1. Ex-ante conditionality
ESF TWG Dublin, DG EMPL

2. Overview of the presentation
Introduction on ex-ante conditionality
State of play
Draft Guidance on ex-ante conditionality:
Part I : General guidance
Part II : Specific guidance
Main types of comments from Member States

3. Introduction

4. How does ex-ante conditionality work: main principles (1)
Thematic and general ex-ante conditionalities
Thematic ex-ante conditionalities are linked to investment priorities (Annex V CPR for cohesion policy)
Applicability
linked to specific objective (SO) (see Art. 2 CPR for definition SO)
definition of ‘applicable ex ante conditionality’:
‘A precisely predefined critical factor which is a necessary prerequisite for and has a direct and genuine link to and direct impact on the effective and efficient achievement of the specific objective for an investment priority or a Union priority’.
Fulfilment
limited to criteria for fulfilment in fund-specific rules

5. How does ex-ante conditionality work: main principles (2)
Applicable ex-ante conditionalities: to be fulfilled before the start of the programming period
If not fulfilled, to be fulfilled at the latest by  Action plan
Non-fulfilment of ex-ante conditionalities may lead to the suspension of all or part of interim payments:
at the time of the adoption of the programmes in case of significant prejudice
by the deadline for fulfilment (action plan)
Ex-ante conditionality does not apply to European Territorial Cooperation Programmes

6. Steps of Art. 17 CPR (for all ESI Funds)
Self-assessment by Member State on applicability and fulfilment + action plan in case applicable ex-ante conditionalities are not fulfilled
Commission assessment of adequacy and consistency of information provided by MS
Suspension of interim payments:
Upon adoption of the OP
In case of non-fulfilment of the actions by the deadline
Lifting of suspension

7. State of play

8. State of play Trilogue on-going:
Art. 17 CPR: e.g. proportionality for testing applicability, assessment in framework of PA and/or programmes
Annex V:
Thematic ex-ante conditionalities: criteria still under discussion (e.g. on Ex-Ante C 8.1 and 8.3), new ex-ante conditionality YEI, take into account split of LLL IP in ESF Regulation, etc.
General ex-ante conditionalities : gender equality, disability and non-discrimination deleted by Council, but is not supported by EP and COM.

9. Draft guidance on ex-ante conditionality

10. Draft Guidance on ex-ante conditionality
Based on Danish PRES compromise of 24 April and Commission reserves, and on COREPER compromise text of 19 December 2012.
Guidance is addressed to the desk officers managing European StructuraI and Investment Funds.
To be updated on the basis of the finally agreed wording and comments of MS to clarify the guidance and ensure its compliance with the CPR.

11. Part I of the draft Guidance: Procedure and steps of Art. 17 CPR

12. Self-assessment by Member State - applicability
Verification of applicability in relation to the specific objective
For thematic Ex-Ante C: there is a link to investment priorities established in ANNEX V CPR (cohesion policy)
For general Ex-Ante C: In practise, the applicability can be limited to checking whether the relevant provisions of Union law constitute applicable Union law for the interventions of the programme/priorities.

13. Self-assessment by Member State - fulfilment
Fulfilment of an applicable ex-ante conditionality requires that ALL the corresponding criteria are fulfilled
In case where criteria are not fulfilled/partially fulfilled: MS has to provide an action plan to ensure fulfilment by the end of 2016

14. Commission's assessment (1)
Applicability of ex-ante conditionalities
Check if the MS has identified the ex-ante conditionalities applying to its programmes. Is it complete ?
The Commission may request additional information from the Member State in order to carry out its assessment.
The better the assessment by the Member States, the easier the task for the Commission

15. Commission's assessment (2)
Fulfilment of ex-ante conditionalities and actions to be taken
Identify all the non-fulfilled or partially fulfilled criteria: only the criteria for fulfilment of CPR apply
Check whether an action plan has been provided in the PA / programmes for ALL non-fulfilled criteria
Assess whether the action plan contains all the required information (set of actions, responsible bodies, timetable)
Actions should be adequate to fulfill the criteria by the deadline

16. Commission's assessment (3)
In case not all criteria are fulfilled at the time of submission of PA / programmes:
Commission to examine whether this could give rise to a significant prejudice to the effectiveness and the efficiency of the achievement of the specific objective of the investment priority concerned
In case of high risk (i.e. when the quality of spending would be significantly affected) COM may decide to suspend payments at the adoption of a programme (expenditure and bodies most at risk)

17. Disagreements Commission - MS
Burden of proof is on the Commission
The Commission must to be able to justify its assessment
Important to build on information provided by Member State
The informal dialogue is to be used to solve main issues at stake and discuss/agree on any action plans to achieve fulfillment

18. Part II of the draft Guidance: Specific guidance for thematic and general ex-ante conditonalities

19. Part II of the draft Guidance
A common template:
When to assess applicability ?
Definitions
Source of information for assessment
Rationale for the ex-ante conditionality
Fulfilment and non-fulfilment of criteria (assessment grid)
Annex: Background information

20. Main comments received from Member States

21. Main types of comments from MS
Commission did not stick to the Council’s Partial General Approach
How to assess applicability: automatic (linked to IP) or in relation to specific objective ?
Commission guidance goes beyond the criteria for fulfillment in Annex V CPR :
strategic policy framework : definition v. assessment grid, one or more policy documents
More flexibility is needed for sub-criteria
Need for further clarification of terminology used in sub-criteria/guidance
Use of Commission Staff Working Document as basis for Commission’s assessment

22. THANK YOU !