AGREEMENTBETWEEN THE EUROPEAN UNION AND THE REPUBLIC OF SERBIA ON THE PARTICIPATION OF THE REPUBLIC OF SERBIA IN "CUSTOMS", THE UNION PROGRAMME FOR COOPERATION IN THE FIELD OF CUSTOMS("Off. Herald of RS - Treaties", No. 6/2023) |
The European Commission (hereinafter referred to as ‘the Commission’) on behalf of the European Union,
on the one part,
and
the Government of the Republic of Serbia (hereinafter referred to as ‘Serbia’), on the other part,
hereinafter referred to as ‘the Parties’
WHEREAS the Framework Agreement between the European Community and Serbia and Montenegro on the General Principles for the participation of Serbia and Montenegro in Community Programmes1 stipulates that the specific terms and conditions regarding the participation of Serbia in each particular programme, in particular the financial contribution payable, are to be determined by agreement, in the form of a Memorandum of Understanding, between the Commission, and the competent authorities of Serbia;
WHEREAS the Customs Programme was established by Regulation (EU) 2021/4442 of the European Parliament and of the Council;
WHEREAS the specific terms and conditions of the association should be determined by an international agreement between the Union and the associated country;
WHEREAS pursuant to Article 5 points (a) and (b) of the first subparagraph of Regulation (EU) 2021/444, acceding countries, candidate countries and potential candidates and European Neighbourhood Policy countries may participate in accordance with the general principles and general terms and conditions for the participation of those countries in Union programmes established in the respective framework agreements and Association Council decisions, or in similar agreements, and in accordance with the specific conditions laid down in agreements between the Union and those countries;
RECOGNISING the general principles as set out in Regulation (EU) 2021/444 of the European Parliament and of the Council;
ACKNOWLEDGING the objectives of the Customs Programme to support the customs union and customs authorities working together and acting as one to protect the financial and economic interests of the Union and its Member States, to ensure security and safety within the Union and to protect the Union from unfair and illegal trade, while facilitating legitimate business activity;
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1 OJ L 192, 22. 7. 2005, p. 29
2 OJ L 87, 13. 3. 2021, p. 1-16
HAVE AGREED AS FOLLOWS:
Article 1
Serbia shall participate as associated country and contribute to the following parts of the Customs programme, referred to in Regulation (EU) 2021/444 of the European Parliament and of the Council of 11 March 2021:
a) the activities specified in point (a), (b), (d), and (e) of the first subparagraph of paragraph (3) of Article 7 of the Regulation 2021/444, unless, considering the nature or content of the activity, the participation of Serbia is not appropriate;
b) provided that the relevant legal requirements are in place, participation in the IT capacity building activities as specified in point (c), of the first subparagraph of paragraph (3), and paragraphs (4) and (5) of Article 7 of Regulation (EU) 2021/444. The participation in the activities shall begin on a date agreed by both parties.
Article 2
Terms and conditions with respect to participation in the Customs programme
1. Serbia shall participate in the activities of the Customs programme in accordance with the conditions laid down in the Framework Agreement between the European Community and Serbia and Montenegro on the General Principles for the participation of Serbia and Montenegro in Community Programmes, and under the terms and conditions set forth in this Agreement, in the legal acts referred to in Article 1 of this Agreement, as well as in any other rules pertaining to the implementation of the Customs Programme, in their most up to date versions.
2. Unless otherwise provided for in the terms and conditions referred to in paragraph 1 of this Article, legal entities established in Serbia may participate in actions of the Customs programme under conditions equivalent to those applicable to legal entities established in the Union, including respect for EU restrictive measures3.
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3 The EU restrictive measures are adopted pursuant to Article 29 of the Treaty on the European Union or Article 215 of the Treaty on the Functioning of the European Union.
3. Representatives of Serbia shall have the right to participate as observers in the committee referred to in Article 17 of the Regulation 2021/444 establishing the Customs programme, without voting rights and for points which concern Serbia.
4. Travel costs and subsistence expenses incurred by representatives and experts of Serbia when taking part as observers in the work of the committee referred to in Article 17 of the Regulation 2021/444 establishing the Customs programme or in other meetings related to the implementation of the Customs programme, shall be reimbursed by the Commission on the same basis and in accordance with the procedures in force for representatives of the Member States of the European Union.
5. Serbia shall take all necessary measures, as appropriate, to ensure that goods and services, purchased in Serbia or imported into Serbia, which are partially or entirely financed pursuant to the grant agreements and/or contracts concluded for the realisation of the activities in accordance with this Agreement, are exempted from customs duties, import duties and other fiscal charges, including the VAT, that are applicable in Serbia.
6. English shall be used for the procedures related to requests, contracts and reports, as well as for other administrative aspects of the Programme.
Article 3
1. Participation of Serbia or legal entities of Serbia in the Customs programme shall be subject to Serbia contributing financially to the Programme and the related management, execution and operation costs under the general budget of the Union (hereinafter referred to as the ‘Union budget’). The rules governing the financial contribution of Serbia are set out in Annex I.
2. The financial contribution shall take the form of the sum of:
a) an operational contribution; and
b) a participation fee.
3. The financial contribution shall take the form of an annual payment made in one instalment, and shall be due at the latest in May.
4. The operational contribution shall cover operational and support expenditure of the Programme and be additional both in commitment and payment appropriations to the amounts entered in the Union budget definitively adopted for the Customs programme.
5. The operational contribution shall be based on a contribution key defined as the ratio of the Gross Domestic Product (GDP) of Serbia at market prices to the GDP of the Union at market prices. The GDPs at market prices to be applied shall be determined by the dedicated Commission services based on the most recent statistical data available for budget calculations in the year prior to the year in which the annual payment is due. By derogation, for 2021, the operational contribution shall be based on the GDP of year 2019 at market prices. Adjustments to this contribution key are laid down in Annex I.
6. The operational contribution shall be calculated applying the contribution key, as adjusted, to the commitment appropriations entered in the Union budget definitively adopted for the applicable year for financing the Customs programme.
7. The participation fee shall be 4% of the annual initial operational contribution as calculated in accordance with paragraphs (5) and (6) and shall be phased in as set out in Annex I. The participation fee shall not be subject to retrospective adjustments or corrections.
8. The Union shall provide Serbia with information in relation to its financial participation as included in the budgetary, accounting, performance and evaluation related information provided to the Union budgetary and discharge authorities concerning the Customs programme. That information shall be provided having due regard to the Union’s and Serbia’s confidentiality and data protection rules and shall be without prejudice to the information which Serbia is entitled to receive under Annex II.
9. All contributions of Serbia or payments from the Union, and the calculation of amounts due or to be received shall be made in euro.
Article 4
Monitoring, Reporting and Evaluation
1. Without prejudice to the responsibilities of the Commission, the European Anti-Fraud Office (OLAF) and the European Court of Auditors in relation to the monitoring and evaluation of the Customs programme, the participation of Serbia in the Customs programme shall be continuously monitored on a partnership basis involving the Commission and Serbia.
2. The rules concerning sound financial management, including the financial control, recovery and other anti-fraud measures in relation to Union funding under this Agreement are laid down in Annex II.
Article 5
1. This Agreement shall enter into force on the date when the Parties have notified each other of the completion of their internal procedures for that purpose.
2. This Agreement shall apply from 1 January 2021. It shall remain in force for as long as necessary for all the projects and actions financed from the Customs programme, all the actions necessary to protect the financial interests of the European Union and all the financial obligations stemming from the implementation of this Agreement between the Parties to be completed.
3. The European Union and Serbia may apply this Agreement provisionally in accordance with their respective internal procedures and legislation. The provisional application shall begin on the date on which the Parties have notified each other of the completion of their internal procedures necessary for that purpose.
4. Should Serbia notify the Commission acting on behalf of the Union that it will not complete its internal procedures necessary for the entry into force of this Agreement, this Agreement shall cease to apply provisionally on the date of receipt of this notification by the Commission, which shall constitute the cessation date for the purposes of this Agreement.
5. The application of this Agreement may be suspended by the European Union in case of non-payment of the financial contribution due by Serbia as described in point II of Annex I.
Suspension of application of this Agreement shall be notified by the Commission to Serbia by a formal letter of notification, which shall take effect 15 days following the receipt of this notification by Serbia.
In case the application of this Agreement is suspended, legal entities established in Serbia shall not be eligible to participate in award procedures not yet completed when the suspension takes effect. An award procedure shall be considered completed when legal commitments have been entered into as a result of that procedure.
The suspension does not affect the legal commitments entered into before the suspension took effect. This Agreement shall continue to apply to such legal commitments.
The European Union shall immediately notify Serbia once the entire amount of the financial contribution due has been received by the Commission. The suspension shall be lifted with an immediate effect upon this notification.
As of the date when the suspension is lifted, legal entities of Serbia shall be again eligible in award procedures launched after this date and in award procedures launched before this date, for which the deadlines for submission of applications has not expired.
6. Either Party may terminate the Agreement at any time by a written notice informing of the intent to terminate it.
The termination shall take effect three calendar months after the date at which the written notice reaches its addressee. The date on which the termination takes effect shall constitute the termination date for the purposes of this Agreement.
7. Where this Agreement ceases to apply provisionally in accordance with paragraph (5), or is terminated in accordance with paragraph (6), the Parties agree that:
(a) projects or actions in respect of which legal commitments have been entered into during the provisional application and/or after the entry into force of this Agreement, and before this Agreement ceases to apply or is terminated shall continue until their completions under the conditions laid down in this Agreement;
(b) the annual financial contribution of the year N during which this Agreement ceases to apply provisionally or is terminated shall be paid in accordance with Article 3.
(c) following the year during which this Agreement ceases to apply provisionally, Serbia, in case of accessing or operating the Common Communication Network/Common Systems Interface (CCN/CSI) and its applications,shall pay on annual basis the costs of it, as any non-associated country to the programme.
The Commission shall communicate Serbia the costs for accessing and operating CCN/CSI and its applications as soon as possible and at the latest when issuing the first call for funds of the financial year.
The Parties shall settle by common consent any other consequences of termination or cessation of provisional application of this Agreement.
8. The Annexes form an integral part of this Agreement.
9. This Agreement may only be amended in writing by common consent of the Parties. The entry into force of the amendments will follow the same procedure as that applicable for the entry into force of this Agreement.
This Agreement shall be drawn up in duplicate in English.
Done at Brussels on 5/06/2023 |
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Done at Belgrade on 19. 06. 2023. |
For the european union |
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For the GOVERNMENT |
Gerassimos THOMAS |
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Siniša Mali |
ANNEX I: Rules governing the financial contribution of Serbia to the Customs programme (2021-2027)
ANNEX II: Sound Financial Management
RULES GOVERNING THE FINANCIAL CONTRIBUTION OF SERBIA TO THE UNION CUSTOMS PROGRAMME (2021-2027)
I. Calculation of Serbia’s financial contribution
(1) The financial contribution of Serbia to the Customs programme shall be established on a yearly basis in proportion to, and in addition to, the amount available each year in the Union budget for commitment appropriations needed for the management, execution and operation of the Customs programme.
(2) The participation fee referred to in Article 3(7) of this Agreement shall be phased in as follows:
2021: 0,5%;
2022: 1%;
2023: 1,5%;
2024: 2%;
2025: 2,5%;
2026: 3%;
2027: 4%.
(3) In accordance with Article 3(5) of this Agreement, the operational contribution to be paid by Serbia for its participation in the Customs programme will be calculated for the respective financial years by applying an adjustment to the contribution key.
The adjustment to the contribution key shall be:
Contribution Key Adjusted=Contribution Key ×Coefficient
The coefficient used for the above calculation to adjust the contribution key shall be 0,2.
II. Payment of Serbia’s financial contribution
(1) The Commission shall communicate to Serbia, as soon as possible and at the latest when issuing the first call for funds of the financial year, the following information:
(a) the amounts in commitment appropriations in the Union budget definitively adopted for the year in question for the budget lines covering participation of Serbia
(b) the amount of the participation fee referred to in Article 3(7) of this Agreement.
On the basis of its Draft Budget, the Commission shall provide an estimate of information for the following year under points (a) and (b) as soon as possible, and, at the latest, by 1 September of the financial year.
(2) The Commission shall issue, at the latest in April of each financial year, a call for funds to Serbia corresponding to its contribution under this Agreement.
Each call for funds shall provide for the payment of Serbia’s contribution not later than 45 days after the call for funds is issued.
For the first year of implementation of this Agreement, the Commission shall issue a single call for funds, within 60 days of the signature of this Agreement.
(3) Serbia shall pay its financial contribution under this Agreement in accordance with point (II) of this Annex. In the absence of payment by Serbia by the due date, the Commission shall send a formal letter of reminder.
Any delay in the payment of the financial contribution shall give rise to the payment of default interest by Serbia on the outstanding amount from the due date.
The interest rate for amounts receivable not paid on the due date shall be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the month in which the due date falls, increased by three and half percentage points.
In case the delay in the payment of the contribution is such that it may significantly jeopardise the implementation and management of the Customs programme, participation of Serbia in the Customs programme will be suspended by the Commission following the absence of payment 20 working days after a formal letter of reminder, without prejudice to the Union’s obligations according to grant agreements and/or contracts already concluded pertaining to the implementation of the indirect actions for which Serbia was selected.
SOUND FINANCIAL MANAGEMENT
Protection of financial interests and recovery
Article 1
Reviews and audits
1. The European Union shall have the right to conduct, in accordance with the applicable acts of one or more Union institutions or bodies and as provided in relevant agreements and/or contracts, technical, scientific, financial, or other types of reviews and audits on the premises of any natural person residing in or any legal entity established in Serbia and receiving European Union funding, as well as any third party involved in the implementation of Union funds residing or established in Serbia. Such review and audits may be carried out by the agents of the institutions and bodies of the European Union, in particular of the European Commission and the European Court of Auditors, or by other persons mandated by the European Commission.
2. The agents of the institutions and bodies of the European Union, in particular of the European Commission and the European Court of Auditors, and the other persons mandated by the European Commission, shall have appropriate access to sites, works and documents (both in electronic and paper versions) and to all the information required in order to carry out such audits, including the right of obtaining a physical/electronic copy of, and extracts from, any document or the contents of any data medium held by the audited natural or legal person or by the audited third party.
3. Serbia shall not prevent or raise any particular obstacle to the right of entrance in Serbia and to the access to the premises of the agents and other persons referred to in paragraph 2 on the grounds of the exercise of their duties referred to in this Article.
4. The reviews and audits may be carried out, also after the suspension of application of this Agreement pursuant to its Article 5(5), or its termination, on the terms laid down in the applicable acts of one or more European Union institutions or bodies and as provided in relevant agreements and/or contracts in relation to any legal commitment implementing the European Union budget entered into by the European Union before the date on which the suspension of application of this Agreement pursuant to its Article 5(5), or termination of this Agreement takes effect.
Article 2
Fight against irregularities, fraud and other criminal offences
affecting the financial interests of the Union
1. The European Commission and the European Anti-Fraud Office (OLAF) shall be authorised to carry out administrative investigations, including on-the-spot checks and inspections, on the territory of Serbia. These investigations shall be carried out in accordance with the terms and conditions established by applicable acts of one or more Union institutions.
2. The competent authorities of Serbia shall inform the European Commission or OLAF within reasonable time of any fact or suspicion which has come to their notice relating to an irregularity, fraud or other illegal activity affecting the financial interests of the Union.
3. On-the-spot checks and inspections may be carried out on the premises of any natural person residing in or legal entity established in Serbia and receiving Union funds, as well as of any third party involved in the implementation of Union funds residing or established in Serbia.
4. On-the-spot checks and inspections shall be prepared and conducted by the European Commission or OLAF in close collaboration with the competent authority of Serbia designated by the government of Serbia. The designated authority shall be notified a reasonable time in advance of the object, purpose and legal basis of the checks and inspections, so that it can provide assistance. To that end, the officials of the competent Serbia authorities may participate in the on-the-spot checks and inspections.
5. Upon request by authorities of Serbia, the on-the-spot checks and inspections may be carried out jointly with the European Commission or OLAF.
6. Commission agents and OLAF staff shall have access to all the information and documentation, including computer data, on the operations concerned, which are required for the proper conduct of the on-the-spot checks and inspections. They may, in particular, copy relevant documents.
7. Where the person, entity or another third party resists an on-the-spot check or inspection, authorities of Serbia, acting in accordance with national rules and regulations, shall assist the European Commission or OLAF, to allow them to fulfil their duty in carrying out an on-the-spot check or inspection. This assistance shall include taking the appropriate precautionary measures under national law, in particular in order to safeguard evidence.
8. The European Commission or OLAF shall inform the authorities of Serbia of the result of such checks and inspections. In particular, the European Commission or OLAF shall report as soon as possible to the competent authority of Serbia any fact or suspicion relating to an irregularity which has come to their notice in the course of the on-the-spot check or inspection.
9. Without prejudice to application of Serbia criminal law, the European Commission may impose administrative measures and penalties on legal or natural persons of Serbia participating in the implementation of a programme or activity in accordance with European Union legislation.
10. For the purposes of proper implementation of this Article, the European Commission or OLAF and the competent authorities of Serbia shall regularly exchange information and, at the request of one of the parties to this Agreement, consult each other.
11. In order to facilitate effective cooperation and exchange of information with OLAF, Serbia shall designate a contact point.
12. Information exchanged between the European Commission or OLAF and the competent authorities of Serbia shall take place having due regard to the confidentiality requirements. Personal data included in the exchange of information shall be protected in accordance with applicable rules.
13. Authorities of Serbia shall cooperate with the European Public Prosecutor’s Office to allow it to fulfil its duty to investigate, prosecute and bring to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the European Union in accordance with the applicable legislation.
Article 3
Recovery and enforcement
1. Decisions adopted by the European Commission imposing a pecuniary obligation on legal or natural persons other than States in relation to any claims stemming from the Customs programme shall be enforceable in Serbia. The order for enforcement shall be appended to the decision, without any other formality than a verification of the authenticity of the decision by the national authority designated for this purpose by the government of Serbia. The government of Serbia shall make known its designated national authority to the Commission and the Court of Justice of the European Union. In accordance with Article 4 of Annex II, the European Commission shall be entitled to notify such enforceable decisions directly to persons residing and legal entities established in Serbia. Enforcement shall take place in accordance with the Serbia law and rules of procedure.
2. Judgments and orders of the Court of Justice of the European Union delivered in application of an arbitration clause contained in a contract or agreement in relation to Union programmes, activities, actions or projects shall be enforceable in Serbia in the same manner as European Commission decisions referred to in paragraph (1).
3. The Court of Justice of the European Union shall have jurisdiction to review the legality of the decision of the Commission referred to in paragraph 1 and to suspend its enforcement. However, the Courts of Serbia shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.
Article 4
Communication and exchange of information
The European Union institutions and bodies involved in the implementation of Customs programme, or in controls over that programme, shall be entitled to communicate directly, including through electronic exchange systems, with any natural person residing in or legal entity established in Serbia and receiving Union funds, as well as any third party involved in the implementation of Union funds residing or established in Serbia. Such persons, entities and parties may submit directly to the European Union institutions and bodies all relevant information and documentation which they are required to submit on the basis of the European Union legislation applicable to the Union programme and of the contracts or agreements concluded to implement that programme.