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Commission Implementing Regulation (EU) 2022/44 of 13 January 2022 laying down rules for the application of Regulation (EU) 2021/1139 of the European Parliament and of the Council as regards the criteria for establishing the level of financial corrections and for applying flat-rates linked to serious non-compliance with Common Fisheries Policy rules

Commission Implementing Regulation (EU) 2022/44 of 13 January 2022 laying down rules for the application of Regulation (EU) 2021/1139 of the European Parliament and of the Council as regards the criteria for establishing the level of financial corrections and for applying flat-rates linked to serious non-compliance with Common Fisheries Policy rules

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2021/1139 of the European Parliament and of the Council of 7 July 2021 on the European Maritime, Fisheries and Aquaculture Fund and amending Regulation (EU) 2017/1004(1), and in particular Article 45(4) thereof,

Whereas:

  1. The achievement of the objectives of the common fisheries policy (CFP) contained in Regulation (EU) No 1380/2013(2), of the European Parliament and of the Council should not be undermined by Member States violating CFP rules. Under Article 41(1) and (2) of Regulation (EU) No 1380/2013 financial assistance from the European Maritime, Fisheries and Aquaculture Fund (EMFAF) is conditional on Member States’ compliance with CFP rules. Non-compliance could result in the interruption or suspension of payments, or the application of financial corrections to Union financial assistance under the CFP.

  2. Article 104(1) of Regulation (EU) 2021/1060(3) of the European Parliament and of the Council sets out the cases in which the Commission applies financial corrections. Furthermore, under Article 104(5) of that Regulation, the fund-specific rules for the EMFAF may lay down specific bases for financial corrections linked to non-compliance with rules applicable under the CFP.

  3. In order to safeguard the financial interests of the Union and its taxpayers, the Commission may apply financial corrections by cancelling all or part of the Union contribution to an operational programme, pursuant to Article 45(1) of Regulation (EU) 2021/1139.

  4. Under Article 45(3) of Regulation (EU) 2021/1139, where it is not possible to quantify precisely the amount of expenditure linked to a Member State’s serious non-compliance with the CFP rules, a flat-rate financial correction is to be applied.

  5. Article 45(4) of Regulation (EU) 2021/1139 allows the Commission to adopt implementing acts determining the criteria for establishing the level of financial corrections to be applied and the criteria for applying flat-rate financial corrections. Article 45(1) of Regulation (EU) 2021/1139 includes the lists of cases in which the Commission may impose financial corrections on all or part of the Union contribution to the programme. In cases covered by point (a) of Article 45(1), quantification of the financial impact of the beneficiary’s non-compliance is based on the financing agreement between the beneficiary and the competent national authorities responsible for the implementation of the EMFAF programme. Consequently, the application of flat-rates for financial corrections may be applied only in cases referred to in Article 45(1) (b) of the Regulation (EU) 2021/1139.

  6. It is therefore necessary to adopt criteria for establishing the level of financial corrections to be applied and the criteria for applying flat-rate corrections. This will ensure legal certainty and equal treatment of Member States implementing EMFAF programmes as well as the transparency and proportionality of flat-rate financial corrections.

  7. The level of financial correction must be proportionate having regard to the nature, gravity, frequency and duration of the Member State’s serious non-compliance with the CFP rules.

  8. It is appropriate to provide for a graduated system of flat-rates that allows for the proper application of proportionality.

  9. Given the importance of ensuring a harmonised and equal treatment of Member States from the start of the programming period, this Regulation should enter into force on the day following that of its publication in the Official Journal of the European Union.

  10. The measures provided for in this Regulation are in accordance with the opinion of the Committee for the European Maritime, Fisheries and Aquaculture Fund,

HAS ADOPTED THIS REGULATION:

Article 1 Subject matter

This Regulation sets out the criteria for establishing levels of financial correction to be applied in cases of serious non-compliance with the CFP rules and the criteria for applying flat-rates, as referred to in Article 45 of Regulation (EU) 2021/1139.

Article 2 Criteria for establishing levels of financial correction

The levels of financial correction referred to in Article 45(1)(b) of Regulation (EU) 2021/1139 shall be established on the basis of the following criteria:

  1. the significance of the potential harm to marine biological resources resulting from non-compliance with the CFP rules;

  2. the frequency of non-compliance;

  3. the duration of non-compliance;

  4. the remedial actions taken by the Member State in question.

Article 3 Criteria for applying flat rates

1.

The flat-rates of the financial correction referred to in Article 45(3) of Regulation (EU) 2021/1139 shall be 2 %, 5 %, 10 %, 25 %, 50 % or 100 % of the Union contribution allocated to the relevant EMFAF specific objectives, or to the relevant part thereof, in the operational programme of the Member State concerned.

2.

The range within which flat-rates are to be applied in individual cases of non-compliance with the CFP rules is set out in the Annex. The rate to be used will be determined in accordance with the criteria set out in Article 2.

3.

Where, pursuant to Article 45(1)(b) of Regulation (EU) 2021/1139, the Commission adopts an implementing act making financial corrections under the same EMFAF specific objective for several cases of serious non-compliance as identified in accordance with Article 43(4) of the same Regulation, the flat-rates shall not be cumulated, but the financial correction shall be set within the highest range applicable to those cases as set out in the Annex.

4.

Where the Commission applies a financial correction for non-compliance with the CFP rules and the Member State does not take the appropriate remedial action, the flat-rate may be raised to the next higher level within the range applicable to that case of non-compliance with the CFP rules as established in the Annex.

5.

In addition to the cases explicitly provided for in the Annex, a flat-rate of 100 % of the Union contribution allocated to the relevant EMFAF specific objectives or to the relevant part thereof within the operational programme of the Member State concerned may be applied if

  1. the non-compliance with the rules of the CFP is so fundamental, frequent or widespread that it represents a complete failure of the system concerned and compromises the legality of actions of the Member State or the regularity of the financing of the CFP; or

  2. there is evidence of deliberate negligence from the Member State with regard to adopting measures aiming at remedying the non-compliance with the rules of the CFP.

Article 4 Entry into force

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

ANNEXCASES OF NON-COMPLIANCE REFERRED TO IN ARTICLE 1(1)