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)

SECTION 1 U.K. GENERAL PROVISIONS

Article 1 U.K. Subject matter, scope and aim

1. This decision establishes the Early Warning System (the ‘EWS’) to be used by authorising officers of the Commission and of the executive agencies when they implement the general budget of the European Union and any other fund managed by the Union.

2. The EWS contributes to the protection of the Union's financial interests and the safeguard of the Union's image, the fight against fraud and the sound financial management.

3. The aim of the EWS is to:

(a) inform by means of registration of warnings the authorising officers responsible of the Commission and of the executive agencies that a person could represent a threat to the Union's financial interests and image or to any other fund managed by the Union; and

(b) enable the authorising officer responsible to make verifications or take appropriate measures, including those referred to in Section 4 on the basis of warnings.

4. The information contributes to ensure:

(a) the prevention of risks by means of verification on the basis of early information on a person for suspicion of or findings related to any of the following acts:

• (a) substantial error or irregularity;

• professional misconduct;

• serious breach of contract; or

• fraud, corruption or any illegal activity detrimental to the Union's financial interests as referred to in Article 141 of Delegated Regulation (EU) No 1268/2012(1);

(b) The exclusion of a person under Articles 106(1) and 109(1) of 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 (the ‘FR’).

Article 2 U.K. Definitions

For the purposes of this decision, the following definitions shall apply:

(a)

‘the accounting officer’ means the accounting officer of the Commission or the subordinate member of staff to whom the accounting officer has delegated certain tasks pursuant to Article 69 of Regulation (EU, Euratom) No 966/2012;

(b)

‘the authorising officer responsible’ means the authorising officer by delegation of the Commission within the meaning of Article 65 of Regulation (EU, Euratom) No 966/2012 responsible in accordance with the internal rules for the implementation of the general budget of the European Union (‘the budget’), including directors of executive agencies, authorising officers by subdelegation within the meaning of Article 65 of that Regulation exercising the function of director, and the Heads of Union Delegations acting as Commission authorising officers by subdelegation in accordance with Article 56(2) of that Regulation;

(c)

‘data subject’ means an identifiable person as referred to in 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;

(d)

‘findings’ means established facts discovered during the implementation of a legal commitment, or recorded in the context of audits or investigations carried out by the Court of Auditors, the Anti-Fraud Office (OLAF), the Internal Audit Service (IAS) or any other audit or control made under the responsibility of the authorising officer responsible;

(e)

‘legal commitment’ means a commitment entered into by the Commission under Titles V to VIII of Part 1, and Part 2 of Regulation (EU, Euratom) No 966/2012;

(f)

‘person’ means any natural person or any legal person or any association without legal personality as listed below:

• a recipient as defined in Article 2(i) of Regulation (EU, Euratom) No 966/2012,

• a candidate or a tenderer,

• a grant applicant,

• a participant in a prize contest,

• a remunerated external expert under Article 204 of Regulation (EU, Euratom) No 966/2012,

• a person with powers of representation, decision-making or control over another legal person referred to in Article 106(1)(b) and (e) of Regulation (EU, Euratom) No 966/2012;

(g)

‘professional misconduct’ means violation of laws or regulations or of ethical standards of the profession to which the person belongs, as well as any wrongful conduct which has an impact on its professional credibility;

(h)

‘Subcontractor’ means an economic operator who is proposed by a candidate or tenderer or contractor to perform part of a contract, while the contracting authority has no direct legal commitment with it;

(i)

‘substantial error or irregularity’ means a substantial error or irregularity as defined in Article 166(2) of Delegated Regulation (EU) No 1268/2012;

(j)

‘warning contact person’ means the person within the service responsible for the request who is in charge of the warning file until its removal.

Article 3 U.K. Functioning of the EWS

1. The accounting officer shall ensure appropriate technical arrangements for an effective functioning of the EWS and its monitoring.

The accounting officer shall enter, modify, renew or remove EWS warnings requested by the authorising officer responsible.

2. The accounting officer shall adopt implementing measures concerning technical aspects and define associated procedures, including in the field of security.

The accounting officer shall notify those measures to the Commission services and the executive agencies.

Article 4 U.K. Power and procedure to request, modify, renew or remove a warning

1. Only the authorising officer responsible may request registration, modification, renewal or removal of warning.

2. The authorising officer responsible shall address the request for registration, modification, renewal or removal of warnings to the accounting officer. The authorising officer responsible shall use the form set out in the Annex of this Decision.

3. The warning contact person referred to in Article 8 verifies that the requirements of Article 11 or 12 are fulfilled before transmitting the request to the accounting officer.

Article 5 U.K. Access to the EWS

The Commission services and executive agencies shall have direct access to the information contained in the EWS via the central accounting system of the Commission.

The Commission services or executive agencies responsible for a local system may use that central accounting system to access the information stored in the EWS, if data-consistency between the local system and the central accounting system is guaranteed.

Article 6 U.K. The use of the EWS

Information stored in the EWS may be used only for the purpose of the implementation of the budget or of any other fund managed by the Union. This shall not affect the information contained in the central exclusion database (hereinafter ‘CED’) referred to in Article 1(2) and (3) of Regulation (EC, Euratom) No 1302/2008(2).

OLAF may use the information contained in the EWS and the CED for its investigations pursuant to Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation (EC) No 1073/1999 (‘OLAF Regulation’), and for fraud prevention activities, including risk analysis.

Article 7 U.K. Timing of the consultation of the EWS

The authorising officer responsible shall verify if there is a warning in the EWS concerning a person at the following stages:

(a)

before an individual budgetary commitment is entered;

(b)

before a global budgetary commitment is entered if the person is known at that stage;

(c)

in the case of provisional budgetary commitments, before concluding the legal commitment giving rise to an entitlement to subsequent payments unless it concerns payment of staff and the reimbursement of travel expenditure related to participation in meetings and competitions;

(d)

in the case of procurement or grant award procedures, prize contests and calls for expression of interests, at the latest before the award decision;

(e)

in the case of procurement, if the contracting authority limits the number of candidates invited to submit a tender, before the selection of candidates has been completed;

(f)

before any payment unless it concerns payment of staff and the reimbursement of travel expenditure related to participation in meetings and competitions.

Article 8 U.K. Warning contact person

The warning contact person shall:

(a)

prepare the request for registration of a warning;

(b)

transmit the request and any other information related to the warning to the accounting officer;

(c)

provide the information allowing other authorising officers responsible to make verifications or decide on the consequences referred to in Section 4.

(1)

Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ L 362, 31.12.2012, p. 1).

(2)

Commission Regulation (EC, Euratom) No 1302/2008 of 17 December 2008 on the central exclusion database (OJ L 344, 20.12.2008, p. 12).