Legal provisions of COM(2022)362 - Provisions 2014-2020 cooperation programmes supported by European Neighbourhood Instrument and under European territorial cooperation goal, following implementation disruption - Main contents
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| dossier | COM(2022)362 - Provisions 2014-2020 cooperation programmes supported by European Neighbourhood Instrument and under European territorial ... |
|---|---|
| document | COM(2022)362  |
| date | November 9, 2022 |
Article 1
Subject matter and scope
1. This Regulation lays down specific provisions for thirteen cross-border cooperation programmes governed by Regulation (EU) No 232/2014 and two transnational cooperation programmes governed by Regulation (EU) No 1299/2013 listed in the Annex to this Regulation with regard to programme implementation disruption following Russia’s military aggression against Ukraine and the involvement of Belarus in that aggression.
2. Articles 3 to 14 of this Regulation apply to the cross-border cooperation programmes governed by Regulation (EU) No 232/2014, which are listed in part 1 of the Annex to this Regulation.
3. Article 15 of this Regulation applies to the transnational cooperation programmes governed by Regulation (EU) No 1299/2013, which are listed in part 2 of the Annex to this Regulation.
Article 2
Definitions
1. For the purposes of this Regulation, the following definitions apply:
| (1) | ‘partner country’ means any of the third countries participating in a cooperation programme listed in the Annex; |
| (2) | ‘programme implementation disruption’ means problems with regard to the implementation of programmes as a result of either of the following situations or a combination of both:
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2. For the purposes of Articles 3 to 14 of this Regulation, the definitions set out in Article 2 of Implementing Regulation (EU) No 897/2014 shall also apply.
Article 3
Co-financing
In the situation referred to in Article 2(1), point (2)(b), no co-financing of the Union contribution from Member States or partner countries shall be required for expenditure incurred and paid and included in the annual accounts for the accounting years starting 1 July 2021, 1 July 2022 and 1 July 2023 respectively.
Article 4
Programming
1. The application of Article 3 shall not require a Commission decision approving a programme adjustment. The managing authority shall notify the revised financial tables to the Commission before the submission of the annual accounts for the accounting year 2021/2022 following the prior approval of the Joint Monitoring Committee.
2. Adjustments to the programme consisting of cumulative changes that do not exceed 30 % of the originally allocated Union contribution to each thematic objective or to technical assistance involving transfer between thematic objectives or from technical assistance to thematic objectives or involving transfer from thematic objectives to technical assistance shall be considered as non-substantial and may therefore be directly made by the managing authority, with the prior approval of the Joint Monitoring Committee. Such adjustments shall not require a Commission decision.
3. The cumulative changes referred to in paragraph 2 shall not require any further justification beyond invoking programme implementation disruption and shall, where possible, reflect the expected impact of the adjustments to the programme.
Article 5
Eligibility of expenditure for projects addressing the migratory challenges
Expenditure for projects addressing the migratory challenges as a result of programme implementation disruption shall be eligible as of 24 February 2022.
Article 6
Projects
1. Following the start of programme implementation disruption, the managing authority may amend the documents setting out the conditions for support to projects affected by that disruption in accordance with the national law of the managing authority and without the prior approval of the Joint Monitoring Committee.
Those amendments may also cover the replacement of the lead beneficiary or changes to the financing plan or to the execution deadlines.
2. The managing authority may sign contracts, other than contracts for large infrastructure projects, after 31 December 2022, provided all project activities financed by the programme end by 31 December 2023.
3. The share of the Union contribution allocated to large infrastructure projects may exceed 30 % at the closure of the programme, provided that the excess is only due to an unexpected increase in supply and construction prices following higher than expected inflation.
Article 7
Functioning of the managing authority
1. Verifications carried out by the managing authority may be limited to administrative verifications, where on-the-spot project verifications are not possible. Where it is not possible to carry out any verifications, the related expenditure shall not be declared for clearance of accounts.
2. Notwithstanding paragraph 1, where an infrastructure component of a project was destroyed before verifications could be carried out, the related expenditure may be declared for clearance of accounts on the basis of a declaration of honour from the beneficiary stating that before its destruction the project corresponded to the content set out in invoices or documents of equivalent probative value.
Article 8
Cross-border cooperation impact of projects
1. In the context of the implementation of projects affected by a programme implementation disruption, the cross-border cooperation impact and benefits of projects shall be assessed in three phases:
| (a) | a first phase up to the date on which the programme implementation disruption started; |
| (b) | a second phase as of the date referred to in point (a); |
| (c) | a third phase after the programme implementation disruption has ended. |
With regard to the first and third phases, the indicators and related target values used for that assessment shall be those achieved by the beneficiaries in the Member States and in the partner countries, provided that the beneficiaries in the partner countries have been able to provide the relevant information to the managing authority.
With regard to the second phase, the indicators and related target values used for that assessment shall be those achieved by the beneficiaries in the Member States and in those partner countries whose financing agreements are not suspended and which are not in a situation under Article 2(1), point (2)(b).
2. The eligibility of expenditure in projects shall be assessed in accordance with paragraph 1, as regards the cross-border cooperation impact and benefits thereof.
3. In the situation referred to in Article 2(1), point (2)(b), projects including an infrastructure component located in a partner country shall not be required to repay the Union contribution where it is not possible to satisfy the obligation not to be subject to substantial changes within five years of the project closure or within the period of time set out in State aid rules.
Article 9
Participation in projects
1. As of the date on which the programme implementation disruption started, ongoing projects may continue even where none of the beneficiaries of a partner country facing a situation referred to in Article 2(1), point (2)(a) or (b) are able to participate.
2. As of the date on which the programme implementation disruption started, the Joint Monitoring Committee may select new projects even where no beneficiary of a partner country facing a situation referred to in Article 2(1), point (2)(a) or (b), is able to participate at the moment of selection.
3. As of the date on which the programme implementation disruption ends, the managing authority may amend the document setting out the conditions for support to projects in order to cover beneficiaries of a partner country included in the project application without the prior approval of the Joint Monitoring Committee.
Article 10
Lead beneficiaries’ obligations
1. Following the start of programme implementation disruption and for as long as such a disruption persists, the lead beneficiary in a Member State shall not be required to:
| (a) | assume responsibility for the non-implementation of the part of the project affected by the disruption; |
| (b) | ensure that the expenditure presented by the beneficiaries affected by the disruption has been incurred for the purpose of implementing the project and corresponds to activities set out in the contract and agreed between all beneficiaries; |
| (c) | verify that the expenditure presented by the beneficiaries affected by the disruption has been examined by an auditor or by a competent public officer. |
2. Following the start of programme implementation disruption, the lead beneficiary in a Member State shall have the right to amend and adapt unilaterally the partnership agreement with the other beneficiaries.
That right shall include the possibility to suspend the activities of a beneficiary from a partner country in full or in part, for as long as the programme implementation disruption persists.
3. The lead beneficiary in a Member State may propose to the managing authority the necessary changes to be made to the project including the redistribution of project activities among the remaining beneficiaries.
4. Following the start of programme implementation disruption, the lead beneficiary in a Member State may request the managing authority not to receive the financial contribution for the implementation of project activities in full or in part.
The lead beneficiary in a Member State shall not be required to ensure that beneficiaries in partner countries receive the total amount of the grant as quickly as possible and in full.
5. In the situation referred to in Article 2(1), point (2)(b), the lead beneficiary in a Member State and the managing authority, in agreement with the audit authority, may verify and accept a payment request without a prior verification by an auditor or by a competent public officer of the expenditure declared by a beneficiary located in a partner country.
6. Paragraphs 1 to 5 of this Article shall also apply to lead beneficiaries in a partner country which is not in the situation referred to in Article 2(1), point (2)(a).
In addition, and for the duration of the programme implementation disruption, such a lead beneficiary may also request the managing authority to identify another beneficiary as lead beneficiary and to make direct payments to other beneficiaries of the project concerned.
Article 11
Direct award
Following the start of programme implementation disruption, and for the duration of the disruption, projects addressing migratory challenges as a result of military aggression against a participating country may be selected by the Joint Monitoring Committee without a prior call for proposals in exceptional and duly substantiated cases.
Article 12
Payments
Following the start of programme implementation disruption and without prejudice to Article 6(1), the managing authority may transfer a financial contribution for the implementation of the project activities directly to project beneficiaries other than the lead beneficiary.
Article 13
Use of the euro
The method chosen to convert expenditure incurred in a currency other than the euro into euro as set out in the programme, may be changed retroactively as of the start date of a programme implementation disruption, using the monthly accounting exchange rate of the Commission of one of the following months:
| (a) | the month during which the expenditure was incurred; |
| (b) | the month during which the expenditure was submitted for examination by an auditor or by a competent public officer; |
| (c) | the month during which the expenditure was reported to the lead beneficiary. |
Article 14
Financial responsibilities, recoveries and repayment to the managing authority
1. Following the start of programme implementation disruption and for the duration of the disruption, the managing authority shall be required to follow all the steps necessary for pursuing the recovery of amounts unduly paid from beneficiaries in partner countries or from lead beneficiaries in Member States or partner countries in accordance with the procedure set out in paragraphs 2 to 5.
2. The managing authority may decide to recover amounts unduly paid directly from a beneficiary in a Member State without prior recovery through the lead beneficiary in a partner country.
3. The managing authority shall prepare and send out recovery letters in order to recover amounts unduly paid.
However, in the case of a negative response or in the absence of a reaction from beneficiaries in partner countries or from the partner country in which the beneficiary is established, the managing authority shall not be required to pursue an administrative procedure or to attempt a recovery from a respective partner country or to launch a legal redress procedure in the partner country concerned.
The managing authority shall document its decision not to pursue a first attempt of recovery. That document shall be considered as sufficient proof of due diligence exercised by the managing authority.
4. Where the recovery relates to a claim against a beneficiary established in a partner country in the situation referred to in Article 2(1), point (2)(a), and whose co-financing is transferred to the managing authority, the managing authority may offset the claim to be recovered with the non-used funds previously transferred by the partner country to the managing authority.
5. Where the recovery relates to a claim against a beneficiary established in a partner country in the situation referred to in Article 2(1), point (2)(a), and where the managing authority is unable to offset that claim in accordance with paragraph 4 of this Article, the managing authority may request that the Commission takes over the task of recovering the amounts.
Where the beneficiary concerned is subject to an asset freeze or a prohibition to make funds or economic resources available to it, or for its benefit, either directly or indirectly, pursuant to restrictive measures adopted in accordance with Article 215 TFEU, the managing authority shall be obliged to request that the Commission takes over the task of recovering the amounts. The managing authority shall cede its rights vis-à-vis the beneficiary to the Commission to that end.
The managing authority shall inform the Joint Monitoring Committee about any recovery procedure taken over by the Commission.
Article 15
Derogations from Regulation (EU) No 1299/2013 applicable to transnational programmes
1. By way of derogation from Article 12(1) and (2) of Regulation (EU) No 1299/2013, the monitoring committee or a steering committee set up by the monitoring committee and acting under its responsibility may select new operations even without any beneficiary from a partner country facing a situation referred to in Article 2(1), point (2)(a) or (b) of this Regulation, provided that transnational impacts and benefits are identified.
The monitoring or steering committee may also select new projects even where no beneficiary of a partner country facing a situation referred to in Article 2(1), point (2)(a) or (b), is able to participate at the moment of the selection.
2. By way of derogation from Article 12(2) and (4) of Regulation (EU) No 1299/2013, ongoing operations may continue even where none of the beneficiaries from a partner country facing a situation referred to in Article 2(1), point (2)(a) or (b) of this Regulation, are able to participate in the project implementation.
In the context of the implementation of operations affected by a programme implementation disruption, the transnational cooperation impact and benefits thereof shall be assessed in accordance with Article 8(1) and (3) of this Regulation.
3. By way of derogation from Article 12(5) of Regulation (EU) No 1299/2013, the managing authority may amend the documents setting out the conditions for support of the operations affected by a programme implementation disruption in accordance with its national law.
Those amendments may also cover the replacement of the lead beneficiary or changes to the financing plan or to the execution deadlines.
As of the date when a programme implementation disruption ends, the managing authority may amend the document setting out the conditions for support of the operations in order to cover the beneficiaries of a partner country facing a situation referred to in Article 2(1), point (2)(a) or (b), included in the application document.
4. By way of derogation from Article 13(2) of Regulation (EU) No 1299/2013, Article 10 of this Regulation shall apply to the rights and obligations of the lead beneficiaries.
5. By way of derogation from Article 21(2) of Regulation (EU) No 1299/2013 and without prejudice to paragraph 3 of this Article, the certifying authority may make payments directly to beneficiaries other than the lead beneficiary.
6. By way of derogation from Article 23(4) of Regulation (EU) No 1299/2013, Article 7 of this Regulation shall apply to the management verifications carried out by the managing authority and the controllers.
7. By way of derogation from Article 27(2) and (3) of Regulation (EU) No 1299/2013, Article 14 of this Regulation shall apply as regards the recovery of amounts unduly paid and repayments to the managing authority.
8. By way of derogation from Article 28 of Regulation (EU) No 1299/2013, Article 13 of this Regulation shall apply as regards the method chosen to convert expenditure incurred in a currency other than the euro into euro.
9. The derogations provided for in paragraphs 1 to 8 shall apply as of the date when the transnational programmes concerned face a programme implementation disruption and for as long as that disruption persists.
Article 16
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.
This Regulation shall be binding in its entirety and directly applicable in all Member States.