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Document 52023PC0389
Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund
Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund
Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund
COM/2023/389 final
EUROPEAN COMMISSION
Brussels, 10.7.2023
COM(2023) 389 final
2023/0230(NLE)
Proposal for a
COUNCIL DECISION
on the signing, on behalf of the European Union, of the Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund
EXPLANATORY MEMORANDUM
In June 2018, the Commission brought forward a proposal for a Regulation of the European Parliament and of the Council establishing, as part of the Integrated Border Management Fund, the instrument for financial support for border management and visa [COM(2018/473)].
Regulation (EU) 2021/1148 of the European Parliament and of the Council establishing the Instrument for Financial Support for Border Management and Visa Policy for the period 2021-2027 (hereinafter referred to as ‘the Regulation on the Border Management and Visa Instrument (BMVI Regulation)’) was adopted on 7 July 2021.
The purpose of the BMVI Regulation is to express solidarity through financing assistance to those (Member) States that apply the Schengen acquis provisions on external borders. It constitutes a development of the Schengen acquis to which the countries associated to the implementation, application and further development of the Schengen acquis participate (‘Schengen associated countries’ or ‘associated countries’).
The Commission also brought forward a proposal [COM(2018) 375] to establish a framework of common provisions applicable to seven shared management funds, including the BMVI. Regulation (EU) 2021/1060 (hereafter ‘the Common Provisions Regulation’) was adopted on 24 June 2021.
The Swiss Confederation notified on 11 August 2021 its decision to accept the content of the BMVI Regulation and to implement it in its internal legal order. The Commission presents the present proposal prior to having received the Swiss notification on fulfilment of its constitutional requirements to avoid shortening the time of the actual application of the BMVI Regulation in Switzerland. In line with recital 75 of the BMVI Regulation, the conclusion of such arrangement should take place after the country concerned has informed in writing of the fulfilment of all its internal requirements.
Paragraph 6 of Article 7 of the BMVI Regulation provides that ’arrangements’ should be made to specify the nature and modes of the participation in the BMVI of countries associated with the implementation, application and development of the Schengen acquis, in accordance with the relevant provisions of the respective association agreements. These arrangements take the form of agreements concluded by the Union with the Schengen associated countries in accordance with Article 216 TFEU.
The agreements should also define the financial contribution from these countries to the Union budget for the BMVI. The financial contributions should be calculated in accordance with each associated country’s gross domestic product as a percentage of the gross domestic product of all participating states.
By virtue of the Schengen association agreements, the associated countries must fully accept the Union measures, including the BMVI Regulation, which develop or build upon the Schengen acquis.
The Union budget allocated to the BMVI should be implemented in accordance with Regulation (EU, Euratom) 2018/1046 (hereafter ‘the Financial Regulation’). Schengen associated countries must also take the necessary measures to ensure compliance with the provisions relevant for the financial management and control which are laid down in the TFEU and in Union law that derives its legal basis from the TFEU.
Insofar as the Common Provisions Regulation is concerned, not all of its provisions and Annexes are relevant to the BMVI. Moreover, the application of principles laid down in some provisions of the Common Provisions Regulation needs to be adjusted to reflect the status of Schengen associated countries.
The agreements also introduce specific mechanisms for swift adjustments to the agreements, in the event of changes to key Union legislation relevant to the implementation, such as the Financial Regulation and the Common Provisions Regulation.
The agreements should ensure that the mid-term review of the BMVI takes into account the delayed participation of the Schengen associated countries.
For budgetary and financial controls, the Member States are subject to horizontal obligations (e.g. the competence of the Court of Auditors, of the European Anti-Fraud Office (OLAF), of the EPPO and of the Commission), either derived from the Treaty directly or from secondary Union legislation, including the Common Provisions Regulation as mentioned above. These obligations apply to the Member States ipso facto and are therefore not laid down in the BMVI Regulation. Consequently, these obligations need to be extended to the associated countries via the Agreement concerned by the present proposal.
The agreements also contain a provision on European Travel Information and Authorisation System (ETIAS). This is necessary in view of Article 86 of Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226, which specifies that any remaining revenue generated by the ETIAS after covering the costs of its operation and maintenance will be assigned to the Union budget. To apply Article 86 of Regulation (EU) 2018/1240 in an equitable manner to all participating States to that Regulation, the associated countries’ contribution to the thematic facility of the Instrument should be proportionally reduced if and when remaining revenue is assigned to the Union budget.
The Union should conclude agreements with each of the four Schengen associated countries. This proposal concerns the agreement with Switzerland.
1.CONTEXT OF THE PROPOSAL
•Reasons for and objectives of the proposal
The purpose of this proposal is the signature of an agreement between the Union and Switzerland on this country's contribution to the instrument for financial support for Border Management and Visa Policy for the period 2021-2027 and on the supplementary rules necessary for this participation. It concerns the third generation of this kind of arrangement.
•Consistency with existing policy provisions in the policy area
Not applicable.
•Consistency with other Union policies
Not applicable.
2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
•Legal basis
The present proposal for the signature of the Agreement is based on Articles 77(2) and 218(5) of the Treaty on the Functioning of the European Union.
•Subsidiarity (for non-exclusive competence)
In accordance with Article 3(2) of the Treaty on the Functioning of the European Union and as referred to in Article 7(6) of Regulation (EU) No 2021/1148, the proposal falls within exclusive competence of the Union and thus the subsidiarity principle does not apply.
•Proportionality
This proposal is necessary in order to implement the requirement enshrined in Article 7(6) of Regulation (EU) No 2021/1148 whereby arrangements shall be made with countries associated with the implementation, application and development of the Schengen acquis in order to specify the nature and modes of their participation in the Instrument for Financial Support for Border Management and Visa, as part of the Integrated Border Management Fund.
•Choice of the instrument
Not applicable.
3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
•Ex-post evaluations/fitness checks of existing legislation
Not applicable.
•Stakeholder consultations
Not applicable.
•Collection and use of expertise
Not applicable.
•Impact assessment
Not applicable, considering that the proposal is linked to the programme management and aims at signing an international agreement, which was negotiated on the basis of the negotiating directives established by the Council. Switzerland will follow the rules defined in the Regulation establishing the Instrument for Financial Support for Border Management and Visa Policy, and the applicable articles of the Common Provisions Regulation and the Financial Regulation similarly as EU Member States.
•Regulatory fitness and simplification
Not applicable.
•Fundamental rights
Not applicable.
4.BUDGETARY IMPLICATIONS
Article 10 and the Annex of the draft Agreement describe the provisions related to the annual financial contributions of the associated country to the budget of the Integrated Border Management Fund.
5.OTHER ELEMENTS
•Implementation plans and monitoring, evaluation and reporting arrangements
All monitoring, reporting, performance and evaluation requirements set in the Regulation (EU) 2021/1048 (will) apply to Switzerland.
•Explanatory documents (for directives)
Not applicable.
•Detailed explanation of the specific provisions of the proposal
Not needed.
In light of the abovementioned considerations, the Commission proposes that the Council decides that the Agreement be signed on behalf of the Union and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Union.
The Commission has made a separate proposal for a Council Decision on the conclusion of the attached Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund, for the period 2021 to 2027 1 . The Council shall adopt this Decision after obtaining the consent of the European Parliament.
2023/0230 (NLE)
Proposal for a
COUNCIL DECISION
on the signing, on behalf of the European Union, of the Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2), in conjunction with Article 218(5) thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)On 21 February 2022, the Council authorised the Commission to open negotiations 2 with Iceland, the Kingdom of Norway, the Swiss Confederation and the Principality of Liechtenstein for the arrangements on the financial contributions of the associated countries and the supplementary rules necessary for their participation, including provisions ensuring the protection of the Union's financial interests and the powers of audit of the Court of Auditors, to be concluded pursuant Regulation (EU) 2021/1148 of the European Parliament and of the Council 3 . The negotiations with the Swiss Confederation were successfully concluded by the initialling of the Agreement on 14 February 2023.
(2)Regulation (EU) 2021/1148 builds upon the Schengen acquis, and Denmark, in accordance with Article 4 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, has decided to implement that Regulation in its national law. In accordance with Articles 1 and 2 of Protocol No 22, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.
(3)This Decision constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC 4 . Ireland is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.
(4)Therefore, the Agreement should be signed on behalf of the Union, subject to its conclusion at a later date,
HAS ADOPTED THIS DECISION:
Article 1
The signing of the Agreement between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for borders management and visa policy, as part of the Integrated Border Management Fund, for the period 2021 to 2027 is hereby approved on behalf of the European Union, subject to the conclusion of the said Agreement.
The text of the Agreement to be signed is attached to this Decision.
Article 2
The Council Secretariat General shall establish the instrument of full powers to sign the Agreement, subject to its conclusion, for the person(s) indicated by the Commission.
Article 3
This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 10.7.2023
COM(2023) 389 final
ANNEX
to the
Proposal for a COUNCIL DECISION
on the signing, on behalf of the European Union, of the Agreement
between the European Union and the Swiss Confederation on supplementary rules in relation to the instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund
ANNEX
THE EUROPEAN UNION, hereinafter referred to as 'the Union'
and
THE SWISS CONFEDERATION, hereinafter referred to as 'Switzerland',
Hereinafter referred to jointly as 'the Parties'
HAVING REGARD to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis 1 ('Association Agreement with Switzerland'),
WHEREAS:
(1)The Union established the instrument for financial support for border management and visa policy (‘the BMVI’), by means of Regulation (EU) 2021/1148 of the European Parliament and of the Council 2 (‘the BMVI Regulation’), as part of the Integrated Border Management Fund.
(2)The BMVI Regulation constitutes a development of the Schengen acquis within the meaning of the Association Agreement with Switzerland.
(3)The instrument for financial support for border management and visa policy, as part of the Integrated Border Management Fund, constitutes a specific instrument in the context of the Schengen acquis designed to ensure strong and effective European integrated border management at the external borders, while safeguarding the free movement of persons, in full compliance with the Member States’ and associated countries’ commitments on fundamental rights, and to support a uniform implementation and modernisation of the common visa policy, thereby contributing to guaranteeing a high level of security in Member States and associated countries.
(4)Article 9(2) of the BMVI Regulation provides that the amount referred to in point (a) of Article 7(3) and the additional resources provided under that Regulation shall be implemented under shared management in accordance with Article 63 of Regulation (EU, Euratom) 2018/1046 3 (‘the Financial Regulation’) and Regulation (EU) 2021/1060 4 (‘the CPR’).
(5)Article 7(6) of the BMVI Regulation provides that arrangements shall be made to specify the nature and modalities of the participation in the BMVI by countries associated with the implementation, application and development of the Schengen acquis.
(6)The BMVI offers the opportunity for implementation of actions in shared management, direct and indirect management modes, and this Agreement should make it possible that the implementation in any of these methods can be realised in Switzerland in accordance with the principles and rules of the EU on financial management and control.
(7)In light of the sui generis nature of the Schengen acquis and the importance of its uniform application for the integrity of the Schengen area, all rules applicable for the management of national programmes should apply in Switzerland in the same way as for Member States.
(8)To facilitate the calculation and use of the annual contributions due by Switzerland to the BMVI, its contributions for the period 2021-2027 should be paid in five annual instalments from 2023 to 2027. From 2023 to 2025 the annual contributions are set in fixed amounts while the contribution due for the years 2026 and 2027 should be determined in 2026 on the basis of the nominal gross domestic product of all States participating in the BMVI taking into account the payments effectively made.
(9)In line with the principle of equal treatment, Switzerland should benefit from any surplus revenue as defined in Article 86 of Regulation (EU) 2018/1240 of the European Parliament and of the Council (‘ETIAS Regulation’) 5 . Within the framework of the BMVI, the financial contributions due by Switzerland to the BMVI are proportionally reduced.
(10)The processing of personal data by Switzerland when implementing this Agreement is to be governed by its national law on data protection.
(11)Switzerland is not bound by the Charter of Fundamental Rights of the European Union, though is a party to and thus observes the rights and principles recognised by the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and in the Universal Declaration of Human Rights. References contained in the BMVI and CPR Regulations and this Agreement to the EU Charter on Fundamental Rights should accordingly be understood as references to the European Convention on Human Rights and to the Protocols ratified by Switzerland and Article 14 of the Universal Declaration of Human Rights.
(12)Switzerland, not being bound by the references to the Union environmental acquis, should implement the BMVI and this Agreement in line with the Paris Agreement and UN Sustainable Development Goals.
HAVE AGREED AS FOLLOWS:
Article 1
Scope
This Agreement sets out the supplementary rules necessary for the participation of Switzerland in the Instrument for Financial Support for Border Management and Visa Policy (the ‘BMVI’) as part of the Integrated Border Management Fund for the programming period 2021 to 2027 in accordance with Article 7(6) of Regulation (EU) 2021/1148 (‘the BMVI Regulation’).
Article 2
Financial management and control
1.In implementing the BMVI Regulation, Switzerland shall take the necessary measures to ensure compliance with the provisions relevant for the financial management and control, which are laid down in the Treaty on the Functioning of the European Union ('TFEU') and in Union law that derives its legal basis from the TFEU.
The provisions referred to in the first subparagraph are the following:
(a)Articles 33, 36, 61, 63, 97-105, 106, 115-116, 125-129, 135 -144, 154 and 155 (1), (2), (4), (6) and (7), 180, 254-257 of Regulation (EU, Euratom) 2018/1046 ('the Financial Regulation');
(b) Council Regulation (Euratom, EC) No 2185/96 6 ;
(c)Regulation (EC, Euratom) No 2988/95 7 and Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council 8 ;
(d)Articles 1 - 4, 7 - 9, 15 - 17, 21 - 24, 35 - 42, 44 - 107, 113 - 115 and 119 and the relevant BMVI Annexes of Regulation (EU) 2021/1060 ('the CPR').
2.In case of any amendment, repeal, replacement or recast of the Financial Regulation relevant to the BMVI:
(a)The European Commission shall inform Switzerland thereof at the earliest occasion, and, at the request of Switzerland, provide explanations on the amendment, repeal, replacement or recast.
(b)Notwithstanding Article 14(4), the European Commission (on behalf of the Union) and Switzerland may determine by common agreement any amendment of paragraph 1 subparagraph 2 (a) of this Article necessary to take into account such amendment, repeal, replacement or recast of the Financial Regulation.
3.Switzerland shall apply and, where necessary, implement
(a)any legal act of the European Parliament and the Council modifying the CPR, insofar as it concerns provisions relating to the application of the BMVI Regulation;
(b) any implementing or delegated act adopted by the European Commission on the basis of the CPR, insofar as it concerns provisions relating to the application of the BMVI Regulation.
To allow Switzerland to do so, the European Commission shall
(a)inform Switzerland of all proposals for any act referred to under subparagraph 1, points (a) and (b) at the earliest occasion, and, at the request of Switzerland, provide explanations on the proposals;
(b)notify Switzerland of all acts referred to under subparagraph 1, points (a) or (b) as soon as possible.
Switzerland may inform the EU of its position concerning the proposals as soon as possible which shall be given due consideration by the Union.
Switzerland shall, as soon as possible and in any event not later than 90 days after notification, notify the EU of its decision to accept the acts notified by the EU to Switzerland under subparagraph 1, points (a) or (b).
4.Legal entities established in Switzerland may participate in activities financed from the instrument under conditions equivalent to those applicable to legal entities established in the Union.
Article 3
Specific application of provisions of the CPR Regulation mentioned in Article 2(1)(d)
In ensuring compliance by Switzerland with the provisions referred to in Article 2(1)(d):
(a)references to the EU Charter on Fundamental Rights shall be understood as references to the European Convention on Human Rights and the Protocols as ratified by Switzerland and Article 14 of the Universal Declaration of Human Rights;
(b)Switzerland, not being bound by references to the Union environmental acquis, acknowledges to implement the BMVI in line with Paris Agreement and UN Sustainable Development Goals.
Article 4
Specific application of provisions of the BMVI Regulation
1.The Commission shall allocate to Switzerland an additional amount referred to in Article 10(1)(b) of the BMVI Regulation provided that the conditions of Article 14(2) of the BMVI Regulation are complied with 2 years after the start of the participation of Switzerland in the instrument.
2.Deadlines referring to the entry into force of the BMVI Regulation are to be understood as the date as of which this Agreement enters into force.
Article 5
Enforcement
1.Decisions taken by the Commission which impose a pecuniary obligation on persons other than States shall be enforceable in the territory of Switzerland.
Enforcement shall be governed by the rules of civil procedure in force in Switzerland. The order for its enforcement shall be appended to the decision by the national authority without any formality other than the verification of the authenticity of the decision.
The government of Switzerland shall designate a national authority for this purpose and shall make known to the Commission such designation, which shall in turn inform the Court of Justice of the European Union.
Once these formalities have been completed on application by the Commission, the Commission may proceed to enforcement in accordance with Swiss law, by bringing the matter directly before the competent authority.
Enforcement may be suspended only by a decision of the Court of Justice of the European Union. However, the courts of Switzerland shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.
2.Judgments of the Court of Justice of the European Union delivered in application of an arbitration clause contained in a contract or grant agreement within the scope of this Agreement shall be enforceable in Switzerland in the same manner as European Commission decisions referred to in paragraph 1.
Article 6
Protection of the financial interests of the Union
1.Switzerland shall:
(a)counter fraud and any other illegal activities affecting the financial interests of the Union through measures which shall act as a deterrent and be such as to afford effective protection in Switzerland;
(b)take the same measures to counter fraud and any other illegal activities affecting the financial interests of the Union as it takes to protect its own financial interests; and
(c)coordinate its action aimed at protecting the financial interests of the Union with the Member States and the European Commission.
2.The competent Swiss authorities shall inform the European Commission or the European Anti-Fraud Office ('OLAF') without delay of any fact or suspicion which has come to their notice relating to an irregularity, fraud or other illegal activity affecting the financial interests of the Union. They shall also inform the European Public Prosecutor's Office ('EPPO') when those facts or suspicions concern a case that may fall within the competence of EPPO.
Switzerland and the Union shall ensure effective mutual assistance in cases where there are investigations or judicial proceedings by the competent authorities of the Union or Switzerland, in accordance with the applicable legal framework, concerning the protection of each other's financial interests within the scope of this Agreement.
3.Switzerland shall adopt equivalent measures to those adopted by the Union in accordance with Article 325(4) of the TFEU that are in force at the date of signature of this Agreement.
4.The exchange of information between the European Commission, OLAF, the EPPO, the Court of Auditors and the Swiss competent authorities shall take place having due regard to the confidentiality requirements. Personal data included in the exchange of information shall be protected in accordance with applicable rules.
Article 7
Reviews and audits by the Union
1.The Union shall have the right to conduct technical, financial or other types of reviews and audits on the premises of any natural person residing in or any legal entity established in Switzerland and receiving Union funding from the BMVI, as well as any third party involved in the implementation of Union funding from the BMVI residing or established in Switzerland. Such review and audits may be carried out by the European Commission, OLAF, and the Court of Auditors.
2.The authorities of Switzerland shall facilitate the reviews and audits which may, if those authorities so wish, be carried out jointly with them.
3.The reviews and audits may be carried out, also after the suspension of the rights of legal entities established in Switzerland derived from the application of this Agreement, or the termination of this Agreement, on any legal commitment implementing the Union budget entered before the date on which the suspension or termination takes effect.
Article 8
On-the spot checks and inspections
OLAF shall be authorised to carry out on-the spot checks and inspections in the territory of Switzerland as regards the BMVI in accordance with the terms and conditions laid down in Regulation (Euratom, EC) No 2185/96 as supplemented by Regulation (EU) No 883/2013.
The authorities of Switzerland shall facilitate on-the-spot checks and inspections which may, if those authorities so wish, be carried out jointly with them.
Article 9
Court of Auditors
The competence of the Court of Auditors set out in Article 287(1) and (2) of the TFEU shall extend to the revenue and expenditure related to the implementation of the BMVI Regulation by Switzerland, including in the territory of Switzerland.
In accordance with the requirements laid down in Article 287(3) of the TFEU and Part One, Title XIV, Chapter 1 of the Financial Regulation, the Court of Auditors shall have the possibility to perform audits on the premises of any body which manages revenue or expenditure on behalf of the Union in the territory of Switzerland as regards the BMVI, including on the premises of any natural or legal person in receipt of payments from the budget.
In Switzerland, audits by the Court of Auditors shall be carried out in liaison with national audit bodies or, if these do not have the necessary powers, with the competent national departments. The Court of Auditors and the national audit bodies of Switzerland shall cooperate in a spirit of trust while maintaining their independence. These bodies or departments shall inform the Court of Auditors whether they intend to take part in the audit.
Article 10
Financial contributions
1.Switzerland shall make annual payments to the budget of the BMVI in accordance with the formula described in Annex I.
2.Each year, the Commission may use up to 0.75% of the payments made by Switzerland to finance the administrative expenditure for staff or external staff necessary for supporting the implementation by Switzerland of the BMVI Regulation and this Agreement.
3.After deduction of the administrative expenditure referred to in paragraph 2, the remaining amount of the annual payments shall be assigned as follows:
(a)70% to the implementation of national programmes of the Member States and Associated States;
(b)30% to the thematic facility referred to in Article 8 of the BMVI Regulation.
4.An amount equivalent to the Swiss annual payments shall be used to contribute to a strong and effective European integrated border management at the external borders.
5.The Union shall provide Switzerland with information in relation to its financial participation as included in the budgetary, accounting, performance and evaluation related information provided to the Union budgetary and discharge authorities concerning the Instrument.
Article 11
ETIAS
The share of the ETIAS revenues potentially remaining after covering the costs of the operation and maintenance of ETIAS, as referred to in Article 86 of the ETIAS Regulation (the “surplus”), shall be deducted from the final financial contribution of Switzerland to the BMVI, in accordance with the formula described in Annex II.
Article 12
Confidentiality
Information communicated or acquired in any form whatsoever pursuant to this Agreement shall be covered by professional secrecy and protected in the same way as similar information is protected by the provisions applicable to the Union institutions and by the laws of Switzerland. Such information shall not be communicated to persons other than those within the Union institutions, in the Member States or in Switzerland whose functions require them to know it, nor may it be used for purposes other than to ensure effective protection of the financial interests of the Parties.
Article 13
Public Procurement
1.References to Union legislation on public procurement in the BMVI Regulation and the CPR shall be understood as references to Swiss national law on public procurement and Annex 4 to the Agreement Establishing the World Trade Organization (Agreement on Government Procurement) 9 and the Agreement between the European Community and the Swiss Confederation on certain aspects of government procurement 10 .
2.Switzerland shall make available to the Commission its public procurement procedures used.
Article 14
Entry into force and duration
1.The Parties shall approve this Agreement in accordance with their own procedures. They shall notify each other of the completion of those procedures.
2.This Agreement shall enter into force on the first day of the first month following the day of the last notification referred to in paragraph 1.
3.To ensure continuity in providing support in the relevant policy area and to allow implementation to start from the beginning of the 2021-2027 multiannual financial framework, the measures covered by the BMVI Regulation can start before entry into force of the Agreement and at the earliest as of 1 January 2021.
4.This Agreement may only be amended in writing by common consent of the Parties. The entry into force of the amendments will follow the same procedure as that applicable for the entry into force of this Agreement.
5.Notwithstanding paragraph 4 of this Article, the Mixed Committee established under Article 3 of the Association Agreement with Switzerland shall be empowered to negotiate and adopt the necessary amendments to Article 2(1)(a) in case of notification in accordance with Article 16(2) because no agreement has been reached pursuant to Article 2(2).
Article 15
Dispute settlement
Where a dispute arises with regard to the application of this Agreement, the procedure set out in Article 10 of the Association Agreement with Switzerland shall apply.
Article 16
Suspension
1.The rights of legal entities established in Switzerland derived from the application of this Agreement may be suspended in line with paragraphs 5-7 of this Article by the Union, in case (a) of full or partial non-payment of the financial contribution due by Switzerland; (b) of non-compliance with Article 2(3), including a decision not to accept an act notified under that provision; or (c) where the Financial Regulation is the subject of an amendment, a repeal, a replacement or a recast relevant to the BMVI and no agreement has been reached pursuant to Article 2(2) within 30 days of the entry into force of the amendment, repeal, replacement or recast of the Financial Regulation.
2.The Union shall notify Switzerland of its intention to suspend the rights of legal entities established in Switzerland derived from the application of this Agreement and, in this case, the matter shall be officially entered on the agenda of the Mixed Committee established under Article 3 of the Association Agreement with Switzerland.
3.The Mixed Committee shall be convened and the meeting shall take place within 30 days after the notification referred to in paragraph 2. The Mixed Committee shall have 90 days to settle the matter, counting from the date of adoption of the agenda on which the matter has been placed according to paragraph 2. Where the matter cannot be settled by the Mixed Committee within the 90-day deadline, this deadline shall be extended by 30 days with a view to reaching a final settlement.
4.Where the matter cannot be settled by the Mixed Committee within the deadline provided for in paragraph 3, the Union may suspend the rights of legal entities established in Switzerland derived from the application of this Agreement as referred to in paragraphs 5-7.
5.In case of suspension, legal entities established in Switzerland shall not be eligible to participate in award procedures not yet completed when the suspension takes effect. An award procedure shall be considered completed when legal commitments have been entered into as a result of that procedure.
6.The suspension does not affect the legal commitments entered into with the legal entities established in Switzerland before the suspension took effect. This Agreement shall continue to apply to such legal commitments.
7.Any operation necessary to protect the financial interest of the Union and to ensure the fulfilment of financial obligations stemming from commitments entered into under this Agreement prior to the suspension, may be carried out also after the suspension.
8.The Union shall immediately notify Switzerland once the amount of the financial or operational contribution due has been received by it, when the non-compliance with Article 2(3) has ended or when the matter related to the Financial Regulation is settled. The suspension shall be lifted with an immediate effect upon this notification.
9.As of the date when the suspension is lifted, legal entities of Switzerland shall be again eligible in award procedures launched after this date and in award procedures launched before this date, for which the deadlines for submission of applications has not expired.
Article 17
Termination
1.Either the Union or Switzerland may terminate this Agreement by notifying the other Party of its decision. The Agreement shall cease to apply 3 months after the date of such notification.
2.This Agreement shall be terminated automatically when the Association Agreement with Switzerland is terminated in accordance with Article 7(4), Article 10(3) or Article 17 of the Association Agreement with Switzerland.
3.Where this Agreement is terminated in accordance with paragraph 1 or paragraph 2, the Parties agree that operations where the legal commitments were entered into after the entry into force of this Agreement, and before this Agreement is terminated shall continue until their completion under the conditions laid down in this Agreement.
4.Any operation necessary to protect the financial interest of the Union and to ensure the fulfilment of financial obligations stemming from commitments entered into under this Agreement prior to its termination, may be carried out also after the termination of this Agreement.
5.The Parties shall settle by common consent any other consequences of termination of this Agreement.
Article 18
Languages
This Agreement shall be drawn up in a duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, Gaelic, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish languages, each of those texts being equally authentic.
ANNEX I
Formula to calculate the annual financial contributions for the years 2021 to 2027 and payment details
1.The calculation of the financial contribution takes into account the amount referred to in Article 7(2) of the BMVI Regulation.
2.For the years 2023 to 2025 Switzerland shall make annual payments to the budget of the BMVI in accordance with the following table:
(All amounts in EUR)
|
2023 |
2024 |
2025 |
|
|
Switzerland |
55 805 213 |
55 805 213 |
55 805 213 |
The financial contributions referred to in this Article shall be due by Switzerland irrespective of the date of approval of its national programme referred to Article 23 of the CPR.
3.The financial contribution of Switzerland to the BMVI is calculated as follows for the years 2026 and 2027:
For each single year from 2020 to 2024, the figures of the nominal Gross Domestic Product (GDP) of Switzerland available as of 31 March 2026 on Eurostat (GDP at current prices) shall be divided by the sum of the nominal GDP figures of all the States participating in the BMVI for each respective year. The average of the obtained five percentages for the years 2020 to 2024 shall be applied to
·the sum of the commitment appropriations from adopted budget and subsequent amendments or transfers as committed at the end of each year for the BMVI for the years 2021 to 2025,
·the annual commitment appropriations from adopted budget for the BMVI for the year 2026 made at the beginning of the year 2026 and
·the annual commitment appropriation according to the budget for the BMVI for the year 2027 as included in the draft General budget of the European Union for the 2027 financial year adopted by the Commission
to obtain the total amount to be paid by Switzerland over the whole period of implementation of the BMVI.
From this amount, the annual payments effectively made by Switzerland in accordance with paragraph 2 of this Annex shall be subtracted to obtain the total amount of its contributions for the years 2026 and 2027. Half of this amount shall be paid in 2026 and the other half in 2027.
4.The financial contribution shall be paid in euro, and the calculation of amounts due or to be received shall be expressed in euro.
5.Switzerland shall pay its respective financial contribution no later than 45 days after receiving the debit note. Any delay in payment of the contribution shall give rise to the payment of default interest on the outstanding amount from the due date. The interest rate shall be the rate applied by the European Central Bank to its main refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the months in which the deadline falls, increased by 3.5 percentage points.
ANNEX II
Formula to calculate the Swiss share of the revenues potentially remaining as defined in Article 86 of the ETIAS Regulation
For each financial year that there is a surplus generated as defined in Article 86 of the ETIAS Regulation and ending with the 2026 financial year, the figures of the nominal Gross Domestic Product (GDP) of Switzerland available as of 31 March on Eurostat (GDP at current prices) shall be divided by the sum of the nominal GDP figures of all the States participating in ETIAS for the respective year.
The average of the obtained percentages shall be applied to total surpluses generated. The 2027 Swiss financial contribution earmarked for the Thematic facility shall be reduced by the resulting amount.
