Commission Decision of 8.4.2010 on the Internal Rules on the implementation of the general budget of the European Union (European Commission section ) - for the attention of the Commission departments - Main contents

Document date	12-04-2010
Publication date	14-04-2010
Reference	8456/10
From	Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director
To	Mr Pierre de BOISSIEU, Secretary-General of the Council of the European Union
External link	original PDF
Original document in PDF

COUNCIL OF Brussels, 12 April 2010

THE EUROPEAN UNION

8456/10

FIN 135

COVER NOTE

from: Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 8 April 2010

to: Mr Pierre de BOISSIEU, Secretary-General of the Council of the European

Union

Subject: Commission Decision of 8.4.2010 on the Internal Rules on the implementation of the general budget of the European Union (European Commission section ) - for the attention of the Commission departments

Delegations will find attached Commission document C(2010) 1858 final.

________________________

Encl.: C(2010) 1858 final

EUROPEAN COMMISSION

Brussels, 8.4.2010 C(2010)1858 final

COMMISSION DECISION

of 8.4.2010

on the Internal Rules on the implementation of the general budget of the

European Union

(European Commission section)

for the attention of the Commission departments

EN EN

COMMISSION DECISION

of 8.4.2010

on the Internal Rules on the implementation of the general budget of the

European Union

(European Commission section)

for the attention of the Commission departments

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 317 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 179 thereof,

Having regard to the Financial Regulation applicable to the general budget of the European

Communities 1 , and in particular Articles 51 and 59 thereof,

Having regard to the Commission Regulation laying down detailed rules for the

implementation of the Financial Regulation 2 , and in particular Article 46 thereof,

Having regard to the Commission's Rules of Procedure 3 , and in particular Article 13 thereof,

Whereas:

(1) The internal rules and the annexes thereto must be amended and adjusted to bring them more into line with the financial provisions.

(2) The adoption of the new version of the "Charter of tasks and responsibilities of the Commission's accounting officer", which forms Annex IV to the internal rules, requires replacement of the annex.

(3) The authorising officer by delegation responsible for each line of the general budget of the European Union (Commission section) for the 2010 budget year needs to be defined.

1 Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 (OJ L 248, 16.9.2002, p. 1), as last

amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ L 390, 30.12.2006, p. 1).

2 Commission Regulation (EC, Euratom) N° 2342/2002 of 23 December 2002 (OJ L 357, 31.12.2002), as

last amended by Commission Regulation (EC, Euratom) No 1248/2006 of 7 August 2006 (OJ L 227, 19.8.2006).

3 Decision C(2000)3614 of 29 November 2000 (OJ L 308, 8.12.2000). Rules of Procedure, as last

amended by Decision C(2005)960 (OJ L 347, 30.12.2005).

HAS DECIDED AS FOLLOWS:

Article 1

Decision SEC (2004)120, as last amended by Decision C/2009/2105 of 6 April 2009,

is amended as follows:

(1) Article 5(2) is amended as follows:

However, authorising officers by delegation may also subdelegate the power to waive recovery of or cancel an established entitlement as referred to in Articles 87 and 88 of the detailed rules for the implementation of the Financial Regulation to staff of the rank of Director and to Heads of Delegation where the amounts involved

are less than EUR 5 000.

(2) The third subparagraph of Article 7(2) is deleted.

(3) Article 15 is replaced by the following:

• 1. 

  Measures for the implementation of expenditure shall be adopted by the authorising officer by delegation on the basis of a financing decision, within the meaning of Article 75 of the Financial Regulation and Article 90 of the implementing rules, taken by the Commission or by the authorities which it has empowered or to which it has delegated powers in accordance with its Rules of

  Procedure.

Appropriations which may be used without a basic act, in accordance with Article 49(6) of the Financial Regulation, must be covered by a financing decision taken by the Commission. Appropriations for procurement contracts which must be implemented in situations of extreme urgency within the meaning of Article 126(1)(c) of the implementing rules and the operating appropriations pursuant to Article 49(6)(e) of the Financial Regulation) shall be exempt from such a

decision.

• 2. 

  After adoption of the financing decision by the Commission or the authorities to which it has delegated powers, the authorising officer responsible may make the

commitment in accordance with Articles 76 to 78 of the Financial Regulation.

• 3. 

  The authorising officers by delegation designated by these Internal Rules shall adopt individual decisions awarding the grants or public contracts provided for in Articles 100 and 116 of the Financial Regulation pursuant to the financing decision

  referred to in Article 75 of the Financial Regulation.

(4) Article 16 is replaced by the following:

Article 16 Financial impact

• 1. 

  Any proposal or legislative initiative submitted by a department for Commission approval by oral, written or empowerment procedure and likely to have a financial impact, including on operating appropriations, shall be accompanied by a legislative financial statement corresponding to the model set out in Annex II

  (model 4A).

• 2. 

  Any internal decision of general significance with an impact on operating appropriations which is proposed by the horizontal Commission departments or by the offices and adopted by the Commission by oral, written or empowerment procedure shall be accompanied by a simplified financial statement corresponding to

  the model set out in Annex II (model 4B).

• 3. 

  Any draft financing decision and any draft annual work programme (including those involving appropriations which may be implemented without a basic act in accordance with Article 49(6) of the Financial Regulation) shall be accompanied during the interservice consultation by a budgetary impact statement corresponding

  to the model set out in Annex II (models 4C and 4D).

(5) Article 27 is replaced by the following:

Article 27

The internal rules for 2010 consolidate the internal rules adopted by the Commission

on 11 March 2004, as last amended by Decision C/2009/2105 of 6 April 2009.

(6) Article 28 is replaced by the following:

Article 28

These Internal Rules on the implementation of the budget shall enter into force with

effect on 1 January 2010.

(7) Annex II (Main forms to be used) is amended as follows:

• a) 

  The title is replaced by the following:

ANNEX II

MAIN FORMS TO BE USED

• 1. SUBDELEGATION

(Articles 4 and 7 of the Internal Rules)

• 1. A. Subdelegation (Article 4 of the Internal Rules)

• 1. B. Cross subdelegation (Article 7 of the Internal Rules)

• 2. CHANGE OF AUTHORISING OFFICER

• 2. A. CHANGE OF AUTHORISING OFFICER BY DELEGATION

(Article 3.3 of the Charter for authorising officers by delegation )

• 2. B. CONFIRMATION OF THE SUBDELEGATION

(Article 8(3) of the Internal Rules)

• 3. INFORMATION TO BE PROVIDED IN SUPPORT OF EACH REQUEST FOR

A TRANSFER

(Article 17 of the Internal Rules)

• 4. BUDGETARY IMPACT STATEMENT

(Article 16 of the Internal Rules)

• 4A) Legislative financial statement (to be used for any proposal or initiative

submitted to the legislative authority)

• 4B) Simplified financial statement (to be used for any internal Commission

decision of general significance proposed by horizontal departments and/or by administrative offices with a budgetary impact on operating appropriations or on human resources, when use of any other type of financial statement is not

obligatory)

• 4C) Budgetary impact statement (to be used where the work programme constitutes

a financing decision or for revision purposes)

• 4D) Budgetary impact statement (to be used in exceptional cases where the

Commission needs to adopt an individual award decision)

• 5. CARRYOVERS AND APPROPRIATIONS MADE AVAILABLE AGAIN

• 6. 

  MODEL FINANCING DECISION

(Article 15 of the Internal Rules. Use optional)

• b) 

  The titles in Section 1 ("Subdelegation") are replaced by the following:

• 1.A. Subdelegation (Article 4 of the Internal Rules)

• 1.B. Cross subdelegation (Article 7 of the Internal Rules).

• c) 

  In the cross subdelegation form (1.B) the list of acts delegated is replaced by the following:

• overall budgetary commitments of appropriations

• individual budgetary commitments of appropriations

• provisional budgetary commitments of appropriations

• decisions on the award of grants and public contracts

• legal commitments (as well as the preliminaries 4 )

• payment orders

• estimates of amounts receivable

• recovery orders

• waivers of recovery of amounts receivable

• cancellations of amounts receivable

• technical and accounting adjustments of amounts receivable

to be booked to the articles and/or items listed on the page attached.

In accordance with the following conditions (Article 7 of the Internal Rules)

• d) 

  The titles in Section 2 ("Change of authorising officer") are replaced by the following:

• 2.A. Change in authorising officer by delegation ( Article 3.3 of the Charter for

authorising officers by delegation )

• 2.B. Confirmation of the subdelegation (Article 8(3) of the Internal Rules)

• e) 

  In the form for the change in authorising officer by delegation (2.A) the list of acts is replaced by the following:

• overall budgetary commitments of appropriations

• individual budgetary commitments of appropriations

• provisional budgetary commitments of appropriations

• decisions on the award of grants and public contracts

• legal commitments (as well as the preliminaries 5 )

• payment orders

• estimates of amounts receivable

• recovery orders

• waivers of recovery of amounts receivable

• cancellations of amounts receivable

4 For example: Content of the notice of invitation to tender, letter of invitation to tender, etc. 5 * Name, category, grade.

EN 6 EN

• technical and accounting adjustments of amounts receivable

• decisions (as well as the preliminaries 6 ) ruling out participation in contract and

grant award procedures

• decisions (as well as the preliminaries) ruling out the award of contracts and

grants

• preliminaries 7 to the decision to refer a case to the Commission under a penalty

procedure

• f) 

  In Section 2 ("Change of authorising officer "), a model "2.A. Confirmation of the subdelegation" is added.

• g) 

  The model for the information to the supplied in support of each request for a transfer is replaced by a new model.

• h) 

  In Section 4 (Budgetary impact statement), the numbering of the documents is amended as follows:

• 4A) Legislative financial statement (to be used for any proposal or initiative

submitted to the legislative authority)

• 4B) Simplified financial statement (to be used for any internal Commission

decision of general significance proposed by horizontal departments and/or by administrative offices with a budgetary impact on operating appropriations or on human resources, when use of any other type of financial statement is not

obligatory)

• 4C) Budgetary impact statement (to be used where the work programme

constitutes a financing decision or for revision purposes)

• 4D) Budgetary impact statement (to be used in exceptional cases where the

Commission needs to adopt an individual award decision)

• i) 

  In Section 4 (Budgetary impact statement), the former point "4c) Simplified financial statement" becomes point 4b) and is replaced by a new statement.

• l) 

  In Section 4 (Budgetary impact statement), the Legislative financial statement is added to point 4a).

• m) 

  Section 6 ("Model financing decision") is added.

(8) Annex IV ("Charter of financial actors") is amended as follows:

6 For example: letter stating the intention to adopt the exclusion decision, giving the

candidate/tenderer/applicant a time limit for submitting comments

7 For example: letter stating the intention to refer the case to the Commission, giving the

candidate/tenderer/applicant a time limit for submitting comments

• a) 

  Paragraph 4.5 of the "Charter of tasks and responsibilities of authorising

officers by delegation" is replaced by the following:

The authorising officer by delegation is responsible for implementing the management and internal control systems which have been or are to be set up in the Directorate General, Service, European office or executive agency (hereinafter: Directorate-General) in accordance with the internal control standards. These systems shall be evaluated regularly by the Directorate General and by the Internal Audit Service (IAS). The authorising officer by delegation shall have the management and internal control procedures described in a document accessible to

all staff in the Directorate General. The procedures shall be regularly updated.

• b) 

  The "Charter of tasks and responsibilities of the Commission's accounting officer" is replaced by the new version which was signed by the Commission's new

  accounting officer when he took up his duties on 1 June 2009.

(9) Annex VIII is amended as follows/

• a) 

  Article 6 is replaced by the following:

  Article 6 Precautionary measures

Whenever a recovery order has been issued for a Community entitlement, if the authorising officer responsible has information that the debtor in respect of whom the recovery order has been issued is no longer creditworthy (in particular that

insolvency proceedings within the meaning of Regulation No 1346/2000 i 8 are under

way or are threatened or that there is suspicion of bankruptcy fraud), he/she shall forward this information as soon as possible to the accounting officer, who shall take

appropriate measures to safeguard the Commission’s rights.

• b) 

  The second paragraph of Article 8 is replaced by the following:

The recovery order establishing the late payment interest shall be drawn up on collection by the authorising officer responsible designated for this purpose by the

Internal Rules on the implementation of the budget.

• c) 

  Article 9 is replaced by the following:

  Article 9 Guarantee linked to additional time allowed for payment and to recovery of fines,

  periodic penalty payments and other penalties

In the circumstances provided for in Articles 85 and 85a of the detailed implementing rules, the debtor shall furnish a guarantee from a financial institution approved by the accounting officer covering the debtor’s obligations as regards both principal and interest, using the appropriate model form annexed (Annex 1 for the

8 Council Regulation (EC) No 1346/2000 i of 29 May 2000 on insolvency proceedings (OJ L 160,

30.6.2000, pp. 1-18, esp. Annex A).

payment of miscellaneous debts in instalments, Annexes 2 or 3 for fines, periodic penalty payments or other penalties). This guarantee shall be accepted by the

accounting officer, who shall keep the original and, where appropriate, call it in.

• d) 

  Article 11(3) is replaced by the following:

The fact that the debtor is or has been the source of recovery problems shall be

flagged in the Commission’s early-warning system. 9

• e) 

  Article 14(5) is deleted.

• f) 

  Article 16 is replaced by the following:

The authorising officer responsible shall effect the full or partial technical and accounting adjustments referred to in Article 89 of the detailed implementing rules by drawing up a negative amending recovery order in accordance with Articles 3 and

• 4. 

  He/she shall draw up the statement of grounds using the model in Annex 5.

  • g) 

    Article 22(2) is replaced by the following:

In the circumstances referred to in paragraph 1, the accounting officer shall provisionally collect the amounts concerned from the debtor or request him to lodge a financial guarantee, as referred to in Article 9. The provisionally collected amounts shall be invested in such a way as to ensure the security and liquidity of the funds and generate income. The guarantee requested shall be independent of the obligation to pay the fine, periodic penalty payment or other penalty and shall be enforceable upon first call. Depending on the court’s final decision, both the principal and the interest will be either definitively entered in the accounts as revenue or repaid

proportionately to the economic operators as stipulated in the decision.

The guarantee shall cover the principal and the interest on late payment referred to in

Article 86(5) of the detailed implementing rules.

The debtor may request – and be allowed – to replace a financial guarantee lodged

earlier by a provisional payment.

• h) 

  Annex 1 is replaced by the following:

  Annex 1

  STANDARD FINANCIAL GUARANTEE ON FIRST CALL

  (repayment in instalments)

We, the undersigned guarantor, irrevocably and unconditionally undertake to pay to the European Commission upon first call a sum equivalent to the following amounts:

9 Commission Decision 2008/969 i of 16 December 2008 on the Early Warning System for the use of

authorising officers of the Commission and the executive agencies (OJ L 344, 20.12.2008, p.125).

• - 

  No 3240 debit note....... for EUR […] ,issued to […] , hereinafter referred to as "the addressee of the debit note", repayable to the European Commission since [payment deadline of the debit note] relating to project/contract/decision [...] ;

• - 

  interest on this amount calculated from the deadline indicated in the debit note, i.e. […] , to the date of the actual payment of the debt, on the basis of the interest rate applied by the European Central Bank to its principal refinancing operations for the month of […] , i.e. […] %, as published in the Official Journal of the European Union C […] of […] , plus […] percentage points, that is a combined rate of [… ] %;

• - 

  reduced by any amounts repaid.

This undertaking may not be withdrawn without the prior agreement of the European Commission.

The guarantor waives the right both to require exhaustion of remedies against the company and the right to require the creditor to claim proportionally from each guarantor (should there be several).

If the amounts and dates of the respective instalments shown in the attached schedule of repayments (i.e. […] monthly [or other] instalments of EUR […] , followed by a final payment of EUR […] ), are not scrupulously respected by [the addressee of the debit note] , this guarantee shall be executed unconditionally on receipt of the first written demand from the European Commission indicating the amount of principal and interest due.

This financial guarantee constitutes an original right that is independent of the relationship between the European Commission and the addressee of the debit note, on the one hand, and of the relationship between the guarantor and the addressee of the debit note, on the other.

This guarantee shall be governed by the national substantive law of the Kingdom of Belgium.

This financial guarantee is not subject to any national time limitation whatsoever.

Any payment under this guarantee shall be made notwithstanding any objection by the addressee of the debit note or by any other party of whatever capacity and shall be free of any deduction, interest or charges whatsoever. In the event of the insolvency or liquidation of the addressee of the debit note, the European Commission shall have the right to exercise the guarantee immediately, whereby the guarantor may not invoke the deadlines set out in the attached schedule of repayments.

Any dispute between the guarantor and the European Commission concerning the validity, interpretation or execution of the present financial guarantee shall fall within the exclusive jurisdiction provided for by the Treaty on the Functioning of the European Union.

• i) 

  Annex 2 is replaced by the following:

  Annex 2 STANDARD FINANCIAL GUARANTEE ON FIRST CALL (fines - limited period

of validity) (referral to the General Court or to the Court of Justice of the European

Communities)

We, the undersigned guarantor, irrevocably and unconditionally undertake to pay to the European Commission upon first call a sum equivalent to the following amounts:

• - 

  the fine of EUR [...] imposed on [name of company hereafter "the company"] by the decision of the European Commission of […] in Case No […];

• - 

  interest on this sum calculated from [due date of the fine, i.e. three months after receipt by the addressee of the letter giving notice of the Commission’s decision] to the date of actual payment of the fine, on the basis of the rate applied by the European Central Bank to its principal refinancing operations for the month of [...] that is [...]%, published in the Official Journal of the European Union C [...] of [...], plus one and a half percentage points, that is a combined rate of [...]%.

This undertaking may not be withdrawn without the prior agreement of the European Commission.

The guarantor waives the right both to require exhaustion of remedies against the company and the right to require the creditor to claim proportionally from each guarantor (should there be several).

The present financial guarantee constitutes an original right that is independent of the relationship between the European Commission and the company and that is independent of the relationship between the guarantor and the company.

This guarantee shall be executed unconditionally on first written demand of the Commission indicating the amount of the principal and the interest and certifying that this amount is due from the company on the basis of a definitive judgment of the General Court or the Court of Justice.

This financial guarantee is not subject to any national time limitation whatsoever. It will expire five years after the definitive judgment of the General Court or of the Court of Justice concerning the fine imposed on the company.

This guarantee shall be governed by the national substantive law of the Kingdom of Belgium.

Any payment under this guarantee shall be made notwithstanding any objection by the company or by any other party of whatever capacity and shall be free of any deduction, interest or charges whatsoever. In the event of the company's insolvency or liquidation, the European Commission shall have the right to exercise the guarantee at any time; the guarantor may not object that the time for payment has not elapsed.

Any dispute between the guarantor and the European Commission concerning the validity, interpretation or execution of the present financial guarantee shall fall within the exclusive jurisdiction provided for by the Treaty on the Functioning of the European Union.

• l) 

  Annex 3 is replaced by the following:

Annex 3

STANDARD FINANCIAL GUARANTEE (fines - limited period of validity)

We, the undersigned guarantor, irrevocably and unconditionally undertake to pay to the European Commission a sum equivalent to the following amounts:

the fine of EUR […] imposed on [name of company hereafter "the company"] by the decision of the European Commission of […] in case No […];

interest on this sum calculated from [due date of the fine, i.e. three months after receipt by the addressee of the letter giving notice of the Commission’s decision] to the date of actual payment of the fine, on the basis of the rate applied by the European Central Bank to its principal refinancing operations for the month of […], that is […]%, published in the Official Journal of the European Union C […] of […], plus one and a half percentage points, that is a combined rate of […]%.

This undertaking may not be withdrawn without the prior agreement of the European Commission.

The guarantor waives the right both to require exhaustion of remedies against the company and the right to require the creditor to claim proportionally from each guarantor (should there be several).

The present financial guarantee constitutes an original right that is independent of the relationship between the European Commission and the company and that is independent of the relationship between the guarantor and the company.

This guarantee shall be executed unconditionally on first written demand of the Commission indicating the amount of the principal and the interest and certifying that this amount is due from the company on the basis of a definitive judgment.

This guarantee shall expire one year after the date of issue. However, it has been expressly agreed that it will be automatically extended for additional periods of one year from the date of issue or each future due date, unless we, [name and address of the guarantor], give notice by registered post 45 calendar days before this date that we wish to abstain from extension of this guarantee for an additional period against payment of the guaranteed amounts.

This notice shall be addressed to the Accounting Officer of the European Commission (Directorate-General for Budgets) and shall be followed within fifteen calendar days of receipt of the letter of notice by payment of the fine plus the interest accrued, even if no decision has been taken by the Court of First Instance or the Court of Justice of the European Union in the case pending in connection with the fine imposed on the company.

This guarantee shall be governed by the national substantive law of the Kingdom of Belgium.

This financial guarantee is not subject to any national time limitation.

Any payment under this guarantee shall be made notwithstanding any objection by the company or by any other party of whatever capacity and shall be free of any deduction, interest or charges whatsoever. In the event of the company's insolvency or liquidation, the European Commission shall have the right to exercise the guarantee at any time; the guarantor may not object that the time for payment has not elapsed.

Any dispute concerning the validity, interpretation or execution of the present financial guarantee shall fall within the exclusive jurisdiction of the Court of Justice of the European Union.

• m) 

  in Annex 4, the paragraph concerning the standard Commission decision relating to recovery is replaced by the following:

"Having regard to the Treaty on the Functioning of the European Union, and in particular Article 299 thereof,

[Having regard to the Treaty establishing the European Atomic Energy Community,]

(If the entitlement originates from funds which have been financed in full or in part with the EAEC Treaty as a legal base)

[Having regard to the Financial Regulation of 21 December 1977 applicable to the

general budget of the European Communities 10 ,]

(To be cited only for contracts signed before 1 January 2003)

[Having regard to Commission Regulation (Euratom, ECSC, EC) No 3418/93 of 9 December 1993 laying down detailed rules for the implementation of certain

provisions of the Financial Regulation of 21 December 1977 11 , and in particular

Article 94(1) thereof]

(To be cited only for contracts signed before 1 January 2003)

Having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European

Communities 12 , and in particular Article 72(2) thereof,

Having regard to Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to

the general budget of the European Communities 13 , and in particular Article 86(2)

thereof".

• n) 

  in Annex 4, the following paragraph is added to Article 3:

10 [ OJ L 356, 31.12.1977, p. 1.] 11 [ OJ L 315, 16.12.1993, p. 1. Regulation as last amended by Commission Decision 2002/443/EC i

(OJ L 153, 13.6.2002, p. 15).]

12 OJ L 248, 16.9.2002, p. 1.

EN 13 EN

In accordance with Article 299 TFEU, enforcement (and thus the payment of costs)

is governed by the national law of the Member State in which it is carried out.

(10) The Commission designates the authorising officers to whom it delegates its powers of budget implementation for 2010 in Annex 1.

Article 2

This Decision is addressed to the Commission departments. It shall enter into force with effect from 1 January 2010.

Done at Brussels, 8.4.2010

For the Commission […] Member of the Commission