Introductory text

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 203 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament^f1,

Whereas:

Council Regulation (EC, Euratom) No 2728/94 of 31 October 1994 establishing a Guarantee Fund for external actions^f2 has been substantially amended several times^f3. In the interests of clarity and rationality the said Regulation should be codified.

The general budget of the European Union is exposed to increased financial risk as a result of the guarantees covering loans to third countries.

The European Council on 11 and 12 December 1992 concluded that considerations of prudent budgetary management and financial discipline called for the establishment of a new financial mechanism, and that accordingly a Guarantee Fund should be set up in order to cover the risks related to loans and guarantees covering loans granted to third countries or for projects executed in third countries. This need can be met by the establishment of a Guarantee Fund which may be drawn on to pay the Communities’ creditors direct.

Pursuant to the Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management, adopted on 17 May 2006^f4, the funding of the Guarantee Fund is provided for as an obligatory expenditure from the general budget of the European Union for the period from 2007 to 2013.

Mechanisms exist for honouring guarantees when they are activated, in particular by drawing provisionally on cash resources, as provided for in Article 12 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 2000/597/EC, Euratom on the system of the Communities’ own resources^f5.

The Guarantee Fund should be constituted by the gradual payment of resources. The Fund should subsequently also receive interest on its invested resources and amounts recovered from defaulting debtors where the Fund has already honoured the guarantee.

Experience of the functioning of the Guarantee Fund indicates that a ratio of 9 % between the Fund’s resources and guaranteed liabilities in principal, increased by unpaid interest due, would be adequate.

Payments to the Guarantee Fund equal to 9 % of the amount of each operation would seem sufficient to attain the target amount. The arrangements for making such payments should be defined.

If the Guarantee Fund exceeds the target amount, the surplus should be paid back to the general budget of the European Union.

The financial management of the Guarantee Fund should be entrusted to the European Investment Bank (hereinafter referred to as the ‘EIB’). The financial management of the Fund should be subject to audit by the Court of Auditors in accordance with procedures agreed upon by the Court of Auditors, the Commission and the EIB.

The Communities have granted loans and guaranteed loans to accession countries or for projects executed in those countries. Those loans and guarantees are covered by the Guarantee Fund and will remain outstanding or in force after the date of accession. From that date, they will cease to be external actions of the Communities and should therefore be covered directly by the general budget of the European Union and no longer by the Guarantee Fund.

The Guarantee Fund covers defaults under loans issued by the EIB for which the Communities provide a guarantee under the EIB’s external mandate. In addition, in line with the EIB’s external mandate which took effect from 1 February 2007, the Fund should also cover defaults under loan guarantees issued by the EIB for which the Communities provide a guarantee.

The Treaties do not provide any powers other than those pursuant to Article 308 of the EC Treaty and Article 203 of the Euratom Treaty for the adoption of this Regulation,

HAS ADOPTED THIS REGULATION: