Regulation (EU) No 1303/2013 of the European Parliament and of the CouncilDangos y teitl llawn

Article 38 E+S+N.I. Implementation of financial instruments

[F2 1. In implementing Article 37, Managing Authorities may provide a financial contribution to financial instruments set up at national, regional, transnational or cross-border level, managed by or under the responsibility of the Managing Authority.]

F3 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. For financial instruments under F4 ... paragraph 1, the managing authority may provide a financial contribution to the following financial instruments:

(a) financial instruments complying with the standard terms and conditions [F5 as set out in Regulation (EU) No 964/2014], in accordance with the second subparagraph of this paragraph;

(b) already existing or newly created financial instruments which are specifically designed to achieve the specific objectives set out under the relevant priority.

The [F6 appropriate authority may make regulations in relation to support for rural development] concerning the standard terms and conditions with which the financial instruments under point (a) of the first subparagraph shall comply. F7 ...

4. When supporting financial instruments referred to in point (b) of paragraph 1 the managing authority may:

[F8 (a) invest in the capital of existing or newly created legal entities dedicated to implementing financial instrument consistent with the objectives of the support for rural development, which will undertake implementation tasks; the support to such entities shall be limited to the amounts necessary to implement new investments in accordance with Article 37 and in a manner that is consistent with the objectives of this Regulation;]

[F9 (b) entrust implementation tasks, through the direct award of a contract, to:

(i)

F10 ...

(ii)

an international financial institution in which a [F11 relevant authority] is a shareholder;

(iii)

a publicly-owned bank or institution, established as a legal entity carrying out financial activities on a professional basis, which fulfils all of the following conditions:

• there is no direct private capital participation, with the exception of non-controlling and non-blocking forms of private capital participation required by [F12 the law as it applies in the constituent nation] which do not exert a decisive influence on the relevant bank or institution, and with the exception of forms of private capital participation which confer no influence on decisions regarding the day-to-day management of the financial instrument supported by [F13 support for rural development];

• operates under a public policy mandate given by the relevant authority F14 ..., which includes carrying out, as all or part of its activities, economic development activities contributing to the objectives of [F13 support for rural development];

• carries out, as all or part of its activities, economic development activities contributing to the objectives of [F13 support for rural development] in regions, policy areas or sectors for which access to funding from market sources is not generally available or sufficient;

• operates without primarily focussing on maximising profits, but ensures a long-term financial sustainability for its activities;

• ensures that the direct award of a contract referred to in point (b) does not provide any direct or indirect benefit for commercial activities by way of appropriate measures in accordance with applicable law;

• is subject to the supervision of an independent authority in accordance with applicable law;

(c) entrust implementation tasks to another body governed by public or private law; or

(d) undertake implementation tasks directly, in the case of financial instruments consisting solely of loans or guarantees. In that case the managing authority shall be considered to be the beneficiary within the meaning of point (10) of Article 2.]

[F9 When implementing the financial instrument, the bodies referred to in points (a) to (d) of the first subparagraph of this paragraph shall ensure compliance with applicable law and with the requirements laid down in Article 155(2) and (3) of the Financial Regulation.]

F15 ...

[F9 5. The bodies referred to in points (a), (b) and (c) of the first subparagraph of paragraph 4 of this Article may, when implementing funds of funds further entrust part of the implementation to financial intermediaries provided that such bodies ensure under their responsibility that the financial intermediaries satisfy the criteria laid down in Articles 33(1) and 209(2) of the Financial Regulation. Financial intermediaries shall be selected on the basis of open, transparent, proportionate and non-discriminatory procedures, avoiding conflict of interests.

6. The bodies referred to in points (b) and (c) of the first subparagraph of paragraph 4 to which implementation tasks have been entrusted shall open fiduciary accounts in their name and on behalf of the managing authority, or set up the financial instrument as a separate block of finance within the institution. In the case of a separate block of finance, an accounting distinction shall be made between programme resources invested in the financial instrument and the other resources available in the institution. The assets held on fiduciary accounts and such separate blocks of finance shall be managed in accordance with the principle of sound financial management following appropriate prudential rules and shall have appropriate liquidity.]

[F9 7. Where a financial instrument is implemented under points (a), (b) and (c) of the first subparagraph of paragraph 4, subject to the implementation structure of the financial instrument, the terms and conditions for contributions from programmes to financial instruments shall be set out in funding agreements in accordance with Annex IV at the following levels:]

(a) where applicable, between the duly mandated representatives of the managing authority and the body that implements the fund of funds; and

(b) between the duly mandated representatives of the managing authority, or where applicable, the body that implements the fund of funds, and the body that implements the financial instrument.

[F9 8. For financial instruments implemented under point (d) of the first subparagraph of paragraph 4, the terms and conditions for contributions from programmes to financial instruments shall be set out in a strategy document in accordance with Annex IV to be examined by the monitoring committee.]

9. National public and private contributions, including where relevant contributions in kind as referred to in Article 37(10), may be provided at the level of the fund of funds, at the level of the financial instrument or at the level of final recipients, in accordance with the Fund-specific rules.

[F9 10. [F16 The appropriate authority may make regulations in relation to support for rural development] laying down uniform conditions regarding the detailed arrangements for the transfer and management of programme contributions managed by the bodies referred to in the first subparagraph of paragraph 4 of this Article and in Article 39a(5). F17 ...]

Extent Information

E1 This version of this provision applies to England, Scotland and Northern Ireland only; a separate version has been created for Wales

Textual Amendments

F2 Art. 38(1) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(a); 2020 c. 1, Sch. 5 para. 1(1)

F3 Art. 38(2) omitted (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in Art. 38(3) omitted (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(c); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in Art. 38(3) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(c); 2020 c. 1, Sch. 5 para. 1(1)

F6 Words in Art. 38(3) substituted (31.12.2020) by The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F7 Words in Art. 38(3) omitted (31.12.2020) by virtue of The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F8 Art. 38(4)(a) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(i) (as amended by S.I. 2020/1542, regs. 1(2), 13(6)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

F9 Substituted by Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012.

F10 Art. 38(4)(b)(i) omitted (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(aa); 2020 c. 1, Sch. 5 para. 1(1)

F11 Words in Art. 38(4)(b)(ii) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(bb); 2020 c. 1, Sch. 5 para. 1(1)

F12 Words in Art. 38(4)(b)(iii) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(cc); 2020 c. 1, Sch. 5 para. 1(1)

F13 Words in Art. 38(4)(b)(iii) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(dd) (as amended by S.I. 2020/1542, regs. 1(2), 13(6)(b)(ii)); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in Art. 38(4)(b)(iii) omitted (31.12.2020) by virtue of The Common Organisation of the Markets in Agricultural Products and Common Agricultural Policy (Miscellaneous Amendments etc.) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1422), regs. 1, 14(3); 2020 c. 1, Sch. 5 para. 1(1)

F15 Words in Art. 38(4) omitted (31.12.2020) by virtue of The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(b); 2020 c. 1, Sch. 5 para. 1(1)

F16 Words in Art. 38(10) substituted (31.12.2020) by The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(c)(i); 2020 c. 1, Sch. 5 para. 1(1)

F17 Words in Art. 38(10) omitted (31.12.2020) by virtue of The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(c)(ii); 2020 c. 1, Sch. 5 para. 1(1)

Article 38 W Implementation of financial instruments

[F18 1. In implementing Article 37, Managing Authorities may provide a financial contribution to financial instruments set up at national, regional, transnational or cross-border level, managed by or under the responsibility of the Managing Authority.]

F19 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. For financial instruments under F20 ... paragraph 1, the managing authority may provide a financial contribution to the following financial instruments:

(a) financial instruments complying with the standard terms and conditions [F21 as set out in Regulation (EU) No 964/2014], in accordance with the second subparagraph of this paragraph;

(b) already existing or newly created financial instruments which are specifically designed to achieve the specific objectives set out under the relevant priority.

The [F22 appropriate authority may make regulations in relation to support for rural development] concerning the standard terms and conditions with which the financial instruments under point (a) of the first subparagraph shall comply. F23 ...

4. When supporting financial instruments referred to in point (b) of paragraph 1 the managing authority may:

[F24 (a) invest in the capital of existing or newly created legal entities dedicated to implementing financial instrument consistent with the objectives of the support for rural development, which will undertake implementation tasks; the support to such entities shall be limited to the amounts necessary to implement new investments in accordance with Article 37 and in a manner that is consistent with the objectives of this Regulation;]

[F25 (b) entrust implementation tasks, through the direct award of a contract, to:

(i)

F26 ...

(ii)

an international financial institution in which a [F27 relevant authority] is a shareholder;

(iii)

a publicly-owned bank or institution, established as a legal entity carrying out financial activities on a professional basis, which fulfils all of the following conditions:

• there is no direct private capital participation, with the exception of non-controlling and non-blocking forms of private capital participation required by [F28 the law as it applies in the constituent nation] which do not exert a decisive influence on the relevant bank or institution, and with the exception of forms of private capital participation which confer no influence on decisions regarding the day-to-day management of the financial instrument supported by [F29 support for rural development];

• operates under a public policy mandate given by the relevant authority F30 ..., which includes carrying out, as all or part of its activities, economic development activities contributing to the objectives of [F29 support for rural development];

• carries out, as all or part of its activities, economic development activities contributing to the objectives of [F29 support for rural development] in regions, policy areas or sectors for which access to funding from market sources is not generally available or sufficient;

• operates without primarily focussing on maximising profits, but ensures a long-term financial sustainability for its activities;

• ensures that the direct award of a contract referred to in point (b) does not provide any direct or indirect benefit for commercial activities by way of appropriate measures in accordance with applicable law;

• is subject to the supervision of an independent authority in accordance with applicable law;

(c) entrust implementation tasks to another body governed by public or private law; or

(d) undertake implementation tasks directly, in the case of financial instruments consisting solely of loans or guarantees. In that case the managing authority shall be considered to be the beneficiary within the meaning of point (10) of Article 2.]

[F25 When implementing the financial instrument, the bodies referred to in points (a) to (d) of the first subparagraph of this paragraph shall ensure compliance with applicable law and with the requirements laid down in Article 155(2) and (3) of the Financial Regulation.]

F31 ...

F32 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F25 6. The bodies referred to in points (b) and (c) of the first subparagraph of paragraph 4 to which implementation tasks have been entrusted shall open fiduciary accounts in their name and on behalf of the managing authority, or set up the financial instrument as a separate block of finance within the institution. In the case of a separate block of finance, an accounting distinction shall be made between programme resources invested in the financial instrument and the other resources available in the institution. The assets held on fiduciary accounts and such separate blocks of finance shall be managed in accordance with the principle of sound financial management following appropriate prudential rules and shall have appropriate liquidity.]

[F25 7. Where a financial instrument is implemented under points (a), (b) and (c) of the first subparagraph of paragraph 4, subject to the implementation structure of the financial instrument, the terms and conditions for contributions from programmes to financial instruments shall be set out in funding agreements in accordance with Annex IV at the following levels:]

F33 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) between the duly mandated representatives of the managing authority F34 ... and the body that implements the financial instrument.

F35 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9. National public and private contributions, including where relevant contributions in kind as referred to in Article 37(10), may be provided at the level of the F36 ... financial instrument or at the level of final recipients, in accordance with the F37 ... rules.

[F25 10. [F38 The appropriate authority may make regulations in relation to support for rural development] laying down uniform conditions regarding the detailed arrangements for the transfer and management of programme contributions managed by the bodies referred to in the first subparagraph of paragraph 4 of this Article F39 ... . F40 ...]

Extent Information

E2 This version of this provision applies to Wales only; a separate version has been created for England, Scotland and Northern Ireland

Textual Amendments

F18 Art. 38(1) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(a); 2020 c. 1, Sch. 5 para. 1(1)

F19 Art. 38(2) omitted (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

F20 Words in Art. 38(3) omitted (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(c); 2020 c. 1, Sch. 5 para. 1(1)

F21 Words in Art. 38(3) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(c); 2020 c. 1, Sch. 5 para. 1(1)

F22 Words in Art. 38(3) substituted (31.12.2020) by The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F23 Words in Art. 38(3) omitted (31.12.2020) by virtue of The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F24 Art. 38(4)(a) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(i) (as amended by S.I. 2020/1542, regs. 1(2), 13(6)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

F25 Substituted by Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012.

F26 Art. 38(4)(b)(i) omitted (31.12.2020) by virtue of The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(aa); 2020 c. 1, Sch. 5 para. 1(1)

F27 Words in Art. 38(4)(b)(ii) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(bb); 2020 c. 1, Sch. 5 para. 1(1)

F28 Words in Art. 38(4)(b)(iii) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(cc); 2020 c. 1, Sch. 5 para. 1(1)

F29 Words in Art. 38(4)(b)(iii) substituted (31.12.2020) by The European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/785), regs. 1, 8(2)(d)(ii)(dd) (as amended by S.I. 2020/1542, regs. 1(2), 13(6)(b)(ii)); 2020 c. 1, Sch. 5 para. 1(1)

F30 Words in Art. 38(4)(b)(iii) omitted (31.12.2020) by virtue of The Common Organisation of the Markets in Agricultural Products and Common Agricultural Policy (Miscellaneous Amendments etc.) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1422), regs. 1, 14(3); 2020 c. 1, Sch. 5 para. 1(1)

F31 Words in Art. 38(4) omitted (31.12.2020) by virtue of The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(b); 2020 c. 1, Sch. 5 para. 1(1)

F32 Art. 38(5) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(a)

F33 Art. 38(7)(a) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(b)(i)

F34 Words in Art. 38(7)(b) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(b)(ii)

F35 Art. 38(8) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(c)

F36 Words in Art. 38(9) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(d)(i)

F37 Word in Art. 38(9) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(d)(ii)

F38 Words in Art. 38(10) substituted (31.12.2020) by The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(c)(i); 2020 c. 1, Sch. 5 para. 1(1)

F39 Words in Art. 38(10) omitted (W.) in so far as it relates to domestic support for rural development (26.3.2021) by virtue of The Agricultural Support (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021 (S.I. 2021/400), regs. 1(2), 6(13)(e)

F40 Words in Art. 38(10) omitted (31.12.2020) by virtue of The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/748), regs. 1, 78(c)(ii); 2020 c. 1, Sch. 5 para. 1(1)