Commission Decision of 13 November 2014 on the Early Warning System to be used by authorising officers of the Commission and by the executive agencies (2014/792/EU)

Commission Decision

of 13 November 2014

on the Early Warning System to be used by authorising officers of the Commission and by the executive agencies

(2014/792/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to the Treaty establishing the European Atomic Energy Community,

Having regard to 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(1), and in particular Article 56(1) thereof,

Having regard to Council Regulation (EC) No 215/2008 of 18 February 2008 on the Financial Regulation applicable to the 10th European Development Fund(2), and in particular Article 17 thereof,

Having regard to Regulation (EU, Euratom) No 883/2013 of 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(3), and in particular Article 7(6) and Article 11 thereof,

Whereas:

(1) The Commission, which is responsible for executing the general budget of the European Union and any other funds managed by the Union with due regard to the principle of sound financial management set out in Articles 30 to 33 of Regulation (EU, Euratom) No 966/2012, is under an obligation to counter fraud and any other illegal activities affecting the financial interests of the Union. In order to ensure that the authorising officers of the Commission and of the executive agencies are fully informed of threats to the Union's financial interest, it is necessary to lay down internal rules in addition to Commission Decision C(2014) 2784(4).

(2) In order to counter fraud and protect the financial interest of the Union, the Commission uses the Central Exclusion Database (CED) referred to in Article 108 of Regulation (EU, Euratom) No 966/2012 and Commission Regulation (EC, Euratom) No 1302/2008 of 17 December 2008 on the central exclusion database(5) and the Early Warning System (EWS) of Decision 2008/969/EC, Euratom of 16 December 2008 on the Early Warning System for the use of authorising officers of the Commission and the executive agencies(6). Pending the adoption by the legislative authority of the proposal on the amendment to the Financial Regulation(7), it is necessary to ensure that the EWS remains efficient.

(3) In the interim period, the purpose of the EWS should remain the same in substance. It should ensure, within the Commission and its executive agencies, the circulation of restricted information by means of registration of warnings in the EWS concerning persons who could represent a threat to the Union's financial interests and reputation or to any other fund managed by the Union.

(4) Given that the Directors of executive agencies have the status of authorising officer by delegation of the Commission for the implementation of operational appropriations, they should have access to the EWS in the same manner as Commission services for the management of the administrative and operational appropriations.

(5) Given that the Heads of Union Delegations acting as Commission authorising officers by subdelegation in accordance with Article 56(2) of Regulation (EU, Euratom) No 966/2012 have the status of authorising officer by delegation of the Commission for the implementation of operational appropriations, they should have access to the EWS in the same manner as Commission services for the management of the administrative and operational appropriations.

(6) The European Anti-Fraud Office (OLAF) has the obligation under Article 7(6) of 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 to provide information to the Commission services concerned without delay concerning investigations in progress where they show that it might be appropriate to take precautionary administrative measures to protect the Union's financial interests. It has also the obligation under Article 11 of Regulation (EU, Euratom) No 883/2013 to draw up a report on completion of an investigation and to make recommendations which indicate, where appropriate, any action to be taken, in particular by the institutions. In order to enable the authorising officer responsible to request a warning, it is necessary to lay down which information OLAF is to submit to the Commission.

(7) OLAF should have access to the EWS for pursuing its regulatory investigation tasks and its intelligence and fraud prevention activities exercised under Regulation (EU, Euratom) No 883/2013.

(8) For reasons of simplification, the functioning of the EWS should be simplified, the number of warning categories should be reduced, their scope clarified and the name of warnings should be self-explanatory.

(9) Verification warnings based on the information transmitted by OLAF should be proposed by the Authorising officer responsible after consultation of the Directorate-General for Budget and the Legal Service, in close cooperation with OLAF.

(10) Exclusion warnings should be proposed by the Authorising officer responsible to the Commission and should be assessed in a centralised manner by the Directorate-General for Budget and the Legal Service where appropriate. When these exclusion warnings are proposed on the basis of information transmitted by OLAF, they should be assessed in close cooperation with OLAF. The same procedure should apply when the authorising officer responsible envisages taking any act that might adversely affect the rights of the person concerned.

(11) The Authorising officer responsible should decide on consequences needed to protect the Union's financial interest, in close cooperation with OLAF and should inform OLAF of this decision.

(12) The authorising officer responsible should be responsible for requesting entry, modification or removal or renewal of warnings. In order to preserve an adequate level of control, such requests should be made at the hierarchical level set out in the Commission Decision C(2014) 2784.

(13) The accounting officer should ensure the appropriate technical arrangements for an effective application of the EWS through the central accounting system of the Commission.

(14) Detailed information on the recovery orders and attachment orders will be made available to all Commission services and executives agencies via the central accounting system of the Commission. The warnings W3a (attachment order) and W4 (recovery order) foreseen under Decision 2008/969/EC, Euratom should be discontinued. This sole information does not systematically justify a warning. It requires an analysis of all the specific circumstances of the case by the authorising officer responsible in order to decide whether a warning is necessary or not.

(15) 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(8) provides that the processing of personal data by the Commission must respect the lawful processing requirements and the requirements relating to the transfer of data laid down therein, and that such processing is subject to prior checking by the European Data Protection Supervisor following notification by the Commission Data Protection Officer.

(16) Data protection provisions should lay down the rights of the persons whose data is or could be introduced in the EWS.

(17) Certain data protection rights are subject to exceptions laid down in Article 20 of Regulation (EC) No 45/2001, which have to be analysed on a case by case basis and applied temporarily. The service responsible for requesting entry, modification, including rectification or removal of relevant information should decide on the applications of these exceptions.

(18) The person subject to a possible exclusion warning should be given the opportunity to express its views in writing before the request of registration of the warning relating to that person in the EWS is made. The same opportunity should be given when the authorising officer responsible envisages taking any act that might adversely affect the rights of the person concerned.

(19) This opportunity should be exceptionally deferred to preserve the confidentiality of the investigation or of the national legal proceedings if there are compelling legitimate grounds.

(20) Decision 2008/969/EC, Euratom should continue to apply until 1 July 2015 in so far as it is necessary to ensure the respect of the Council regulations on restrictive measures, taken on the basis of Article 215 of the Treaty on the Functioning of the European Union (TFEU), until the accrual based accounting (ABAC) system takes into account the information contained in the relevant database of the service responsible for Foreign Policy Instruments. This takes the form of the registration of a W5b warning referred to in Decision 2008/969//EC, Euratom.

(21) Decision 2008/969/EC, Euratom should continue to apply to W3a and W4 warnings until 1 July 2015, which should be until then assimilated to verification warnings for the application of Section 4 of this Decision.

(22) Implementation of this decision requires regular assessment of the functioning of the EWS and its effective contribution to the protection of the Union's financial interests.

HAS DECIDED AS FOLLOWS:

(1)

OJ L 298, 26.10.2012, p. 1.

(2)

OJ L 78, 19.3.2008, p. 1.

(3)

OJ L 248, 18.9.2013, p. 1.

(4)

Commission Decision C(2014) 2784 of 30 April 2014 on the Internal Rules on the implementation of the general budget of the European Union (European Commission section) for the attention of the Commission departments.

(5)

OJ L 344, 20.12.2008, p. 12.

(6)

OJ L 344, 20.12.2008, p. 125.

(7)

COM(2014) 358 of 18.6.2014.

(8)

OJ L 8, 12.1.2001, p. 1.