title: 2011/708/: Decision of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 16 June 2011 on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part#Air Transport Agreement#Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part

text:
               29.10.2011

               EN

               Official Journal of the European Union

               L 283/1

         DECISION OF THE COUNCIL AND OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN UNION, MEETING WITHIN THE COUNCIL
   of 16 June 2011
   on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part
   (2011/708/EU)
   THE COUNCIL AND THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN UNION, MEETING WITHIN THE COUNCIL,
   Having regard to the Treaty on the Functioning of the European Union and in particular Article 100(2), in conjunction with Article 218(5) and the first subparagraph of Article 218(8) thereof,
   Having regard to the proposal from the European Commission,
   Whereas:

               (1)

               The Air Transport Agreement between the European Community and its Member States, on the one hand, and the United States of America, on the other hand (1) (‘the Air Transport Agreement’), signed by the United States of America and the Member States of the European Community and the European Community on 25 and 30 April 2007, as amended by the Protocol to amend the Air Transport Agreement between the United States of America and the European Community and its Member States, signed on 25 and 30 April 2007 (2) (‘the Protocol’), signed by the United States of America, the Member States of the European Union and the European Union on 24 June 2010, explicitly provides for the accession of third countries to the Air Transport Agreement.

               (2)

               In accordance with Article 18(5) of the Air Transport Agreement, as amended by the Protocol, the Joint Committee established thereunder has developed a proposal for the accession of Iceland and the Kingdom of Norway to the Air Transport Agreement, as amended by the Protocol.

               (3)

               On 16 November 2010 the Joint Committee proposed an Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part (‘the Accession Agreement’).

               (4)

               The Commission has negotiated an Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part (‘the Ancillary Agreement’).

               (5)

               The Accession Agreement and the Ancillary Agreement should be signed and applied on a provisional basis, pending the completion of the procedures for their conclusion,

         HAVE ADOPTED THIS DECISION:
   Article 1
   The signing of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part and of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part, is hereby authorised on behalf of the Union, subject to the conclusion of the said Agreements.
   The texts of the Accession Agreement and of the Ancillary Agreement are attached to this Decision.
   Article 2
   The President of the Council is hereby authorised to designate the person(s) empowered to sign the Accession Agreement and the Ancillary Agreement on behalf of the Union.
   Article 3
   The Accession Agreement and the Ancillary Agreement shall be applied on a provisional basis as from the date of signature (3) by the Union and, to the extent permitted under applicable national law, by its Member States and by the relevant Parties, pending the completion of the procedures for their conclusion.
   Article 4
   This Decision shall enter into force on the day of its adoption.

      Done at Luxembourg, 16 June 2011.

            The President

         VÖLNER P.

      (1)  OJ L 134, 25.5.2007, p. 4.

      (2)  OJ L 223, 25.8.2010, p. 3.

      (3)  The date of signature of the Accession Agreement and the Ancillary Agreement will be published in the Official Journal of the European Union by the General Secretariat of the Council.

      AIR TRANSPORT AGREEMENT
      THE UNITED STATES OF AMERICA (hereinafter, ‘the United States’),
      of the first part;
      THE KINGDOM OF BELGIUM,
      THE REPUBLIC OF BULGARIA,
      THE CZECH REPUBLIC,
      THE KINGDOM OF DENMARK,
      THE FEDERAL REPUBLIC OF GERMANY,
      THE REPUBLIC OF ESTONIA,
      IRELAND,
      THE HELLENIC REPUBLIC,
      THE KINGDOM OF SPAIN,
      THE FRENCH REPUBLIC,
      THE ITALIAN REPUBLIC,
      THE REPUBLIC OF CYPRUS,
      THE REPUBLIC OF LATVIA,
      THE REPUBLIC OF LITHUANIA,
      THE GRAND DUCHY OF LUXEMBOURG,
      THE REPUBLIC OF HUNGARY,
      MALTA,
      THE KINGDOM OF THE NETHERLANDS,
      THE REPUBLIC OF AUSTRIA,
      THE REPUBLIC OF POLAND,
      THE PORTUGUESE REPUBLIC,
      ROMANIA,
      THE REPUBLIC OF SLOVENIA,
      THE SLOVAK REPUBLIC,
      THE REPUBLIC OF FINLAND,
      THE KINGDOM OF SWEDEN,
      THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
      being parties to the Treaty on European Union and the Treaty on the Functioning of the European Union and being Member States of the European Union (hereinafter, ‘the Member States’),
      and
      THE EUROPEAN UNION,
      of the second part;
      ICELAND,
      of the third part; and
      THE KINGDOM OF NORWAY (hereinafter, ‘Norway’),
      of the fourth part;
      DESIRING to promote an international aviation system based on competition among airlines in the marketplace with minimum government interference and regulation;
      DESIRING to facilitate the expansion of international air transport opportunities, including through the development of air transportation networks to meet the needs of passengers and shippers for convenient air transportation services;
      DESIRING to make it possible for airlines to offer the travelling and shipping public competitive prices and services in open markets;
      DESIRING to have all sectors of the air transport industry, including airline workers, benefit in a liberalised agreement;
      DESIRING to ensure the highest degree of safety and security in international air transport and reaffirming their grave concern about acts or threats against the security of aircraft, which jeopardise the safety of persons or property, adversely affect the operation of air transportation, and undermine public confidence in the safety of civil aviation;
      NOTING the Convention on International Civil Aviation, opened for signature at Chicago on December 7, 1944;
      RECOGNISING that government subsidies may adversely affect airline competition and may jeopardise the basic objectives of this Agreement;
      AFFIRMING the importance of protecting the environment in developing and implementing international aviation policy;
      NOTING the importance of protecting consumers, including the protections afforded by the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal May 28, 1999;
      INTENDING to build upon the framework of existing agreements with the goal of opening access to markets and maximising benefits for consumers, airlines, labour, and communities on both sides of the Atlantic;
      RECOGNISING the importance of enhancing the access of their airlines to global capital markets in order to strengthen competition and promote the objectives of this Agreement;
      INTENDING to establish a precedent of global significance to promote the benefits of liberalisation in this crucial economic sector;
      RECOGNISING that the European Union replaced and succeeded the European Community as a consequence of the entry into force on December 1, 2009 of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, and that as of that date, all the rights and obligations of, and all the references to the European Community in the Air Transport Agreement signed by the United States of America and the European Community and its Member States on April 25 and 30, 2007, apply to the European Union;
      HAVE AGREED AS FOLLOWS:
      Article 1
      Definition
      ‘Party’ means the United States, the European Union and its Member States, Iceland, or Norway.
      Article 2
      Application of the Air Transport Agreement as amended by the Protocol and the Annex to this Agreement
      The provisions of the Air Transport Agreement signed by the United States of America and the European Community and its Member States on April 25 and 30, 2007 (hereinafter, ‘the Air Transport Agreement’), as amended by the Protocol to Amend the Air Transport Agreement signed by the United States of America and the European Union and its Member States on June 24, 2010 (hereinafter, ‘the Protocol’), which are hereby incorporated by reference, shall apply to all Parties to this Agreement, subject to the Annex to this Agreement. The provisions of the Air Transport Agreement, as amended by the Protocol, shall apply to Iceland and Norway as though they were Member States of the European Union, so that Iceland and Norway shall have all of the rights and obligations of Member States under that agreement. The provisions of the Annex to this Agreement form an integral part of this Agreement.
      Article 3
      Termination or cessation of provisional application
      1.   Either the United States or the European Union and its Member States may, at any time, give notice in writing through diplomatic channels to the other three Parties of its decision to terminate this Agreement or to end this Agreement’s provisional application under Article 5.
      A copy of the notice shall be sent simultaneously to the International Civil Aviation Organization (ICAO). This Agreement shall terminate, or provisional application of this Agreement shall end, at midnight GMT at the end of the International Air Transport Association (IATA) traffic season in effect one year following the date of the written notification, unless the notice is withdrawn by agreement of all of the Parties before the end of this period.
      2.   Either Iceland or Norway may, at any time, give notice in writing through diplomatic channels to the other Parties of its decision to withdraw from this Agreement or to end its provisional application of this Agreement under Article 5. A copy of the notice shall be sent simultaneously to ICAO. Such withdrawal or cessation of provisional application shall be effective at midnight GMT at the end of the IATA traffic season in effect one year following the date of written notification, unless the notice is withdrawn by agreement of the Party giving written notice, the United States, and the European Union and its Member States before the end of this period.
      3.   Either the United States or the European Union and its Member States may, at any time, give notice in writing through diplomatic channels to Iceland or Norway of its decision to terminate this Agreement or to end this Agreement’s provisional application, with respect to Iceland or Norway. Copies of the notice shall be sent simultaneously to the other two Parties to this Agreement and to ICAO. Termination or cessation of provisional application with respect to Iceland or Norway shall be effective at midnight GMT at the end of the IATA traffic season in effect one year following the date of written notification, unless the notice is withdrawn by agreement of the United States, the European Union and its Member States, and the Party receiving the notice, before the end of this period.
      4.   For purposes of the diplomatic notes contemplated by this Article, diplomatic notes to or from the European Union and its Member States shall be delivered to or from, as the case may be, the European Union.
      5.   Notwithstanding any other provision of this Article, if the Air Transport Agreement, as amended by the Protocol, is terminated, this Agreement shall terminate simultaneously.
      Article 4
      Registration with ICAO
      This Agreement and all amendments thereto shall be registered with ICAO by the General Secretariat of the Council of the European Union.
      Article 5
      Provisional Application
      Pending its entry into force, the Parties agree to provisionally apply this Agreement, to the extent permitted under applicable domestic law, from the date of signature. If the Air Transport Agreement, as amended by the Protocol, is terminated in accordance with Article 23 thereof, or its provisional application ceases in accordance with Article 25 of that agreement, or provisional application of the Protocol ceases in accordance with Article 9 of the Protocol, provisional application of this Agreement shall cease simultaneously.
      Article 6
      Entry into force
      This Agreement shall enter into force on the later of:

                  1.

                  the date of entry into force of the Air Transport Agreement;

                  2.

                  the date of entry into force of the Protocol; and

                  3.

                  one month after the date of the last note of the exchanges of diplomatic notes among the Parties confirming that all necessary procedures for entry into force of this Agreement have been completed.

            For the purposes of this exchange of diplomatic notes, diplomatic notes to or from the European Union and its Member States shall be delivered to or from, as the case may be, the European Union. The diplomatic note or notes from the European Union and its Member States shall contain communications from each Member State confirming that its necessary procedures for entry into force of this Agreement have been completed.

         IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Agreement.
         Done at Luxembourg and Oslo, in quadruplicate, on the sixteenth and twenty-first of June 2011 respectively.

            For the United States of America

            За Европейския съюз
            Por la Unión Europea
            Za Evropskou unii
            For Den Europæiske Union
            Für die Europäische Union
            Euroopa Liidu nimel
            Για την Ευρωπαϊκή Ένωση
            For the European Union
            Pour l’Union européenne
            Per l’Unione europea
            Eiropas Savienības vārdā –
            Europos Sąjungos vardu
            Az Európai Unió részéről
            Għall-Unjoni Ewropea
            Voor de Europese Unie
            W imieniu Unii Europejskiej
            Pela União Europeia
            Pentru Uniunea Europeană
            Za Európsku úniu
            Za Evropsko unijo
            Euroopan unionin puolesta
            För Europeiska unionen

            Fyrir Ísland

            For Kongeriket Norge

            Voor het Koninkrijk België
            Pour le Royaume de Belgique
            Für das Königreich Belgien

            Deze handtekening verbindt eveneens het Vlaamse Gewest, het Waalse Gewest en het Brussels Hoofdstedelijk Gewest.
            Cette signature engage également la Région wallonne, la Région flamande et la Région de Bruxelles-Capitale.
            Diese Unterschrift bindet zugleich die Wallonische Region, die Flämische Region und die Region Brüssel-Hauptstadt.

            За Репyблика Бългaрия

            Za Českou republiku

            For Kongeriget Danmark

            Für die Bundesrepublik Deutschland

            Eesti Vabariigi nimel

            Thar cheann Na hÉireann
            For Ireland

            Για την Ελληνική Δημοκρατία

            Por el Reino de España

            Pour la République française

            Per la Repubblica italiana

            Για την Κυπριακή Δημοκρατία

            Latvijas Republikas vārdā –

            Lietuvos Respublikos vardu

            Pour le Grand-Duché de Luxembourg

            A Magyar Köztársaság részéről

            Għal Malta

            Voor het Koninkrijk der Nederlanden

            Für die Republik Österreich

            W imieniu Rzeczypospolitej Polskiej

            Pela República Portuguesa

            Pentru România

            Za Republiko Slovenijo

            Za Slovenskú republiku

            Suomen tasavallan puolesta
            För Republiken Finland

            För Konungariket Sverige

            For the United Kingdom of Great Britain and Northern Ireland

         JOINT DECLARATION
         Representatives of the United States of America, the European Union and its Member States, Iceland, and the Kingdom of Norway confirmed that the text of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part ("the Agreement"), is to be authenticated in other languages, as provided either, before signature of the Agreement, by Exchanges of Letters or, after signature of the Agreement, by decision of the Joint Committee.
         This Joint Declaration is an integral part of the Agreement.

               For the United States of America

               For the European Union and its Member States

               For Iceland

               For the Kingdom of Norway

         ANNEX

            Specific provisions with respect to Iceland and Norway

         The provisions of the Air Transport Agreement, as amended by the Protocol, modified as follows, shall apply to all Parties to this Agreement. The provisions of the Air Transport Agreement, as amended by the Protocol, shall apply to Iceland and Norway as though they were Member States of the European Union, so that Iceland and Norway shall have all of the rights and obligations of Member States under that agreement, subject to the following:

                     1.

                     Paragraph 9 of Article 1 of the Air Transport Agreement, as amended by the Protocol, shall read as follows:
                     ‘ “Territory” means, for the United States, the land areas (mainland and islands), internal waters and territorial sea under its sovereignty or jurisdiction, and, for the European Union and its Member States, the land areas (mainland and islands), internal waters and territorial sea in which the Agreement on the European Economic Area is applied and under the conditions laid down in that agreement and any successor instrument, with the exception of the land areas and internal waters under the sovereignty or jurisdiction of the Principality of Liechtenstein; application of this Agreement to Gibraltar airport is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated, and to the continuing suspension of Gibraltar Airport from European Union aviation measures existing as at 18 September 2006 as between Member States, in accordance with the Ministerial statement on Gibraltar Airport agreed in Córdoba on 18 September 2006; and’.

                     2.

                     Articles 23 to 26 of the Air Transport Agreement, as amended by the Protocol, shall not apply to Iceland and Norway.

                     3.

                     Articles 9 and 10 of the Protocol shall not apply to Iceland and Norway.

                     4.

                     The following shall be added to Section 1 of Annex 1 of the Air Transport Agreement, as amended by the Protocol:

                                 ‘w.

                                 Iceland: Air Transport Agreement, signed at Washington June 14, 1995; amended March 1, 2002 by exchange of notes; amended August 14, 2006 and March 9, 2007 by exchange of notes.

                                 x.

                                 The Kingdom of Norway: Agreement relating to Air Transport Services effected by exchange of notes at Washington, October 6, 1945; amended August 6, 1954 by exchange of notes; amended June 16, 1995 by exchange of notes.’.

                     5.

                     The text of Section 2 of Annex 1 of the Air Transport Agreement, as amended by the Protocol, shall read as follows:
                     ‘Notwithstanding Section 1 of this Annex, for areas that are not encompassed within the definition of ‘territory’ in Article 1 of this Agreement, the agreements in paragraphs (e) (Denmark-United States), (g) (France-United States), (v) (United Kingdom-United States), and (x) (Norway-United States) of that section shall continue to apply, according to their terms.’.

                     6.

                     The text of Section 3 of Annex 1 of the Air Transport Agreement, as amended by the Protocol, shall read as follows:
                     ‘Notwithstanding Article 3 of this Agreement, U.S. airlines shall not have the right to provide all-cargo services, that are not part of a service that serves the United States, to or from points in the Member States, except to or from points in the Czech Republic, the French Republic, the Federal Republic of Germany, the Grand Duchy of Luxembourg, Malta, the Republic of Poland, the Portuguese Republic, the Slovak Republic, Iceland, and the Kingdom of Norway.’.

                     7.

                     The following sentence shall be added at the end of Article 3 of Annex 2 of the Air Transport Agreement, as amended by the Protocol:
                     ‘For Iceland and Norway, this includes, but is not limited to, Articles 53, 54, and 55 of the Agreement on the European Economic Area and the European Union Regulations implementing Articles 101, 102 and 105 of the Treaty on the Functioning of the European Union as incorporated into the Agreement on the European Economic Area, as well as any amendments thereto.’.

                     8.

                     Paragraph 4 of Article 21 of the Air Transport Agreement, as amended by the Protocol, shall apply to Iceland and Norway to the extent that the relevant laws and regulations of the European Union are incorporated into the Agreement on the European Economic Area, in accordance with any adaptations thereby stipulated. The rights provided for in subparagraphs 4(a) and 4(b) of Article 21 of the Air Transport Agreement, as amended by the Protocol, shall only be available to Iceland or Norway if, with respect to the imposition of noise-based operating restrictions, Iceland or Norway, respectively, is subject, under the relevant laws and regulations of the European Union as incorporated into the Agreement on the European Economic Area, to oversight that is comparable to that provided for in paragraph 4 of Article 21 of the Air Transport Agreement, as amended by the Protocol.

      ANCILLARY AGREEMENT
      between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part
      THE KINGDOM OF BELGIUM,
      THE REPUBLIC OF BULGARIA,
      THE CZECH REPUBLIC,
      THE KINGDOM OF DENMARK,
      THE FEDERAL REPUBLIC OF GERMANY,
      THE REPUBLIC OF ESTONIA,
      IRELAND,
      THE HELLENIC REPUBLIC,
      THE KINGDOM OF SPAIN,
      THE FRENCH REPUBLIC,
      THE ITALIAN REPUBLIC,
      THE REPUBLIC OF CYPRUS,
      THE REPUBLIC OF LATVIA,
      THE REPUBLIC OF LITHUANIA,
      THE GRAND DUCHY OF LUXEMBOURG,
      THE REPUBLIC OF HUNGARY,
      MALTA,
      THE KINGDOM OF THE NETHERLANDS,
      THE REPUBLIC OF AUSTRIA,
      THE REPUBLIC OF POLAND,
      THE PORTUGUESE REPUBLIC,
      ROMANIA,
      THE REPUBLIC OF SLOVENIA,
      THE SLOVAK REPUBLIC,
      THE REPUBLIC OF FINLAND,
      THE KINGDOM OF SWEDEN,
      THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
      being parties to the Treaty on European Union and to the Treaty on the Functioning of the European Union and being Member States of the European Union (hereinafter, ‘the Member States’),
      and
      THE EUROPEAN UNION,
      of the first part;
      ICELAND,
      of the second part;
      and
      THE KINGDOM OF NORWAY (hereinafter, ‘Norway’),
      of the third part;
      NOTING that the European Commission has negotiated, on behalf of the European Union and of the Member States, an Agreement on Air Transport with the United States of America in accordance with the Council Decision authorising the Commission to open negotiations,
      NOTING that the Air Transport Agreement between the United States of America and the European Community and its Member States (hereinafter, ‘the Air Transport Agreement’) was initialled on 2 March 2007, signed at Brussels on 25 April 2007 and at Washington, D.C. on 30 April 2007 and provisionally applied from 30 March 2008,
      NOTING that the Air Transport Agreement was amended by the Protocol to amend the Air Transport Agreement between the United States of America and the European Union and its Member States (hereinafter, ‘the Protocol’), initialled on 25 March 2010, and signed at Luxembourg on 24 June 2010,
      NOTING that Iceland and Norway, being fully integrated members of the single European Aviation Market through the Agreement on the European Economic Area, have adhered to the Air Transport Agreement as amended by the Protocol through an Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part (hereinafter ‘the Agreement’), of even date, which incorporates the Air Transport Agreement as amended by the Protocol,
      RECOGNISING that it is necessary to lay down procedural arrangements for deciding, if appropriate, how to take measures pursuant to Article 21, paragraph 5 of the Air Transport Agreement as amended by the Protocol,
      RECOGNISING that it is furthermore necessary to lay down procedural arrangements for the participation of Iceland and Norway in the Joint Committee set up under Article 18 of the Air Transport Agreement as amended by the Protocol and in the arbitration procedures provided for in Article 19 of the Air Transport Agreement as amended by the Protocol. These procedural arrangements should ensure the necessary cooperation, flow of information and consultation before Joint Committee meetings, as well as the implementation of certain provisions of the Air Transport Agreement as amended by the Protocol, including those concerning security, safety, the granting and revocation of traffic rights and government support,
      HAVE AGREED AS FOLLOWS:
      Article 1
      Notification
      Should the European Union and its Member States decide to terminate the Agreement in accordance with Article 3 of the Agreement or to discontinue its provisional application, or to withdraw notices to that effect, the Commission shall, before giving notice through diplomatic channels to the United States of America, immediately notify Iceland and Norway thereof. Iceland and/or Norway shall likewise immediately notify the Commission of any such decision.
      Article 2
      Suspension of Traffic Rights
      A decision not to allow airlines of the other Party to operate additional frequencies or enter new markets under the Agreement and give notice thereof to the United States of America, or to agree to lift any such decision, taken in accordance with Article 21, paragraph 5 of the Air Transport Agreement as amended by the Protocol, shall be adopted by the Council, on behalf of the European Union and of the Member States, acting unanimously in accordance with the relevant Treaty provisions, and by Iceland and Norway. The President of the Council, acting on behalf of the European Union and of the Member States, Iceland and Norway shall then give notice to the United States of America of any such decision.
      Article 3
      Joint Committee
      1.   The European Union, the Member States, Iceland and Norway shall be represented in the Joint Committee established under Article 18 of the Air Transport Agreement as amended by the Protocol by representatives of the Commission, the Member States, Iceland and Norway.
      2.   The position of the European Union, the Member States, Iceland and Norway within the Joint Committee shall be presented by the Commission, except in areas within the EU that fall exclusively within Member States’ competence, in which case it shall be presented by the Presidency of the Council or by the Commission, Iceland and Norway as appropriate.
      3.   The position to be taken by Iceland and Norway within the Joint Committee as regards matters that fall within Articles 14 or 20 of the Air Transport Agreement as amended by the Protocol, or matters that do not require the adoption of a decision having legal effects shall be adopted by the Commission in agreement with Iceland and Norway.
      4.   For other Joint Committee decisions concerning matters that fall within regulations and directives that are incorporated in the Agreement on the European Economic Area, the position to be taken by Iceland and Norway shall be adopted by Iceland and Norway on a proposal from the Commission.
      5.   For other Joint Committee decisions concerning matters that fall outside regulations and directives that are incorporated in the Agreement on the European Economic Area, the position to be taken by Iceland and Norway, shall be adopted by Iceland and Norway in agreement with the Commission.
      6.   The Commission shall take adequate measures to ensure full participation of Iceland and Norway in any coordination, consultation or decision shaping meetings with the Member States and access to the relevant information in preparation to Joint Committee meetings to be held.
      Article 4
      Arbitration
      1.   The Commission shall represent the European Union, the Member States, Iceland and Norway in arbitration proceedings under Article 19 of the Air Transport Agreement as amended by the Protocol.
      2.   The Commission shall, as appropriate, take measures to ensure the involvement of Iceland and Norway in the preparation and coordination of arbitration proceedings.
      3.   If the Council decides to suspend benefits in accordance with Article 19, paragraph 7 of the Air Transport Agreement as amended by the Protocol that decision shall be notified to Iceland and Norway. Iceland and/or Norway shall likewise inform the Commission of any such decision made.
      4.   Any other appropriate action to be taken under Article 19 of the Air Transport Agreement as amended by the Protocol on matters which within the EU fall within the Union competence shall be decided upon by the Commission, with assistance of a Special Committee of representatives of the Member States appointed by the Council, of Iceland and of Norway.
      Article 5
      Exchange of Information
      1.   Iceland and Norway shall promptly inform the Commission of any decision to refuse, revoke, suspend or limit the authorisations of an airline of the United States of America that they have adopted under Article 4 or 5 of the Air Transport Agreement as amended by the Protocol. The Commission shall likewise promptly inform Iceland and Norway of any such decision taken by Member States.
      2.   Iceland and Norway shall inform the Commission immediately of any requests or notifications made or received by them under Article 8 of the Air Transport Agreement as amended by the Protocol. The Commission shall likewise immediately inform Iceland and Norway of any such requests or notifications made or received by Member States.
      3.   Iceland and Norway shall inform the Commission immediately of any requests or notifications made or received by them under Article 9 of the Air Transport Agreement as amended by the Protocol. The Commission shall likewise immediately inform Iceland and Norway of any such requests or notifications made or received by Member States.
      Article 6
      Government subsidies and support
      1.   Should Iceland or Norway believe that a subsidy or support being considered or provided by a governmental entity in the territory of the United States of America will have the adverse competitive effects referred to in Article 14, paragraph 2 of the Air Transport Agreement as amended by the Protocol, it shall bring the matter to the attention of the Commission. Should a Member State have brought a similar matter to the attention of the Commission, the Commission shall likewise bring the matter to the attention of Iceland and Norway.
      2.   The Commission, Iceland and Norway may approach such entity or request a meeting of the Joint Committee established under Article 18 of the Air Transport Agreement as amended by the Protocol.
      3.   The Commission, Iceland and Norway shall inform each other immediately when they are contacted by the United States of America under Article 14, paragraph 3 of the Air Transport Agreement as amended by the Protocol.
      Article 7
      Termination or cessation of provisional application
      1.   A Party may, at any time, give notice in writing through diplomatic channels to the other Parties of its decision to terminate this Ancillary Agreement or to end its provisional application. This Ancillary Agreement shall terminate or shall cease to be provisionally applied at midnight GMT six months following the date of the written notification of termination or of cessation of provisional application, unless the notice is withdrawn by agreement of the Parties before the end of this period.
      2.   Notwithstanding any other provision of this Article, if the Agreement is terminated or its provisional application is ended, this Ancillary Agreement shall simultaneously terminate or cease to be provisionally applied.
      Article 8
      Provisional application
      Pending entry into force pursuant to Article 9, the Parties agree to provisionally apply this Ancillary Agreement, to the extent permitted under applicable domestic law, from the later of the date of the signature of this Ancillary Agreement or of the date specified in Article 5 of the Agreement.
      Article 9
      Entry into force
      This Ancillary Agreement shall enter into force either (a) one month after the date of the latest note in exchange of diplomatic notes between the Parties confirming that all necessary procedures for entry into force of this Ancillary Agreement have been completed, or (b) on the date of entry into force of the Agreement, whichever is the later.

         IN WITNESS WHEREOF, the undersigned, duly authorised to that effect, have signed this Ancillary Agreement.
         Done at Luxembourg and Oslo, in triplicate, on the 16th and 21st of June 2011 respectively, in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Icelandic, Italian, Latvian, Lithuanian, Maltese, Norwegian, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, all texts being authentic.

            За Европейския съюз
            Por la Unión Europea
            Za Evropskou unii
            For Den Europæiske Union
            Für die Europäische Union
            Euroopa Liidu nimel
            Για την Ευρωπαϊκή Ένωση
            For the European Union
            Pour l'Union européenne
            Per l'Unione europea
            Eiropas Savienības vārdā –
            Europos Sąjungos vardu
            Az Európai Unió részéről
            Għall-Unjoni Ewropea
            Voor de Europese Unie
            W imieniu Unii Europejskiej
            Pela União Europeia
            Pentru Uniunea Europeană
            Za Európsku úniu
            Za Evropsko unijo
            Euroopan unionin puolesta
            För Europeiska unionen

            Fyrir Ísland

            For Kongeriket Norge

            Voor het Koninkrijk België
            Pour le Royaume de Belgique
            Für das Königreich Belgien

            Deze handtekening verbindt eveneens het Vlaamse Gewest, het Waalse Gewest en het Brussels Hoofdstedelijk Gewest.
            Cette signature engage également la Région wallonne, la Région flamande et la Région de Bruxelles-Capitale.
            Diese Unterschrift bindet zugleich die Wallonische Region, die Flämische Region und die Region Brüssel-Hauptstadt.

            За Репyблика Бългaрия

            Za Českou republiku

            For Kongeriget Danmark

            Für die Bundesrepublik Deutschland

            Eesti Vabariigi nimel

            Thar cheann Na hÉireann
            For Ireland

            Για την Ελληνική Δημοκρατία

            Por el Reino de España

            Pour la République française

            Per la Repubblica italiana

            Για την Κυπριακή Δημοκρατία

            Latvijas Republikas vārdā –

            Lietuvos Respublikos vardu

            Pour le Grand-Duché de Luxembourg

            A Magyar Köztársaság részéről

            Għal Malta

            Voor het Koninkrijk der Nederlanden

            Für die Republik Österreich

            W imieniu Rzeczypospolitej Polskiej

            Pela República Portuguesa

            Pentru România

            Za Republiko Slovenijo

            Za Slovenskú republiku

            Suomen tasavallan puolesta
            För Republiken Finland

            För Konungariket Sverige

            For the United Kingdom of Great Britain and Northern Ireland


title: 2012/592/EU: Decision of the European Parliament of 10 May 2012 on discharge in respect of the implementation of the budget of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010#Resolution of the European Parliament of 10 May 2012 with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010

text:
               17.10.2012

               EN

               Official Journal of the European Union

               L 286/258

         DECISION OF THE EUROPEAN PARLIAMENT
   of 10 May 2012
   on discharge in respect of the implementation of the budget of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010
   (2012/592/EU)
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010,

               —

               having regard to the Court of Auditors’ report on the annual accounts of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010, together with the Foundation’s replies (1),

               —

               having regard to the Council’s recommendation of 21 February 2012 (06083/2012 – C7-0051/2012),

               —

               having regard to Article 319 of the Treaty on the Functioning of the European Union,

               —

               having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

               —

               having regard to Regulation (EEC) No 1365/75 of the Council of 26 May 1975 on the creation of a European Foundation for the Improvement of Living and Working Conditions (3), and in particular Article 16 thereof,

               —

               having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

               —

               having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

               —

               having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Employment and Social Affairs (A7-0116/2012),

               1.

               Grants the Director of the European Foundation for the Improvement of Living and Working Conditions discharge in respect of the implementation of the Foundation’s budget for the financial year 2010;

               2.

               Sets out its observations in the Resolution below;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Director of the European Foundation for the Improvement of Living and Working Conditions, the Council, the Commission and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Martin SCHULZ

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 366, 15.12.2011, p. 150.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 139, 30.5.1975, p. 1.

      (4)  OJ L 357, 31.12.2002, p. 72.

      RESOLUTION OF THE EUROPEAN PARLIAMENT
      of 10 May 2012
      with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010
      THE EUROPEAN PARLIAMENT,

                  —

                  having regard to the final annual accounts of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010,

                  —

                  having regard to the Court of Auditors’ report on the annual accounts of the European Foundation for the Improvement of Living and Working Conditions for the financial year 2010, together with the Foundation’s replies (1),

                  —

                  having regard to the Council’s recommendation of 21 February 2012 (06083/2012 – C7-0051/2012),

                  —

                  having regard to Article 319 of the Treaty on the Functioning of the European Union,

                  —

                  having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

                  —

                  having regard to Regulation (EEC) No 1365/75 of the Council of 26 May 1975 on the creation of a European Foundation for the Improvement of Living and Working Conditions (3), and in particular Article 16 thereof,

                  —

                  having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

                  —

                  having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

                  —

                  having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Employment and Social Affairs (A7-0116/2012),

                  A.

                  whereas the Court of Auditors stated that it has obtained reasonable assurances that the annual accounts for the financial year 2010 are reliable and that the underlying transactions are legal and regular,

                  B.

                  whereas on 10 May 2011 Parliament granted the Director of the European Foundation for the Improvement of Living and Working Conditions discharge for the implementation of the Foundation’s budget for the financial year 2009 (5), and in its Resolution accompanying the discharge decision, inter alia:

                              —

                              called on the Foundation to provide evidence of its staff selection decisions (e.g. evidence of candidate thresholds at the beginning of the recruitment process) in order to guarantee the transparency of the recruitment procedures,

                              —

                              called on the Foundation to make sure appropriations are made available only when the corresponding assigned revenue has been received,

                              —

                              noted that the Court of Auditors was compelled to comment on the budgetary and financial statement of the Foundation which contained serious shortcomings, signalling weaknesses in its financial organisation,

                  C.

                  whereas the overall Agency budget for the financial year 2010 was EUR 20 900 000, which represents an increase of 3,4 % over the financial year 2009; whereas the initial contribution of the Union to the budget of the Agency for 2010 was EUR 19 067 159 compared to EUR 19 450 000 in 2009 (6), which represents a decrease of 0,97 %,

         Follow-up of the Court of Auditors’ observations of 2009

                  1.

                  Acknowledges from its Annual Activity Report (AAR) that the Foundation undertook the commitments and actions below following the Court of Auditors’ observations of 2009:

                              —

                              the Foundation committed itself to pay closer attention to the fact that, in future, appropriations are only to be made available when the corresponding assigned revenue has been received,

                              —

                              the Foundation committed to substantially improve the efforts for the closure of the 2010 accounts through additional training and resources; it was ensured that all deadlines were kept with regard to the 2010 accounts and that no major weaknesses were detected in the provisional 2010 accounts,

                              —

                              the missing Register of Exceptions was implemented on 1 July 2010,

                              —

                              for staff selection procedures no evidence was found that thresholds which the candidates had to meet for invitation to interviews and for being part of the reserve list were set before examining applications; the Foundation has now included these thresholds in the reports of its Selection Committee,

                              —

                              the Foundation took measures to further strengthen evaluation and review procedures in an effort to avoid errors in the procurement procedure in the future;

                  2.

                  Calls on the Court of Auditors to confirm to the discharge authority that these actions and commitments are sufficient to redress the deficiencies found in the Foundation by the Court in 2009;

         Budget and Financial management

                  3.

                  Recalls that the initial Union contribution to the Agency for 2010 amounted to EUR 19 067 159; notes however that EUR 762 841, which came from the recovery of surplus, was added to this which, as a result, makes a total Union contribution of EUR 19 830 000 for 2010;

                  4.

                  Takes note from entries in its Annual Accounts that the Foundation published an amended budget totalling EUR 20 848 000 very close to the year-end 2010; regrets the absence of information from the Agency on the reasons behind these changes; calls on the Agency to remedy the situation and inform the discharge authority about this matter;

                  5.

                  Notes from its AAR that the Foundation had an execution rate of 98 % in terms of committed appropriations; notes in particular from the Annual Accounts that the utilisation rate of the Foundation under Title I (Staff expenditures), Title II (Administration) and Title III (Operational expenditures) were respectively of 99,8 %, 95,1 % and 96 %;

                  6.

                  Establishes from the Annual Accounts of the Foundation that the utilisation of appropriations carried over from 2009 to 2010 amounted to 96,1 % in payment terms compared to 94,2 % in 2009;

         Human Resources

                  7.

                  Observes from the Foundation’s AAR that the percentage of staff posts filled, 91 %, has improved in 2010 compared to 2009 (78 %);

         Performance

                  8.

                  Underlines that the main activity of the Foundation is to contribute to the establishment of better living and working conditions by increasing and disseminating knowledge relevant to this subject through networks and surveys; observes that 68 % of the Foundation’s staff is allocated to these operative activities while the rest of staff is allocated to administrative tasks; considers it therefore of high importance for the discharge authority to assess the efficiency and the effectiveness of the surveys’ management process in the Foundation;

                  9.

                  Notes in particular that in 2010 the Foundation has undertaken the following activities within its Network of European Observatories and surveys:

                              —

                              within its European Industrial Relations Observatory (EIRO): 357 information updates added; five representativeness studies; annual updates on pay and working time and industrial action; annual review on industrial relations; six comparative analytical reports,

                              —

                              within its European Working Conditions Observatory (EWCO): 107 information updates added; six comparative analytical reports on occupational promotion of migrant workers and the self-employed,

                              —

                              within its European Restructuring Monitor (ERM): 1 258 restructuring fact sheets added; four comparative analytical reports,

                              —

                              within its second European Quality of Life Survey: secondary analysis report on family life and work,

                              —

                              within its third European Quality of Life Survey: preparation of field work,

                              —

                              within its fifth European Working Conditions Survey: field work with 44 000 interviews in 34 countries; publication of first findings (résumé),

                              —

                              within its European Company Survey: overview report published, secondary analysis on flexibility profiles of companies and on part-time work;

                  10.

                  Urges the Foundation to register all the decisions of the Governing Board on surveys as the efficiency and effectiveness in communicating these decisions may be affected in the absence of proper standards for documenting decisions made; acknowledges, in particular, that the Foundation is deficient in this respect and that the Chairperson of the Governing Board does not necessarily sign and date the decisions taken;

                  11.

                  Notes, in addition, that the Foundation’s Advisory Committees, responsible for the Governing Board giving input to the preparation and evaluation phases of surveys, do not have Terms of Reference nor Rules of Procedure for the organisation of their meetings; considers that these deficiencies may lead to a misunderstanding of the roles and responsibilities of the Advisory Committees with detrimental effects on the preparation of the surveys; calls therefore on the Foundation to address this situation and inform the discharge authority on the measures taken in this respect;

                  12.

                  Calls also on the Foundation to put in place written procedures describing its core activities; underlines that this could help the Foundation use its resources effectively and identify possible weaknesses;

                  13.

                  Notes, nevertheless, the Foundation’s efforts to strengthen control measures to improve the quality of its surveys; notes, in particular, that its staff visit some countries where the surveys are carried out to assess how contractors conduct interviews and its staff test the questionnaire used for conducting the surveys by carrying out cognitive interviews on a limited number of elements of the sample in some countries;

         Internal audit

                  14.

                  Notes that, since February 2010, the Foundation’s Deputy Director fulfils the role of Internal Control Coordinator; takes note that the annual work plan for internal control is monitored in quarterly meetings of an Internal Control committee with the Head of Administration, Head of Human Resources and Head of Operations;

                  15.

                  Acknowledges from the Foundation’ AAR that the internal audit activities in 2010 were built on the strategic audit plan 2009-2011 which is based on the 2008 risk assessment; notes also that a new risk assessment was carried out in February 2011 resulting in a new strategic audit plan for 2011-2013 with the following topics:

                              —

                              Audit on Surveys Management – second phase (2011),

                              —

                              Reporting/Building Blocks of Assurance (2012);

                  16.

                  Notes, moreover, that for 2012/2013 the prospective topics are:

                              —

                              HR Management: Recruitment, Training, Appraisal and Promotion System,

                              —

                              Products Quality Management/Customer relations/Stakeholders relations management,

                              —

                              Document Management,

                              —

                              Management of meetings;

                  17.

                  Notes that the Internal Audit Service (IAS) planed to perform in 2010 an audit on the Foundation’s surveys management; is concerned that due to limited availability of key Foundation staff during the audit engagement and incomplete documentation of the surveys management, the IAS was unable to collect sufficient audit evidence with regard to some modules of the risk-based scope; notes, however, that an additional phase of this audit was conducted at the beginning of 2011 and that the results will be presented in the annual internal audit report for 2011; calls on the Foundation to provide the discharge authority with this report in a timely manner;

                  18.

                  Is concerned that the IAS recommendation on the validation of Accounting Systems has been delayed; notes in particular that this recommendation is considered by the IAS as ‘critical’; urges the Foundation, therefore, to take immediate steps in this regard and to inform the discharge authority of the measures taken to redress this deficiency;

                  19.

                  Establishes that five ‘very important’ recommendations of the IAS were still open at year-end 2010; notes that these recommendations relate to the need to:

                              —

                              document the procedure for surveys management,

                              —

                              ensure that the information for the planning of surveys is accurate and of good quality and monitor the planned activities,

                              —

                              update procedures manual for procurement and re-enforce compliance and good practice,

                              —

                              document financial circuits,

                              —

                              put in place ex-post controls methodology,

                        notes from the Foundation’s AAR that the three ‘very important’ recommendations on Financial Management are reported as implemented by the Foundation while the Annual Internal Audit Report establishes that they suffer delay with respect to the original action plan of the Foundation; calls, therefore, on the Foundation and IAS to inform the discharge authority of the actual status of these particular recommendations;

                  20.

                  Urges the Foundation to properly address the recommendations issued by the IAS and to inform the discharge authority about the measures taken in this respect;

                  21.

                  Observes, nevertheless, in the Foundation’s AAR that following the IAS recommendation on Financial Management in 2009, the procedure for the ex-post verification was reviewed and updated with a risk assessment for the justification of the sample size selection;

                  22.

                  Draws attention to its recommendations from previous discharge reports, as set out in the Annex to this Resolution;

                  23.

                  Refers, in respect of the other observations accompanying its Decision on discharge, which are of a horizontal nature, to its Resolution of 10 May 2012 (7) on the performance, financial management and control of the agencies.

         (1)  OJ C 366, 15.12.2011, p. 150.

         (2)  OJ L 248, 16.9.2002, p. 1.

         (3)  OJ L 139, 30.5.1975, p. 1.

         (4)  OJ L 357, 31.12.2002, p. 72.

         (5)  OJ L 250, 27.9.2011, p. 210.

         (6)  OJ L 64, 12.3.2010, p. 505.

         (7)  Texts adopted, P7_TA(2012)0164 (see page 388 of this Official Journal).

      ANNEX

         EUROPEAN PARLIAMENT RECOMMENDATIONS OVER THE PREVIOUS YEARS

                  European Foundation for the Improvement of Living and Working conditions

                  2006

                  2007

                  2008

                  2009

                  Performance

                  n.a.

                  n.a.

                  Calls on the Foundation to set out a diachronic analysis of operations carried out in this and previous years, similarly to the ex-post analysis done in the previous years

                              —

                              Encourages the Foundation to further develop its ‘Eurofound Performance Monitoring System’ to ensure that the results of its performance monitoring are fed back into management decision making & planning & that periodic surveys are carried out in order to obtain feedback from target audiences

                              —

                              Supports the external evaluators recommendation to better define the Foundations target audiences at national level & to set up a network of focal points based on national authorities represented on its Governing Board

                  Operating appropriations carried over

                  The implementation rate for 2006 commitment appropriations was more than 97 %. Carryover rates were 43 % for operating activities. Thus, the budgetary principle of annuality was not strictly observed

                  n.a.

                  The Foundation should take action to prevent shortcomings in the planning and programming, in order to fulfil the principle of annuality

                              —

                              Calls on the Foundation to make sure appropriations are made available only when the corresponding assigned revenue has been received

                              —

                              Notes that the Court of Auditors was compelled to comment on the budgetary & financial statement of the Foundation which contained serious shortcomings, signally weaknesses in the financial organisation of the Foundation

                  Budget transfers without supporting documents

                  n.a.

                  n.a.

                  Budget transfers were not properly justified

                  n.a.

                  Procurement procedures

                  n.a.

                  Anomalies regarding the financial evaluation procedure and selection criteria not allowing proper performance of an evaluation of the final capacity of the candidates

                  Calls on the Foundations to take steps to improve the monitoring of its contracts and the programming of its procurement procedures

                  Calls on the Foundation to take steps to improve its evaluation & review procedure to avoid repetition of errors in its procurement procedure in the future

                  Human Resources

                  The recruitment procedure are not completely transparent and non-discriminatory

                  The recruitment procedure are not completely transparent and non-discriminatory

                              —

                              Calls on the Foundations to take steps to make better provision in advance for the departure of key staff member; to enter staff number in the activity report in a transparent manner

                              —

                              Improvements have been undertaken in the Foundation’s recruitment procedures

                  Calls on the Foundation to provide evidence of its staff selection decisions to guarantee the transparency of the recruitment procedures. Urges the Foundation to rapidly redress the situation & inform the discharge authority as to the progress made.

                  Internal Audit

                  Calls on improving the financial management: i.e. two contracts were not charged to the budget of the related year

                              —

                              Calls on improving the financial management: i.e. recoverable VAT for the 2007 financial year of EUR 376 611 was not claimed by the end of the year

                              —

                              Calls on the Foundation to take steps to improve its financial statements

                              —

                              Calls on the Foundation to take steps to fulfil 28 out of 54 recommendations made by the Internal Audit Service → i.e. to put in place the internal control standards; to follow up the implementation of other internal control standards; to introduce an effective planning and monitoring system

                              —

                              2 out of the 8 recommendations of the IAS have been implemented

                              —

                              Urges the Foundation to implement the recommendations of the IAS Financial Management report without delay & inform the discharge authority on the progress made in this respect


title: 2012/574/EU: Decision of the European Parliament of 10 May 2012 on discharge in respect of the implementation of the budget of the European Chemicals Agency for the financial year 2010#Resolution of the European Parliament of 10 May 2012 with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Chemicals Agency for the financial year 2010

text:
               17.10.2012

               EN

               Official Journal of the European Union

               L 286/192

         DECISION OF THE EUROPEAN PARLIAMENT
   of 10 May 2012
   on discharge in respect of the implementation of the budget of the European Chemicals Agency for the financial year 2010
   (2012/574/EU)
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the European Chemicals Agency for the financial year 2010,

               —

               having regard to the Court of Auditors’ report on the annual accounts of the European Chemicals Agency for the financial year 2010, together with the Agency’s replies (1),

               —

               having regard to the Council’s recommendation of 21 February 2012 (06083/2012 – C7-0051/2012),

               —

               having regard to Article 319 of the Treaty on the Functioning of the European Union,

               —

               having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

               —

               having regard to Regulation (EC) No 1907/2006 of the European Parliament and of the Council (3) establishing a European Chemicals Agency, and in particular Article 97 thereof,

               —

               having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

               —

               having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

               —

               having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on the Environment, Public Health and Food Safety (A7-0126/2012),

               1.

               Grants the Executive Director of the European Chemicals Agency discharge in respect of the implementation of the Agency’s budget for the financial year 2010;

               2.

               Sets out its observations in the resolution below;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Executive Director of the European Chemicals Agency, the Council, the Commission and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Martin SCHULZ

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 366, 15.12.2011, p. 33.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 396, 30.12.2006, p. 1.

      (4)  OJ L 357, 31.12.2002, p. 72.

      RESOLUTION OF THE EUROPEAN PARLIAMENT
      of 10 May 2012
      with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Chemicals Agency for the financial year 2010
      THE EUROPEAN PARLIAMENT,

                  —

                  having regard to the final annual accounts of the European Chemicals Agency for the financial year 2010,

                  —

                  having regard to the Court of Auditors’ report on the annual accounts of the European Chemicals Agency for the financial year 2010, together with the Agency’s replies (1),

                  —

                  having regard to the Council’s recommendation of 21 February 2012 (06083/2012 – C7-0051/2012),

                  —

                  having regard to Article 319 of the Treaty on the Functioning of the European Union,

                  —

                  having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (2), and in particular Article 185 thereof,

                  —

                  having regard to Regulation (EC) No 1907/2006 of the European Parliament and of the Council (3) establishing a European Chemicals Agency, and in particular Article 97 thereof,

                  —

                  having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

                  —

                  having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

                  —

                  having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on the Environment, Public Health and Food Safety (A7-0126/2012),

                  A.

                  whereas the Court of Auditors stated that it has obtained reasonable assurances that the annual accounts of the European Chemicals Agency (‘the Agency’) for the financial year 2010 are reliable and that the underlying transactions are legal and regular,

                  B.

                  whereas on 10 May 2011 Parliament granted the Executive Director of the Agency discharge for implementation of its budget for the financial year 2009 (5), and in its resolution accompanying the discharge decision, inter alia:

                              —

                              called on the Agency to inform the discharge authority of the steps taken to improve its control system by strengthening its financial circuits, workflows, action plans and risk assessments,

                              —

                              encouraged the Agency to effectively ensure that:

                                          —

                                          all components for financing decisions are in place,

                                          —

                                          the information necessary at each level within the organisation is properly defined and addressed,

                                          —

                                          the Annual Work Programme (AWP) shows all the resources made available through the budget,

                                          —

                                          the documentation of financial procedures and checklists is finalised and updated,

                              —

                              called on the Agency to further develop the planning and monitoring of its procurement and budget execution so as to reduce the proportion of carry-forward appropriations,

                  C.

                  whereas the overall budget of the Agency for the financial year 2010 was EUR 75 500 000 compared with EUR 70 400 000 in 2009, which represents an increase of 7,24 %,

                  D.

                  whereas the Agency received a temporary contribution of EUR 36 000 000 from the Union and EFTA,

         Budget and financial management

                  1.

                  Notes that the Court of Auditors reported that the Agency’s 2010 budget amounted to EUR 75 000 000 while the Agency reported a budget of EUR 75 500 000 for the financial year 2010;

                  2.

                  Acknowledges from the Agency that the Agency is financed through fees paid by industry for registrations of chemical substances and by a potential Union contribution;

                  3.

                  Recalls that the initial Union contribution to the Agency for 2010 amounted to EUR 25 305 000; notes however that EUR 8 700 000, coming from the recovery of surplus, was added to that amount which, as a result, makes a total Union contribution of EUR 34 005 000 for 2010 (6); acknowledges moreover that, since usually the revenue from fees is only credited to the Agency towards the end of the year, the Union contribution was deemed necessary to allow for the payment of the running costs until October 2010;

                  4.

                  Notes that the Agency refers to a temporary contribution from the Union of EUR 36 000 000 for 2010 although that amount includes EFTA’s contribution;

                  5.

                  Ascertains from its Report on Budgetary and Financial Management (RBFM) that the Agency committed to entirely reimburse the Union’s temporary contribution to the Commission upon receipt of the corresponding debit note; acknowledges from the Agency that the reimbursement of the temporary contribution occurred in March 2011 and that interest was paid to the Commission;

                  6.

                  Acknowledges from its RBFM that the initial budget of the Agency for 2010 amounted EUR 86 481 700; notes, however, that during the year the Management Board adopted two amending budgets reducing the budget expenditure by EUR 11 000 000 (12,75 %) in total;

                  7.

                  Notes from the RBFM that the budget for Title I in 2010, EUR 47 214 285, was amended downwards by 8 %, i.e. by EUR 3 787 650,18; acknowledges the Agency’s comment that the main reason for the decrease was a slower recruitment rate compared with the initial plans; notes also that the total execution rate for Title I reached 97,2 %;

                  8.

                  Observes also from the RBFM that the expenditure under Title II represented 92,4 % of the amended budget (EUR 10 739 727,92 vs. EUR 11 624 281,05), which is the result of cancellation of several IT consultancy projects which will be implemented under the future outsourcing contract in 2011;

                  9.

                  Establishes from its Annual Activity Report (AAR) that the Agency managed to process close to 23 000 incoming fee payments, which resulted in cashed fee income of EUR 349 700 000;

                  10.

                  Notes from the Court of Auditors that in 2010 the Agency became fully self-financing but that there is scope for its Financial Regulation to be revised to include a mechanism for retaining surplus from the Agency’s revenue to finance its future activities;

                  11.

                  Takes note of the Agency’s reply which states that it will include a proposal for a mechanism to manage surplus revenue in the upcoming review of its Financial Regulation; understands from the Agency’s AAR that an arrangement with an external, highly-rated custodian was set up and a second arrangement is being prepared to ensure the safe-keeping and risk diversification of the accumulated cash reserves that should be the principal source of finance for the Agency until the Financial Framework 2014-2020 is in place; acknowledges from the Agency that cash reserves have been placed for asset management at the European Investment Bank and the Central Bank of Finland;

         Carry-over of appropriations

                  12.

                  Establishes from the Agency’s RBFM that the carry-overs commitment and payment appropriations, EUR 12 254 740,59, mainly relate to IT costs for support to operations (EUR 5 747 560,42), as well as general administration (EUR 1 555 943,82);

                  13.

                  Establishes also from the RBFM that the total amount of EUR 2 533 156,09 was cancelled from the commitment and payment appropriations carried forward from the budget in 2009; notes in particular that this mainly concerns Title II;

                  14.

                  Regrets that the Court of Auditors does not mention the Agency’s appropriations carried forward and cancelled in its report on the annual accounts of the Agency for the financial year 2010;

                  15.

                  Welcomes the Agency’s efforts in improving the planning and the monitoring of resources and introducing guidelines to foster the principle of annuality; acknowledges in particular from the Agency that it managed to reduce the carry-over rate from 29,7 % in 2009 to 16,3 % in 2010;

                  16.

                  Underlines also that as the Agency works with non-dissociated credits in all its Titles, it is unrealistic to expect that all operations budgeted for one calendar year could both be committed and paid up within the same budgetary year, especially for project-type operational expenditure (e.g. IT systems developments);

         Procurement procedure

                  17.

                  Notes also from the Agency’s AAR that 350 procurements were carried out in 2010, including the multiannual framework contracts for IT, security, quality and management consulting services, for different communication-related matters and for language training;

                  18.

                  Acknowledges in particular that a high volume of contracting was carried out under existing framework contracts in the field of IT consulting services, as well as for scientific, technical, environmental and socioeconomic questions relating to REACH;

         Human resources (HR) management

                  19.

                  Notes from its AAR that in 2010 the Agency recruited more than 120 new staff; acknowledges in particular that a strong focus was placed on recruiting expert staff to enhance the scientific capacity of the Agency; further notes that the recruitment of middle and senior management was also prioritised in order to ensure the implementation of the new organisational structure from January 2011;

                  20.

                  Calls on the Agency to improve the planning of its HR activities and projects at the time of establishing its AWP; observes in particular from its AAR that due to the high rate and impact on HR services of the registration deadlines, training activities were de-prioritised and several HR projects were postponed or managed at a lower level than initially foreseen;

         Conflict of interests

                  21.

                  Noting that the Agency is involved in decisions of high importance for consumers, and taking into account its exposure due to its importance to industry, is looking forward to receiving and discussing the findings and recommendations of the Special Report of the Court of Auditors on conflict of interest situations to be released before the end of June 2012;

                  22.

                  Considers that, after the initial build-up phase with a focus on procedures, the Agency needs to ensure that its budget and staff are allocated in a way that allows it to deliver fully on substance, in particular regarding evaluation, restrictions and authorisation;

         Internal audit

                  23.

                  Considers that the Agency has improved its administrative processes (including financial circuits) and its operational workflow by developing an Integrated Quality Management System (ISO 9001); welcomes in addition the fact that the Agency has integrated risk assessments into its priority setting for audits and its AWP, and, where appropriate, as a basis for decision making; considers this to be a best practice to be followed by the other agencies;

                  24.

                  Acknowledges from the Agency that the Internal Audit Service performed an advisory engagement on ‘preparedness for registration’ which was issued and transmitted to the Executive Director on 14 April 2010; underlines that this audit has the objective of assessing the preparedness of the Agency to cope with future registration deadlines;

                  25.

                  Welcomes in this respect the establishment by the Agency of a separate registration and submission unit as well as a contingency task force; calls nevertheless on the Agency to improve consistency in the treatment of files; notes that this is a prerequisite for registration activities and that the Agency should increase its efforts in this respect by establishing a standard process for updates of registration rules, and a sufficient information trail and documentation of decisions taken for rules updates;

                  26.

                  Calls also on the Agency to prepare its registration unit staff for an increased workload, from today’s level, by training them (and in particular the unit’s middle management) and by establishing back-up arrangements for key staff; underlines that the task of the registration unit should be focused on core activities for which specific knowledge of registration is needed;

                  27.

                  Calls on the Agency to respect a stringent top down/bottom up methodology for reporting and clear guiding principles in order to define the relevant indicators and tools to be used;

                  28.

                  Acknowledges from the Agency that the Internal Audit Capability performed two assurance internal audits in 2010: one on ‘Staff back-up Process’ and the other one on ‘Fee Invoicing Process’;

         Performance

                  29.

                  Notes that around the end of 2010, two important deadlines for REACH and the Classification, Labelling and Packaging Regulation passed; welcomes, therefore, the fact that the Agency successfully managed to handle the reception and processing of 25 000 registration dossiers on 4 300 chemical substances that are either commonly used in Europe or are the most hazardous and of over 3 million notifications for over 100 000 substances that are classified and have to be labelled to protect the user;

                  30.

                  Welcomes the Agency’s initiatives for enhancing its customer focus and feedback procedures; is particularly pleased that the Agency paid special attention to its communication activities such as stakeholders’ days, publications or helpdesk assistance;

                  31.

                  Is satisfied with the successful operation of the Agency in implementing the Union’s chemicals’ legislation;

                  32.

                  Considers the developments in the context of IT contracts as a result of the significant costs thereof and the delays witnessed over the build-up phase;

         Role of coordinator of the network of agencies

                  33.

                  Commends the Agency on its effective work as coordinator of the network of agencies during the 2010 discharge procedure;

                  34.

                  Draws attention to its recommendations from previous discharge reports, as set out in the Annex to this resolution;

                  35.

                  Refers, in respect of the other observations accompanying its Decision on discharge, which are of a horizontal nature, to its resolution of 10 May 2012 (7) on the performance, financial management and control of the agencies.

         (1)  OJ C 366, 15.12.2011, p. 33.

         (2)  OJ L 248, 16.9.2002, p. 1.

         (3)  OJ L 396, 30.12.2006, p. 1.

         (4)  OJ L 357, 31.12.2002, p. 72.

         (5)  OJ L 250, 27.9.2011, p. 150.

         (6)  OJ L 64, 12.3.2010, p. 447.

         (7)  Texts adopted, P7_TA(2012)0164 (see page 388 of this Official Journal).

      ANNEX

         EUROPEAN PARLIAMENT RECOMMENDATIONS OVER PAST YEARS

                  European Chemicals Agency

                  2008

                  2009

                  Performance

                  The Agency would benefit from developing feedback procedures and from developing a stronger customer focus

                  Requests that the Court of Auditors undertake performance audits of the Agency

                  Budgetary and financial management

                              —

                              Calls on the Agency to take steps to improve the planning and the monitoring of its resources and appropriations (41 % of the commitment appropriations for operational activities were carried over and 37,5 % were cancelled)

                              —

                              Calls on the Commission to examine ways of ensuring that the principle of needs-based management is implemented in full (Cash Reserves in 2008: EUR 18 747 210,75)

                  Calls on the Agency to further develop the planning and monitoring of its procurement and budget execution so as to reduce the proportion of carry-forward appropriations; notes, in fact, that the Court of Auditors registered a carry-forward of EUR 20 000 000 (29 % of the appropriations) to the budgetary year 2010, approximately 88 % of which corresponds to activities not yet implemented (or, in some cases, goods not received) at the year-end; remarks, furthermore, that 5 % of the appropriations (EUR 3 000 000) were cancelled

                  Human resources

                              —

                              Calls on the Agency to take care of the implementation of the recruitment procedure

                              —

                              Transparency issues: in 14 recruitment procedures the independence of the members of the selection board was not guaranteed, owing to the fact that the Director himself chaired the Board

                              —

                              Commends the Agency for deciding that the Director will no longer take part in the deliberations of selection boards

                              —

                              Calls on the Agency to put in place well-defined handover procedures

                  Important for the Agency to keep monitoring the implementation of its budget and recruitment plan

                  Internal audit

                  The audit of three procedures showed weaknesses in the documentation summarising the work of the selection boards (lack of justification)

                              —

                              Calls on the Executive Director of the Agency to inform the discharge authority of the content of its audit plan

                              —

                              Calls on the Agency to inform the discharge authority of the steps taken to improve its control system by strengthening its financial circuits, workflows, audits, action plans and risk assessments

                              —

                              Encourages the Agency to effectively ensure that:

                                          —

                                          all components for financing decisions are in place,

                                          —

                                          the information necessary at each level within the organisation is properly defined and addressed,

                                          —

                                          the work programme shows all resources made available through the budget,

                                          —

                                          the documentation of financial procedures and checklists is finalised and updated