http://www.legislation.gov.uk/eur/2006/1828/chapter/II/section/8Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development FundCommission Regulation (EC) No 1828/2006Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund2020-12-11King's Printer of Acts of Parliamenthttps://webarchive.nationalarchives.gov.uk/eu-exit/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02006R1828-20111201texttext/xmlen2011-12-01 CHAPTER II <Substitution ChangeId="O001001M002" CommentaryRef="c000001" Correction="true">PROVISIONS IMPLEMENTING REGULATION (EC) No 1083/2006</Substitution> Section 8 <Substitution ChangeId="O001001M002" CommentaryRef="c000001" Correction="true">Financial engineering instruments</Substitution> <Substitution ChangeId="O001001M002" CommentaryRef="c000001" Correction="true"> <Substitution ChangeId="O001001M027" CommentaryRef="c000002">General provisions</Substitution> </Substitution> Article 43 1 Articles 43 to 46 shall apply to financial engineering instruments in the form of actions which make repayable investments, or provide guarantees for repayable investments, or both, in the following: a enterprises, primarily small and medium-sized enterprises (SMEs), including micro-enterprises, as defined in Commission Recommendation 2003/361/EC as of 1 January 2005 ; b public-private partnerships or other urban projects included in integrated plans for sustainable urban development, in the case of urban development funds; c funds or other incentive schemes for energy efficiency and use of renewable energy in buildings, including in existing housing. 2 Financial engineering instruments, including holding funds, shall be independent legal entities governed by agreements between the co-financing partners or shareholders or as a separate block of finance within a financial institution. Where the financial engineering instrument is within a financial institution, it shall be set up as a separate block of finance, subject to specific implementation rules within the financial institution, stipulating, in particular, that separate accounts are kept which distinguish the new resources invested in the financial engineering instrument, including those contributed by the operational programme, from those initially available in the institution. The Commission may not become a co-financing partner or shareholder in financial engineering instruments. 3 When managing authorities or holding funds select financial engineering instruments, the financial engineering instruments shall submit a business plan or other appropriate document. The terms and conditions for contributions from operational programmes to financial engineering instruments shall be set out in a funding agreement, to be concluded between the duly mandated representative of the financial engineering instrument and the Member State or the managing authority, or the holding fund where applicable. The funding agreement shall include at least the following elements: the investment strategy and planning; provisions for monitoring of implementation; an exit policy for the contribution from the operational programme out of the financial engineering instrument; provisions for the winding-up of the financial engineering instrument, including the reutilisation of resources returned to the financial engineering instrument from investments or left over after all guarantees have been honoured that are attributable to the contribution from the operational programme. 4 Management costs may not exceed, on a yearly average, for the duration of the assistance any of the following thresholds, unless a higher percentage proves necessary following a competitive tender, in accordance with applicable rules: a 2 % of the capital contributed from the operational programme to holding funds, or of the capital contributed from the operational programme or holding fund to the guarantee funds; b 3 % of the capital contributed from the operational programme or the holding fund to the financial engineering instrument in all other cases, with the exception of micro-credit instruments directed at micro-enterprises; c 4 % of the capital contributed from the operational programme or the holding fund to micro-credit instruments directed at micro-enterprises. 5 Returns from equity, loans and other repayable investments, and from guarantees for repayable investments, less a pro rata share of the management costs and performance incentives, may be allocated preferentially to investors operating under the market economy investor principle. Such returns may be allocated up to the level of remuneration laid down in the by-laws of the financial engineering instruments, and they shall then be allocated proportionally among all co-financing partners or shareholders. 6 Enterprises, public private partnerships and other projects included in an integrated plan for sustainable urban development, as well as operations for energy efficiency and use of renewable energy in buildings, including in existing housing which are supported by financial engineering instruments, may also receive a grant or other assistance from an operational programme. 7 Managing authorities shall take precautions to minimise distortion of competition in the venture capital or lending markets and the private guarantee market. <Substitution ChangeId="O001001M002" CommentaryRef="c000001" Correction="true"> <Substitution ChangeId="O001001M031" CommentaryRef="c000002">Holding funds</Substitution> </Substitution> Article 44 1 Where the Structural Funds finance financial engineering instruments organised through holding funds, the Member State or managing authority shall conclude a funding agreement with the holding fund, setting out the funding arrangements and objectives. The funding agreement shall, where appropriate, take account of the following: a as regards financial engineering instruments supporting enterprises, primarily SMEs, including micro-enterprises, the conclusions of an evaluation of gaps between supply of such instruments, and demand for such instruments; b as regards urban development funds, urban development studies or evaluations and integrated urban development plans included in operational programmes ; c as regards funds or other incentive schemes for energy efficiency and use of renewable energy in buildings, including in existing housing the relevant Union and national regulatory frameworks and the relevant national strategies. 2 The funding agreement referred to in paragraph 1 shall, in particular, make provision for: a the terms and conditions for contributions from the operational programme to the holding fund; b calls for expression of interest addressed to financial engineering instruments in accordance with applicable rules; c the appraisal and selection of financial engineering instruments by the holding fund; d the setting up and monitoring of the investment policy or the targeted urban development plans and actions; e reporting by the holding fund to Member States or managing authorities; f monitoring of the implementation of investments; g audit requirements; h an exit policy for the holding fund out of the financial engineering instruments; i the provisions for the winding-up of the holding fund, including the reutilisation of resources returned from investments made or left over after all guarantees have been honoured which are attributable to the contribution from the operational programme. In the case of financial engineering instruments supporting enterprises, the provisions on the setting up and monitoring of the investment policy referred to in point (d) of the first subparagraph shall comprise at least an indication of the targeted enterprises and the financial engineering products to be supported. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <Substitution ChangeId="O001001M002" CommentaryRef="c000001" Correction="true"> <Substitution ChangeId="O003001M001" CommentaryRef="c000007">Additional provisions applicable to financial engineering instruments for enterprises</Substitution> </Substitution> Article 45 Financial engineering instruments for enterprises referred to in Article 43(1)(a) shall invest only in activities which the managers of the financial engineering instruments judge potentially economically viable. They shall not invest in firms in difficulty within the meaning of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty as of 10 October 2004 . <Substitution ChangeId="O001001M002" CommentaryRef="c000001" Correction="true"> <Substitution ChangeId="O001001M034" CommentaryRef="c000002">Urban development funds</Substitution> </Substitution> Article 46 1 Where Structural Funds finance urban development funds, those funds shall invest in public-private partnerships or other projects included in an integrated plan for sustainable urban development. Such public-private partnerships or other projects shall not include the creation and development of financial engineering instruments such as venture capital, loan and guarantee funds for enterprises. 2 For the purposes of paragraph 1, urban development funds shall invest by means of loans and guarantees, or equivalent instruments and by means of equity. 3 Where Structural Funds finance urban development funds, the funds concerned shall not re-finance acquisitions or participations in projects already completed. OJ L 124, 20.5.2003, p. 36 . OJ C 244, 1.10.2004, p. 2 . Substituted by Corrigendum to Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (Official Journal of the European Union L 371 of 27 December 2006). Substituted by Commission Regulation (EC) No 846/2009 of 1 September 2009 amending Regulation (EC) No 1828/2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund. Deleted by Commission Regulation (EC) No 846/2009 of 1 September 2009 amending Regulation (EC) No 1828/2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund. Substituted by Commission Regulation (EU) No 832/2010 of 17 September 2010 amending Regulation (EC) No 1828/2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund. Inserted by Commission Regulation (EU) No 832/2010 of 17 September 2010 amending Regulation (EC) No 1828/2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund. Substituted by Commission Implementing Regulation (EU) No 1236/2011 of 29 November 2011 amending Regulation (EC) No 1828/2006 as regards investments through financial engineering instruments.