Section 1 — Guarantees by the Member States for the Union’s exceptional macro-financial assistance under this Decision and Decision (EU) 2022/1201
Contributions in the form of guarantees by Member States
1. Member States may complement the provisioning in respect of macro-financial assistance kept in the common provisioning fund, by providing guarantees up to a total amount of EUR 3 660 000 000 in respect of the Union’s exceptional macro-financial assistance to Ukraine under Article 1 of this Decision and under Decision (EU) 2022/1201 (the ‘covered MFAs’).
2. Where contributions from the Member States are made, they shall be provided in the form of irrevocable, unconditional and on-demand guarantees through a guarantee agreement to be concluded with the Commission, in accordance with Article 10.
3. The relative share of the contribution of the Member State concerned (contribution key) to the amount referred to in paragraph 1 shall correspond to the relative share of that Member State in the total gross national income of the Union, as resulting from heading ‘General Revenue’ of the budget for 2022, Part A (‘Financing of the Union’s annual budget, Introduction’), Table 4, column (1), set out in the general budget of the Union for the financial year 2022, as definitively adopted on 24 November 2021 ( 13 ) .
4. The guarantees shall become effective in respect of each Member State as of the date of entry into force of the guarantee agreement, referred to in Article 10, between the Commission and the Member State concerned.
Guarantee agreements
The Commission shall conclude a guarantee agreement with each Member State that provides a guarantee referred to in Article 9. That agreement shall set out the rules governing the guarantee, which shall be the same for all Member States, including, in particular, provisions:
(a)
establishing the obligation of the Member States to honour guarantee calls made by the Commission in respect of the covered MFAs, once the overall amounts of initial, or subsequently replenished, provisioning set aside in the common provisioning fund in respect of financial liability arising from the covered MFAs have been or are to be fully drawn down;
(b)
ensuring that the guarantee calls are made pro rata, applying the contribution key referred to in Article 9(3);
(c)
providing that the guarantee calls ensure the Union’s ability to repay the funds borrowed, pursuant to Article 1(2), on the capital markets or from financial institutions following a non-payment by Ukraine, including cases of changes to the payment schedule for whatsoever reason as well as expected non-payments;
(d)
ensuring that the guarantee calls may be used to replenish the common provisioning fund for provisioning where it has been drawn down in respect of the covered MFAs;
(e)
ensuring that a Member State that has failed to honour a call remains liable to honour it;
(f)
regarding the payment conditions.
Section 2 — Provisioning of the covered MFAs and of some ELM financial liabilities in Ukraine
Provisioning of the covered MFAs
1. For the covered MFAs, a provisioning rate of 70 % shall apply instead of the general rule set out in Article 31(5), third subparagraph, of Regulation (EU) 2021/947. However, the level of provisioning paid into the common provisioning fund shall be kept at, and if drawn down replenished, without prejudice to Article 10, point (a), of this Decision, to 9 % of the outstanding liability from the covered MFAs until the guarantees referred to in Article 9 are fully drawn on.
2. Amounts resulting from calls on the guarantees referred to in Article 9 shall constitute external assigned revenue for the repayment of financial liabilities from the covered MFAs and payments to the common provisioning fund in accordance with Article 21(2), point (a)(ii), of the Financial Regulation.
3. By way of derogation from Article 211(1), first subparagraph, second sentence, of the Financial Regulation, the amount of guarantees referred to in Article 9(1) shall be included into the amount of authorised financial liability. By way of derogation from Article 211(4), second subparagraph, of the Financial Regulation, the amounts of provisioning referred to in paragraph 2 of this Article shall be taken into account for calculating the provisioning resulting from the provisioning rate in respect of the covered MFAs.
4. By way of derogation from Article 211(4), point (c), of the Financial Regulation, amounts recovered from Ukraine in respect of the covered MFAs shall not contribute to the provisioning up to the amount of the guarantee calls honoured by Member States pursuant to Article 10, point (a), of this Decision. Those amounts shall be reimbursed to those Member States.
Reinforcement of provisioning in respect of some financial liabilities in Ukraine guaranteed under Decision No 466/2014/EU
1. By way of derogation from Article 31(8), third sentence, of Regulation (EU) 2021/947, the provisioning rate of 70 % shall apply to loan amounts disbursed after 15 July 2022 under European Investment Bank (EIB) financing operations in Ukraine signed by the EIB before 31 December 2021 and guaranteed by the Union in accordance with Decision No 466/2014/EU (the ‘covered ELM financial liabilities in Ukraine’), and Articles 211, 212 and 213 of the Financial Regulation shall apply, subject to Articles 13 and 14 of this Decision.
2. For the purposes of Article 211(1), second subparagraph, of the Financial Regulation, the provisioning shall reach by 31 December 2027 the level corresponding to the provisioning rate applied to the total amount of outstanding liabilities from covered ELM financial liabilities in Ukraine.
Assessment of adequacy of the provisioning rate and review procedure
1. Every six months starting on 30 June 2023, and whenever the Commission concludes that other reasons or events indicate the need to do so, the Commission shall assess whether there are new developments which could impact in a lasting and meaningful manner the adequacy of the provisioning rate, including the rate of the paid-in provisioning, referred to in Articles 11 and 12. The Commission shall in particular identify the presence of a sustained significant change in the credit risk profile of those exposures using data from a period of at least two years.
2. The Commission is empowered to adopt a delegated act in accordance with Article 16 to amend Articles 11 and 12 to adjust the provisioning rate, in particular to reflect the developments referred to in paragraph 1.
Provisioning held in the common provisioning fund
1. Instead of the general rule set out in Article 31(6) of Regulation (EU) 2021/947, the financial liability from the covered MFAs shall be covered separately from other financial liabilities under the External Action Guarantee, and the provisioning set aside in the common provisioning fund in respect of the covered MFAs shall be used solely for financial liabilities under the covered MFAs.
Instead of the general rule set out in Article 31(8) of Regulation (EU) 2021/947, the financial liability from the covered ELM financial liabilities in Ukraine shall be covered separately from other financial liabilities under the Guarantee Fund for External Action, and the provisioning set aside in the common provisioning fund in respect of the covered ELM financial liabilities in Ukraine shall be used solely for financial liabilities under the covered MFAs.
2. By way of derogation from Article 213 of the Financial Regulation, the effective provisioning rate shall not apply to the provisioning set aside in the common provisioning fund in respect of the covered MFAs and covered ELM financial liabilities in Ukraine.
3. By way of derogation from Article 213(4), point (a), of the Financial Regulation, any surplus of provisioning referred to in Article 12(2) of this Decision shall constitute external assigned revenue within the meaning of Article 21(5) of the Financial Regulation to the external assistance programme under which Ukraine is eligible.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
