Considerations on COM(2018)473 - Proposal for a regulation establishing, as part of the Integrated Border Management Fund, the instrument for financial support for border management and visa

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dossier COM(2018)473 - Proposal for a regulation establishing, as part of the Integrated Border Management Fund, the instrument for financial ...
document COM(2018)473 EN
date July  7, 2021
 
table>(1)The Union’s objective of ensuring a high level of security within an area of freedom, security and justice pursuant to Article 67(3) of the Treaty on the Functioning of the European Union (TFEU) should be achieved, inter alia, through common measures on the crossing of internal borders by persons and on border control at external borders and the common visa policy, while preserving the careful balance between free movement of persons on the one hand and security on the other.
(2)Pursuant to Article 80 TFEU, the Union policies on border checks, asylum and immigration and their implementation are to be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.

(3)In the Rome Declaration signed on 25 March 2017, the leaders of 27 Member States affirmed their commitment to working towards a safe and secure Europe and to building a Union where all citizens feel safe and can move freely, where the external borders are secured, with an efficient, responsible and sustainable migration policy, respecting international norms, as well as a Europe determined to fight terrorism and organised crime.

(4)All actions funded under the Instrument for Financial Support for Border Management and Visa Policy (the ‘Instrument’), established by this Regulation, including those carried out in third countries, should be implemented in full compliance with the rights and principles enshrined in the Union acquis, and the Charter of Fundamental Rights of the European Union (the ‘Charter’), and should be in line with the international obligations of the Union and the Member States arising from the international instruments to which they are party, in particular by ensuring compliance with the principles of non-discrimination and non-refoulement.

(5)The policy objective of the Instrument is to develop and implement strong and effective European integrated border management at the external borders, thereby contributing to ensuring a high level of internal security within the Union, while safeguarding the free movement of persons within it and fully respecting the relevant Union acquis and the international obligations of the Union and the Member States arising from the international instruments to which they are party.

(6)European integrated border management, as implemented by the European Border and Coast Guard, established by Regulation (EU) 2019/1896 of the European Parliament and of the Council (3), is a shared responsibility of the European Border and Coast Guard Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks. It should contribute to facilitating legitimate border crossings, to preventing and detecting illegal immigration and cross-border crime and to effectively manage migratory flows.

(7)Facilitating legitimate travel, while preventing irregular migration and security risks, was identified as one the main objectives of the Union’s approach presented in the communication of the Commission of 23 September 2020 on a New Pact on Migration and Asylum.

(8)Financial support from the Union budget is indispensable for the implementation of European integrated border management to support Member States, acting in full respect of fundamental rights, in managing the crossing of the external borders efficiently and in addressing future challenges at those borders, which would contribute to addressing serious crime with a cross-border dimension.

(9)Member States should be provided with adequate Union financial support to promote the implementation of European integrated border management and to ensure that European integrated border management becomes an operational reality. European integrated border management consists of, inter alia, the following components laid down in Regulation (EU) 2019/1896: border control; search and rescue operations during border surveillance; risk analysis; cooperation between Member States, including support coordinated by the European Border and Coast Guard Agency; inter-agency cooperation, including the regular exchange of information; cooperation with third countries; technical and operational measures within the Schengen area which are related to border control and designed to address illegal immigration and to counter cross-border crime better; use of state-of-the-art technology; a quality control mechanism and solidarity mechanisms.

(10)The Instrument should be able to provide the necessary support to Member States for the implementation of common minimum standards for external border surveillance, in line with the respective competences of the Member States, the European Border and Coast Guard Agency and the Commission.

(11)As the customs authorities of the Member States have been taking up an increasing number of responsibilities which often extend to the field of security and which take place at the external borders, it is important to foster inter-agency cooperation as a component of European integrated border management in line with Regulation (EU) 2019/1896. Complementarity in carrying out border control and customs control at the external borders needs to be ensured by providing adequate Union financial support to the Member States. Inter-agency cooperation will not only strengthen customs controls in order to combat all forms of trafficking but will also facilitate legitimate trade and travel and contribute to a secure and efficient customs union.

(12)It is therefore necessary to establish the successor fund to the 2014-2020 Internal Security Fund, established by Regulations (EU) No 513/2014 (4) and (EU) No 515/2014 (5) of the European Parliament and of the Council, by setting up, inter alia, an Integrated Border Management Fund (the ‘Fund’).

(13)Due to the legal particularities of Title V TFEU and the different applicable legal bases regarding the policies on external borders and on customs control, it is not legally possible to establish the Fund as a single instrument.

(14)The Fund should therefore be established as a comprehensive framework for Union financial support in the field of border management and visa policy comprising the Instrument as well as the Instrument for Financial Support for Customs Control Equipment, established by Regulation (EU) 2021/1077 of the European Parliament and of the Council (6). That framework should be complemented by Regulation (EU) 2021/1060 of the European Parliament and of the Council (7), to which this Regulation should refer as regards rules on shared management.

(15)The Instrument should build on the results and investments of its predecessors, the External Borders Fund for the 2007-2013 period, established by Decision No 574/2007/EC of the European Parliament and of the Council (8) and the instrument for financial support for external borders and visa as part of the Internal Security Fund for the 2014-2020 period, established by Regulation (EU) No 515/2014, and should be extended to take into account new developments.

(16)To ensure uniform and high-quality external border control and to facilitate legitimate travel across the external borders, the Instrument should contribute to the development of European integrated border management that includes measures involving policy, law, systematic cooperation, burden sharing, the assessment of the situation and changing circumstances regarding crossing points for irregular migrants, personnel, equipment and technology, which may be taken at different levels by the competent authorities of the Member States and by the European Border and Coast Guard Agency, acting in cooperation with other actors such as other Union bodies, offices and agencies, in particular the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), established by Regulation (EU) 2018/1726 of the European Parliament and of the Council (9), the European Union Agency for Law Enforcement Cooperation (Europol), established by Regulation (EU) 2016/794 of the European Parliament and of the Council (10), and, where appropriate, third countries and international organisations.

(17)The Instrument should contribute to improving the efficiency of visa processing in terms of facilitating visa procedures for bona fide travellers and in terms of detecting and assessing security risks and irregular migration risks. In particular, the Instrument should deliver financial assistance to support the digitalisation of visa processing with the objective of providing fast, secure and client-friendly visa procedures for the benefit of both visa applicants and consulates. The Instrument should also serve to ensure wide coverage of consular services across the world. The uniform implementation and the modernisation of the common visa policy, as well as the measures stemming from Regulation (EC) No 767/2008 of the European Parliament and of the Council (11), should also be covered by the Instrument, as should assistance to Member States for the issuance of visas, including visas with limited territorial validity issued on humanitarian grounds, for reasons of national interest or because of international obligations in line with the Union acquis in relation to visas.

(18)The Instrument should support measures linked to external border control in the territory of the countries applying the Schengen acquis as part of the implementation of the European integrated border management, which strengthens the overall functioning of the Schengen area.

(19)With a view to improving the management of the external borders, to facilitating legitimate travel, to contributing to preventing and combating irregular border crossings, to implementing the common visa policy and to contributing to a high level of security within the area of freedom, security and justice of the Union, the Instrument should support the development of large-scale IT systems in accordance with Union law in the area of border management. It should also support the setting-up of interoperability, as established in Regulations (EU) 2019/817 (12) and (EU) 2019/818 (13) of the European Parliament and of the Council, in the Member States between Union information systems, namely the Entry/Exit System (EES), established by Regulation (EU) 2017/2226 of the European Parliament and of the Council (14), the Visa Information System (VIS), established by Regulation (EC) No 767/2008, the European Travel Information and Authorisation System (ETIAS), established by Regulation (EU) 2018/1240 of the European Parliament and of the Council (15), Eurodac, established by Regulation (EU) No 603/2013 of the European Parliament and of the Council (16), the Schengen Information System (SIS), established by Regulations (EU) 2018/1860 (17), (EU) 2018/1861 (18) and (EU) 2018/1862 (19) of the European Parliament and of the Council and the centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN), established by Regulation (EU) 2019/816 of the European Parliament and of the Council (20), in order for those Union information systems and their data to supplement each other. The Instrument should also contribute to the necessary developments at national level following the implementation of the interoperability components at central level, namely the European search portal (ESP), a shared biometric matching service (shared BMS), a common identity repository (CIR) and a multiple-identity detector (MID).

(20)In order to benefit from the knowledge and expertise of the decentralised agencies with competence in the areas of border management, visa policy and large-scale IT systems, the Commission should, in a timely manner, involve the relevant agencies in the work of the Committee for the Home Affairs Funds set up by this Regulation, especially at the beginning and mid-term of the programming period. Where appropriate, the Commission should also be able to involve the relevant Union bodies, offices and agencies in monitoring and evaluation, in particular with a view to ensuring that the actions supported by the Instrument comply with the relevant Union acquis and agreed Union priorities. The Instrument should complement and reinforce the activities implementing European integrated border management in line with the principle of shared responsibility and solidarity between the Member States and the European Border and Coast Guard Agency, which represent the two pillars of the European Border and Coast Guard. This means, in particular, that, when drawing up their programmes implemented under shared management, Member States should take into account the analytical tools and operational and technical guidelines developed by the European Border and Coast Guard Agency, as well as the training curricula developed by it, such as the common core curricula for the training of border guards, including the components of those curricula that relate to fundamental rights and access to international protection. In order to develop complementarity between its tasks and the responsibilities of the Member States for the control of the external borders and to ensure consistency and avoid cost inefficiency, the Commission should, in a timely manner, consult the European Border and Coast Guard Agency on the draft programmes submitted by the Member States in as far as they fall within the competencies of that agency, in particular with regard to the activities financed under operating support.

(21)In so far as the affected Member States so request, the Instrument should support the implementation of the hotspot approach as outlined in the communication of the Commission of 13 May 2015 entitled ‘A European Agenda on Migration’ and endorsed by the European Council of 25 and 26 June 2015 and further detailed in Regulation (EU) 2019/1896. The hotspot approach provides operational support to Member States facing disproportionate migratory challenges at the external borders. It offers integrated, comprehensive and targeted assistance in a spirit of solidarity and shared responsibility.

(22)In the spirit of solidarity and shared responsibility for the protection of the external borders, where vulnerabilities or risks are identified, in particular following a Schengen evaluation in accordance with Council Regulation (EU) No 1053/2013 (21), the Member State concerned should adequately address the matter by using the resources under its programme to implement recommendations adopted pursuant to that Regulation and in line with vulnerability assessments carried out by the European Border and Coast Guard Agency in accordance with Regulation (EU) 2019/1896.

(23)The Instrument should provide financial assistance to those Member States that fully apply the provisions of the Schengen acquis on external borders and visas and to those Member States which are preparing for full participation in Schengen, and should be used by the Member States in the interests of the common policy of the Union for the management of the external borders.

(24)While providing support to Member States’ investments in border management, the Instrument should not provide funding for new, permanent infrastructure and buildings at the internal borders at which controls have not yet been lifted. However, at those borders, the Instrument should support investments in movable infrastructure for border control and the maintenance, limited upgrading or replacement of existing infrastructure, which are required to continue to comply with Regulation (EU) 2016/399 of the European Parliament and of the Council (22).

(25)In accordance with Protocol No 5 to the 2003 Act of Accession on the transit of persons by land between the region of Kaliningrad and other parts of the Russian Federation, the Instrument should bear any additional cost incurred in implementing the specific provisions of the Union acquis covering such transit, namely Council Regulations (EC) No 693/2003 (23) and (EC) No 694/2003 (24). The need for continued financial support for foregone fees, however, should be dependent upon the visa regime of the Union in force with the Russian Federation.

(26)To contribute to the achievement of the policy objective of the Instrument, Member States should ensure that their programmes include actions addressing all the specific objectives of the Instrument and that the allocation of resources among the specific objectives ensures that those objectives can be met.

(27)In keeping with the principle of efficiency, synergies and consistency should be sought with other Union Funds, and overlap between actions should be avoided.

(28)The return of third-country nationals who are the subject of return decisions issued by a Member State is one of the components of European integrated border management provided for in Regulation (EU) 2019/1896. However, due to its nature and objective, measures in the field of return fall outside the scope of support of the Instrument and are covered by Regulation (EU) 2021/1147 of the European Parliament and of the Council (25).

(29)To acknowledge the important role of the Member States’ customs authorities at the external borders and to ensure that they have sufficient means at their disposal to implement the broad scope of their tasks at those borders, the Instrument for Financial Support for Customs Control Equipment should provide those national authorities with the necessary funding to invest in equipment to carry out customs control, as well as with equipment that can serve other purposes in addition to customs control such as border control.

(30)Most customs control equipment and information and communication technology (ICT) systems might be equally or incidentally fit for controls of compliance with other legal acts of the Union, such as provisions on border management, visas or police cooperation. The Fund has therefore been conceived as two complementary instruments with distinct but complementary scopes for the purchase of equipment. On the one hand, the Instrument will financially support equipment and ICT systems of which the primary purpose is integrated border management and will also allow their use in the complementary area of customs control. On the other hand, the Instrument for Financial Support for Customs Control Equipment will financially support equipment with customs controls as the main purpose and will also allow its use for additional purposes such as border control and security. Such a distribution of roles will foster inter-agency cooperation as a component of European integrated border management, as provided for in Regulation (EU) 2019/1896, thereby enabling customs and border authorities to work together and maximising the impact of the Union budget through co-sharing and interoperability of control equipment.

(31)Border surveillance at sea is one of the functions performed by coast guards in the Union maritime domain. National authorities carrying out coast guard functions are also responsible for a wide range of tasks, which could include, but are not limited to, maritime safety, security, search and rescue operations, border control, fisheries control, customs control, general law enforcement and environmental protection. The broad scope of coast guard functions brings them under the remit of different Union policies, which should seek synergies to achieve more effective and efficient results.

(32)When implementing actions funded under the Instrument which are related to maritime border surveillance, Member States should pay special attention to their international obligations regarding search and rescue operations at sea. In that regard, it should be possible to use equipment and systems supported under the Instrument in search and rescue operations in situations which might arise during a border surveillance operation at sea.

(33)In addition to Union cooperation on coast guard functions among the European Border and Coast Guard Agency, the European Maritime Safety Agency, established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council (26), and the European Fisheries Control Agency, established by Regulation (EU) 2019/473 of the European Parliament and of the Council (27), improved coherence of the activities in the maritime domain should also be achieved at national level. Synergies between the various actors in the maritime environment should be in line with European integrated border management and maritime security strategies.

(34)In order to strengthen the complementarity and to reinforce the consistency of maritime activities, to avoid duplication of efforts and to alleviate budgetary constraints in an area of costly activities such as the maritime domain, it should also be possible to use, additionally, the Instrument to support maritime operations of a multipurpose character.

(35)Equipment and ICT systems financed under the Instrument should also be able to be used for achieving the objectives of the Internal Security Fund, established by Regulation (EU) 2021/1149 of the European Parliament and of the Council (28) and of the Asylum, Migration and Integration Fund, established by Regulation (EU) 2021/1147. Such equipment and ICT systems should remain available and deployable for effective and secure border control activities and the use of such equipment and ICT systems for the objectives of the Internal Security Fund and the Asylum, Migration and Integration Fund should be limited in time.

(36)The Instrument should, in line with its specific objectives, primarily serve internal Union policy. At the same time, the Instrument should be able to, where appropriate, support actions in line with Union priorities in and in relation to third countries. Those actions should be implemented in full synergy and coherence with, and should complement, other actions outside the Union supported through the Union’s external financing instruments. In particular, such actions should be implemented in a way that ensures full coherence with external Union policy, respects the principle of policy coherence for development and is consistent with the strategic programming documents for the country or region in question. Such actions should also focus on measures that are not development-oriented, serve the interests of internal Union policy and be consistent with the activities undertaken inside the Union. In its mid-term and retrospective evaluations, the Commission should pay particular attention to the implementation of actions in or in relation to third countries.

(37)Funding from the Union budget should concentrate on actions for which Union intervention can bring added value as compared to actions by Member States alone. As the Union is in a better position than Member States to provide a framework for expressing Union solidarity in border management and common visa policy and to provide a platform for the development of the common large-scale IT systems underpinning those policies, financial support provided under this Regulation should contribute, in particular, to strengthening national and Union capabilities in those areas.

(38)When promoting actions supported by the Instrument, the recipients of Union funding should provide information in the language or languages of the target audience. To ensure the visibility of Union funding, recipients of that funding should refer to its origin when communicating on the action. To that end, recipients should ensure that all communications to the media and the public display the Union emblem and explicitly mention the Union’s financial support.

(39)It should be possible for the Commission to use financial resources under the Instrument to promote best practices and the exchange of information as regards the implementation of the Instrument.

(40)The Commission should publish information on the support provided from the thematic facility under direct or indirect management in a timely manner and should update such information where appropriate. It should be possible to sort the data by specific objective, name of beneficiary, the amount legally committed and the nature and purpose of the measure.

(41)A Member State may be deemed not to be compliant with the relevant Union acquis, including as regards the use of operating support under the Instrument, if it has failed to fulfil its obligations under the Treaties in the areas of border management and visa policy, including as regards fundamental rights obligations, if there is a clear risk of a serious breach by that Member State of Union values when implementing the acquis on border management and visa policy or if an evaluation report under the Schengen evaluation and monitoring mechanism laid down in Regulation (EU) No 1053/2013 has identified deficiencies in the relevant area.

(42)The Instrument should ensure that there is a fair and transparent distribution of resources to meet the objectives laid down in this Regulation. In order to meet transparency requirements, the Commission should publish information on the annual and multiannual work programmes of the thematic facility. In line with Regulation (EU) 2021/1060, each Member State should ensure that within six months of the approval of its programme, there is a website in place on which information on its programme is available, covering the programme’s objectives, activities, available funding opportunities and achievements.

(43)This Regulation should establish the initial amounts for Member States’ programmes which consist of fixed amounts as set out in Annex I and an amount calculated on the basis of the criteria laid down in that Annex and which reflect the length of, and the impact levels at, land and sea border sections, the workload at airports and consulates and the number of consulates. In view of the special needs of those Member States which have experienced the highest number of asylum applications per capita in 2018 and 2019, it is appropriate to increase the fixed amounts for Cyprus, Malta and Greece.

(44)The initial amounts for Member States’ programmes should form the basis for Member States’ long-term investments. To take account of changes in the baseline situation, such as the pressure on the external borders and the workload at the external borders and at consulates, an additional amount should be allocated to the Member States at the mid-term of the programming period and should be based on the statistical data, in accordance with Annex I, taking into account the state of their programme implementation.

(45)The Commission should carry out a mid-term evaluation of this Regulation. That mid-term evaluation should be used to assess the effectiveness and Union added value of the Instrument and provide a transparent overview of how the Instrument has been implemented.

(46)As challenges in the area of border management and visa policy are constantly evolving, there is a need to adapt the allocation of funding to changes in priorities for visa policy and border management, including changes that result from increased pressure at the border, and a need to steer funding towards the priorities with the highest Union added value. To respond to pressing needs and changes in policy and Union priorities, and to steer funding towards actions with a high level of Union added value, part of the funding should be periodically allocated, via a thematic facility, to specific actions, Union actions and emergency assistance. The thematic facility offers flexibility in the management of the Instrument and could also be implemented through Member States’ programmes.

(47)Member States should be encouraged to use part of their programme allocation to fund the actions listed in Annex IV by benefiting from a greater Union contribution.

(48)The Instrument should contribute to supporting operating costs that relate to border management, common visa policy and large-scale IT systems in order to enable Member States to maintain capabilities which are crucial for the Union as a whole. Such support should consist of the full reimbursement of specific costs that relate to the objectives of the Instrument and should form an integral part of the Member States’ programmes.

(49)Part of the available resources under the Instrument could be allocated to Member States’ programmes for the implementation of specific actions, in addition to the initial allocation. Those specific actions should be identified at Union level and should concern actions with Union added value which require cooperation among Member States or actions necessary to address developments in the Union which require additional funding to be made available to one or more Member States, such as the purchase through the Member States’ programmes of technical equipment needed by the European Border and Coast Guard Agency to perform its operational activities, the modernisation of the processing of visa applications, the development of large-scale IT systems and the establishment of interoperability between those systems. The Commission should set out those specific actions in its work programmes.

(50)To complement the implementation of the policy objective of the Instrument at national level through Member States’ programmes, the Instrument should also provide support for actions at Union level. Such actions should serve overall strategic purposes within the scope of intervention of the Instrument in relation to policy analysis and innovation, transnational mutual learning and partnerships and the testing of new initiatives and actions across the Union.

(51)In order to strengthen the Union’s capacity to immediately address urgent and specific needs in the event of an emergency situation, such as a large or disproportionate influx of third-country nationals, in particular at those border sections to which a high or critical impact level has been attributed under Regulation (EU) 2019/1896, or other situations in respect of which it has been duly substantiated that immediate action at the external borders is required, it should be possible to provide emergency assistance, in accordance with the framework set out in this Regulation.

(52)This Regulation lays down a financial envelope for the entire duration of the Instrument which is to constitute the prime reference amount, within the meaning of point 18 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (29), for the European Parliament and the Council during the annual budgetary procedure. The prime reference amount allocated to the Instrument is increased by an additional amount of EUR 1 billion in 2018 prices as specified in Annex II to Council Regulation (EU, Euratom) 2020/2093 (30).

(53)Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (31) (the ‘Financial Regulation’) applies to the Instrument. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts.

(54)For the purpose of implementation of actions under shared management, the Instrument should form part of a coherent framework that consists of this Regulation, the Financial Regulation and Regulation (EU) 2021/1060.

(55)Regulation (EU) 2021/1060 establishes the framework for action by the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the European Maritime, Fisheries and Aquaculture Fund, the Just Transition Fund, the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy, as part of the Integrated Border Management Fund, and it lays down, in particular, the rules concerning programming, monitoring and evaluation, management and control for Union funds implemented under shared management. Additionally, it is necessary to specify the objectives of the Instrument with respect to border management and visa policy in this Regulation, and to lay down specific provisions concerning actions that may be financed under the Instrument.

(56)A pre-financing scheme for the Instrument is set out in Regulation (EU) 2021/1060, and a specific pre-financing rate is set in this Regulation. In addition, in order to ensure that it is possible to react promptly to emergency situations, it is appropriate to set a specific pre-financing rate for emergency assistance. The pre-financing scheme should ensure that Member States have the means to provide support to beneficiaries as of the start of the implementation of their programmes.

(57)The types of financing and methods of implementation under this Regulation should be chosen on the basis of their ability to achieve the specific objectives of the actions and to deliver results, taking into account, in particular, the costs of controls, administrative burdens and the risk of non-compliance. When making that choice, the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in Article 125(1) of the Financial Regulation, should be considered.

(58)In accordance with Article 193(2) of the Financial Regulation, a grant may be awarded for an action which has already begun, provided that the applicant can demonstrate the need for starting the action prior to signature of the grant agreement. However, the costs incurred prior to the date of submission of the grant application are not eligible for Union financing except in duly justified exceptional cases. In order to avoid any disruption in Union support which could be prejudicial to the Union’s interests, it should be possible, for a limited period of time at the beginning of the 2021-2027 multiannual financial framework, that costs incurred in respect of actions supported under this Regulation under direct management and which have already begun be considered eligible for Union financing as of 1 January 2021, even if those costs were incurred before the grant application or the request for assistance was submitted.

(59)In order to make the most use of the single audit principle, it is appropriate to set specific rules on the control and audit of projects in which international organisations, the internal control systems of which have been positively assessed by the Commission, are the beneficiaries. For such projects, managing authorities should have the possibility of limiting their management verifications, provided that the beneficiary delivers all necessary data and information on the progress of the project and on the eligibility of underlying expenditure in a timely manner. In addition, where a project implemented by such an international organisation is part of an audit sample, it should be possible for the audit authority to carry out its work in line with the principles of the International Standard on Related Services (ISRS) 4400, ‘Engagements to Perform Agreed-upon Procedures Regarding Financial Information’.

(60)In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (32) and Council Regulations (EC, Euratom) No 2988/95 (33), (Euratom, EC) No 2185/96 (34) and (EU) 2017/1939 (35), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used and, where appropriate, to the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative 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. The European Public Prosecutor’s office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939 to investigate and prosecute criminal offences affecting the financial interests of the Union, as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (36). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and to ensure that any third parties involved in the implementation of Union funds grant equivalent rights. Member States should cooperate fully and provide all necessary assistance to Union institutions, bodies, offices and agencies in relation to the protection of the financial interests of the Union.

(61)Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 TFEU apply to this Regulation. Those rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes and indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget.

(62)Pursuant to Council Decision 2013/755/EU (37), persons and entities established in overseas countries or territories are eligible for funding subject to the rules and objectives of the Instrument and possible arrangements applicable to the Member State to which the relevant overseas country or territory is linked.

(63)Pursuant to Article 349 TFEU and in line with the communication of the Commission of 24 October 2017 entitled ‘A stronger and renewed strategic partnership with the EU’s outermost regions’, endorsed by the Council in its conclusions of 12 April 2018, the relevant Member States should ensure that their programmes address the emerging threats with which the outermost regions are confronted. The Instrument should support those Member States with adequate resources to help the outermost regions as appropriate.

(64)Pursuant to paragraph 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (38), the Instrument should be evaluated on the basis of information collected in accordance with specific monitoring requirements, while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators, as a basis for evaluating the effects of the Instrument on the ground. In order to measure the achievements of the Instrument, indicators and related targets should be established in relation to each specific objective of the Instrument. Those indicators should include qualitative and quantitative indicators.

(65)Reflecting the importance of tackling climate change in accordance with the Union’s commitments to implement the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (39), and the commitment to the United Nations’ Sustainable Development Goals, the actions under this Regulation should contribute to the achievement of an overall target of 30 % of all multiannual financial framework expenditure being spent on mainstreaming climate objectives and to working towards the ambition of 7,5 % of the budget being spent on biodiversity expenditure in 2024 and 10 % in 2026 and 2027 while taking into account the existing overlaps between climate and biodiversity goals. The Instrument should support activities that respect the climate and environmental standards and priorities of the Union and would do no significant harm to environmental objectives within the meaning of Article 17 of Regulation (EU) 2020/852 of the European Parliament and of the Council (40).

(66)Regulation (EU) No 514/2014 of the European Parliament and of the Council (41) and any act applicable to the 2014-2020 programming period should continue to apply to programmes and projects supported under the Instrument during the 2014-2020 programming period. Since the implementation period of Regulation (EU) No 514/2014 overlaps with the programming period covered by this Regulation, and in order to ensure continuity in the implementation of certain projects approved by that Regulation, provisions on the phasing of projects should be laid down. Each individual phase of the project should be implemented in accordance with the rules of the programming period under which it receives funding.

(67)Through indicators and financial reporting, the Commission and the Member States should monitor the implementation of the Instrument in accordance with the relevant provisions of Regulation (EU) 2021/1060 and this Regulation. Starting from 2023, Member States should submit to the Commission annual performance reports covering the latest accounting year. Those reports should contain information on the progress made in the implementation of Member States’ programmes. The Member States should also submit summaries of those reports to the Commission. The Commission should translate those summaries into all official languages of the Union and make them publicly available on its website, together with links to the Member States’ websites referred to in Regulation (EU) 2021/1060.

(68)In order to supplement and amend non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the list of actions in Annex III, the list of actions eligible for higher co-financing rates in Annex IV, operating support under Annex VII and the further development of the monitoring and evaluation framework. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(69)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (42). The examination procedure should be used for the adoption of implementing acts that lay down common obligations on Member States, in particular obligations concerning the provision of information to the Commission, and the advisory procedure should be used for the adoption of implementing acts relating to the detailed arrangements for the provision of information to the Commission in the framework of programming and reporting, given their purely technical nature. The Commission should adopt immediately applicable implementing acts relating to the adoption of decisions to award emergency assistance provided for by this Regulation where, in duly justified cases relating to the nature and purpose of such assistance, imperative grounds of urgency so require.

(70)The participation by a Member State in the Instrument should not coincide with its participation in a temporary financial instrument of the Union which supports the beneficiary Member States to finance, inter alia, actions at new external borders of the Union for the implementation of the Schengen acquis on borders and visas and external border control.

(71)Since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(72)As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (43) which fall within the area referred to in Article 1, Points A and B of Council Decision 1999/437/EC (44).

(73)As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (45) which fall within the area referred to in Article 1, Points A and B of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (46).

(74)As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (47) which fall within the area referred to in Article 1, Points A and B of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (48).

(75)In order to specify the nature and modes of participation in the Instrument of countries associated with the implementation, application and development of the Schengen acquis, further arrangements should be concluded between the Union and those countries under the relevant provisions of their respective association agreements. Such arrangements should constitute international agreements within the meaning of Article 218 TFEU. With a view to minimising any possible gap between the moment when the Instrument becomes binding on the country concerned and the entry into force of the arrangements, it is appropriate to start the negotiations on such arrangements as soon as possible after the respective country has notified to the Council and the Commission its decision to accept the contents of the Instrument and to implement it in its internal legal order. The conclusion of such arrangements should take place after the country concerned has informed in writing of the fulfilment of all its internal requirements.

(76)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark should, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement this Regulation in its national law.

(77)This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (49). Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(78)It is appropriate to align the period of application of this Regulation with that of Regulation (EU, Euratom) 2020/2093.

(79)In order to ensure continuity in providing support in the relevant policy area and to allow implementation to start from the beginning of the 2021-2027 multiannual financial framework, this Regulation should enter into force as a matter of urgency and should apply, with retroactive effect, from 1 January 2021,