CHAPTER IIPROVISIONS SUPPLEMENTING PART TWO OF REGULATION (EU) No 1303/2013 APPLICABLE TO THE ESI FUNDS SUPPORT FOR RURAL DEVELOPMENT AND SUPPORT UNDER REGULATION 508/2014

SECTION IIFinancial instruments

Article 6Specific rules on the role, liabilities and responsibility of bodies implementing financial instrumentsF1(Third subparagraph of Article 38(4) and Article 39a(7) of Regulation (EU) No 1303/2013)

1.

The bodies implementing financial instruments shall perform their obligations in accordance with applicable law and act with the degree of professional care, efficiency, transparency and diligence expected from a professional body experienced in implementing financial instruments. They shall ensure that:

(a)

final recipients receiving support from financial instruments are selected with due account taken of the nature of the financial instrument and the potential economic viability of investment projects to be financed. The selection shall be transparent and justified on objective grounds and shall not give rise to a conflict of interest;

F2(b)

F3final recipients shall be informed that funding is provided under programmes co-financed by the ESI Funds, in accordance with the requirements laid down:

  1. (i)

    in Article 115 of Regulation (EU) No 1303/2013 for the ERDF, the ESF and the Cohesion Fund;

  2. (ii)
    in Article 66(1)(c)(i) of Regulation (EU) No 1305/2013 of the European Parliament and of the Council3 for the EAFRD;
  3. (iii)
    in Article 97(1)(b) of Regulation (EU) No 508/2014 of the European Parliament and of the Council4 for the EMFF;

(c)

financial instruments provide support in a way which is proportionate and has the least distortive effect on competition;

F1(d)

differentiated treatment of investors operating under the market economy principle and of the EIB, when using the EU guarantee pursuant to Regulation (EU) 2015/2017, as referred to in Article 37(2)(c) and Article 43a of Regulation (EU) No 1303/2013, is proportionate to the risks taken by these investors and is limited to the minimum necessary to attract such investors, which shall be ensured through terms and conditions and procedural safeguards.

2.

As direct financial liability of the managing authority towards bodies implementing financial instruments or final recipients as well as its liability as regards any other debt or obligation of the financial instrument may not exceed the amount committed by the managing authority to the financial instrument under the relevant funding agreements, the bodies implementing financial instruments shall ensure that no claims can be made on the managing authority beyond the amount committed by it to the financial instrument.

3.

The bodies implementing financial instruments shall be liable for reimbursement of the programme contributions affected by irregularities, together with interest and any other gains generated by these contributions.

Nevertheless the bodies implementing financial instruments shall not be liable for reimbursement of the amounts referred to in the first subparagraph provided that they demonstrate for a given irregularity that the following cumulative conditions are fulfilled:

(a)

the irregularity occurred at the level of final recipients F4or, in the case of a fund of funds, at the level of financial intermediaries or final recipients;

(b)

the bodies implementing financial instruments complied with paragraph 1 of this Article in relation to the programme contributions affected by the irregularity;

(c)

the amounts affected by the irregularity could not be recovered notwithstanding that the bodies implementing financial instruments pursued all applicable contractual and legal measures with due diligence.