Explanatory Memorandum to COM(2000)788-2 - Statute for executive agencies to be entrusted with certain tasks in the management of Community programmes - Main contents
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| dossier | COM(2000)788-2 - Statute for executive agencies to be entrusted with certain tasks in the management of Community programmes. |
|---|---|
| source | COM(2000)788  |
| date | 13-12-2000 |
The Commission, whose task it is to implement Community policy, has been entrusted with implementing and managing an increasing number of ever more complex programmes. Performing these tasks requires a very substantial investment in human resources.
To deal with this situation, the Commission has had to rely heavily on resources outside the Institution. In the absence of suitable legal instruments, there has been a growing trend towards outsourcing to private firms (technical assistance offices).
Over the years, this form of outsourcing has given rise to many difficulties, such as the difficulty of defining the limits of outsourcing, practical management problems, a lack of visibility for the Commission and loss of executive control.
Contents
- 2. New forms of externalisation
- 3. Executive agencies
- Tasks
- Frame of reference and controls
- Budgetary and financial arrangements
- Governing bodies, staff and location
- Programmes financed from sources other than the general budget
- The role of the Commission
- 4. Choice of legal basis
- 5. Subsidiarity and Proportionality
- 6. Comments on the articles
The Commission has therefore felt the need to examine the general matter of how to organise the management of Community programmes in the context of the administrative reform it launched at the beginning of 2000.
While stressing the need to improve the conditions under which Community programmes are implemented, the Commission is insisting on the absolute priority of re-focusing on its own institutional missions. It therefore intends to set up specialised management arrangements which will be both effective and transparent.
In its Communication on externalisation of the management of Community programmes which accompanies this proposal for a regulation, the Commission sets out the advantages and limitations of externalisation and the features of the new forms of management it envisages and describes the different instruments to be used for the various tasks to be externalised.
3.1. The most innovative of the legal instruments for externalisation envisaged by the Commission is the executive agency, which is the subject of this proposal for a regulation. These are to be Community agencies which are legal entities in their own right, which will be instructed by the Commission, under the control and responsibility of the latter, to participate in the management of Community programmes adopted by the legislator.
3.2. The Commission is not proposing with this Regulation to create such agencies directly, but to lay down a detailed statute for them. Thereafter it will be able to decide to use executive agencies conforming to this statute as and when the need arises to manage specific Community programmes, provided that the act setting up such programmes provides that external technical assistance may be used.
3.3. The advantage of using Community public bodies such as the proposed executive agencies is that a major portion of the management of programmes can be delegated to them, if this is appropriate, including public service missions and budget execution.
3.4. Using a Community executive agency staffed with specialised and highly competent temporary staff should make it easier to attain the goals of the programmes concerned and in some cases to ensure that Community action has greater visibility.
3.5. The Commission is proposing that this Regulation lay down the statute of executive agencies, particularly as regards their structure, governing bodies and staff; their powers and responsibilities; operating procedures and relations with the Commission; the budget and financial arrangements; the checks to which they must be subject and their legal and financial responsibilities.
3.6. Executive agencies may be entrusted with all or part of one or more Community programmes, except for activities which require discretionary powers relating, in particular, to political choices in the implementation of programmes. Such acts will remain the exclusive responsibility of the competent Institutions.
Each executive agency will be made responsible for the day-to-day management of Community programmes, within the bounds of the objectives set by the legislator, the programming defined by the Commission and the appropriations placed at its disposal. It could therefore manage some or all of the phases in the lifetime of each individual project, from identification to checks on proper implementation. In order to be able to do this, the executive agency must be empowered to adopt individual decisions. It must also be able to adopt the budget execution acts needed to carry out individual projects as well as other related acts (awarding public procurement contracts, signing contracts and agreements, etc.).
An executive agency could also be called on to gather and process information on the implementation of the programmes concerned. This specific knowledge will allow the agency to draw up recommendations to the Commission regarding the future development of programmes. The Commission would then have to examine these recommendations and, where necessary, make the appropriate proposals to the legislative and budgetary authorities.
3.7. Of course, the exercise of these powers will have to be strictly circumscribed in order to ensure that the institutional balance of the Community's legal system is preserved and that the interests of third parties affected by an agency's decisions are protected. This control will be exercised in the first instance by the legislative authority, through the provisions laid down in this Regulation and, where applicable, in the regulations establishing the Community programmes that executive agency is involved in managing. The second line of control will be provided by the terms, criteria, parameters and procedures to be defined by the Commission in the legal act delegating management tasks to the executive agency (instrument of delegation), which will also set out the details of the controls by means of which the Commission departments responsible for a programme will be in a position to ensure the executive agency is operating properly. The third line control will be the agency's annual work programme, which will have to comply with the programming defined by the Commission in accordance with the regulations establishing the programmes concerned.
3.8. Agencies will also be subject to a further system of checks, this time of a political nature, carried out by the European Parliament when it gives discharge in respect of the operating budget, and by the Commission, which would in turn be answerable to the other Institutions; audits carried out by both the Commission's internal auditor and the Court of Auditors to ensure the correctness and proper functioning of the agency's own in-house checking systems; anti-fraud inspections by the European Anti-Fraud Office (OLAF); monitoring by the Court of Justice of the legality of the acts adopted by the agency.
3.9. The budget of each executive agency will be restricted to its operating costs. Most of its budget revenue will come from an annual grant adopted by the Budgetary Authority on a proposal from the Commission. That grant should be a specified percentage of the annual financial allocation to the programmes which the agency is involved in managing, and should be commensurate with the tasks entrusted to it. The budget would be administered in accordance with an ad hoc financial regulation based on the general Financial Regulation and drawn up by the Commission after consulting the Court of Auditors.
3.10. The operating appropriations for the programmes which the agency is involved in managing will continue to be entered in the general budget of the European Union and administered in accordance with the Financial Regulation applicable thereto. The Commission would remain fully answerable to the Budgetary Authority for the execution of these appropriations, leaving intact its full powers under Article 274 of the Treaty.
3.11. The distribution of powers between the governing bodies of each executive agency will make its director responsible for running the agency and the operational management of Community programmes.
3.12. A steering committee will adopt the annual work programme and supervise the running of the agency.
3.13. The agency's staff is to be subject to the rules and regulations applicable to 'other servants'. The managerial functions would be performed by seconded Commission officials. Since the mission of an executive agency is to participate in managing programmes with a limited duration, it is appropriate that the posts and contracts of its staff should also be temporary.
3.14. Turning to the matter of location, it should be borne in mind that the Commission and the executive agency will have to collaborate intensively and continuously if they are to ensure that Community programmes are managed efficiently. It is therefore justifiable to provide that the agency will have its head office in the same location as the Commission departments.
3.15. Management of programmes not funded from the general budget requires a separate provision. This is because there are differences between the rules governing these programmes and Community programmes proper, although there are substantial similarities in the way the two types of programme are implemented, particularly in terms of the role played by the Commission. It is therefore proposed that the Commission be allowed to use executive agencies of the kind covered by of this Regulation mutatis mutandis, and in accordance with the rules and procedures laid down in the specific legal bases applicable to programmes outside the general budget.
3.16. The executive agencies to which this proposed Regulation applies differ somewhat from the existing Community agencies.
In institutional terms, the main difference lies in the crucial role that the Commission would play in the organisation and running of an executive agency.
3.17. Thus, it would be for the Commission to decide to set up such agencies, assisted when necessary by a committee of Member States' representatives, to manage one or more Community programmes. It would also be for the Commission to adopt ad hoc acts of delegation specifying the scope of the tasks entrusted to each agency and determining the terms, criteria, parameters and procedures whereby the agency will perform these tasks.
Although executive agencies would have autonomy of management, they would be closely supervised by the Commission, which would appoint the director and the members of the steering committee, as well as sanctioning the content of the annual work programme.
3.18. The Commission's role is justified by the specific nature of the tasks to be entrusted to an executive agency.
Indeed, the sole raison d'être of such agencies is to participate in managing Community programmes, a task which is one of the Commission's exclusive prerogatives: not only does the secondary legislation establishing such programmes require the Commission to adopt the relevant implementing measures, but the implementation of these programmes is financed from appropriations for the execution of which the Commission is directly answerable to the Budgetary Authority under Article 274 of the Treaty.
3.19. Executive agencies should therefore properly be considered as an instrument assisting the Commission in discharging its management missions. This means that the decision-making process should not be further complicated. Moreover, if the Commission is to be truly answerable to the other Institutions, it must be able to maintain adequate control over the operation of each executive agency. If the Commission were to be left distant in its relationship with these agencies, as would be the case, for example, if different management and control procedures were proposed, the logic of the system covered by this proposal would not be balanced.
3.20. Nevertheless, the powers entrusted to the Commission and the tasks devolved on each executive agency under this proposal in no way encroach on the prerogatives and powers of the other Institutions.
Using an executive agency should not jeopardise the safeguards imposed by the legislator, particularly through committee procedures, on the Commission's exercise of the implementing powers delegated to it.
Implementing Community programmes falls within the scope of Articles 2 and 3 of the Treaty. However, the Treaty provides for no powers for the adoption of this Regulation other than those laid down in Article 308, which is therefore the necessary legal basis for this proposal.
In some cases, a Community programme (in its entirety or certain sections of it) has to be managed at Community level either because of its very nature or because the stated objectives could not be adequately and effectively achieved using national bodies. The act laying down the statute of the agencies has a Community dimension and must take the general and binding form of a Regulation, without thereby going beyond what is necessary to attain the objectives sought.
Article 1 defines the main object of the proposed Regulation, which is to lay down the statute of the executive agencies.
Article 2 defines two fundamental terms in the Regulation, namely executive agency and Community programme.
Article 3 provides that the power to decide on the creation and abolition of each individual executive agency should be delegated to the Commission, assisted by a regulatory committee. This provision states explicitly that each agency created must comply with the general statute laid down in the proposal. It also provides that a decision setting up an executive agency can fix its life span and requires any decision abolishing an agency to specify how it is to be dismantled.
Article 4 states that executive agencies are Community bodies with a public service mission and establishes their legal personality and legal capacity.
Article 5 recommends that each executive agency should be established in one of the places where the Commission's departments are located, to allow for the necessary intensive on-going collaboration between the agency and those departments. It also provides that an executive agency can set up branch offices in other countries in order to better perform the tasks entrusted to it.
Article 6 specifies the tasks with which an executive agency can be entrusted in managing Community programmes. Tasks entailing a scope for discretion which might involve translating political choices into action are explicitly ruled out. By contrast, an executive agency may be required to collect, analyse and transmit information to the Commission which can serve to guide implementation of the programmes concerned; to make recommendations to the Commission regarding the implementation of programmes; to manage the different phases of individual projects under a programme, which might require the Commission to delegate to it the relevant decision-making powers; and, lastly, to carry out budget implementation and related operations with a view to implementing such individual projects. This Article specifies that an instrument of delegation by the Commission is require in order to charge an agency with the relevant tasks. This instrument is to set out the terms, criteria, parameters and procedures with which the executive agency must comply when performing its tasks and must detail the controls which the relevant Commission departments are to apply to ensure that the agency operates properly.
Article 7 provides for agencies to be directed by a steering committee and a director with authority over staff.
Article 8 lays down the procedure for appointing the steering committee and specifies its term of office. It also describes how the chairperson of the board is to be chosen, how its meetings are to be called, and the voting procedure.
Article 9 lists the tasks of the steering committee, including adopting the executive agency's annual work programme, which must comply with the programming defined by the Commission, adopting the agency's operating budget, and all other decisions relating to the general organisation or supervision of the agency.
Article 10 lays down how the director is to be appointed and the term of office. It specifies that the Commission is to appoint as director an official within the meaning of the rules and regulations applicable to officials and other servants of the European Communities.
Article 11 lists the tasks of the director, including representing the executive agency; participating without voting rights in the meetings of the steering committee and preparing the committee's decisions; implementing the agency's annual work programme and carrying out the day-to-day operations delegated to the agency to manage Community programmes; preparing and implementing the agency's operating budget; dealing with all matters concerning the agency's staff.
Article 12 lays down the principles governing the executive agency's operating budget, provides for a grant from the general budget of the EU and describes the establishment plan in detail, specifying that posts are to be temporary.
Article 13 maps out the procedure for drawing up the operating budget: the director prepares the draft, which is then submitted to the Commission; once the Commission has checked that it complies with the annual programming, it includes a proposal for a grant in the preliminary draft budget; the grant is approved by the budgetary authority; the steering committee definitively approves the operating budget in the light of the level of the grant finally fixed by the budgetary authority. The amount of annual grant proposed by the Commission is to be a specified percentage of the annual financial allocation to the Community programmes which the executive agency is involved in managing.
Article 14 specifies that the director of an agency is responsible for implementing the operating budget, and is accountable for its management to both Parliament and the Commission, as well as the steering committee. Parliament will grant discharge to an agency for the execution of its budget no more than two years after the end of the budget year concerned.
Article 15 provides that the Commission, assisted by a regulatory committee and after receiving the opinion of the Court of Auditors, is to adopt the financial regulation which executive agencies are to apply to execute their operating budget. This financial regulation must be based as closely as possible on the Financial Regulation applicable to the general budget of the European Union.
Article 16 specifies that the operating appropriations of the programmes which the executive agency is involved with managing will continue to be entered in the general budget of the EU and not in the agency's operating budget, even in cases where the Commission delegates budget execution tasks to the agency. In such cases, the delegated authorising officer in the executive agency is to be its director, who must comply with the requirements of the Financial Regulation applicable to the general budget of the European Union.
Article 17 stipulates that this proposed Regulation is also to apply to the delegation of tasks to an executive agency for the purpose of managing programmes financed from sources other than the general budget of the European Union. In such cases, account must be taken of the specific regulatory framework applicable to those programmes, particularly as regards drawing up the agency's operating budget and the financial regulation applicable to the operating appropriations it is required to manage.
Article 18 deals with executive agency staff, and specifies that it is to consist of officials seconded from the Community Institutions and temporary officials recruited directly by the agency itself. The applicable law is to be the Staff Regulations and other rules applicable to officials and other servants of the European Communities, and the detailed rules are to be adopted by the steering committee in agreement with the Commission. The Protocol on the privileges and immunities of the European Communities is to apply to both agencies and their staff.
Article 19 lists the supervision to which executive agencies are subject: the checks carried out by the Commission's internal auditor, who reports to both the Commission and to the agency itself; checks by OLAF, on the basis of the inter-institutional agreement on internal investigations conducted by OLAF; and checks by the Court of Auditors under Article 248 of the Treaty.
Article 20 specifies the contractual and non-contractual liability of the Agency, stipulating that the Court of Justice is to have jurisdiction in any disputes concerning its non-contractual liability.
Article 21 extends the Court of Justice's monitoring of the legality of the acts adopted by the Commission under Article 230 of the Treaty to cover acts adopted by executive agencies which are intended to have binding legal effect.
Article 22 specifies the terms of access to the executive agencies' documents, referring by analogy to the rules to be adopted in implementation of Article 255 of the Treaty. The steering committee will draw up the necessary provisions as detailed implementing rules during the first year of operation of an agency. This Article also imposes an obligation of confidentiality on the members of the steering committee, the director, the agency's staff and all other persons participating in its activities, with regard to information subject to professional confidentiality.
Article 23 sets up the Executive Agency Committee, the regulatory committee which is to assist the Commission in adopting the measures to implement this Regulation. Reference is made to Article 5 of Decision 199/468/EC for the procedure to be followed.
Article 24 contains the traditional clause on entry into force of the Regulation, which is to be the third day after its publication.