Legal provisions of COM(2010)93 - Establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (presented by the Commission pursuant to Article 293(2) of the Treaty on the Functioning of the EU)

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dossier COM(2010)93 - Establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice ...
document COM(2010)93 EN
date March 19, 2010

Contents

CHAPTER I - SUBJECT MATTER

Article 1 - Establishment of the Agency

A European Agency ("the Agency") for the operational management of the second-generation Schengen Information System (SIS II), the Visa Information System (VIS), EURODAC and for developing and managing other large-scale information technology ("IT") systems, in application of Title V of the Treaty on the Functioning of the European Union is hereby established.

CHAPTER II - TASKS

Article 2 - Tasks related to SIS II

The Agency shall perform the tasks conferred on the Management Authority by Regulation (EC) No. 1987/2006 and Council Decision 2007/533/JHA, organize common training for staff involved in the exchange of supplementary information, in accordance with the SIRENE Manual and perform tasks related to the training of experts on SIS II as provided for in Council Regulation No. XXX on the establishment of an evaluation mechanism to verify the application of the Schengen acquis.

Article 3 - Tasks related to VIS

The Agency shall perform the tasks conferred on the Management Authority by Regulation (EC) No 767/2008 and Council Decision 2008/633/JHA,and perform tasks related to training on the use of VIS.

Article 4 - Tasks related to EURODAC

The Agency shall perform the tasks conferred on the Management Authority by Regulation (EC) XX/2009 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…].

Article 5 - Monitoring of research

1. The Agency shall monitor the developments in research relevant for the operational management of SIS II, VIS, EURODAC and other large-scale IT systems in application of Title V of the Treaty on the Functioning of the European Union.

2. The Agency shall on a regular basis keep the Commission informed on the developments referred to in paragraph 1.

Article 6 - Pilot Schemes

1. Upon specific and precise request of the Commission, the Agency shall implement pilot schemes for the development and/or the operational management of large-scale IT systems, in application of Title V of the Treaty on the Functioning of the European Union.

2. Financial appropriations for pilot schemes as requested by the Commission shall be entered in the budget for no more than two successive financial years.

CHAPTER III - STRUCTURE AND ORGANISATION

Article 7 - Legal status

1. The Agency shall be a Union body 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 national legislation. It may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. It shall also be empowered to conclude a Headquarters Agreement with its host Member State.

3. The Agency shall be represented by its Executive Director.

4. The seat of the Agency shall be [...]

Article 8 - Structure

The Agency's administrative and management structure shall comprise:

1. a Management Board;

2. an Executive Director;

3. Advisory Groups.

Article 9 - Powers of the Management Board

1. In order to ensure that the Agency carries out its tasks, the Management Board shall in particular:

4. appoint, and if relevant, dismiss the Executive Director, in accordance with Article 15;

5. exercise disciplinary authority over the Executive Director;

6. establish the Agency's organisational structure after consultation of the Commission;

7. establish the rules of procedure of the Agency after consultation of the Commission;

8. establish the rules governing the use of languages by the Agency in accordance with Article 22 of this Regulation;

9. approve the Headquarters Agreement to be signed by the Executive Director with the host Member State following a proposal by the Executive Director;

10. in agreement with the Commission, adopt the necessary implementing measures referred to in Article 110 of the Staff Regulations;

11. adopt the multi-annual staff policy plan and submit it by 31 March each year at the latest to the Commission and the budgetary authority;

12. before 30 September each year, and after receiving the opinion of the Commission, adopt by a two-thirds majority of its members with the right to vote, and in accordance with the annual Union budgetary procedure and the Union legislative programme in areas of Title V of the Treaty on the Functioning of the European Union, the Agency’s annual work programme for the coming year; and ensure that the adopted work programme is forwarded to the European Parliament, the Council and the Commission and published;

13. before 31 March each year, adopt the Agency's annual activity report for the previous year and transmit it by 15 June at the latest to the European Parliament, the Council, the Commission, the European Economic and Social Committee and the Court of Auditors; the annual activity report shall be published;

14. carry out its functions relating to the Agency's budget, pursuant to the provisions of Articles 28, 29(6) and 30 of this Regulation;

15. adopt the financial rules applicable to the Agency in accordance with Article 30 of this Regulation;

16. appoint an Agency staff member as accounting officer who shall be functionally independent in the performance of his/her duties;

17. adopt the necessary security measures, including a security plan;

18. appoint an Agency staff member as a Data Protection Officer in accordance with Regulation (EC) No 45/2001;

19. adopt, within 6 months after the date of application of this Regulation, the practical arrangements for implementing Regulation (EC) No 1049/2001;

20. adopt the reports on the technical functioning of SIS II pursuant to Article 50(4) of Regulation (EC) No 1987/2006 and Article 66(4) of Decision 2007/533/JHA respectively, of VIS pursuant to Article 50(3) of Regulation (EC) No 767/2008 and 17(3) of Decision 2008/633/JHA and of EURODAC pursuant to Article of Regulation (EC) XX/2009 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] ;

21. make comments on the European Data Protection Supervisor's report about the audit pursuant to Article 45 of Regulation (EC) 1987/2006 and Article 42(2) of Regulation (EC) No 767/2008 and decide on the follow-up of the audit;

22. publish statistics related to SIS II pursuant to Article 50(3) of Regulation (EC) No 1987/2006 and Article 66(3) of Decision 2007/533/JHA respectively;

23. ensure the annual publication of the list of competent authorities authorised to directly search the data contained in SIS II pursuant to Article 31(8) of Regulation (EC) No 1987/2006 and Article 46(8) of Decision 2007/533/JHA, together with the list of N.SIS II Offices and SIRENE Bureaux as referred to in Article 7(3) of Regulation (EC) No 1987/2006 and Article 7(3) of Decision 2007/533/JHA respectively;

24. perform any other tasks conferred on it in accordance with this Regulation.

2. The Management Board may advise the Executive Director on any matter strictly related to the development or operational management of the IT systems.

Article 1 - 0 Composition of the Management Board

1. The Management Board shall be composed of one representative of each Member State and two representatives of the Commission.

2. Each Member State shall appoint a member of the Management Board as well as an alternate. The Commission shall appoint two members and their alternates. The alternates shall represent the members in their absence. They shall be members with voting rights.

3. The members of the Management Board shall be appointed on the basis of their high level relevant experience and expertise in the field of large-scale IT systems in the area of freedom, security and justice.

4. The term of office of the members shall be four years. It may be renewed once. Upon expiry of their term of office or in the event of their resignation, members shall remain in office until their appointments are renewed or until they are replaced.

5. Countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures shall participate in the Agency. They shall each appoint one representative and an alternate to the Management Board who shall be members without voting rights.

Article 1 - 1 Chairmanship of the Management Board

1. The Management Board shall elect a Chairperson from among its members.

2. The term of office of the Chairperson shall be four years and may be renewed once. His/her term of office shall expire earlier if his/her membership of the Management Board ceases.

3. The Chairperson may only be appointed from among those members who are appointed by Member States that participate fully in the adoption of the legal instruments governing all the systems managed by the Agency.

Article 12 - Meetings of the Management Board

1. The meetings of the Management Board shall be convened at the initiative of its Chairperson or at the request of at least a third of its members or at the request of the Commission. The Management Board shall hold at least two ordinary meetings a year.

2. The Executive Director of the Agency shall take part in the meetings.

3. The members of the Management Board may be assisted by experts who are members of the Advisory Groups.

4. Europol and Eurojust shall be granted observer status at the meetings of the Management Board when a question concerning SIS II, in relation to the application of Council Decision 2007/533/JHA, is on the agenda. Europol shall also be granted observer status at the meetings of the Management Board when a question concerning VIS, in relation to the application of Council Decision 2008/633/JHA, is on the agenda.

5. The Management Board may invite any other person, whose opinion may be of interest, to attend its meetings as an observer.

6. The secretariat for the Management Board shall be provided by the Agency.

Article 13 - Voting

1. Without prejudice to paragraph 4 of this Article as well as Article 9(1) (i), decisions of the Management Board shall be taken by a simple majority of its members with a right to vote.

2. Without prejudice to paragraph 3 of this Article, each member in the Management Board shall have one vote.

3. Each member appointed by a Member State which participates in the adoption of any legal instrument governing an IT system managed by the Agency may vote on a question which concerns that IT system.

4. In case of disagreement among members over whether or not a specific IT system is affected by a vote, members shall decide by a two-thirds majority, that it is not affected.

5. The Executive Director of the Agency shall not vote.

6. More detailed voting arrangements shall be established in the rules of procedure of the Agency, in particular, the conditions under which a member may act on behalf of another member as well as any quorum requirements, where appropriate.

Article 1 - 4 Functions and powers of the Executive Director

1. The Agency shall be managed and represented by its Executive Director.

2. The Executive Director shall be independent in the performance of his/her duties. Without prejudice to the respective competences of the Commission and the Management Board, the Executive Director shall neither seek nor take instructions from any government or from any other body.

3. Without prejudice to Article 9, the Executive Director shall assume full responsibility for the tasks entrusted to the Agency and shall be subject to the procedure for annual discharge by the European Parliament for the implementation of the budget.

4. The European Parliament or the Council may invite the Executive Director of the Agency to report on the implementation of his/her tasks.

5. The Executive Director shall in particular:

25. ensure the Agency's day-to-day administration;

26. take any action necessary to ensure the Agency’s operation in accordance with this Regulation;

27. prepare and implement the procedures, decisions, strategies, programmes and activities adopted by the Management Board, within the limits specified by this Regulation, its implementing rules and any applicable law;

28. establish and implement an effective system enabling regular monitoring and evaluations of the IT systems, including statistics, and of the Agency;

29. participate, without the right to vote, in the meetings of the Management Board;

30. exercise in respect to the Agency's staff the powers laid down in Article 17 (2) and manage staff matters;

31. without prejudice to Article 17 of the Staff Regulations, establish confidentiality requirements to comply with Article 17 of Regulation (EC) No 1987/2006, Article 17 of Decision 2007/533/JHA and Article 26(9) of Regulation (EC) No 767/2008 respectively and Article [4(6)] of Regulation (EC) XX/2009 concerning the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EC) No […/…];

32. negotiate and, after approval by the Management Board, sign a Headquarters Agreement with the Government of the host Member State.

6. The Executive Director shall submit to the Management Board for adoption the drafts for:

33. the Agency's annual work programme and its annual activity report, after prior consultation of the Advisory Groups ;

34. the financial rules applicable to the Agency;

35. the budget for the coming year;

36. the multi-annual Staff Policy Plan;

37. the terms of reference for the evaluation referred to in Article 27;

38. the practical arrangements for implementing Regulation (EC) No 1049/2001;

39. the necessary security measures including a security plan;

40. reports on the technical functioning of each IT system referred to in Article 9(1)(q) of this Regulation, on the basis of the results from the monitoring and evaluation;

41. annual publication of the list of competent authorities authorised to directly search the data contained in SIS II, including the list of N.SIS II Offices and SIRENE Bureaux, referred to in Article 9(1)(t) of this Regulation.

7. The Executive Director shall perform any other tasks conferred on him/her in accordance with this Regulation.

Article 15 - Appointment of the Executive Director

1. The Executive Director of the Agency shall be appointed by the Management Board, from a list of candidates proposed by the Commission, for a period of five years.

2. Before appointment, the candidate selected by the Management Board may be invited to make a statement before the competent committee(s) of the European Parliament and answer questions from its/their members.

3. In the course of the nine months preceding the end of the five-year period, the Commission shall undertake an evaluation. In the evaluation, the Commission shall assess in particular:

42. the results achieved in the first term of office and the way they were achieved;

43. the Agency's duties and requirements in the coming years.

4. The Management Board, acting on a proposal from the Commission, taking into account the evaluation report, and only in those cases where it can be justified by the duties and requirement of the Agency, may extend the term of office of the Executive Director once for not more than three years.

5. The Management Board shall inform the European Parliament about its intention to extend the Executive Director's term of office. Within a month before the extension of his/her term of office, the Executive Director may be invited to make a statement before the competent committee(s) of the Parliament and answer questions from its/their members.

6. The Executive Director shall be accountable to the Management Board for his/her activities.

7. The Executive Director may be dismissed by the Management Board.

Article 1 - 6 Advisory Groups

1. The following Advisory Groups shall provide the Management Board with the expertise related to the respective IT systems and, in particular, in the context of the preparation of the annual work program and the annual activity report:

44. SIS II Advisory Group;

45. VIS Advisory Group;

46. EURODAC Advisory Group;

47. any other Advisory Group related to a large-scale IT system developed or managed by the Agency.

2. Each Member State, each country associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures as well as the Commission shall appoint one member to each of the Advisory Groups for a three-year term, which may be renewed.

3. Europol and Eurojust may each appoint a representative to the SIS II Advisory Group. Europol may appoint a representative to the VIS Advisory Group.

4. Members of the Management Board shall not be members of the Advisory Groups. The Agency's Executive Director or his/her representative shall be entitled to attend all the meetings of the Advisory Groups as observers.

5. The procedures for the operation and cooperation of the Advisory Groups shall be laid down in the Agency's rules of procedure.

6. When preparing an opinion, each Advisory Group shall do its best to reach a consensus. If such a consensus cannot be reached, the opinion shall consist of the position of the majority of members, including its grounds. The minority position(s), including their grounds, shall also be recorded. Article 13(3) shall apply accordingly. The members representing the countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures shall be allowed to express opinions which are not taken into account in the calculation of the majority required.

7. Each Member State, each country associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures shall facilitate the activities of the Advisory Groups.

8. For the chairmanship, Article 11 shall apply mutatis mutandis .

CHAPTER IV - OPERATION

Article 17 - Staff

1. The Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and the rules adopted jointly by the European Union institutions for the purpose of applying these Staff Regulations and Conditions of Employment shall apply to the Staff of the Agency, including the Executive Director.

2. The powers conferred on the Appointing Authority by the Staff Regulations and on the authority entitled to conclude contracts by the Conditions of Employment of Other Servants shall be exercised by the Agency in respect of its own staff.

3. Without prejudice to Article 17 of the Staff Regulations, the Agency shall apply appropriate rules of professional secrecy or other equivalent duties of confidentiality.

4. The Management Board shall, in agreement with the Commission, adopt the necessary implementing measures referred to in Article 110 of the Staff Regulations.

Article 18 - Public interest

The members of the Management Board, the Executive Director and the members of the Advisory Groups shall undertake to act in the public interest. For this purpose, they shall make, annually and in writing, a statement of commitment.

Article 19 - Headquarters Agreement

The necessary arrangements concerning the accommodation to be provided for the Agency in the host Member State and the facilities to be made available by that State, as well as the specific rules applicable in the Agency's host Member State to the Executive Director, the members of the Management Board, staff of the Agency and members of their families shall be laid down in a Headquarters Agreement between the Agency and the host Member State concluded after obtaining the approval of the Management Board. The Agency's host Member State should provide the best possible conditions to ensure proper functioning of the Agency, including multilingual, European-oriented schooling and appropriate transport connections.

Article 2 - 0 Privileges and immunities

The Protocol on the Privileges and Immunities of the European Union shall apply to the Agency.

Article 2 - 1 Liability

1. The contractual liability of the Agency 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 servants in the performance of their duties.

4. The Court of Justice of the European Union shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 3.

5. The personal liability of the Agency's servants towards the Agency shall be governed by the provisions laid down in the Staff Regulations.

Article 2 - 2 Linguistic regime

1. The provisions laid down in Regulation No 1 of 15 April 1958 determining the language to be used in the European Economic Community, shall apply to the Agency.

2. Without prejudice to decisions taken pursuant to Article 342 of the Treaty on the Functioning of the European Union, the annual work programme and the annual activity report referred to in Article 9 (1)(i) and (j), shall be produced in all official languages of the Union.

3. The translation services necessary for the activities of the Agency shall be provided by the Translation Centre for the Bodies of the European Union.

4. The Management Board shall establish the practical arrangements for the implementation of the language regime.

Article 23 - Access to documents

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents shall apply to documents held by the Agency.

2. The Management Board shall, within 6 months after the date of applicability of this Regulation, adopt the practical arrangements for implementing Regulation (EC) No 1049/2001.

3. Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may give rise to the lodging of a complaint to the European Ombudsman or form the subject of an action before the Court of Justice of the European Union, under the conditions laid down in Articles 228 and 263 of the Treaty on the Functioning of the European Union respectively.

Article 2 - 4 Information and communication

1. The Agency may communicate on its own initiative in the fields within its mission. It shall ensure in particular that, in addition to the publication specified in Article 9(1) (i),(j),(s),(t), Article 27(3) and Article 29(8), the public and any interested party are rapidly given objective, reliable and easily understandable information with regard to its work.

2. The Management Board shall lay down the practical arrangements for the application of paragraph 1.

Article 2 - 5 Data protection

1. The information processed by the Agency in accordance with this Regulation shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

2. The Management Board shall establish measures for the application of Regulation (EC) No 45/2001 by the Agency, including those concerning the Data Protection Officer of the Agency.

Article 26 - Security rules on the protection of classified information and non-classified sensitive information

1. The Agency shall apply the security principles contained in Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal rules of procedure. This shall cover, inter alia, provisions for the exchange, processing and storage of classified information.

2. The Agency shall also apply the security principles relating to the processing of non-classified sensitive information as adopted and implemented by the European Commission.

Article 27 - Evaluation

1. Within three years from the date of the Agency having taken up its responsibilities, and every five years thereafter, the Management Board shall commission an independent external evaluation of the implementation of this Regulation on the basis of terms of reference issued by the Management Board after consultation with the Commission.

2. The evaluation shall assess the utility, relevance and effectiveness of the Agency and its working practices. The evaluation shall take into account the views of stakeholders, at both European and national level.

3. The Management Board shall receive the evaluation and issue recommendations regarding changes to this Regulation, the Agency and its working practices to the Commission, which shall forward them, together with its own opinion as well as appropriate proposals, to the Council and the European Parliament. An action plan with a timetable shall be included, if appropriate. Both the evaluation and the recommendations shall be made public.

CHAPTER V - FINANCIAL PROVISIONS

Article 28 - Budget

1. The revenue of the Agency shall consist, without prejudice to other types of income, of:

48. a subsidy from the Union entered in the general budget of the European Union (Commission section) ;

49. a contribution from the countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures;

50. any financial contribution from the Member States.

2. The expenditure of the Agency shall include, inter alia, staff remuneration, administrative and infrastructure expenses, operating costs and expenditure relating to contracts or agreements concluded by the Agency. 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, together with the establishment plan, and shall transmit it to the Management Board.

3. Revenue and expenditure of the Agency shall be in balance.

4. The Management Board, on the basis of a draft drawn up by the Executive Director, shall adopt a draft statement of estimates of the revenue and expenditure of the Agency for the following financial year.

5. The draft statement of estimates of the Agency's revenue and expenditure and the general guidelines underlying that estimate, shall be transmitted by the Management Board to the Commission and to the countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures by 10 February each year and the final statement of estimates by 31 March.

6. By 31 March each year at the latest, the Management Board shall submit to the Commission and to the budgetary authority :

51. its draft work programme;

52. its updated multi-annual Staff Policy Plan, established in line with the guidelines set by the Commission;

53. information on the number of officials, temporary and contract staff as defined in the Staff Regulation for the years n-1 and n as well as an estimate for the year n+1;

54. information on contributions in kind granted by the host Member State to the Agency;

55. an estimate of the balance of the outturn account for the year n-1.

7. The statement of estimates shall be forwarded by the Commission to the European Parliament and the Council (referred to as the budgetary authority) together with the preliminary draft general budget of the European Union.

8. On the basis of the statement of estimates, the Commission shall enter in the preliminary draft general budget of the European Union the estimates it deems 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 Article 314 of the Treaty on the Functioning of the European Union.

9. The budgetary authority shall authorise the appropriations for the subsidy to the Agency. The budgetary authority shall adopt the establishment plan for the Agency.

10. The Agency's budget shall be adopted by the Management Board. It shall become final following the final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly.

11. Any modification to the budget, including the establishment plan, shall follow the same procedure.

12. The Management Board shall, as soon as possible, notify the budgetary authority of its intention to implement any project, which may have significant financial implications for the funding of its budget, in particular any projects relating to property such as the rental or purchase of buildings. It shall inform the Commission thereof as well as the countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures. If either branch of the budgetary authority intends to issue an opinion, it shall within two weeks after receipt of the information on the project, notify the Management Board of its intention to issue such an opinion. Failing a reply, the Agency may proceed with the planned operation.

Article 29 - Implementation of the budget

1. The Agency’s budget shall be implemented by its Executive Director.

2. The Executive Director shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures.

3. The Agency's Accounting Officer shall send to the Commission's Accounting Officer and the Court of Auditors by no later than 1 March of the following year its provisional accounts, together with the report on budgetary and financial management during the year. The Commission’s accounting officer shall consolidate the provisional accounts of the institutions and decentralised bodies in accordance with Article 128 of Regulation (EC, Euratom) No 1605/2002.

4. The Agency’s accounting officer shall also send to the European Parliament and the Council, by 31 March of the following year at the latest, the report on budgetary and financial management.

5. On receipt of the Court of Auditors’ observations on the Agency’s provisional accounts, pursuant to Article 129 of Regulation (EC, Euratom) No 1605/2002, the Executive Director shall draw up the Agency’s final accounts under his/her own responsibility and forward them to the Management Board for an opinion.

6. The Management Board shall deliver an opinion on the Agency’s final accounts.

7. By 1 July of the following year at the latest, the Executive Director shall send the final accounts, together with the opinion of the Management Board, to the Commission's Accounting Officer, the Court of Auditors, the European Parliament and the Council as well as the countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures .

8. The final accounts shall be published.

9. The Executive Director shall send the Court of Auditors a reply to its observations by 30 September at the latest. He/she shall also send this reply to the Management Board.

10. The Executive Director shall submit to the European Parliament, at the latter's request, all information necessary for the smooth application of the discharge procedure for the financial year in question, as laid down in Article 146(3) of Regulation (EC, Euratom) No 1605/2002.

11. The European Parliament, on a recommendation from the Council acting by a qualified majority, 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.

Article 3 - 0 Financial rules

The financial rules applicable to the Agency shall be adopted by the Management Board after consultation of the Commission. They may not depart from Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 unless such departure is specifically required for the Agency's operation and the Commission has given its prior consent.

Article 3 - 1 Combating fraud

1. In order to combat fraud, corruption and other unlawful activities the provisions of Regulation (EC) No 1073/1999 shall apply.

2. The Agency shall accede to the Inter-institutional Agreement concerning internal investigations by the European Anti-fraud Office (OLAF) and shall issue, without delay, the appropriate provisions applicable to all the employees of the Agency.

3. The decisions concerning funding and the implementing agreements and instruments resulting from them shall explicitly stipulate that the Court of Auditors and OLAF may carry out, if necessary, on-the-spot checks among the recipients of the Agency’s funding and the agents responsible for allocating it.

CHAPTER VI - FINAL PROVISIONS

Article 32 - Preparatory actions

1. The Commission shall be responsible for the establishment and initial operation of the Agency until the latter has the operational capacity to implement its own budget.

2. For that purpose, until such time as the Executive Director takes up his/her duties following his/her appointment by the Management Board in accordance with article 15 of this Regulation, the Commission may assign a limited number of officials including one to fulfil the functions of the Executive Director, on an interim basis.

3. The interim Executive Director may authorise all payments covered by credits provided in the Budget of the Agency, once approved by the Management Board and may conclude contracts, including staff contracts following the adoption of the Agency's establishment plan.

Article 33 - Participation by Countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures

Under the relevant provisions of their association agreements, arrangements shall be made in order to specify, inter alia, the nature and extent of, and the detailed rules for, the participation by countries associated with the implementation, application and development of the Schengen acquis and the EURODAC related measures in the work of the Agency, including provisions on financial contributions and staff.

Article 3 - 4 Entry into force and applicability

1. This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.

2. The Agency shall take up its responsibilities set out in Articles 2 to 6 from 1 January 2012.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.