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Document L:2020:437:FULL

Official Journal of the European Union, L 437, 28 December 2020


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ISSN 1977-0677

Official Journal

of the European Union

L 437

European flag  

English edition

Legislation

Volume 63
28 December 2020


Contents

 

I   Legislative acts

page

 

 

REGULATIONS

 

*

Regulation (EU) 2020/2220 of the European Parliament and of the Council of 23 December 2020 laying down certain transitional provisions for support from the European Agricultural Fund for Rural Development (EAFRD) and from the European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and amending Regulations (EU) No 1305/2013, (EU) No 1306/2013 and (EU) No 1307/2013 as regards resources and application in the years 2021 and 2022 and Regulation (EU) No 1308/2013 as regards resources and the distribution of such support in respect of the years 2021 and 2022

1

 

*

Regulation (EU) 2020/2221 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU) No 1303/2013 as regards additional resources and implementing arrangements to provide assistance for fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and for preparing a green, digital and resilient recovery of the economy (REACT-EU)

30

 

*

Regulation (EU) 2020/2222 of the European Parliament and of the Council of 23 December 2020 on certain aspects of railway safety and connectivity with regard to the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link ( 1 )

43

 

*

Regulation (EU, Euratom) 2020/2223 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations

49

 

*

Regulation (EU) 2020/2224 of the European Parliament and of the Council of 23 December 2020 on common rules ensuring basic road freight and road passenger connectivity following the end of the transition period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ( 1 )

74

 

*

Regulation (EU) 2020/2225 of the European Parliament and of the Council of 23 December 2020 on common rules ensuring basic air connectivity following the end of the transition period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ( 1 )

86

 

*

Regulation (EU) 2020/2226 of the European Parliament and of the Council of 23 December 2020 on certain aspects of aviation safety with regard to the end of the transition period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ( 1 )

97

 

*

Regulation (EU) 2020/2227 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU) 2017/2403 as regards fishing authorisations for Union fishing vessels in United Kingdom waters and fishing operations of United Kingdom fishing vessels in Union waters

102

 

 

DECISIONS

 

*

Decision (EU) 2020/2228 of the European Parliament and of the Council of 23 December 2020 on a European Year of Rail (2021)

108

 

*

Decision (EU) 2020/2229 of the European Parliament and of the Council of 23 December 2020 amending Decision No 445/2014/EU establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 ( 1 )

116

 

 

II   Non-legislative acts

 

 

REGULATIONS

 

*

Council Regulation (EU) 2020/2230 of 18 December 2020 amending Regulation (EU) No 1388/2013 opening and providing for the management of autonomous tariff quotas of the Union for certain agricultural and industrial products

120

 

*

Council Regulation (EU) 2020/2231 of 18 December 2020 amending Regulation (EU) No 1387/2013 suspending the autonomous Common Customs Tariff duties on certain agricultural and industrial products

135

 

 

DECISIONS

 

*

Council Decision (EU) 2020/2232 of 22 December 2020 on the position to be taken on behalf of the European Union within the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as regards the adoption of a decision establishing a list of 25 persons who are willing and able to serve as members of an arbitration panel under the Agreement and on a reserve list of persons who are willing and able to serve as Union members of an arbitration panel under the Agreement

182

 

*

Council Decision (EU) 2020/2233 of 23 December 2020 concerning the commitment of the funds stemming from reflows under the ACP Investment Facility from operations under the 9th, 10th and 11th European Development Funds

188

 


 

(1)   Text with EEA relevance.

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.


I Legislative acts

REGULATIONS

28.12.2020   

EN

Official Journal of the European Union

L 437/1


REGULATION (EU) 2020/2220 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

laying down certain transitional provisions for support from the European Agricultural Fund for Rural Development (EAFRD) and from the European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and amending Regulations (EU) No 1305/2013, (EU) No 1306/2013 and (EU) No 1307/2013 as regards resources and application in the years 2021 and 2022 and Regulation (EU) No 1308/2013 as regards resources and the distribution of such support in respect of the years 2021 and 2022

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Having regard to the opinion of the Court of Auditors (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1)

The Commission’s legislative proposals on the common agricultural policy (CAP) beyond 2020 aimed to establish the strong Union framework essential to ensure that the CAP remains a common policy with a level playing field, while also giving Member States greater responsibility as regards how they meet the objectives and achieve the targets set. Accordingly, Member States are to draw up CAP strategic plans and to implement them after their approval by the Commission.

(2)

The legislative procedure regarding the Commission’s legislative proposals on the CAP beyond 2020 has not been concluded in time to allow Member States and the Commission to prepare all elements necessary to apply the new legal framework and the CAP strategic plans as from 1 January 2021, as initially proposed by the Commission. That delay has created uncertainty and risks for farmers in the Union and the entire Union agriculture sector. In order to alleviate that uncertainty and to maintain the vitality of rural areas and regions, as well as to contribute to environmental sustainability, this Regulation should provide for the continued application of the rules of the current CAP framework covering the period 2014 to 2020 (‘current CAP framework’) and for uninterrupted payments to farmers and other beneficiaries, and thus provide predictability and stability during the transitional period in the years 2021 and 2022 (‘transitional period’) until the date of application of the new legal framework covering the period starting on 1 January 2023 (‘new legal framework’).

(3)

Since the legislative procedure regarding the Commission’s legislative proposals on CAP beyond 2020 still needs to be concluded and the CAP strategic plans are still to be developed by Member States, and the stakeholders need to be consulted, the current CAP framework should continue to apply for the additional period of two years. The aim of the transitional period is to facilitate a smooth transition for beneficiaries to a new programming period and to provide for the possibility to take into account the Commission’s Communication of 11 December 2019 on the European Green Deal (‘European Green Deal’).

(4)

In order to ensure that support can be granted to farmers and other beneficiaries from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) in the years 2021 and 2022, the Union should continue to grant such support during the transitional period under the conditions of the current CAP framework. The current CAP framework was established, in particular, by Regulations (EU) No 1303/2013 (4), (EU) No 1305/2013 (5), (EU) No 1306/2013 (6), (EU) No 1307/2013 (7) and (EU) No 1308/2013 (8) of the European Parliament and of the Council.

(5)

This Regulation should provide Member States with sufficient time to prepare their respective CAP strategic plans, as well as facilitate the creation of administrative structures necessary for successful implementation of the new legal framework, in particular by allowing for an increase in technical assistance. All CAP strategic plans should be ready to enter into force once the transitional period ends in order to provide much-needed stability and certainty for the farming sector.

(6)

In light of the fact that the Union should continue to support rural development throughout the transitional period, Member States should have the possibility to finance their extended rural development programmes from the corresponding budget allocation for the years 2021 and 2022. The extended programmes should ensure that at least the same overall share of the EAFRD contribution is reserved for the measures referred to in Article 59(6) of Regulation (EU) No 1305/2013, in line with the new ambitions set out in the European Green Deal.

(7)

Regulation (EU) No 1303/2013 lays down common rules applicable to the EAFRD and to other funds which operate under a common framework. That Regulation should continue to apply to programmes supported by the EAFRD for the 2014–2020 programming period and programming years 2021 and 2022.

(8)

The deadlines laid down in Regulation (EU) No 1303/2013 in respect of implementation reports, annual review meetings, ex-post evaluations and synthesis reports, eligibility of expenditure and de-commitment as well as budget commitments are limited to the 2014-2020 programming period. Those deadlines should be adapted in order to take account of the extended duration of the period during which programmes relating to support from the EAFRD should be implemented.

(9)

Regulation (EU) No 1310/2013 of the European Parliament and of the Council (9) and Commission Delegated Regulation (EU) No 807/2014 (10) provide that expenditure for certain long-term commitments undertaken pursuant to certain regulations that granted support for rural development before Regulation (EU) No 1305/2013 was applicable, should continue, under certain conditions, to be paid by the EAFRD in the 2014-2020 programming period. That expenditure should also continue to be eligible for the duration of their respective legal commitment under the same conditions in the programming years 2021 and 2022. For reasons of legal clarity and certainty, it should also be made clear that the legal commitments undertaken under earlier measures that correspond to the measures of Regulation (EU) No 1305/2013 to which the integrated administration and control system applies, should be subject to that integrated administration and control system and that payments related to those legal commitments should be made within the period from 1 December to 30 June of the following calendar year.

(10)

The EAFRD should be able to support the costs of capacity-building and preparatory actions supporting the design and the future implementation of the community-led local development strategies under the new legal framework.

(11)

In 2015, at the allocation of payment entitlements or at the recalculation of payment entitlements for Member States keeping existing entitlements under Regulation (EU) No 1307/2013, some Member States made errors when establishing the number or value of payment entitlements. Many of those errors, even when they occurred in respect of a single farmer, influence the value of the payment entitlements for all farmers and for all years. Some Member States also made errors after 2015, when allocating entitlements from the reserve, for example in the calculation of the average value. Such non-compliance is normally subject to financial correction until corrective measures are taken by the Member State concerned. In the light of the time that has elapsed since the first allocation, the efforts made by Member States to establish, and where relevant, correct entitlements, and also in the interest of legal certainty, the number and value of payment entitlements should be considered legal and regular with effect from a certain date.

(12)

Under Article 24(6) of Regulation (EU) No 1307/2013, Member States were given the option to apply for the allocation of payment entitlements a reduction coefficient to eligible hectares consisting of permanent grassland located in areas with difficult climate conditions. Alpine pastures are often managed collectively and therefore areas are assigned on a yearly basis, thus creating a significant degree of uncertainty amongst farmers in the Member States concerned. The implementation of that system has proven to be particularly complex especially with regard to the exact definition of the areas concerned. Since the value of payment entitlements in areas where the reduction coefficient is not applied depends on the sum of the payment entitlements in the designated areas, that uncertainty subsequently affects all farmers in the Member States concerned. In order to stabilise the system currently applied in those Member States, and with a view to ensuring legal certainty for all farmers in the Member States concerned as early as possible, the Member States concerned should be able to consider legal and regular the value and number of all entitlements allocated to all farmers before 1 January 2020. The value of those entitlements should, without prejudice to any legal remedies open to individual beneficiaries, be the value for calendar year 2019 valid on 31 December 2019.

(13)

The confirmation of payment entitlements does not represent an exemption from Member States’ responsibility under the shared management of the EAGF to ensure the protection of the Union budget from irregular expenditure. Hence, the confirmation of the payment entitlements allocated to farmers before 1 January 2021 or, by way of derogation, before 1 January 2020, should not prejudice the Commission’s power to take decisions referred to in Article 52 of Regulation (EU) No 1306/2013 in relation to irregular payments granted in respect of any calendar year up to 2020 inclusive or, by way of derogation, up to 2019 inclusive, resulting from errors in the number or value of those payment entitlements.

(14)

In light of the fact that the new legal framework for the CAP has not yet been adopted, it should be made clear that transitional arrangements should be laid down to regulate the transition from existing support schemes granted on a multiannual basis to the new legal framework.

(15)

In order to limit a significant carry-over of commitments from the current programming period for rural development to the CAP strategic plans, the duration of new multiannual commitments in relation to agri-environment-climate, organic farming and animal welfare should, as a general rule, be limited to a period of a maximum of three years. From 2022, the extension of existing commitments should be limited to one year.

(16)

Article 31(5) of Regulation (EU) No 1305/2013 provided for transitional arrangements to facilitate the phasing-out of payments in areas that, because of the application of new delimitation criteria, would no longer be considered areas facing natural constraints. Such payments were to be paid until 2020 and for a maximum period of four years. Regulation (EU) 2017/2393 of the European Parliament and of the Council (11) extended the initial deadline for the new delimitation of such areas to 2019. For farmers in the Member States setting the delimitation in 2018 and 2019, phasing-out of payments could not reach the maximum of four years. In order to continue the phasing-out of payments, Member States should be allowed to continue paying them in the years 2021 and 2022, where applicable. In order to ensure an adequate level of payments per hectare, in accordance with Article 31(5) of Regulation (EU) No 1305/2013, the level of payments in the years 2021 and 2022 should be fixed at EUR 25 per hectare.

(17)

Since farmers are exposed to increasing economic and environmental risks as a consequence of climate change and increased price volatility, Regulation (EU) No 1305/2013 provides for a risk management measure to assist farmers in addressing those risks. That measure includes financial contributions to mutual funds and an income stabilisation tool. Specific conditions were provided for the granting of support under that measure in order to ensure that farmers receive equal treatment across the Union, competition is not distorted and the international obligations of the Union are complied with. In order to further promote the use of that measure to farmers of all sectors, Member States should be provided with the possibility to reduce the threshold of 30 % that triggers the compensation of farmers for the drop in production or income applicable to the respective tool, however to not lower than 20 %.

(18)

Farmers and rural businesses have been affected by the consequences of the COVID-19 outbreak in an unprecedented manner. The prolongation of extensive restrictions on movement put in place in the Member States, as well as mandatory closures of shops, outdoor markets, restaurants and other hospitality establishments, have created economic disruption in the agricultural sector and rural communities and have led to liquidity and cash-flow problems for farmers and for small businesses active in the processing, marketing or development of agricultural products. In order to respond to the impact of the crisis arising from the COVID-19 outbreak, the duration of the measure referred to in Article 39b of Regulation (EU) No 1305/2013 should be extended to address the ongoing liquidity problems that put at risk the continuity of farming activities and of small businesses active in the processing, marketing or development of agricultural products. Support for that measure should be financed by up to 2 % of the EAFRD funds allocated to Member States in the programming period 2014-2020.

(19)

In order to avoid a situation in which funds for community-led local development in the programming years 2021 and 2022 are unspent, Member States that make use of the possibility to transfer amounts from direct payments to rural development should be able to apply the 5 %, and in the case of Croatia 2,5 %, minimum allocation for community-led local development only to the EAFRD contribution to the rural development extended to 31 December 2022 calculated before the transfer of amounts from direct payment has been made.

(20)

In accordance with Council Regulation (EU) 2020/2094 (12) establishing a European Union Recovery Instrument (‘EURI’) to support the recovery in the aftermath of the COVID-19 crisis (‘EURI Regulation’), additional resources should be made available for the years 2021 and 2022 to address the impact of the COVID-19 crisis and its consequences for the Union agricultural sector and rural areas.

(21)

Given the unprecedented challenges the Union agricultural sector and rural areas are faced with because of the COVID-19 crisis, the additional resources provided by the EURI should be used to fund measures under Regulation (EU) No 1305/2013, paving the way for a resilient, sustainable and digital economic recovery in line with the objectives of the Union’s environmental and climate commitments and with the new ambitions set out in the European Green Deal.

(22)

Member States should therefore not reduce the environmental ambition of their existing rural development programmes. They should ensure the same overall share for the additional resources as the overall share which they reserved in their rural development programmes for measures that are particularly beneficial for the environment and climate under the EAFRD contribution (‘non-regression principle’). In addition, at least 37 % of the additional resources provided by the EURI should be devoted to measures that are particularly beneficial to the environment and climate, as well as to animal welfare and LEADER. Moreover, at least 55 % of those additional resources should be devoted to measures that promote economic and social development in rural areas, namely to investments in physical assets, farm and business development, support for basic services and village renewal in rural areas and cooperation.

(23)

In the event that Member States are otherwise unable to comply with the non-regression principle, they should have the possibility to derogate from the obligation to allocate at least 55 % of the additional resources from the EURI for measures that promote economic and social development in rural areas, and should preferably support measures that are particularly beneficial to the environment and climate. However, in order to provide Member States with sufficient flexibility, Member States should also have the possibility to derogate from the non-regression principle in respect of those additional resources to the extent necessary to comply with that obligation of 55 %.

(24)

The additional resources from the EURI are subject to specific conditions. Those additional resources should thus be programmed and monitored separately from the Union support for rural development, while applying, as a general rule, the rules set out in Regulation (EU) No 1305/2013. Hence, those additional resources should be implemented through Regulation (EU) No 1305/2013 and considered in the framework of that Regulation as amounts that finance measures under the EAFRD. In consequence, the rules set out in Regulation (EU) No 1305/2013, including the rules on amendments of rural development programmes, Regulation (EU) No 1306/2013, including the rules on automatic de-commitment, and Regulation (EU) No 1307/2013 should apply, except where this Regulation provides otherwise.

(25)

A specific maximum Union co-financing rate, as well as an increased support rate for investments contributing to a resilient, sustainable and digital economic recovery, and support aid for young farmers should be established in order to ensure the adequate leverage effect of the additional resources provided by the EURI.

(26)

In order to ensure continuity during the transitional period, the reserve for crises in the agricultural sector should be maintained for the years 2021 and 2022. The relevant amount of the reserve for the years 2021 and 2022 should be included in that reserve.

(27)

As regards pre-financing arrangements from the EAFRD, it should be made clear that neither the extension until 31 December 2022 of programmes supported by the EAFRD in accordance with this Regulation nor the additional resources made available on the basis of the EURI Regulation should lead to any additional pre-financing granted for the programmes concerned.

(28)

Article 11 of Regulation (EU) No 1307/2013 currently only provides for a notification obligation for Member States as regards their decisions taken in accordance with that Article and the estimated product related to the reduction of the part of the amount of direct payments to be granted to a farmer for a given calendar year exceeding EUR 150 000 for the years 2015 to 2020. With a view to ensuring a continuation of the existing system, Member States should also notify their decisions taken in accordance with that Article and the estimated product related to the reduction for calendar years 2021 and 2022.

(29)

Article 14 of Regulation (EU) No 1307/2013 allows Member States to transfer funds between direct payments and rural development as regards calendar years 2014 to 2020. In order to ensure that Member States may follow their own strategy, the flexibility between pillars should be made available also for calendar year 2021 (financial year 2022) and calendar year 2022 (financial year 2023).

(30)

In order to allow the Commission to be able to set the budgetary ceilings in accordance with Article 22(1), Article 36(4), Article 42(2), Article 49(2), Article 51(4) and Article 53(7) of Regulation (EU) No 1307/2013, it is necessary for Member States to notify their decisions on financial allocations by scheme for calendar year 2021 by 19 February 2021 and for calendar year 2022 by 1 August 2021.

(31)

Article 22(5) of Regulation (EU) No 1307/2013 provides for a linear adjustment of the value of payment entitlements in the event of a change in the ceiling for the basic payment scheme from one year to the following due to certain decisions taken by Member States and affecting the ceiling for the basic payment scheme. The extension of Annex II to that Regulation on national ceilings after calendar year 2020 and the possible annual changes from that date might have an impact on the ceiling for the basic payment scheme. Therefore, for Member States to be able to respect the obligation of equality of the sum of the value of payment entitlements and reserves with the ceiling for the basic payment scheme laid down in Article 22(4) of that Regulation, it is appropriate to provide for a linear adjustment to adapt to the extension of or the amendments to Annex II to that Regulation during the transitional period. Moreover, to provide Member States with greater flexibility, it appears appropriate to allow them to adapt the value of payment entitlements or of the reserve, possibly with different rates of adjustment.

(32)

In accordance with the current legal framework, Member States notified in 2014 their decisions up to calendar year 2020 on the division of the annual national ceiling for the basic payment scheme between the regions and the possible annual progressive modifications for the period covered by Regulation (EU) No 1307/2013. It is necessary that Member States also notify those decisions for calendar years 2021 and 2022.

(33)

The internal convergence mechanism is the core process for a more equitable distribution of direct income support among farmers. Significant individual differences based on old historic references become increasingly difficult to justify. In Regulation (EU) No 1307/2013, the basic model of internal convergence consists of the application by Member States of a uniform flat rate for all payment entitlements, at national or regional level, from 2015. However, in order to ensure a smoother transition to a uniform value, a derogation was set out allowing Member States to differentiate the values of payment entitlements by applying partial convergence, also called the ‘tunnel model’, between 2015 and 2019. Some Member States made use of that derogation. To continue the process towards a more equitable distribution of direct payments, Member States should be able to further converge towards a national or regional average after 2019 instead of going to a uniform flat rate or keeping the value of entitlements at their 2019 level. That possibility for Member States should therefore apply as of 1 January 2021. Member States should notify the Commission on an annual basis of their decision for the following year.

(34)

The provisions of Regulation (EU) No 1307/2013 on the adjustment of all payment entitlements being amended by this Regulation should apply retroactively from 1 January 2020 so that it is clarified that Member States were able to converge after 2019.

(35)

Article 30 of Regulation (EU) No 1307/2013 provides for annual progressive modifications in the value of the payment entitlements allocated from the reserve to reflect the annual steps of the national ceiling set out in Annex II to that Regulation, reflecting a multiannual management of the reserve. Those rules should be adapted in order to reflect that it is possible to amend both the value of all allocated payment entitlements and of the reserve to adjust to a change in the amount in Annex II to that Regulation between two years. In Member States deciding to continue internal convergence, that internal convergence is implemented on an annual basis. For calendar years 2020, 2021 and 2022, only the value of the payment entitlement of the current year needs to be determined in the year of allocation. The unit value of payment entitlements to be allocated from the reserve in a given year should be calculated after possible adjustment of the reserve in accordance with Article 22(5) of that Regulation. In any subsequent year, the value of the payment entitlements allocated from the reserve should be adapted in accordance with Article 22(5) of that Regulation.

(36)

Article 36 of Regulation (EU) No 1307/2013 provides for the application of the single area payment scheme until 31 December 2020. It is appropriate to allow the prolongation of the single area payment scheme in the years 2021 and 2022.

(37)

Given that the amendment, set out in this Regulation, to Annex II to Regulation (EU) No 1307/2013 will enter into force too late for Member States to observe the original deadline for certain notification obligations in 2020, it is necessary to postpone the deadline for Member States to take the decision to introduce for the first time the redistributive payment from 2021 or 2022, and the notification of that decision to the Commission. It is appropriate to set that deadline at the same time as the deadline for the decisions concerning flexibility between pillars.

(38)

Under Article 37 of Regulation (EU) No 1307/2013, Member States applying the single area payment scheme may decide to grant transitional national aid in the period 2015-2020 to avoid a sudden and substantial decrease of support in those sectors that benefitted from transitional national aid until 2014. In order to ensure that, during the transitional period, such aid continues to play its role in supporting the income of farmers in those specific sectors, provision should be made for the continuation of that aid under the same conditions and limitations as in the period 2015-2020.

(39)

For the sake of legal certainty, it should be clarified that Articles 41 and 42 of Regulation (EU) No 1307/2013 allow Member States to review, on an annual basis, their decisions on the redistributive payment. The deadline for the review applicable in 2021 and 2022 should be set at the same time as the deadline for the decisions concerning flexibility between pillars.

(40)

Article 52(10) of Regulation (EU) No 1307/2013 empowers the Commission to adopt delegated acts allowing Member States to decide that voluntary coupled support can continue to be paid until 2020 on the basis of the production units for which such support was granted in a past reference period. That empowerment aims at ensuring the greatest possible consistency between Union schemes targeting sectors that can be marked by structural market imbalances. It is therefore appropriate to prolong that empowerment to also cover the years 2021 and 2022.

(41)

Given that the amendment, set out in this Regulation, to Annex II to Regulation (EU) No 1307/2013 will enter into force too late for Member States to observe the original deadline for certain notification obligations in 2020, it is necessary to postpone the deadline for Member States to take the decision to introduce for the first time the voluntary coupled support from 2021 or 2022 and the notification of that decision to the Commission. It is appropriate to set that deadline at the same time as the deadline for the decisions concerning flexibility between pillars. Similarly, the deadline for a decision of Member States to continue or cease granting voluntary coupled support in the years 2021 and 2022, and the notification of that decision to the Commission, should be postponed to the same date.

(42)

Article 54 of Regulation (EU) No 1307/2013 lays down the elements of Member States’ notifications concerning voluntary coupled support. It is appropriate to clarify that those notifications for calendar years 2021 and 2022 should include the percentage of the national ceiling used to finance that support for the years 2021 and 2022.

(43)

Regulation (EU) No 1308/2013 lays down rules for the common organisation of agricultural markets and includes certain aid schemes. The Commission’s legislative proposals on the CAP beyond 2020 provided that those aid schemes are to be integrated in the future CAP strategic plans of Member States. To ensure a smooth integration of those aid schemes into the future CAP, rules should be laid down regarding the duration of each of those aid schemes when they are to be renewed during the transitional period. Therefore, as regards the aid scheme in the olive oil and table olive sector, the existing work programmes drawn up for the period running from 1 April 2018 until 31 March 2021 should be followed by new work programmes running from 1 April 2021 until 31 December 2022. Existing operational programmes in the fruit and vegetable sector that have not reached their maximum duration of five years may only be extended until 31 December 2022. New operational programmes in the fruit and vegetable sector should only be approved for a maximum duration of three years. The existing national programmes for the apiculture sector drawn up for a period running from 1 August 2019 until 31 July 2022 should be extended until 31 December 2022.

(44)

Due to the crisis caused by the COVID-19 pandemic, winegrowers holding planting authorisations for new plantings or for replanting which expire in 2020 were largely prevented from making planned use of those authorisations in the last year of their validity. To avoid the loss of those authorisations and reduce the risk of the deterioration of the conditions under which the planting would need to be carried out, it is necessary to allow for a prolongation of the validity of planting authorisations for new plantings or for replanting which expire in 2020. All planting authorisations for new plantings or for replanting expiring in 2020 should therefore be prolonged until 31 December 2021. Also, taking into account changes in market perspectives, the holders of planting authorisations that expire in 2020 should have the possibility not to use their authorisations without being subject to the administrative penalties.

(45)

The provision of Regulation (EU) No 1308/2013 on planting authorisations for new plantings or for replanting that expire in 2020, amended by this Regulation, should, because of the disturbances due to the COVID-19 pandemic and the difficulties it caused as regards the use of those planting authorisations, apply retroactively from 1 January 2020.

(46)

In 2013, transitional provisions were laid down in order to ensure a smooth transition from the former wine grape planting rights regime to the new scheme of planting authorisations, in particular in order to avoid excessive plantings before the start of that new scheme. The latest deadline for the submission of requests for conversion of planting rights into authorisations ends on 31 December 2020. However, authorisations have to be used by the applicant and are not tradable as the former planting rights used to be. Moreover, the applicants for authorisations might be requested to have a corresponding vineyard area, which can lead to situations where holders of planting rights did not yet manage to acquire the corresponding vineyard areas to use the authorisations which would result from the conversion of their planting rights. The severe economic impact of the COVID-19 pandemic on the wine sector has led to cash flow problems for winegrowers and also to uncertainty concerning the future demand for wine. Winegrowers still holding planting rights should not be forced to decide whether they want to convert their planting rights into authorisations while facing exceptional difficulties due to the crisis caused by the COVID-19 pandemic, especially as they would be subject to an administrative penalty if they do not use their planting authorisations resulting from the conversion. Those Member States that allowed winegrowers to submit their requests for conversion of planting rights until 31 December 2020 should therefore be enabled to extend the deadline for the submission of such requests to 31 December 2022. Consequently, the latest date for the validity of such converted authorisations should be adapted and should end on 31 December 2025.

(47)

Article 214a of Regulation (EU) No 1308/2013 allowed Finland to grant, under certain conditions, national aid in Southern Finland until 2020, subject to the authorisation of the Commission. In order to ensure continuity of payments of that aid during the transitional period, the granting of that national aid needs to continue to be allowed under the same conditions and same amounts as in 2020.

(48)

In order to improve the operation of the market for olive oil, Member States should be able to decide on implementation of marketing rules to regulate supply. The scope of such decisions should, however, exclude practices which could distort competition.

(49)

Recent events have shown that farmers are increasingly facing risks of income volatility, partly because of market exposure and partly because of extreme weather events and frequent sanitary and phytosanitary crises affecting Union livestock and agronomic assets. To alleviate the effects of income volatility by encouraging farmers to make savings in good years to cope with bad years, national tax measures whereby the income tax base applied to farmers is calculated on the basis of a multiannual period should be exempted from the application of State aid rules.

(50)

Since the objective of this Regulation, namely to provide for the continued application of the rules of the current CAP framework and for uninterrupted payments to farmers and other beneficiaries, and thus provide predictability and stability during the transitional period, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(51)

Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 of the Treaty on the Functioning of the European Union (TFEU) apply to this Regulation. Those rules are laid down in Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (13) and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes and indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget.

(52)

Regulations (EU) No 1305/2013, (EU) No 1306/2013, (EU) No 1307/2013 and (EU) No 1308/2013 should therefore be amended accordingly.

(53)

In order to ensure that the additional resources made available on the basis of the EURI Regulation are available from 1 January 2021, the provisions on EURI support in this Regulation should apply retroactively from that date.

(54)

In view of the overriding need to immediately ensure legal certainty for the agricultural sector in the current circumstances, this Regulation should enter into force as a matter of urgency on the day following that of its publication in the Official Journal of the European Union,

HAVE ADOPTED THIS REGULATION:

TITLE I

TRANSITIONAL PROVISIONS

CHAPTER I

Extension of certain periods under Regulations (EU) No 1303/2013 and (EU) No 1310/2013 and continued application of Regulation (EU) No 1303/2013 for the programming years 2021 and 2022

Article 1

Extension of the period of duration of programmes supported by the European Agricultural Fund for Rural Development

1.   For programmes supported by the European Agricultural Fund for Rural Development (EAFRD), the period from 1 January 2014 to 31 December 2020 laid down in Article 26(1) of Regulation (EU) No 1303/2013 is hereby extended until 31 December 2022.

2.   The extension of the period of duration of programmes supported by the EAFRD, referred to in paragraph 1 of this Article, shall be without prejudice to the need to submit a request to amend rural development programmes for the transitional period as referred to in point (a) of Article 11 of Regulation (EU) No 1305/2013. Such an amendment shall ensure that at least the same overall share of the EAFRD contribution is reserved for the measures referred to in Article 59(6) of that Regulation.

Article 2

Continued application of Regulation (EU) No 1303/2013 to programmes supported by the EAFRD

1.   Regulation (EU) No 1303/2013 shall continue to apply to programmes supported by the EAFRD under the 2014–2020 programming period and extended in accordance with Article 1 of this Regulation.

2.   For programmes extended in accordance with Article 1 of this Regulation, the references to periods or deadlines in Article 50(1), Article 51(1), Article 57(2) and Article 65(2) and (4) and the first paragraph of Article 76 of Regulation (EU) No 1303/2013 shall be extended by two years.

3.   For programmes extended in accordance with Article 1 of this Regulation, Member States shall amend their targets established in the context of the performance framework set out in Annex II to Regulation (EU) No 1303/2013 to establish targets for 2025. For those programmes, references to targets for 2023 set out in implementing acts adopted in accordance with Article 22(7) of Regulation (EU) No 1303/2013 or Article 8(3), Article 67, Article 75(5) or Article 76(1) of Regulation (EU) No 1305/2013 shall be read as references to targets for 2025.

4.   The final date by which the Commission is to prepare a synthesis report outlining the main conclusions of ex-post evaluations of the EAFRD provided for in Article 57(4) of Regulation (EU) No 1303/2013 shall be 31 December 2027.

Article 3

Eligibility of certain types of expenditure during the transitional period

Without prejudice to Article 2(2) of this Regulation, to Article 65(2) of Regulation (EU) No 1303/2013 and to Article 38 of Regulation (EU) No 1306/2013, the expenditure referred to in Article 3(1) of Regulation (EU) No 1310/2013 and in Article 16 of Delegated Regulation (EU) No 807/2014 shall be eligible for an EAFRD contribution from the 2021 and 2022 allocation for programmes supported by the EAFRD which were extended in accordance with Article 1 of this Regulation, subject to the following conditions:

(a)

such expenditure is provided for in the respective rural development programme for the years covered by the transitional period;

(b)

the EAFRD contribution rate of the corresponding measure under Regulation (EU) No 1305/2013, as set out in Annex I to Regulation (EU) No 1310/2013 and in Annex I to Delegated Regulation (EU) No 807/2014, applies;

(c)

the system referred to in Article 67(2) of Regulation (EU) No 1306/2013 applies to the legal commitments undertaken under measures that correspond to support granted in accordance with points (a) and (b) of Article 21(1) and Articles 28 to 31, 33, 34 and 40 of Regulation (EU) No 1305/2013 and the relevant operations are clearly identified; and

(d)

the payments for the legal commitments referred to in point (c) of this Article are made within the period laid down in Article 75 of Regulation (EU) No 1306/2013.

CHAPTER II

Preparation of future community-led local development strategies in the programming years 2021 and 2022

Article 4

Community-led local development

For programmes extended in accordance with Article 1 of this Regulation, the EAFRD may support the costs of capacity building and preparatory actions supporting the design and future implementation of community-led local development strategy under the new legal framework.

CHAPTER III

Payment entitlements for direct payments to farmers

Article 5

Definitive payment entitlements

1.   Payment entitlements allocated to farmers before 1 January 2020 shall be considered legal and regular as from 1 January 2021. The value of those entitlements to be considered legal and regular shall be the value for calendar year 2020 valid on 31 December 2020.

2.   By way of derogation from paragraph 1 of this Article, a Member State which has made use of the option provided for in Article 24(6) of Regulation (EU) No 1307/2013 may, while respecting the legitimate expectations of farmers, decide that all payment entitlements allocated before 1 January 2020 shall be considered legal and regular as from that date. In that case, the value of those entitlements to be considered legal and regular shall be the value for calendar year 2019 valid on 31 December 2019.

3.   Paragraphs 1 and 2 of this Article shall apply without prejudice to the relevant provisions of Union law, in particular to Article 22(5) and Article 25(12) of Regulation (EU) No 1307/2013, concerning the value of payment entitlements for calendar year 2020 and onwards.

4.   Paragraphs 1 and 2 shall not apply to payment entitlements allocated to farmers on the basis of factually incorrect applications, except in cases where the error could not reasonably have been detected by the farmer.

5.   Paragraphs 1 and 2 of this Article shall not prejudice the Commission’s power to take decisions referred to in Article 52 of Regulation (EU) No 1306/2013 in relation to expenditure incurred for payments granted in respect of calendar years up to 2020 inclusive where paragraph 1 of this Article applies, or up to 2019 inclusive where paragraph 2 of this Article applies.

CHAPTER IV

Transitional provisions relating to rural development

Article 6

Eligibility of expenditure incurred under Regulation (EU) No 1305/2013, and certain types of expenditure incurred under Regulations (EC) No 1698/2005 and (EC) No 1257/1999

Expenditure relating to legal commitments to beneficiaries incurred under Regulation (EU) No 1305/2013, and certain types of expenditure incurred under Council Regulations (EC) No 1698/2005 (14) and (EC) No 1257/1999 (15) may be eligible for a contribution from the EAFRD in the period 2023-2027 from 1 January 2023, subject to the conditions to be determined in accordance with the CAP legal framework applicable in the period 2023-2027.

TITLE II

AMENDMENTS

Article 7

Amendments to Regulation (EU) No 1305/2013

Regulation (EU) No 1305/2013 is amended as follows:

(1)

point (h) of Article 8(1) is amended as follows:

(a)

point (i) is replaced by the following:

‘(i)

a table setting out, in accordance with Article 58(4) and Article 58a(2) of this Regulation, the total EAFRD contribution planned for each year. That table shall indicate separately the additional resources as referred to in Article 58a(2) of this Regulation. When applicable, that table shall also indicate separately, within the total EAFRD contribution, the appropriations provided for the less developed regions and the funds transferred to the EAFRD pursuant to Article 7(2) of Regulation (EU) No 1307/2013. The planned annual EAFRD contribution shall be compatible with the Multiannual Financial Framework;’;

(b)

point (ii) is replaced by the following:

‘(ii)

a table setting out, for each measure, for each type of operation with a specific EAFRD contribution rate, for the type of operation referred to in Article 37(1) and Article 39a, for the type of operation referred to in Article 38(3) and Article 39(1) when a Member State applies a percentage less than 30 %, and for technical assistance, the total Union contribution planned and the applicable EAFRD contribution rate. Where applicable, that table shall indicate separately the EAFRD contribution rate for less developed regions and for other regions;’;

(2)

in Article 28(5), the following subparagraphs are added:

‘For new commitments to be undertaken from 2021, Member States shall determine a shorter period of one to three years in their rural development programmes.

If Member States provide for an annual extension of commitments after the termination of the initial period in accordance with the first subparagraph, from 2022 the extension shall not go beyond one year.

By way of derogation from the second subparagraph, for new commitments to be undertaken in 2021 and 2022, Member States may determine a period of longer than three years in their rural development programmes based on the nature of the commitments and the environmental and climate-related objectives sought.’;

(3)

in Article 29(3), the following subparagraphs are added:

‘For new commitments to be undertaken from 2021, Member States shall determine a shorter period of one to three years in their rural development programmes.

If Member States provide for an annual extension for the maintenance of organic farming after the termination of the initial period in accordance with the first subparagraph, from 2022 the extension shall not go beyond one year.

By way of derogation from the second subparagraph, for new commitments to be undertaken in 2021 and 2022, where support is granted for conversion to organic farming, Member States may determine a period of longer than three years in their rural development programmes.’;

(4)

in Article 31(5), the second subparagraph is replaced by the following:

‘In the years 2021 and 2022, for programmes extended in accordance with Article 1 of Regulation (EU) 2020/2220 of the European Parliament and of the Council (*), where degressive payments were not granted by the Member States for the maximum duration of four years up to 2020, those Member States may decide to continue those payments until the end of 2022 but for no longer than four years in total. In that case, the payments in the years 2021 and 2022 shall not exceed EUR 25 per hectare.

(*)  Regulation (EU) 2020/2220 of the European Parliament and of the Council of 23 December 2020 laying down certain transitional provisions for support from the European Agricultural Fund for Rural Development (EAFRD) and from the European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and amending Regulations (EU) No 1305/2013, (EU) No 1306/2013 and (EU) No 1307/2013 as regards resources and application in the years 2021 and 2022 and Regulation (EU) No 1308/2013 as regards resources and the distribution of such support in respect of the years 2021 and 2022 (OJ L 437, 28.12.2020, p. 1).’;"

(5)

in Article 33(2), the following subparagraphs are added:

‘For new commitments to be undertaken as from 2021, Member States shall determine a shorter period of one to three years in their rural development programmes.

If Member States provide for an annual renewal of commitments after the termination of the initial period in accordance with the second subparagraph, as from 2022 the renewal shall not go beyond one year.

By way of derogation from the third subparagraph, for new commitments to be undertaken in 2021 and 2022, Member States may determine a period of longer than three years in their rural development programmes based on the nature of the commitments and the animal welfare benefits sought.’;

(6)

in Article 38(3), the second subparagraph is replaced by the following:

‘Support under point (b) of Article 36(1) shall only be granted to cover for loss caused by the outbreak of adverse climatic events, animal or plant disease, pest infestation, or measures adopted in accordance with Directive 2000/29/EC to eradicate or contain a plant disease or pest or environmental incident, which destroy more than 30 % of the average annual production of the farmer in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and lowest entry. Indexes may be used in order to calculate the annual production of the farmer. The calculation method used shall permit the determination of the actual loss of an individual farmer in a given year. Member States may decide to reduce that percentage of 30 %, however, to not less than 20 %.’;

(7)

in Article 39, paragraph 1 is replaced by the following:

‘1.   Support under point (c) of Article 36(1) shall only be granted where the drop in income exceeds 30 % of the average annual income of the individual farmer in the preceding three-year period or a three-year average based on the preceding five-year period excluding the highest and lowest entry. Income for the purposes of point (c) of Article 36(1) shall refer to the sum of revenues the farmer receives from the market, including any form of public support, deducting input costs. Payments by the mutual fund to farmers shall compensate for less than 70 % of the income lost in the year the producer becomes eligible to receive this assistance. Indexes may be used to calculate the annual loss of income of the farmer. Member States may decide to reduce that percentage of 30 %, however, to not less than 20 %.’;

(8)

in Article 39b, paragraph 4 is replaced by the following:

‘4.   The support shall take the form of a lump sum payment to be paid by 31 December 2021, based on applications for support approved by the competent authority by 30 June 2021. The subsequent reimbursement by the Commission shall be made in accordance with budget appropriations and subject to available funding. The level of payment may be differentiated by categories of beneficiaries, in accordance with objective and non-discriminatory criteria.’;

(9)

in Article 42, paragraph 1 is replaced by the following:

‘1.   In addition to the tasks referred to in Article 34 of Regulation (EU) No 1303/2013 and in Article 4 of Regulation (EU) 2020/2220, local action groups may also perform additional tasks delegated to them by the Managing Authority and/or the paying agency.’;

(10)

in Article 51(2), the following subparagraph is added:

‘By way of derogation from the first subparagraph, Member States for which the total amount of Union support for rural development for the years 2014-2020 as laid down in Annex I to this Regulation is less than EUR 1 800 million may, after the extension of their programmes in accordance with Article 1 of Regulation (EU) 2020/2220, decide to devote 5 % of the total amount of each rural development programme to tasks referred to in Article 59 of Regulation (EU) No 1303/2013.’;

(11)

Article 58 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Without prejudice to paragraphs 5, 6 and 7, the total amount of Union support for rural development under this Regulation for the period from 1 January 2021 to 31 December 2022 shall be a maximum of EUR 26 896 831 880, in current prices, in accordance with the multiannual financial framework for the years 2021 to 2027.’;

(b)

paragraph 7 is replaced by the following:

‘7.   In order to take account of the developments relating to the annual breakdown referred to in paragraph 4 of this Article, including the transfers referred to in paragraphs 5 and 6 of this Article and the transfers resulting from the application of Article 1 of Regulation (EU) 2020/2220, to make technical adjustments without changing the overall allocations, or to take account of any other change provided for by a legislative act after the adoption of this Regulation, the Commission shall be empowered to adopt delegated acts, in accordance with Article 83 of this Regulation, to review the ceilings set out in Annex I to this Regulation.’;

(12)

the following Article is inserted:

‘Article 58a

Resources for the recovery of the Union agricultural sector and rural areas

1.   Point (g) of Article 1(2) of Council Regulation (EU) 2020/2094 (‘EURI Regulation’) (*) shall be implemented in accordance with this Article through measures that are eligible under the EAFRD and that are directed at addressing the impact of the COVID-19 crisis, with an amount of EUR 8 070 486 840 in current prices of the amount referred to in point (vi) of Article 2(2)(a) of that Regulation, subject to Article 3(3), (4) and (8) thereof.

That amount of EUR 8 070 486 840 in current prices shall constitute external assigned revenues in accordance with Article 21(5) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (**).

It shall be made available as additional resources for budgetary commitment under the EAFRD for the years 2021 and 2022, in addition to the total resources set out in Article 58 of this Regulation as follows:

2021: EUR 2 387 718 000;

2022: EUR 5 682 768 840.

For the purpose of this Regulation and Regulations (EU) No 1306/2013 and (EU) No 1307/2013, those additional resources shall be considered as amounts financing measures under the EAFRD. They shall be considered as being part of the total amount of Union support for rural development, as referred to in Article 58(1) of this Regulation, to which they shall be added when reference is made to the total amount of Union support for rural development. Article 14 of Regulation (EU) No 1307/2013 shall not apply to the additional resources referred to in this paragraph and in paragraph 2 of this Article.

2.   The breakdown for each Member State of the additional resources referred to in paragraph 1 of this Article, after deduction of the amount referred to in paragraph 7 of this Article, is set out in Annex Ia.

3.   The percentage thresholds of the total EAFRD contribution to the rural development programme referred to in Article 59(5) and (6) of this Regulation shall not apply to the additional resources referred to in paragraph 1 of this Article. However, Member States shall ensure that at least the same overall share of the EAFRD contribution, including the additional resources referred to in paragraph 2 of this Article, is reserved in each rural development programme for the measures referred to in Article 59(6) of this Regulation, in line with Article 1(2) of Regulation (EU) 2020/2220.

4.   At least 37 % of the additional resources referred to in paragraph 2 of this Article shall be reserved in each rural development programme for measures referred to in Article 33 and Article 59(5) and (6), and in particular for:

(a)

organic farming;

(b)

mitigation of, and adaptation to, climate change, including reduction of greenhouse gas emissions from agriculture;

(c)

soil conservation, including the enhancement of soil fertility through carbon sequestration;

(d)

improvement of the use and management of water, including water saving;

(e)

creation, conservation and restoration of habitats favourable to biodiversity;

(f)

reduction of the risks and impacts of pesticide and antimicrobial use;

(g)

animal welfare;

(h)

LEADER cooperation activities.

5.   At least 55 % of the additional resources referred to in paragraph 2 of this Article shall be reserved in each rural development programme for measures referred to in Articles 17, 19, 20 and 35, provided that the designated use of such measures in the rural development programmes promotes economic and social development in rural areas, and contributes to a resilient, sustainable and digital economic recovery in line, inter alia, with the agri-environment-climate objectives pursued under this Regulation, and in particular:

(a)

short supply chains and local markets;

(b)

resource efficiency, including precision and smart farming, innovation, digitalisation and modernisation of production machinery and equipment;

(c)

safety conditions at work;

(d)

renewable energy, circular and bio-economy;

(e)

access to high-quality ICT in rural areas.

When allocating the additional resources referred to in paragraph 2 of this Article, Member States may decide to derogate from the percentage threshold set out in the first subparagraph of this paragraph to the extent necessary to comply with the non-regression principle set out in Article 1(2) of Regulation (EU) 2020/2220. However, Member States may instead decide to derogate from that non-regression principle to the extent necessary to comply with the percentage threshold set out in the first subparagraph of this paragraph.

6.   Up to 4 % of the total additional resources referred to in paragraph 2 of this Article may be allocated to technical assistance, at the initiative of the Member States, to the rural development programmes in accordance with Article 51(2). That percentage threshold may be 5 % for those Member States to which the fourth subparagraph of Article 51(2) applies.

7.   Up to 0,25 % of the total additional resources referred to in paragraph 1 of this Article may be allocated to technical assistance in accordance with Article 51(1).

8.   The budget commitments relating to the additional resources referred to in paragraphs 1 and 2 of this Article shall in each rural development programme be made separately from the allocation referred to in Article 58(4).

9.   Articles 20, 21 and 22 of Regulation (EU) No 1303/2013 shall not apply to the total additional resources referred to in paragraphs 1 and 2 of this Article.

(*)  Council Regulation (EU) 2020/2094 of 14 December 2020 establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 crisis (OJ L 433, 22.12.2020, p. 23)."

(**)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).’;"

(13)

Article 59 is amended as follows:

(a)

in paragraph 4, the following point is inserted:

‘(ea)

100 % for operations receiving funding from additional resources referred to in Article 58a(1). Member States may establish a single, specific EAFRD contribution rate applicable to all those operations;’;

(b)

paragraph 5 is replaced by the following:

‘5.   At least 5 %, and in the case of Croatia 2,5 %, of the total EAFRD contribution to the rural development programme shall be reserved for LEADER and community-led local development as referred to in Article 4 of Regulation (EU) 2020/2220.

When Member States make use of the possibility provided for in the sixth or seventh subparagraph of Article 14(1) of Regulation (EU) No 1307/2013, the percentages laid down in the first subparagraph of this paragraph shall apply to the total EAFRD contribution to the rural development programme without the additional support made available in accordance with the sixth or seventh subparagraph of Article 14(1) of Regulation (EU) No 1307/2013.’;

(c)

paragraph 6a is replaced by the following:

‘6a.   The EAFRD support provided under Article 39b shall not exceed 2 % of the total EAFRD contribution to the rural development programme for the years 2014-2020 as provided for in Part One of Annex I.’;

(14)

in Article 75, paragraph 1 is replaced by the following:

‘1.   By 30 June 2016 and by 30 June of each subsequent year until and including 2026, the Member State shall submit to the Commission the annual implementation report on implementation of the rural development programme in the previous calendar year. The report submitted in 2016 shall cover the calendar years 2014 and 2015.’;

(15)

Article 78 is replaced by the following:

‘In 2026, an ex-post evaluation report shall be prepared by the Member States for each of their rural development programmes. That report shall be submitted to the Commission by 31 December 2026.’;

(16)

Annex I is amended in accordance with Annex I to this Regulation;

(17)

A new Annex Ia is inserted as set out in Annex II to this Regulation;

(18)

Annex II is amended as follows:

(a)

Article 17(3) Investment in physical assets, fourth column is amended as follows:

(i)

row 6 is replaced by the following:

‘Of the amount of eligible investment in other regions

The above rates may be increased by an additional maximum 35 percentage points in case of financing operations from funds referred to in Article 58a(1) contributing to a resilient, sustainable and digital economic recovery, provided that such support does not exceed 75 %, and by an additional 20 percentage points, provided that maximum combined support does not exceed 90 %, for:

Young farmers as defined in this Regulation, or who have already set up during the five years preceding the application for support;

Collective investments and integrated projects, including those linked to a merger of producer organisations;

Areas facing natural constraints and other specific constraints as referred to in Article 32;

Operations supported in the framework of the EIP;

Investments linked to operations under Articles 28 and 29’;

(ii)

row 11 is replaced by the following:

‘Of the amount of eligible investment in other regions

The above rates may be increased by an additional maximum 35 percentage points in case of financing operations from funds referred to in Article 58a(1) contributing to a resilient, sustainable and digital economic recovery, provided that such support does not exceed 75 %, and by an additional 20 percentage points, provided that maximum combined support does not exceed 90 %, for operations supported in the framework of the EIP or those linked to a merger of producer organisations’;

(b)

Article 19(6) Farm and business development, fourth column, row 1 is replaced by the following:

‘Per young farmer under Article 19(1)(a)(i)

That amount may be increased by an additional maximum of EUR 30 000 in the case of financing operations from funds referred to in Article 58a(1).’.

Article 8

Amendments to Regulation (EU) No 1306/2013

Regulation (EU) No 1306/2013 is amended as follows:

(1)

in Article 25, the following subparagraph is added:

‘For each of the years 2021 and 2022, the amount of the reserve shall be EUR 400 million (at 2011 prices) and shall be included under Heading 3 of the Multiannual Financial Framework as set out in the Annex to Council Regulation (EU) 2020/2093 (*) [MFF].

(*)  Council Regulation (EU) 2020/2093 of 17 December 2020 laying down the multiannual financial framework for the years 2021 to 2027 (OJ L 433, 22.12.2020, p. 11).’;"

(2)

Article 33 is replaced by the following:

‘Article 33

Budget commitments

As regards the Union’s budget commitments for rural development programmes, Article 76 of Regulation (EU) No 1303/2013 and where applicable in conjunction with Article 2(2) of Regulation (EU) 2020/2220 of the European Parliament and of the Council (*) shall apply.

(*)  Regulation (EU) 2020/2220 of the European Parliament and of the Council of 23 December 2020 laying down certain transitional provisions for support from the European Agricultural Fund for Rural Development (EAFRD) and from the European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and amending Regulations (EU) No 1305/2013, (EU) No 1306/2013 and (EU) No 1307/2013 as regards resources and application in the years 2021 and 2022 and Regulation (EU) No 1308/2013 as regards resources and the distribution of such support in respect of the years 2021 and 2022 (OJ L 437, 28.12.2020, p. 1).’;"

(3)

in Article 35, the following paragraph is added:

‘5.   For programmes extended in accordance with Article 1 of Regulation (EU) 2020/2220, no pre-financing shall be granted for the 2021 and 2022 allocation or for additional resources referred to in Article 58a(1) and (2) of Regulation (EU) No 1305/2013.’;

(4)

in Article 36(3), the following subparagraph is added:

‘Point (b) of the first subparagraph shall apply, mutatis mutandis, to the additional resources referred to in Article 58a of Regulation (EU) No 1305/2013.’;

(5)

in Article 37, paragraph 1 is replaced by the following:

‘1.   After receiving the last annual progress report on the implementation of a rural development programme, the Commission shall pay the balance, subject to the availability of resources, on the basis of the financial plan in force, the annual accounts for the last execution year for the relevant rural development programme and of the corresponding clearance decision. Those accounts shall be presented to the Commission no later than six months after the final eligibility date of expenditure as referred to in Article 65(2) of Regulation (EU) No 1303/2013, and where applicable in conjunction with Article 2(2) of Regulation (EU) 2020/2220, and shall cover the expenditure effected by the paying agency up to the last eligibility date of expenditure.’;

(6)

in Article 38, paragraph 2 is replaced by the following:

‘2.   The part of budget commitments that is still open on the last eligibility date for expenditure as referred to in Article 65(2) of Regulation (EU) No 1303/2013, and where applicable in conjunction with Article 2(2) of Regulation (EU) 2020/2220, for which no declaration of expenditure has been made within six months of that date shall be automatically de-committed.’.

Article 9

Amendments to Regulation (EU) No 1307/2013

Regulation (EU) No 1307/2013 is amended as follows:

(1)

in Article 11(6), the following subparagraph is added:

‘Member States shall notify the Commission of the decisions taken in accordance with this Article and of any estimated product of reductions for the year 2021 by 19 February 2021 and for the year 2022 by 1 August 2021.’;

(2)

Article 14 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Member States may decide to make available, as additional support financed under the EAFRD in financial years 2022 and 2023, up to 15 % of their annual national ceilings for the calendar years 2021 and 2022 set out in Annex II to this Regulation. As a result, the corresponding amount shall no longer be available for granting direct payments. That decision shall be notified to the Commission for the calendar year 2021 by 19 February 2021 and for the calendar year 2022 by 1 August 2021 and shall set out the percentage chosen.’;

(b)

in paragraph 2, the following subparagraph is added:

‘Member States which do not take the decision referred to in the seventh subparagraph of paragraph 1 for financial years 2022 and 2023, may decide to make available as direct payments up to 15 %, or in the case of Bulgaria, Estonia, Spain, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia, Finland and Sweden up to 25 %, of the amount allocated to support financed under the EAFRD in financial year 2022 by Regulation (EU) No 1305/2013 and in financial year 2023 by Union legislation adopted after the adoption of Council Regulation (EU) 2020/2093 (*) [MFF]. As a result, the corresponding amount shall no longer be available for support financed under the EAFRD. That decision shall be notified to the Commission for the financial year 2022 by 19 February 2021 and for the financial year 2023 by 1 August 2021 and shall set out the percentage chosen.

(*)  Council Regulation (EU) 2020/2093 of 17 December 2020 laying down the multiannual financial framework for the years 2021 to 2027 (OJ L 433, 22.12.2020, p. 11).’;"

(3)

Article 22 is amended as follows:

(a)

paragraph 2 is replaced by the following:

‘2.   For each Member State, the amount calculated in accordance with the paragraph 1 of this Article may be increased by a maximum of 3 % of the relevant annual national ceiling set out in Annex II after deduction of the amount resulting from the application of Article 47(1) for the relevant year. When a Member State applies such an increase, that increase shall be taken into account by the Commission when setting the annual national ceiling for the basic payment scheme pursuant to paragraph 1 of this Article. For that purpose, Member States shall notify the Commission by 1 August 2014 of the annual percentages by which the amount calculated pursuant to paragraph 1 of this Article is to be increased. By 19 February 2021, Member States shall notify the Commission of the annual percentage by which the amount calculated pursuant to paragraph 1 of this Article is to be increased for calendar years 2021 and 2022.’;

(b)

in paragraph 5, the following subparagraph is added:

‘For calendar years 2021 and 2022, if the ceiling for a Member State set by the Commission pursuant to paragraph 1 of this Article is different from that of the previous year as a result of a change in the amount set out in Annex II or as a result of any decision taken by that Member State in accordance with this Article, Article 14(1) or (2), Article 42(1), Article 49(1), Article 51(1) or Article 53, that Member State shall linearly reduce or increase the value of all payment entitlements and/or reduce or increase the national reserve or regional reserves in order to ensure compliance with paragraph 4 of this Article.’;

(4)

in Article 23(6), the following subparagraph is added:

‘Member States applying the first subparagraph of paragraph 1 shall notify the Commission for calendar year 2021 by 19 February 2021 and for calendar year 2022 by 1 August 2021 of the decisions referred to in paragraphs 2 and 3.’;

(5)

in Article 25, the following paragraphs are added:

‘11.   After having applied the adjustment referred to in Article 22(5), Member States that have made use of the derogation provided for in paragraph 4 of this Article may decide that payment entitlements held by farmers on 31 December 2019 which have a value lower than the national or regional unit value in 2020 as calculated in accordance with the second subparagraph of this paragraph have their unit value increased towards the national or regional unit value in 2020. The increase shall be calculated under the following conditions:

(a)

the calculation method for the increase decided upon by the Member State concerned is based on objective and non-discriminatory criteria;

(b)

in order to finance the increase, all or part of the owned or leased-in payment entitlements held by farmers on 31 December 2019 which have a value higher than the national or regional unit value in 2020 as calculated in accordance with the second subparagraph shall be reduced; that reduction shall apply to the difference between the value of those entitlements and the national or regional unit value in 2020; the application of that reduction shall be based on objective and non-discriminatory criteria, which may include the fixing of a maximum decrease.

The national or regional unit value in 2020 referred to in the first subparagraph of this paragraph shall be calculated by dividing the national or regional ceiling for the basic payment scheme set in accordance with Article 22(1) or Article 23(2) for 2020, excluding the amount of the national or regional reserves, by the number of the owned or leased-in payment entitlements held by farmers on 31 December 2019.

By way of derogation from the first subparagraph of this paragraph, Member States that have made use of the derogation provided for in paragraph 4 of this Article may decide to keep the value of payment entitlements calculated in accordance with that paragraph subject to the adjustment referred to in Article 22(5).

Member States shall inform farmers in due time of the value of their payment entitlements as calculated in accordance with this paragraph.

12.   For calendar years 2021 and 2022, Member States may decide to apply further internal convergence by applying paragraph 11 to the year concerned.’;

(6)

in Article 29, the following paragraph is added:

‘For calendar years 2020 and 2021, Member States shall notify the Commission of their decisions referred to in Article 25(11) and (12) by 19 February 2021.

For calendar year 2022, Member States shall notify the Commission of their decision referred to in Article 25(12) by 1 August 2021.’;

(7)

in Article 30(8), the following subparagraph is added:

‘For allocations from the national reserve or regional reserves in 2021 and 2022, the amount of the national reserve or regional reserves to be excluded in accordance with the second subparagraph of this paragraph shall be adjusted in accordance with the second subparagraph of Article 22(5). For allocations from the national reserve or regional reserves in 2021 and 2022, the third subparagraph of this paragraph shall not apply.’;

(8)

Article 36 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Member States applying the single area payment scheme in 2020 shall continue to do so after 31 December 2020.’;

(b)

in paragraph 4, the second subparagraph is replaced by the following:

‘For each Member State, the amount calculated in accordance with the first subparagraph of this paragraph may be increased by a maximum of 3 % of the relevant annual national ceiling set out in Annex II after deduction of the amount resulting from the application of Article 47(1) for the relevant year. When a Member State applies such an increase, that increase shall be taken into account by the Commission when setting the annual national ceiling for the single area payment scheme pursuant to the first subparagraph of this paragraph. For that purpose, Member States shall notify the Commission by 31 January 2018 of the annual percentages by which the amount calculated pursuant to paragraph 1 of this Article is to be increased each calendar year from 2018. By 19 February 2021, Member States shall notify the Commission of the annual percentage by which the amount calculated pursuant to paragraph 1 of this Article is to be increased for calendar years 2021 and 2022.’;

(9)

Article 37 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Member States granting transitional national aid in the period 2015-2020 may decide to grant transitional national aid in 2021 and 2022.’;

(b)

in paragraph 4, the sixth indent is replaced by the following:

‘—

50 % in 2020, 2021 and 2022.’;

(10)

in Article 41, paragraph 1 is replaced by the following:

‘1.   Member States may decide by 1 August of any given year to grant, from the following year, an annual payment to farmers who are entitled to a payment under the basic payment scheme referred to in Sections 1, 2, 3 and 5 of Chapter 1 or under the single area payment scheme referred to in Section 4 of Chapter 1 (“the redistributive payment”). Member States may take such a decision by 19 February 2021 for calendar year 2021 and by 1 August 2021 for calendar year 2022. Member States already applying the redistributive payment may review their decision to grant such payment or the details of the scheme by 19 February 2021 for calendar year 2021 and by 1 August 2021 for calendar year 2022.

Member States shall notify the Commission of any such decision by the relevant date referred to in the first subparagraph.’;

(11)

in Article 42(1), the following subparagraph is added:

‘Member States shall notify the Commission of the percentage referred to in the first subparagraph by 19 February 2021 for calendar year 2021 and by 1 August 2021 for calendar year 2022.’;

(12)

in Article 49(1), the following subparagraph is added:

‘Member States granting payments in accordance with Article 48 in calendar year 2020 shall notify the Commission of the percentage referred to in the first subparagraph by 19 February 2021 for calendar year 2021 and by 1 August 2021 for calendar year 2022.’;

(13)

in Article 51(1), the first subparagraph is replaced by the following:

‘1.   In order to finance the payment for young farmers, Member States shall use a percentage, which shall not be higher than 2 %, of the annual national ceiling set out in Annex II. The Member States shall notify the Commission, by 1 August 2014, of the estimated percentage necessary to finance that payment. By 19 February 2021, Member States shall notify the Commission of the estimated percentages necessary to finance that payment for calendar years 2021 and 2022.’;

(14)

in Article 52, paragraph 10 is replaced by the following:

‘10.   The Commission is empowered to adopt delegated acts in accordance with Article 70 supplementing this Regulation as regards measures in order to avoid beneficiaries of voluntary coupled support suffering from structural market imbalances in a sector. Those delegated acts may allow Member States to decide that such support may continue to be paid until 2022 on the basis of the production units for which voluntary coupled support was granted in a past reference period.’;

(15)

Article 53 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Member States not having granted voluntary coupled support until claim year 2020 may take a decision in accordance with the first subparagraph for calendar year 2021 by 19 February 2021.’;

(b)

paragraph 6 is replaced by the following:

‘6.   Member States may, by 1 August of any given year, review their decision pursuant to this Chapter.

By 8 February 2020, Member States may also review their decision pursuant to this Chapter to the extent necessary to adjust to the decision on flexibility between pillars for calendar year 2020 taken in accordance with Article 14.

Member States shall decide by 19 February 2021 for calendar year 2021, and by 1 August 2021 for calendar year 2022, whether to continue or cease granting voluntary coupled support for the respective claim year.

By means of a review pursuant to the first and second subparagraphs of this paragraph, or a notification pursuant to the third subparagraph of this paragraph, Member States may decide with effect from the following year and for calendar years 2020 and 2021 with effect from the same calendar year:

(a)

to leave unchanged, increase or decrease the percentage fixed pursuant to paragraphs 1, 2 and 3, within the limits laid down therein where applicable, or to leave unchanged or decrease the percentage fixed pursuant to paragraph 4;

(b)

to modify the conditions for granting the support;

(c)

to cease granting the support under this Chapter.

Member States shall notify the Commission of any decision relating to the first, second and third subparagraphs of this paragraph by the respective dates referred to in those subparagraphs. The notification of the decision relating to a review pursuant to the second subparagraph of this paragraph shall explain the link between the review and the decision on flexibility between pillars for calendar year 2020 taken in accordance with Article 14.’;

(16)

in Article 54, paragraph 1 is replaced by the following:

‘1.   Member States shall notify the Commission of the decisions referred to in Article 53 by the dates referred to in that Article. Except for the decision referred to in point (c) of the fourth subparagraph of Article 53(6), the notification shall include information on the regions targeted, the selected types of farming or sectors, and the level of support to be granted. The notifications of the decisions referred to in Article 53(1) and of the decision referred to in the third subparagraph of Article 53(6) shall also include the percentage of the national ceiling referred to in Article 53 for the relevant calendar year.’;

(17)

in Article 58, paragraph 3 is replaced by the following:

‘3.   The amount of the crop-specific payment for cotton per hectare of eligible area shall be calculated for 2020 by multiplying the yields established in paragraph 2 with the following reference amounts:

Bulgaria: EUR 649,45,

Greece: EUR 234,18,

Spain: EUR 362,15,

Portugal: EUR 228,00.

The amount of the crop-specific payment for cotton per hectare of eligible area shall be calculated for 2021 and 2022 by multiplying the yields established in paragraph 2 with the following reference amounts:

Bulgaria: EUR 636,13,

Greece: EUR 229,37,

Spain: EUR 354,73,

Portugal: EUR 223,32.’;

(18)

Annexes II and III are amended in accordance with Annex III to this Regulation.

Article 10

Amendments to Regulation (EU) No 1308/2013

Regulation (EU) No 1308/2013 is amended as follows:

(1)

Article 29 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Work programmes drawn up for the period running from 1 April 2021 shall end on 31 December 2022.’;

(b)

paragraph 2 is replaced by the following:

‘2.   The Union financing of the work programmes referred to in paragraph 1 for 2020 shall be:

(a)

EUR 11 098 000 for Greece;

(b)

EUR 576 000 for France;

(c)

EUR 35 991 000 for Italy.

The Union financing of the work programmes referred to in paragraph 1 for each of the years 2021 and 2022 shall be:

(a)

EUR 10 666 000 for Greece;

(b)

EUR 554 000 for France;

(c)

EUR 34 590 000 for Italy.’;

(2)

in Article 33(1), the following subparagraphs are added:

‘Operational programmes for which an extension in line with the maximum duration of five years referred to in the first subparagraph is to be approved after 29 December 2020 may only be extended until 31 December 2022.

By way of derogation from the first subparagraph, new operational programmes that are approved after 29 December 2020 shall have a maximum duration of three years.’;

(3)

in Article 55(1), the following subparagraph is added:

‘By way of derogation from the first subparagraph, national programmes drawn up for the period running from 1 August 2019 until 31 July 2022 shall be extended until 31 December 2022. Member States shall modify their national programmes to take account of that extension and shall notify the modified programmes to the Commission for their approval.’;

(4)

in Article 58, paragraph 2 is replaced by the following:

‘2.   The Union financing for the aid to producer organisations provided for in paragraph 1 for 2020 shall be EUR 2 277 000 for Germany.

The Union financing for the aid to producer organisations provided for in paragraph 1 for each of the years 2021 and 2022 shall be EUR 2 188 000 for Germany.’;

(5)

in Article 62(3), the following subparagraphs are added:

‘By way of derogation from the first subparagraph, the validity of authorisations granted in accordance with Article 64 and Article 66(1), which expires in the year 2020, is extended until 31 December 2021.

Producers who hold authorisations in accordance with Article 64 and Article 66(1) of this Regulation, which expire in 2020, shall not, by way of derogation from the first subparagraph of this paragraph, be subject to the administrative penalty referred to in Article 89(4) of Regulation (EU) No 1306/2013 provided that they inform the competent authorities by 28 February 2021 that they do not intend to make use of their authorisation and do not wish to benefit from the extension of their validity as referred to in the second subparagraph of this paragraph.’;

(6)

Article 68 is amended as follows:

(a)

in paragraph 1, the second subparagraph is replaced by the following:

‘Such conversion shall take place upon a request to be submitted by those producers before 31 December 2015. Member States may decide to allow producers to submit such a request to convert rights into authorisations until 31 December 2022.’;

(b)

paragraph 2 is replaced by the following:

‘2.   Authorisations granted pursuant to paragraph 1 shall have the same period of validity as the planting rights referred to in paragraph 1. If those authorisations are not used, they shall expire at the latest by 31 December 2018, or, where a Member State has taken the decision referred to in the second subparagraph of paragraph 1, at the latest by 31 December 2025.’;

(7)

The following Article is inserted at the end of Title II, Chapter III, Section 4:

‘Article 167a

Marketing rules to improve and stabilise the operation of the common market in olive oils

1.   In order to improve and stabilise the operation of the common market in olive oils, including the olives from which they derive, producer Member States may lay down marketing rules to regulate supply.

Such rules shall be proportionate to the objective pursued and shall not:

(a)

relate to any transaction after the first marketing of the produce concerned;

(b)

allow for price fixing, including where prices are set for guidance or recommendation;

(c)

render unavailable an excessive proportion of the production of the marketing year that would otherwise be available.

2.   The rules provided for in paragraph 1 shall be brought to the attention of operators by being published in full in an official publication of the Member State concerned.

3.   Member States shall notify the Commission of any decisions taken under this Article.’;

(8)

in Article 211, the following paragraph is added:

‘3.   By way of derogation from paragraph 1 of this Article, Articles 107, 108 and 109 TFEU shall not apply to national fiscal measures whereby Member States decide to deviate from general tax rules by allowing for the income tax base applied to farmers to be calculated on the basis of a multiannual period with a view to evening out the tax base over a certain number of years.’;

(9)

in Article 214a, the following paragraph is added:

‘In 2021 and 2022, Finland may continue to grant the national aids referred to in the first paragraph subject to the same conditions and amounts as authorised by the Commission for 2020.’;

(10)

Annex VI is replaced by the text set out in Annex IV to this Regulation.

TITLE III

FINAL PROVISIONS

Article 11

Entry into force and application

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

Point 5 of Article 9 (concerning Article 25(11) of Regulation (EU) No 1307/2013) and point 5 of Article 10 (concerning Article 62(3) of Regulation (EU) No 1308/2013) shall apply from 1 January 2020.

By way of derogation from the first paragraph of this Article, point 12, point (a) of point 13 and points 17 and 18 of Article 7 shall enter into force on the date of entry into force of the EURI Regulation. Point 12, point (a) of point 13 and points 17 and 18 of Article 7 shall apply from 1 January 2021.

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

Done at Brussels, 23 December 2020.

For the European Parliament

The President

D. M. SASSOLI

For the Council

The President

M. ROTH


(1)  OJ C 232, 14.7.2020, p. 29.

(2)  OJ C 109, 1.4.2020, p. 1.

(3)  Position of the European Parliament of 16 December 2020 (not yet published in the Official Journal) and decision of the Council of 22 December 2020.

(4)  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ L 347, 20.12.2013, p. 320).

(5)  Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 (OJ L 347, 20.12.2013, p. 487).

(6)  Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ L 347, 20.12.2013, p. 549).

(7)  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ L 347, 20.12.2013, p. 608).

(8)  Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).

(9)  Regulation (EU) No 1310/2013 of the European Parliament and of the Council of 17 December 2013 laying down certain transitional provisions on support for rural development by the European Agricultural Fund for Rural Development (EAFRD), amending Regulation (EU) No 1305/2013 of the European Parliament and of the Council as regards resources and their distribution in respect of the year 2014 and amending Council Regulation (EC) No 73/2009 and Regulations (EU) No 1307/2013, (EU) No 1306/2013 and (EU) No 1308/2013 of the European Parliament and of the Council as regards their application in the year 2014 (OJ L 347, 20.12.2013, p. 865).

(10)  Commission Delegated Regulation (EU) No 807/2014 of 11 March 2014 supplementing Regulation (EU) No 1305/2013 of the European Parliament and of the Council on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and introducing transitional provisions (OJ L 227, 31.7.2014, p. 1).

(11)  Regulation (EU) 2017/2393 of the European Parliament and of the Council of 13 December 2017 amending Regulations (EU) No 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD), (EU) No 1306/2013 on the financing, management and monitoring of the common agricultural policy, (EU) No 1307/2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy, (EU) No 1308/2013 establishing a common organisation of the markets in agricultural products and (EU) No 652/2014 laying down provisions for the management of expenditure relating to the food chain, animal health and animal welfare, and relating to plant health and plant reproductive material (OJ L 350, 29.12.2017, p. 15).

(12)  Council Regulation (EU) 2020/2094 of 14 December 2020 establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 crisis (OJ L 433, 22.12.2020, p. 23).

(13)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

(14)  Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ L 277, 21.10.2005, p. 1).

(15)  Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ L 160, 26.6.1999, p. 80).


ANNEX I

Annex I to Regulation (EU) No 1305/2013 is amended as follows:

(1)

the title is replaced by the following:

PART ONE: BREAKDOWN OF UNION SUPPORT FOR RURAL DEVELOPMENT (2014 TO 2020)’;

(2)

the following title and table are added:

PART TWO: BREAKDOWN OF UNION SUPPORT FOR RURAL DEVELOPMENT (2021 AND 2022)

(current prices in EUR)

 

2021

2022

Belgium

101 120 350

82 800 894

Bulgaria

344 590 304

282 162 644

Czechia

316 532 230

259 187 708

Denmark

92 734 249

75 934 060

Germany

1 334 041 136

1 092 359 738

Estonia

107 490 074

88 016 648

Ireland

380 590 206

311 640 628

Greece

680 177 956

556 953 600

Spain

1 319 414 366

1 080 382 825

France

1 782 336 917

1 459 440 070

Croatia

363 085 794

297 307 401

Italy

1 648 587 531

1 349 921 375

Cyprus

29 029 670

23 770 514

Latvia

143 490 636

117 495 173

Lithuania

238 747 895

195 495 162

Luxembourg

15 034 338

12 310 644

Hungary

509 100 229

416 869 149

Malta

24 406 009

19 984 497

Netherlands

89 478 781

73 268 369

Austria

635 078 708

520 024 752

Poland

1 612 048 020

1 320 001 539

Portugal

660 145 863

540 550 620

Romania

1 181 006 852

967 049 892

Slovenia

134 545 025

110 170 192

Slovakia

316 398 138

259 077 909

Finland

432 993 097

354 549 956

Sweden

258 769 726

211 889 741

Total EU-27

14 750 974 100

12 078 615 700

Technical Assistance

36 969 860

30 272 220

Total

14 787 943 960

12 108 887 920 ’


ANNEX II

Annex Ia to Regulation (EU) No 1305/2013 is inserted as follows:

‘ANNEX Ia

BREAKDOWN OF THE ADDITIONAL RESOURCES BY MEMBER STATE AS REFERRED TO IN ARTICLE 58A

(current prices, in EUR)

 

2021

2022

Belgium

14 246 948

33 907 737

Bulgaria

59 744 633

142 192 228

Czechia

54 879 960

130 614 305

Denmark

16 078 147

38 265 991

Germany

209 940 765

499 659 020

Estonia

18 636 494

44 354 855

Ireland

56 130 739

133 591 159

Greece

108 072 886

257 213 470

Spain

212 332 550

505 351 469

France

256 456 603

610 366 714

Croatia

59 666 188

142 005 526

Italy

269 404 179

641 181 947

Cyprus

3 390 542

8 069 491

Latvia

24 878 226

59 210 178

Lithuania

41 393 810

98 517 267

Luxembourg

2 606 635

6 203 790

Hungary

88 267 157

210 075 834

Malta

2 588 898

6 161 577

Netherlands

15 513 719

36 922 650

Austria

101 896 221

242 513 006

Poland

279 494 858

665 197 761

Portugal

104 599 747

248 947 399

Romania

204 761 482

487 332 328

Slovenia

21 684 662

51 609 495

Slovakia

48 286 370

114 921 561

Finland

61 931 116

147 396 056

Sweden

44 865 170

106 779 104

Total EU-27

2 381 748 705

5 668 561 918

Technical Assistance (0,25 %)

5 969 295

14 206 922

Total

2 387 718 000

5 682 768 840


ANNEX III

Annexes II and III to Regulation (EU) No 1307/2013 are amended as follows:

(1)

in Annex II, the following columns are added:

‘2021

2022

494 926

494 926

788 626

797 255

854 947

854 947

862 367

862 367

4 915 695

4 915 695

190 715

193 576

1 186 282

1 186 282

1 891 660

1 890 730

4 800 590

4 797 439

7 285 001

7 274 171

344 340

374 770

3 628 529

3 628 529

47 648

47 648

339 055

344 140

569 965

578 515

32 748

32 748

1 243 185

1 243 185

4 594

4 594

717 382

717 382

677 582

677 582

3 030 049

3 061 233

595 873

600 528

1 891 805

1 919 363

131 530

131 530

391 174

396 034

515 713

517 532

685 676

685 904 ’

(2)

in Annex III, the following columns are added:

‘2021

2022

494,9

494,9

791,2

799,8

854,9

854,9

862,4

862,4

4 915,7

4 915,7

190,7

193,6

1 186,3

1 186,3

2 075,7

2 074,7

4 860,3

4 857,1

7 285,0

7 274,2

344,3

374,8

3 628,5

3 628,5

47,6

47,6

339,1

344,1

570,0

578,5

32,7

32,7

1 243,2

1 243,2

4,6

4,6

717,4

717,4

677,6

677,6

3 030,0

3 061,2

596,1

600,7

1 891,8

1 919,4

131,5

131,5

391,2

396,0

515,7

517,5

685,7

685,9’


ANNEX IV

Annex VI to Regulation (EU) No 1308/2013 is replaced by the following:

‘ANNEX VI

BUDGETARY LIMITS FOR SUPPORT PROGRAMMES REFERRED TO IN ARTICLE 44(1)

in 1 000 EUR per budget year

 

2014

2015

2016

2017-2020

2021 onwards

Bulgaria

26 762

26 762

26 762

26 762

25 721

Czechia

5 155

5 155

5 155

5 155

4 954

Germany

38 895

38 895

38 895

38 895

37 381

Greece

23 963

23 963

23 963

23 963

23 030

Spain

353 081

210 332

210 332

210 332

202 147

France

280 545

280 545

280 545

280 545

269 628

Croatia

11 885

11 885

11 885

10 832

10 410

Italy

336 997

336 997

336 997

336 997

323 883

Cyprus

4 646

4 646

4 646

4 646

4 465

Lithuania

45

45

45

45

43

Luxembourg

588

Hungary

29 103

29 103

29 103

29 103

27 970

Malta

402

Austria

13 688

13 688

13 688

13 688

13 155

Portugal

65 208

65 208

65 208

65 208

62 670

Romania

47 700

47 700

47 700

47 700

45 844

Slovenia

5 045

5 045

5 045

5 045

4 849

Slovakia

5 085

5 085

5 085

5 085

4 887

United Kingdom

120


28.12.2020   

EN

Official Journal of the European Union

L 437/30


REGULATION (EU) 2020/2221 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

amending Regulation (EU) No 1303/2013 as regards additional resources and implementing arrangements to provide assistance for fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and for preparing a green, digital and resilient recovery of the economy (REACT-EU)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 177 and point (a) of Article 322(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the Court of Auditors (1),

After consulting the European Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1)

Member States have been affected by the crisis resulting from the economic, social and health consequences of the COVID-19 pandemic in an unprecedented manner. The crisis hampers growth in Member States, which in turn aggravates the serious liquidity shortages which are due to the sudden and significant increase in public investments needed in Member States’ health systems and other sectors of their economies. The crisis has also exacerbated the situation of people at risk of poverty, thus reducing the social cohesion in Member States. In addition, the closure of internal borders has had a severe impact on economic cooperation, in particular in border areas, affecting the commuting of workers and the viability of micro, small and medium-sized enterprises (SMEs). This has created an exceptional situation which needs to be addressed with specific, immediate and extraordinary measures that reach the real economy quickly.

(2)

In order to respond to the impact of the crisis, Regulations (EU) No 1301/2013 (4) and (EU) No 1303/2013 (5) of the European Parliament and the Council were amended by Regulation (EU) 2020/460 of the European Parliament and of the Council (6) in order to allow for more flexibility in the implementation of operational programmes supported by the European Regional Development Fund (the ‘ERDF’), the European Social Fund (the ‘ESF’) and the Cohesion Fund (collectively ‘the Funds’) and by the European Maritime and Fisheries Fund (the ‘EMFF’). However, as the serious negative effects on Union economies and societies worsened, both Regulations were amended again by Regulation (EU) 2020/558 of the European Parliament and of the Council (7). Those amendments have provided exceptional additional flexibility to enable the Member States to concentrate on the necessary response to the unprecedented crisis by enhancing the possibility to mobilise non-utilised support from the Funds and by simplifying procedural requirements linked to programme implementation and audits.

(3)

On 23 April 2020, the European Council endorsed the ‘Roadmap for recovery’ in order to redress huge shocks to the economy and to mitigate, on the one hand, the social and economic consequences for the Union stemming from the exceptional restrictions put in place by Member States to contain the spread of COVID-19 and, on the other, the risk of an asymmetric recovery, stemming from the different national means available in different Member States, which has, in turn, had a serious impact on the functioning of the internal market. The Roadmap for recovery has a strong investment component and calls for the establishment of the European Recovery Fund. In addition, and as restated in the conclusions of the European Council of 21 July 2020, it mandates the Commission to analyse the needs so that the resources would be targeted towards those sectors and geographical parts of the Union that are most affected, while also clarifying the link with the Multiannual Financial Framework for 2021-2027.

(4)

In accordance with Council Regulation (EU) 2020/2094 (8) and within the limits of the resources allocated therein, recovery and resilience measures under the European Structural and Investment Funds should be carried out to address the unprecedented impact of the COVID-19 crisis. Such additional resources should be used to ensure compliance with the time limits provided for in Regulation (EU) 2020/2094.

(5)

This Regulation lays down rules and implementing arrangements regarding the additional resources provided as Recovery Assistance for Cohesion and the Territories of Europe (‘REACT-EU’) to provide assistance for fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and for preparing a green, digital and resilient recovery of the economy. Under REACT-EU, an additional exceptional amount of up to EUR 47 500 000 000 in 2018 prices for budgetary commitment from the Structural Funds for the years 2021 and 2022 should be made available to support those Member States and regions that are most affected by crisis repair in the context of the COVID-19 pandemic and its social consequences and that are preparing a green, digital and resilient recovery of the economy (‘REACT-EU resources’), with a view to deploying resources quickly to the real economy through the existing operational programmes. The REACT-EU resources stem from the European Union Recovery Instrument. Part of the REACT-EU resources should be allocated to technical assistance at the initiative of the Commission. The Commission should set out the breakdown of the REACT-EU resources for each Member State on the basis of an allocation method based on the latest available objective statistical data concerning Member States’ relative prosperity and the extent of the effect of the COVID-19 crisis on their economies and societies. Before the application of the allocation method concerning the REACT-EU resources for the year 2021 and to provide support for the most important sectors following the COVID-19 crisis in certain Member States, an amount of EUR 100 000 000 and EUR 50 000 000 should be allocated to Luxembourg and Malta, respectively. The allocation method should include a dedicated additional amount for the outermost regions, given the specific vulnerability of their economies and societies. In order to reflect the evolving nature of the effects of the COVID-19 crisis, the breakdown should be revised in 2021 on the basis of the same allocation method and using the latest statistical data available by 19 October 2021 to distribute the 2022 tranche of the REACT-EU resources.

(6)

In view of the importance of tackling climate change in line with the Union’s commitments to implement the Paris Agreement and the UN Sustainable Development Goals, the Funds will contribute to mainstream climate actions and to the achievement of an overall target of 30 % of the Union budget expenditure supporting climate objectives. REACT-EU is expected to contribute 25 % of the overall financial envelope to climate objectives. In line with the nature of REACT-EU as a crisis-repair instrument and the flexibility provided by this Regulation, including the lack of thematic concentration requirements and the possibility for Member States to direct the REACT-EU resources to support ERDF or ESF operations according to their needs, the level of Member States’ contributions towards that ambition may differ depending on national priorities.

(7)

Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 of the Treaty on the Functioning of the European Union (‘TFEU’) apply to this Regulation. Those rules are laid down in Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (9) (the ‘Financial Regulation’) and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes, indirect implementation and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget.

(8)

In order to allow maximum flexibility to Member States in tailoring crisis repair actions in the context of the COVID-19 pandemic and its social consequences and preparing a green, digital and resilient recovery of the economy, allocations should be established by the Commission at Member State level. Furthermore, the possibility of using any REACT-EU resources to support aid for the most deprived and the Youth Employment Initiative (‘YEI’) should also be provided for. In addition, it is necessary to establish ceilings concerning the allocation to technical assistance at the initiative of the Member States while allowing maximum flexibility to the Member States as to its allocation within operational programmes supported by the ERDF or the ESF. The operational strength of the ESF should be maintained when allocating the REACT-EU resources in the policy areas of employment, in particular youth employment in line with the reinforced Youth Guarantee, skills and education, social inclusion and health, with a particular focus on reaching out to disadvantaged groups and children. Taking account of the expected quick spending of the REACT-EU resources, the commitments linked to these resources should only be decommitted at the closure of the operational programmes.

(9)

As the COVID-19 pandemic has affected regions and municipalities in Member States differently, the involvement of regional and local actors from authorities, economic and social partners and civil society, in accordance with the partnership principle, is important for the preparation, implementation, monitoring and evaluation of crisis repair supported by REACT-EU.

(10)

Possibilities for financial transfers under the Investment for growth and jobs goal between the ERDF and the ESF should also be introduced for the REACT-EU resources in accordance with Article 25a of Regulation (EU) No 1303/2013. Such transfers should not affect either the resources available under the European territorial cooperation goal or the specific allocation for the YEI.

(11)

In order to complement the actions already available under the scope of support of the ERDF, as extended by Regulations (EU) 2020/460 and (EU) 2020/558, Member States should continue to be allowed to use the REACT-EU resources primarily for investments in products and services for health services, including cross-border, and institutional, community and family-based care, for providing support in the form of working capital or investment support to SMEs, including advisory support, in particular in the sectors most affected by the COVID-19 pandemic and needing rapid revitalisation, such as tourism and culture, for investments contributing to the transition towards a digital and green economy, for investments in infrastructure providing non-discriminatory basic services to citizens, and for economic support measures for those regions which are most dependent on sectors most affected by the COVID-19 crisis. Stronger health cooperation, coordination and resilience should also be fostered. Furthermore, technical assistance should be supported. It is appropriate that the REACT-EU resources are focused exclusively under the new thematic objective ‘Fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and preparing a green, digital and resilient recovery of the economy’, which should also constitute a single investment priority, to allow for simplified programming and implementation of these resources.

(12)

For the ESF, Member States should use the REACT-EU resources primarily to support access to the labour market and social systems, ensuring job maintenance, including through short-time work schemes and support to the self-employed as well as entrepreneurs and freelancers, artists and creative workers. Short-time work schemes and similar measures, in particular for the self-employed, aim to protect employees and the self-employed against the risk of unemployment while maintaining the same level of working and employment conditions and wages of employees. The REACT-EU resources allocated to such schemes are to be used exclusively to support workers. In the context of the current exceptional circumstances caused by the COVID-19 pandemic, it should be possible to provide support to short-time work schemes for employees and the self-employed even when such support is not combined with active labour market measures, unless those measures are imposed by national law. That rule should also apply in a uniform manner to short-time work schemes which have been supported in accordance with Regulation (EU) No 1303/2013, as amended by Regulations (EU) 2020/460 and (EU) 2020/558 following the COVID-19 crisis, and which continue to be supported under the dedicated investment priority ‘Fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and preparing a green, digital and resilient recovery of the economy’. Union support to such short-time work schemes should be limited in time.

(13)

Support should also be provided for job creation and quality employment, in particular for people in vulnerable situations, and for social inclusion and poverty eradication measures. Youth employment measures should be extended in line with the reinforced Youth Guarantee. Investments in education, training and skills development, including reskilling and upskilling, in particular for disadvantaged groups, should be provided for. Equal access to social services of general interest, including for children, the elderly, persons with disabilities, ethnic minorities and the homeless should be promoted.

(14)

Furthermore, Member States should continue to pay special attention to people living in rural, border, less developed, insular, mountainous, sparsely populated and outermost regions, as well as in areas affected by industrial transition and depopulation and, where appropriate, use the REACT-EU resources towards supporting those people.

(15)

As the temporary closing of borders between Member States has led to significant challenges for cross-border communities and businesses, it is appropriate to allow Member States to allocate the REACT-EU resources also to existing cross-border programmes under the European territorial cooperation goal.

(16)

In order to ensure that Member States have sufficient financial means to quickly implement crisis repair actions in the context of the COVID-19 pandemic and its social consequences and to prepare a green, digital and resilient recovery of the economy, it is necessary to provide a higher level of initial pre-financing payment for the quick implementation of actions supported by the REACT-EU resources. The initial pre-financing to be paid should ensure that Member States have the means to arrange for advance payments to beneficiaries where necessary and to reimburse beneficiaries quickly following the submission of payment claims.

(17)

It should be possible for Member States to allocate the REACT-EU resources to new dedicated operational programmes under the Investment for growth and jobs goal or to new priority axes within existing programmes under the Investment for growth and jobs and the European territorial cooperation goals. In order to enable quick implementation, only already designated authorities of existing operational programmes supported by the ERDF, the ESF, or the Cohesion Fund should be allowed to be identified for new dedicated operational programmes. An ex ante evaluation by the Member States should not be required and the elements required for the submission of the operational programme to the Commission’s approval should be limited.

(18)

The REACT-EU resources should be used in accordance with the sustainable development and ‘Do no harm’ principles, taking into account the Paris Agreement and the UN Sustainable Development Goals. Furthermore, equality between men and women, gender mainstreaming and the integration of gender perspective should be taken into account and promoted throughout the implementation of operational programmes.

(19)

With a view to alleviating the burden on public budgets regarding crisis repair in the context of the COVID-19 pandemic and its social consequences and the preparation of a green, digital and resilient recovery of the economy, expenditure for operations should be eligible from 1 February 2020 and Member States should be given the exceptional possibility to request a co-financing rate of up to 100 % to be applied to the separate priority axes of operational programmes providing support from the REACT-EU resources.

(20)

While it is important to ensure that 31 December 2023 remains the end date for eligibility for the 2014-2020 programming period, it should be made clear that operations could still be selected for support in the course of 2023.

(21)

In order to ensure continuity of implementation of certain operations supported by the REACT-EU resources, the phasing provisions of a Regulation laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument should apply.

(22)

Following the specific flexibility measures in response to the COVID-19 outbreak introduced into Regulation (EU) No 1303/2013 by Regulation (EU) 2020/558, expenditure for physically completed or fully implemented operations that foster crisis repair in the context of the COVID-19 pandemic and its social consequences and prepare a green, digital and resilient recovery of the economy supported under the corresponding new thematic objective should also be eligible, provided that the operations concerned started from 1 February 2020.

(23)

In order to enable Member States to quickly deploy the REACT-EU resources within the current programming period, it is justified to exempt, on an exceptional basis, Member States from the obligation to comply with ex ante conditionalities and requirements on the performance reserve and application of the performance framework, on thematic concentration, also in relation to the thresholds established for sustainable urban development for the ERDF, and requirements on preparation of a communication strategy for the REACT-EU resources. It is nevertheless necessary that Member States carry out at least one evaluation by 31 December 2024 to assess the effectiveness, efficiency, impact and inclusiveness of the REACT-EU resources as well as how these resources have contributed to achieving the goals of the new dedicated thematic objective. To facilitate the availability of comparable information at Union level, Member States should be required, where appropriate, to make use of the COVID-19 programme-specific indicators made available by the Commission. In addition, while carrying out their responsibilities linked to information, communication and visibility, Member States and managing authorities should enhance the visibility of the exceptional measures and resources introduced by the Union, in particular by ensuring that potential beneficiaries, beneficiaries, participants, final recipients of financial instruments and the general public are aware of the existence, volume and additional support stemming from the REACT-EU resources.

(24)

With a view to allowing the REACT-EU resources to be targeted to the geographic areas where they are most needed, as an exceptional measure and without prejudice to the general rules for allocating Structural Funds resources, the REACT-EU resources allocated to the ERDF and the ESF should not be required to be broken down per category of region. However, Member States are expected to take into account the different regional needs and development levels in order to ensure that support is balanced between the needs of the regions and cities most affected by the impact of the COVID-19 pandemic and the need to maintain focus on less developed regions, in accordance with the objectives of economic, social and territorial cohesion set out in Article 174 TFEU. Member States should also involve local and regional authorities, as well as relevant bodies representing civil society and social partners, in accordance with the partnership principle.

(25)

Except for those cases where derogations are provided for by this Regulation, expenditure under REACT-EU should be subject to the same obligations and safeguards as all cohesion funding. That includes respect for fundamental rights and compliance with the Charter of Fundamental Rights of the European Union as well as effective anti-fraud measures implemented with the support of existing anti-fraud agencies at Member State and Union level, such as the European Anti-Fraud Office and, where relevant, the European Public Prosecutor’s Office.

(26)

When measures are adopted to protect the Union budget, it is essential that the legitimate interests of final recipients and beneficiaries be properly safeguarded.

(27)

In order to facilitate the transfers authorised by the changes introduced under this Regulation, the condition laid down in point (f) of Article 30(1) of the Financial Regulation regarding the use of appropriations for the same objective should not apply in respect of those transfers.

(28)

Since the objective of this Regulation, namely to respond to the impact of the COVID-19 crisis by introducing flexibility measures in the field of providing support from the European Structural and Investment Funds, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the proposed action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve that objective.

(29)

Given the urgency of the situation related to the COVID-19 pandemic, this Regulation should enter into force on the day following that of its publication in the Official Journal of the European Union.

(30)

Regulation (EU) No 1303/2013 should therefore be amended accordingly.

(31)

Article 135(2) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (10) provides that amendments to Council Regulation (EU, Euratom) No 1311/2013 (11) or Council Decision 2014/335/EU, Euratom (12) that are adopted on or after the date of entry into force of that Agreement are not to apply to the United Kingdom insofar as those amendments have an impact on the United Kingdom’s financial obligations. The support under this Regulation for 2021 and 2022 is financed from an increase of the own resources ceiling of the Union, which would have an impact on the United Kingdom’s financial obligation. Therefore, this Regulation should not apply to or in the United Kingdom,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EU) No 1303/2013 is amended as follows:

(1)

the following Articles are inserted:

‘Article 92a

REACT-EU resources

The measures referred to in Article 1(2) of Council Regulation (EU) 2020/2094 (*1) shall be implemented under the Structural Funds with an amount of up to EUR 47 500 000 000 in 2018 prices as referred to in point (a)(i) of Article 2(2) of that Regulation, subject to its Article 3(3), (4), (7) and (9).

These additional resources for 2021 and 2022, stemming from the European Union Recovery Instrument, shall provide assistance for fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and for preparing a green, digital and resilient recovery of the economy (“REACT-EU resources”).

As provided for in Article 3(1) of Regulation (EU) 2020/2094, the REACT-EU resources shall constitute external assigned revenues for the purpose of Article 21(5) of the Financial Regulation.

Article 92b

Implementing arrangements for the REACT-EU resources

1.   The REACT-EU resources shall be made available under the Investment for growth and jobs goal.

By way of derogation from Article 94, Member States shall also jointly allocate part of their REACT-EU resources to cross-border co-operation programmes under the European territorial cooperation goal in which they participate, if they agree that such allocations reflect their respective national priorities.

The REACT-EU resources shall be used to implement technical assistance pursuant to paragraph 6 of this Article and the operations implementing the thematic objective referred to in the first subparagraph of paragraph 9 of this Article.

2.   The REACT-EU resources shall be made available for budgetary commitment for the years 2021 and 2022, in addition to the global resources set out in Article 91, as follows:

2021: EUR 37 500 000 000,

2022: EUR 10 000 000 000.

The REACT-EU resources shall also support administrative expenditure up to EUR 18 000 000 in 2018 prices.

Operations to be supported by the REACT-EU resources may be selected for support up to the end of 2023. The phasing provisions set out in a Regulation laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument are applicable to operations supported by the REACT-EU resources.

3.   0,35 % of the REACT-EU resources shall be allocated to technical assistance at the initiative of the Commission, with a special focus on Member States hit harder by the COVID-19 pandemic and Member States with lower absorption and implementation rates.

4.   The Commission shall adopt a decision, by means of implementing acts, setting out the breakdown of the REACT-EU resources as appropriations from the Structural Funds for 2021 for each Member State in accordance with the criteria and methodology set out in Annex VIIa. That decision shall be revised in 2021 to set out the breakdown of the REACT-EU resources for 2022 based on data available by 19 October 2021.

5.   By way of derogation from the first paragraph of Article 76, the budget commitments for the REACT-EU resources in respect of each operational programme concerned shall be made for each Fund for the years 2021 and 2022.

The legal commitment referred to in the second paragraph of Article 76 for the years 2021 and 2022 shall enter into force on or after the date referred to in Article 3(3) of Regulation (EU) 2020/2094.

The third and fourth paragraphs of Article 76 shall not apply in respect of the REACT-EU resources.

By way of derogation from Article 14(3) of the Financial Regulation, the de-commitment rules set out in Chapter IV of Title IX of Part II and in Article 136 of this Regulation shall apply to the budgetary commitments based on the REACT-EU resources. By way of derogation from point (c) of Article 12(4) of the Financial Regulation, the REACT-EU resources shall not be used for a succeeding programme or action.

By way of derogation from Articles 86(2) and 136(1) of this Regulation, the commitments for the REACT-EU resources shall be decommitted in accordance with the rules to be followed for the closure of the programmes.

Each Member State shall allocate the REACT-EU resources available for programming under the ERDF and the ESF to operational programmes or to cross-border cooperation programmes, involving local and regional authorities, as well as relevant bodies representing civil society and social partners, in accordance with the partnership principle.

By way of derogation from Article 92(7), a part of the REACT-EU resources shall also be proposed to be used, if the Member State concerned considers it appropriate, to increase the support for the Fund for European Aid to the Most Deprived (“FEAD”), in order to address the situation of those who have been hit to an unprecedented degree by the COVID-19 crisis. A part of the REACT-EU resources may also be used to increase the support for the YEI. In both cases, the increase may be proposed before or at the same time as the allocation to the ERDF and the ESF.

Following their initial allocation, the REACT-EU resources may, at the request of a Member State for amendment of an operational programme pursuant to Article 30(1), be transferred between the ERDF and the ESF, irrespective of the percentages referred to in points (a), (b) and (c) of Article 92(1), keeping the overall operational strength of the ESF at Union level. This subparagraph shall not apply to ERDF resources allocated to cross-border cooperation programmes under the European territorial cooperation goal.

Article 30(5) shall not apply to the REACT-EU resources. Those resources shall be excluded from the basis of calculation for the purposes of the ceilings established in that paragraph.

For the purposes of the application of point (f) of Article 30(1) of the Financial Regulation, the condition that appropriations are to be for the same objective shall not apply in respect of such transfers. Such transfers may only apply to the ongoing year or to future years in the financial plan.

The requirements laid down in Article 92(4) of this Regulation shall not apply to the initial allocation or the subsequent transfers of the REACT-EU resources.

The REACT-EU resources shall be implemented in accordance with the rules of the Fund to which they are allocated or transferred.

6.   Up to 4 % of the total REACT-EU resources under the ERDF and the ESF may be allocated to technical assistance at the initiative of the Member States, under any existing operational programme supported from the ERDF or the ESF or a new operational programme or programmes referred to in paragraph 10.

Up to 6 % of the additional ERDF resources allocated to a cross-border cooperation programme under the European territorial cooperation goal pursuant to the second subparagraph of paragraph 1 may be allocated to technical assistance.

7.   By way of derogation from Articles 81(1) and 134(1), the initial pre-financing to be paid following the Commission decision adopting an operational programme or approving the amendment to an operational programme for the allocation of the REACT-EU resources shall be 11 % of the REACT-EU resources allocated to programmes for the year 2021.

For the purpose of applying Article 134(2) to the annual pre-financing in the years 2021, 2022 and 2023, the amount of the support from the Funds for the whole programming period to the operational programme shall include the REACT-EU resources.

The amount paid as additional initial pre-financing referred to in the first subparagraph shall be totally cleared from the Commission accounts not later than when the operational programme is closed.

8.   The REACT-EU resources not allocated to technical assistance shall be used under the thematic objective referred to in the first subparagraph of paragraph 9 to support operations that foster crisis repair in the context of the COVID-19 pandemic and its social consequences and prepare a green, digital and resilient recovery of the economy.

Member States may allocate the REACT-EU resources either to one or more separate priority axes within an existing operational programme or programmes under the Investment for growth and jobs goal or within an existing cross-border cooperation programme or programmes under the European territorial cooperation goal, or to a new operational programme or programmes referred to in paragraph 10 of this Article under the Investment for growth and jobs goal. By way of derogation from Article 26(1), the programme shall cover the period until 31 December 2022, subject to paragraph 4 of this Article.

For the ERDF, the REACT-EU resources shall be used primarily to support investments in products and services for health services or in social infrastructure, to provide support in the form of working capital or investment support to SMEs’ investments in sectors with a high job creation potential, to support investments contributing to the transition towards a digital and green economy, to support investments in infrastructure providing basic services to citizens, and to support economic support measures in the regions which are most dependent on sectors most affected by the COVID-19 crisis.

For the ESF, the REACT-EU resources shall be used primarily to support access to the labour market by maintaining jobs of employees and of the self-employed, including through short-time work schemes even when that support is not combined with active labour market measures, unless those measures are imposed by national law. The REACT-EU resources shall support job creation and quality employment, in particular for people in vulnerable situations, and extend youth employment measures in line with the reinforced Youth Guarantee. Investments in education, training and skills development shall be directed to address the twin green and digital transitions.

The REACT-EU resources shall also support social systems contributing to social inclusion, anti-discrimination and poverty eradication measures, with a particular focus on child poverty and enhance equal access to social services of general interest, including for children, the elderly, persons with disabilities, ethnic minorities and the homeless.

9.   With the exception of technical assistance referred to in paragraph 6 of this Article and of the REACT-EU resources used for the FEAD or for the YEI referred to in the seventh subparagraph of paragraph 5 of this Article, the REACT-EU resources shall support operations under the new thematic objective “Fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and preparing a green, digital and resilient recovery of the economy”, complementing the thematic objectives set out in Article 9.

The thematic objective referred to in the first subparagraph of this paragraph shall be available exclusively for the programming of the REACT-EU resources. By way of derogation from points (b), (c) and (d) of Article 96(1) of this Regulation and from Article 8(1) of Regulation (EU) No 1299/2013, it shall not be combined with other investment priorities.

The thematic objective referred to in the first subparagraph of this paragraph shall also constitute the single investment priority for the programming and implementation of the REACT-EU resources from the ERDF and the ESF.

Where one or more separate priority axes are established corresponding to the thematic objective referred to in the first subparagraph of this paragraph within an existing operational programme, the elements listed in points (b)(v) and (vii) of Article 96(2) of this Regulation and in points (b)(v) and (vi) of Article 8(2) of Regulation (EU) No 1299/2013 shall not be required for the description of the priority axis in the revised operational programme.

The revised financing plan set out in point (d) of Article 96(2) of this Regulation and in point (d) of Article 8(2) of Regulation (EU) No 1299/2013 shall set out the allocation of the REACT-EU resources for the year 2021 and, where applicable, for 2022 without identifying amounts for the performance reserve and with no breakdown per category of regions.

By way of derogation from Article 30(1) of this Regulation, requests for the amendment of a programme submitted by a Member State shall be duly justified and shall in particular set out the expected impact of the changes to the programme on fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and on preparing a green, digital and resilient recovery of the economy. Those requests shall be accompanied by the revised programme.

10.   By way of derogation from Article 26(4), new dedicated operational programmes under the Investment for growth and jobs goal may be drawn up by Member States under the new thematic objective referred to in the first subparagraph of paragraph 9 of this Article. No ex ante evaluation as set out in Article 55 shall be required.

By way of derogation from point (a) of Article 96(2), where such a new operational programme is established, the justification shall set out the expected impact of the operational programme on fostering crisis repair in the context of the COVID-19 pandemic and its social consequences and on preparing a green, digital and resilient recovery of the economy.

Where such a new operational programme is established, only authorities already designated under ongoing operational programmes supported by the ERDF, the ESF and the Cohesion Fund may be identified by the Member States for the purposes of point (a) of Article 96(5).

The elements set out in points (b)(v) and (vii) of the first subparagraph of paragraph 2, in paragraph 4, in points (b) and (c) of paragraph 6 and in paragraph 7 of Article 96 shall not be required for such new operational programme. The elements set out in Article 96(3) shall only be required where corresponding support is provided.

By way of derogation from Article 29(3) and (4) and Article 30(2), the Commission shall do its utmost to approve any new dedicated operational programme or any amendment to an existing programme within 15 working days of its submission by a Member State.

11.   By way of derogation from Article 65(2) and (9), expenditure for operations supported under the thematic objective referred to in the first subparagraph of paragraph 9 of this Article shall be eligible from 1 February 2020.

12.   By way of derogation from the first and second subparagraphs of Article 120(3), a co-financing rate of up to 100 % may be applied to the priority axis or axes supported by the REACT-EU resources programmed under the thematic objective referred to in the first subparagraph of paragraph 9 of this Article. Further to the common indicators set out in the Fund-specific rules, Member States shall also, where appropriate, make use of COVID-19 programme-specific indicators made available by the Commission.

By way of derogation from Articles 56(3) and 114(2), the Member States shall ensure that by 31 December 2024 at least one evaluation on the use of the REACT-EU resources is carried out to assess their effectiveness, efficiency, impact and, where applicable, inclusiveness and non-discrimination, including from a gender perspective, and how they contributed to the thematic objective referred to in the first subparagraph of paragraph 9 of this Article.

13.   The following provisions shall not apply to the REACT-EU resources:

(a)

thematic concentration requirements including thresholds established for sustainable urban development as set out in this Regulation or the Fund-specific rules, by way of derogation from Article 18;

(b)

ex ante conditionalities, by way of derogation from Article 19 and the Fund-specific rules;

(c)

requirements on the performance reserve and application of the performance framework, by way of derogation from Articles 20 and 22, respectively;

(d)

Article 65(6) for operations that started from 1 February 2020 and that foster crisis repair in the context of the COVID-19 pandemic and its social consequences and prepare a green, digital and resilient recovery of the economy supported under the thematic objective referred to in the first subparagraph of paragraph 9 of this Article;

(e)

requirements to prepare a communication strategy, by way of derogation from Article 116 and point (a) of Article 115(1).

By way of derogation from the requirements set out in Article 12(4) of Regulation (EU) No 1299/2013 for operations supported by the REACT-EU resources under the European territorial cooperation goal, cooperation of beneficiaries in at least two fields shall be sufficient.

14.   While carrying out their responsibilities linked to information, communication and visibility in accordance with Article 115(1) and (3) and with Annex XII, Member States and managing authorities shall ensure that potential beneficiaries, beneficiaries, participants, final recipients of financial instruments and the general public are aware of the existence, volume and additional support stemming from the REACT-EU resources.

The Member States and managing authorities shall make clear to citizens that the operation in question is funded as part of the Union’s response to the COVID-19 pandemic and shall ensure full transparency, using, where appropriate, social media.

The references to the “Fund”, “Funds” or “ESI Funds” in Section 2.2 of Annex XII shall be complemented by a reference to “funded as part of the Union’s response to the COVID-19 pandemic”, where financial support is provided to operations from the REACT-EU resources.

(*1)  Council Regulation (EU) 2020/2094 of 14 December 2020 establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 crisis (OJ L 433, 22.12.2020, p. 23).’;"

(2)

in Article 154, the following subparagraph is added:

‘Articles 92a and 92b shall not apply to or in the United Kingdom. References to Member States in those provisions shall be understood as not including the United Kingdom.’;

(3)

the text set out in the Annex to this Regulation is inserted as Annex VIIa.

Article 2

The Commission shall provide the European Parliament and the Council with an evaluation of REACT-EU by 31 March 2025. That evaluation shall include information on the achievement of the objectives of REACT-EU, the effectiveness of the use of the REACT-EU resources, the types of actions financed, the beneficiaries and final recipients of the financial allocations, and its European added value in aiding the economic recovery.

Article 3

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

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

Done at Brussels, 23 December 2020.

For the European Parliament

The President

D. M. SASSOLI

For the Council

The President

M. ROTH


(1)  OJ C 272, 17.8.2020, p. 1.

(2)  Opinion of 14 October 2020 (not yet published in the Official Journal).

(3)  Position of the European Parliament of 16 December 2020 (not yet published in the Official Journal) and decision of the Council of 22 December 2020.

(4)  Regulation (EU) No 1301/2013 of the European Parliament and of the Council of 17 December 2013 on the European Regional Development Fund and on specific provisions concerning the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006 (OJ L 347, 20.12.2013, p. 289).

(5)  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ L 347, 20.12.2013, p. 320).

(6)  Regulation (EU) 2020/460 of the European Parliament and of the Council of 30 March 2020 amending Regulations (EU) No 1301/2013, (EU) No 1303/2013 and (EU) No 508/2014 as regards specific measures to mobilise investments in the healthcare systems of Member States and in other sectors of their economies in response to the COVID-19 outbreak (Coronavirus Response Investment Initiative) (OJ L 99, 31.3.2020, p. 5).

(7)  Regulation (EU) 2020/558 of the European Parliament and of the Council of 23 April 2020 amending Regulations (EU) No 1301/2013 and (EU) No 1303/2013 as regards specific measures to provide exceptional flexibility for the use of the European Structural and Investments Funds in response to the COVID-19 outbreak (OJ L 130, 24.4.2020, p. 1).

(8)  Council Regulation (EU) 2020/2094 of 14 December 2020 establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 crisis (OJ L 433, 22.12.2020, p. 23).

(9)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

(10)  OJ L 29, 31.1.2020, p. 7.

(11)  Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual financial framework for the years 2014-2020 (OJ L 347, 20.12.2013, p. 884).

(12)  Council Decision 2014/335/EU, Euratom of 26 May 2014 on the system of own resources of the European Union (OJ L 168, 7.6.2014, p. 105).


ANNEX

‘ANNEX VIIa

METHODOLOGY FOR THE ALLOCATION OF THE REACT-EU RESOURCES – ARTICLE 92b(4)

Allocation method for the REACT-EU resources

The REACT-EU resources shall be distributed between the Member States according to the following methodology:

1.

Each Member State’s provisional share from the REACT-EU resources is determined as the weighted sum of the shares determined on the basis of the following criteria, weighted as indicated:

(a)

A factor of GDP (weighting of 2/3) obtained by applying the following steps:

(i)

share of each Member State of the total loss of real seasonally adjusted GDP expressed in EUR between the first semester of 2019 and the end of the applicable reference period for all Member States considered;

(ii)

adjustment of the shares obtained under point (i) by dividing them with the Member State’s GNI per capita expressed as a percentage of the average GNI per capita of the EU-27 (average expressed as 100 %).

(b)

A factor of unemployment (weighting of 2/9) expressed as the weighted average of:

(i)

the share of the Member State in the total number of unemployed (weighting of 3/4) for all Member States considered in January 2020; and

(ii)

the share of the Member State in the total increase in the number of persons unemployed (weighting of 1/4) between January 2020 and the end of the applicable reference period for all Member States considered.

(c)

A factor of youth unemployment (weighting of 1/9) expressed as the average of:

(i)

the share of the Member State in the total number of young persons unemployed (weighting of 3/4) for all Member States considered in January 2020; and

(ii)

the share of the Member State in the total increase in the number of young persons unemployed (weighting of 1/4) between January 2020 and the applicable reference period for all Member States considered.

If the Member State’s real seasonally adjusted GDP expressed in EUR for the applicable reference period is higher than in the first semester of 2019, that Member State’s data shall be excluded from the calculations in point (a)(i).

If the number of people unemployed (age group 15 to 74) or young people unemployed (age group 15 to 24) in the Member State for the applicable reference period is lower than in January 2020, that Member State’s data shall be excluded from the calculations in points (b)(ii) and (c)(ii).

2.

The rules set out in paragraph 1 shall not result in allocations per Member State for the whole period 2021 to 2022 higher than:

(a)

for Member States whose average GNI per capita (in PPS) for the period 2015-2017 is above 109 % of the EU-27 average: 0,07 % of their real GDP of 2019;

(b)

for Member States whose average GNI per capita (in PPS) for the period 2015-2017 is equal to or below 90 % of the EU-27 average: 2,60 % of their real GDP of 2019;

(c)

for Member States whose average GNI per capita (in PPS) for the period 2015-2017 is above 90 % and equal to or below 109 % of the EU-27 average: the percentage is obtained through a linear interpolation between 0,07 % and 2,60 % of their real GDP of 2019 leading to a proportional reduction of the capping percentage in line with the increase in prosperity.

The amounts exceeding the level set out in points (a) to (c) per Member State are redistributed proportionally to the allocations of all other Member States whose average GNI per capita (in PPS) is under 100 % of the EU-27 average. The GNI per capita (in PPS) for the period 2015-2017 is the one used for cohesion policy in the MFF 2021-2027 negotiations.

3.

For the purposes of calculating the distribution of the REACT-EU resources for the year 2021:

(a)

for the GDP the reference period shall be the first semester of 2020;

(b)

for the number of people unemployed and the number of young people unemployed the reference period shall be the average of June to August 2020;

(c)

the maximum allocation resulting from the application of paragraph 2 is multiplied by the share of the REACT-EU resources for the year 2021 in the total REACT-EU resources for the years 2021 and 2022.

Before the application of the method described in paragraphs 1 and 2 concerning the REACT-EU resources for the year 2021, an amount of EUR 100 000 000 and EUR 50 000 000 shall be allocated to Luxembourg and Malta, respectively.

In addition, an amount corresponding to an aid intensity of EUR 30 per inhabitant shall be allocated to the outermost NUTS level 2 regions from the allocation. That allocation will be distributed per region and Member State in a manner proportional to the total population of those regions. The additional allocation for the outermost regions shall be added to the allocation that every outermost region receives through the distribution of the national budget.

The remaining amount for the year 2021 shall be distributed among Member States in accordance with the method described in paragraphs 1 and 2.

4.

For the purposes of calculating the distribution of the REACT-EU resources for the year 2022:

(a)

for GDP the reference period shall be the first semester of 2021;

(b)

for the number of people unemployed and the number of young people unemployed the reference period shall be the average of June to August 2021;

(c)

the maximum allocation resulting from the application of paragraph 2 is multiplied by the share of the REACT-EU resources for the year 2022 in the total REACT-EU resources for the years 2021 and 2022.

’.

28.12.2020   

EN

Official Journal of the European Union

L 437/43


REGULATION (EU) 2020/2222 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

on certain aspects of railway safety and connectivity with regard to the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

After consulting the European Economic and Social Committee,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

(1)

The Agreement on the withdrawal of the United Kingdom from the European Union and the European Atomic Energy Community (2) (the ‘Withdrawal Agreement’) was concluded by the Union by Council Decision (EU) 2020/135 (3) and entered into force on 1 February 2020. The transition period referred to in Article 126 of the Withdrawal Agreement, during which Union law continues to apply to and in the United Kingdom in accordance with Article 127 of the Withdrawal Agreement (the ‘transition period’), ends on 31 December 2020.

(2)

Article 10 of the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a channel fixed link, signed at Canterbury on 12 February 1986 (the ‘Treaty of Canterbury’) established an Intergovernmental Commission to supervise all matters concerning the construction and operation of the Channel Fixed Link.

(3)

Until the end of the transition period, the Intergovernmental Commission constitutes the national safety authority within the meaning of Directive (EU) 2016/798 of the European Parliament and of the Council (4). In that capacity, it applies in the entirety of the Channel Fixed Link the provisions of Union law relevant to railway safety and, under Directive (EU) 2016/797 of the European Parliament and of the Council (5), railway interoperability.

(4)

After the end of the transition period, unless otherwise provided, Union law will no longer be applicable to the part of the Channel Fixed Link under the jurisdiction of the United Kingdom and, as regards the part of the Channel Fixed Link under the jurisdiction of France, the Intergovernmental Commission will no longer be a national safety authority under Union law. The safety authorisation for the Channel Fixed Link infrastructure manager and safety certificates for railway undertakings operating through the Channel Fixed Link issued by the Intergovernmental Commission pursuant to Article 11 and Article 10 respectively of Directive 2004/49/EC of the European Parliament and of the Council (6) will cease to be valid from 1 January 2021.

(5)

By Decision (EU) 2020/1531 of the European Parliament and of the Council (7), France was empowered to negotiate, sign and conclude an international agreement with the United Kingdom regarding the application of the railway safety and interoperability rules of the Union to the Channel Fixed Link in order to maintain a unified safety regime. Regulation (EU) 2020/1530 of the European Parliament and of the Council (8) amended Directive (EU) 2016/798 as regards, inter alia, the rules pertaining to national safety authorities.

(6)

On the basis of Regulation (EU) 2020/1530, and subject to an agreement envisaged by Decision (EU) 2020/1531 and concluded under certain conditions set out in that Decision, the Intergovernmental Commission was to remain the single safety authority for the entirety of the Channel Fixed Link while constituting, as regards the part of the Channel Fixed Link under the jurisdiction of France, the national safety authority within the meaning of point (7) of Article 3, of Directive (EU) 2016/798.It is, however, unlikely that the agreement envisaged by Decision (EU) 2020/1531 will have entered into force by the end of the transition period.

(7)

Without such an agreement, as from 1 January 2021, the Intergovernmental Commission will no longer qualify as a national safety authority within the meaning of point (7) of Article 3, of Directive (EU) 2016/798, as regards the part of the Channel Fixed Link under the jurisdiction of France. Safety authorisations and safety certificates issued by the Intergovernmental Commission will cease to be valid. The French national safety authority will become the competent national safety authority for the section of the Channel Fixed Link under the jurisdiction of France.

(8)

In light of the economic importance to the Union of the Channel Fixed Link, it is essential that the Channel Fixed Link continues to operate after 1 January 2021. To that end, the safety authorisation for the Channel Fixed Link infrastructure manager issued by the Intergovernmental Commission should remain valid for a maximum period of two months from the date of application of this Regulation, which is enough time to enable the French national safety authority to issue its own safety authorisation.

(9)

The licences issued under Chapter III of Directive 2012/34/EU of the European Parliament and of the Council (9) to railway undertakings established in the United Kingdom will no longer be valid after the end of the transition period. On 10 November 2020, pursuant to Article 14(3) of Directive 2012/34/EU, France notified the Commission of its intention to enter into negotiations on a cross-border agreement with the United Kingdom. The objective of such an agreement would be to allow rail undertakings established and licensed in the United Kingdom to use the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link until the border-crossing station and terminal of Calais-Fréthun (France), without obtaining a licence under Directive 2012/34/EU from a Union licensing authority.

(10)

In order to ensure the connectivity between the Union and the United Kingdom, it is essential that the rail undertakings established and licensed in the United Kingdom continue to operate. To that end, the period of validity of their licences issued by the United Kingdom under Directive 2012/34/EU and of their safety certificates issued by the Intergovernmental Commission should be extended for a period of nine months from the date of application of this Regulation, which is enough time to enable the Member State concerned to take the necessary steps to ensure connectivity in accordance with Directives 2012/34/EU and (EU) 2016/798 and on the basis of the agreement envisaged by Decision (EU) 2020/1531.

(11)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards the withdrawal of the benefit conferred on holders of the authorisations, certificates and licences, where compliance with the Union requirements is not ensured. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (10). The examination procedure should be used for the adoption of those measures, given their potential impact on railway safety. The Commission should adopt immediately applicable implementing acts where, in duly justified cases, imperative grounds of urgency so require.

(12)

In view of the urgency entailed by the end of the transition period, it is appropriate to provide for an exception to the eight-week period referred to in Article 4 of Protocol No 1 on the role of national Parliaments in the European Union, annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community.

(13)

Since the objective of this Regulation, namely to lay down provisional measures on certain aspects of railway safety and connectivity with regard to the end of the transition period, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(14)

This Regulation should enter into force as a matter of urgency and should apply from the day following that of the end of the transition period,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

1.   This Regulation lays down specific provisions, in view of the ending of the transition period referred to in Article 126 of the Withdrawal Agreement, for certain safety authorisations and safety certificates issued under Directive 2004/49/EC and certain licences of railway undertakings issued under Directive 2012/34/EU, referred to in paragraph 2.

2.   This Regulation shall apply to the following authorisations, certificates and licences, which are valid on 31 December 2020:

(a)

safety authorisations issued under Article 11 of Directive 2004/49/EC to infrastructure managers for the management and operation of cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link;

(b)

safety certificates issued under Article 10 of Directive 2004/49/EC to railway undertakings established in the United Kingdom and using the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link;

(c)

licences issued under Chapter III of Directive 2012/34/EU to railway undertakings established in the United Kingdom and using the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link.

Article 2

Definitions

For the purposes of this Regulation, relevant definitions in Directives 2012/34/EU and (EU) 2016/798 and the delegated and implementing acts adopted under those Directives and under Directive 2004/49/EC shall apply.

Article 3

Validity of safety authorisations, safety certificates and licences

1.   The safety authorisations referred to in point (a) of Article 1(2) shall remain valid for two months from the date of application of this Regulation.

2.   The safety certificates referred to in point (b) of Article 1(2) shall remain valid for nine months from the date of application of this Regulation. They shall be valid only for the purpose of reaching the border crossing station and terminal of Calais-Fréthun from the United Kingdom or departing from that station and terminal to the United Kingdom.

3.   Licences referred to in point (c) of Article 1(2) shall remain valid for nine months from the date of application of this Regulation. By way of derogation from Article 23(1) of Directive 2012/34/EU, those licences shall be valid only on the territory situated between the border-crossing station and terminal of Calais-Fréthun and the United Kingdom.

Article 4

Rules and obligations regarding safety authorisations, safety certificates and licences

1.   Safety authorisations, safety certificates and licences governed by Article 3 of this Regulation are subject to the rules applicable to them in accordance with Directives 2012/34/EU and (EU) 2016/798, and in accordance with the implementing and delegated acts adopted under those Directives.

2.   The holders of safety authorisations, safety certificates and licences referred to in Article 1(2), and, as appropriate, the authority issuing them, when different from the national safety authority in whose territory the infrastructure is situated in the Union and under whose competence the border-crossing station and terminal of Calais-Fréthun falls, shall cooperate with that national safety authority and deliver to it all relevant information and documents.

3.   Where information or documents have not been delivered within the time limits set in requests made by the national safety authority referred to in paragraph 2 of this Article, the Commission may, upon notification by the national safety authority, adopt implementing acts to withdraw the benefit conferred on the holder pursuant to Article 3. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 7(2).

4.   Holders of safety authorisations, safety certificates and licences referred to in Article 1(2) of this Regulation shall inform without delay the Commission and the European Union Agency for Railways of any actions by other competent safety authorities, which may conflict with their obligations under this Regulation, Directive 2012/34/EU or Directive (EU) 2016/798.

5.   Before withdrawing the benefits conferred pursuant to Article 3, the Commission shall in due time inform the national safety authority referred to in paragraph 2 of this Article, the authority having issued the safety authorisations, safety certificates and licences referred to in Article 1(2), and the holders of such authorisations, certificates and licences of its intention to proceed to such withdrawal, and shall provide them with the opportunity to make their views known.

6.   As regards the licences referred to in point (c) of Article 1(2) of this Regulation, for the purposes of paragraphs (1) to (5) of this Article, references to a national safety authority shall be understood as references to a licencing authority defined in point (15) of Article 3 of Directive 2012/34/EU.

Article 5

Monitoring compliance with Union law

1.   The national safety authority referred to in Article 4(2) shall monitor the railway safety standards applied to railway undertakings established in the United Kingdom using the cross-border infrastructure referred to in point (a) of Article 1(2), and applied to that cross-border infrastructure. In addition, the national safety authority shall check that infrastructure managers and railway undertakings comply with the safety requirements set out in Union law. Where appropriate, the national safety authority shall provide the Commission and the European Union Agency for Railways with a recommendation for the Commission to act in accordance with paragraph 2 of this Article.

The licencing authority referred to in Article 4(2), in conjunction with Article 4(6), of this Regulation shall monitor whether the requirements of Articles 19 to 22 of Directive 2012/34/EU continue to be met in relation to railway undertakings licensed by the United Kingdom referred to in point (c) of Article 1(2) of this Regulation.

2.   Where the Commission has justified doubts that the safety standards applied to the operation of cross-border railway services or infrastructure falling within the scope of this Regulation or the part of the same infrastructure that is situated in the United Kingdom are in line with the relevant provisions of Union law, it shall without undue delay adopt implementing acts to withdraw the benefit conferred on the holder pursuant to Article 3. The power to adopt implementing acts shall apply mutatis mutandis where the Commission has justified doubts in respect of the fulfilment of the requirements referred to in the second subparagraph of paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 7(2).

3.   For the purposes of paragraph 1 of this Article, the national safety authority or the licensing authority referred to in Article 4(2), in conjunction with Article 4(6), may request information from the relevant competent authorities, setting a reasonable time limit. Where those relevant competent authorities do not provide the information requested within the established time limit, or provide incomplete information, the Commission may, upon notification by the national safety authority or licencing authority referred to in Article 4(2), in conjunction with Article 4(6), as appropriate, adopt implementing acts to withdraw the benefit conferred on the holder pursuant to Article 3. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 7(2).

4.   Before withdrawing the benefits conferred pursuant to Article 3, the Commission shall in due time inform the national safety authority referred to in Article 4(2), the authority having issued the safety authorisations, safety certificates and licences referred to in Article 1(2) and the holders of such authorisations, certificates and licences, as well as the national safety authority and the licensing authority of the United Kingdom, of its intention to proceed to such withdrawal, and shall provide them with the opportunity to make their views known.

Article 6

Consultation and cooperation

1.   The competent authorities of the Member State concerned shall consult and cooperate with the competent authorities of the United Kingdom as necessary in order to ensure the implementation of this Regulation.

2.   The Member State concerned shall, upon request, provide the Commission without undue delay with any information obtained pursuant to paragraph 1 or any other information relevant for the implementation of this Regulation.

Article 7

Committee

1.   The Commission shall be assisted by the committee referred to in Article 51 of Directive (EU) 2016/797 and by the committee referred to in Article 62 of Directive 2012/34/EU. Those committees shall be committees within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Article 8

Entry into force and application

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

2.   It shall apply from 1 January 2021.

3.   This Regulation shall cease to apply on 30 September 2021.

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

Done at Brussels, 23 December 2020.

For the European Parliament

The President

D. M. SASSOLI

For the Council

The President

M. ROTH


(1)  Position of the European Parliament of 17 December 2020 (not yet published in the Official Journal) and decision of the Council of 22 December 2020.

(2)  Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 7).

(3)  Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 1).

(4)  Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 on railway safety (OJ L 138, 26.5.2016, p. 102).

(5)  Directive (EU) 2016/797 of the European Parliament and of the Council of 11 May 2016 on the interoperability of the rail system within the European Union (OJ L 138, 26.5.2016, p. 44).

(6)  Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railway and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ L 164, 30.4.2004, p. 44).

(7)  Decision (EU) 2020/1531 of the European Parliament and of the Council of 21 October 2020 empowering France to negotiate, sign and conclude an international agreement supplementing the Treaty between France and the United Kingdom of Great Britain and Northern Ireland concerning the Construction and Operation by private concessionaires of a Channel Fixed Link (OJ L 352, 22.10.2020, p. 4).

(8)  Regulation (EU) 2020/1530 of the European Parliament and of the Council of 21 October 2020 amending Directive (EU) 2016/798, as regards the application of railway safety and interoperability rules within the Channel Fixed Link (OJ L 352, 22.10.2020, p. 1).

(9)  Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ L 343, 14.12.2012, p. 32).

(10)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).


28.12.2020   

EN

Official Journal of the European Union

L 437/49


REGULATION (EU, Euratom) 2020/2223 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 325 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 106a thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the Court of Auditors (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1)

The adoption of Directive (EU) 2017/1371 of the European Parliament and of the Council (3) and Council Regulation (EU) 2017/1939 (4), substantially strengthened the means available to the Union to protect its financial interests by means of criminal law. The establishment of the European Public Prosecutor’s Office (EPPO) is a key priority in the Union’s criminal justice and anti-fraud policy, having the power to carry out criminal investigations and bring indictments related to criminal offences affecting the financial interests of the Union, within the meaning of Directive (EU) 2017/1371, in the participating Member States.

(2)

To protect the financial interests of the Union, the European Anti-Fraud Office (the ‘Office’) conducts administrative investigations into administrative irregularities as well as criminal conduct. At the end of its investigations, it may make judicial recommendations to the national prosecution authorities, in order to enable them to pursue indictments and prosecutions in Member States. In the Member States participating in the EPPO, it will report suspected criminal offences to the EPPO and collaborate with the EPPO in the context of the EPPO’s investigations.

(3)

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (5) should be amended and adapted in light of the adoption of Regulation (EU) 2017/1939. The provisions of Regulation (EU) 2017/1939 governing the relationship between the Office and the EPPO should be reflected in, and complemented by, provisions in Regulation (EU, Euratom) No 883/2013, in order to ensure the highest level of protection of the financial interests of the Union through synergies between them, while ensuring close cooperation, information exchange, complementarity and the avoidance of duplication.

(4)

In view of their common goal of preserving the integrity of the Union budget, the Office and the EPPO should establish and maintain a close relationship based on the principle of sincere cooperation and aiming to ensure the complementarity of their respective mandates and the coordination of their action, in particular as regards the scope of the enhanced cooperation for the establishment of the EPPO. The relationship between the Office and the EPPO should contribute to ensuring that all means are used to protect the financial interests of the Union.

(5)

Regulation (EU) 2017/1939 requires the Office, as well as the institutions, bodies, offices and agencies of the Union and competent authorities of Member States, to report to the EPPO without undue delay suspected criminal conduct in respect of which the EPPO may exercise its competence. Since the mandate of the Office is to carry out administrative investigations into fraud, corruption and any other illegal activity affecting the financial interests of the Union, it is ideally placed and equipped to act as a partner and privileged source of information for the EPPO.

(6)

Elements pointing to possible criminal conduct falling within the competence of the EPPO may be present in initial allegations received by the Office or emerge only in the course of an administrative investigation opened by the Office on the grounds of a suspicion of administrative irregularity. In order to comply with its duty to report to the EPPO, the Office should therefore report suspected criminal conduct at any stage before or during its investigations.

(7)

Regulation (EU) 2017/1939 specifies the minimum elements that reports are to contain. The Office may need to conduct a preliminary evaluation of allegations to ascertain those elements and collect the necessary information. The Office should conduct such an evaluation expeditiously and by means which do not risk jeopardising a possible future criminal investigation. Upon completion of its evaluation, the Office should report to the EPPO where a suspicion of an offence within its competence is identified.

(8)

In consideration of the Office’s expertise, the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties (‘institutions, bodies, offices and agencies’) should be able to make use of the Office to conduct such a preliminary evaluation of allegations reported to them.

(9)

In accordance with Regulation (EU) 2017/1939, the Office should in principle not open an administrative investigation in parallel with an investigation conducted by the EPPO into the same facts. However, in certain cases, the protection of the financial interests of the Union may require that the Office carry out a complementary administrative investigation before the conclusion of criminal proceedings initiated by the EPPO, with the purpose of ascertaining whether precautionary measures are necessary, or whether financial, disciplinary or administrative action should be taken. Such a complementary investigation may be appropriate, inter alia, to recover amounts due to the Union budget that are subject to specific time-barring rules, where the amounts at risk are very high, or where there is the need to avoid further expenditure in risk situations through administrative measures.

(10)

For the purpose of the application of the requirement of non-duplication of investigations, the notion of ‘same facts’ should be considered, in light of the case-law of the Court of Justice of the European Union (CJEU) on the ne bis in idem principle, to mean that the material facts under investigation are identical or substantially the same and understood in the sense of the existence of a set of concrete circumstances which are inextricably linked in time and space.

(11)

Regulation (EU) 2017/1939 provides that the EPPO may request the Office to carry out complementary administrative investigations. In the absence of such a request, such complementary investigations should be possible on the initiative of the Office under specific conditions after consulting the EPPO. In particular, the EPPO should be able to object to the opening or continuation of an investigation by the Office, or to the performance of certain acts pertaining to one of its investigations, in particular with a view to preserving the effectiveness of its investigation and powers. The Office should refrain from performing an action to which the EPPO has raised an objection. Where the Office opens an investigation in the absence of such an objection, it should conduct that investigation, consulting the EPPO on an ongoing basis.

(12)

The Office should actively support the EPPO’s investigations. In this regard, the EPPO should be able to request the Office to support or complement its criminal investigations through the exercise of powers under Regulation (EU, Euratom) No 883/2013. The Office should provide such support within the limits of its powers and within the framework provided for in that Regulation.

(13)

To ensure effective coordination, cooperation and transparency, the Office and the EPPO should exchange information on an ongoing basis. The exchange of information prior to the opening of investigations by the Office or the EPPO is particularly relevant to ensure proper coordination between their respective actions, to guarantee complementarity and to avoid duplication. To that end, the Office and the EPPO should make use of the hit/no-hit functions in their respective case management systems. The Office and the EPPO should specify the procedure and conditions for that exchange of information in their working arrangements. In order to ensure the proper application of the rules that seek to avoid duplication and ensure complementarity, the Office and the EPPO should agree on certain time limits for their information exchanges.

(14)

The Commission Report on Evaluation of the application of Regulation (EU, Euratom) No 883/2013 of 2 October 2017 (the ‘Commission evaluation report’) concluded that the 2013 changes to the legal framework brought clear improvements as regards the conduct of investigations, cooperation with partners and the rights of the persons concerned. At the same time, the Commission evaluation report highlighted some shortcomings which have an impact on the effectiveness and efficiency of investigations.

(15)

It is necessary to address the clearest findings of the Commission evaluation report by means of amendments to Regulation (EU, Euratom) No 883/2013. Those amendments are necessary in the short term to strengthen the framework for the Office’s investigations in order that the Office remains strong and fullyfunctioning and that it complements the EPPO’s criminal law approach with administrative investigations, without changing the Office’s mandate or powers. The amendments primarily concern areas where the lack of clarity of Regulation (EU, Euratom) No 883/2013 could hinder the effective conduct of investigations by the Office, such as the conduct of on-the-spot checks and inspections, the possibility of access to bank account information, or the admissibility of the case reports drawn up by the Office as evidence in administrative or judicial proceedings.

(16)

The amendments to Regulation (EU, Euratom) No 883/2013 do not affect the procedural guarantees applicable to the framework of investigations. The Office is bound by the procedural guarantees of Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96 (6) and those contained in the Charter of Fundamental Rights of the European Union. That framework requires that the Office conduct its investigations objectively, impartially and confidentially, seeking evidence for and against the persons concerned, and carry out investigative acts on the basis of written authorisation and following a legality check. The Office is required to ensure respect for the rights of the persons concerned by its investigations, including the presumption of innocence and the right to avoid self-incrimination. When interviewed, the persons concerned have, inter alia, the right to be assisted by a person of their choice, to approve the record of the interview, and to use any of the official languages of the institutions of the Union. The persons concerned also have the right to comment on the facts of the case before conclusions are drawn.

(17)

Persons reporting fraud, corruption and any other illegal activity affecting the financial interests of the Union should be afforded the protection of Directive (EU) 2019/1937 of the European Parliament and of the Council (7).

(18)

Where the Office performs, within its mandate, supporting measures at the request of the EPPO, in order to protect the admissibility of evidence, as well as fundamental rights and procedural guarantees, while at the same time avoiding duplication of investigations and providing for an efficient and complementary cooperation, the Office and the EPPO, acting in close cooperation, should ensure that the applicable procedural safeguards of Chapter VI of Regulation (EU) 2017/1939 are observed.

(19)

The Office has power to conduct on-the-spot checks and inspections, which allow it to access the premises and documentation of economic operators in the framework of its investigations into suspected fraud, corruption or other illegal conduct affecting the financial interests of the Union. Such on-the-spot checks and inspections are carried out in accordance with Regulation (EU, Euratom) No 883/2013 and with Regulation (Euratom, EC) No 2185/96, which in some instances make the application of those powers subject to conditions of national law. The Commission evaluation report found that the extent to which national law applies is not completely clear, and as a result hinders the effectiveness of the Office’s investigative activities.

(20)

It is therefore appropriate to clarify the instances in which national law is to apply in the course of investigations by the Office, without changing the powers of the Office or the way in which Regulation (EU, Euratom) No 883/2013 operates in relation to the Member States, reflecting the judgment of the General Court of 3 May 2018 in Case T-48/16, Sigma Orionis SA v European Commission (8).

(21)

The conduct by the Office of on-the-spot checks and inspections in situations where the economic operator concerned submits to the on-the-spot check and inspection should be subject to Union law alone. This would allow the Office to exercise its investigative powers in an effective and coherent manner in all Member States with a view to contributing to a high level of protection of the financial interests of the Union throughout the Union in accordance with Article 325 of the Treaty on the Functioning of the European Union.

(22)

In situations where the Office needs to rely on the assistance of the competent authorities of Member States, particularly where an economic operator resists an on-the-spot check and inspection, Member States should ensure that the Office’s action is effective, and should provide the necessary assistance in accordance with the relevant rules of national procedural law. In order to safeguard the financial interests of the Union, the Commission should take any Member State’s failure to comply with its duty to cooperate with the Office into account in considering whether to recover the amounts concerned through the application of financial corrections on Member States, in accordance with the applicable Union law.

(23)

The Office is able, under Regulation (EU, Euratom) No 883/2013, to enter into administrative arrangements with competent authorities of Member States, such as anti-fraud coordination services, and institutions, bodies, offices and agencies, in order to specify the arrangements for their cooperation under that Regulation, in particular concerning the transmission of information, the conduct of investigations and any follow-up action.

(24)

Regulation (EU, Euratom) No 883/2013 should be amended to introduce a duty on the part of economic operators to cooperate with the Office, in accordance with their obligation under Regulation (Euratom, EC) No 2185/96 to grant access for the carrying out of on-the-spot checks and inspections of premises, land, means of transport or other areas, used for business purposes, and with the obligation set out in Article 129 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (9) that any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, including in the context of investigations by the Office.

(25)

As part of that duty of cooperation, the Office should be able to require economic operators to supply relevant information where they may have been involved in the matter under investigation or may hold such information. When complying with such requests, economic operators should not be obliged to make self-incriminating statements, but they should be obliged to answer factual questions and provide documents, even if that information may be used to establish against them or against another economic operator the existence of illegal activity. To ensure the effectiveness of investigations in the context of current work practices, the Office should be able to request access to information in privately owned devices used for work purposes. Access by the Office should be given subject to the same conditions and to the same extent that apply to national control authorities, and only if the Office has reasonable grounds to suspect that the content of such devices may be relevant for the investigation, in accordance with the principles of necessity and proportionality, and should only concern information relevant to the investigation.

(26)

Economic operators should have the possibility to use any of the official languages of the Member State where the check takes place, and should have the right to be assisted by a person of their choice, including external legal counsel, during on-the-spot checks and inspections. The presence of legal counsel should not, however, represent a legal condition for the validity of on-the-spot checks and inspections. To ensure the effectiveness of on-the-spot checks and inspections, in particular as regards the risk of evidence disappearing, the Office should be able to access to the premises, land, means of transportation or other areas used for business purposes without waiting for the economic operator to consult legal counsel. It should accept only a short, reasonable delay pending consultation of legal counsel before starting the on-the-spot check and inspection. Any such delay should be kept to the strict minimum.

(27)

To ensure transparency when carrying out on-the-spot checks and inspections, the Office should provide economic operators with appropriate information on their duty to cooperate and the consequences of a refusal to do so, and the procedure applicable, including the procedural safeguards.

(28)

In internal and, where necessary, external investigations, the Office has access to any relevant information held by the institutions, bodies, offices and agencies. It is necessary, as suggested in the Commission evaluation report, to clarify that such access should be possible irrespective of the type of medium on which that information or data are stored, in order to reflect evolving technological progress. In the course of internal investigations, the Office should be able to request access to information held on privately owned devices used for work purposes in situations where the Office has reasonable grounds to suspect that their content might be relevant for the investigation. It should be possible to subject access by the Office to specific conditions by the relevant institution, body, office or agency. Such access should comply with the principles of necessity and proportionality and should concern only information relevant to the investigation. To guarantee an effective and consistent level of access for the Office, as well as a high level of protection of the fundamental rights of the persons concerned, the institutions, bodies, offices and agencies should ensure the coherence of the rules on access to private devices adopted by the different institutions, bodies, offices and agencies in order to provide equivalent conditions in compliance with the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF) (10).

(29)

For a more coherent framework for the investigations of the Office, the rules applicable to internal and external investigations should be further aligned in order to address certain inconsistencies identified in the Commission evaluation report where divergent rules are not justified. For instance, reports and recommendations drawn up following an external investigation should, if necessary, be sent to the institution, body, office or agency concerned for it to take appropriate action, as is the case in internal investigations. Where possible in accordance with its mandate, the Office should support the institution, body, office or agency concerned in following up its recommendations. Where the Office does not open an investigation, it should be able to send relevant information to Member States’ authorities or to the institutions, bodies, offices or agencies for appropriate action to be taken. It should send such information where it decides not to open an investigation despite there being a sufficient suspicion of fraud, corruption or any other illegal activity affecting the financial interests of the Union. Before doing so, the Office should give due consideration to a possible interference with ongoing investigations by the EPPO.

(30)

Due to the large diversity of national institutional frameworks, Member States should, on the basis of the principle of sincere cooperation, have the possibility to notify to the Office the authorities that are competent to take actions upon recommendations of the Office, as well as the authorities that need to be informed, such as for financial, statistical or monitoring purposes, for the performance of their relevant duties. Such authorities may include national anti-fraud coordination services. In accordance with the settled case-law of the CJEU, the Office recommendations included in its reports have no binding legal effects on such authorities of Member States or on institutions, bodies, offices and agencies.

(31)

The Office should be provided with the necessary means to follow the money trail in order to uncover the modus operandi typical of much fraudulent conduct. The Office is able to obtain bank account information relevant for its investigative activity held by credit institutions in a number of Member States through cooperation with and assistance by the national authorities. To ensure an effective approach throughout the Union, Regulation (EU, Euratom) No 883/2013 should specify the duty of competent national authorities to provide bank account information to the Office, as part of their general duty to assist the Office. Member States should notify to the Commission the competent authorities through which such cooperation is to take place. When giving such assistance to the Office, the national authorities should act under the same conditions that apply to the competent national authorities of the Member State concerned.

(32)

For the purpose of protecting and complying with procedural guarantees and fundamental rights, the Commission should create an internal function in the form of a Controller of procedural guarantees (the ‘Controller’), which should – with a view to an efficient use of resources – be administratively attached to the Supervisory Committee, and be provided with adequate resources. The Controller should handle complaints in a fully independent manner, including from the Supervisory Committee and from the Office, and should have access to all information necessary to fulfil his or her duties.

(33)

A person concerned should be able to lodge a complaint with the Controller regarding the Office’s compliance with procedural guarantees as well as on the grounds of an infringement of the rules applicable to investigations by the Office, in particular infringements of procedural requirements and fundamental rights.A complaints mechanism should be established to that end. The Controller should be responsible for issuing recommendations in response to such complaints, where necessary suggesting solutions to the issues raised in the complaint. The Controller should examine the complaint in a swift, adversarial procedure, while allowing the Office to continue the ongoing investigation. The Controller should give the complainant and the Office the opportunity to provide comments on or resolve the issues raised in the complaint. The Director-General should take appropriate action as warranted by the Controller’s recommendation. The Director-General should, in duly justified cases, be able to deviate from the Controller’s recommendations. Thereasons for doing so should be attached to the final investigation report.

(34)

In order to increase transparency and accountability, the Controller should report on the complaints mechanism in his or her annual report. The annual report should cover in particular the number of complaints received, the types of infringements of procedural requirements and fundamental rights involved, the activities concerned and, where possible, the follow-up measures taken by the Office.

(35)

The early transmission of information by the Office for the purpose of adopting precautionary measures is an essential tool for the protection of the financial interests of the Union. In order to ensure close cooperation in this regard between the Office and the institutions, offices, bodies and agencies, it is appropriate that the latter have the possibility to consult at any time the Office with a view to deciding on any appropriate precautionary measures, including measures for the safeguarding of evidence.

(36)

Reports drawn up by the Office constitute admissible evidence in administrative or judicial proceedings in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors. According to the Commission evaluation report this rule does not sufficiently ensure the effectiveness of the Office’s activities in some Member States. To increase the effectiveness and the consistent use of reports of the Office, Regulation (EU, Euratom) No 883/2013 should provide for the admissibility of such reports in judicial proceedings of a non-criminal nature before national courts, as well as in administrative proceedings in Member States. The rule providing for equivalence with the reports of national administrative inspectors should continue to apply in the case of national judicial proceedings of a criminal nature. Regulation (EU, Euratom) No 883/2013 should also provide for the admissibility of the reports drawn up by the Office in administrative and judicial proceedings at Union level.

(37)

The anti-fraud coordination services of Member States were introduced by Regulation (EU, Euratom) No 883/2013 to facilitate an effective cooperation and exchange of information, including information of an operational nature, between the Office and Member States. The Commission evaluation report concluded that they have contributed positively to the work of the Office. The Commission evaluation report also identified the need to further clarify the role of those anti-fraud coordination services in order to ensure that the Office is provided with the necessary assistance to ensure that its investigations are effective, while leaving the organisation and powers of the anti-fraud coordination services to each Member State. In that regard, the anti-fraud coordination services should be able to provide or coordinate the necessary assistance to the Office to carry out its tasks effectively, before, during or at the end of an external or internal investigation.

(38)

The duty of the Office to provide Member States with assistance in order to coordinate their action for the protection of the financial interests of the Union is a key element of its mandate to support cross-border cooperation among Member States. More detailed rules should be laid down in order to facilitate the coordinating activities of the Office and its cooperation in this context with Member States’ authorities, third countries and international organisations. Those rules should be without prejudice to the exercise by the Office of powers conferred on the Commission in specific provisions governing mutual assistance between Member States’ administrative authorities and cooperation between those authorities and the Commission, in particular to Council Regulation (EC) No 515/97 (11) and Regulation (EU) No 608/2013 of the European Parliament and of the Council (12), as well as coordination activities relating to the European Structural and Investment Funds.

(39)

It should be clarified that when the competent authorities of Member States, including anti-fraud-coordination services, act in cooperation with the Office or with other competent authorities for the purposes of protecting the financial interests of the Union, they continue to be bound by national law.

(40)

It should be possible for the anti-fraud coordination services in the context of coordination activities to provide assistance to the Office, as well as for the anti-fraud coordination services to cooperate among themselves, in order to further reinforce the available mechanisms for cooperation in the fight against fraud.

(41)

The competent authorities of Member States, as well as the institutions, bodies, offices and agencies, should take the actions warranted by a recommendation of the Office. In order to allow the Office to followup on the development of its cases, where the Office makes judicial recommendations to the national prosecution authorities of a Member State, Member States should, upon request of the Office, send the Office the final decision of the national court. In order to fully maintain judicial independence, such transmission should take place only after the relevant judicial proceedings have been finally determined and the final court decision has become public.

(42)

In order to supplement the procedural rules on the conduct of investigations set out in Regulation (EU, Euratom) No 883/2013, the Office should lay down guidelines on investigation procedures to be followed by the staff of the Office.

(43)

It should be clarified that the Office may participate in joint investigation teams established in accordance with Union law and that it is entitled to exchange operational information acquired in that framework. The use of such information is subject to the conditions and safeguards provided for in the Union law on the basis of which the joint investigation teams have been established. When the Office participates in such joint investigation teams, it has a supporting capacity and takes the role of a partner subject to legal constraints that may exist in Union or national law.

(44)

No later than five years after the date determined in accordance with the second subparagraph of Article 120(2) of Regulation (EU) 2017/1939, the Commission should evaluate the application of Regulation (EU, Euratom) No 883/2013 and in particular the efficiency of the cooperation between the Office and the EPPO in order to consider whether amendments are warranted on the basis of experience regarding that cooperation. The Commission should submit, where appropriate, a new comprehensive legislative proposal, no later than two years after that evaluation.

(45)

Since the objective of this Regulation, namely to strengthen the protection of the financial interests of the Union by adapting the operation of the Office to the establishment of the EPPO and by enhancing the effectiveness of the investigations by the Office, cannot be sufficiently achieved by the Member States, but can rather, by adopting rules governing the relationship between the Office and the EPPO to increase the effectiveness of the conduct of investigations by them, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(46)

This Regulation does not modify the powers and responsibilities of Member States to take measures to combat fraud, corruption and any other illegal activity affecting the financial interests of the Union.

(47)

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (13) and delivered formal comments on 23 July 2018.

(48)

Regulation (EU, Euratom) No 883/2013 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EU, Euratom) No 883/2013 is amended as follows:

(1)

Article 1 is amended as follows:

(a)

in paragraph 3, point (d) is replaced by the following:

‘(d)

Regulation (EU) 2016/679 of the European Parliament and of the Council (*);

(e)

Regulation (EU) 2018/1725 of the European Parliament and of the Council (**).

(*)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1)."

(**)  Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).’;"

(b)

the following paragraph is inserted:

‘4a.   The Office shall establish and maintain a close relationship with the European Public Prosecutor’s Office (EPPO) established in enhanced cooperation by Council Regulation (EU) 2017/1939 (*). That relationship shall be based on mutual cooperation, information exchange, complementarity and the avoidance of duplication. It shall aim in particular to ensure that all available means are used to protect the financial interests of the Union through the complementarity of their respective mandates and the support provided by the Office to the EPPO.

(*)  Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the EPPO”) (OJ L 283, 31.10.2017, p. 1).’;"

(c)

paragraph 5 is replaced by the following:

‘5.   For the application of this Regulation, competent authorities of the Member States and institutions, bodies, offices and agencies may establish administrative arrangements with the Office. Those administrative arrangements may concern, in particular, the transmission of information, the conduct of investigations and any follow-up action.’;

(2)

Article 2 is amended as follows:

(a)

point 3 is replaced by the following:

‘(3)

“fraud, corruption and any other illegal activity affecting the financial interests of the Union” shall have the meaning applied to those words in the relevant Union acts and the notion of “any other illegal activity” shall include irregularity as defined in Article 1(2) of Regulation (EC, Euratom) No 2988/95;’;

(b)

point 4 is replaced by the following:

‘(4)

“administrative investigations” (“investigations”) shall mean any inspection, check or other measure undertaken by the Office in accordance with Articles 3 and 4, with a view to achieving the objectives set out in Article 1 and to establishing, where necessary, the irregular nature of the activities under investigation; those investigations shall not affect the powers of the EPPO or of the competent authorities of Member States to initiate and conduct criminal proceedings;’;

(c)

the following point is added:

‘(8)

“member of an institution” means a member of the European Parliament, a member of the European Council, a representative of a Member State at ministerial level in the Council, a member of the Commission, a member of the Court of Justice of the European Union (CJEU), a member of the Governing Council of the European Central Bank or a member of the Court of Auditors, with respect to the obligations imposed by Union law in the context of the duties they perform in that capacity.’;

(3)

Article 3 is replaced by the following:

‘Article 3

External investigations

1.   In the areas referred to in Article 1, the Office shall carry out on-the-spot checks and inspections in Member States and, in accordance with cooperation and mutual assistance agreements and any other legal instrument in force, in third countries and on the premises of international organisations.

2.   The Office shall carry out on-the-spot checks and inspections in accordance with this Regulation and, to the extent not covered by this Regulation, in accordance with Regulation (Euratom, EC) No 2185/96.

3.   Economic operators shall cooperate with the Office in the course of its investigations. The Office may request written and oral information, including through interviews.

4.   Where, in accordance with paragraph 3 of this Article, the economic operator concerned submits to an on-the-spot check and inspection authorised pursuant to this Regulation, Article 2(4) of Regulation (EC, Euratom) No 2988/95, the third subparagraph of Article 6(1) of Regulation (Euratom, EC) No 2185/96 and Article 7(1) of Regulation (Euratom, EC) No 2185/96 shall not apply insofar as those provisions require compliance with national law and are capable of restricting access to information and documentation by the Office to the same conditions as those that apply to national administrative inspectors.

5.   At the request of the Office, the competent authority of the Member State concerned shall, without undue delay, provide the staff of the Office with the assistance needed in order to carry out their tasks effectively, as specified in the written authorisation referred to in Article 7(2).

The Member State concerned shall ensure, in accordance with Regulation (Euratom, EC) No 2185/96, that the staff of the Office are allowed access to all information, documents and data relating to the matter under investigation which prove necessary in order for the on-the-spot checks and inspections to be carried out effectively and efficiently, and that the staff are able to assume custody of documents or data to ensure that there is no danger of their disappearance. Where privately owned devices are used for work purposes, those devices may be subject to inspection by the Office. The Office shall subject such devices to inspection only under the same conditions and to the same extent that national control authorities are allowed to investigate privately owned devices and where the Office has reasonable grounds for suspecting that their content may be relevant for the investigation.

6.   Where the staff of the Office find that an economic operator resists an on-the-spot check and inspection authorised pursuant to this Regulation, namely where the economic operator refuses to grant the Office the necessary access to its premises or any other areas used for business purposes, conceals information or prevents the conduct of any of the activities that the Office needs to perform in the course of an on-the-spot check and inspection, the competent authorities, including, where appropriate, law enforcement authorities of the Member State concerned shall afford the staff of the Office the necessary assistance so as to enable the Office to conduct its on-the-spot check and inspection effectively and without undue delay.

When providing assistance in accordance with this paragraph or with paragraph 5, the competent authorities of Member States shall act in accordance with national procedural rules applicable to the competent authority concerned. If such assistance requires authorisation from a judicial authority in accordance with national law, such authorisation shall be applied for.

7.   The Office shall conduct on-the-spot checks and inspections upon production of written authorisation, as provided for in Article 7(2). It shall, at the latest at the start of the on-the-spot check and inspection, inform the economic operator concerned of the procedure applicable to the on-the-spot check and inspection, including the applicable procedural safeguards, and the economic operator's duty to cooperate.

8.   In the exercise of the powers assigned to it, the Office shall comply with the procedural guarantees provided for in this Regulation and in Regulation (Euratom, EC) No 2185/96. In the conduct of an on-the-spot check and inspection, the economic operator concerned shall have the right not to make self-incriminating statements and to be assisted by a person of the economic operator’s choice. When making statements during an on-the-spot check and inspection, the economic operator shall be provided with the possibility to use any of the official languages of the Member State where that economic operator is located. The right to be assisted by a person of choice shall not prevent access by the Office to the premises of the economic operator and shall not unduly delay the start of the on-the-spot check and inspection.

9.   Where a Member State does not cooperate with the Office in accordance with paragraphs 5 and 6, the Commission may apply the relevant provisions of Union law in order to recover the funds related to the on-the-spot check and inspection in question.

10.   As part of its investigative function, the Office shall carry out the checks and inspections provided for in Article 9(1) of Regulation (EC, Euratom) No 2988/95 and in the sectoral rules referred to in Article 9(2) of that Regulation in Member States and, in accordance with cooperation and mutual assistance agreements and any other legal instrument in force, in third countries and on the premises of international organisations.

11.   During an external investigation, the Office may have access to any relevant information and data, irrespective of the medium on which it is stored, held by the institutions, bodies, offices and agencies, connected with the matter under investigation, where necessary in order to establish whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. For that purpose Article 4(2) and (4) shall apply.

12.   Without prejudice to Article 12c(1), where, before a decision has been taken whether or not to open an external investigation, the Office handles information which suggests that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union, it may inform the competent authorities of the Member States concerned and, where necessary, the institutions, bodies, offices and agencies concerned.

Without prejudice to the sectoral rules referred to in Article 9(2) of Regulation (EC, Euratom) No 2988/95, the competent authorities of the Member States concerned shall ensure that appropriate action is taken, in which the Office may take part, in accordance with national law. Upon request, the competent authorities of the Member States concerned shall inform the Office of the action taken and of their findings on the basis of information referred to in the first subparagraph of this paragraph.’;

(4)

Article 4 is amended as follows:

(a)

paragraphs 1 to 4 are replaced by the following:

‘1.   Investigations within the institutions, bodies, offices and agencies in the areas referred to in Article 1 shall be conducted in accordance with this Regulation and with the decisions adopted by the relevant institution, body, office or agency (“internal investigations”).

2.   In the course of internal investigations:

(a)

the Office shall have the right of immediate and unannounced access to any relevant information and data, relating to the matter under investigation, irrespective of the type of medium on which it is stored, held by the institutions, bodies, offices and agencies, and to their premises. Where privately owned devices are used for work purposes, those devices may be subject to inspection by the Office. The Office shall subject such devices to inspection only to the extent that the devices are used for work purposes, under the conditions set in the decisions adopted by the relevant institution, body, office or agency and where the Office has reasonable grounds for suspecting that their content may be relevant for the investigation.

The Office shall be empowered to inspect the accounts of the institutions, bodies, offices and agencies. The Office may take a copy of, and obtain extracts from, any document or the contents of any data medium held by the institutions, bodies, offices and agencies and, if necessary, assume custody of such documents or data to ensure that there is no danger of their disappearance;

(b)

the Office may request oral information, including through interviews, and written information from officials, other servants, members of institutions or bodies, heads of offices or agencies, or staff members, thoroughly documented in accordance with the applicable Union confidentiality and data protection rules.

3.   Under the same rules and conditions as provided for in Article 3, the Office may carry out on-the-spot checks and inspections at the premises of economic operators in order to obtain access to information relevant to the matter under investigation within the institutions, bodies, offices and agencies.

4.   The institutions, bodies, offices and agencies shall be informed whenever the staff of the Office conduct an internal investigation on their premises, consult documents or data, or request information held by them. Without prejudice to Articles 10 and 11, the Office may at any time forward to the institution, body, office or agency concerned the information obtained in the course of internal investigations.’;

(b)

in paragraph 8, the first subparagraph is replaced by the following:

‘8.   Without prejudice to Article 12c(1), where, before a decision has been taken whether or not to open an internal investigation, the Office handles information which suggests that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union, it may inform the institution, body, office or agency concerned. Upon request, the institution, body, office or agency concerned shall inform the Office of any action taken and of its findings on the basis of such information.’;

(5)

Article 5 is amended as follows:

(a)

paragraphs 1, 2 and 3 are replaced by the following:

‘1.   Without prejudice to Article 12d, the Director-General may open an investigation when there is a sufficient suspicion, which may be based on information provided by any third party or on anonymous information, that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. The decision to open the investigation may take into account the need for efficient use of the Office’s resources and for the proportionality of the means employed. With regard to internal investigations, specific account shall be taken of the institution, body, office or agency best placed to conduct them, based, in particular, on the nature of the facts, the actual or potential financial impact of the case, and the likelihood of any judicial follow-up.

2.   The decision to open an investigation shall be taken by the Director-General, acting on his or her own initiative or following a request from an institution, body, office or agency or from a Member State.

3.   While the Director-General is considering whether or not to open an internal investigation following a request as referred to in paragraph 2, or while the Office is conducting an internal investigation, the institutions, bodies, offices or agencies concerned shall not open a parallel investigation into the same facts, unless agreed otherwise with the Office.

This paragraph shall not apply to investigations by the EPPO pursuant to Regulation (EU) 2017/1939.’;

(b)

paragraphs 5 and 6 are replaced by the following:

‘5.   If the Director-General decides not to open an investigation, he or she may without delay send any relevant information, as appropriate, to the competent authorities of the Member State concerned for appropriate action to be taken in accordance with Union and national law or to the institution, body, office or agency concerned for appropriate action to be taken in accordance with the rules applicable to that institution, body, office or agency. The Office shall agree with that institution, body, office or agency, if appropriate, on suitable measures to protect the confidentiality of the source of that information and shall, if necessary, ask to be informed of the action taken.

6.   Where the Director-General decides not to open an investigation despite there being a sufficient suspicion that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union, he or she shall send the information referred to in paragraph 5 without delay.’;

(6)

Article 7 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1.   The Director-General shall direct the conduct of investigations on the basis, where appropriate, of written instructions. Investigations shall be conducted under his or her direction by the staff of the Office designated by him or her. The Director-General shall not personally carry out concrete investigative acts.’;

(b)

paragraph 3 is replaced by the following:

‘3.   The competent authorities of Member States shall give the necessary assistance to enable the staff of the Office to fulfil their tasks in accordance with this Regulation effectively and without undue delay. When providing such assistance, the competent authorities of Member States shall act in accordance with any national procedural rules applicable to them.

3a.   At the request of the Office, which shall be explained in writing, in relation to matters under investigation, the relevant competent authorities of the Member States shall, under the same conditions as those that apply to the national competent authorities, provide the Office with the following:

(a)

information available in the centralised automated mechanisms referred to in Article 32a(3) of Directive (EU) 2015/849 of the European Parliament and of the Council (*);

(b)

where strictly necessary for the purposes of the investigation, the record of transactions.

The request of the Office shall include a justification of the appropriateness and proportionality of the measure with regard to the nature and gravity of the matters under investigation. Such request shall refer only to information referred to in points (a) and (b) of the first subparagraph.

Member States shall notify to the Commission the relevant competent authorities for the purposes of points (a) and (b) of the first subparagraph.

3b.   The institutions, bodies, offices and agencies shall ensure that their officials, other servants, members, heads and staff members provide the necessary assistance to enable the staff of the Office to fulfil their tasks effectively and without undue delay.

(*)  Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).’;"

(c)

paragraph 6 is amended as follows:

(i)

in the first subparagraph, point (b) is replaced by the following:

‘(b)

any information that could assist the institution, body, office or agency concerned in deciding on the appropriate precautionary administrative measures to be taken in order to protect the financial interests of the Union;’;

(ii)

the second subparagraph is replaced by the following:

‘The institution, body, office or agency concerned may at any time consult the Office with a view to taking, in close cooperation with the Office, any appropriate precautionary measures, including measures for the safeguarding of evidence. The institution, body, office or agency concerned shall inform the Office without delay about any precautionary measures taken.’;

(d)

paragraph 8 is replaced by the following:

‘8.   If an investigation cannot be closed within 12 months after it has been opened, the Director-General shall, at the expiry of that 12-month period and every six months thereafter, report to the Supervisory Committee, indicating the reasons and, where appropriate, the remedial measures envisaged with a view to speeding up the investigation.’;

(7)

Article 8 is replaced by the following:

‘Article 8

Duty to inform the Office

1.   In the areas referred to in Article 1, the institutions, bodies, offices and agencies shall transmit to the Office without delay any information relating to possible cases of fraud, corruption or any other illegal activity affecting the financial interests of the Union.

Where the institutions, bodies, offices and agencies report to the EPPO in accordance with Article 24 of Regulation (EU) 2017/1939, they may comply with the obligation set out in the first subparagraph of this paragraph by transmitting to the Office a copy of the report sent to the EPPO.

2.   The institutions, bodies, offices and agencies and, unless prevented by national law, the competent authorities of Member States shall, at the request of the Office or on their own initiative, transmit without delay to the Office any document or information they hold which relates to an ongoing investigation by the Office.

Prior to the opening of an investigation they shall, at the request of the Office, which shall be explained in writing,transmit any document or information they hold which is necessary to assess the allegations or to apply the criteria for opening an investigation as set out in Article 5(1).

3.   The institutions, bodies, offices and agencies and, unless prevented by national law, the competent authorities of Member States shall transmit without delay to the Office, at the request of the Office or on their own initiative, any other information, documents or data considered pertinent which they hold, relating to the fight against fraud, corruption and any other illegal activity affecting the financial interests of the Union.

4.   This Article shall not apply to the EPPO as regards the criminal offences in respect of which it could exercise its competence in accordance with Chapter IV of Regulation (EU) 2017/1939.

This is without prejudice to the possibility for the EPPO to provide the Office with relevant information on cases in accordance with Articles 34(8), 36(6), 39(4) and Article 101(3) and (4) of Regulation (EU) 2017/1939.

5.   The provisions related to transmission of information in accordance with Council Regulation (EU) No 904/2010 (*) shall remain unaffected.

(*)  Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 268, 12.10.2010, p. 1).’;"

(8)

Article 9 is amended as follows:

(a)

in paragraph 2, the fourth subparagraph is replaced by the following:

‘The requirements referred to in the second and third subparagraphs shall not apply to the taking of statements in the context of on-the-spot checks and inspections.The procedural guarantees as referred to in Article 3(7) and (8) shall apply to the person concerned, in particular the right to be assisted by a person of his or her choice.’;

(b)

in paragraph 4, the second and third subparagraphs are replaced by the following:

‘To that end, the Office shall send the person concerned an invitation to comment either in writing or at an interview with staff designated by the Office. That invitation shall include a summary of the facts concerning the person concerned and the information required by Articles 15 and 16 of Regulation (EU) 2018/1725, and shall indicate the timelimit for submitting comments, which shall not be less than 10 working days from receipt of the invitation to comment. That notice period may be shortened with the express consent of the person concerned or on duly reasoned grounds of urgency of the investigation. The final investigation report shall make reference to any such comments.

In duly justified cases where necessary to preserve the confidentiality of the investigation or an ongoing or future criminal investigation by the EPPO or a national judicial authority, the Director-General may, where appropriate after consulting the EPPO or the national judicial authority concerned, decide to defer the fulfilment of the obligation to invite the person concerned to comment.’;

(9)

the following articles are inserted:

‘Article 9a

Controller of procedural guarantees

1.   A Controller of procedural guarantees (the “Controller”) shall be appointed by the Commission, in accordance with the procedure specified in paragraph 2, for a non-renewable term of office of five years. On expiry of that term of office, the Controller shall remain in office until he or she is replaced.

2.   The Controller shall be administratively attached to the Supervisory Committee. The Secretariat of the Supervisory Committee shall provide the Controller with all necessary administrative and legal support.

3.   The Commission shall, from within its approved budget, allocate to the Supervisory Committee the personnel and financial means necessary for the Controller.

4.   Following a call for applications in the Official Journal of the European Union, the Commission shall draw up a list of suitably qualified candidates for the position of the Controller. After consulting the European Parliament and the Council, the Commission shall appoint the Controller.

5.   The Controller shall have the necessary qualifications and experience in the field of procedural guarantees.

6.   The Controller shall exercise his or her functions in complete independence, including from the Office and from the Supervisory Committee, and shall neither seek nor take instructions from anyone in the performance of his or her duties.

7.   If the Controller ceases to fulfil the conditions required for the performance of his or her duties, or if the Controller is found guilty of serious misconduct, the European Parliament, the Council and the Commission may, by common accord, relieve the Controller of his or her duties.

8.   Pursuant to the mechanism referred to in Article 9b, the Controller shall monitor the Office’s compliance with procedural guarantees referred to in Article 9, as well as the rules applicable to investigations by the Office. The Controller shall be responsible for handling complaints referred to in Article 9b.

9.   The Controller shall report on the exercise of this function on an annual basis to the European Parliament, the Council, the Commission, the Supervisory Committee and the Office. He or she shall not refer to individual cases under investigation and shall ensure the confidentiality of investigations even after their closure. The Controller shall report to the Supervisory Committee on any systemic issue arising out of his or her recommendations.

Article 9b

Complaints mechanism

1.   A person concerned shall be entitled to lodge a complaint with the Controller regarding the Office’s compliance with the procedural guarantees referred to in Article 9, as well as on the grounds of an infringement of the rules applicable to investigations by the Office, in particular infringements of procedural requirements and fundamental rights. The lodging of a complaint shall have no suspensive effect on the conduct of the investigation that is the subject of the complaint.

2.   Complaints shall be lodged within one month of the complainant becoming aware of the relevant facts that constitute an alleged infringement of the procedural guarantees or rules referred to in paragraph 1 of this Article. In any event, they shall be lodged no more than one month after the closure of the investigation.

Complaints related to the notice period referred to in Article 9(2) and (4) shall, however, be lodged before the expiry of the 10-day notice period referred to in those provisions.

3.   The Controller shall inform the Director-General immediately upon receipt of a complaint.

Within 10 working days of the date of receipt, the Controller shall determine whether paragraphs 1 and 2 are complied with.

In the event of compliance with paragraphs 1 and 2, the Controller shall invite the Office to take action to resolve the complaint and inform the Controller accordingly within 15 working days.

In the event of non-compliance with paragraph 1 or 2, the Controller shall close the file and inform the complainant without delay.

4.   Without prejudice to Article 10, the Office shall transmit to the Controller all information necessary for the Controller to assess whether the complaint is justified as well as information for the purpose of resolving the complaint and enabling the Controller to issue a recommendation.

5.   The Controller shall issue a recommendation on how to resolve the complaint without delay and in any event within two months of the Office informing the Controller of the action it has taken to resolve the complaint. In the absence of receipt of information within the 15-day time limit referred to in the third subparagraph of paragraph 3, the Controller shall issue a recommendation within two-months of the expiry of that time limit.

In exceptional cases the Controller may decide to extend the period for issuing a recommendation by a further 15 calendar days. The Controller shall inform the Director-General of the reasons for such an extension in writing.

The Controller may recommend that the Office amend or repeal its recommendations or reports, on the grounds of an infringement of the procedural guarantees referred to in Article 9 or of the rules applicable to investigations by the Office, in particular infringements of procedural requirements and fundamental rights.

Before issuing a recommendation the Controller shall consult the Supervisory Committee for its opinion.

The Controller shall submit the recommendation to the Office and notify the complainant accordingly.

In the absence of a recommendation by the Controller within the time limits set out in this paragraph, the Controller shall be deemed to have dismissed the complaint without a recommendation.

6.   The Controller shall examine the complaint in an adversarial procedure without interfering with the conduct of the investigation under way.

The Controller may also ask witnesses to provide written or oral explanations that the Controller considers relevant to ascertaining the facts. Witnesses may refuse to provide such explanations.

7.   The Director-General shall take appropriate action as warranted by the recommendation. If the Director-General decides not to follow the Controller’s recommendation, the Director-General shall communicate to the complainant and to the Controller the main reasons for that decision, unless such a communication would affect the on-going investigation. The Director-General shall state the reasons for not following the Controller’s recommendation in a note attached to the final investigation report.

8.   The complaint mechanism under this Article is without prejudice to the means of redress available under the Treaties, including actions relating to compensation for damage.

9.   The Director-General may request the opinion of the Controller on any matter related to procedural guarantees or fundamental rights that falls within the Controller’s mandate, including on a decision to defer informing the person concerned under Article 9(3). The Director-General shall indicate in any such request the time limit within which the Controller shall respond.

10.   Without prejudice to the time limits provided for in Article 90 of the Staff Regulations, where a complaint has been lodged with the Director-General by an official or other servant of the Union in accordance with Article 90a of the Staff Regulations and the official or other servant has lodged a complaint with the Controller related to the same issue, the Director-General shall await the recommendation of the Controller before replying to the complaint.

11.   The Controller shall, after consulting the Supervisory Committee, adopt implementing provisions for the handling of complaints.

Those implementing provisions shall cover, in particular, detailed rules regarding:

(a)

the lodging of a complaint;

(b)

the exchange of information between the Supervisory Committee, the Controller and the Director-General;

(c)

the process for addressing the issues raised in a complaint by the Office;

(d)

the examination of a complaint in an adversarial procedure in accordance with the first subparagraph of paragraph 6;

(e)

the issuing and communication of the Controller's recommendation;

(f)

duly justified cases in which the Director-General may deviate from the Controller’s recommendation and the procedure to be followed in such cases.’;

(10)

Article 10 is amended as follows:

(a)

the following paragraphs are inserted:

‘3a.   Directive (EU) 2019/1937 of the European Parliament and of the Council (*) shall apply to the reporting of fraud, corruption and any other illegal activity affecting the financial interests of the Union and the protection of persons reporting such breaches.

3b.   Where the Office recommends a judicial follow-up, without prejudice to the confidentiality rights of whistle-blowers and informants, and in accordance with the applicable confidentiality and data protection rules, the person concerned may request the Office to provide the report drawn up under Article 11 to the extent that it relates to the person concerned. The Office shall communicate that request without delay to all recipients of that report and shall grant access only with the explicit consent of the recipients. The recipients shall reply within a period of 12 months of receipt of the request. In the absence of an objection within that period, the Office shall grant access.

The competent authority may also authorise the Office to grant access before this period has expired.

(*)  Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).’;"

(b)

in paragraph 4, the first subparagraph is replaced by the following:

‘4.   The Office shall designate a Data Protection Officer in accordance with Article 43 of Regulation (EU) 2018/1725.’;

(11)

Article 11 is amended as follows:

(a)

in paragraph 1, the second subparagraph is replaced by the following:

‘The report shall, where appropriate, be accompanied by recommendations of the Director-General on action to be taken. Those recommendations shall, where appropriate, indicate any disciplinary, administrative, financial or judicial action to be taken by the institutions, bodies, offices and agencies and by the competent authorities of the Member States concerned, and shall specify in particular the estimated amounts to be recovered, as well as the preliminary classification in law of the facts established.’;

(b)

paragraphs 2 and 3 are replaced by the following:

‘2.   In drawing up the reports and recommendations referred to in paragraph 1, account shall be taken of the relevant provisions of Union law and, in so far as it is applicable, of the national law of the Member State concerned.

Reports drawn up on the basis of the first subparagraph, together with all evidence in support and annexed thereto, shall constitute admissible evidence:

(a)

in judicial proceedings of a non-criminal nature before national courts and in administrative proceedings in the Member States;

(b)

in criminal proceedings of the Member State in which their use proves necessary in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors and shall be subject to the same evaluation rules as those applicable to administrative reports drawn up by national administrative inspectors and shall have the same evidentiary value as such reports;

(c)

in judicial proceedings before the CJEU and in administrative proceedings in the institutions, bodies, offices and agencies.

Member States shall notify to the Office any rules of national law relevant for the purposes of point (b) of the second subparagraph.

With regard to point (b) of the second subparagraph, Member States shall, upon request of the Office, send to the Office the final decision of the national courts once the relevant judicial proceedings have been finally determined and the final court decision has become public.

The power of the CJEU and national courts and competent bodies in administrative and criminal proceedings to freely assess the evidential value of the reports drawn up by the Office shall not be affected by this Regulation.

2a.   The Office shall take appropriate measures to ensure the consistent quality of reports and recommendations referred to in paragraph 1.

3.   Reports and recommendations drawn up following an external investigation and any relevant related documents shall be sent to the competent authorities of the Member States concerned in accordance with the rules relating to external investigations and, if necessary, to the institution, body, office or agency concerned. The competent authorities of the Member State concerned and, if applicable, the institution, body, office or agency shall take such action as the results of the external investigation warrant and shall report thereon to the Office within a timelimit laid down in the recommendations accompanying the report and, in addition, at the request of the Office. Member States may notify to the Office the relevant national authorities competent to deal with such reports, recommendations and documents.’;

(c)

paragraph 5 is replaced by the following:

‘5.   Where the report drawn up following an internal investigation reveals the existence of facts which could give rise to criminal proceedings, that information, together with the recommendations, shall be transmitted without delay to the judicial authorities of the Member State concerned, without prejudice to Articles 12c and 12d.

At the request of the Office, the competent authorities of the Member States concerned shall, within a time limit laid down in the recommendations, send to the Office information on the action taken, if any, and the reasons for non-implementation of the recommendations, where applicable, following the transmission by the Office of any information in accordance with the first subparagraph of this paragraph.’;

(d)

paragraph 6 is deleted;

(e)

paragraph 8 is replaced by the following:

‘8.   Where an informant provided the Office with information which led to the investigation, the Office shall notify that informant that the investigation has been closed, unless it considers that this information is such as to prejudice the legitimate interests of the person concerned and the effectiveness of the investigation and of the action to be taken subsequent thereto, or any confidentiality requirements.’;

(12)

Article 12 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1.   Without prejudice to Articles 10 and 11 of this Regulation and to the provisions of Regulation (Euratom, EC) No 2185/96, the Office may transmit to the competent authorities of the Member States concerned information obtained in the course of external investigations in due time to enable them to take appropriate action in accordance with their national law. It may also transmit such information to the institution, body, office or agency concerned.’;

(b)

paragraph 3 is replaced by the following:

‘3.   The competent authorities of the Member State concerned shall, unless prevented by national law, inform the Office without delay, and in any event within 12 months of receipt of the information transmitted to them in accordance with this Article, of the action taken on the basis of that information.’;

(c)

the following paragraph is added:

‘5.   The Office may provide relevant information to the Eurofisc network established by Regulation (EU) No 904/2010. Eurofisc working field coordinators may transmit relevant information from the Eurofisc network to the Office under the conditions laid down in Regulation (EU) No 904/2010.’;

(13)

the following articles are inserted:

‘Article 12a

Anti-fraud coordination services

1.   Each Member State shall, for the purposes of this Regulation, designate a service (the “anti-fraud coordination service”) to facilitate effective cooperation and exchange of information, including information of an operational nature, with the Office. Where appropriate, in accordance with national law, the anti-fraud coordination service may be regarded as a competent authority for the purposes of this Regulation.

2.   Upon request of the Office, before a decision has been taken as to whether or not to open an investigation, as well as during or after an investigation, the anti-fraud coordination services shall provide or coordinate the necessary assistance for the Office to carry out its tasks effectively. Such assistance shall include in particular assistance from the competent authorities of Member States provided in accordance with Article 3(5) and (6), Article 7(3) and Article 8(2) and (3).

3.   The anti-fraud coordination services may provide assistance to the Office upon request so that the Office may conduct coordination activities in accordance with Article 12b, including, where appropriate, horizontal cooperation and exchange of information between anti-fraud coordination services.

Article 12b

Coordination activities

1.   Pursuant to Article 1(2), the Office may organise and facilitate cooperation between the competent authorities of Member States, institutions, bodies, offices and agencies as well as, in accordance with the cooperation and mutual assistance agreements and any other legal instrument in force, third-country authorities and international organisations. For the purpose of protecting the financial interests of the Union, the participating authorities and the Office may collect, analyse and exchange information, including operational information. The staff of the Office may accompany competent authorities carrying out investigative activities upon request of those authorities. Article 6, Article 7(6) and (7), Article 8(3) and Article 10 shall apply.

2.   The Office shall, where appropriate, draw up a report on the coordination activities conducted and transmit it to the competent authorities of Member States and institutions, bodies, offices and agencies concerned.

3.   This Article shall apply without prejudice to the exercise by the Office of powers conferred on the Commission in specific provisions governing mutual assistance between Member States’ administrative authorities and cooperation between those authorities and the Commission.

4.   The Office may participate in joint investigation teams established in accordance with applicable Union law and in that framework exchange operational information acquired pursuant to this Regulation.

Article 12c

Reporting criminal conduct to the EPPO

1.   The Office shall submit a report to the EPPO without undue delay on any criminal conduct in respect of which the EPPO could exercise its competence in accordance with Chapter IV of Regulation (EU) 2017/1939. The report shall be sent without undue delay before or during an investigation of the Office.

2.   The report referred to in paragraph 1 shall contain, as a minimum, a description of the facts, including an assessment of the damage caused or likely to be caused, the possible legal qualification and any available information about potential victims, suspects or other persons involved.

3.   The Office shall not be bound to report to the EPPO manifestly unsubstantiated allegations.

4.   Where the information received by the Office does not include the elements set out in paragraph 2 of this Article, and there is no ongoing investigation of the Office, the Office may conduct a preliminary evaluation of the allegations. The evaluation shall be carried out without delay and in any case within two months of receipt of the information. In the course of that evaluation, Article 6 and Article 8(2) shall apply. Following this preliminary evaluation, the Office shall report to the EPPO any criminal conduct as referred to in paragraph 1 of this Article.

5.   Where the criminal conduct referred to in paragraph 1 of this Article comes to light during an investigation by the Office, and the EPPO opens an investigation following the report referred to in that paragraph, the Office shall not continue its investigation into the same facts other than in accordance with Article 12e or 12f.

For the purpose of applying the first subparagraph of this paragraph, the Office shall verify in accordance with Article 12g(2), via the EPPO’s case management system, whether the EPPO is conducting an investigation. The Office may request further information from the EPPO. The EPPO shall reply to such a request within a time limit to be set in accordance with Article 12g.

6.   The institutions, bodies, offices and agencies may request the Office to conduct a preliminary evaluation of allegations reported to them. For the purposes of those requests, paragraphs 1 to 4 shall apply mutatis mutandis. The Office shall inform the institution, body, office or agency concerned of the results of the preliminary evaluation, unless providing such information could jeopardise an investigation conducted by the Office or by the EPPO.

7.   Where, following the report to the EPPO in accordance with this Article, the Office closes its investigation, Article 9(4) and Article 11 shall not apply.

Article 12d

Non-duplication of investigations

1.   Without prejudice to Articles 12e and 12f, the Director-General shall discontinue an ongoing investigation and shall not open a new investigation under Article 5 where the EPPO is conducting an investigation into the same facts. The Director-General shall inform the EPPO about each decision to discontinue taken on such grounds.

For the purpose of applying the first subparagraph of this paragraph, the Office shall verify in accordance with Article 12g(2), via the EPPO’s case management system, whether the EPPO is conducting an investigation. The Office may request further information from the EPPO. The EPPO shall reply to such a request within a time limit to be set in accordance with Article 12g.

Where the Office discontinues its investigation in accordance with the first subparagraph of this paragraph, Article 9(4) and Article 11 shall not apply.

2.   The EPPO may, with a view to enabling the Office to consider appropriate administrative action in accordance with its mandate, provide relevant information to the Office about cases where the EPPO has decided not to conduct an investigation or has dismissed a case. Where new facts which were not known to the EPPO at the time of the decision to dismiss as referred to in Article 39(1) of the Regulation (EU) 2017/1939 become known to the Office, the Director General may ask the EPPO to reopen an investigation, in accordance with Article 39(2) of that Regulation.

Article 12e

The Office’s support to the EPPO

1.   In the course of an investigation by the EPPO, and at the request of the EPPO in accordance with Article 101(3) of Regulation (EU) 2017/1939, the Office shall, in accordance with its mandate, support or complement the EPPO’s activity, in particular by:

(a)

providing information, analyses (including forensic analyses), expertise and operational support;

(b)

facilitating coordination of specific actions of the competent national administrative authorities and bodies of the Union;

(c)

conducting administrative investigations.

When providing support to the EPPO, the Office shall refrain from performing acts or measures which could jeopardise the investigation or prosecution.

2.   A request referred to in paragraph 1 shall be transmitted in writing and shall specify at least:

(a)

the information relating to the EPPO investigation in so far as relevant for the purpose of the request;

(b)

the measures which the EPPO requests the Office to perform;

(c)

where appropriate, the envisaged timing for carrying out the request.

Where necessary, the Office may request additional information.

3.   In order to protect the admissibility of evidence as well as fundamental rights and procedural guarantees, where the Office performs, within its mandate, supporting measures requested by the EPPO pursuant to this Article, the EPPO and the Office, acting in close cooperation, shall ensure that the applicable procedural safeguards of Chapter VI of Regulation (EU) 2017/1939 are observed.

Article 12f

Complementary investigations

1.   Where the EPPO is conducting an investigation and the Director-General, in duly justified cases, considers that an investigation by the Office should also be opened in accordance with the mandate of the Office with a view to facilitating the adoption of precautionary measures or of financial, disciplinary or administrative action, the Office shall inform the EPPO in writing, specifying the nature and purpose of the investigation.

After receipt of such information and within a time limit to be set in accordance with Article 12g, the EPPO may object to the opening of an investigation or to the performance of certain acts pertaining to the investigation. Where the EPPO objects to the opening of an investigation or to the performance of certain acts pertaining to an investigation, it shall notify the Office without undue delay when the grounds for the objection cease to apply.

In the event that the EPPO does not object within the time limit to be set in accordance with Article 12g, the Office may open an investigation, which it shall conduct in consultation with the EPPO on an ongoing basis. If the EPPO subsequently objects, the Office shall suspend or discontinue its investigation, or refrain from performing certain acts pertaining to the investigation.

2.   Where the EPPO informs the Office that it is not conducting an investigation in reply to a request for information submitted in accordance with Article 12d and subsequently opens an investigation into the same facts, it shall inform the Office without delay. If, following receipt of such information, the Director-General considers that the investigation opened by the Office should be continued with a view to facilitating the adoption of precautionary measures or of financial, disciplinary or administrative action, paragraph 1 of this Article shall apply.

Article 12g

Working arrangements and exchange of information with the EPPO

1.   The Office shall agree on working arrangements with the EPPO. Such working arrangements shall establish, inter alia, practical arrangements for the exchange of information, including personal data, operational, strategic or technical information and classified information, and complementary investigations.

The working arrangements shall include detailed arrangements on the continuous exchange of information during the receipt and verification of allegations for the purpose of determining the competence over investigations. They shall also include arrangements on the transfer of information between the Office and the EPPO, when the Office acts in support or in a complementary manner to the EPPO. They shall provide for time limits for answering each others requests.

The Office and the EPPO shall agree on the time limits and the detailed arrangements with regard to Article 12c(5), Article 12d(1) and Article 12f(1). Until such agreement is reached, the EPPO shall reply to the Office's requests without delay, and in any case within 10 working days of a request as referred to in Article 12c(5) and Article 12d(1) and 20 working days of a request for information as referred to in the first subparagraph of Article 12f(1).

Prior to the adoption of the working arrangements with the EPPO, the Director-General shall send the draft to the Supervisory Committee, and to the European Parliament and to the Council for information. The Supervisory Committee shall deliver an opinion without delay.

2.   The Office shall have indirect access to information in the EPPO’s case management system on the basis of a hit/no-hit system.

Whenever a match is found between data entered into the case management system by the Office and data held by the EPPO, the fact that there is a match shall be communicated to both the Office and the EPPO. The Office shall take appropriate measures to enable the EPPO to have access to information in its case management system on the basis of a hit/no-hit system.

The technical and security aspects of the reciprocal access to the case management systems, including internal procedures to ensure that each access is duly justified for the performance of their functions and is documented, shall be established in the working arrangements.

3.   The Director-General and the European Chief Prosecutor shall meet at least annually to discuss matters of common interest.’;

(14)

in Article 13(1), the first subparagraph is replaced by the following:

‘1.   Within its mandate to protect the financial interests of the Union, the Office shall cooperate, as appropriate, with the European Union Agency for Criminal Justice Cooperation (Eurojust) and with the European Union Agency for Law Enforcement Cooperation (Europol). Where necessary in order to facilitate that cooperation, the Office shall agree with Eurojust and Europol on administrative arrangements. Such working arrangements may concern exchange of operational, strategic or technical information, including personal data and classified information and, on request, progress reports.’;

(15)

Article 15 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1.   The Supervisory Committee shall regularly monitor the implementation by the Office of its investigative function, in order to reinforce the Office’s independence in the proper exercise of the competences conferred upon it by this Regulation.

The Supervisory Committee shall in particular monitor developments concerning the application of procedural guarantees and the duration of investigations.

The Supervisory Committee shall address to the Director-General opinions, including where appropriate, recommendations on, inter alia, the resources needed to carry out the investigative function of the Office, on the investigative priorities of the Office and on the duration of investigations. Those opinions may be delivered on its own initiative, at the request of the Director-General or at the request of an institution, body, office or agency, without however interfering with the conduct of investigations in progress.

The Office shall publish on its website its replies to the opinions delivered by the Supervisory Committee.

The institutions, bodies, offices or agencies shall be provided with a copy of opinions delivered pursuant to the third subparagraph.

The Supervisory Committee shall be granted access to all the information and documents it considers necessary for the performance of its tasks, including reports and recommendations on closed investigations and cases dismissed, without however interfering with the conduct of investigations in progress and with due regard to the requirements of confidentiality and data protection.’;

(b)

in paragraph 8, the first subparagraph is replaced by the following:

‘8.   The Supervisory Committee shall appoint its chair. It shall adopt its own rules of procedure, which shall, before adoption, be submitted to the European Parliament, the Council, the Commission and the European Data Protection Supervisor for information. Meetings of the Supervisory Committee shall be convened on the initiative of its chair or the Director-General. It shall hold at least 10 meetings per year. The Supervisory Committee shall take its decisions by a majority of its component members. Its secretariat shall be provided by the Commission and in close cooperation with the Supervisory Committee. Before the appointment of any staff to the secretariat, the Supervisory Committee shall be consulted and its views shall be taken into account. The secretariat shall act on the instructions of the Supervisory Committee and independently from the Commission. Without prejudice to its control over the budget of the Supervisory Committee and its secretariat, the Commission shall not interfere with the monitoring functions of the Supervisory Committee.’;

(16)

in Article 16, paragraphs 1 and 2 are replaced by the following:

‘1.   The European Parliament, the Council and the Commission shall once a year meet the Director-General for an exchange of views at political level to discuss the Office’s policy relating to methods of preventing and combating fraud, corruption or any other illegal activity affecting the financial interests of the Union. The Supervisory Committee shall participate in the exchange of views. The European Chief Prosecutor shall be invited to attend the exchange of views. Representatives of the Court of Auditors, the EPPO, Eurojust and Europol may be invited to attend on an ad hoc basis upon request of the European Parliament, of the Council, of the Commission, of the Director-General or of the Supervisory Committee.

2.   Within the objective of paragraph 1, the exchange of views may relate to any subject the European Parliament, the Council and the Commission agree on. In particular, the exchange of views may relate to:

(a)

the strategic priorities for the Office’s investigation policies;

(b)

the opinions and activity reports of the Supervisory Committee provided for under Article 15;

(c)

the reports of the Director-General under Article 17(4) and, as appropriate, any other reports by the institutions relating to the mandate of the Office;

(d)

the framework of the relations between the Office and the institutions, bodies, offices and agencies, in particular the EPPO, including any horizontal and systemic issues encountered in the follow-up to the Office’s final investigation reports;

(e)

the framework of the relations between the Office and the competent authorities of Member States, including any horizontal and systemic issues encountered in the follow-up to the Office’s final investigation reports;

(f)

the relations between the Office and the competent authorities in third countries as well as international organisations in the framework of the arrangements referred to in this Regulation;

(g)

the effectiveness of the work of the Office with regard to the performance of its mandate.’;

(17)

Article 17 is amended as follows:

(a)

paragraphs 2 to 5 are replaced by the following:

‘2.   In order to appoint a new Director-General, the Commission shall publish a call for applications in the Official Journal of the European Union. Such publication shall take place at the latest six months before the end of the term of office of the Director-General in office. The Commission shall draw up a list of suitably qualified candidates. After a favourable opinion has been given by the Supervisory Committee on the selection procedure applied by the Commission, the European Parliament and the Council shall in due time agree on a shortlist of three candidates from the list of suitable candidates drawn up by the Commission. The Commission shall appoint the Director-General from that shortlist.

3.   The Director-General shall neither seek nor take instructions from any government or any institution, body, office or agency in the performance of his or her duties with regard to the opening and carrying-out of external and internal investigations or coordination activities, or to the drafting of reports following such investigations or coordination activities. If the Director-General considers that a measure taken by the Commission calls his or her independence into question, he or she shall immediately inform the Supervisory Committee and shall decide whether to bring an action against the Commission before the CJEU.

4.   The Director-General shall report regularly, and at least annually, to the European Parliament, to the Council, to the Commission and to the Court of Auditors on the findings of investigations carried out by the Office, the action taken and the problems encountered, whilst respecting the confidentiality of the investigations, the legitimate rights of the persons concerned and of informants, and, where appropriate, national law applicable to judicial proceedings. Those reports shall also include an assessment of the actions taken by the competent authorities of Member States and the institutions, bodies, offices and agencies, following reports and recommendations drawn up by the Office.

4a.   At the request of the European Parliament or of the Council, in the context of their budgetary control rights, the Director-General may provide information about the Office’s activities, respecting the confidentiality of investigations and follow-up proceedings. The European Parliament and the Council shall ensure the confidentiality of information provided in accordance with this paragraph.

5.   The Director-General shall keep the Supervisory Committee periodically informed of the Office’s activities, the implementation of its investigative function and the action taken by way of follow-up to investigations.

The Director-General shall inform the Supervisory Committee periodically:

(a)

of cases in which the recommendations made by the Director-General have not been followed;

(b)

of cases in which information has been transmitted to judicial authorities of the Member States or to the EPPO;

(c)

of cases in which no investigation has been opened and of cases dismissed;

(d)

on the duration of investigations in accordance with Article 7(8).’;

(b)

paragraph 7 is replaced by the following:

‘7.   The Director-General shall put in place an internal advisory and control procedure, including a legality check, relating, inter alia, to the respect of procedural guarantees and fundamental rights of the persons concerned and of the national law of the Member States concerned, with particular reference to Article 11(2). The legality check shall be carried out by Office staff who are experts in law and investigative procedures. Their opinion shall be annexed to the final investigation report.’;

(c)

in paragraph 8, the first subparagraph is replaced by the following:

‘8.   The Director-General shall adopt guidelines on investigation procedures for the staff of the Office. Those guidelines shall be in accordance with this Regulation and shall cover, inter alia:

(a)

the practices to be observed in implementing the mandate of the Office;

(b)

detailed rules governing investigations procedures;

(c)

the procedural guarantees;

(d)

details on the internal advisory and control procedures, including the legality check;

(e)

data protection and policies on communication and access to documents as laid down in Article 10(3b);

(f)

relations with the EPPO.’;

(d)

in paragraph 9, the first subparagraph is replaced by the following:

‘9.   Before imposing any disciplinary penalty on the Director-General or waiving his or her immunity, the Commission shall consult the Supervisory Committee.’;

(18)

Article 19 is replaced by the following:

‘Article 19

Evaluation report and possible revision

1.   No later than five years after the date determined in accordance with the second subparagraph of Article 120(2) of Regulation (EU) 2017/1939, the Commission shall submit to the European Parliament and to the Council an evaluation report on the application and impact of this Regulation, in particular as regards the effectiveness and efficiency of the cooperation between the Office and the EPPO. That report shall be accompanied by an opinion of the Supervisory Committee.

2.   No later than two years after the submission of the evaluation report pursuant to the first paragraph, the Commission shall, where appropriate, submit a legislative proposal to the European Parliament and to the Council to modernise the Office’s framework, including additional or more detailed rules on the setting up of the Office, its functions or the procedures applicable to its activities, with particular regard to its cooperation with the EPPO, cross-border investigations and investigations in Member States not participating in the EPPO.’.

Article 2

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

However, Articles 12c to 12f of Regulation (EU, Euratom) No 883/2013, as inserted by point (13) of Article 1 of this Regulation, shall apply from a date to be determined in accordance with the second subparagraph of Article 120(2) of Regulation (EU) 2017/1939.

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

Done at Brussels, 23 December 2020.

For the European Parliament

The President

D. M. SASSOLI

For the Council

The President

M. ROTH


(1)  OJ C 42, 1.2.2019, p. 1.

(2)  Position of the European Parliament of 16 April 2019 (not yet published in the Official Journal) and position of the Council at first reading of 4 December 2020 (not yet published in the Official Journal). Position of the European Parliament of 17 December 2020 (not yet published in the Official Journal).

(3)  Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29).

(4)  Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).

(5)  Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).

(6)  Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

(7)  Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).

(8)  Judgment of the General Court (First Chamber) of 3 May 2018, Sigma Orionis SA v European Commission, T-48/16, ECLI:EU:T:2018:245.

(9)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

(10)  OJ L 136, 31.5.1999, p. 15.

(11)  Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (OJ L 82, 22.3.1997, p. 1).

(12)  Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 (OJ L 181, 29.6.2013, p. 15).

(13)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).


28.12.2020   

EN

Official Journal of the European Union

L 437/74


REGULATION (EU) 2020/2224 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

on common rules ensuring basic road freight and road passenger connectivity following the end of the transition period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

After consulting the European Economic and Social Committee,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

(1)

The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2) (the ‘Withdrawal Agreement’) was concluded by the Union by means of Council Decision (EU) 2020/135 (3) and entered into force on 1 February 2020. The transition period referred to in Article 126 of the Withdrawal Agreement, during which Union law continues to apply to and in the United Kingdom of Great Britain and Northern Ireland (United Kingdom) in accordance with Article 127 of the Withdrawal Agreement, ends on 31 December 2020. On 25 February 2020, the Council adopted Decision (EU, Euratom) 2020/266 (4) authorising the opening of negotiations with the United Kingdom for a new partnership agreement. As implied by the negotiation directives, the authorisation covers inter alia the elements needed to address comprehensively the road transport relationship with the United Kingdom after the end of the transition period. However, it is uncertain whether an agreement between the Union and the United Kingdom governing their future relationship in the area of the transport of goods and passengers by road will have entered into force by the end of that period.

(2)

At the end of the transition period, and in the absence of any special provision, all rights and obligations ensuing from Union law in respect of market access, as established by Regulations (EC) No 1072/2009 (5) and (EC) No 1073/2009 (6) of the European Parliament and of the Council will end, insofar as the relationship between the United Kingdom and the Union and its Member States is concerned.

(3)

In such a situation, the international transport of goods and passengers by road between the Union and the United Kingdom would be severely disrupted.

(4)

Gibraltar is not included in the territorial scope of this Regulation and any reference to the United Kingdom therein does not include Gibraltar.

(5)

The multilateral quota system of the European Conference of Ministers of Transport (ECMT) is the only other available legal framework that could provide a basis for the carriage of goods by road between the Union and the United Kingdom. However, due to the limited number of permits currently available under the ECMT system and its limited scope as regards the types of road transport operations covered, the system is currently inadequate to fully address the road freight transport needs between the Union and the United Kingdom.

(6)

Serious disruptions are also expected to occur, including in respect of public order, in the context of road passenger transport services. The Agreement on the international, occasional carriage of passengers by coach and bus (7) (the ‘Interbus Agreement’) is the only available legal framework that could provide a basis for the carriage of passengers by bus and coach between the Union and the United Kingdom after the end of the transition period. The United Kingdom will become a Contracting Party in its own right to the Interbus Agreement on 1 January 2021. However, the Interbus Agreement covers only occasional services and is, therefore, inadequate to address the disruptions related to international coach and bus services between the United Kingdom and the Union resulting from the end of the transition period. A Protocol to the Interbus Agreement regarding the international regular and special regular carriage of passengers by coach and bus was negotiated and the United Kingdom is expected to ratify it as soon as possible. However, it is not expected that the Protocol will enter into force in time to offer a viable alternative solution for the period immediately after the end of the transition period. Therefore, the available instruments do not meet the needs of regular and special regular passenger transport services by bus and coach between the Union and the United Kingdom.

(7)

In order to prevent ensuing serious disruptions, including in respect of public order, it is therefore necessary to establish a temporary set of measures enabling road haulage operators and coach and bus service operators licensed in the United Kingdom to carry goods and passengers by road between the United Kingdom and the Union, or from the territory of the United Kingdom to the territory of the United Kingdom transiting one or more Member States. In order to ensure a proper equilibrium between the United Kingdom and the Union, the rights thus conferred should be conditional upon the conferral of equivalent rights and be subject to certain conditions ensuring fair competition.

(8)

The right to carry out transport operations within the territory of a Member State and between Member States is a fundamental achievement of the internal market and should, after the end of the transition period and in the absence of any special provision to the contrary, no longer be available to United Kingdom road haulage operators. However, in the immediate aftermath of the transition period and in the absence of a future agreement governing the carriage of goods by road between the Union and the United Kingdom, disruptions to traffic flows and ensuing threats to public order are likely to occur in particular at the border crossing points which are few in number and where additional controls of vehicles and their cargo are to be carried out. Increased congestion at border crossing points with the United Kingdom already occurred before the end of the transition period. The crisis linked to the COVID-19 pandemic also had negative effects on road transport, with an increase of empty loads, a trend which might be exacerbated if there is no flexibility allowing United Kingdom road haulage operators to carry out, even to a very limited extent, operations within the Union for a strictly limited period of time. Such disruptions could lead to situations with a negative impact on critical supply chains which are deemed to be necessary to manage the ongoing COVID-19 pandemic. To reduce the extent of such disruptions, United Kingdom road haulage operators should temporarily be allowed to perform a limited number of additional operations within the territory of the Union in the context of operations between the United Kingdom and the Union. Their vehicles would then not have to return to the United Kingdom immediately and would be less likely to be empty when returning to the United Kingdom, which would reduce the overall number of vehicles and hence the pressure at the border crossing points. The right to perform such additional operations should be proportionate, should not replicate the same level of rights as those enjoyed by Union road haulage operators under the rules of the internal market and should be progressively phased out.

(9)

Cross-border coach and bus services between Ireland and Northern Ireland are of particular importance for the communities living in the border regions, with a view to ensuring basic connectivity between communities inter alia as part of the Common Travel Area. Therefore, the picking up and setting down of passengers by United Kingdom coach and bus service operators should continue to be authorised in the border regions of Ireland in the course of international passenger transport services by coach and bus between Ireland and Northern Ireland.

(10)

In order to reflect their temporary character, while not setting a precedent, the set of measures provided for in this Regulation should apply for a short period. In respect of road haulage operations, that short period is designed to enable possible arrangements for basic connectivity to be made in the ECMT system, and is without prejudice to the entry into force of a future agreement governing the carriage of goods by road between the Union and the United Kingdom and future Union rules on transport. As far as passenger transport by bus and coach is concerned, that short period is designed to enable the Protocol to the Interbus Agreement regarding the international regular and special regular carriage of passengers by coach and bus to enter into force and to apply to the United Kingdom, either by the United Kingdom’s ratification of or accession to that Protocol, and is without prejudice to a possible future agreement on the matter between the Union and the United Kingdom.

(11)

Since the objective of this Regulation, namely to lay down provisional measures governing road freight and passenger transport between the Union and the United Kingdom in the event of the absence of an agreement governing their future relationship in the field of road transport at the end of the transition period, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(12)

In view of the urgency entailed by the end of the transition period, it is considered to be appropriate to provide for an exception to the eight-week period referred to in Article 4 of Protocol No 1 on the role of national Parliaments in the European Union, annexed to the TEU, to the Treaty on the Functioning of the European Union (TFEU) and the Treaty establishing the European Atomic Energy Community.

(13)

This Regulation should enter into force as a matter of urgency and should apply from the day following the end of the transition period established by the Withdrawal Agreement unless an agreement governing road transport concluded with the United Kingdom has entered into force, or as the case may be, provisionally applies by that date. This Regulation should apply until the day before the entry into force or until the day before the provisional application of an international agreement governing road transport for both Parties. With the exception of the specific provisions applying in the border region of Ireland in the course of international regular and special regular services between Ireland and Northern Ireland, the right to conduct regular and special regular coach and bus services should cease to apply on the date of entry into force for the Union and for the United Kingdom of the Protocol to the Interbus agreement regarding the international regular and special regular carriage of passengers by coach and bus. This Regulation should in any event cease to apply on 30 June 2021.

(14)

Where necessary to address market needs, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of restoring the equivalence of rights granted by the Union to United Kingdom road haulage operators and to United Kingdom coach and bus service operators with those granted by the United Kingdom to Union road haulage operators and to Union coach and bus service operators, including where the rights granted by the United Kingdom are granted on the basis of the Member State of origin or otherwise are not equally available to all Union operators, and in respect of remedying occurrences of unfair competition that are to the detriment of Union road haulage operators and Union coach and bus service operators.

(15)

Those delegated acts should comply with the principle of proportionality, and their terms should therefore be commensurate with the problems arising as a result of the failure to grant equivalent rights or as a result of unfair conditions of competition. Suspension of the application of this Regulation should be envisaged by the Commission only in the most severe cases, where no equivalent rights are granted to Union road haulage operators or to Union coach and bus service operators by the United Kingdom, or where the rights so granted are minimal, or where the conditions of competition for United Kingdom road haulage operators or United Kingdom coach and bus service operators differ so much from those of Union operators that the provision of the services in question by Union operators is, for them, not economically viable.

(16)

When adopting those delegated acts, it is of particular importance that the Commission carry out appropriate consultations during its preparatory work including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (8). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. The Commission should ensure that any such delegated acts adopted do not unduly affect the proper functioning of the internal market.

(17)

To ensure that rights granted by the United Kingdom to Union road haulage operators and to Union coach and bus service operators equivalent to those granted by this Regulation to United Kingdom road haulage operators and United Kingdom coach and bus service operators are equally available to all Union operators, the scope of Regulations (EC) No 1072/2009 and (EC) No 1073/2009 should be temporarily extended. Those Regulations already cover the part of a journey between a Member State and a third country on the territory of any Member State crossed in transit. It is, however, necessary to ensure, in such cases, that Regulation (EC) No 1072/2009 also applies to the part of the journey on the territory of the Member State of loading or unloading, and that Regulation (EC) No 1073/2009 applies to the part of the journey on the territory of the Member State of picking up or setting down passengers. Such an extension aims to ensure that Union operators can perform cross-trade operations to or from the United Kingdom, as well as additional stops in their operation of passenger transport,

HAVE ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation lays down temporary measures governing the carriage of goods by road, as well as the provision of regular and special regular passenger transport services by coach and bus between the Union and the United Kingdom following the end of the transition period referred to in Article 126 of the Withdrawal Agreement.

Article 2

Definitions

For the purposes of this Regulation the following definitions apply:

(1)

‘vehicle’ means:

(a)

in respect of carriage of goods, a motor vehicle registered in the United Kingdom, or a coupled combination of vehicles the motor vehicle of which at least is registered in the United Kingdom, used exclusively for the carriage of goods, either owned by the undertaking, having been bought by it on deferred terms or having been hired, provided that, in the latter case, it meets the conditions set out in Directive 2006/1/EC of the European Parliament and of the Council (9);

(b)

in respect of the transport of passengers, a bus or coach;

(2)

‘permitted carriage of goods’ means:

(a)

a laden journey undertaken by a vehicle from the territory of the Union to the territory of the United Kingdom, or vice versa, with or without transit through one or more Member States or third countries;

(b)

following a laden journey from the territory of the United Kingdom to the territory of the Union, as referred to in point (a) of this point, the performance within seven days of the unloading within the territory of the Union of up to two additional operations of loading and unloading within the territory of the Union for a period of two months from the first day of application of this Regulation as referred to in the first subparagraph of Article 12(2), and one operation within seven days of the unloading within the territory of the Union, during the following three months;

(c)

a laden journey undertaken by a vehicle from the territory of the United Kingdom to the territory of the United Kingdom with transit through the territory of the Union;

(d)

an unladen journey in conjunction with the carriage referred to in points (a) and (c);

(3)

‘permitted carriage of passengers by coach and bus’ means:

(a)

a journey undertaken by a bus or coach to provide passenger transport from the territory of the Union to the territory of the United Kingdom, or vice versa, with or without transit through one or more Member States or third countries;

(b)

a journey undertaken by a bus or coach to provide passenger transport from the territory of the United Kingdom to the territory of the United Kingdom with transit through the territory of the Union;

(c)

a journey without carrying passengers in conjunction with the carriage referred to in points (a) and (b);

(d)

the picking up and setting down of passengers in the border region of Ireland in the course of international regular and special regular services between Ireland and Northern Ireland;

(4)

‘border region of Ireland’ means the counties of Ireland adjoining the land border between Ireland and Northern Ireland;

(5)

‘Union road haulage operator’ means an undertaking, engaged in the carriage of goods by road, that holds a valid Community licence, in accordance with Article 4 of Regulation (EC) No 1072/2009;

(6)

‘United Kingdom road haulage operator’ means an undertaking established in the United Kingdom which is permitted to engage in the carriage of goods by road and holds a valid licence issued for the purposes of international carriage in respect of permitted carriage of goods;

(7)

‘United Kingdom licence’ means, when issued to a United Kingdom road haulage operator, a licence issued by the United Kingdom for the purposes of international carriage in respect of permitted carriage of goods, and, when issued to a United Kingdom coach and bus service operator, a licence issued by the United Kingdom for the purposes of international carriage in respect of a permitted carriage of passengers by coach and bus;

(8)

‘bus or coach’ means a vehicle registered in the United Kingdom, which is, by virtue of its construction and equipment, suitable and intended to carry more than nine passengers including the driver;

(9)

‘regular services’ means services which provide for the carriage of passengers at specified intervals along specified routes, passengers being picked up and set down at predetermined stopping points;

(10)

‘special regular services’ means regular services, regardless of who organises them, which provide for the carriage of specified categories of passengers, to the exclusion of other passengers;

(11)

‘Union coach and bus service operator’ means an undertaking, engaged in the carriage of passengers by coach and bus, which holds a valid Community licence in accordance with Article 4 of Regulation (EC) No 1073/2009;

(12)

‘United Kingdom coach and bus service operator’ means an undertaking established in the United Kingdom and which is permitted to engage in the carriage of passengers by coach and bus and holds a valid licence for the purposes of international carriage in respect of a permitted carriage of passengers by coach and bus;

(13)

‘operator’ means either a road haulage operator or a coach and bus service operator;

(14)

‘competition law’ means any law which addresses the following conduct, where it could affect road freight transport services or coach and bus services:

(a)

conduct that consists in:

(i)

agreements between road haulage operators or coach and bus service operators, respectively, decisions by associations of road haulage operators or by coach and bus service operators, and concerted practices which have as their object or effect the prevention, restriction or distortion of competition;

(ii)

abuses by one or more road haulage operators, or coach and bus service operators, of a dominant position;

(iii)

measures taken or maintained in force by the United Kingdom in the case of public undertakings and undertakings to which the United Kingdom grant special or exclusive rights and which are contrary to point (i) or (ii);

(b)

concentrations between road haulage operators or coach and bus service operators, respectively, which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position;

(15)

‘subsidy’ means any financial contribution granted to an operator by the government or any other public body at any level, conferring a benefit, and including:

(a)

the direct transfer of funds, such as grants, loans or equity infusion, the potential direct transfer of funds, and the assumption of liabilities, such as loan guarantees, capital injections, ownership, protection against bankruptcy or insurance;

(b)

the foregoing or non-collection of revenue that is otherwise due;

(c)

the provision of goods or services other than general infrastructure, or the purchase of goods or services;

(d)

the making of payments to a funding mechanism or entrustment or direction to a private body to carry out one or more of the functions referred to in points (a), (b) and (c) which would normally be vested in the government or other public body and the practice in no real sense differs from practices normally followed by governments;

No benefit is deemed to be conferred by a financial contribution made by a government or other public body if a private market operator solely driven by the prospect of profit, in the same situation as the public body in question, would have made the same financial contribution;

(16)

‘independent competition authority’ means an authority which is in charge of the application and enforcement of competition law as well as the control of subsidies, and fulfils the following conditions:

(a)

the authority is operationally independent and is appropriately equipped with the resources necessary to carry out its tasks;

(b)

in performing its duties and exercising its powers, the authority has the necessary guarantees of independence from political or other external influence and it acts impartially;

(c)

the decisions of the authority are subject to judicial review;

(17)

‘discrimination’ means differentiation of any kind without objective justification in respect of the supply of goods or services, including public services, employed for the operation of road freight transport services or of coach and bus services, or in respect of their treatment by public authorities relevant to such services;

(18)

‘territory of the Union’ means the territory of the Member States to which the TEU and the TFEU apply and under the conditions laid down in those Treaties.

Article 3

Right to conduct permitted carriage of goods

1.   United Kingdom road haulage operators may, under the conditions laid down in this Regulation, conduct permitted carriage of goods.

2.   Permitted carriage of goods of the following kinds may be conducted by natural or legal persons established in the United Kingdom, without a United Kingdom licence being required:

(a)

carriage of mail as a universal service;

(b)

carriage of vehicles which have suffered damage or breakdown;

(c)

carriage of goods in motor vehicles the permissible laden mass of which, including that of trailers, does not exceed 3,5 tonnes;

(d)

carriage of medicinal products, appliances, equipment and other articles required for medical care in emergency relief, in particular for natural disasters;

(e)

carriage of goods provided that:

(i)

the goods carried are the property of the undertaking or have been sold, bought, let out on hire or hired, produced, extracted, processed or repaired by the undertaking;

(ii)

the purpose of the journey is to carry the goods to or from the undertaking or to move them, either inside or outside the undertaking for its own requirements;

(iii)

motor vehicles used for such carriage are driven by personnel employed by, or put at the disposal of, the undertaking under a contractual obligation;

(iv)

the vehicles carrying the goods are owned by the undertaking, have been bought by it on deferred terms or have been hired, provided that, in the last case, they meet the conditions set out in Directive 2006/1/EC; and

(v)

such carriage is no more than ancillary to the overall activities of the undertaking.

Article 4

Right to conduct regular and special regular coach and bus services

1.   United Kingdom coach and bus service operators may, under the conditions laid down in this Regulation, conduct permitted carriage of passengers by coach and bus constituting regular and special regular services.

2.   United Kingdom coach and bus service operators shall be in possession of an authorisation issued prior to the date of application of this Regulation in accordance with Articles 6 to 11 of Regulation (EC) No 1073/2009 to conduct permitted regular and special regular coach and bus services for hire and reward.

3.   The authorisations that remain valid under paragraph 2 of this Article may continue to be used for the purposes specified in paragraph 1 of this Article if they have been renewed under the same terms and conditions, or altered only in terms of stops, fares or schedule, and subject to the rules and procedures of Articles 6 to 11 of Regulation (EC) No 1073/2009 for a period of validity not extending beyond 30 June 2021.

4.   Permitted carriage of passengers by coach and bus carried out by natural or legal persons established in the United Kingdom for non-commercial and non-profit-making purposes may be conducted without a licence being required, where:

(a)

the transport activity is only an ancillary activity for that natural or legal person; and

(b)

the vehicles used are the property of that natural or legal person or have been obtained by that person on deferred terms or have been the subject of a long-term leasing contract, and are driven by a member of the staff of the natural or legal person, by the natural person himself, or by personnel employed by the undertaking or put at its disposal under a contractual obligation.

Those transport operations shall be exempt from any system of authorisation within the Union, provided that the person carrying out the activity is in possession of a national authorisation issued prior to the first day of application of this Regulation as referred to in the first subparagraph of Article 12(2) of this Regulation in accordance with Article 3(2) of Regulation (EC) No 1073/2009.

5.   A change of vehicle, or an interruption of carriage to enable part of a journey to be made by another means of transport, shall not affect the application of this Regulation.

Article 5

Bilateral agreements or arrangements

The Member States shall neither negotiate nor enter into any bilateral agreements or arrangements with the United Kingdom on matters falling within the scope of this Regulation.

Without prejudice to existing multilateral arrangements, they shall not otherwise grant United Kingdom road haulage operators or United Kingdom coach and bus service operators any rights other than those granted in this Regulation.

Article 6

Social and technical rules

In the course of a permitted carriage of goods or passengers by coach and bus in accordance with this Regulation, the following rules shall be complied with:

(a)

in respect of mobile workers and self-employed drivers, the requirements laid down by Member States in accordance with Directive 2002/15/EC of the European Parliament and of the Council (10);

(b)

in respect of certain social legislation relating to road transport, the requirements set out in Regulation (EC) No 561/2006 of the European Parliament and of the Council (11);

(c)

in respect of tachographs in road transport, the requirements set out in Regulation (EU) No 165/2014 of the European Parliament and of the Council (12);

(d)

in respect of drivers’ initial qualification and periodic training, the requirements laid down by Member States in accordance with Directive 2003/59/EC of the European Parliament and of the Council (13);

(e)

in respect of the maximum authorised dimensions and weights of certain road vehicles, the requirements laid down by Member States in accordance with Council Directive 96/53/EC (14);

(f)

in respect of the installation and use of speed limitation devices for certain categories of motor vehicles, the requirements laid down by Member States in accordance with Council Directive 92/6/EEC (15);

(g)

in respect of the compulsory use of safety belts and child restraint systems in vehicles, the requirements laid down by Member States in accordance with Council Directive 91/671/EEC (16);

(h)

in respect of the posting of workers, the requirements laid down by Member States in accordance with Directive 96/71/EC of the European Parliament and of the Council (17);

(i)

in respect of passenger rights, the requirements set out in Regulation (EU) No 181/2011 of the European Parliament and of the Council (18).

Article 7

Equivalence of rights

1.   The Commission shall monitor the rights granted by the United Kingdom to Union road haulage operators and to Union coach and bus service operators and the conditions for their exercise.

2.   Where the Commission determines that the rights granted by the United Kingdom to Union road haulage operators or to Union coach and bus service operators are not, de jure or de facto, equivalent to those granted to United Kingdom operators under this Regulation, or that those rights are not equally available to all Union road haulage operators or to all Union coach and bus service operators, it shall, without delay and in order to restore equivalence, adopt delegated acts in accordance with Article 11 to:

(a)

suspend the application of Article 3 or Article 4(1) to (4) where no equivalent rights are granted to Union operators, or where the rights granted are minimal;

(b)

establish limits to the allowable capacity available to United Kingdom road haulage operators, or United Kingdom coach and bus service operators, or to the number of journeys, or to both; or

(c)

adopt operational restrictions related to the types of vehicles or conditions of circulation.

Article 8

Fair competition

1.   The Commission shall monitor the conditions under which Union operators compete with United Kingdom operators for the provision of road freight transport services and coach and bus services covered by this Regulation.

2.   Where the Commission determines that, as a result of any of the situations referred to in paragraph 3 of this Article, the conditions referred to in paragraph 1 of this Article are appreciably less favourable than those enjoyed by United Kingdom operators, it shall, without delay and in order to remedy that situation, adopt delegated acts in accordance with Article 11 to:

(a)

suspend the application of Article 3 or Article 4(1) to (4) where the conditions of competition for United Kingdom road haulage operators, or United Kingdom bus and coach service operators, differ so much from those applying to Union operators that the provision of services by the latter is not economically viable for them;

(b)

establish limits to the allowable capacity available to United Kingdom road haulage operators, or United Kingdom bus and coach service operators, or to the number of journeys, or to both; or

(c)

adopt operational restrictions related to the types of vehicles or conditions of circulation.

3.   The delegated acts referred to in paragraph 2 shall, under the conditions specified in that paragraph, be adopted to remedy the following situations:

(a)

the granting of subsidies by the United Kingdom;

(b)

failure by the United Kingdom to have in place or to effectively apply competition law;

(c)

failure by the United Kingdom to establish or maintain an independent competition authority;

(d)

the application by the United Kingdom of standards on the protection of workers, safety, security or the environment which are inferior to those laid down in Union law or, in the absence of relevant provisions in Union law, inferior to those applied by all Member States or, in any event, inferior to relevant international standards;

(e)

the application by the United Kingdom of standards relating to the granting of United Kingdom licences to road haulage operators or to coach and bus service operators which are inferior to those laid down in Regulation (EC) No 1071/2009 of the European Parliament and of the Council (19);

(f)

the application by the United Kingdom of standards relating to the qualification and training of professional drivers which are inferior to those laid down in Directive 2003/59/EC;

(g)

the application by the United Kingdom of road charging and taxation rules that diverge from the rules laid down in Directive 1999/62/EC of the European Parliament and of the Council (20); and

(h)

any form of discrimination against Union operators.

4.   For the purposes of paragraph 1, the Commission may request information from the competent authorities of the United Kingdom or from United Kingdom operators. Where they do not provide the information requested within the reasonable period prescribed by the Commission, or provide incomplete information, the Commission may proceed in accordance with paragraph 2.

Article 9

Extension of Regulations (EC) No 1072/2009 and (EC) No 1073/2009

1.   In the context of the carriage of goods between the territory of the Union and the territory of the United Kingdom undertaken by a Union road haulage operator that relies on rights granted by the United Kingdom, as referred to in Article 7 of this Regulation, equivalent to those granted under this Regulation, Regulation (EC) No 1072/2009 shall apply to the part of the journey on the territory of the Member State of loading or unloading.

2.   In the context of the carriage of passengers between the territory of the Union and the territory of the United Kingdom undertaken by a Union coach and bus service operator that relies on rights granted by the United Kingdom, as referred to in Article 7 of this Regulation, equivalent to those granted under this Regulation, Regulation (EC) No 1073/2009 shall apply to the part of the journey on the territory of the Member State of picking up or setting down.

Article 10

Consultation and cooperation

1.   The competent authorities of the Member States shall consult and cooperate with the competent authorities of the United Kingdom as necessary in order to ensure the implementation of this Regulation.

2.   Member States shall, upon request, provide the Commission, without undue delay, with any information obtained pursuant to paragraph 1 of this Article or with any other information relevant for the implementation of Articles 7 and 8.

Article 11

Exercise of the delegation

1.   The power to adopt delegated acts referred to in Articles 7(2) and 8(2) shall be conferred on the Commission until 30 June 2021.

2.   Before adopting a delegated act under Article 7(2) or 8(2), the Commission shall consult experts designated by each Member State in line with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

3.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

Article 12

Entry into force and application

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

2.   This Regulation shall apply from the day following that on which Union law ceases to apply to and in the United Kingdom pursuant to Articles 126 and 127 of the Withdrawal Agreement.

However, it shall not apply if an international agreement governing road transport, concluded between the Union and the United Kingdom, has entered into force, or as the case may be, provisionally applies by that date.

3.   This Regulation shall apply until the day before the entry into force, or as the case may be, until the day before the provisional application, of an international agreement governing road transport, concluded between the Union and the United Kingdom.

With the exception of the carriage of passengers by coach and bus referred to in point (3)(d) of Article 2, the provisions of this Regulation applying to the carriage of passengers by coach and bus shall cease to apply on the date of entry into force for the Union and for the United Kingdom of the Protocol to the Interbus agreement regarding the international regular and special regular carriage of passengers by coach and bus.

4.   This Regulation shall in any case cease to apply at the latest on 30 June 2021.

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

Done at Brussels, 23 December 2020.

For the European Parliament

The President

D. M. SASSOLI

For the Council

The President

M. ROTH


(1)  Position of the European Parliament of 18 December 2020 (not yet published in the Official Journal) and decision of the Council of 22 December 2020.

(2)  OJ L 29, 31.1.2020, p.7.

(3)  Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 1).

(4)  Council Decision (EU, Euratom) 2020/266 of 25 February 2020 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement (OJ L 58, 27.2.2020, p. 53).

(5)  Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ L 300, 14.11.2009, p. 72).

(6)  Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006 (OJ L 300, 14.11.2009, p. 88).

(7)  OJ L 321, 26.11.2002, p. 13.

(8)  OJ L 123, 12.5.2016, p. 1.

(9)  Directive 2006/1/EC of the European Parliament and of the Council of 18 January 2006 on the use of vehicles hired without drivers for the carriage of goods by road (OJ L 33, 4.2.2006, p. 82).

(10)  Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ L 80, 23.3.2002, p. 35).

(11)  Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 102, 11.4.2006, p. 1).

(12)  Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation (EC) No 561/2006 of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport (OJ L 60, 28.2.2014, p. 1).

(13)  Directive 2003/59/EC of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC (OJ L 226, 10.9.2003, p. 4).

(14)  Council Directive 96/53/EC of 25 July 1996 laying down for certain road vehicles circulating within the Community the maximum authorized dimensions in national and international traffic and the maximum authorized weights in international traffic (OJ L 235, 17.9.1996, p. 59).

(15)  Council Directive 92/6/EEC of 10 February 1992 on the installation and use of speed limitation devices for certain categories of motor vehicles in the Community (OJ L 57, 2.3.1992, p. 27).

(16)  Council Directive 91/671/EEC of 16 December 1991 relating to the compulsory use of safety belts and child-restraint systems in vehicles (OJ L 373, 31.12.1991, p. 26).

(17)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ L 18, 21.1.1997, p. 1).

(18)  Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1).

(19)  Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51).

(20)  Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ L 187, 20.7.1999, p. 42).


28.12.2020   

EN

Official Journal of the European Union

L 437/86


REGULATION (EU) 2020/2225 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

on common rules ensuring basic air connectivity following the end of the transition period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

After consulting the European Economic and Social Committee,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

(1)

The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2) (the ‘Withdrawal Agreement’) was concluded by the Union by means of Council Decision (EU) 2020/135 (3) and entered into force on 1 February 2020. The transition period provided for in Article 126 of the Withdrawal Agreement (the ‘transition period’), during which Union law continues to apply to and in the United Kingdom of Great Britain and Northern Ireland (United Kingdom) in accordance with Article 127 of the Withdrawal Agreement, ends on 31 December 2020. On 25 February 2020 the Council adopted Decision (EU, Euratom) 2020/266 (4), which authorised the opening of negotiations with the United Kingdom for a new partnership agreement. As implied by the negotiation directives, the authorisation covers, inter alia, the elements needed to address comprehensively the aviation relationship with the United Kingdom after the end of the transition period. However, it is uncertain whether an agreement between the Union and the United Kingdom governing their future relationship in this area will have entered into force by the end of that period.

(2)

Regulation (EC) No 1008/2008 of the European Parliament and of the Council (5) sets out the conditions for the granting of the Union operating licence to air carriers and establishes the freedom to provide intra-EU air services.

(3)

At the end of the transition period and in the absence of any special provisions, all rights and obligations ensuing from Union law in respect of market access as established by Regulation (EC) No 1008/2008 will end, insofar as the relationship between the United Kingdom and the Member States is concerned.

(4)

It is therefore necessary to establish a temporary set of measures enabling carriers licensed in the United Kingdom to provide air transport services between the territory of the latter and the territory of the Member States. In order to ensure a proper equilibrium between the United Kingdom and the Member States, the rights thus conferred should be conditional upon the conferral of equivalent rights by the United Kingdom to air carriers licensed in the Union and be subject to certain conditions ensuring fair competition.

(5)

The crisis arising from the COVID-19 pandemic poses significant logistical challenges to the Member States, in particular as regards the capacity to transport significant volumes of medicines, vaccines and medical equipment to and from third countries at short notice and under particularly demanding storage and logistical conditions. It is necessary to ensure that sufficient air transport capacity is made available and additional exceptional flexibility is provided for to the Member States for that purpose, including the possibility to rely on third-country aircraft. Additional elements of all-cargo fifth freedom traffic rights strictly limited to carrying out that kind of operation on an ad hoc basis should therefore be granted so that use can be made of UK air carriers in such exceptional circumstances. Member States should also be able to authorise additional rights for the provision of air ambulance services.

(6)

In order to reflect its temporary character, this Regulation should apply until 30 June 2021, or until the entry into force or, where stipulated, provisional application of a future agreement covering the provision of air services with the United Kingdom to which the Union is a party, negotiated by the Commission in accordance with Article 218 of the Treaty on the Functioning of the European Union (TFEU), whichever is earlier.

(7)

In order to maintain mutually beneficial levels of connectivity, certain cooperative marketing arrangements should be provided for in respect of both UK air carriers and Union air carriers, in line with the principle of reciprocity.

(8)

In view of the exceptional and unique circumstances that necessitate the adoption of this Regulation and in accordance with the Treaties, it is appropriate for the Union to exercise temporarily the relevant shared competence conferred upon it by the Treaties. However, any effect of this Regulation on the division of competences between the Union and the Member States should be strictly limited in time. The competence exercised by the Union should therefore only be exercised with respect to the period of application of this Regulation. Accordingly, the shared competence thus exercised will cease to be exercised by the Union as soon as this Regulation ceases to apply. In accordance with Article 2(2) TFEU, Member States will therefore, as of that moment, be in the same situation with regard to exercising their competence as they would have been had the Regulation not been adopted. Furthermore, it is recalled that, as set out in Protocol No 25 on the exercise of shared competence annexed to the Treaty on European Union (TEU) and the TFEU, the scope of the exercise of the competence of the Union in this Regulation covers only those elements governed by this Regulation and does not cover the whole area. The respective competences of the Union and of the Member States with respect to the conclusion of international agreements in the area of air transport are to be determined in accordance with the Treaties and taking into account relevant Union law, including Decision (EU, Euratom) 2020/266 authorising the opening of negotiations with the United Kingdom.

(9)

This Regulation should not prevent Member States from issuing authorisations for the operation of scheduled air services by Union air carriers in the exercise of rights granted to them by the United Kingdom, similarly to situations occuring in the context of international agreements. In respect of those authorisations, Member States should not discriminate between Union air carriers.

(10)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards the adoption of measures to guarantee a fair degree of reciprocity between the rights unilaterally granted by the Union and the United Kingdom to each other's air carriers, and to ensure that Union air carriers can compete with UK air carriers under fair conditions in the provision of air services. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (6). Given their potential impact on the air connectivity of the Member States, the examination procedure should be used for the adoption of those measures. The Commission should adopt immediately applicable implementing acts where, in duly justified cases, imperative grounds of urgency so require. Such duly justified cases could relate to situations where the United Kingdom fails to grant equivalent rights to Union air carriers and thereby causes a manifest imbalance, or where less favourable conditions of competition than those enjoyed by UK air carriers in the provision of air transport services covered by this Regulation threaten the economic viability of Union air carriers.

(11)

Since the objective of this Regulation, namely to lay down provisional measures governing air transport between the Union and the United Kingdom in the event of the absence of an agreement governing their future relationship in the field of aviation at the end of the transition period, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(12)

In view of the urgency entailed by the end of the transition period, it was considered to be appropriate to provide for an exception to the eight-week period referred to in Article 4 of Protocol No 1 on the role of national Parliaments in the European Union, annexed to the TEU, the TFEU and the Treaty establishing the European Atomic Energy Community.

(13)

The territorial scope of this Regulation and any reference to the United Kingdom therein does not include Gibraltar.

(14)

This Regulation is without prejudice to the legal position of the Kingdom of Spain with regard to the sovereignty over the territory in which the airport of Gibraltar is situated.

(15)

The provisions of this Regulation should enter into force as a matter of urgency and should apply, in principle, from the day following the end of the transition period unless an agreement governing the future relationship between the Union and the United Kingdom in the field of aviation has entered into force, or as the case may be, provisionally applies by that date. However, in order to allow for the necessary administrative procedures to be conducted as early as possible, certain provisions should apply as from the entry into force of this Regulation,

HAVE ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation lays down a temporary set of measures governing air transport between the Union and the United Kingdom following the expiry of the transition period provided for in Article 126 of the Withdrawal Agreement.

Article 2

Exercise of competence

1.   The exercise of Union competence pursuant to this Regulation shall be limited to the period of application of this Regulation as defined in Article 15(4). After the end of that period, the Union shall immediately cease to exercise that competence pursuant to this Regulation and the Member States shall be in the same position with regard to the exercise of their competence in accordance with Article 2(2) TFEU as they would have been had the Regulation not been adopted.

2.   The exercise of Union competence pursuant to this Regulation shall be without prejudice to the competence of the Member States concerning traffic rights in any ongoing or future negotiations, signature, or conclusion of international agreements related to air services with any other third country, and with the United Kingdom with respect to the period after this Regulation has ceased to apply.

3.   The exercise of competence by the Union as referred to in paragraph 1 only covers the elements governed by this Regulation.

4.   This Regulation is without prejudice to the respective competences of the Union and the Member States in the area of air transport with regard to elements other than those governed by this Regulation. It is also without prejudice to Decision (EU, Euratom) 2020/266 authorising the opening of negotiations with the United Kingdom for a new partnership agreement.

Article 3

Definitions

For the purposes of this Regulation the following definitions apply:

(1)

‘air transport’ means the carriage by aircraft of passengers, baggage, cargo, and mail, separately or in combination, held out to the public for remuneration or hire, including scheduled and non-scheduled air services;

(2)

‘international air transport’ means air transport that passes through the airspace over the territory of more than one State;

(3)

‘Union air carrier’ means an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II of Regulation (EC) No 1008/2008;

(4)

‘UK air carrier’ means an air carrier which:

(a)

has its principal place of business in the United Kingdom; and

(b)

fulfils one of the following two conditions:

(i)

the United Kingdom and/or nationals of the United Kingdom own more than 50 % of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings; or

(ii)

Union Member States and/or nationals of Union Member States and/or other Member States of the European Economic Area and/or nationals of such States, in any combination, whether alone or together with the United Kingdom and/or nationals of the United Kingdom, own more than 50 % of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings;

(c)

in the case referred to in point (b)(ii), held a valid operating licence in accordance with Regulation (EC) No 1008/2008 on the day before the first day of application of this Regulation as referred to in the first subparagraph of Article 15(2);

(5)

‘effective control’ means a relationship constituted by rights, contracts or any other means which, either separately or jointly and having regard to the considerations of fact or law involved, confer the possibility of directly or indirectly exercising a decisive influence on an undertaking, in particular by:

(a)

the right to use all or part of the assets of an undertaking;

(b)

rights or contracts which confer a decisive influence on the composition, voting or decisions of the bodies of an undertaking or otherwise confer a decisive influence on the running of the business of the undertaking;

(6)

‘competition law’ means law which addresses the following conduct, where it may affect air transport services:

(a)

conduct that consists of:

(i)

agreements between air carriers, decisions by associations of air carriers and concerted practices which have as their object or effect the prevention, restriction or distortion of competition;

(ii)

abuses by one or more air carriers of a dominant position;

(iii)

measures taken or maintained in force by the United Kingdom in the case of public undertakings and undertakings to which the United Kingdom grants special or exclusive rights and which are contrary to point (i) or (ii);

(b)

concentrations between air carriers which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position;

(7)

‘subsidy’ means any financial contribution granted to an air carrier or an airport by the government or any other public body at any level, conferring a benefit, and including:

(a)

the direct transfer of funds, such as grants, loans or equity infusion, the potential direct transfer of funds, or the assumption of liabilities, such as loan guarantees, capital injections, ownership, protection against bankruptcy or insurance;

(b)

the foregoing or non-collection of revenue that is otherwise due;

(c)

the provision of goods or services other than general infrastructure, or the purchase of goods or services;

(d)

the making of payments to a funding mechanism or entrustment or direction to a private body to carry out one or more of the functions mentioned under points (a), (b) and (c) which would normally be vested in the government or other public body and the practice in no real sense differs from practices normally followed by governments;

No benefit is deemed to be conferred by a financial contribution carried out by a government or other public body if a private market operator solely driven by profitability prospects, in the same situation as the public body in question, would have carried out the same financial contribution;

(8)

‘independent competition authority’ means an authority which is in charge of the application and enforcement of competition law, as well as the control of subsidies, and fulfils the following conditions:

(a)

the authority is operationally independent and is appropriately equipped with the resources necessary to carry out its tasks;

(b)

in performing its duties and exercising its powers, the authority has the necessary guarantees of independence from political or other external influence and acts impartially; and

(c)

the decisions of the authority are subject to judicial review;

(9)

‘discrimination’ means differentiation of any kind without objective justification in respect of the supply of goods or services, including public services, employed for the operation of air transport services, or in respect of their treatment by public authorities relevant to such services;

(10)

‘scheduled air transport service’ means a series of flights possessing the following characteristics:

(a)

on each flight seats and/or capacity to transport cargo and/or mail are available for individual purchase by the public (either directly from the air carrier or from its authorised agents);

(b)

it is operated so as to serve traffic between the same two or more airports, either:

(i)

according to a published timetable; or

(ii)

with flights so regular or frequent that they constitute a recognisably systematic series;

(11)

‘non-scheduled air transport service’ means a commercial air transport service performed other than as a scheduled air service;

(12)

‘territory of the Union’ means the land territory, internal waters and territorial sea of the Member States to which the TEU and the TFEU apply and under the conditions laid down in those Treaties, and the air space above them;

(13)

‘territory of the United Kingdom’ means the land territory, internal waters and territorial sea of the United Kingdom and the air space above them;

(14)

‘Chicago Convention’ means the Convention on International Civil Aviation, signed in Chicago on 7 December 1944.

Article 4

Traffic rights

1.   UK air carriers may, under the conditions laid down in this Regulation:

(a)

fly across the territory of the Union without landing;

(b)

make stops in the territory of the Union for non-traffic purposes, within the meaning of the Chicago Convention;

(c)

perform scheduled and non-scheduled international air transport services for passengers, combination of passengers and cargo and all-cargo services between any pair of points of which one is situated in the territory of the United Kingdom and the other one is situated in the territory of the Union.

2.   The Member States shall neither negotiate nor enter into any bilateral agreements or arrangements with the United Kingdom on matters falling within the scope of this Regulation with respect to the period during which this Regulation applies. With respect to that period, they shall not otherwise grant UK air carriers, in connection with air transport, any rights other than those granted by this Regulation.

3.   Notwithstanding paragraph 2, the Member States may authorise, on an ad hoc basis and in accordance with their national law, the provision of the following in their territory by a UK air carrier:

(a)

air ambulance services;

(b)

all-cargo non-scheduled air transport services between points in their territory and points in a third country as part of a service with origin or destination in the United Kingdom to the extent necessary for the transport of medical equipment, vaccines and medicines provided that they do not constitute a disguised form of scheduled air services.

Article 5

Cooperative marketing arrangements

1.   Air transport services in accordance with Article 4 may be provided by means of blocked-space or code-sharing arrangements, as follows:

(a)

the UK air carrier may act as the marketing carrier, with any operating carrier that is a Union air carrier or a UK air carrier, or with any operating carrier of a third country which, under Union law or, as applicable, under the law of the Member State or Member States concerned, enjoys the necessary traffic rights as well as the right for its carriers to exercise those rights by means of the arrangement in question;

(b)

the UK air carrier may act as the operating carrier, with any marketing carrier which is a Union air carrier or a UK air carrier, or with any marketing carrier of a third country which, under Union law or, as applicable, under the law of the Member State or Member States concerned, enjoys the necessary route rights as well as the right for its carriers to exercise those rights by means of the arrangement in question.

2.   In no case shall the rights granted to UK air carriers under paragraph 1 be construed as conferring on air carriers of a third country any rights other than those that they enjoy under Union law or under the law of the Member State or Member States concerned.

3.   Recourse to blocked-space or code-sharing arrangements, whether as an operating carrier or as a marketing carrier, shall not result in a UK air carrier exercising rights other than those provided for in Article 4(1).

However, the first subparagraph of this paragraph shall not be applied in such a way as to prevent UK carriers from providing air transport services between any pair of points of which one is situated in the territory of the Union and the other is situated in a third country, provided that the following conditions are fulfilled:

(a)

the UK carrier is acting as the marketing carrier under a blocked-space or a code-sharing arrangement with an operating carrier benefitting, under Union law or the law of the Member State or Member States concerned, from the necessary traffic rights as well as from the right to exercise those rights by means of the arrangement in question;

(b)

the air transport service in question forms part of a carriage by that UK carrier between a point in the territory of the United Kingdom and the relevant point in the territory of the third country concerned.

4.   The Member States concerned shall require the arrangements referred to in this Article to be approved by their competent authorities for the purpose of verifying compliance with the conditions set out in this Article and with the applicable requirements in Union and national law, in particular as regards safety and security.

Article 6

Aircraft leasing

1.   In exercising the rights provided for in Article 4(1), a UK air carrier may provide air transport services with its own aircraft and in all the following cases:

(a)

using aircraft leased without crew from any lessor;

(b)

using aircraft leased with crew from any other UK air carrier;

(c)

using aircraft leased with crew from air carriers of any country other than the United Kingdom, provided that the leasing is justified on the basis of exceptional needs, seasonal capacity needs or operational difficulties of the lessee and the leasing does not exceed the duration which is strictly necessary to fulfil those needs or overcome those difficulties.

2.   The Member States concerned shall require the arrangements referred to in paragraph 1 to be approved by their competent authorities for the purpose of verifying compliance with the conditions set out therein and with the applicable requirements in Union and national law, in particular as regards safety and security.

Article 7

Equivalence of rights

1.   The Commission shall monitor the rights granted by the United Kingdom to Union air carriers and the conditions for their exercise.

2.   Where the Commission determines that the rights granted by the United Kingdom to Union air carriers are not, de jure or de facto, equivalent to those granted to UK air carriers under this Regulation, or that those rights are not equally available to all Union carriers, the Commission shall, without delay and in order to restore equivalence, adopt implementing acts to:

(a)

establish limits to the allowable capacity for scheduled air transport services available to UK air carriers and require the Member States to adapt the operating authorisations of UK air carriers, both existing and newly granted, accordingly;

(b)

require the Member States to refuse, suspend or revoke the said operating authorisations; or

(c)

impose financial duties or operational restrictions.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 14(2). They shall be adopted in accordance with the urgency procedure referred to in Article 14(3) where, in duly justified cases of serious lack of equivalence for the purposes of this paragraph, imperative grounds of urgency so require.

Article 8

Fair competition

1.   The Commission shall monitor the conditions under which Union air carriers and Union airports compete with UK air carriers and United Kingdom airports for the provision of air transport services covered by this Regulation.

2.   Where it determines that, as a result of any of the situations referred to in paragraph 3, those conditions are appreciably less favourable than those enjoyed by UK air carriers, the Commission shall, without delay and in order to remedy that situation, adopt implementing acts to:

(a)

establish limits to the allowable capacity for scheduled air transport services available to UK air carriers and require the Member States to adapt the operating authorisations of UK air carriers, both existing and newly granted, accordingly;

(b)

require the Member States to refuse, suspend or revoke the said operating authorisations for some or all UK air carriers; or

(c)

impose financial duties or operational restrictions.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 14(2). They shall be adopted in accordance with the urgency procedure referred to in Article 14(3) where, in duly justified cases of threat to the economic viability of one or more operations of Union air carriers, imperative grounds of urgency so require.

3.   The implementing acts referred to in paragraph 2 shall, subject to the conditions specified in that paragraph, be adopted to remedy the following situations:

(a)

the granting of subsidies by the United Kingdom;

(b)

failure, by the United Kingdom to have in place or to effectively apply competition law;

(c)

failure by the United Kingdom to establish or maintain an independent competition authority;

(d)

the application by the United Kingdom of standards in the protection of workers, safety, security, the environment, or passenger rights, which are inferior to those laid down in Union law or, in the absence of relevant provisions in Union law, inferior to those applied by all Member States or, in any event, inferior to relevant international standards;

(e)

any form of discrimination against Union air carriers.

4.   For the purposes of paragraph 1, the Commission may request information from the competent authorities of the United Kingdom, UK air carriers or United Kingdom airports. Where the competent authorities of the United Kingdom, the UK air carrier or United Kingdom airport do not provide the information requested within the reasonable period prescribed by the Commission, or provide incomplete information, the Commission may proceed in accordance with paragraph 2.

5.   Regulation (EU) 2019/712 of the European Parliament and of the Council (7) shall not apply to matters falling within the scope of this Regulation.

Article 9

Operating authorisation

1.   Without prejudice to Union and national law in the area of aviation safety, in order to exercise the rights granted to them under Article 4, UK air carriers shall be required to obtain an operating authorisation from each Member State in which they wish to operate.

2.   On receipt of an application for an operating authorisation from a UK air carrier, the Member State concerned shall grant the appropriate operating authorisation without undue delay, provided that:

(a)

the applicant UK air carrier holds a valid operating licence in accordance with the legislation of the United Kingdom; and

(b)

effective regulatory control over the applicant UK air carrier is exercised and maintained by the United Kingdom, the competent authority is clearly identified and the UK air carrier holds an air operator certificate delivered by the said authority.

3.   Without prejudice to the need to allow for sufficient time for the carrying out of the necessary assessments, UK air carriers shall be entitled to submit their applications for operating authorisations from the day of entry into force of this Regulation. The Member States shall have the power to approve those applications as from that day, provided that the conditions for such approval are met. However, any authorisations thus granted shall take effect no earlier than on the first day of application of this Regulation as referred to in the first subparagraph of Article 15(2).

Article 10

Operational plans, programmes and schedules

1.   UK air carriers shall submit the operational plans, programmes and schedules for air services to the competent authorities of each Member State concerned, for their approval. Any such submission shall be made at least 30 days prior to the start of the operations. Submissions regarding the provision of air services to take place in January 2021 shall be made at the earliest possible date before the start of the operations.

2.   Subject to Article 9, the operational plans, programmes and schedules for the IATA season that is in progress on the first day of application of this Regulation, as referred to in the first subparagraph of Article 15(2), and those for the first season thereafter may be submitted and approved before that date.

3.   This Regulation shall not prevent Member States from issuing authorisations for the operation of scheduled air services by Union carriers in the exercise of rights granted to them by the United Kingdom. In respect of those authorisations, Member States shall not discriminate between Union carriers.

Article 11

Refusal, revocation, suspension and limitation of authorisation

1.   Member States shall refuse, or as the case may be, revoke or suspend the operating authorisation of a UK air carrier where:

(a)

the air carrier does not qualify as a UK air carrier under this Regulation; or

(b)

the conditions laid down in Article 9(2) are not complied with.

2.   The Member States shall refuse, revoke, suspend, limit or impose conditions on the operating authorisation of a UK air carrier, or limit or impose conditions on its operations in any of the following circumstances:

(a)

the applicable safety and security requirements are not complied with;

(b)

the applicable requirements relating to the admission to, the operation within, or the departure from the territory of the Member State concerned of aircraft engaged in air transport are not complied with;

(c)

the applicable requirements relating to the admission to, operation within, or departure from the territory of the Member State concerned of passengers, crew, baggage, cargo, and/or mail on aircraft (including regulations relating to entry, clearance, immigration, passports, customs and quarantine, or in the case of mail, postal regulations) are not complied with.

3.   The Member States shall refuse, revoke, suspend, limit or impose conditions on the operating authorisations of UK air carriers, or limit or impose conditions on their operations, where they are required to do so by the Commission in accordance with Article 7 or 8.

4.   The Member States shall inform the Commission and the other Member States of any decisions to refuse or revoke the operating authorisation of a UK air carrier pursuant to paragraphs 1 and 2, without undue delay.

Article 12

Certificates and licences

Certificates of airworthiness, certificates of competency and licences issued or rendered valid by the United Kingdom and still in force shall be recognised as valid by the Member States for the purpose of the operation of air transport services by UK air carriers under this Regulation, provided that such certificates or licences were issued or rendered valid pursuant to, and in conformity with, as a minimum, the relevant international standards established under the Chicago Convention.

Article 13

Consultation and cooperation

1.   The Member States’ competent authorities shall consult and cooperate with the competent authorities of the United Kingdom as necessary in order to ensure the implementation of this Regulation.

2.   Member States shall, upon request, provide the Commission without undue delay with any information obtained pursuant to paragraph 1 of this Article or any other information relevant for the implementation of Articles 7 and 8.

Article 14

Committee procedure

1.   The Commission shall be assisted by the Committee established by Regulation (EC) No 1008/2008. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3.   Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Article 15

Entry into force and application

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

2.   It shall apply from the day following that on which Union law ceases to apply to and in the United Kingdom pursuant to Articles 126 and 127 of the Withdrawal Agreement.

However, Articles 9(3) and 10(2) shall apply from the entry into force of this Regulation.

3.   This Regulation shall not apply if an agreement governing comprehensively the provision of air transport with the United Kingdom to which the Union is a party has entered into force, or as the case may be, provisionally applies by the date referred to in the first subparagraph of paragraph 2.

4.   This Regulation shall cease to apply on the earlier of the following dates:

(a)

30 June 2021;

(b)

the date on which an agreement as referred to in paragraph 3 enters into force, or, as the case may be, the date from which it is provisionally applied.

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

Done at Brussels, 23 December 2020.

For the European Parliament

The President

D. M. SASSOLI

For the Council

The President

M. ROTH


(1)  Position of the European Parliament of 18 December 2020 (not yet published in the Official Journal) and decision of the Council of 22 December 2020.

(2)  OJ L 29, 31.1.2020, p. 7.

(3)  Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 1).

(4)  Council Decision (EU, Euratom) 2020/266 of 25 February 2020 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement (OJ L 58, 27.2.2020, p. 53).

(5)  Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

(6)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(7)  Regulation (EU) 2019/712 of the European Parliament and of the Council of 17 April 2019 on safeguarding competition in air transport, and repealing Regulation (EC) No 868/2004 (OJ L 123, 10.5.2019, p. 4).


28.12.2020   

EN

Official Journal of the European Union

L 437/97


REGULATION (EU) 2020/2226 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 December 2020

on certain aspects of aviation safety with regard to the end of the transition period provided for in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

After consulting the European Economic and Social Committee,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

(1)

The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2) (the ‘Withdrawal Agreement’) was concluded by the Union by means of Council Decision (EU) 2020/135 (3) and entered into force on 1 February 2020. The transition period provided for in Article 126 of the Withdrawal Agreement (the ‘transition period’), during which Union law continues to apply to and in the United Kingdom of Great Britain and Northern Ireland (United Kingdom) in accordance with Article 127 of the Withdrawal agreement, ends on 31 December 2020.

(2)

The principal objective of Regulation (EU) 2018/1139 of the European Parliament and of the Council (4) is to establish and maintain a high and uniform level of aviation safety in the Union. For that purpose, a system of certificates has been established for various aviation activities, in order to achieve the required safety level and to enable the necessary verifications and the mutual acceptance of certificates issued.

(3)

In the area of aviation safety, the consequences of the end of the transition period for certificates and approvals without an agreement setting out the new aviation safety relationship between the Union and the United Kingdom can be addressed by many stakeholders through various measures. Those measures include the transfer to a civil aviation authority of one of the Member States and the application, before the end of the transition period, for a certificate issued by the European Union Aviation Safety Agency (the ‘Agency’), taking effect from the day following the end of the transition period.

(4)

However, for some certificates, specific measures need to be put in place to address the consequences of the end of the transition period. This is particularly the case for design certificates issued before the end of the transition period by the Agency to design organisations with their principal place of business in the United Kingdom, or by such design organisations approved by the Agency. Until that date, the Agency was carrying out the functions and tasks of the ‘State of design’ under the Convention on International Civil Aviation and the Annexes thereto on behalf of the United Kingdom as provided for in Article 77 (1) of Regulation (EU) 2018/1139. After the end of the transition period, the functions and tasks of the ‘State of design’ regarding the United Kingdom will be assumed by the United Kingdom Civil Aviation Authority. In order to address that change, the United Kingdom has enacted legislation that deems design certificates issued before the transition period to have been issued under the laws of the United Kingdom with effect from the end of the transition period.

(5)

Specific measures on the Union’s part are necessary to ensure that, insofar as aircraft registered in the Union are concerned, the designs that were covered by such design certificates continue to be covered by design certificates governed by Regulation (EU) 2018/1139 after the end of the transitional period. The specific measures should allow the aircraft operators concerned to continue using the products in question. It is therefore necessary to provide that the Agency or, as the case may be, design organisations approved by it, are deemed to have issued the design certificates cov