30.3.2016 EN Official Journal of the European Union L 79/34 DECISION (EU) 2016/456 OF THE EUROPEAN CENTRAL BANK of 4 March 2016 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities affecting the financial interests of the Union (ECB/2016/3) (recast) THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK, Having regard to the Treaty on the Functioning of the European Union, Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular Article 12.3 thereof, Having regard to Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and the Council and Council Regulation (Euratom) No 1074/1999 (1), and in particular Article 4(1) and (7) thereof, Whereas: (1) Regulation (EU, Euratom) No 883/2013 provides that the European Anti-Fraud Office (hereinafter the ‘Office’) is to initiate and conduct administrative fraud investigations (hereinafter ‘internal investigations’) within the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties for the purpose of fighting fraud, corruption and any other illegal activities affecting the financial interests of the Union. To that end, it investigates serious matters relating to the discharge of professional duties constituting a dereliction of the obligations of officials and other servants of the Union liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies, heads of offices and agencies or staff members of institutions, bodies, offices or agencies not subject to the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union (hereinafter the ‘Staff Regulations’). (2) For the European Central Bank (ECB) such professional duties and obligations, in particular the obligations relating to professional conduct and professional secrecy, are laid down in (a) the Conditions of Employment for Staff of the European Central Bank, (b) the European Central Bank Staff Rules, (c) Annex IIb to the Conditions of Employment concerning the Conditions of Short-Term Employment, and (d) the European Central Bank Rules for Short-Term Employment, and further guidance is given in (e) the Code of Conduct for the members of the Governing Council (2), (f) the Supplementary Code of Ethics Criteria for the members of the Executive Board of the European Central Bank (3), and (g) the Code of Conduct for the members of the Supervisory Board of the European Central Bank (4) (together referred to hereinafter as the ‘ECB conditions of employment’). (3) Article 4(1) of Regulation (EU, Euratom) No 883/2013 provides that in relation to protecting the Union's financial interests and fighting fraud and any other illegal activities affecting the financial interests of the Union, the Office ‘shall carry out administrative investigations within the institutions, bodies, offices and agencies’ in accordance with the conditions set out in Regulation (EU, Euratom) No 883/2013 and in the decisions adopted by each institution, body, office or agency. Article 4(7) of Regulation (EU, Euratom) No 883/2013 provides that each institution, body, office and agency is to adopt a decision which ‘shall include, in particular, a rule concerning a duty on the part of officials, other servants, members of institutions or bodies, heads of offices or agencies, or staff members to cooperate with and supply information to the Office, while ensuring the confidentiality of the internal investigation’. In accordance with Union case-law, the Office may open an investigation only on the basis of sufficiently serious suspicions (5). (4) Pursuant to Recital 12 of Regulation (EU, Euratom) No 883/2013, investigations should be conducted in accordance with the Treaties, in particular Protocol No 7 on the privileges and immunities of the European Union, and should also respect the Staff Regulations, human rights and fundamental freedoms, in particular the principle of fairness, the right of persons involved to express their views on the facts concerning them and the principle that the conclusions of an investigation may be based solely on elements which have evidential value, as well as general principles common to the Member States and recognised by the Court of Justice of the European Union, such as, for instance, the confidentiality of legal advice (legal privilege). To that end, the institutions, bodies, offices and agencies should lay down the terms and conditions under which internal investigations are to be conducted. (5) Decision ECB/2004/11 (6) was adopted to lay down the terms and conditions under which internal investigations under Regulation (EC) No 1073/1999 of the European Parliament and of the Council (7) were to be conducted in the ECB. In order to take into account that Regulation (EC) No 1073/1999 has been repealed and replaced by Regulation (EU, Euratom) No 883/2013 and that new ECB bodies have been established since the adoption of Decision ECB/2004/11, there is a need to revise the current legal framework. (6) Council Regulation (EU) No 1024/2013 (8) established the Supervisory Board as an ECB internal body to plan and execute the specific tasks concerning policies relating to the prudential supervision of credit institutions conferred upon the ECB. On the basis of Article 24(1) and Article 25(5) of Regulation (EU) No 1024/2013, the ECB established an Administrative Board of Review (9) and a Mediation Panel (10). Furthermore, on the basis of Articles 3(1) and 143(1) of Regulation (EU) No 468/2014 of the European Central Bank (ECB/2014/17) (11), the ECB established joint supervisory teams for the supervision of each significant supervised entity or significant supervised group and on-site inspection teams. Subsequently, on the basis of Articles 9a and 9b of the Rules of Procedure of the European Central Bank (12) respectively, the ECB established an Ethics Committee (13) and an Audit Committee. (7) This Decision should apply to the members of joint supervisory teams and on-site inspection teams who are not subject to the ECB conditions of employment. Members of staff of national competent authorities who are members of joint supervisory teams and on-site inspection teams fall within the ECB's sphere of control in matters related to their work on tasks conferred upon the ECB under Regulation (EU) No 1024/2013. Article 6(1) of Regulation (EU) No 1024/2013 provides that the ECB is responsible for the effective and consistent functioning of the Single Supervisory Mechanism (SSM). Articles 6(1) and 146(1) of Regulation (EU) No 468/2014 (ECB/2014/17) provide that the members of joint supervisory teams and on-site inspection teams are subject to the instructions of the respective team coordinator. These provisions are based on Article 6(7) of Regulation (EU) No 1024/2013, which requires the ECB to adopt a framework to organise the practical arrangements for the implementation of the cooperation within the SSM. (8) In adopting this Decision, it is incumbent on the ECB to justify any restrictions on internal investigations affecting the specific tasks and duties entrusted to the ECB by Articles 127 and 128 of the Treaty and by Regulation (EU) No 1024/2013. Such restrictions should ensure the confidentiality necessary for certain ECB information and give effect to the legislator's intention of reinforcing the fight against fraud. Other than for these specific tasks and duties, the ECB should be treated, also for the purposes of this Decision, as a public entity similar to other Union institutions and bodies. (9) In exceptional cases, the circulation outside the ECB of some of the confidential information it holds in order to perform its tasks could seriously undermine the ECB's functioning. In such cases, the decision on granting the Office access to information or transmitting information to it should be taken by the Executive Board. Access should be granted to information that is more than one year old in areas such as monetary policy decisions, or operations related to the management of foreign reserves and interventions on foreign exchange markets. Restrictions in other areas, such as in relation to information concerning the tasks conferred upon the ECB by Regulation (EU) No 1024/2013, data received by the ECB from national competent authorities regarding the stability of the financial system or individual credit institutions, and information regarding the security features and technical specifications of current and future euro banknotes, should not be limited to specific periods of time. Although this Decision should limit to certain specific areas of activity the scope of information whose circulation outside the ECB could seriously undermine the ECB's functioning, it is necessary to provide for the possibility of adapting the Decision to cover unforeseen developments to ensure that the ECB continues to fulfil the tasks assigned to it by the Treaty. (10) This Decision should take into account that the members of the ECB's Governing Council and General Council who are not also members of the ECB's Executive Board exercise national functions in addition to their functions within the European System of Central Banks, and that the members of the ECB's Supervisory Board, Mediation Panel, joint supervisory teams and on-site inspection teams who are representatives of the national competent authorities of the participating Member States also exercise national functions in addition to their tasks under Regulation (EU) No 1024/2013. Exercising such national functions is a matter for national law, which falls outside the scope of the internal investigations of the Office. This Decision should therefore only apply to the professional activities of such persons undertaken in their capacity as members of the ECB's Governing Council, General Council, Supervisory Board, Mediation Panel, joint supervisory teams and on-site inspection teams. (11) This Decision should also take into account that the external members of the ECB's Administrative Board of Review, Audit Committee and Ethics Committee may exercise other functions in addition to their mandates. Exercising such functions falls outside the scope of the internal investigations of the Office. This Decision should therefore only apply to the professional activities of such persons undertaken in their capacity as members of the ECB's Administrative Board of Review, Audit Committee and Ethics Committee. (12) Article 37.1 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) provides that members of the governing bodies and the staff of the ECB are required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy. Article 27(1) of Regulation (EU) No 1024/2013 provides that members of the Supervisory Board, staff of the ECB and staff seconded by participating Member States carrying out supervisory duties, even after their duties have ceased, are subject to the same professional secrecy requirements. Article 22(1) of Decision ECB/2014/16 and Article 2(4) of Decision (EU) 2015/433 (ECB/2014/59) respectively provide the same for members of the ECB's Administrative Board of Review and their alternates and for members of the ECB's Ethics Committee. Paragraph 6 of the Audit Committee mandate (14) provides that the members of the Audit Committee shall not divulge any information of a confidential nature coming to their knowledge during the performance of their duties to persons or bodies outside the ECB/Eurosystem. Under Article 10 of Regulation (EU, Euratom) No 883/2013, the Office and its employees are subject to the same conditions of confidentiality and professional secrecy as those applying to ECB staff under the Statute of the ESCB and the ECB conditions of employment. (13) Under Article 7(3) of Regulation (EU, Euratom) No 883/2013, the national competent authorities, in conformity with national rules, give the necessary assistance to enable the staff of the Office to fulfil their tasks effectively. The Government of the Federal Republic of Germany and the ECB are signatories to a Headquarters Agreement dated 18 September 1998 (15), which implements Protocol No 7 on the privileges and immunities of the European Union in respect of the ECB and contains provisions regarding the inviolability of the ECB's premises, archives, and communications, and on the diplomatic privileges and immunities of the members of the ECB's Executive Board. (14) Given the replacement of Regulation (EC) No 1073/1999 by Regulation (EU, Euratom) No 883/2013 and the substantial number of amendments necessary, Decision ECB/2004/11 should be repealed and replaced by this Decision, HAS ADOPTED THIS DECISION: Article 1 Scope of application This Decision applies to: — members of the ECB's Governing and General Councils, in matters related to their function as members of these ECB decision-making bodies, — members of the ECB's Executive Board, — members of the ECB's Supervisory Board, in matters related to their function as members of that body, — members of the ECB's Administrative Board of Review, in matters related to their function as members of that body, — members of the ECB's Mediation Panel, in matters related to their function as members of that body, — members of the ECB's Audit Committee, in matters related to their function as members of that body, — members of the ECB's Ethics Committee, in matters related to their function as members of that body, — members of the governing bodies or any member of staff of the national central banks or national competent authorities, who participate in the meetings of the ECB's Governing and General Councils and Supervisory Board as alternates and/or accompanying persons in matters related to that function (hereinafter jointly referred to as ‘participants in the decision-making and other bodies’), and — permanent or temporary ECB members of staff, who are subject to the ECB conditions of employment, — persons working for the ECB other than on the basis of an employment contract, including members of staff of national competent authorities who are members of joint supervisory teams and on-site inspection teams, in matters related to their work for the ECB (hereinafter jointly referred to as ‘relevant persons’). Article 2 Duty to cooperate with the Office Without prejudice to the relevant provisions of the Treaties, Protocol No 7 on the privileges and immunities of the European Union, the Statute of the ESCB and the Staff Regulations, with full respect for human rights, fundamental freedoms and the general principles common to the Member States and subject to the procedures laid down in Regulation (EU, Euratom) No 883/2013 and to the rules laid down in this Decision, participants in the decision-making and other bodies and relevant persons shall cooperate with and supply information to the Office, while ensuring the confidentiality of an internal investigation. Article 3 Duty to report any information about illegal activity 1. Relevant persons who become aware of information which gives rise to a suspicion of the existence of possible cases of fraud, corruption or any other illegal activity affecting the Union's financial interests shall without delay provide either the Director Internal Audit, the senior manager in charge of their business area, or the member of the Executive Board who is primarily responsible for their business area with such information. The latter persons shall without delay transmit the information to the Director-General Secretariat. Relevant persons must in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in this Article. 2. Participants in the decision-making and other bodies who become aware of information as referred to in paragraph 1 shall inform the Director-General Secretariat or the President. 3. When the Director-General Secretariat or, where appropriate, the President receives information in accordance with paragraphs 1 or 2, they shall, subject to Article 4 of this Decision, transmit it without delay to the Office and inform the Directorate Internal Audit and, where appropriate, the President. 4. In cases in which a participant in the decision-making and other bodies or a relevant person has concrete information supporting the possible existence of a case of fraud or corruption or any other illegal activity within the meaning of paragraph 1, and, at the same time, has justified reasons to consider that the procedure provided for in the above paragraphs would prevent in that specific case the proper reporting of such information to the Office, they may report directly to the Office without being subject to Article 4. Article 4 Cooperation with the Office with regard to sensitive information 1. In exceptional cases, in which the circulation of certain information outside the ECB could seriously undermine the ECB's functioning, the decision on whether to grant the Office access to such information or to transmit such information to it shall be taken by the Executive Board. This shall apply to: information concerning monetary policy decisions, or operations related to the management of foreign reserves and interventions on foreign exchange markets, provided that such information is less than one year old; information concerning the tasks conferred upon the ECB by Regulation (EU) No 1024/2013; data received by the ECB from the national competent authorities regarding the stability of the financial system or individual credit institutions; and information concerning the euro banknotes' security features and technical specifications. 2. Any such decision of the Executive Board shall take all relevant factors into account, such as the degree of sensitivity of the information required by the Office for the investigation, its importance for the investigation and the seriousness of the suspicion as presented by the Office, by the participant in the decision-making and other bodies or the relevant person to the President, and the degree of risk for the ECB's future functioning. If access is not granted, the decision shall state the reasons for this. With regard to data that the ECB receives on the stability of the financial system or individual credit institutions, the Executive Board may decide not to grant the Office access if it or the relevant national competent authority considers that disclosing the information concerned would place the stability of the financial system or the individual credit institution at risk. 3. In very exceptional cases that concern information related to a particular area of ECB activity, of equivalent sensitivity to the categories of information referred to in paragraph 1, the Executive Board may provisionally decide not to grant the Office access to such information. Paragraph 2 shall apply to such decisions, which shall be valid for a maximum of six months. Thereafter, the Office shall be granted access to the information concerned, unless the Governing Council has in the meantime amended the present Decision by adding the category of information concerned to the categories covered by paragraph 1. Article 5 Assistance from the ECB in internal investigations 1. When initiating an internal investigation of the ECB, the Office's agents shall be granted access to the ECB's premises by the manager in charge of ECB security upon production of a written authorisation issued by the Director-General of the Office, which indicates the following: (a) the agents' identity and job title in the Office; (b) the subject matter and purpose of the investigation; (c) the legal bases for conducting the investigation and the investigative powers arising from those bases. The President, the Vice-President and the Director Internal Audit shall be informed immediately. 2. The Directorate Internal Audit shall assist the Office in the practical organisation of investigations. 3. Participants in the decision-making and other bodies and relevant persons shall supply any requested information to the Office's agents who are conducting an investigation, unless the requested information could be sensitive within the meaning of Article 4, in which case the Executive Board shall decide whether or not the information should be provided. The Directorate Internal Audit shall record all information supplied. Article 6 Informing interested parties 1. Where the possible implication of a participant in the decision-making and other bodies or a relevant person in fraud, corruption and any other illegal activity within the meaning of Article 3(1) emerges, the interested party shall be informed rapidly provided that this will not be harmful to the investigation (16). In any event, conclusions referring by name to a participant in the decision-making or other bodies or a relevant person may not be drawn without the interested party being given the opportunity to express their views on all the facts relating to them, including any evidence existing against them. Interested parties have the right to remain silent, to refrain from incriminating themselves and to seek personal legal assistance. 2. In cases necessitating the maintenance of absolute secrecy for the purpose of the investigation and/or requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite a participant in the decision-making or other bodies or a relevant person to express their views may be deferred for a limited period in agreement with the President or Vice-President. Article 7 Information on the closing of an investigation with no further action taken If, following an internal investigation, no case can be made against a participant in the decision-making and other bodies or a relevant person against whom allegations have been made, the internal investigation shall be closed, with no further action taken, by decision of the Director-General of the Office, who shall inform the participant in the decision-making and other bodies or relevant person thereof in writing. Article 8 Waiver of immunity Any request from a national police or judicial authority for waiver of applicable immunity from judicial proceedings of a participant in the decision-making and other bodies or a relevant person in possible cases of fraud, corruption and any other illegal activity affecting the financial interests of the Union shall be transmitted to the Director-General of the Office for his opinion. The Governing Council shall decide on any relevant waiver as far as participants in the decision-making and other bodies are concerned, and the Executive Board shall decide on any relevant waiver as far as relevant persons are concerned. Article 9 Entry into force and repeal 1. This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. 2. Decision ECB/2004/11 is repealed with effect from the twentieth day following the publication of this Decision in the Official Journal of the European Union. 3. References to Decision ECB/2004/11 shall be construed as references to this Decision. Done at Frankfurt am Main, 4 March 2016. The President of the ECB Mario DRAGHI (1) OJ L 248, 18.9.2013, p. 1. (2) Code of Conduct for the members of the Governing Council (OJ C 123, 24.5.2002, p. 9). (3) Supplementary Code of Ethics Criteria for the members of the Executive Board of the European Central Bank (in accordance with Article 11.3 of the Rules of Procedure of the European Central Bank) (OJ C 104, 23.4.2010, p. 8). (4) Code of Conduct for the Members of the Supervisory Board of the European Central Bank (OJ C 93, 20.3.2015, p. 2). (5) Commission of the European Communities v European Central Bank, C-11/00, ECLI:EU:C:2003:395. (6) Decision ECB/2004/11 of 3 June 2004 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities detrimental to the European Communities' financial interests and amending the Conditions of Employment for Staff of the European Central Bank (OJ L 230, 30.6.2004, p. 56). (7) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999, p. 1). (8) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). (9) Decision ECB/2014/16 of 14 April 2014 concerning the establishment of an Administrative Board of Review and its Operating Rules (OJ L 175, 14.6.2014, p. 47). (10) Regulation (EU) No 673/2014 of the European Central Bank of 2 June 2014 concerning the establishment of a Mediation Panel and its Rules of Procedure (ECB/2014/26) (OJ L 179, 19.6.2014, p. 72). (11) Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ L 141, 14.5.2014, p. 1). (12) Decision ECB/2004/2 of 19 February 2004 adopting the Rules of Procedure of the European Central Bank (OJ L 80, 18.3.2004, p. 33). (13) Decision (EU) 2015/433 of the European Central Bank of 17 December 2014 concerning the establishment of an Ethics Committee and its Rules of Procedure (ECB/2014/59) (OJ L 70, 14.3.2015, p. 58). (14) Available on the ECB's website at www.ecb.europa.eu (15) Federal Official Journal (Bundesgesetzblatt) No 45, 1998 of 27.10.1998 and No 12, 1999 of 6.5.1999. (16) Article 20 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1) applies to any restriction on information to be given to data subjects in the event of data processing.

Summary: Terms and conditions for European Anti-Fraud Office investigations of the European Central Bank Terms and conditions for European Anti-Fraud Office investigations of the European Central Bank SUMMARY OF: Decision (EU) 2016/456 — terms and conditions for European Anti-Fraud Office investigations of the European Central Bank regarding the prevention of fraud, corruption and any other illegal activities affecting the EU’s financial interests WHAT IS THE AIM OF THIS DECISION? It sets out the terms and conditions under which the European Anti-Fraud Office (OLAF) may investigate the European Central Bank (ECB) for allegations of fraud, corruption and any other illegal activities affecting the financial interests of the EU. KEY POINTS The ECB decision applies to: members of the ECB’s Governing and General Councils, Executive Board, Supervisory Board, Administrative Board of Review, Mediation Panel and Audit and Ethics Committees in matters related to their function as members of these bodies; members of the governing bodies and any staff member of national central banks or national competent authorities who participate in the meetings of the ECB’s Governing and General Councils and Supervisory Board in matters related to that function; permanent or temporary ECB staff subject to its conditions of employment; persons working for the ECB without an ECB employment contract in matters related to their work for the ECB. Everyone to whom the decision applies must cooperate with and supply information to OLAF, while ensuring the confidentiality of any internal investigation. In addition, everyone to whom the decision applies must report any information about possible illegal activity to a competent person within the ECB. When sensitive information is concerned and its wider circulation could undermine the ECB’s functioning, the Executive Board may: withhold access to information that concerns: monetary policy decisions, foreign reserves and foreign exchange markets and is less than 1 year old, information concerning the tasks conferred upon the ECB by Regulation (EU) No 1024/2013, data received by the ECB from the national competent authorities regarding the stability of the financial system or individual credit institutions, and the euro banknotes’ security features and technical specifications; in very exceptional cases, decide to withhold information related to other areas of ECB activity of equivalent sensitivity for a maximum of 6 months. In order to launch an internal investigation, OLAF’s director-general must issue a written authorisation indicating the agents’ identity and their job title, the subject matter and purpose of the investigation, the legal basis for the investigation and the investigative powers. Upon production of this authorisation, the ECB must: grant access to OLAF’s agents to the ECB’s premises; assist in the practical organisation of investigations; supply requested information; and keep records of information provided. If suspected of fraud, corruption or any illegal act, an individual must be informed rapidly, provided this does not harm the investigation. The individual has the right to express their views, remain silent, refrain from incriminating themselves and seek legal advice. Where no case can be made against an individual, the internal investigation must be closed. The ECB’s Governing Council decides whether to waive the immunity from judicial proceedings of participants in the decision-making process, and other bodies and the Executive Board make such decisions in all other cases if a national police or judicial authority makes such a request. FROM WHEN DOES THE DECISION APPLY? The decision has been in force since 19 April 2016, when it repealed Decision ECB/2004/11. BACKGROUND OLAF is responsible for initiating and conducting anti-fraud investigations inside institutions, bodies, offices of the European Union and agencies involving EU finances. For more information, see: OLAF website. MAIN DOCUMENT Decision (EU) 2016/456 of the European Central Bank of 4 March 2016 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities affecting the financial interests of the Union (ECB/2016/3) (OJ L 79, 30.3.2016, pp. 34-40) RELATED DOCUMENTS Decision 2004/525/EC of the European Central Bank of 3 June 2004 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities detrimental to the European Communities’ financial interests and amending the Conditions of Employment for Staff of the European Central Bank (ECB/2004/11) (OJ L 230, 30.6.2004, pp. 56-60) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, pp. 1-22) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, pp. 63-89) last update 24.10.2016


16.3.2016 EN Official Journal of the European Union L 70/1 COUNCIL REGULATION (EU) 2016/369 of 15 March 2016 on the provision of emergency support within the Union THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 122(1) thereof, Having regard to the proposal from the European Commission, Whereas: (1) Mutual assistance and support in the face of disasters is both a fundamental expression of the universal value of solidarity between people and a moral imperative, as such disasters may lead to a significant number of people being unable to meet their basic needs, with potential severe adverse effects on their health and lives. (2) The impact of both man-made and natural disasters within the Union is increasingly severe. This is linked to a number of factors, such as climate change, but also to other contributing external factors and circumstances which are unfolding in the Union's neighbourhood. The migration and refugee situation currently affecting the Union is a notable example of a situation where, despite the efforts undertaken by the Union to address the root causes located in third countries, the economic situation of Member States may be directly affected. (3) This situation led the European Council, on 19 February 2016, to call upon the Commission to put in place the capacity to provide humanitarian assistance internally, in order to support countries facing large numbers of refugees and migrants. (4) Man-made or natural disasters may be of such a scale and impact that they can give rise to severe economic difficulties in one or several Member States. They can also occur in one or several Member States already facing severe economic difficulties for other reasons, with the result of exacerbating and aggravating even further the overall economic situation of the Member States concerned. In either case, the response capacity of the Member States concerned would be adversely affected, and the assistance and support being provided to people in need would, in turn, be negatively affected. (5) While the Union is already in a position to grant support of a macro-financial nature to Member States, and to express European solidarity to disaster-stricken regions through the European Union Solidarity Fund (EUSF) established by Council Regulation (EC) No 2012/2002 (1), there is currently no appropriate instrument available at Union level to address on a sufficiently predictable and independent basis the humanitarian needs of disaster-stricken people within the Union, such as food assistance, emergency healthcare, shelter, water, sanitation and hygiene, protection and education. Mutual assistance can be offered under the Union Civil Protection Mechanism pursuant to Decision No 1313/2013/EU of the European Parliament and of the Council (2), but the operation of that Mechanism is based on voluntary contributions from Member States. There could also be assistance and support provided through existing Union policy and financing instruments, such as those aimed at establishing an area of freedom, security and justice in the Union. Any such assistance and support would, however, be accessory and ancillary to the pursuit of the principal policy objectives of those instruments and, therefore, be limited in its scope and scale. (6) It therefore seems appropriate for the Union to act in a spirit of solidarity to address the basic needs of disaster-stricken people within the Union, and to contribute to reducing the economic impact of those disasters on the Member States concerned. (7) Given the similarities in addressing the basic needs of disaster-stricken people within the Union through the provision of emergency support and in providing humanitarian aid to people affected by man-made or natural disasters in third countries, all operations under this Regulation should be conducted in compliance with internationally-agreed humanitarian principles. Those actions constitute measures appropriate to the economic situation of the Member States facing those difficulties and complementing Union action encouraging cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters. (8) Given the need to act in a spirit of solidarity, the provision of emergency support under this Regulation should be financed by the general budget of the Union, as well as by contributions which may be made by other public or private donors. (9) The reimbursement of expenses and award of public procurement contracts and grants under this Regulation should be implemented in accordance with Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (3), taking into account the specific nature of emergency support. It is therefore appropriate to provide that grants and public procurement contracts may be awarded directly or indirectly, and that grants may finance up to 100 % of the eligible costs and be awarded with retroactive effect. The Commission should be able to finance emergency support operations of any organisation which, independent of its legal nature, whether private or public, possesses the requisite experience and uses to that effect direct or indirect management, as appropriate. (10) Furthermore, it is appropriate to rely on organisations with which the Commission has concluded framework partnership agreements pursuant to Council Regulation (EC) No 1257/96 (4), in light of the relevance of the experience acquired by those organisations in providing humanitarian aid in close coordination with the Commission. Wherever possible the involvement of local non-governmental organisations should be sought, via partner organisations with framework partnership agreements, in order to maximise synergies and the efficiency of any emergency support provided under this Regulation. (11) The financial interests of the Union should be protected by means of proportionate measures throughout the expenditure cycle, including the prevention, detection and investigation of irregularities, the recovery of funds lost, unduly paid or incorrectly used and, where appropriate, administrative and financial penalties in accordance with Regulation (EU, Euratom) No 966/2012. (12) This Regulation should lay down the basis for providing financial support in the event of natural or man-made disasters in respect of which, in a spirit of solidarity, the Union would be better placed than Member States, acting alone and in an uncoordinated manner, to mobilise appropriate levels of financing and use them to implement operations of a potentially life-saving nature in an economic, efficient and effective manner, thereby allowing a more effective action by reason of its scale and complementarity. (13) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (14) The provision of emergency support under this Regulation should be aptly monitored, relying, where need be, on the most relevant expertise available at Union level. Furthermore, the overall implementation of this Regulation should be evaluated. (15) Given the urgency of the support needed, this Regulation should enter into force immediately, HAS ADOPTED THIS REGULATION: Article 1 Subject matter and scope 1. This Regulation lays down the framework within which Union emergency support may be awarded through specific measures appropriate to the economic situation in the event of an ongoing or potential natural or man-made disaster. Such emergency support can only be provided where the exceptional scale and impact of the disaster is such that it gives rises to severe wide-ranging humanitarian consequences in one or more Member States and only in exceptional circumstances where no other instrument available to Member States and to the Union is sufficient. 2. Emergency support provided under this Regulation shall be in support of, and complementary to, the actions of the affected Member State. To this end, close cooperation and consultation with the affected Member State shall be ensured. Article 2 Activation of the emergency support 1. The decision about the activation of the emergency support under this Regulation in case of an ongoing or potential disaster shall be taken by the Council on the basis of a proposal by the Commission, specifying where appropriate the duration of the activation. 2. The Council shall immediately examine the proposal of the Commission referred to in paragraph 1 and shall decide, in accordance with the urgency of the situation, on the activation of the emergency support. Article 3 Eligible actions 1. Emergency support under this Regulation shall provide a needs-based emergency response, complementing the response of the affected Member States, aimed at preserving life, preventing and alleviating human suffering, and maintaining human dignity wherever the need arises as a result of a disaster referred to in Article 1. 2. Emergency support, as referred to in paragraph 1, may include any of the humanitarian aid actions which would be eligible for Union financing pursuant to Articles 2, 3 and 4 of Regulation (EC) No 1257/96, and may consequently encompass assistance, relief and, where necessary, protection operations to save and preserve life in disasters or in their immediate aftermath. It may also be used to finance any other expenditure directly related to the implementation of emergency support under this Regulation. 3. Emergency support under this Regulation shall be granted and implemented in compliance with the fundamental humanitarian principles of humanity, neutrality, impartiality and independence. 4. The actions referred to in paragraph 2 shall be carried out by the Commission or by partner organisations selected by the Commission. The Commission may notably select, as partner organisations, non-governmental organisations, specialised services of the Member States or international agencies and organisations having the requisite expertise. In doing so, the Commission shall maintain a close cooperation with the affected Member State. Article 4 Types of financial intervention and implementing procedures 1. The Commission shall implement the Union's financial support in accordance with Regulation (EU, Euratom) No 966/2012. In particular, Union financing for support actions under this Regulation shall be implemented by means of direct or indirect management in accordance with points (a) and (c), respectively, of Article 58(1) of that Regulation. 2. Emergency support under this Regulation shall be financed by the general budget of the Union and by contributions which may be made by other public or private donors as external assigned revenue in accordance with Article 21(4) of Regulation (EU, Euratom) No 966/2012. 3. Union financing for support actions under this Regulation to be implemented by means of direct management may be awarded directly by the Commission without a call for proposals, in accordance with Article 128(1) of Regulation (EU, Euratom) No 966/2012. To that effect, the Commission may enter into framework partnership agreements or rely on existing framework partnership agreements concluded pursuant to Regulation (EC) No 1257/96. 4. Where the Commission implements emergency support operations through non-governmental organisations, the criteria concerning financial and operational capacity shall be deemed to be satisfied where there is a framework partnership agreement in force between that organisation and the Commission pursuant to Regulation (EC) No 1257/96. Article 5 Eligible Costs 1. Union financing may cover any direct costs necessary for the implementation of the eligible actions set out in Article 3, including the purchase, preparation, collection, transport, storage and distribution of goods and services under those actions. 2. The indirect costs of the partner organisations may also be covered in accordance with Regulation (EU, Euratom) No 966/2012. 3. Union financing may also cover expenses pertaining to preparatory, monitoring, control, audit and evaluation activities which are required for the management of the emergency support to be provided under this Regulation. 4. Union financing for emergency support actions under this Regulation may cover up to 100 % of the eligible costs. 5. Expenditure incurred by a partner organisation before the date of submission of an application for funding may be eligible for Union financing. Article 6 Complementarity and consistency of Union action Synergies and complementarity shall be sought with other instruments of the Union, in particular with respect to those instruments under which some form of emergency assistance or support may be offered, such as Regulation (EC) No 2012/2002, Decision No 1313/2013/EU, Regulation (EC) No 1257/96, Regulation (EU) No 223/2014 of the European Parliament and of the Council (5), Regulation (EU) No 513/2014 of the European Parliament and of the Council (6), Regulation (EU) No 514/2014 of the European Parliament and of the Council (7), Regulation (EU) No 515/2014 of the European Parliament and of the Council (8) and Regulation (EU) No 516/2014 of the European Parliament and of the Council (9). Article 7 Protection of the financial interests of the Union 1. The Commission shall take appropriate measures ensuring that, when actions financed under this Regulation are implemented, the financial interests of the Union are protected by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by the recovery of the amounts wrongly paid and, where appropriate, by effective, proportionate and dissuasive administrative and financial penalties. 2. The Commission or its representatives and the Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors, who have received Union funds under this Regulation. 3. The European Anti-Fraud Office (OLAF) may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 (10) of the European Parliament and of the Council and Council Regulation (Euratom, EC) No 2185/96 (11) with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or grant decision or a contract funded under this Regulation. 4. Without prejudice to paragraphs 1, 2 and 3, contracts and grant agreements as well as agreements with international organisations and Member States' specialised services, resulting from the implementation of this Regulation shall contain provisions expressly empowering the Commission, the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences. Article 8 Monitoring and evaluation 1. Actions receiving financial support under this Regulation shall be monitored regularly. At the latest 12 months after the activation of the emergency support for a specific situation in accordance with Article 2, the Commission shall present a report to the Council and, where appropriate, proposals to terminate it. 2. By 17 March 2019, the Commission shall submit an evaluation of the operation of this Regulation to the Council, together with suggestions for the future of this Regulation and, where appropriate, proposals to amend or terminate it. Article 9 Entry into Force and activation 1. This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union. 2. The Council hereby decides to activate the emergency support under this Regulation as of the day of its entry into force for the current influx of refugees and migrants into the Union, for a period of three years. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 15 March 2016. For the Council The President A.G. KOENDERS (1) Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund (OJ L 311, 14.11.2002, p. 3). (2) Decision No 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism (OJ L 347, 20.12.2013, p. 924). (3) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1). (4) Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid (OJ L 163, 2.7.1996, p. 1). (5) 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 (OJ L 72, 12.3.2014, p. 1). (6) Regulation (EU) No 513/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for police cooperation, preventing and combating crime, and crisis management and repealing Council Decision 2007/125/JHA (OJ L 150, 20.5.2014, p. 93). (7) Regulation (EU) No 514/2014 of the European Parliament and of the Council of 16 April 2014 laying down general provisions on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ L 150, 20.5.2014, p. 112). (8) Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC (OJ L 150, 20.5.2014, p. 143). (9) Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (OJ L 150, 20.5.2014, p. 168). (10) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1). (11) Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

Summary: Emergency humanitarian support within the EU Emergency humanitarian support within the EU SUMMARY OF: Regulation (EU) 2016/369 on the provision of emergency support within the EU WHAT IS THE AIM OF THE REGULATION? Regulation (EU) 2016/369: aims to provide a set of rules for emergency humanitarian support* for EU countries during man-made or natural disasters; comes into play when other instruments prove insufficient; supports and complements the actions of the affected EU country or countries. Following the COVID-19 outbreak in 2020, the Council adopted Regulation (EU) 2020/521 activating emergency support measures under Regulation (EU) 2016/369. The activation period is from 1 February 2020 to 31 January 2022. KEY POINTS The Emergency Support Instrument (ESI) created under this regulation is based on needs and is meant to preserve life, prevent human suffering and maintain human dignity. The Council decides on the activation of emergency support under this regulation based on a proposal by the European Commission. The Commission must monitor actions that have received funding and present an overall assessment of the support provided during a given activation, or proposals to end support, to the Council at the latest 12 months after the activation of the emergency support. The Commission must ensure that funds used under this regulation are not affected by fraud, corruption or any other illegal activities that may harm the financial interests of the EU. This regulation is meant to complement other EU funding instruments, such as the Asylum, Migration and Integration Fund, the Internal Security Fund and the Fund for European Aid to the Most Deprived. Special COVID-19 measures Through the ESI, the EU is mobilising €2.7 billion. This is to be used to fund emergency healthcare support such as: jointly procuring, stockpiling and distributing essential resources;boosting the development of medication and testing methods;creating temporary hospitals and setting up temporary quarantine facilities; andassisting the transporting of patients cross-border to hospitals with free capacity. It will also be possible to fund other actions depending on the evolving needs of EU countries, hospitals, doctors and patients. The Commission may fund partner organisations, such as non‐governmental organisations, specialised services of EU countries, national authorities and other public bodies, international organisations and their agencies. The range of potential beneficiaries of financial assistance for implementing ESI-funded actions has been widened due to the COVID-19 pandemic. Where appropriate and necessary for the implementation of an action, organisations and entities with the necessary expertise, or active in the disaster relief sector may be eligible, such as: private service providers;equipment manufacturers; andscientists and research institutions. The different options available for procuring supplies and services needed for providing emergency support include: joint procurement by the Commission and EU countries;procurement by the Commission on behalf of EU countries;procurement by the Commission; andsale, donation or rental of the procured supplies or services to EU countries or partner organisations selected by the Commission. ESI financing can cover up to 100% of direct and indirect costs related to ESI-funded actions until the end of the activation period. Direct costs can include: the purchase, preparation, collection, transport, storage and distribution of goods and services; andinvestment costs of actions or projects directly related to achieving the aims of the relevant ESI activation. To speed up the award and performance of contracts resulting from procurement procedures, the regulation allows for certain derogations to Regulation (EU, Euratom) 2018/1046, the EU’s Financial Regulation (see summary). FROM WHEN DOES THE REGULATION APPLY? Regulation (EU) 2016/369 has applied since 16 March 2016. Amending Regulation (EU) 2020/521 has applied since 1 February 2020. BACKGROUND The main reason for the adoption of this regulation in 2016 was the refugee and migration situation affecting the EU. The EU, and especially Greece, was overwhelmed at the time by the arrival of large numbers of refugees and migrants who required urgent humanitarian assistance. The European Commission allocated almost €650 million from 2016 to 2019 to partner organisations to support refugees and migrants in Greece. For more information, see: Emergency support within the EU (European Commission) Crisis management and solidarity (European Commission). KEY TERMS Humanitarian support: food, shelter, water, medicine and protection measures are some of the types of humanitarian assistance which can be directed to affected populations. MAIN DOCUMENT Council Regulation (EU) 2016/369 of 15 March 2016 on the provision of emergency support within the Union (OJ L 70, 16.3.2016, pp. 1-6) Successive amendments to Regulation (EC) 2016/369 have been incorporated into the original document. This consolidated version is of documentary value only. RELATED DOCUMENTS Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, pp. 1-222) Communication from the Commission to the Council accompanying the proposal for a Council Regulation on the provision of emergency support within the EU (COM(2016) 116 final, 2.3.2016) last update 18.05.2020