performance-related incentive in relation to the management of a project or programme forming an indissoluble whole.’ |
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81. |
The following Articles 172a, 172b and 172c are inserted: ‘Article 172a Eligible costs
1. Eligible costs are costs actually incurred by the beneficiary of a grant which meet all the following criteria:
2. Without prejudice to paragraph 1 and to the basic act, the following costs may be considered as eligible by the authorising officer responsible:
Article 172b Principle of gradual decrease of operating grants
Where operating grants are decreased, they shall be decreased in a proportionate and equitable manner. Article 172c Financing applications
1. The arrangements for the submission of grant applications shall be determined by the authorising officer responsible, who may choose the method of submission. Grant applications may be submitted by letter or by electronic means. The means of communication chosen shall be non-discriminatory in nature and shall not have the effect of restricting the access of applicants to the award procedure. The means of communication chosen shall be such as to ensure that the following conditions are satisfied:
For the purposes of point (c), the authorising officer responsible shall examine the content of applications only after the time limit set for submitting them has expired. The authorising officer responsible may require that electronic submission be accompanied by an advanced electronic signature within the meaning of Directive 1999/93/EC. 2. Where the authorising officer responsible authorises submission of applications by electronic means, the tools used and their technical characteristics shall be non-discriminatory in nature, generally available and interoperable with the information and communication technology products in general use. The information relating to the specifications required for presentation of applications, including encryption shall be made available to the applicants. Moreover, the devices for the electronic receipt of applications shall guarantee security and confidentiality. 3. Where submission is by letter, applicants may choose to submit applications in one of the following ways:
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82. |
Article 173 is amended as follows:
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83. |
Article 174 is replaced by the following: ‘Article 174 Evidence of non-exclusion
Applicants shall declare on their honour that they are not in one of the situations listed in Articles 93(1) and 94 of the Financial Regulation. The authorising officer responsible may, depending on his risk analysis, request the evidence referred to in Article 134. Applicants shall be required to supply such evidence, unless there is a material impossibility recognised by the authorising officer responsible.’ |
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84. |
The following Article 174a is inserted: ‘Article 174a Applicants without legal personality
When an application for a grant is submitted by an applicant who does not have legal personality, in accordance with Article 114(2)(a) of the Financial Regulation, the representatives of that applicant shall prove that they have the capacity to undertake legal obligations on behalf of the applicant, and shall offer financial guarantees equivalent to those provided by legal persons.’ |
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85. |
Article 175 is replaced by the following: ‘Article 175 Financial and administrative penalties
Financial or administrative penalties, or both, may be imposed on applicants who have made false declarations or substantial errors, or committed irregularities or fraud, in accordance with the conditions laid down in Article 134b and in proportion to the value of the grants in question. Such financial or administrative penalties, or both, may also be imposed on beneficiaries who have been found in serious breach of their contractual obligations.’ |
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86. |
The following Articles 175a and 175b are inserted: ‘Article 175a Eligibility criteria
1. The eligibility criteria shall be published in the call for proposals. 2. The eligibility criteria shall determine the conditions for participating in a call for proposals. Those criteria shall be established with due regard for the objectives of the action and shall comply with the principles of transparency and non-discrimination. Article 175b Very low value grants
Very low value grants shall be considered to be those grants which are lower than or equal to EUR 5 000.’ |
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87. |
In Article 176(3), the following subparagraph is added: ‘If no supporting documents were requested in the call for proposals and if the authorising officer responsible has doubts about the financial or operational capacity of applicants, he shall request them to provide any appropriate documents.’ |
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88. |
Article 178 is amended as follows:
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89. |
Article 180(2) is amended as follows:
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90. |
The following Article 180a is inserted: ‘Article 180a Forms of grants
1. Community grants in the form referred to in point (a) of Article 108a(1) of the Financial Regulation shall be calculated on the basis of eligible costs, which are defined as costs actually incurred by the beneficiary and subject to a preliminary budget estimate as submitted with the proposal and included in the grant decision or agreement. 2. Lump sums as referred to in point (b) of Article 108a(1) of the Financial Regulation shall cover in global terms certain costs necessary for carrying out an action, or for the annual operation of a beneficiary, in accordance with the terms of the agreement and on the basis of an estimate. 3. Flat-rate financing as referred to in point (c) of Article 108a(1) of the Financial Regulation shall cover specific categories of expenditure which are clearly identified in advance either by applying a percentage fixed in advance or by the application of a standard scale-of-unit cost.’ |
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91. |
Article 181 is replaced by the following: ‘Article 181 Lump sums and flat-rate financing
1. The Commission may, by way of decision, authorise the use of the following:
That decision shall determine the maximum amount for the total of such funding authorised, by grant or type of grant. 2. Where appropriate, lump sums exceeding a unit value of EUR 25 000 shall be authorised in the basic act which shall lay down the conditions of award and the maximum amounts. Those amounts shall be adjusted every two years by the Commission on the basis of statistical data and similar objective means as referred to in Article 165(2). 3. The grant decision or agreement may authorise, in the form of flat-rates, funding of the beneficiary’s indirect costs up to a maximum of 7 % of total eligible direct costs for the action, save where the beneficiary is in receipt of an operating grant financed from the Community budget. The 7 % ceiling may be exceeded by reasoned decision of the Commission. 4. The grant decision or agreement shall contain all necessary provisions in order to verify that the conditions for the award of lump sums or flat-rate financing have been respected.’ |
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92. |
Article 184 is replaced by the following: ‘Article 184 Implementation contracts
1. Without prejudice to the application of Directive 2004/18/EC, where implementation of the assisted actions requires the award of procurement contracts, beneficiaries of grants shall award the contract to the tender offering best value for money, that is to say, to the tender offering the best price-quality ratio, while taking care to avoid any conflict of interests. 2. Where implementation of the assisted actions requires the award of a procurement contract with a value of more than EUR 60 000, the authorising officer responsible may require beneficiaries to abide by special rules in addition to those referred to in paragraph 1. Those special rules shall be based on rules contained in the Financial Regulation and determined with due regard for the value of the contracts concerned, the relative size of the Community contribution in relation to the total cost of the action and the risk. Such special rules shall be included in the grant decision or agreement.’ |
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93. |
The following Article 184a is inserted: ‘Article 184a Financial support to third parties
1. Provided the objectives or results to be obtained are sufficiently detailed in the conditions referred to in Article 120(2)(b) of the Financial Regulation, the margin of discretion may be considered to be exhausted if the grant decision or agreement also specifies:
2. For the purpose of Article 120(2)(c) of the Financial Regulation, the maximum amount of financial support that may be paid to third parties by a beneficiary shall be EUR 100 000, with a maximum of EUR 10 000 per each third party.’ |
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94. |
In Article 185, the following paragraph is added: ‘The report on budgetary and financial management shall be separate from the reports on implementation of the budget referred to in Article 121 of the Financial Regulation.’ |
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95. |
In Article 187, ‘Article 185’ is replaced by ‘Article 121’. |
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96. |
In Article 207(1), ‘Article 185’ is replaced by ‘Article 121’. |
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97. |
In Article 209(1), ‘Article 185’ is replaced by ‘Article 121’. |
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98. |
In Article 210, ‘Article 185’ is replaced by ‘Article 121’. |
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99. |
In Article 219(1), ‘EAGGF Guarantee Section’ is replaced by ‘EAGF’. |
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100. |
In Article 225, ‘Article 185’ is replaced by ‘Article 121’. |
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101. |
In Title I of Part Two, the title is replaced by the following: ‘TITLE I (TITLE II OF PART II OF THE FINANCIAL REGULATION) STRUCTURAL FUNDS, COHESION FUND, EUROPEAN FISHERIES FUND AND EUROPEAN AGRICULTURAL FUND FOR RURAL DEVELOPMENT’ |
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102. |
In Article 228, ‘the Structural Funds and the Cohesion Fund’ is replaced by ‘the Structural Funds, the Cohesion Fund, the European Fisheries Fund and the European Agricultural Fund for Rural Development’. |
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103. |
In Article 229, the following paragraph 7 is added: ‘7. The estimate of the amount receivable, as referred to in Article 160(1a) of the Financial Regulation shall be sent to the accounting officer for registration.’ |
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104. |
Article 232 is amended as follows:
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105. |
The following Article 233a is inserted: ‘Article 233a Automatic decommitment of split commitments used in multi-annual programmes
1. The following elements shall not be included in the calculation of the automatic decommitment provided for in Article 166(3)(a) of the Financial Regulation:
National authorities claiming force majeure pursuant to point (b) of the first subparagraph must demonstrate the direct consequences on the implementation of all or part of the programme. 2. The Commission shall inform the beneficiary countries and the authorities concerned in good time if there is a risk of automatic decommitment. It shall inform them of the amount involved as indicated by the information in its possession. The beneficiary countries shall have two months from receiving this information to agree to the amount in question or to present observations. The Commission shall carry out the automatic decommitment not later than nine months after the timelimits laid down in points (a) and (b) respectively of Article 166(3) of the Financial Regulation. 3. In the event of automatic decommitment, the Community financial contribution to the programmes concerned shall be reduced, for the year in question, by the amount automatically decommited. The beneficiary country shall produce a revised financing plan dividing the reduction of the aid between the priorities and measures if relevant. If it does not do so, the Commission shall reduce the amounts allocated to each priority and measure if relevant pro rata.’ |
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106. |
Article 237 is amended as follows:
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107. |
In Article 240, paragraph 3 is replaced by the following: ‘3. The award notice shall be sent when the contract is signed except where, if still necessary, the contract was declared secret or where the performance of the contract must be accompanied by special security measures, or when the protection of the essential interests of the European Union, or the beneficiary country so requires, and where the publication of the award notice is deemed not to be appropriate.’ |
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108. |
In Article 241(1), the second subparagraph is replaced by the following: ‘Contracts with a value of less than or equal to EUR 10 000 may be awarded on the basis of a single tender.’ |
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109. |
In Article 242(1), the following point (h) is added:
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110. |
Article 243(1) is amended as follows:
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111. |
In Article 244(1), the following points (f), (g) and (h) are added:
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112. |
In Article 245(1), the second subparagraph is replaced by the following: ‘Contracts with a value of less than or equal to EUR 10 000 may be awarded on the basis of a single tender.’ |
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113. |
In the first subparagraph of Article 246(1), the following point (e) is added:
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114. |
Article 253 is amended as follows:
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115. |
Article 258 is replaced by the following: ‘Article 258 Delegations by the institutions to interinstitutional European offices
Each institution shall be responsible for budgetary commitments. The institutions may delegate to the Director of the interinstitutional European office concerned all subsequent acts, in particular legal commitments, validation of expenditure, authorisation of payments and implementation of revenue, and shall set the limits and conditions for such delegation of powers.’ |
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116. |
The following Article 258a is inserted: ‘Article 258a Specific rules for the Office for Official Publications
With regard to the Office for Official Publications (Publications Office), each institution shall decide on its publication policy. The net proceeds from the sale of publications shall be re-used as assigned revenue by the institution which is the author of those publications, in accordance with Article 18 of the Financial Regulation.’ |
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117. |
Article 261 is deleted. |
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118. |
In Part Two, the following Title VI is inserted: ‘TITLE VI (TITLE VII OF PART II OF THE FINANCIAL REGULATION) EXPERTS’ |
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119. |
The following Article 265a is inserted. ‘Article 265a External experts
1. For values below the thresholds laid down in Article 158(1)(a), external experts may be selected on the basis of the procedure laid down in paragraph 2 of this Article for tasks involving in particular the evaluation of proposals and technical assistance. 2. A call for expressions of interest shall be published in particular in the Official Journal of the European Union or the internet site of the institution concerned in order to ensure maximum publicity among potential candidates and with a view to establishing a list of experts. The list drawn up following the call for expressions of interest shall be valid for no more than the duration of a multi-annual programme. Any interested person may submit an application at any time during the period of validity of the list, with the exception of the last three months of that period. 3. External experts shall not appear on the list referred to in paragraph 2 if they are in one of the situations of exclusion referred to in Article 93 of the Financial Regulation. 4. External experts appearing on the list referred to in paragraph 2 shall be selected on the basis of their ability to perform the tasks referred to in paragraph 1 and in accordance with the principles of non-discrimination, equal treatment and absence of conflict of interests.’ |
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120. |
Article 269 is replaced by the following: ‘Article 269 Decentralised management of pre-accession aid
In connection with the pre-accession aid referred to in Council Regulation (EEC) No 3906/89 (*7) and Council Regulation (EC) No 555/2000 (*8), the rules concerning checks laid down in Article 35 shall not affect the decentralised management already in operation with the candidate countries in question. |
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121. |
In Article 271, paragraph 1 is replaced by the following: ‘1. The thresholds and amounts laid down in Articles 54, 67, 119, 126, 128, 129, 130, 135, 151, 152, 164, 172, 173, 175b, 180, 181, 182, 226, 241, 243, 245 and 250 shall be updated every three years in line with movements in the consumer price index in the Community.’ |
Article 2
Public procurement and grant award procedures launched before 1 May 2007 shall continue to be subject to the rules applicable at the time when those procedures were launched.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
It shall apply from 1 May 2007.
However, point (45)(d) of Article 1 shall apply from 1 January 2008 and point (59) of Article 1 shall apply from 1 January 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 April 2007.
For the Commission
Dalia GRYBAUSKAITĖ
Member of the Commission
(1) OJ L 248, 16.9.2002, p. 1. Regulation as amended by Regulation (EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2006, p. 1).
(2) OJ L 357, 31.12.2002, p. 1. Regulation as last amended by Regulation (EC, Euratom) No 1248/2006 (OJ L 227, 19.8.2006, p. 3).