Regulation (EU) No 223/2014 of the European Parliament and of the Council of 11 March 2014 on the Fund for European Aid to the Most Deprived

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 175(3) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee^f1,

Having regard to the opinion of the Committee of the Regions^f2,

Acting in accordance with the ordinary legislative procedure^f3,

Whereas:

In line with the conclusions of the European Council of 17 June 2010, whereby the Union strategy for smart, sustainable and inclusive growth ('Europe 2020 strategy') was adopted, the Union and the Member States have set themselves the objective of having at least 20 million fewer people at risk of poverty and social exclusion by 2020. Nonetheless, in 2011, nearly one quarter of people living in the Union (119,82 million) were at risk of poverty or social exclusion, approximately 4 million people more than in the previous year. However, poverty and social exclusion are not uniform across the Union and their gravity varies between the Member States.

The number of persons suffering from material, or even severe material, deprivation in the Union is increasing and in 2011 nearly 8,8 % of Union citizens lived in conditions of severe material deprivation. In addition, those persons are often too excluded to benefit from the activation measures of Regulation (EU) No 1303/2013 of the European Parliament and of the Council^f4, and, in particular of Regulation (EU) No 1304/2013 of the European Parliament and of the Council^f5.

Member States and the Commission should take appropriate steps to prevent any discrimination and should ensure equality between men and women and the coherent integration of the gender perspective at all stages of the preparation, the programming, management and implementation, the monitoring and the evaluation of the a Fund for European Aid to the Most Deprived (the 'Fund'), as well as in information and awareness raising campaigns and the exchange of best practices.

Article 2 of the Treaty on European Union (TEU) emphasises that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

Article 6 TEU emphasises that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union.

Article 174 of the Treaty on the Functioning of the European Union (TFEU) provides that in order to promote its overall harmonious development, the Union is to develop and pursue actions leading to the strengthening of its economic, social and territorial cohesion.

The Fund should strengthen social cohesion by contributing to the reduction of poverty, and ultimately the eradication of the worst forms of poverty, in the Union by supporting national schemes that provide non-financial assistance to alleviate food and severe material deprivation and/or contribute to the social inclusion of the most deprived persons. The Fund should alleviate the forms of extreme poverty with the greatest social exclusion impact, such as homelessness, child poverty and food deprivation.

The Fund is not meant to replace public policies undertaken by the Member States to fight poverty and social exclusion, in particular policies which are necessary to prevent the marginalisation of vulnerable and low-income groups and to avert the increased risk of poverty and social exclusion.

Under Article 317 TFEU, and in the context of shared management, the conditions allowing the Commission to exercise its responsibilities for implementation of the general budget of the Union should be specified and the responsibilities in terms of cooperation by the Member States clarified. Those conditions should enable the Commission to obtain assurance that Member States are using the Fund in a legal and regular manner and in accordance with the principle of sound financial management within the meaning of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council^f6 ('the Financial Regulation').

Those provisions also ensure that the operations supported shall comply with applicable Union and related national law which directly or indirectly implements this Regulation, as well as policies, in particular as regards the safety of food and/or basic material assistance distributed to the most deprived persons.

The allocation of the appropriations of the Fund between the Member States for the 2014-2020 period takes into account in equal measure the following indicators assessed on the basis of data from Eurostat on the population suffering from severe material deprivation and the population living in households with very low work intensity. Furthermore, the allocation also takes into account the different ways of assisting the most deprived persons in the Member States. However, each Member State should be allocated the minimum amount of 3 500 000 EUR for the 2014-2020 programming period in order to set an operational programme with a meaningful level of resources.

The Member State's allocation for the Fund should be deducted from the Member State Structural Funds allocation.

The operational programmes of Member States should identify and justify the forms of food and/or material deprivation to be addressed and/or social inclusion activities to be supported, and should describe features of the assistance to the most deprived persons that will be provided through the Fund's support for national schemes. It should also include elements necessary to ensure the effective and efficient implementation of the operational programmes.

Severe food deprivation in the Union coincides with significant food wastage. In this respect, the Fund should facilitate food donations, where appropriate. However, this is without prejudging the need to remove existing obstacles in order to encourage donations of excess food for the purposes of combating food deprivation.

With a view to ensuring the effective and efficient implementation of the measures financed from the Fund, Member States should, where appropriate, promote cooperation between regional and local authorities and bodies representing civil society and the participation by all those involved in drawing up and implementing activities financed from the Fund.

In order to maximise the effectiveness of the Fund, in particular as regards possible changes in the national circumstances, it is appropriate to establish a procedure to amend an operational programme.

The partnership principle should apply in order to respond in the most effective and adequate manner to the various needs and to better reach out to the most deprived persons.

Exchanges of experience and best practices have a significant added value because they facilitate mutual learning. The Commission should facilitate and promote their dissemination, while seeking synergies with the exchange of best practices in the context of related Funds, in particular the European Social Fund (ESF).

In order to monitor the progress of implementation of operational programmes, Member States should draw up and provide to the Commission annual and final implementation reports. This should ensure the availability of essential and up-to-date information for those operational programmes. For the same purposes, the Commission and each Member State should meet every year to carry out a review, unless they agree otherwise. Relevant stakeholders should be involved in the monitoring in an appropriate way.

In order to improve the quality and design of each operational programme and evaluate the effectiveness and efficiency of the Fund, ex ante and ex post evaluations should be carried out. Those evaluations should be based upon relevant data and supplemented, where relevant, by surveys on the most deprived persons who have benefited from the operational programme and, if necessary, by evaluations during the programming period. Those evaluations should also respect the privacy of end recipients and be carried out in such a way as not to stigmatise the most deprived persons. The responsibilities of Member States and the Commission in this respect should be specified.

In evaluating the Fund and in developing the evaluation methodology it should be borne in mind that deprivation is a complex concept of a multi-dimensional nature.

Citizens have the right to know how the Union's financial resources are invested and to what effect. For the purpose of ensuring wide dissemination of information about the achievements of the Fund and to ensure accessibility and transparency of funding opportunities, detailed rules about information and communication, especially in relation to the responsibilities of the beneficiaries, the Member States and, where relevant, local and regional authorities should be established.

Union law concerning the protection of individuals with regard to the processing of personal data and on the free movement of such data, in particular Directive 95/46/EC of the European Parliament and of the Council^f7 is applicable.

It is necessary to establish a maximum level of co-financing from the Fund to the operational programmes to provide for a multiplier effect of Union resources. In addition the situation of Member States facing temporary budget difficulties should be addressed.

Uniform, simple and equitable rules on the eligibility period, operations and expenditures for the Fund should be applied across the Union. The conditions of eligibility should reflect the specific nature of the Fund's objectives and target populations, in particular through adequate and simplified conditions of eligibility of the operations as well as forms of support and rules and conditions of reimbursement.

Taking into account the date by which invitations to tender have to be issued, the time limits for adoption of this Regulation and the time needed for the preparation of operational programmes, rules should be put in place to permit a smooth transition so that there is no interruption in the supply of food aid. To this end, it is appropriate to allow eligibility of expenditure from 1 December 2013.

Regulation (EU) No 1308/2013 of the European Parliament and of the Council^f8 provides that products bought under public intervention may be disposed of by making them available for the scheme for food distribution to the most deprived in the Union if that scheme so provides. Given that, depending on the circumstances, obtaining food from the use, processing or sale of those products is the most economically favourable option, it is appropriate to provide for such a possibility in this Regulation. The amounts derived from a transaction concerning such products should be used for the benefit of the most deprived persons. Those amounts should not be applied so as to diminish the obligation of the Member States to co-finance the programme. To ensure the most efficient possible use of those products and their proceeds, the Commission should adopt implementing acts in accordance with Regulation (EU) No 1308/2013 establishing procedures by which those products may be used, processed or sold for the purposes of the most deprived persons programme.

It is necessary to specify the types of actions that can be undertaken at the initiative of the Commission and of the Member States as technical assistance supported by the Fund. The Commission should consult the Member States and representatives of partner organisations at Union level for this purpose.

In accordance with the principle of shared management, Member States and the Commission should be responsible for the management and control of programmes. Member States should have the primary responsibility, through their management and control system, for the implementation and control of their operational programme.

Member States should adopt adequate measures to guarantee the proper set up and functioning of their management and control systems to give assurance on the legal and regular use of the Fund. The obligations of Member States as regards the management and control systems of their operational programmes, and in relation to the prevention, detection and correction of irregularities and breaches of Union law should therefore be specified.

Member States should fulfil the management, control and audit obligations and assume the responsibilities as laid down in the rules on shared management set out in this Regulation and in the Financial Regulation. Member States should ensure that, in accordance with the conditions set out in this Regulation, effective arrangements for the examination of complaints in relation to the Fund are in place. In accordance with the principle of subsidiarity, Member States should, upon request of the Commission, examine complaints submitted to the Commission falling within the scope of their arrangements and should inform the Commission of the results of examinations upon request.

Member States should designate a managing authority, a certifying authority and a functionally independent auditing authority for each operational programme. To provide flexibility for Member States in setting up control systems, it is appropriate to provide for the option for the functions of the certifying authority to be carried out by the managing authority. Member States should also be allowed to designate intermediate bodies to carry out certain tasks of the managing authority or the certifying authority. Member States should in that case lay down clearly their respective responsibilities and functions.

The managing authority bears the main responsibility for the effective and efficient implementation of the Fund and thus fulfils a substantial number of functions related to operational programme management and monitoring, financial management and controls as well as project selection. Accordingly, the managing authority's responsibilities and functions should be set out in this Regulation.

The certifying authority should draw up and submit to the Commission payment applications. It should draw up the accounts, certifying their completeness, accuracy and veracity and that the expenditure entered in the accounts complies with applicable Union and national rules. The certifying authority's responsibilities and functions should be set out in this Regulation.

The audit authority should ensure that audits are carried out on the management and control systems, on an appropriate sample of operations and on the accounts. The audit authority's responsibilities and functions should be set out in this Regulation. Audits of declared expenditure should be carried out on a representative sample of operations in order to enable the results to be extrapolated. As a general rule, a statistical sampling method should be used in order to provide a reliable representative sample. Nevertheless, audit authorities should be able to use in duly justified circumstances a non-statistical sampling method or substantive testing, provided that the conditions laid down in this Regulation are complied with.

In order to take account of the specific organisation of the management and control systems for the Fund and the need to ensure a proportionate approach, specific provisions should be laid down in relation to the designation of the managing authority and the certifying authority. In order to avoid an unnecessary administrative burden, the ex ante verification of compliance with the designation criteria indicated in this Regulation should be limited to the managing and certifying authority. There should be no requirement to approve the designation by the Commission. The monitoring of compliance with the designation criteria carried out on the basis of audit and control arrangements should, where results show non-compliance with the criteria, give rise to remedial actions, and possibly to the ending of the designation.

Without prejudice to the Commission's powers as regards financial control, cooperation between the Member States and the Commission in the framework of this Regulation should be ensured and criteria should be established which allow the Commission to determine, in the context of its strategy of control of national systems, the level of assurance it should obtain from national audit bodies.

The powers and responsibilities of the Commission with regard to verifying the effective functioning of the management and control systems, and to require Member State action, should be laid down. The Commission should also have the power to carry out on-the-spot audits focused on issues relating to sound financial management in order to draw conclusions on the performance of the Fund.

Budget commitments of the Union should be effected annually. In order to ensure effective programme management, it is necessary to lay down simple rules for pre-financing, interim requests for payment and the final balance.

With a view to ensuring reasonable assurance for the Commission prior to the acceptance of accounts, applications for interim payment should be reimbursed at a rate of 90 % of the amount resulting from applying the co-financing rate laid down in the decision adopting the operational programme, to the eligible expenditure. The outstanding amounts due should be paid to the Member States upon acceptance of accounts, provided that the Commission is able to conclude that the accounts are complete, accurate and true.

A pre-financing payment at the start of the operational programme should ensure that the Member State has the means to provide support to the beneficiaries in the implementation of the operations starting from the adoption of the operational programme. This pre-financing should be used exclusively for this purpose and so that beneficiaries should receive enough funding to start up an operation upon its selection.

Beneficiaries should receive the support in full no later than 90 days from the date of submission of the payment claim by the beneficiary, subject to the availability of funding from pre-financing and interim payments. The managing authority should be able to interrupt the deadline where supporting documents are incomplete or there is evidence of irregularity requiring further investigation.

In order to safeguard the Union's financial interests, measures should be provided for that are limited in time that allow the authorising officer by delegation to interrupt payments where there is clear evidence to suggest a significant deficiency in the functioning of the management and control system, evidence of irregularities linked to a request for payment, or a failure to submit documents for the purpose of the examination and acceptance of accounts. The duration of the interruption period should be for a period of up to six months, with a possible extension of that period up to nine months with the agreement of the Member State, to allow sufficient time to resolve the causes of the interruption thereby avoiding the application of suspensions.

In order to safeguard the Union's financial interests and provide the means to ensure effective programme implementation, provisions should be laid down allowing for the suspension by the Commission of payments.

In order to apply the requirements of the Financial Regulation to the financial management of the Fund, it is necessary to set out simple procedures for the preparation, examination and acceptance of accounts which should ensure a clear basis and legal certainty for these arrangements. In addition, in order to allow a Member State properly to fulfil its responsibilities, it should be possible for the Member State to exclude amounts which are the subject of an ongoing assessment of legality and regularity.

To reduce the risk of irregular expenditure being declared, it should be possible for a certifying authority, without any need for additional justification, to include the amounts which require further verification in an interim payment application after the accounting year in which they were entered into its accounting system.

In order to reduce the administrative burden on beneficiaries, specific time limits should be set out during which the managing authorities are obliged to ensure the availability of documents for operations following submission of expenditure or completion of an operation. In accordance with the principle of proportionality, the period for keeping the documents should be differentiated depending on the total eligible expenditure of an operation.

As accounts are verified and accepted every year, the closure procedure should be simple. The final closure of the programme should therefore be based only on the documents relating to the final accounting year and the final implementation report or the last annual implementation report, without any need to provide any additional documents.

In order to safeguard the budget of the Union, it is possible that it would be necessary for the Commission to make financial corrections. To ensure legal certainty for the Member States, it is important to define the circumstances under which breaches of the applicable Union law or national law related to its application can lead to financial corrections by the Commission. In order to ensure that any financial corrections which the Commission imposes on Member States are related to the protection of the Union's financial interests, such corrections should be confined to cases where the breach of applicable Union law or national law related to applying relevant Union law concerns the eligibility, regularity, management or control of operations and the corresponding expenditure declared to the Commission. To ensure proportionality it is important that the Commission considers the nature and the gravity of the breach and the related financial implications for the budget of the Union when deciding on a financial correction.

It is necessary to establish a legal framework which provides robust management and control systems and an appropriate division of roles and responsibilities in the context of shared management. The role of the Commission should therefore be specified and clarified and proportionate rules set out for the application of financial corrections by the Commission.

The frequency of audits on operations should be proportionate to the extent of the Union's support from the Fund. In particular, the number of audits carried out should be reduced where the total eligible expenditure for an operation does not exceed EUR 150 000. Nevertheless, it should be possible to carry out audits at any time where there is evidence of an irregularity or fraud, or following closure of a completed operation, as part of an audit sample. The Commission should be able to review the audit trail of the audit authority or take part in on-the-spot audits of the audit authority. Where the Commission does not obtain the necessary assurance as to the effective functioning of the audit authority by those means, the Commission should be able to carry out a re-performance of the audit activity where this is in accordance with internationally accepted audit standards. In order that the level of auditing by the Commission is proportionate to the risk, the Commission should be able to reduce its audit work in relation to operational programmes where there are no significant deficiencies or where the audit authority can be relied on. In order to reduce the administrative burden on beneficiaries, specific rules should be introduced to reduce the risk of overlap between audits of the same operations by various institutions, namely the European Court of Auditors, the Commission and the audit authority. In addition, the scope of audits should take fully into account the objective and the features of the target populations of the Fund, as well as the voluntary character of many beneficiaries.

In order to ensure financial discipline, it is appropriate to define the arrangements for de-commitment of any part of the budget commitment in an operational programme, in particular where an amount may be excluded from de-commitment, in particular where delays in implementation result from circumstances which are independent of the party concerned, abnormal or unforeseeable and whose consequences cannot be avoided despite the diligence shown, as well as in a situation in which a request for payment has been made but for which the payment deadline has been interrupted or the payment suspended.

In order to supplement and amend certain non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the content of the annual and final implementation reports, including the list of common indicators, the criteria for determining the cases of irregularity to be reported, the data to be provided and the recovery of sums unduly paid, the rules specifying the information in relation to the data to be recorded and stored in computerised form within the monitoring systems established by managing authorities, the minimum requirements for audit trails, the scope and content of national audits and methodology for sampling, the detailed rules on the use of data collected during audits, and the criteria for determining serious deficiencies in the effective functioning of management and control systems, for establishing the level of financial correction to be applied and for applying flat-rates or extrapolated financial corrections. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level.

The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards decisions on annual plans of actions to be financed from technical assistance at the initiative of the Commission, adopting and amending operational programmes, decisions suspending interim payments, decisions on the non-acceptance of the accounts and the amount chargeable, if the accounts were not accepted, decisions on financial corrections decisions setting out the annual breakdown of the commitment appropriations to the Member States, and, in the case of decommitment, decisions to amend decisions adopting programmes.

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards the template for the structured survey on end recipients, the frequency of reporting of irregularities and the reporting format to be used, the terms and conditions for the electronic data exchange system for management and control, the technical specifications of recording and data-storing in relation to the management and control system, the model for the management declaration, the models for the audit strategy, audit opinion and control report, the model for the report and opinion of the independent audit body and description of the functions and procedures in place for the management authority and, where appropriate, the certifying authority, the model for payment applications, and the model for accounts. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council^f9.

For certain implementing acts to be adopted in accordance with the examination procedure laid down in Article 5 of Regulation (EU) No 182/2011 the potential impact and implications are of such a high significance to Member States that an exception from the general rule is justified. Accordingly, where no opinion is delivered by the committee, the Commission should not adopt the draft implementing act. Those implementing acts relate to laying down technical specifications of recording and data storing in relation to the management and control system. The third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 should therefore apply to those implementing acts.

This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including respect for human dignity and for private and family life, the right to the protection of personal data, the rights of the child, the rights of the elderly, equality between men and women, and the prohibition of discrimination. This Regulation should be applied according to those rights and principles.

Since the objectives of this Regulation, namely to improve social cohesion in the Union and contribute to the fight against poverty and social exclusion, cannot be sufficiently achieved by Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve those objectives.

It should be ensured that the Fund complements actions that are funded under the ESF as social inclusion activities, while exclusively supporting the most deprived persons.

In order to allow for the prompt adoption of the delegated acts provided for in this Regulation, this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

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