Commission Delegated Regulation (EU) 2016/568 of 29 January 2016 supplementing Regulation (EU) No 1303/2013 of the European Parliament and of the Council with regard to the conditions and procedures to determine whether amounts which are irrecoverable shall be reimbursed by Member States concerning the European Regional Development Fund, the European Social Fund, the Cohesion Fund, and the European Maritime and Fisheries Fund

1 Where a Member State considers that an amount unduly paid to a beneficiary, previously included in certified accounts submitted to the Commission, is irrecoverable, and where it has concluded that this amount should not be reimbursed to the Union budget, the certifying authority shall submit a request to the Commission to confirm that conclusion.

2 The certifying authority shall submit a request referred to in paragraph 1, at the level of each operation, in the form set out in the Annex to this Regulation by way of the electronic data exchange system laid down in Article 74(4) of Regulation (EU) No 1303/2013.

3 The Member State shall submit a request established in accordance with paragraphs 1 and 2 each year from 2017 until and including 2025 by 15 February with regard to the previous accounting year. The Commission may exceptionally extend the deadline to 1 March, upon request by the Member State concerned.

The following criteria are indicative of fault or negligence on the part of the Member State: (a) the Member State did not submit any description of the administrative and legal measures, with dates, taken by the Member State to recover the relevant amount (or to reduce or cancel the level of support or withdraw the document in accordance with Article 125(3)(c) of Regulation (EU) No 1303/2013, where such a withdrawal is subject to a separate procedure); (b) the Member State did not provide any copy of the first and any subsequent recovery order (and of any copy of the letter reducing or cancelling the level of support or withdrawing the document in accordance with Article 125(3)(c) of Regulation (EU) No 1303/2013, where such withdrawal is subject to a separate procedure); (c) the Member State did not provide the date of the last payment of the public contribution to the beneficiary of the given operation and a copy of proof of this payment; (d) the Member State, after detection of the irregularity, made one or more undue payments to the beneficiary in relation to the part of the operation that was affected by the irregularity; (e) the Member State did not send the letter reducing the level of support or withdrawing the document in accordance with Article 125(3)(c) of Regulation (EU) No 1303/2013, where such withdrawal is subject to a separate procedure, or take any equivalent decision within 12 months of the detection of the irregularity; (f) the Member State did not initiate the recovery procedure within 12 months of the grant being definitively reduced or cancelled (either after an administrative or judicial procedure or by agreement of the beneficiary); (g) the Member State did not exhaust all recovery possibilities available through the national institutional and legal framework; (h) the Member State did not provide documents related to insolvency and bankruptcy procedures, when applicable; (i) the Member State did not reply to the Commission's request for further information in accordance with Article 3.

1 Based on the information submitted by the Member State in accordance with Article 1 of this Regulation, the Commission shall assess each case in order to conclude whether the failure to recover an amount is a result of fault or negligence on the part of the Member State, taking due account of specific circumstances and the institutional and legal framework of the Member State. Where one or more of the criteria listed in Article 2 is fulfilled, the Commission may still conclude that the Member State has not been at fault or negligent.

2 By 31 May of the year in which the accounts are submitted, the Commission may: (a) request the Member State in writing to submit further information on the administrative and legal measures taken to recover any Union contribution unduly paid to beneficiaries; or (b) request the Member State in writing to continue its recovery procedure. Where the Commission has taken the option referred to in point (a) of the first subparagraph, paragraphs 5 to 8 shall apply.

3 If the Commission does not act pursuant to and by the deadline set in paragraph 2, the Union contribution shall not be reimbursed by the Member State.

4 The deadline set in paragraph 2(a) and (b) shall not apply to those irregularities preceding a bankruptcy or to cases of suspected fraud.

5 The Member State shall reply within 3 months to the Commission's request for information sent pursuant to paragraph 2.

6 If the Member State does not submit further information as requested pursuant to paragraph 2, the Commission shall continue its assessment based on the information available.

7 Within 3 months of receiving the reply from the Member State, or, in the absence of a reply by the deadline, the Commission shall inform the Member State where it concludes that the Union contribution should be reimbursed by the Member State setting out the basis for its conclusion, and requesting the Member State to provide its observations within 2 months. If the Commission does not act pursuant to and by the deadline set in the preceding sentence, the Union contribution shall not be reimbursed by the Member State.

8 Within the 6 months following the deadline for observations by the Member State set out in paragraph 7, the Commission shall conclude its assessment based on the information available and, when it maintains its conclusion that the Union contribution shall be reimbursed by the Member State, shall adopt a decision. If the Commission does not act pursuant to and by the deadline set in the preceding sentence, the Union contribution shall not be reimbursed by the Member State. For the purpose of calculating the Union contribution to be reimbursed by the Member State, the co-financing rate at level of each priority, as laid down in the financing plan in force at the time of the request, shall apply.

Where a Member State decides not to recover from a beneficiary an amount unduly paid at the level of an operation in the accounting year concerned that does not exceed EUR 250, not including interest, in contribution from the Funds, no information needs to be provided to the Commission under this Regulation.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.