National authority
1. By 29 June 2021, the Member States shall notify the Commission, by way of a formal notification transmitted by their Permanent Representation, of the person or persons legally authorised to act on their behalf as the national authority for the purposes of this Regulation. Where a national authority is replaced over the course of the Programme, the Member State concerned shall notify the Commission thereof immediately in accordance with the same procedure.
2. The Member States shall take all necessary and appropriate measures to remove any legal and administrative obstacles to the proper functioning of the Programme, including, where possible, measures aimed at resolving issues that give rise to difficulties in obtaining visas or residence permits.
3. By 29 August 2021, the national authority shall designate a national agency for the duration of the Programme. A national authority shall not designate a ministry as a national agency. National authorities may designate more than one national agency. In cases where there is more than one national agency, Member States shall establish an appropriate mechanism to coordinate the management of the implementation of the Programme at national level, particularly with a view to ensuring coherent and cost-efficient implementation of the Programme and effective contact with the Commission in that respect, and to facilitating the possible transfer of funds between national agencies, thereby allowing for flexibility and better use of funds allocated to Member States. Each Member State shall determine how it organises the relationship between its national authority and the national agency, including tasks such as the establishment of the national agency’s work programme. The national authority shall provide the Commission with an appropriate ex ante compliance assessment that the national agency complies with point (c)(v) or (vi) of the first subparagraph of Article 62(1) and with Article 154(1) to (5) of the Financial Regulation and with the Union requirements for internal control standards for national agencies and rules for the management of programme funds for grant support.
4. The national authority shall designate an independent audit body as referred to in Article 29.
5. The national authority shall base its ex ante compliance assessment on its own controls and audits or on controls and audits undertaken by the independent audit body referred to in Article 29. Where the national agency designated for the Programme is the same as the national agency designated for the 2014-2020 Programme, the scope of the ex ante compliance assessment shall be limited to the requirements that are new and specific to the Programme, unless otherwise justified.
6. In the event that the Commission rejects the designation of the national agency based on its evaluation of the ex ante compliance assessment, or if the national agency does not comply with the minimum requirements set by the Commission, the national authority shall ensure that the necessary remedial steps are taken to ensure that the national agency complies with the minimum requirements, or shall designate another body as national agency.
7. The national authority shall monitor and supervise the management of the Programme at national level. It shall inform and consult the Commission in due time prior to taking any decision that may have a significant impact on the management of the Programme, in particular regarding its national agency.
8. The national authority shall provide adequate co-financing for the operations of its national agency to ensure that the Programme is managed in compliance with the applicable Union rules.
9. Based on the national agency’s yearly management declaration, the independent audit opinion thereon and the Commission’s analysis of the national agency’s compliance and performance, the national authority shall, each year, provide the Commission with information concerning its monitoring and supervision activities in relation to the Programme.
10. The national authority shall take responsibility for the proper management of the Union funds transferred by the Commission to the national agency in the framework of the Programme.
11. In the event of any irregularity, negligence or fraud attributable to the national agency, or any serious shortcomings or underperformance on the part of the national agency, where this gives rise to claims by the Commission against the national agency, the national authority shall reimburse the Commission for the funds not recovered.
12. In the circumstances referred to in paragraph 11, the national authority may, on its own initiative or upon request from the Commission, revoke the mandate of the national agency. Where the national authority wishes to revoke that mandate for any other justified reason, it shall notify the Commission of the revocation at least six months before the envisaged date of termination of the mandate of the national agency. In such cases, the national authority and the Commission shall formally agree on specific and timed transition measures.
13. In the event of revocation as referred to in paragraph 12, the national authority shall carry out the necessary controls regarding the Union funds entrusted to the national agency whose mandate has been revoked and shall ensure that those funds and all documents and management tools required for the management of the Programme are transferred to the new national agency in an unimpeded manner. The national authority shall provide the national agency whose mandate has been revoked with the necessary financial support to continue to meet its contractual obligations vis-à-vis the beneficiaries of the Programme and the Commission pending the transfer of those obligations to a new national agency.
14. Upon request from the Commission, the national authority shall designate the institutions or organisations, or the types of such institutions and organisations, to be considered eligible to participate in specific Programme actions in its territory.
National agency
1. The national agency shall:
(a)
have legal personality or be part of a legal entity which has legal personality, and be governed by the law of the Member State concerned;
(b)
have the adequate management capacity, staff and infrastructure to fulfil its tasks satisfactorily, ensuring efficient and effective management of the Programme and sound financial management of Union funds;
(c)
have the operational and legal means to apply the administrative, contractual and financial management rules laid down at Union level;
(d)
offer adequate financial guarantees, issued preferably by a public authority, corresponding to the level of Union funds it is called upon to manage.
2. The national agency shall be responsible for managing all stages of the project lifecycle of the actions it manages as set out in work programmes as referred to in Article 22 of this Regulation, in accordance with point (c) of the first subparagraph of Article 62(1) of the Financial Regulation.
3. The national agency shall have the requisite expertise to cover all sectors of the Programme. Where a Member State or third country associated to the Programme has more than one national agency, those national agencies shall collectively have the requisite expertise to cover all sectors of the Programme.
4. The national agency shall issue grant support to beneficiaries within the meaning of point (5) of Article 2 of the Financial Regulation by way of a grant agreement as specified by the Commission for the Programme action concerned.
5. The national agency shall report each year to its national authority and the Commission in accordance with Article 155 of the Financial Regulation. The national agency shall be in charge of implementing the observations issued by the Commission following its analysis of the yearly management declaration and of the independent audit opinion thereon.
6. The national agency shall not, without prior written authorisation from the national authority and the Commission, delegate to a third party any task related to the Programme or budget implementation conferred on it. The national agency shall retain sole responsibility for any tasks delegated to a third party.
7. Where the mandate of a national agency is revoked, that national agency shall remain legally responsible for meeting its contractual obligations vis-à-vis the beneficiaries of the Programme and the Commission pending the transfer of those obligations to a new national agency.
8. The national agency shall be in charge of managing and winding up the financial agreements relating to the 2014-2020 Programme that are still open at the beginning of the Programme.
European Commission
1. On the basis of the compliance requirements for national agencies referred to in Article 26(3), the Commission shall review the national management and control systems, in particular on the basis of the ex ante compliance assessment provided to it by the national authority, the national agency’s yearly management declaration and the opinion of the independent audit body thereon, taking due account of the yearly information provided by the national authority on its monitoring and supervision activities with regard to the Programme.
2. Within two months of receipt from the national authority of the ex ante compliance assessment referred to in Article 26(3), the Commission shall accept, conditionally accept or reject the designation of the national agency. The Commission shall not enter into a contractual relationship with the national agency until it has accepted the ex ante compliance assessment. In the event of conditional acceptance, the Commission may apply proportionate precautionary measures to its contractual relationship with the national agency.
3. Each year, the Commission shall make the following Programme funds available to the national agency:
(a)
funds for grant support in the Member State concerned for the Programme actions the management of which is entrusted to the national agency;
(b)
a financial contribution in support of the national agency’s Programme management tasks, which shall be established on the basis of the amount of Union funds for grant support entrusted to the national agency;
(c)
if relevant, additional funds for measures under point (d) of Article 7, point (d) of Article 11 and point (c) of Article 14.
4. The Commission shall set the requirements for the national agency’s work programme. The Commission shall not make Programme funds available to the national agency until the Commission has formally approved the national agency’s work programme.
5. After assessing the yearly management declaration and the opinion of the independent audit body thereon, the Commission shall address its opinion and observations thereon to the national agency and the national authority.
6. In the event that the Commission cannot accept the yearly management declaration or the independent audit opinion thereon, or in the event of unsatisfactory implementation by the national agency of the Commission’s observations, the Commission may implement any precautionary and corrective measures necessary to safeguard the Union’s financial interests in accordance with Article 131 of the Financial Regulation.
7. The Commission, in cooperation with the national agencies, shall ensure that procedures put in place to implement the Programme are consistent and simple and that information is of high quality. In that regard, regular meetings shall be organised with the network of national agencies in order to ensure consistent implementation of the Programme across all Member States and all third countries associated to the Programme.
8. The Commission shall ensure that the information technology systems necessary to implement the Programme objectives laid down in Article 3, in particular under indirect management, are developed in an appropriate and timely manner and in such a way as to provide easy access and to be user-friendly. The Programme shall support the development, operation and maintenance of such information technology systems.
Independent audit body
1. The independent audit body shall issue an audit opinion on the yearly management declaration as referred to in Article 155(1) of the Financial Regulation. It shall form the basis of the overall assurance pursuant to Article 127 of the Financial Regulation.
2. The independent audit body shall:
(a)
have the necessary professional competence to carry out public sector audits;
(b)
ensure that its audits take account of internationally accepted audit standards;
(c)
not be in a position of conflict of interest with regard to the legal entity of which the national agency forms part; in particular, the independent audit body shall be independent, in terms of its functions, of the legal entity of which the national agency forms part.
3. The independent audit body shall give the Commission and its representatives and the Court of Auditors full access to all documents and reports in support of the audit opinion that it issues on the national agency’s yearly management declaration.
Principles of the control system
1. The Commission shall take appropriate measures to ensure that, when actions financed under this Regulation are implemented, the financial interests of the Union are protected by the application of preventive measures against fraud, corruption and any other illegal activities, by effective controls and, if irregularities are detected, by the recovery of the amounts wrongly paid and, where appropriate, by effective, proportionate and dissuasive administrative and financial penalties.
2. The Commission shall be responsible for the supervisory controls with regard to the Programme actions and activities managed by the national agencies. It shall set the minimum requirements for the controls by the national agency and the independent audit body.
3. The national agency shall be responsible for the primary controls of grant beneficiaries for the actions it manages as set out in work programmes as referred to in Article 22. Those controls shall give reasonable assurance that the grants awarded are used as intended and in compliance with the applicable Union rules.
4. With regard to the Programme funds transferred to the national agencies, the Commission shall ensure proper coordination of its controls with the national authorities and the national agencies, on the basis of the single audit principle and following a risk-based analysis. This paragraph shall not apply to investigations carried out by OLAF.
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.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
