Legal provisions of COM(2011)655 - Amendment of Council Regulation (EC) No 1083/2006 as regards certain provisions relating to risk sharing instruments for Member States experiencing or threatened with serious difficulties with respect to their financial stability

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dossier COM(2011)655 - Amendment of Council Regulation (EC) No 1083/2006 as regards certain provisions relating to risk sharing instruments for ...
document COM(2011)655 EN
date May 22, 2012

Contents

Article 1

Regulation (EC) No 1083/2006 is hereby amended as follows:

(1)in Article 14, paragraph 1 is replaced by the following:

‘1.   The budget of the European Union allocated to the Funds shall be implemented within the framework of shared management between the Member States and the Commission, in accordance with point (b) of Article 53 of 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), with the exception of the instrument referred to in Article 36a of this Regulation and of the technical assistance referred to in Article 45 of this Regulation.

The principle of sound financial management shall be applied in accordance with Article 48(2) of Regulation (EC, Euratom) No 1605/2002.

(2)the following article is inserted:

‘Article 36a

Risk-sharing instrument

1. For the purpose of this Article, a risk-sharing instrument means a financial instrument which guarantees the total or partial coverage of a defined risk, where appropriate in exchange for an agreed remuneration.

2. A Member State that meets one of the conditions set out in points (a), (b) and (c) of Article 77(2), may contribute a part of the overall resources distributed in accordance with Articles 19 and 20 to a risk-sharing instrument which shall be established by means of a cooperation agreement to be concluded by the Commission either with the EIB or with national or international public sector bodies or bodies governed by private law with a public service mission providing adequate guarantees as referred to in Article 54(2)(c) of Regulation (EC, Euratom) No 1605/2002, under similar terms and conditions to those applied to and by the EIB (“contracted implementing body”), to cover the provisioning and capital allocation of guarantees and loans, as well as other financial facilities, granted under the risk-sharing instrument.

3. The cooperation agreement, referred to in paragraph 2, shall contain rules in particular on: the total amount of the Union contribution and a schedule on how it will be made available; the trust account conditions to be set up by the contracted implementing body; the eligibility criteria for the use of the Union contribution; the details of the exact risk-sharing (including the leverage ratio) to be covered and the guarantees to be provided by the contracted implementing body; the pricing of the risk-sharing instrument based on the risk margin and the coverage of all the administrative costs of the risk-sharing instrument; the application and approval procedure for the project proposals covered by the risk-sharing instrument; the period of availability of the risk-sharing instrument; and the reporting requirements.

The exact risk-sharing (including the leverage ratio) to be undertaken, pursuant to the cooperation agreement, by the contracted implementing body, shall, as an average, aim at being at least 1,5 times the amount of the Union contribution to the risk-sharing instrument.

Payments to the risk-sharing instrument shall be made in tranches, in accordance with the scheduled use of the risk-sharing instrument in providing loans and guarantees financing specific operations.

4. By way of derogation from Article 54(5), the risk-sharing instrument shall be used to finance operations co-financed by the ERDF or the Cohesion Fund, regarding investment costs which cannot be financed, as eligible expenditure pursuant to Article 55, or pursuant to the Union rules on State aids.

It may also be used to finance operations which contribute to the achievement of the objectives of the national strategic reference framework of the requesting Member State and the Community strategic guidelines on cohesion under Council Decision 2006/702/EC (13), and which bring the greatest added value to the Union strategy for smart, sustainable and inclusive growth.

5. The risk-sharing instrument shall be implemented by the Commission within the framework of indirect centralised management in accordance with Articles 54 and 56 of Regulation (EC, Euratom) No 1605/2002.

6. A Member State seeking to benefit from a risk-sharing instrument shall submit a written request to the Commission by 31 August 2013. In its request, the Member State shall provide all the information necessary to establish:

(a)that it meets one of the conditions referred to in points (a), (b) and (c) of Article 77(2), by providing a reference to a Council decision or other legal act proving its eligibility;

(b)the list of programmes (including project proposals and related funding needs) co-financed either by the ERDF or by the Cohesion Fund, and the part of the 2012 and 2013 allocations to such programmes that it wants to take out of those programmes in order to reallocate those amounts to the risk-sharing instrument;

(c)the list of proposed projects pursuant to the second subparagraph of paragraph 4, and the part of the 2012 and 2013 allocations that it wants to take out of the programmes in order to reallocate those amounts to the risk-sharing instrument;

(d)the amount available for its exclusive benefit within its cohesion policy financial allocation pursuant to Article 18(2), and an indication of the amount which may be earmarked for the objectives of the risk-sharing instrument exclusively from the Union budget commitments to be effected in the years 2012 and 2013, pursuant to Article 75(1).

7. After verifying that the Member State request is correct and justified, the Commission shall adopt a decision, within four months of the Member State request, by means of an implementing act, specifying the system established to guarantee that the amount available is used for the exclusive benefit of the Member State which provided it within its cohesion policy financial allocation pursuant to Article 18(2), as well as setting out the terms and conditions of the participation of the requesting Member State in the risk-sharing instrument. The terms and conditions shall in particular cover the following:

(a)traceability and accounting, information on the use of the funds, payment conditions and monitoring and control systems;

(b)structure of the fees and other administrative and management costs;

(c)indicative list of eligible projects for financing; and

(d)the maximum amount of the Union contribution that can be allocated to the risk-sharing instrument from the Member State allocations available, and the instalments for practical implementation.

The Commission decision shall be published in the Official Journal of the European Union.

When deciding on the Member State request, the Commission shall ensure that only projects for which a favourable financing decision is taken either by the EIB or by a national or international public-sector body or body governed by private law with a public-service mission, shall be accepted as eligible for financing through an established risk-sharing instrument.

8. The Commission decision referred to in paragraph 7 shall be preceded by the revision of the operational programmes under the ERDF and the Cohesion Fund in accordance with Article 33(2).

9. The financial allocations to the risk-sharing instrument shall be strictly capped and shall not exceed 10 % of the indicative total allocation for the requesting Member State for the years 2007-13 regarding the ERDF and the Cohesion Fund, which was approved in accordance with Article 28(3)(b). The financial allocations available to the projects in the second subparagraph of paragraph 4 of this Article are limited to the amounts left after financing the operations mentioned in the first subparagraph of paragraph 4 of this Article. Apart from the total Union contribution to the risk-sharing instrument endorsed in the decision referred to in paragraph 7 of this Article, the Union participation in a risk-sharing instrument shall not create any additional contingent liabilities either for the general budget of the European Union or for the Member State concerned.

10. Any reflow or amount left over after the completion of an operation covered by the risk-sharing instrument may be reused, at the request of the Member State concerned, within the risk-sharing instrument, provided that the Member State still meets one of the conditions set out in points (a), (b) and (c) of Article 77(2). If the Member State no longer meets any of those conditions, the reflow or the amount left-over shall be considered as assigned revenue within the meaning of Article 18 of Regulation (EC, Euratom) No 1605/2002. At the request of the Member State concerned, additional commitment appropriations generated by this assigned revenue shall be added the following year to the cohesion policy financial allocation of that Member State.

Article 2

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

This Regulation shall be binding in its entirety and directly applicable in all Member States.