2008/22/EC: Commission Decision of 19 December 2007 laying down rules for the implementation of Decision No 573/2007/EC of the European Parliament and of the Council establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme Solidarity and Management of Migration Flows as regards Member States’ management and control systems, the rules for administrative and financial management and the eligibility of expenditure on projects co-financed by the Fund (notified under document number C(2007) 6396)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Decision No 573/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ and repealing Council Decision 2004/904/EC⁽¹⁾, and in particular Articles 23, 31(5), 33(6) and 35(4) thereof,

Whereas:

It is necessary to lay down the conditions under which Member States should implement the action under the Fund, in particular to identify under which circumstances the responsible authority may implement projects directly. Further provisions should also be laid down for delegated authorities.
It is necessary to identify a list of procedures and/or practical arrangements that the different designated authorities should lay down and follow for implementation of the Fund.
It is necessary to lay down the obligations which the responsible authorities should have with regard to final beneficiaries in the phase leading to selection and approval of the projects to be funded and with regard to the aspects which should be covered by the verifications of the expenditure declared by the final beneficiary and/or by the partners in the project, including administrative verifications of the applications for reimbursement and on-the-spot verifications of individual projects.
In order to ensure that expenditure under annual programmes can be properly audited, it is necessary to set out the criteria with which audit trails should comply in order to be considered adequate.
The audits of projects and of systems are carried out under the responsibility of the audit authority. To ensure that the audits offer adequate scope and effectiveness, and are carried out in accordance with the same standards in all Member States, it is necessary to set out the conditions which the audits should fulfil, including the basis for sampling.
The Member States must submit to the Commission, together with their multiannual programme, a description of their management and control systems. Since this document is one of the principal bases on which the Commission relies, in the context of shared management of the Community budget, to determine whether the financial assistance concerned is used by the Member States in accordance with the applicable rules and principles for protecting the Community’s financial interests, it is necessary to set out in detail the information that this document should contain.
In order to harmonise standards for programming, following up the implementation of the Fund, auditing and certifying expenditure, it is necessary to clearly define the contents of the multiannual programme, the annual programme, the progress report, the final report, the applications for payments as well as the audit strategy, the annual audit report, the declaration of validity and the certification of expenditure.
Since Member States are required to report and monitor irregularities and to recover sums wrongly paid in connection with the financing from the Fund, it is necessary to define requirements for the data sent to the Commission.
Experience has shown that citizens of the European Union are insufficiently aware of the role played by the Community in funding programmes. It is therefore appropriate to define in detail the information and publicity measures necessary to bridge this communication and information gap.
In order to guarantee that information on possible funding opportunities is disseminated widely to all interested parties and for the sake of transparency, the minimum measures needed to inform potential final beneficiaries about the financing opportunities offered jointly by the Community and the Member States through the Fund should be set out. In order to enhance transparency about use of the Fund, the list of final beneficiaries, the names of the projects and the amount of public funding allocated to projects should be published.
In the light of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data⁽²⁾ and 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⁽³⁾, it is necessary to provide, in relation to the information and publicity measures and audit work under this Decision, that the Commission and the Member States should prevent any unauthorised disclosure of or access to personal data, and to specify the purpose for which the Commission and the Member States may process such data.
Use of electronic means to exchange information and financial data between the Member States and the Commission leads to simplification, increased efficiency, transparency and time savings. In order to capitalise fully on these advantages while preserving the security of exchanges, a common computer system may be established by the Commission.
To ensure efficient implementation of the Fund in the Member States, in accordance with the principles of sound financial management, a series of common rules should be adopted on the eligibility of expenditure from the Fund. In order to reduce the administrative burden on final beneficiaries and designated authorities, flat rates for indirect costs should be eligible under certain conditions.
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom is bound by the basic act and, as a consequence, by this Decision.
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland is bound by the basic act and, as a consequence, by this Decision.
In accordance with Article 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not bound by this Decision nor subject to the application thereof.
The measures provided for in this Decision are in accordance with the opinion of the Management Committee of the Fund,

HAS ADOPTED THIS DECISION:

PART I INTRODUCTION

CHAPTER 1 Subject and definitions

Article 1 Subject matter

This Decision lays down rules for implementation of the Fund as regards:

designated authorities;
management and control systems;
information to be provided by the Member States to the Commission regarding use of the Fund;
reporting of irregularities;
information and publicity;
personal data;
electronic exchange of documents.

The provisions set out below shall apply without prejudice to 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⁽⁴⁾.

Article 2 Definitions

For the purposes of this Decision the following definitions shall apply:

‘basic act’: Decision No 573/2007/EC,
‘Fund’: the European Refugee Fund, as established by the basic act,
‘four Funds’: the European Refugee Fund, the External Borders Fund, the European Return Fund and the European Fund for the Integration of third-country nationals, as established by Decision No 573/2007/EC, Decision No 574/2007/EC of the European Parliament and the Council⁽⁵⁾, Decision No 575/2007/EC of the European Parliament and the Council⁽⁶⁾, and Decision 2007/435/EC of the Council⁽⁷⁾ as part of the General programme ‘Solidarity and Management of Migration Flows’,
‘responsible authority’: the body designated by a Member State under Article 25(1)(a) of the basic act,
‘certifying authority’: the body designated by a Member State under Article 25(1)(b) of the basic act,
‘audit authority’: the body designated by a Member State under Article 25(1)(c) of the basic act,
‘delegated authority’: the body designated by a Member State under Article 25(1)(d) of the basic act,
‘designated authorities’: all the authorities designated by a Member State under Article 25 of the basic act,
‘action’: action under the Fund, as defined in Articles 3 and 5 of the basic act,
‘project’: specific, practical means deployed to implement all or part of an action by the final beneficiaries of grants,
‘final beneficiary’: the legal entity responsible for implementing projects such as NGOs, federal, national, regional or local authorities, other non-profit organisations, private or public-law companies or international organisations,
‘partner in the project’: any legal entity which implements a project in cooperation with a final beneficiary by providing the project with resources and by receiving part of the Community contribution through the final beneficiary,
‘strategic guidelines’: the framework for intervention by the Fund, as adopted by Commission Decision 2007/815/EC⁽⁸⁾,
‘priority’: set of actions defined as a priority in the strategic guidelines,
‘specific priority’: set of actions defined as a specific priority in the strategic guidelines, allowing co-financing at a higher rate, in accordance with Article 14(4) of the basic act,
‘primary administrative or judicial finding’: first written assessment by a competent authority, either administrative or judicial, concluding on the basis of specific facts that an irregularity has been committed, without prejudice to the possibility that this conclusion may subsequently have to be revised or withdrawn as a result of developments in the course of the administrative or judicial procedure,
‘irregularity’: any infringement of a provision of Community law resulting from an act or omission by an economic operator which has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure to the general budget,
‘suspected fraud’: an irregularity giving rise to the initiation of administrative or judicial proceedings at national level in order to establish the presence of intentional behaviour, in particular fraud, as referred to in Article 1(1)(a) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests⁽⁹⁾,
‘bankruptcy’: insolvency proceedings, as defined in Article 2(a) of Council Regulation (EC) No 1346/2000⁽¹⁰⁾,
‘grant agreement’: an agreement or an equivalent form of legal instrument on the basis of which Member States provide grants to the final beneficiary for the purpose of implementing the project under the Fund.

PART II PROVISIONS COMMON TO THE FOUR FUNDS

CHAPTER 1 Designated authorities

Article 3 Common authorities

Article 4 Delegated authority

Article 5 Outsourcing of tasks

CHAPTER 2 Management and control systems

Article 6 Manual of procedures

Article 7 Implementation of the Fund by the responsible authority

Article 8 Conditions under which the responsible authority acts as executing body

Article 9 Selection and award procedure when the responsible authority acts as awarding body

Article 10 Grant agreements with final beneficiaries when the responsible authority acts as awarding body

Article 11 Implementation contracts

Article 12 Determination of the final Community contribution

Article 13 Technical assistance

Article 14 Technical assistance expenditure in the case of a common authority

Article 15 Verifications by the responsible authority

Article 16 Audit trail

Article 17 Audits of systems and audits of projects

Article 18 Verifications by the certifying authority

CHAPTER 3 Information to be provided regarding use of the Fund

Article 19 Principle of proportionality

Article 20 Description of management and control systems

Article 21 Revision of the description of management and control systems

Article 22 Programming documents

Article 23 Revision of financial breakdown in annual programmes

Article 24 Progress and final reports on implementation of annual programmes

Article 25 Documents established by the audit authority

Article 26 Documents established by the certifying authority

CHAPTER 4 Reporting irregularities

Article 27 Initial reporting — derogations

Article 28 Reporting of follow-up — non-recovery

Article 29 Contacts with Member States

Article 30 Use of information

CHAPTER 5 Information and publicity

Article 31 Information for potential final beneficiaries

Article 32 Information for final beneficiaries

Article 33 Responsibilities of the responsible authority relating to information and publicity for the general public

Article 34 Responsibilities of final beneficiaries relating to information and publicity for the general public

Article 35 Technical characteristics of information and publicity for the operation