Regulation (EU) 2021/1148 of the European Parliament and of the Council of 7 July 2021 establishing, as part of the Integrated Border Management Fund, the Instrument for Financial Support for Border Management and Visa Policy

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

This Regulation establishes the Instrument for Financial Support for Border Management and Visa Policy (the ‘Instrument’), as part of the Integrated Border Management Fund (the ‘Fund’), for the period from 1 January 2021 to 31 December 2027.

This Regulation establishes the Fund jointly with Regulation (EU) 2021/1077 for the period from 1 January 2021 to 31 December 2027.

This Regulation lays down the policy objective of the Instrument, the specific objectives of the Instrument and measures to implement those specific objectives, the budget for the period from 1 January 2021 to 31 December 2027, the forms of Union funding and the rules for providing such funding.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘border crossing point’ means border crossing point as defined in point 8 of Article 2 of Regulation (EU) 2016/399;

(2) ‘European integrated border management’ means European integrated border management as referred to in Article 3 of Regulation (EU) 2019/1896;

(3) ‘external borders’ means external borders as defined in point 2 of Article 2 of Regulation (EU) 2016/399 and internal borders at which controls have not yet been lifted;

(4) ‘external border section’ means external border section as defined in point (11) of Article 2 of Regulation (EU) 2019/1896;

(5) ‘hotspot area’ means hotspot area as defined in point (23) of Article 2 of Regulation (EU) 2019/1896;

(6) ‘internal borders at which controls have not yet been lifted’ means: (a) the common border between a Member State fully implementing the Schengen acquis and a Member State bound to apply the Schengen acquis in full, in conformity with its Act of Accession, but for which the relevant Council Decision authorising it to fully apply that acquis has not yet entered into force; (b) the common border between two Member States bound to apply the Schengen acquis in full, in conformity with their respective Acts of Accession, but for which the relevant Council Decision authorising them to fully apply that acquis has not yet entered into force;

(7) ‘emergency situation’ means a situation resulting from urgent and exceptional pressure, in which a large or disproportionate number of third-country nationals have crossed, are crossing or are expected to cross the external borders of one or more Member States or in which incidents related to illegal immigration or cross-border crime occur at the external borders of one or more Member States, and those incidents have a decisive impact on border security to such an extent that they risk jeopardising the functioning of the Schengen area, or any other situation in respect of which it has been duly substantiated that immediate action at the external borders within the objectives of the Instrument is required;

(8) ‘specific actions’ means transnational or national projects that bring Union added value in accordance with the objectives of the Instrument for which one, several or all Member States may receive an additional allocation to their programmes;

(9) ‘operating support’ means a part of a Member State’s allocation which may be used as support to the public authorities responsible for carrying out the tasks and providing the services which constitute a public service for the Union;

(10) ‘Union actions’ means transnational projects or projects of particular interest to the Union implemented in accordance with the objectives of the Instrument;

(11) ‘solidarity action’ means an action, the scope of which is set out in point (b) of Article 56(2) of Regulation (EU) 2024/1351 of the European Parliament of the Council (¹), funded through financial contributions provided by Member States, referred to in Article 64(1) of that Regulation.

Article 3

Objectives of the Instrument

Within the policy objective set out in paragraph 1, the Instrument shall contribute to the following specific objectives:

(a) supporting effective European integrated border management at the external borders, implemented by the European Border and Coast Guard as a shared responsibility of the European Border and Coast Guard Agency and the national authorities responsible for border management, to facilitate legitimate border crossings, to prevent and detect illegal immigration and cross-border crime and to effectively manage migratory flows;

(b) supporting the common visa policy to ensure a harmonised approach with regard to the issuance of visas and to facilitate legitimate travel, while helping to prevent migratory and security risks.

Article 4

Non-discrimination and respect for fundamental rights

Actions funded under the Instrument shall be implemented in full compliance with the rights and principles enshrined in the Union acquis and the Charter and with the Union’s international obligations as regards fundamental rights, in particular by ensuring compliance with the principles of non-discrimination and non-refoulement.

Article 5

Scope of support

To address unforeseen or new circumstances, the Commission is empowered to adopt delegated acts in accordance with Article 31 to amend the list of actions in Annex III in order to add new actions.

As regards actions in and in relation to third countries, the Commission and the Member States, together with the European External Action Service, shall, in accordance with their respective responsibilities, ensure coordination with relevant Union policies, strategies and instruments. They shall, in particular, ensure that actions in and in relation to third countries:

(a) are carried out in synergy and in coherence with other actions outside the Union supported through other Union instruments;

(b) are coherent with external Union policy, respect the principle of policy coherence for development and are consistent with the strategic programming documents for the region or country in question;

(c) focus on measures that are not development-oriented; and

(d) serve the interests of internal Union policies and are consistent with activities undertaken within the Union.

The following actions shall not be eligible:

(a) actions as referred to in point (a) of paragraph 1 of Annex III at those internal borders at which controls have not yet been lifted;

(b) actions related to the temporary reintroduction of border control at internal borders within the meaning of point 1 of Article 2 of Regulation (EU) 2016/399;

(c) actions of which the primary purpose is customs control.

By way of derogation from the first subparagraph, where an emergency situation occurs, actions as referred to in the first subparagraph may be considered eligible.

CHAPTER II

FINANCIAL AND IMPLEMENTATION FRAMEWORK

SECTION 1

Common provisions

Article 6

General principles

Article 7

Budget

The financial envelope shall be used as follows:

(a) EUR 3 668 000 000 shall be allocated to the Member States’ programmes, of which EUR 200 568 000 shall be allocated to the Special Transit Scheme referred to in Article 17;

(b) EUR 1 573 000 000 shall be allocated to the thematic facility referred to in Article 8.

Article 8

General provisions on the implementation of the thematic facility

Funding from the thematic facility shall be used for its components, which are as follows:

(a) specific actions;

(b) Union actions; and

(c) emergency assistance as referred to in Article 25.

Technical assistance at the initiative of the Commission, as referred to in Article 35 of Regulation (EU) 2021/1060, shall also receive support from the amount referred to in point (b) of Article 7(3) of this Regulation.

The funding referred to in the first subparagraph of this paragraph, with the exception of funding used for emergency assistance in accordance with Article 25, shall only support the actions listed in Annex III.

SECTION 2

Support and implementation under shared management

Article 9

Scope

Article 10

Budgetary resources

The amount referred to in point (a) of Article 7(3) shall be allocated to Member States’ programmes indicatively as follows:

(a) EUR 3 057 000 000 in accordance with Annex I;

(b) EUR 611 000 000 for the adjustment of the allocations to the Member States’ programmes referred to in Article 14(1).

Article 11

Pre-financing

In accordance with Article 90(4) of Regulation (EU) 2021/1060, the pre-financing for the Instrument shall be paid in yearly instalments before 1 July of each year, subject to the availability of funds, as follows:

(a) 2021: 4 %;

(b) 2022: 3 %;

(c) 2023: 5 %;

(d) 2024: 5 %;

(e) 2025: 5 %;

(f) 2026: 5 %.

Article 12

Co-financing rates

The Commission decision approving a Member State’s programme shall set out for each type of action whether the co-financing rate is applied in respect of:

(a) the total contribution, including the public and private contribution; or

(b) the public contribution only.

Article 13

Member States’ programmes

Given the internal nature of the Instrument, Member States’ programmes shall primarily serve internal Union policy in accordance with the specific objectives set out in Article 3(2) of this Regulation.

The Commission shall assess the Member States’ programmes in accordance with Article 23 of Regulation (EU) 2021/1060.

As regards equipment, including means of transport, and ICT systems required for effective and secure border control, including for search and rescue operations, and purchased with the support of the Instrument:

(a) the Member States shall ensure that the standards established in accordance with Articles 16 and 64 of Regulation (EU) 2019/1896 are met when launching the purchase procedures for the equipment and ICT systems to be developed with the support of the Instrument;

(b) all large-scale operating equipment for border management, such as aerial and maritime means of transport and surveillance, purchased by the Member States shall be registered in the technical equipment pool of the European Border and Coast Guard Agency for the purpose of making that equipment available in accordance with Article 64(9) of Regulation (EU) 2019/1896;

(c) they may be additionally used in the following complementary areas: customs control, maritime operations of a multipurpose character and for achieving the objectives of the Internal Security Fund and of the Asylum, Migration and Integration Fund;

(d) Member States shall, in order to support coherent planning for capability development for the European Border and Coast Guard and the possible use of joint procurement, communicate to the Commission, as part of the reporting requirement under Article 29, the available multiannual planning for the equipment expected to be purchased under the Instrument, and the Commission shall transmit that information to the European Border and Coast Guard Agency.

Equipment and ICT systems as referred to in the first subparagraph shall only be eligible for financial support from the Instrument where the requirement set out in point (a) of the first subparagraph is met.

For the purposes of point (c) of the first subparagraph, equipment and ICT systems shall remain available and deployable for effective and secure border control activities. The use of equipment in the complementary areas referred to in point (c) of the first subparagraph shall not exceed 30 % of the total period of use of that equipment. ICT systems developed for the purposes of point (c) of the first subparagraph shall provide data and services to the border management systems at national or Union level. Member States shall inform the Commission in the annual performance report of multiple use as referred to in point (c) of the first subparagraph and the place of deployment for multi-purpose equipment and ICT systems.

Article 14

Mid-term review

Article 15

Specific actions

Article 16

Operating support

Article 17

Operating support for the Special Transit Scheme

Article 18

Management verifications and audits of projects carried out by international organisations

In addition, where costs are to be reimbursed pursuant to point (a) of Article 53(1) of Regulation (EU) 2021/1060, the management declaration to be submitted by the international organisation shall confirm that:

(a) invoices and proof of their payment by the beneficiary have been verified;

(b) the accounting records or accounting codes maintained by the beneficiary for transactions linked to the expenditure declared to the managing authority have been verified.

Paragraph 2 shall not apply, and consequently a managing authority shall be required to carry out management verifications, where:

(a) that managing authority identifies a specific risk of irregularity or an indication of fraud with respect to a project initiated or implemented by the international organisation;

(b) the international organisation fails to submit to that managing authority the documents referred to in paragraphs 2 to 5 and 7; or

(c) the documents referred to in paragraphs 2 to 5 and 7 that have been submitted by the international organisation are incomplete.

SECTION 3

Support and implementation under direct or indirect management

Article 19

Scope

The Commission shall implement support under this Section either directly in accordance with point (a) of the first subparagraph of Article 62(1) of the Financial Regulation or indirectly in accordance with point (c) of that subparagraph.

Article 20

Eligible entities

The following entities are eligible for Union financing:

(a) legal entities established in: (i) a Member State or an overseas country or territory linked to it; (ii) a third country listed in the work programme, under the conditions specified in paragraph 3;

(b) legal entities created under Union law or any international organisation relevant for the purposes of the Instrument.

Entities participating as part of a consortium as referred to in the first subparagraph of this paragraph shall ensure that the actions in which they participate comply with the principles enshrined in the Charter and contribute to the achievement of the objectives of the Instrument.

Article 21

Union actions

Article 22

Technical assistance at the initiative of the Commission

In accordance with Article 35 of Regulation (EU) 2021/1060, the Instrument may support technical assistance implemented at the initiative of, or on behalf of, the Commission, at a financing rate of 100 %.

Article 23

Audits

Audits of the use of the Union contribution carried out by persons or entities, including by persons or entities other than those mandated by Union institutions, bodies, offices or agencies, shall form the basis of the overall assurance pursuant to Article 127 of the Financial Regulation.

Article 24

Information, communication and publicity

Financial resources allocated to the Instrument shall also contribute to the corporate communication of the political priorities of the Union, insofar as those priorities are related to the objectives of the Instrument.

SECTION 4

Support and implementation under shared, direct or indirect management

Article 25

Emergency assistance

In response to such duly justified emergency situations, the Commission may provide emergency assistance within the limits of available resources.

Article 26

Cumulative and alternative financing

In accordance with Article 73(4) of Regulation (EU) 2021/1060, the European Regional Development Fund or the European Social Fund Plus may support actions attributed a Seal of Excellence label as defined in point (45) of Article 2 of that Regulation. In order to be attributed a Seal of Excellence label, the actions shall comply with the following cumulative conditions:

(a) they have been assessed in a call for proposals under the Instrument;

(b) they comply with the minimum quality requirements of that call for proposals; and

(c) they cannot be financed under that call for proposals due to budgetary constraints.

SECTION 5

Monitoring, reporting and evaluation

Subsection 1

Common provisions

Article 27

Monitoring and reporting

Article 28

Evaluation

By 31 December 2024, the Commission shall carry out a mid-term evaluation of this Regulation. In addition to what is provided for in Article 45(1) of Regulation (EU) 2021/1060, the mid-term evaluation shall assess the following:

(a) the effectiveness of the Instrument, including the progress made towards the achievement of its objectives, taking into account all relevant information already available, in particular the annual performance reports referred to in Article 29 and the output and result indicators set out in Annex VIII;

(b) the efficiency of the use of resources allocated to the Instrument and the efficiency of the management and control measures put in place to implement it;

(c) the continued relevance and appropriateness of the implementation measures listed in in Annex II;

(d) the coordination, coherence and complementarity between the actions supported under the Instrument and support provided by other Union funds;

(e) the Union added value of actions implemented under the Instrument.

That mid-term evaluation shall take into account the results of the retrospective evaluation of the effects of the instrument for financial support for external borders and visa, as part of the Internal Security Fund, for the 2014-2020 period.

Subsection 2

Rules for shared management

Article 29

Annual performance reports

The reporting period shall cover the last accounting year, as defined in point (29) of Article 2 of Regulation (EU) 2021/1060, preceding the year of submission of the report. The report submitted by 15 February 2023 shall cover the period from 1 January 2021.

The annual performance reports shall, in particular, set out information on:

(a) the progress in the implementation of the Member State’s programme and in achieving the milestones and targets set out therein, taking into account the most recent data as required under Article 42 of Regulation (EU) 2021/1060;

(aa) the implementation of solidarity actions, including a breakdown of the financial contributions by actions and a description of the main results achieved as a result of the funding;