Legal provisions of COM(2023)269 - European Maritime Safety Agency - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)269 - European Maritime Safety Agency. |
|---|---|
| document | COM(2023)269 |
| date | June 1, 2023 |
CHAPTER I
SUBJECT MATTER, SCOPE AND OBJECTIVES
Article 1
Establishment, subject matter and scope
1. This Regulation provides comprehensive rules on the tasks, functioning and governance of the European Maritime Safety Agency established by Regulation (EC) No 1406/2002 (‘the Agency’).
2. The Agency shall assist the Member States and the Commission in the effective application and implementation of Union law related to maritime transport across the Union. To that end, the Agency shall cooperate with the Member States and the Commission and provide them with technical, operational and scientific assistance within the scope of the Agency’s objectives and tasks set out in Article 2 and Chapters II and III.
3. By providing the assistance referred to in paragraph 2, the Agency shall in particular provide support to the Member States and the Commission to apply the relevant Union legal acts properly while contributing to the overall efficiency of maritime traffic and maritime transport as set out in this Regulation, so as to facilitate the achievement of the Union’s objectives in the maritime transport domain.
4. Any assistance provided by the Agency shall be without prejudice to the rights and responsibilities of the Member States as flag, port or coastal States.
Article 2
Objectives of the Agency
1. The objectives of the Agency shall be the promotion and establishment of a high, uniform and effective level of maritime safety aiming towards zero accidents, maritime security, the reduction of greenhouse gas emissions from ships and the sustainability of the maritime sector as well as the prevention of and response to pollution caused by ships and the response to marine pollution caused by oil and gas installations.
2. Further objectives of the Agency shall be the promotion of digitalisation of the maritime sector by facilitating the electronic transmission of data supporting simplification and the provision of integrated maritime surveillance and awareness systems and services to the Commission and the Member States.
CHAPTER II
TASKS OF THE AGENCY
Article 3
Horizontal technical support
1. The Agency shall assist the Commission:
(a) in the control of the effective implementation of relevant binding legal acts of the Union, falling under the objectives of the Agency, in particular by carrying-out the visits and inspections as referred to in Article 10. In this regard, the Agency may address suggestions to the Commission for possible improvements;
(b) in the preparatory work for updating and developing relevant legal acts of the Union falling under the objectives of the Agency, in particular in accordance with the development of international law;
(c) in the performance of any other task assigned to the Commission in legislative acts of the Union regarding the objectives of the Agency.
2. The Agency shall work with the Member States to:
(a) organise, where appropriate, relevant capacity building and training activities in fields which fall under the objectives of the Agency and are the responsibility of the Member States. In this regard, the Agency shall establish appropriate capabilities with the aim to develop, implement and coordinate training activities relevant to the objectives of the Agency, including through the development of common core curricula courses, seminars, conferences, workshops as well as web-based, e-learning and other innovative and advanced training tools. The details of such training activities provided outside formal education shall be developed in close consultation with the Member States and the Commission and approved by the Management Board in accordance with Article 17 of this Regulation, while fully respecting Article 166 of the Treaty on the Functioning of the European Union (TFEU);
(b) develop technical solutions, including the provision of relevant operational services, and provide technical assistance, to building up the necessary national capacity for the implementation of relevant legal acts of the Union pertinent to the objectives of the Agency.
3. The Agency shall promote and facilitate cooperation between Member States and between them and the Commission in the implementation of the Union legislation by promoting the exchange and dissemination of experiences and good practices.
4. The Agency shall contribute, at the Commission’s request, or on its own initiative, subject to the approval of the Management Board in accordance with Article 17, to maritime research activities at the Union level consistent with the objectives of the Agency. In this regard, the Agency shall assist the Commission and the Member States in identifying key research themes, without prejudice to other research activities at the Union level, and in analyzing ongoing and completed research projects relevant to the objectives of the Agency. Where appropriate, subject to the applicable rules on intellectual property and security considerations, the Agency may disseminate the results of its research and innovation activities, following approval by the Commission, as part of its contribution to creating synergies between the research and innovation activities of other Union bodies and the Member States.
5. Where required for the implementation of its tasks, the Agency shall undertake studies, involving the Commission and where applicable, through consultation steering groups, the Member States, and where appropriate, the social partners and industry representatives with expertise in the relevant topics.
6. On the basis of the research and studies conducted by the Agency, but also on the basis of the experience gained through its own activities, especially the visits and inspections, and exchange of information and good practices with the Member States and the Commission, the Agency may issue, after prior consultation with the Commission, relevant non-binding recommendations, guidelines or manuals to support and facilitate Member States, and where appropriate the industry, in the implementation of the Union legislation.
Article 4
Tasks relating to maritime safety
1. The Agency shall monitor progress on the safety of maritime transport in the Union, conduct risk analysis on the basis of the available data and develop safety risk assessment models to identify safety challenges and risks. Every three years it shall present to the Commission a report on progress on maritime safety with possible technical recommendations that could be addressed at the Union or the international level. In this regard, the Agency shall in particular analyse and propose relevant guidance or recommendations in relation to potential safety risks stemming from the uptake and deployment of sustainable alternative sources of power for ships, including onshore power supply to ships at berth.
2. The Agency shall assist the Commission and the Member States in the implementation of Directive 2009/21/EC. In particular, the Agency shall develop and maintain the inspection database in accordance with [Article 6a] of that Directive, establish the electronic reporting tool referred to in [Article 9b] of that Directive, maintain the public website referred to in Article 8(2c) and provide to the Commission recommendations on the basis of the data collected.
The Agency shall assist the Commission in participating as an observer in the International Maritime Organisation auditing process according to [Article 7] of Directive 2009/21/EC. The Agency shall also develop relevant tools and services assisting the Member States, upon their request, on fulfilling their obligations under Directive 2009/21/EC.
The Agency shall also provide a common capacity building scheme for flag State surveyors and flag State inspectors of the Member States, referred to in [Article 4c]of the aforementioned Directive.
3. The Agency shall assist the Commission in the development and maintenance of the databases provided for in Articles 24 and 24a of Directive 2009/16/EC. On the basis of the data collected, the Agency shall assist the Commission in the analysis of the relevant information and the publication of information concerning ships and companies with low and very low performance pursuant to Directive 2009/16/EC.
The Agency shall develop relevant tools and services assisting the Member States, upon their request, on fulfilling their obligations under Directive 2009/16/EC.
The Agency shall also provide a professional development and training program for port State control inspectors of the Member States, as provided for in [Article 22 (7)] of the aforementioned Directive 2009/16/EC.
4. The Agency shall assist the Commission in the development and maintenance of the database provided for in Article 17 of Directive 2009/18/EC. On the basis of the data collected the Agency shall compile a yearly overview of marine casualties and incidents. The Agency shall, if requested by the concerned Member States and where no conflict of interest arises, provide operational support to these Member States concerning safety investigations. The Agency shall also carry out an analysis of safety investigation reports with a view to identify added value at Union level in terms of any relevant lessons to be drawn.
The Agency shall provide a professional development and training program to the competent marine safety accident investigation Authorities.
5. The Agency shall assist the Commission and the Member States in the implementation of Directives 2009/45/EC34 and 2003/25/EC of the European Parliament and of the Council35 and Council Directive 98/41/EC36. The Agency shall, in particular, develop and maintain a database for recording measures as provided for in Article 9 of Directive 2009/45/EC and Article 9 of Directive 98/41/EC and assist the Commission in the assessment such measures.
6. The Agency shall facilitate the cooperation and the exchange of information between the Commission and the Member States for the assessment of the recognised organisations that carry out survey and certification tasks in accordance with Article 8(1) of Regulation (EC) No 391/200937. In particular, the Agency shall:
(a) provide to the Commission an opinion on its assessment of the recognised organisations under Article 8(1) of Regulation (EC) No 391/2009;
(b) provide to the Member States appropriate information in the context of the inspections conducted to support the Commission’s assessment under Article 8 (1) of Regulation (EC) No 391/2009 in order to support the monitoring and oversight of the recognised organisations according to Article 9 of Directive 2009/15/EC of the European Parliament and of the Council38 supporting the Member States in the discharge of their Union and international obligations as flag States. In this regard, the Agency shall assist the Commission in the managing of the high level group on flag State matters under [Article 9 (1)] of Directive 2009/21/EC.
(c) provide, on its own initiative or at the Commission’s request, a recommendation and technical assistance to the Commission on possible remedial measures or the imposition of fines to the recognised organisations in accordance with Article 5 and 6 of Regulation (EC) No 391/2009.
7. The Agency shall assist the Commission in the implementation of Directive 2014/90/EU of the European Parliament and of the Council39 by providing its technical assessment on safety aspects, providing recommendations with lists of the respective design, construction and performance requirements and testing standards, developing and maintaining the database provided for in Article 35(4) of that Directive and facilitating cooperation between notified assessment bodies acting as the technical secretariat for their coordination group.
8. The Agency shall assist the Commission and the Member States in the identification of safety risks related to the development of maritime autonomous and automated surface ships (MASS), and assist the Member States by facilitating, through research and the development of relevant digital tools, guidance and manuals for the approval of MASS projects and/or operations.
9. The Agency shall gather and analyse data on seafarers provided and used in accordance with Directive (EU) 2022/993 of the European Parliament and of the Council40. It may also gather and analyse data on the implementation of the Maritime Labour Convention, 2006 (MLC, 2006) with the aim of assisting in the improvement of the onboard working and living conditions of seafarers..
Article 5
Tasks relating to sustainability
1. The Agency shall, in a cost efficient, way support the Member States with additional pollution response means in case of pollution caused by ships as well as marine pollution caused by oil and gas installations. The Agency shall so act on request of the affected Member State under the authority of which the cleaning operations are conducted. Such assistance is without prejudice to the responsibility of coastal States to have appropriate pollution response mechanisms in place and shall respect existing cooperation between Member States in this field. The operational means that the Agency provides to the Member States shall take into account and cater for the transition of the sector to the use of sustainable alternative sources of power for ships. As appropriate, requests for mobilisation of anti-pollution actions shall be relayed through the Union Civil Protection Mechanism established by Decision No 1313/2013/EU of the European Parliament and of the Council41.
2. The Agency shall assist the Commission and the Member States with the detection of possible pollution and pursuit of ships making illegal discharges in accordance with Directive 2005/35/EC. The Agency shall in particular assist with the implementation of Articles [10, 10a, 10b, 10c and 10d] of that Directive by:
(a) developing and maintaining the necessary information system (CleanSeaNet), as part of the Union Maritime Information and Exchange System (SafeSeaNet), and databases;
(b) collecting, analysing and disseminating the relevant information on the implementation and enforcement of Directive 2005/35/EC;
(c) providing capacity building to the competent national authorities and facilitating the exchange of best practices;
(d) developing and maintaining the online external reporting channel for receiving and handling information on potential illegal discharges communicated by the crew and shall relay such information to the Member State or Member States concerned.
3. The Agency shall provide the CleanSeaNet service and any other tools to assist the Commission and the Member States, upon their request, to monitor the extent and environmental impact of marine oil pollution caused by oil and gas installations.
4. The Agency shall assist the Commission and the Member States in the implementation of Directive (EU) 2019/883 on port reception facilities for the delivery of waste from ships. In particular, the Agency shall assist the Commission in the development and maintenance of the inspection database provided for in Article 14 of that Directive.
5. The Agency shall assist the Commission and the Member States in the context of the implementation of Directive 2008/56/EC, by contributing to the objective of achieving good environmental status of marine waters with its shipping-related elements and in exploiting the results of existing tools such as the Integrated Maritime Services. In this regard, the Agency shall conduct further research in issues related to lost containers, including plastic pellets, and underwater noise and provide recommendations to the Commission and the Member States.
6. The Agency shall assist the Commission and the Member States, including with operational tools and services, in the implementation of the shipping-related elements of Directive (EU) 2016/802. In this regard, the Agency shall also enhance and maintain a database providing assistance to the Member States on targeting and prioritising appropriately ships for inspections based on risk of non compliance with that Directive.
7. The Agency shall assist the Commission and the Member States, upon their request, with appropriate operational tools and services on the monitoring and collection of data in relation to nitrogen oxides (NOx) emissions from ships.
8. The Agency shall assist the Commission and the Member States in the implementation of Regulation (EU) No 1257/2013 of the European Parliament and of the Council42 by issuing appropriate guidance and through the collection and analysis of data on compliance with the provisions of that Regulation.
9. The Agency shall every three years present to the Commission a report on the progress made in reducing the environmental impact of maritime transport at the Union level.
Article 6
Tasks relating to decarbonisation
1. The Agency shall monitor progress on the operational and technical measures undertaken to increase the energy efficiency of ships and the deployment of sustainable alternative fuels, energy and power systems for ships, including onshore power supply and wind propulsion assistance, to reduce greenhouse gas emissions from ships.
2. The Agency shall provide technical assistance to the Commission and the Member States, upon their request, in relation to regulatory efforts to reduce greenhouse gas emissions from ships. In this regard, the Agency may utilize any operational tools or services pertinent to the task. The Agency shall in particular research, analyse and propose relevant guidance or recommendations in relation to the uptake and deployment of sustainable alternative fuels, energy and power systems for ships, including onshore power supply and wind propulsion assistance as well as in relation to energy efficiency measures.
3. The Agency shall assist the Commission and the Member States in the implementation of Regulation (EU)[.., on the use of renewable and low-carbon fuels in maritime transport]. In particular, the Agency shall assist the Commission with the development and maintenance of the FuelEU database and other relevant IT tools as referred to in [Article 16] of that Regulation, in the development of the appropriate monitoring tools, guidance and risk-based targeting tools to facilitate verification and enforcement activities provided for in [Article 15 ter] of that Regulation and with the analysis of the relevant data and the preparation of the reporting under [Article 28] of that Regulation.
4. The Agency shall assist the Commission and the Member States in the implementation of Regulation (EU) 2015/757. In particular, the Agency shall assist the Commission with the development, update and maintenance of relevant IT tools, databases and guidance for the purposes of implementing that Regulation and facilitating enforcement activities, assist the Commission with the analysis of relevant data reported under that Regulation, and support the Commission in its activities to comply with the obligations under Article 21 of that Regulation.
5. The Agency shall assist the Commission and the Member States in the implementation of Directive 2003/87/EC, as relevant to the maritime sector. In particular, the Agency shall assist the Commission with the development of the appropriate IT implementation tools, monitoring tools, guidance and risk-based targeting tools to facilitate verification, enforcement and implementation activities related to Directive 2003/87/EC, as relevant to the maritime sector, while exploiting the results of existing relevant tools, services and databases.
6. The Agency shall every three years present to the Commission a report on the progress made in achieving the decarbonisation of maritime transport at the Union level. Where possible, the report shall include technical analysis on identified issues that could to be addressed at the Union level.
Article 7
Tasks relating to maritime security and cybersecurity
1. The Agency shall provide technical assistance to the Commission in the performance of the inspection tasks assigned to it pursuant to Article 9(4) of Regulation (EC) No 725/2004.
2. The Agency shall assist the Commission and the Member States, together with any other relevant Union body, in developing resilience against cybersecurity incidents in the maritime sector in particular by facilitating the exchange of best practices and information on cyber security incidents between the Member States.
Article 8
Tasks relating to maritime surveillance and maritime crises
1. The Agency shall provide to the Commission and the Member States, upon their request, maritime surveillance and communication services based on state-of-the-art, including space-based and ground infrastructure and sensors mounted on any kind of platform, improving maritime situational awareness.
2. In the field of traffic monitoring covered by Directive 2002/59/EC, the Agency shall in particular promote cooperation between riparian States in the shipping areas concerned, as well as, develop, maintain and operate the European Union Long-Range Identification and Tracking of Ships European Data Centre and the Union Maritime Information and Exchange System (SafeSeaNet) as referred to in Articles 6b and 22a of that Directive as well as the International Long-Range Identification and Tracking information data exchange system in accordance with the commitment made in the IMO.
3. The Agency shall provide, upon request and without prejudice to national and Union law, relevant vessel positioning and Earth observation data to the Commission, the competent national authorities and relevant Union bodies within their mandate in order to facilitate measures against threats of piracy and of intentional unlawful acts as provided for in applicable Union law or under internationally agreed legal instruments in the area of maritime transport, subject to applicable data protection rules and in accordance with administrative procedures to be established by the High Level Steering Group established in accordance with Directive 2002/59/EC, as appropriate. The provision of long-range identification and tracking of ships data shall be subject to the consent of the flag State concerned.
4. The Agency shall operate a center available 24 hours a day and 7 days a week providing, upon request and without prejudice to national and Union law, to the Commission, the competent national authorities, without prejudice to their rights and responsibilities as flag, coastal and port States, and to relevant Union bodies, within their mandate, maritime situational awareness and analytical data, as appropriate, supporting them in:
(a) safety, security and pollution at sea;
(b) situations of emergency at sea;
(c) the implementation of any Union legislation requiring the monitoring of ship movements;
(d) measures against threats of piracy and of intentional unlawful acts as provided for in applicable Union law or under internationally agreed legal instruments in the area of maritime transport;
(e) the deployment of MASS and their interaction with conventional ships.
The provision of such information shall be subject to applicable data protection rules and in accordance with administrative procedures to be established by the High Level Steering Group established in accordance with Directive 2002/59/EC, as appropriate. The provision of long-range identification and tracking of ships data shall be subject to the consent of the flag State concerned.
5. The Agency shall within its field of competence contribute to a timely response to and mitigation of crises by assisting, upon request, the Member States and the Commission with the execution of contingency plans and by facilitating the exchange of information and best practices.
6. The Agency shall assist the Commission in the operation of the maritime surveillance component of the Copernicus Security Service within the governance and financial framework of the Copernicus programme.
7. The Agency shall assist the Commission and the Member States in the development and maintenance of the voluntary Common Information Sharing Environment (CISE), an interoperability solution, with the aim of facilitating information exchange between different systems used by civil and military authorities with responsibility in the maritime domain complementing the information already available through the mandatory information systems.
Article 9
Tasks relating to digitalisation and simplification
1. The Agency shall, where appropriate, collect and provide, in the areas of Union law within the Agency’s competence, objective, reliable and comparable statistics, information and data, to enable the Commission and the Member States to take the necessary steps to improve their actions and to evaluate the effectiveness and cost-efficiency of existing measures. Such tasks shall include the facilitation and promotion of electronic certificates, the collection, recording and evaluation of technical data, the systematic exploitation of existing databases, including their cross-fertilisation through the use of innovative IT and artificial intelligence tools, and, where appropriate, the development of additional interoperable databases. In this regard, the Agency shall also contribute to the maritime domain of the common European mobility data space by exploring links with systems of other transport modes.
2. The Agency shall assist the Commission in the implementation of the Regulation (EU) 2019/1239 of the European Parliament and of the Council43, with the following tasks:
(a) to develop, make available and maintain the common IT components and services of the European Maritime Single Window environment (‘EMSWe’) under the responsibility of the Commission;
(b) to maintain the EMSWe Data Set, the Message Implementation Guide and the templates of the digital spreadsheets;
(c) to provide technical guidance to the Member States for the implementation of the EMSWe.
(d) to facilitate the re-use and the sharing of data exchanged in the EMSWe using SafeSeaNet.
3. The Agency shall provide technical assistance to the Member States, upon their request and without prejudice to their rights and obligations as flag States, in the digitalization of their registries and their procedures facilitating the uptake of electronic certificates.
Article 10
Visits to Member States and inspections
1. In order to assist the Commission in fulfilling its duties under the TFEU, and in particular the assessment of the effective implementation of relevant Union law, the Agency shall carry out visits to Member States in accordance with a methodology established by the Management Board. Such methodology shall take into account an integrated approach by each visit aiming to verify more than one piece of legislation each time pertinent to the function of flag, port or coastal State of the examined Member State during the visit.
2. The Agency shall inform the Member State concerned in good time of the planned visit, the names of the authorised officials, and the date on which the visit starts and its expected duration. The Agency officials delegated to carry out such visits shall do so on presentation of a decision in writing from the Executive Director of the Agency specifying the purpose and the aims of their mission.
3. The Agency may carry out inspections on behalf of the Commission as required by binding legal acts of the Union regarding organisations recognised by the Union in accordance with Regulation (EC) No 391/2009, and as regards the training and certification of seafarers in third countries in accordance with Directive (EU) 2022/993.
4. The Agency may also carry out inspections on behalf of the Commission as required by any other binding legal act of the Union if the Commission decides to delegate such a task to the Agency.
5. At the end of each visit or inspection, the Agency shall draw up a report and send it to the Commission and to the Member State concerned. The report would follow the template previously established by the Commission.
6. Where appropriate, and in any case when a cycle of visits or inspections is concluded, the Agency shall analyse reports from that cycle with a view to identifying horizontal findings and general conclusions on the effectiveness and cost-efficiency of the measures in place. The Agency shall present this analysis to the Commission for further discussion with Member States in order to draw any relevant lessons and facilitate the dissemination of good working practices.
CHAPTER III
OTHER TASKS OF THE AGENCY REGARDING INTERNATIONAL RELATIONS AND EUROPEAN COAST GUARD COOPERATION
Article 11
International relations
1. The Agency shall provide technical assistance necessary for the Member States and the Commission, upon their request, to contribute to the relevant work of the technical bodies of the IMO, the International Labour Organisation as far as shipping is concerned, and the Paris Memorandum of Understanding on Port State Control (‘Paris MoU’) and relevant regional organisations to which the Union has acceded, with regard to matters of Union competence.
For the purpose of carrying out these tasks in an efficient and effective manner, the Executive Director may decide to locate staff in Union delegations in third countries subject to the appropriate agreements with the European External Action Service. That decision requires the prior consent of the Commission and of the Management Board. That decision shall specify the scope of the activities to be carried out by the located staff in a manner that avoids unnecessary costs and duplication of administrative functions of the Agency.
2. The Agency may, upon the request of the Commission, provide technical assistance, including the organisation of relevant training activities, as regards relevant legal acts of the Union, to States applying for accession to the Union, and, where applicable, to European Neighbourhood partner countries and to countries taking part in the Paris MoU.
3. The Agency may, upon the request of the Commission or the European External Action Service, or both, provide assistance in case of pollution caused by ships as well as marine pollution caused by oil and gas installations affecting third countries sharing a regional sea basin with the Union. The Agency shall provide the assistance in line with the Union Civil Protection Mechanism established by Decision No 1313/2013/EU, and with the conditions applicable to Member States as referred to in Article 5 (1) of this Regulation applied by analogy to the third countries. Those tasks shall be coordinated with the existing regional cooperation arrangements related to marine pollution.
4. Without prejudice to Article 24, the Agency may provide, upon the request of the Commission, technical assistance to third countries for matters falling under its competence.
5. The Agency may enter into administrative arrangements and cooperation with other Union bodies working in the matters falling within the scope of the Agency’s competence following the approval of the Commission. Such arrangements and cooperation shall be subject to the opinion of the Commission and periodical reporting to it.
6. The Management Board shall adopt a strategy for international relations of the Agency concerning matters under its competence. That strategy shall be in line with the Commission’s political priorities and shall aim at assisting the Commission and the European External Action Service in fulfilling such priorities. It shall be included in the programming document of the Agency, with a specification of associated resources.
Article 12
European cooperation on coast guard functions
1. The Agency shall, in cooperation with the European Border and Coast Guard Agency, established by Regulation (EU) 2019/1896, and the European Fisheries Control Agency, established by Regulation (EU) 2019/473, each within their mandate, support national authorities carrying out coast guard functions at national and Union level and, where appropriate, at international level by:
(a) sharing, fusing and analysing information available in ship reporting systems and other information systems hosted by or accessible to those agencies, in accordance with their respective legal bases and without prejudice to the ownership of data by Member States;
(b) providing surveillance and communication services based on state-of-the-art technology, including space-based and ground infrastructure and sensors mounted on any kind of platform;
(c) building capacity by drawing up guidelines and recommendations and by establishing best practices as well as by providing training and exchange of staff;
(d) enhancing the exchange of information and cooperation on coast guard functions including by analysing operational challenges and emerging risks in the maritime domain;
(e) sharing capacity by planning and implementing multipurpose operations and by sharing assets and other capabilities, to the extent that these activities are coordinated by those agencies and are agreed to by the competent authorities of the Member States concerned.
2. Without prejudice to the powers of the Management Board of the Agency set out in Article 15, the precise forms of cooperation on coast guard functions between the Agency, the European Border and Coast Guard Agency and the European Fisheries Control Agency shall be determined in a working arrangement, in accordance with their respective mandates and the financial rules applicable to those agencies. Such an arrangement shall be approved by the management Board of the Agency, the Administrative Board of the European Fisheries Control Agency and the management board of the European Border and Coast Guard Agency.
3. The Commission shall, in close cooperation with the Member States, the Agency, the European Border and Coast Guard Agency and the European Fisheries Control Agency, make available a practical handbook on European cooperation on coast guard functions. That handbook shall contain guidelines, recommendations and best practices for the exchange of information. The Commission shall adopt the handbook in the form of a recommendation.
4. The tasks set out in this Article shall not be detrimental to the Agency's tasks referred to in Articles 4 to 12 and shall not infringe upon Member States' rights and obligations, in particular as flag States, port States or coastal States.
Article 13
Communication and dissemination
The Agency may engage in communication activities on its own initiative in the fields within its mandate. Communication activities shall not be detrimental to the rest of the tasks referred to in the Articles 4 to 13 and shall be carried out in accordance with relevant communication and dissemination plans adopted by the Management Board. Those plans, based on an analysis of needs, shall be regularly updated by the Management Board.
CHAPTER IV
ORGANISATION OF THE AGENCY
Article 14
Administrative and management structure
The Agency's administrative and management structure shall comprise:
(a) a Management Board, which shall exercise the functions set out in Article 16;
(b) an Executive Board, which shall exercise the functions set out in Article 21;
(c) an Executive Director, who shall exercise the duties set out in Article 23.
Article 15
Composition of the Management Board
1. The Management Board shall be composed of one representative of each Member State and four representatives of the Commission, all with voting rights.
The Management Board shall also include as well as of four professionals from the sectors most concerned, as referred to in Article 2, appointed by the Commission, without the right to vote.
All Management Board members shall be appointed on the basis of their degree of relevant experience and expertise in the areas referred to in Article 2. The Member States and the Commission shall each strive for a balanced representation between men and women on the Management Board. One of the four professionals shall be a representative of the Permanent Cooperation Framework of accident investigation bodies in accordance with Article 10 of Directive 2009/18/EC.
3. Each Member State and the Commission shall appoint their members of the Management Board as well as an alternate who will represent the member in his or her absence.
4. The duration of the term of office shall be four years. The term of office may be renewed.
5. Each member and alternate shall sign a written statement at the time of taking office declaring that he or she is not in a situation of conflict of interests. Each member and alternate shall update his or her statement in the case of a change of circumstances with regard to any conflict of interests. The Agency shall publish the statements and updates on its website.
Article 16
Functions of the Management Board
1. In order to ensure that the Agency carries out its tasks, the Management Board shall:
(a) give the general and strategic orientations for the Agency's activities;
(b) adopt each year, by a two-thirds majority of its members with voting rights, after having received the opinion of the Commission and in accordance with Article 17, the single programming document of the Agency;
(c) adopt, by a two-thirds majority of its members with voting rights, the annual budget and the staff establishment plan of the Agency and exercise other functions in respect of the Agency's budget pursuant to Chapter VI;
(d) adopt, by a two-thirds majority of its members with voting rights, the consolidated annual activity report on the Agency’s activities and forward it each year by 1 July to the European Parliament, the Council, the Commission, the Court of Auditors and the Member States. The report shall be made public;
(e) adopt the financial rules applicable to the Agency in accordance with Article 25;
(f) deliver an opinion on the Agency's final accounts ;
(g) establish the methodology for the visits to be carried out pursuant to Article 10. In the event that the Commission expresses, within 15 days from the date of adoption of the methodology, its disagreement, the Management Board shall re-examine and adopt it, possibly amended, in second reading either with a two- thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States;
(h) consider and approve administrative arrangements, as referred to in Article 11 (5);
(i) adopt an anti-fraud strategy, proportionate to fraud risks taking into account the costs and benefits of the measures to be implemented;
(j) adopt rules for the prevention and management of conflicts of interest in respect of its members and publish annually on its website the declaration of interests of the Management Board members;
(k) adopt and regularly update the communication and dissemination plans referred to in Article 13, based on an analysis of needs;
(l) adopt its rules of procedure;
(m) appoint the members of the Executive Board, by a two-third majority of its members with voting rights, in accordance with Article 21;
(n) adopt a mandate for the tasks of the Executive Board referred to in Article 21;
(o) in accordance with paragraph 2, exercise, with respect to the staff of the Agency, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment of Other Servants on the Authority Empowered to Conclude a Contract of Employment44 ;
(p) adopt implementing rules for giving effect to the Staff Regulations and the Conditions of Employment of Other Servants in accordance with Article 110 (2) of the Staff Regulations;
(q) appoint, provide guidance and monitor the performance of the Executive Director and where relevant extend his or her term of office or remove him or her from office in accordance with Article 22;
(r) establish procedures for decision-making by the Executive Director;
(s) if appropriate, appoint an Accounting Officer, subject to the Staff Regulations and the Conditions of Employment of Other Servants, who shall be totally independent in the performance of his or her duties;
(t) ensure adequate follow-up to findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of the European Anti-fraud Office (OLAF) and the European Public Prosecutor’s Office (EPPO);
(u) take all decisions on the establishment of the Agency's internal structures, including the set-up of advisory or working groups and, where necessary, their modification;
(v) decide on the services that the Agency may offer against fees and charges and a adopt a framework model for the financial apportionment of the fees and charges payable as referred to in Article 26 (3), point (c). In the event that the Commission expresses, within 15 days from the date of adoption of the Management Board’s decision concerning the services offered against fees or the framework model, its disagreement, the Management Board shall re-examine and adopt it, possibly amended, in second reading either with a two- thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States;
(w) adopt an efficiency gains and synergies strategy;
(x) adopt a strategy for cooperation with third countries or international organisations, or both, referred to in Article 11 (6). In the event that the Commission expresses, within 15 days from the date of adoption of the strategy, its disagreement, the Management Board shall re-examine and adopt it, possibly amended, in second reading either with a two- thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States;
(y) adopt the internal security rules of the Agency referred to in Article 41;
(z) appoint the data protection officer of the Agency.
2. The Management Board shall adopt, in accordance with Article 110(2), of the Staff Regulations, a decision based on Article 2 (1) of the Staff Regulations and on Article 6 of the Conditions of Employment of Other Servants, delegating relevant appointing authority powers to the Executive Director and defining the conditions under which this delegation of powers can be suspended. The Executive Director shall be authorised to sub-delegate those powers.
Where exceptional circumstances so require, the Management Board may, by way of a decision, temporarily suspend the delegation of the appointing authority powers to the Executive Director and those sub-delegated by the latter and exercise them itself or delegate them to one of its members or to a staff member other than the Executive Director.
Article 17
Annual and multi-annual programming
1. By 30 November each year the Management Board shall adopt a single programming document containing multi-annual and annual programming, based on a draft put forward by the Executive Director, taking into account the opinion of the Commission. It shall forward it to the European Parliament, the Council and the Commission.
In the event that the Commission expresses, within 15 days from the date of adoption of the single programming document, its disagreement with the document, the Management Board shall re-examine the single programming document and adopt it, possibly amended, within a period of two months, in second reading either with a two-thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States.
2. The single programming document shall become definitive after final adoption of the general budget and if necessary shall be adjusted accordingly.
3. The annual work programme shall comprise detailed objectives and expected results including performance indicators. It shall also contain a description of the actions to be financed and an indication of the financial and human resources allocated to each action, in accordance with the principles of activity-based budgeting and management. The annual work programme shall be coherent with the multi-annual work programme referred to in paragraph 7. It shall clearly indicate tasks that have been added, changed or deleted in comparison with the previous financial year. Annual or multi- annual programming, or both, shall include the strategy for relations with third countries or international organisations referred to in Article 11 and the actions linked to this strategy.
4. The Management Board shall amend the adopted annual work programme when a new task is given to the Agency. The inclusion of such a new task shall be subject to an analysis of the human and budgetary resources implications and may be subject to a decision to postpone other tasks.
5. The Management Board shall examine and approve, in the framework of the preparation of the single programming document, Commission’s or Member States’ requests for technical assistance, as referred to in Article 3 (1), point (c), Article 3 (2), point (b), Article 5(5) to (8), Article 8(6) and (7), Article 9 (3), Article 10 (4) and Article 11 (2) and (4). The approval of such requests shall:
(a) not be detrimental to the other tasks of the Agency;
(b) shall avoid duplication of efforts;
(c) shall be subject to an analysis of the human and budgetary resources implications; and
(d) may be subject to a decision to postpone other tasks.
6. Any substantial amendment to the annual work programme shall be adopted by the same procedure as the initial annual work programme. The Management Board may delegate the power to make non-substantial amendments to the annual work programme to the Executive Director.
7. The multi-annual work programme shall set out overall strategic programming including objectives, expected results and performance indicators. It shall also set out resource programming including multi-annual budget and staff.
8. The resource programming shall be updated annually. The strategic programming shall be updated where appropriate, and in particular to address the outcome of the evaluation referred to in Article 41.
Article 18
Chairperson of the Management Board
1. The Management Board shall elect a Chairperson and a Deputy Chairperson from among its members with voting rights. The Chairperson and the Deputy Chairperson shall be elected by a majority of two thirds of the members of the Management Boards with voting rights.
2. The Deputy Chairperson shall automatically take the place of the Chairperson if he or she is prevented from attending to Chairperon’s duties.
3. The terms of office of the Chairperson and Deputy Chairperson shall be four years. Their term of office may be renewed once. If, however, their membership of the Management Board ends at any time during their term of office, their term of office shall automatically expire on that date.
Article 19
Meetings of the Management Board
1. Meetings of the Management Board shall be conducted in accordance with its rules of procedure and convened by its Chairperson.
2. The Executive Director of the Agency shall take part in the deliberations except when his or her participation may lead to a conflict of interests, as decided by the Chairperson, or when the Management Board is to take a decision, in accordance with Article 35.
3. The Management Board shall hold an ordinary meeting twice a year. In addition, it shall meet on the initiative of the Chairperson or at the request of the Commission or of one-third of the Member States.
4. When a matter of confidentiality or a conflict of interest arises, the Management Board may decide to examine specific items on its agenda without the members concerned being present. This shall not affect the right of the Member States and of the Commission to be represented by an alternate or by any other person. Detailed rules for the application of this provision shall be laid down in the Management Board's rules of procedure.
5. The Management Board may invite any person whose opinion can be of interest to attend its meetings as an observer.
6. The members of the Management Board may, subject to the provisions of its rules of procedure, be assisted by advisers or experts.
7. The secretariat for the Management Board shall be provided by the Agency.
Article 20
Voting rules of the Management Board
1. The Management Board shall take its decisions by absolute majority of its members with voting rights, except if provided otherwise in this Regulation.
2. The decisions referred to in Article 16(1) points (c) to (e) and points (i), (j), (n), (o), (p), (q), (t), (u) and in Article 16(2) may only be taken if the representatives of the Commission cast a positive vote. For the purposes of taking the decisions referred to in Article 16(1), point (b), the positive vote of the representative of the Commission shall only be required on the elements of the decision not related to the annual and multi-annual working programme of the Agency.
3. Each member shall have one vote. The Executive Director of the Agency shall not vote.
4. In the absence of a member, his or her alternate shall be entitled to exercise the member’s right to vote.
5. The rules of procedure shall establish more detailed voting arrangements, including the conditions for a member to act on behalf of another member.
Article 21
Executive Board
1. The Management Board shall be assisted by an Executive Board.
2. The Executive Board shall :
(a) supervise the implementation of the decisions of the Management Board on administrative and budgetary management;.
(b) prepare decisions to be adopted by the Management Board;
(c) ensure, together with the Management Board, adequate follow-up to the findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of OLAF and of the EPPO;
3. When necessary, because of urgency, the Executive Board may take certain provisional decisions on behalf of the Management Board, in particular on administrative management matters, including the suspension of the delegation of the appointing authority powers and budgetary matters.
4. The Executive Board shall be composed of the Chairperson of the Management Board, one representative of the Commission to the Management Board and three other members appointed by the Management Board from among its members with the right to vote. The Chairperson of the Management Board shall also be the Chairperson of the Executive Board. The Executive Director shall take part in the meetings of the Executive Board, but shall not have the right to vote.
5. The term of office of members of the Executive Board shall be four years with the possibility to be renewed. The term of office of members of the Executive Board shall end when their membership of the Management Board ends.
6. The Executive Board shall hold at least one ordinary meeting every three months. In addition, it shall meet on the initiative of its Chairperson or at the request of its members.
7. The Management Board shall lay down the rules of procedure of the Executive Board.
CHAPTER V
EXECUTIVE DIRECTOR
Article 22
Appointment, extension of the term of office and removal from office
1. The Executive Director shall be appointed by the Management Board on the basis of merit and skills from a list of candidates proposed by the Commission following an open and transparent selection procedure which shall respect the principle of gender balance.
2. For the purpose of concluding the contract of the Executive Director, the Agency shall be represented by the Chairperson of the Management Board.
3. The term of office of the Executive Director shall be five years. In due time before the end of that period, the Commission shall undertake an assessment that takes into account an evaluation of the Executive Director's performance and the Agency's future tasks and challenges.
4. The Management Board, acting on a proposal from the Commission, taking into account the assessment referred to in paragraph 3, may extend once the term of office of the Executive Director, for not more than five years.
5. An Executive Director whose term of office has been extended may not participate in another selection procedure for the same post.
6. The Executive Director may be removed from office only upon a decision of the Management Board acting on a proposal from the Commission.
7. The Executive Director shall be engaged as a temporary agent of the Agency under Article 2(a) of the Conditions of Employment of Other servants.
Article 23
Tasks and responsibilities of the Executive Director
1. The Executive Director shall manage the Agency in accordance with the decisions of the Management Board and shall be accountable to the Management Board.
2. Without prejudice to the powers of the Commission, the Management Board, and the Executive Board, the Executive Director shall be independent in the performance of the duties and shall neither seek nor take instructions from any government nor from any other body.
3. The Executive Director shall report to the European Parliament on the performance of his/her duties when invited to do so. The Council may invite the Executive Director to report on the performance of his/her duties.
4. The Executive Director shall be the legal representative of the Agency.
5. The Executive Director shall be responsible for the implementation of the tasks assigned to the Agency by this Regulation. In particular, the Executive Director shall:
(a) ensure the sustainable and efficient day-to-day administration of the Agency;
(b) organise, direct and supervise the operations and the staff of the Agency within the limits of the decisions of the Management Board;
(c) prepare and implement the decisions adopted by the Management Board.
(d) prepare draft financial rules applicable to the Agency for adoption by the Management Board;
(e) draw up estimates of the Agency's revenue and expenditure, in accordance with Article 27, and implementing the budget in accordance with Article 28.
(f) prepare the draft single programming document and submit it for adoption to the Management Board after consulting the Commission at least four weeks before the relevant Management Board meeting;
(g) implement the single programming document, assessing progress compared to the relevant indicators and report to the Management Board on its implementation;
(h) prepare the Agency’s consolidated annual activity report and present it to the Management Board for assessment and adoption;
(i) respond to any requests for assistance in accordance with Article 17 (5);
(j) decide to carry out the visits and inspections provided for in Article 10, after consultation of the Commission and following the methodology for visits established by the Management Board in accordance with Article 16 (1) point (g);
(k) decide to enter into administrative arrangements with other Union bodies working in the Agency's fields of activities provided that the draft arrangement has been submitted for consultation to the Commission first and the Management Board in accordance with Article 11 (5) and provided that the Management Board has not objected within four weeks;
(l) take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Agency in accordance with the provisions of this Regulation;
(m) organise an effective monitoring system in order to be able to compare the Agency's achievements with its objectives and tasks as laid down in this Regulation. To that end, he or she shall establish, in agreement with the Commission and the Management Board, tailored performance indicators allowing for an effective assessment of the results achieved. He or she shall ensure that the Agency's organisational structure be regularly adapted to the evolving needs within the available financial and human resources. In this regard, he orshe shall establish regular evaluation procedures that meet recognised professional standards;
(n) establish and ensure the functioning of an effective and efficient internal control system and report any significant change to it to the Management Board;
(o) ensure the carrying out of risk assessments and risk management for the Agency;
(p) prepare a follow-up action plan in relation to the conclusions of internal or external audit reports and evaluations, as well as investigations by OLAF and EPPO, as referred to in Article 38, and report on progress twice a year to the Commission and regularly to the Management Board;
(q) protect the financial interests of the Union by applying preventive measures against fraud, corruption and any other illegal activities, without prejudicing the investigative competence of OLAF and EPPO, by effective checks and, if irregularities are detected, by recovering amounts wrongly paid and, where appropriate, by imposing effective, proportionate and dissuasive administrative, including financial penalties;
(r) prepare an anti-fraud strategy, an efficiency gains and synergies strategy, a strategy for cooperation with third countries or international organisations, or both, and a strategy for the organisational management and internal control systems, for the Agency and present it to the Management Board for approval;
(s) promote diversity and ensure gender balance as regards the recruitment of the Agency’s staff;
(t) recruit staff on the broadest possible geographical basis;
(u) design and implement a communication policy for the Agency;
(v) perform any other tasks entrusted or delegated to him or her by the Management Board or as may be required by this Regulation;
Article 24
Participation of third countries
1. The Agency shall be open to the participation of third countries, which have entered into agreements with the Union, whereby they have adopted and are applying the Union law in the field of maritime safety, maritime security, prevention of pollution and response to pollution caused by ships.
2. Under the relevant provisions of those agreements, arrangements specifying the nature and the extent of the detailed rules for the participation by those countries in the work of the Agency including provisions on financial contributions and staff shall be concluded by the Agency following the opinion of the Commission .
CHAPTER VI
FINANCIAL PROVISIONS
Article 25
Financial rules
The financial rules applicable to the Agency shall be adopted by the Management Board after consulting the Commission. The financial rules shall not depart from Commission Delegated Regulation (EU) 2019/715 unless such a departure is specifically required for the Agency's operation and the Commission has given its prior consent.
Article 26
Budget
1. Estimates of all revenue and expenditure for the Agency shall be prepared each financial year, corresponding to the calendar year, and shall be shown in the Agency's budget.
2. The Agency's budget shall be balanced in terms of revenue and of expenditure.
3. Without prejudice to other resources, the Agency's revenue shall comprise:
(a) a contribution from the Union entered in the general budget of the European Union and grants from Union bodies;
(b) possible contributions from any third country which participates in the work of the Agency in accordance with Article 24;
(c) any fees and charges for infrastructure, publications, training or any other services falling under the scope of this Regulation provided by the Agency in accordance with the implementing acts adopted pursuant to Article 33;
(d) any voluntary financial contribution from Member States, third countries or other entities, provided such contribution is transparent, is clearly identified in the budget and does not compromise the independence and impartiality of the Agency.
4. The expenditure of the Agency shall include staff remuneration, administrative and infrastructure expenses and operating costs.
Article 27
Establishment of the budget
1. Each year, the Executive Director shall draw up a draft statement of estimates of the Agency's revenue and expenditure for the following financial year, including the establishment plan, and send it to the Management Board.
2. The Management Board shall, on the basis of that draft, adopt a provisional draft estimate of the Agency's revenue and expenditure for the following financial year.
3. The provisional draft estimate of the Agency's revenue and expenditure shall be sent to the Commission by 31 January each year. The Management Board shall send the final draft estimate to the Commission by 31 March of that year.
4. The Commission shall send the statement of estimates to the budgetary authority together with the draft general budget of the European Union.
5. On the basis of the statement of estimates, the Commission shall enter in the draft general budget of the European Union the estimates it considers necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Articles 313 and 314 of the TFEU.
6. The budgetary authority shall authorize the appropriations for the contribution to the Agency.
7. The budgetary authority shall adopt the Agency's establishment plan.
8. The Agency's budget shall be adopted by the Management Board. It shall become final following final adoption of the general budget of the European Union. Where necessary, it shall be adjusted accordingly.
9. For any building project likely to have significant implications for the budget of the Agency the provisions of Delegated Regulation (EU) No 715/2019 shall apply.
Article 28
Implementation of the budget
1. The Executive Director shall implement the Agency's budget.
2. Each year the Executive Director shall send to the budgetary authority all information relevant to the findings of evaluation procedures.
Article 29
Presentation of accounts and discharge
1. By 1 March of the following financial year, the Agency's accounting officer shall send the provisional accounts to the Commission's accounting officer and to the Court of Auditors
2. By 31 March of the following financial year, the Agency shall send the report on the budgetary and financial management to the European Parliament, the Council and the Court of Auditors.
3. By 31 March of the following financial year, the Commission's accounting officer shall send the Agency's provisional accounts, consolidated with the Commission's accounts, to the Court of Auditors.
4. On receipt of the Court of Auditors' observations on the Agency's provisional accounts pursuant to Article 246 of the Financial Regulation, the Executive Director shall draw up the Agency's final accounts under his or her own responsibility and submit them to the Management Board for an opinion.
5. The Management Board shall deliver an opinion on the Agency's final accounts.
6. The accounting officer shall, by 1 July of the following financial year, send the final accounts to the European Parliament, the Council, the Commission and the Court of Auditors, together with the Management Board's opinion.
7. The final accounts shall be published in the Official Journal of the European Union by 15 November of the following financial year.
8. The Executive Director shall send the Court of Auditors a reply to its observations by 30 September. The Executive Director shall also send that reply to the Management Board.
9. The Executive Director shall submit to the European Parliament, at the latter's request, any information required for the smooth application of the discharge procedure for the financial year in question, in accordance with Article 261(3) of the Financial Regulation.
10. On a recommendation from the Council acting by a qualified majority, the European Parliament shall, before 15 May of year N + 2, give a discharge to the Executive Director in respect of the implementation of the budget for year N.
CHAPTER VII
STAFF
Article 30
General provision
The Staff Regulations and the Conditions of Employment of Other Servants and the rules adopted by agreement between the institutions of the Union for giving effect to those Staff Regulations and the Conditions of Employment of Other Servants shall apply to the staff of the Agency.
Article 31
Seconded national experts and other staff
1. The Agency may make use of seconded national experts or other staff not employed by the Agency.
2. The Management Board shall adopt a decision laying down rules on the secondment of national experts to the Agency.
CHAPTER VIII
GENERAL AND FINAL PROVISIONS
Article 32
Legal status and seat
1. The Agency shall be a body of the Union and shall have legal personality.
2. In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may in particular, acquire and dispose of movable and immovable property and be a party to legal proceedings.
3. The Agency shall be represented by its Executive Director.
4. The seat of the Agency shall be in Lisbon, the Republic of Portugal.
5. At the request of the Commission, the Management Board may decide, with the agreement of and in cooperation with the Member States concerned and with due regard to budgetary implications, including any contribution the Member States concerned may provide, to establish regional centers necessary in order to carry out, in the most efficient and effective way, some of the Agency’s tasks. When taking such a decision, the Management Board shall define the precise scope of activities of the regional centre while avoiding unnecessary financial costs and enhancing cooperation with existing regional and national networks.
Article 33
Implementing acts relating to fees and charges
1. The Commission shall adopt, in accordance with the principles set out in paragraphs 2, 3 and 4 implementing acts specifying:
(a) the fees and charges payable to the Agency, in particular in application of Article 26 (3) point (c); and
(b) the conditions of payment.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 34 (2).
2. Fees and charges shall be levied for possible services provided by the Agency, in particular to third countries and the industry for tasks falling under its competencies.
3. All fees and charges shall be expressed, and payable, in euro. Fees and charges shall be set in a transparent, fair and uniform manner. The specific needs of small and medium-sized enterprises, including the possibility of splitting payments into several instalments and phases, shall be taken into account, as appropriate. The apportionment of the fees shall be clearly identified in the accounts. Reasonable deadlines shall be set for the payment of fees and charges.
4. The amount of the fees and charges shall be fixed at such a level as to ensure that the revenue in respect thereof is sufficient to cover the full cost of the services provided. All expenditure of the Agency attributed to staff involved in the activities referred to in paragraph 2, including the employer's pro-rata contribution to the pension scheme, shall in particular be reflected in that cost. Should a significant imbalance resulting from the provision of the services covered by fees and charges become recurrent, the level of those fees and charges shall be revised. Those fees and charges shall be assigned revenues for the Agency.
Article 34
Committee procedure
1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 of the European Parliament and of the Council45. 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.
Article 35
Privileges and immunities
The Protocol on the Privileges and Immunities of the European Union shall apply to the Agency and its staff.
Article 36
Language arrangements
1. The provisions laid down in Council Regulation No 146 shall apply to the Agency.
2. The translation services required for the functioning of the Agency shall be provided by the Translation Centre of the Bodies of the European Union.
Article 37
Transparency
1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council47 shall apply to documents held by the Agency.
2. The Management Board shall, within six months of the date of its first meeting, adopt the detailed rules for applying Regulation (EC) No 1049/2001.
3. Decisions taken by the Agency under Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman or of an action before the Court of Justice of the European Union, under the conditions laid down in Articles 228 and 263 of the TFEU respectively.
4. The processing of personal data by the Agency shall be subject to Regulation (EU) 2018/1725 of the European Parliament and of the Council48.
Article 38
Combating fraud
1. In order to facilitate combating fraud, corruption and other unlawful activities under Regulation (EU, Euratom) No 883/2013 the Agency shall adopt appropriate provisions applicable to all employees of the Agency.
2. The European Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors who have received Union funds from the Agency.
3. OLAF may carry out investigations, including on-the-spot checks and inspections with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant or a contract funded by the Agency, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013.
4. Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries and international organisations, contracts, grant agreements and grant decisions of the Agency shall contain provisions expressly empowering the European Court of Auditors OLAF and EPPO to conduct such audits and investigations, according to their respective competences.
Article 39
Security rules on the protection of classified and sensitive non-classified information
The Agency shall adopt own security rules equivalent to the Commission's security rules for protecting European Union Classified Information (EUCI) and sensitive non-classified information, as set out in the Commission Decisions (EU, Euratom) 2015/44349 and 2015/44450. The security rules of the Agency shallinclude provisions for the exchange, processing and storage of such information.
Article 40
Liability
1. The Agency's contractual liability shall be governed by the law applicable to the contract in question.
2. The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency.
3. In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties.
4. The Court of Justice of the European Union shall have jurisdiction in disputes over compensation for damages referred to in paragraph 3.
5. The personal liability of its staff towards the Agency shall be governed by the provisions laid down in the Staff Regulations or Conditions of Employment applicable to them.
Article 41
Evaluation and review
1. No later than 5 years after the [date of entry into force], and every 5 years thereafter, the Commission shall conduct an evaluation to assess particularly the impact, effectiveness and efficiency of the Agency and its working practices. The evaluation shall, in particular, address the possible need to modify the mandate of the Agency, and the financial implications of any such modification.
2. The Commission shall forward the evaluation report together with its conclusions on the report, to the European Parliament, the Council and the Management Board. The findings of the evaluation shall be made public.
3. On the occasion of every second evaluation, there shall also be an assessment of the results achieved by the Agency having regard to its objectives, mandate and tasks. If the Commission considers that the continuation of the Agency is no longer justified with regard to its assigned objectives, mandate and tasks, it may propose that this Regulation be amended accordingly or repealed.
Article 42
Administrative inquiries of the European Ombudsman
The activities of the Agency shall be subject to the inquiries of the European Ombudsman in accordance with Article 228 of the TFEU.
Article 43
Transitional provisions
1. By way of derogation from Article 15 of this Regulation, the members of the Administrative Board appointed under Regulation (EC) No 1406/2002 before [date of entry into force] shall remain in office as members of the Management Board until the expiry date of their term of office, without prejudice to the right of each Member State to appoint a new representative.
2. The Executive Director of the Agency appointed on the basis of Article 16 of Regulation (EU) No 1406/2002 shall remain assigned to the post of the Executive Director with the tasks and responsibilities provided for in Article 23 of this Regulation. If a decision extending the mandate of the Executive Director in accordance with Article 16(2) of Regulation (EU) No 1406/2002 is adopted prior to the entry into force of this Regulation, the duration of the extended mandate shall be for 5 years. The other conditions of her contract shall remain unchanged.
4.The entry into force of this Regulation is without prejudice to all employment contracts in force on [date of entry into force].
.
Article 44
Repeal
Regulation (EC) No 1406/2002 is repealed.
Article 45
Entry into force
This Regulation shall enter into force on the twentieth 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.