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;
[F4(b)[F5final recipients shall be informed that funding is provided under programmes co-financed by the ESI Funds, in accordance with the requirements laid down:
in Article 115 of Regulation (EU) No 1303/2013 for the ERDF, the ESF and the Cohesion Fund;
in Article 66(1)(c)(i) of Regulation (EU) No 1305/2013 of the European Parliament and of the Council(1) for the EAFRD;
in Article 97(1)(b) of Regulation (EU) No 508/2014 of the European Parliament and of the Council(2) for the EMFF;]]
(c)financial instruments provide support in a way which is proportionate and has the least distortive effect on competition;
[F3(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 [F6or, 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.
Textual Amendments
F3Substituted by Commission Delegated Regulation (EU) 2019/886 of 12 February 2019 amending and correcting Delegated Regulation (EU) No 480/2014 as regards the provisions on financial instruments, simplified cost options, audit trail, scope and content of audits of operations and methodology for the selection of the sample of operations and Annex III.
F4Substituted by Commission Delegated Regulation (EU) 2015/616 of 13 February 2015 amending Delegated Regulation (EU) No 480/2014 as regards references therein to Regulation (EU) No 508/2014 of the European Parliament and of the Council.
F5Art. 6(1)(b) omitted in so far as it applies to support for rural development and support under Regulation 508/2014 (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions Rules etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/783), regs. 1, 5(7); 2020 c. 1, Sch. 5 para. 1(1)
F6Words in Art. 6(3)(a) omitted in so far as they apply to domestic support for rural development (W.) (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 8(5)
Textual Amendments
F1Words in Ch. 2 heading substituted in so far as it applies to support for rural development and support under Regulation 508/2014 (31.12.2020) by The European Structural and Investment Funds Common Provisions Rules etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/783), regs. 1, 5(4); 2020 c. 1, Sch. 5 para. 1(1)
F2Words in Ch. 2 heading omitted in so far as it relates to domestic support for rural development (W.) (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 8(4)
[F4Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 ( OJ L 347, 20.12.2013, p. 487 ).]
[F4Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council ( OJ L 149, 20.5.2014, p. 1 ).]