Regulation (EU) 2021/785 of the European Parliament and of the Council of 29 April 2021 establishing the Union Anti-Fraud Programme and repealing Regulation (EU) No 250/2014

• CELEX: Regulation (EU) 2021/785
• Articles: 21

Article 1 Subject matter

This Regulation establishes the Union Anti-Fraud Programme (the ‘Programme’) for the duration of the multiannual financial framework 2021-2027.

It lays down the objectives of the Programme, the budget for the period 2021-2027, the forms of Union funding and the rules for providing such funding.

Article 2 Programme objectives

1.   The general objectives of the Programme are to:

(a)

protect the financial interests of the Union;

(b)

support mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters.

2.   The specific objectives of the Programme are to:

(a)

prevent and combat fraud, corruption and any other illegal activities affecting the financial interests of the Union;

(b)

support the reporting of irregularities, including fraud, with regard to the shared management funds and pre-accession assistance funds of the Union budget;

(c)

provide tools for information exchange and support for operational activities in the field of mutual administrative assistance in customs and agricultural matters.

Article 3 Budget

1.   The financial envelope for the implementation of the Programme for the period 2021-2027 shall be EUR 181,207 million in current prices.

2.   The indicative allocation of the amount referred to in paragraph 1 shall be as follows:

(a)

EUR 114,207 million for the objective referred to in Article 2(2), point (a);

(b)

EUR 7 million for the objective referred to in Article 2(2), point (b);

(c)

EUR 60 million for the objective referred to in Article 2(2), point (c).

3.   Up to 2 % of the amount referred to in paragraph 1 may be used for technical and administrative assistance in connection with the implementation of the Programme, such as preparatory, monitoring, control, audit and evaluation activities, including corporate information technology systems. Moreover, the indicative allocation in point (a) of paragraph 2 takes due account of the fact that the Programme is the only Union programme addressing the expenditure side of the protection of the financial interests of the Union.

Article 4 Third countries associated to the Programme

The Programme shall be open to the participation of the following third countries:

(a)

members of the European Free Trade Association which are members of the European Economic Area, in accordance with the conditions laid down in the Agreement on the European Economic Area;

(b)

acceding countries, candidate countries and potential candidates, in accordance with the general principles and general terms and conditions for the participation of those countries in Union programmes established in the respective framework agreements and Association Council decisions or similar agreements and in accordance with the specific conditions laid down in agreements between the Union and those countries;

(c)

European Neighbourhood Policy countries, in accordance with the general principles and general terms and conditions for the participation of those countries in Union programmes established in the respective framework agreements and Association Council decisions or in similar agreements and in accordance with the specific conditions laid down in agreements between the Union and those countries;

(d)

other third countries, in accordance with the conditions laid down in a specific agreement covering the participation of the third country to any Union programme, provided that the agreement:

(i)

ensures a fair balance as regards the contributions and benefits of the third country participating in the Union programmes;

(ii)

lays down the conditions of participation in the programmes, including the calculation of financial contributions to individual programmes, and their administrative costs;

(iii)

does not confer to the third country any decision-making power in respect of the Union programme;

(iv)

guarantees the rights of the Union to ensure sound financial management and to protect its financial interests.

The contributions referred to in the first paragraph, point (d), (ii) shall constitute assigned revenues in accordance with Article 21(5) of the Financial Regulation.

Article 5 Implementation and forms of Union funding

1.   The Programme shall be implemented in direct management in accordance with the Financial Regulation or in indirect management with a body referred to in Article 62(1), first subparagraph, point (c) of the Financial Regulation.

2.   The Programme may provide funding in any of the forms laid down in the Financial Regulation, in particular grants and procurement, as well as the reimbursement of travel and subsistence expenses as provided for in Article 238 of the Financial Regulation.

3.   The Programme may provide funding for actions carried out in accordance with Regulation (EC) No 515/97, in particular to cover the types of costs referred to in the indicative list in Annex I to this Regulation.

4.   Where the action supported involves the acquisition of equipment, the Commission shall, if appropriate, set up a coordination mechanism to ensure efficiency and interoperability between all the equipment purchased with the support of Union programmes.

Article 6 Protection of the financial interests of the Union

Where a third country participates in the Programme by means of a decision adopted pursuant to an international agreement or on the basis of any other legal instrument, the third country shall grant the necessary rights and access required for the authorising officer responsible, OLAF and the Court of Auditors to comprehensively exercise their respective competences. In the case of OLAF, such rights shall include the right to carry out investigations, including on-the-spot checks and inspections, as provided for in Regulation (EU, Euratom) No 883/2013.

Article 7 Grants

Grants under the Programme shall be awarded and managed in accordance with Title VIII of the Financial Regulation.

Article 8 Co-financing

The co-financing rate for grants awarded under the Programme shall not exceed 80 % of the eligible costs. Any funding in excess of that ceiling shall only be granted in exceptional and duly justified cases, which shall be defined in the work programmes referred to in Article 11, and such funding shall not exceed 90 % of the eligible costs.

Article 9 Eligible actions

1.   Only actions implementing the objectives referred to in Article 2 shall be eligible for funding.

2.   Without prejudice to any other action provided by the work programmes under Article 11, the following actions may be considered eligible for funding:

(a)

providing technical knowledge, specialised and technically advanced equipment and effective IT tools enhancing transnational and multidisciplinary cooperation and cooperation with the Commission;

(b)

enhancing staff exchanges for specific projects, ensuring the necessary support and facilitating investigations, in particular the setting up of joint investigation teams and cross-border operations;

(c)

providing technical and operational support to national investigations, in particular to customs and law enforcement authorities to strengthen the fight against fraud and other illegal activities;

(d)

building IT capacity in the Member States and third countries, increasing data exchange and developing and providing IT tools for the investigation and monitoring of intelligence work;

(e)

organising specialised training, risk analysis workshops, conferences and studies aimed towards improving cooperation and coordination among services concerned with the protection of the financial interests of the Union;

(f)

any other action, provided by the work programmes under Article 11, which is necessary for achieving the general and specific objectives provided for in Article 2.

3.   Where the action to be supported involves the acquisition of equipment, the Commission shall ensure that the funded equipment is appropriate for the purpose of contributing to the protection of the financial interest of the Union.

Article 10 Eligible entities

1.   The eligibility criteria set out in paragraph 2 of this Article shall apply in addition to the criteria set out in Article 197 of the Financial Regulation.

2.   The following entities shall be eligible under the Programme:

(a)

public authorities which can contribute to achieving one of the objectives referred to in Article 2 and are established in:

(i)

a Member State or an overseas country or territory linked to it;

(ii)

a third country associated to the Programme; or

(iii)

a third country listed in the work programme under the conditions specified in paragraph 3;

(b)

research and educational institutes and non-profit-making entities which can contribute to the achievement of the objectives referred to in Article 2, provided that they have been established and have been operating for at least one year in:

(i)

a Member State;

(ii)

a third country associated to the Programme; or

(iii)

a third country listed in a work programme under the conditions specified in paragraph 3;

(c)

any legal entity created under Union law or any international organisation.

3.   Entities referred to in paragraph 2 established in a third country which is not associated to the Programme shall be exceptionally eligible under the Programme where this is necessary for the achievement of the objectives of a given action. Such entities shall in principle bear the cost of their participation, except in cases which shall be duly justified in the work programme.

Article 11 Work programme

In order to implement the Programme, the Commission shall adopt work programmes referred to in Article 110 of the Financial Regulation.

Article 12 Monitoring and reporting

1.   Indicators to report on the progress of the Programme towards the achievement of the general and specific objectives laid down in Article 2 are set out in Annex II.

2.   To ensure effective assessment of the Programme’s progress towards the achievement of its objectives, the Commission is empowered to adopt delegated acts, in accordance with Article 14, to amend Annex II with regard to the indicators where considered necessary, as well as to supplement this Regulation with provisions on the establishment of a monitoring and evaluation framework.

3.   The Commission shall report annually on the performance of the Programme to the European Parliament and to the Council in the framework of its Annual Report on the protection of the Union’s financial interests – Fight against fraud.

In the framework of discussions thereon, the European Parliament may make recommendations for the annual work programme. The Commission shall duly take those recommendations into account.

4.   The performance reporting system shall ensure that data for monitoring the implementation and the results of the Programme are collected efficiently, effectively and in a timely manner. To that end, proportionate reporting requirements shall be imposed on recipients of Union funds and, where relevant, on the Member States.

Article 13 Evaluation

1.   When conducting evaluations, the Commission shall ensure that they are conducted in an independent, objective and timely manner and that the evaluators are able to carry out their work free from any attempt to influence them.

2.   The interim evaluation of the Programme shall be performed once there is sufficient information available about the implementation of the Programme, but no later than four years after the start of the implementation of the Programme.

3.   At the end of the implementation of the Programme, but no later than four years after the end of the period specified in Article 1, the Commission shall carry out a final evaluation of the Programme.

4.   The Commission shall communicate the conclusions of the evaluations, accompanied by its observations, to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the Court of Auditors, and shall publish them on the Commission’s website.

Article 14 Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The power to adopt delegated acts referred to in Article 12(2) shall be conferred on the Commission until 31 December 2028.

3.   The delegation of power referred to in Article 12(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6.   A delegated act adopted pursuant to Article 12(2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 15 Information, communication and visibility

1.   Except where there is a risk of compromising the effective performance of anti-fraud and customs operational activities, the recipients of Union funding shall acknowledge the origin of those funds and ensure the visibility of the Union funding, in particular when promoting the actions and their results, by providing coherent, effective and proportionate targeted information to multiple audiences, including the media and the public.

2.   The Commission shall on a regular basis implement information and communication actions relating to the Programme, to actions taken pursuant to the Programme and to the results obtained. Financial resources allocated to the Programme shall also contribute to the corporate communication of the political priorities of the Union, insofar as those priorities are related to the objectives referred to in Article 2.

Article 16 Amendment of Regulation (EC) No 515/97

In Article 42a of Regulation (EC) No 515/97, paragraphs 1 and 2 are deleted.

Article 17 Repeal

Regulation (EU) No 250/2014 is repealed with effect from 1 January 2021.

Article 18 Transitional provisions

1.   This Regulation shall not affect the continuation or modification of the actions initiated pursuant to Regulation (EU) No 250/2014 and Article 42a of Regulation (EC) No 515/97, which shall continue to apply to those actions until their closure.

2.   The financial envelope for the Programme may also cover technical and administrative assistance expenses necessary to ensure the transition between the Programme and the measures adopted pursuant to Regulation (EU) No 250/2014 and Article 42a of Regulation (EC) No 515/97.

3.   In accordance with Article 193(2), second subparagraph, point (a) of the Financial Regulation, in duly justified cases specified in the financing decision and for a limited period, actions supported under this Regulation and the underlying costs may be considered eligible as of 1 January 2021, even if those actions were implemented and those costs incurred before the grant application was submitted.

Article 19 Entry into force and application

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union .

It shall apply from 1 January 2021.

Schedules & Appendices

ANNEX I

ANNEX I

INDICATIVE LIST OF COSTS REFERRED TO IN ARTICLE 5(3)

Indicative list of the types of costs that the Programme will fund for actions carried out in accordance with Regulation (EC) No 515/97:

(a)

costs of installing and maintaining the permanent technical infrastructure which provides Member States with the logistical, office automation and IT resources to coordinate joint customs operations and other operational activities;

(b)

the reimbursement of travel and subsistence expenses, as well as, where appropriate, any other allowances or payments, made in respect of representatives of the Member States and, where appropriate, representatives of third countries, taking part in Union missions, in joint customs operations organised by or jointly with the Commission and in training courses, ad hoc meetings and preparatory and evaluation meetings for administrative investigations or operational actions conducted by the Member States, where they are organised by or jointly with the Commission;

(c)

expenditure relating to the acquisition, study, development and maintenance of computer infrastructure (hardware), software and dedicated network connections, and to related production, support and training services for the purpose of carrying out the actions provided for in Regulation (EC) No 515/97, in particular actions relating to preventing and combating fraud;

(d)

expenditure relating to the provision of information and expenditure on related actions allowing access to information, data and data sources for the purpose of carrying out the actions provided for in Regulation (EC) No 515/97, in particular actions relating to preventing and combating fraud;

(e)

expenditure relating to use of the Customs Information System provided for in instruments adopted under Article 87 TFEU, and in particular in Decision 2009/917/JHA, in so far as those instruments provide that that expenditure shall be borne by the general budget of the Union.

(f)

expenditure relating to the acquisition, study, development and maintenance of the Union components of the common communication network used for the purposes of point (c).

ANNEX II

ANNEX II

INDICATORS FOR THE MONITORING OF THE PROGRAMME

The Programme will be monitored closely on the basis of a set of indicators intended to measure the extent to which the general and specific objectives of the Programme have been achieved and with a view to minimising administrative burdens and costs. To that end, data will be collected in relation to the following set of key indicators:

Specific Objective 1: Preventing and combating fraud, corruption and any other illegal activities affecting the financial interests of the Union.

Indicator 1: Support in preventing and combatting fraud, corruption and any other illegal activities affecting the financial interests of the Union, as measured by:

1.1

:

satisfaction rate of activities organised and (co-)financed through the Programme;

1.2

:

percentage of Member States receiving support each year of the Programme.

Specific Objective 2: Supporting the reporting of irregularities, including fraud, with regard to the shared management funds and pre-accession assistance funds of the Union budget.

Indicator 2: User satisfaction rate for the use of IMS.

Specific Objective 3: Providing tools for information exchange and support for operational activities in the field of mutual administrative assistance in customs and agricultural matters.

Indicator 3: Number of instances in which mutual assistance information is made available and number of supported mutual assistance-related activities.