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23.5.2012 Official
Journal
of
the
European
Union L
133/1
I
(Legislative acts)
REGULATIONS
REGULATION (EU) No 423/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 22 May 2012
amending Council Regulation (EC) No 1083/2006 as regards certain provisions relating to risk-
sharing instruments for Member States experiencing or threatened with serious difficulties with
respect to their financial stability
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
amendments to the legislative framework, the impact of
EUROPEAN UNION,
the financial crisis on the real economy, the labour
market and citizens, is being widely felt.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 177 thereof,
(3)
Pursuant to Article 122(2) of the Treaty on the Func
tioning of the European Union which provides for the
possibility of granting Union financial assistance to a
Having regard to the proposal from the European Commission,
Member State in difficulties or seriously threatened with
severe difficulties caused, inter alia, by exceptional occur
rences beyond its control, Council Regulation (EU) No
After transmission of the draft legislative act to the national
407/2010 ( 3 ) established a European financial stabili
parliaments,
sation mechanism with a view to preserving the
financial stability of the Union.
Having regard to the opinion of the European Economic and
Social Committee ( 1 ),
(4) By
Council
Implementing
Decisions
2011/77/EU
( 4 ) and
2011/344/EU ( 5 ), Ireland and Portugal, respectively, were
granted financial assistance under Regulation (EU) No
After consulting the Committee of the Regions,
407/2010.
Acting in accordance with the ordinary legislative procedure ( 2 ),
(5) Greece
was
already
experiencing
serious
difficulties
with
respect to its financial stability before the entry into force
of Regulation (EU) No 407/2010. Financial assistance to
Whereas:
Greece could not, therefore, be based on that Regulation.
(1) The
unprecedented
global
financial
crisis
and
economic
downturn have seriously damaged economic growth and
(6) The
Intercreditor
Agreement
and
the
Loan
Facility
financial stability and provoked a strong deterioration in
Agreement for Greece, signed on 8 May 2010, entered
financial, economic and social conditions in several
into force on 11 May 2010. The Intercreditor Agreement
Member States.
is to remain in full force and effect for a three-year
programme period, as long as there are any amounts
outstanding under the Loan Facility Agreement.
(2)
Whilst important actions to counterbalance the negative
effects of the crisis have already been taken, including
( 3 ) OJ L 118, 12.5.2010, p. 1.
( 4 ) Council Implementing Decision 2011/77/EU of 7 December 2010
on granting Union financial assistance to Ireland (OJ L 30, 4.2.2011,
( 1 ) OJ C 43, 15.2.2012, p. 13.
p. 34).
( 2 ) Position of the European Parliament of 19 April 2012 (not yet
( 5 ) Council Implementing Decision 2011/344/EU of 30 May 2011 on
published in the Official Journal) and decision of the Council of
granting Union financial assistance to Portugal (OJ L 159,
26 April 2012 (not yet published in the Official Journal).
17.6.2011, p. 88).

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L 133/2
EN
Official Journal of the European Union
23.5.2012
(7) Council
Regulation
(EC)
No
332/2002
of
18
February
Government agreed on strengthening EIB support for
2002 establishing a facility providing medium-term
infrastructure as an urgent measure and invited the
financial assistance for Member States’ balances of
Council, the Commission and the EIB to consider
payments ( 1 ) provides that the Council is to grant
possible options to enhance EIB action to support
mutual assistance where a Member State which has not
growth and to make appropriate recommendations,
adopted the euro is in difficulties or is seriously
including possibilities for the general budget of the
threatened with difficulties as regards its balance of
European Union to leverage EIB group financing
payments.
capacity. This Regulation aims to respond to that invi
tation in the current crisis-management context.
(8) By Council Decisions 2009/102/EC
( 2 ) and
2009/459/EC ( 3 ), Hungary and Romania, respectively,
were granted financial assistance under Regulation (EC)
(13) The
implementation of operational programmes and
No 332/2002.
projects in the field of infrastructure and productive

investment in Greece faces serious problems because
the conditions for the participation of the private
sector and particularly of the financial sector have
changed dramatically as a result of the economic and
(9) On
11
July
2011,
finance
ministers
of
the
17
euro
area
financial crisis.
Member States signed the Treaty establishing the

European Stability Mechanism (ESM). Following
decisions taken by the Heads of State or Government
of the euro area on 21 July and 9 December 2011,
the Treaty was modified in order to improve the effec
(14) In order to alleviate those problems and to speed up the
tiveness of the mechanism and signed on 2 February
implementation of operational programmes and projects,
2012. Under that Treaty, the ESM will, by 2013,
as well as to strengthen the economic recovery, it is
assume the tasks currently fulfilled by the European
necessary that the Member States, which have
Financial Stability Facility and the European financial
experienced or have been threatened with serious
stabilisation mechanism. The ESM should, therefore, be
difficulties with respect to their financial stability and
taken into account by this Regulation.
which have been granted financial assistance under one
of the financial assistance mechanisms set out in
Article 77(2) of Council Regulation (EC) No
1083/2006 of 11 July 2006 laying down general
(10) In
its
conclusions
of
23
and
24
June
2011,
the
European
provisions on the European Regional Development
Council welcomed the Commission’s intention to
Fund, the European Social Fund and the Cohesion
enhance the synergies between the loan programme for
Fund ( 4 ) as amended by Regulation (EU) No 1311/2011
Greece and the Union funds, and supported efforts to
of the European Parliament and of the Council ( 5 ), may
increase Greece’s capacity to absorb Union funds in
contribute financial resources from operational
order to stimulate growth and employment by refocusing
programmes to the establishment of risk-sharing
on improving competitiveness and employment creation.
instruments providing loans or guarantees or other
Moreover, it welcomed and supported the preparation by
financial facilities, in support of projects and operations
the Commission, together with the Member States, of a
provided for under an operational programme.
comprehensive programme of technical assistance to
Greece.
(15) In
light
of
the
EIB’s
long-standing
expertise
as
a
major
financier of infrastructure projects and its commitment to
(11) In the Statement by the Heads of State or Government of
support economic recovery, the Commission should be
the euro area and the EU institutions of 21 July 2011,
able to establish risk-sharing instruments by means of a
the Commission and the European Investment Bank (EIB)
cooperation agreement concluded with the EIB for such a
were invited to enhance the synergies between loan
purpose. In order to provide legal certainty, it is
programmes and Union funds in all countries under
necessary to set out the typical main terms and
Union or International Monetary Fund assistance. This
conditions of such a cooperation agreement in Regu
Regulation should contribute to that objective.
lation (EC) No 1083/2006. As regards the specific
crisis-management nature of risk-sharing instruments, as
provided for under this Regulation, the specific terms and
conditions of each cooperation should be laid down in
(12) In the Statement of the Members of the European
an individual cooperation agreement, to be concluded
Council of 30 January 2012, the Heads of State or
between the Commission and the EIB in accordance
with Council Regulation (EC, Euratom) No 1605/2002
( 1 ) OJ L 53, 23.2.2002, p. 1.
of 25 June 2002 on the Financial Regulation applicable
( 2 ) Council Decision 2009/102/EC of 4 November 2008 providing
to the general budget of the European Communities ( 6 ).
Community medium-term financial assistance for Hungary (OJ
L 37, 6.2.2009, p. 5).
( 3 ) Council Decision 2009/459/EC of 6 May 2009 providing
( 4 ) OJ L 210, 31.7.2006, p. 25.
Community medium-term financial assistance for Romania (OJ
( 5 ) OJ L 337, 20.12.2011, p. 5.
L 150, 13.6.2009, p. 8).
( 6 ) OJ L 248, 16.9.2002, p. 1.

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EN
23.5.2012 Official
Journal
of
the
European
Union L
133/3
(16) In
view
of
the
need
to
expand
investment
opportunities
Article 41 of Regulation (EC) No 1083/2006 or other
which may arise in the Member States concerned, the
projects, co-financed by the ERDF or the CF and falling
Commission should also be able to establish risk-
under one or more of their operational programmes,
sharing instruments with national or international
where these projects face a lack of finance regarding
public-sector bodies or bodies governed by private law
the investment costs to be borne by private investors.
with a public-service mission providing adequate guar
Finally, selected operations could also be operations
antees, as referred to in Article 54(2)(c) of Regulation
which contribute to the objectives of the national
(EC, Euratom) No 1605/2002, under similar terms and
strategic reference framework of the requesting Member
conditions to those applied to and by the EIB.
State and of the Community strategic guidelines on
cohesion and which can, by virtue of their character,
contribute to supporting growth, and strengthen the
economic recovery, subject to availability of funds
(17) To respond rapidly in the context of the current
under the risk-sharing instrument.
economic, financial and social crisis, risk-sharing
instruments under this Regulation should be imple
mented by the Commission in accordance with
Article 54(2) of Regulation (EC, Euratom) No
1605/2002.
(21) In
addition,
the
requesting
Member
State
should
specify
in its request the amount available for its exclusive
benefit, within its cohesion policy financial allocation
pursuant to Article 18(2) of Regulation (EC) No
1083/2006, and which can be earmarked for the
(18) In
the
interests
of
clarity
and
legal
certainty,
a
definition
of a risk-sharing instrument should be inserted in
objectives of the risk-sharing instrument exclusively
Article 36a of Regulation (EC) No 1083/2006 as
from the Union budget commitments to be effected in
amended by this Regulation. Risk-sharing instruments
the years 2012 and 2013, pursuant to Article 75(1) of
should be used for loans and guarantees as well as for
Regulation (EC) No 1083/2006, and which should not
other financial facilities in order to finance operations,
exceed 10 % of the indicative total allocation for the
co-financed by the European Regional Development Fund
requesting Member State for the years 2007-13
(ERDF) or the Cohesion Fund (CF), as regards investment
regarding the ERDF and the CF, and approved in
costs which cannot be financed, as eligible expenditure
accordance with Article 28(3)(b) of Regulation (EC) No
pursuant to Article 55 of Regulation (EC) No
1083/2006. Finally, it is necessary to ensure that Union
1083/2006, or pursuant to the Union rules on State
financing of the risk-sharing instrument, including
aids. For this purpose, it is also necessary to establish a
management fees and other eligible costs, is clearly
derogation from Article 54(5) of Regulation (EC) No
limited to the above-specified maximum amount of the
1083/2006.
Union contribution to the risk-sharing instrument and

there should be no additional contingent liability for
the general budget of the European Union. Any
residual risk inherent in the financed operations under
the established risk-sharing instrument should, therefore,
(19) A
Member
State
seeking
to
benefit
from
a
risk-sharing
be borne either by the EIB or by the national or inter
instrument should clearly specify, in its written request to
national public sector bodies or bodies governed by
the Commission, why it considers that it meets one of
private law with a public service mission, with which
the eligibility conditions of Article 77(2) of Regulation
the risk-sharing instrument has been established by
(EC) No 1083/2006 and it should attach to its request all
virtue of a cooperation agreement. Reuse of reflow or
the information required under this Regulation in order
any amount left-over, allocated to the risk-sharing
to prove the specified eligibility condition. In its request,
instrument, should be made possible, under this Regu
the requesting Member State should also identify the
lation, for the same Member State, at its request and
programmes (including the list of project proposals and
within the same risk-sharing instrument, provided that
related funding needs) co-financed by the ERDF or the CF
it still meets the eligibility conditions.
and the part of the 2012 and 2013 allocations to such
programmes that it wants to allocate to the risk-sharing
instrument. The Member State request should, therefore,
be transmitted to the Commission, by 31 August 2013,
with a view to the adoption of a Commission decision
(22) The
Commission should verify that the information
on the participation of the requesting Member State in a
submitted by the requesting Member State is correct
risk-sharing instrument by 31 December 2013. Before
and that the Member State request is justified, and
the Commission decision on the Member State request,
should be empowered to adopt, by means of an imple
the related operational programmes under the ERDF and
menting act, within four months of the Member State
the CF should be revised, in accordance with Article 33(2)
request, a decision on the terms and conditions of the
of Regulation (EC) No 1083/2006.
participation of the requesting Member State in the risk-
sharing instrument. However, only projects for which a
favourable financing decision is taken either by the EIB
or by the national or international public sector bodies
(20) Selected operations, eligible under a risk-sharing
or bodies governed by private law with a public service
instrument, should be either major projects that have
mission, as the case may be, should be accepted as
already been subject to a Commission decision under
eligible for financing through an established risk-sharing

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L 133/4
EN
Official Journal of the European Union
23.5.2012
instrument. In the interests of transparency and legal
2. A
Member
State
that
meets
one
of
the
conditions
set
certainty, the Commission decision should be published
out in points (a), (b) and (c) of Article 77(2), may contribute
in the Official Journal of the European Union.
a part of the overall resources distributed in accordance
with Articles 19 and 20 to a risk-sharing instrument
which shall be established by means of a cooperation
(23) Given the crisis-management purpose and the nature of
agreement to be concluded by the Commission either
the risk-sharing instrument introduced by this Regu
with the EIB or with national or international public
lation, as well as the unprecedented crisis affecting inter
sector bodies or bodies governed by private law with a
national markets and the economic downturn which
public service mission providing adequate guarantees as
have seriously damaged the financial stability of several
referred to in Article 54(2)(c) of Regulation (EC, Euratom)
Member States and which require a rapid response in
No 1605/2002, under similar terms and conditions to those
order to counter the effects on the real economy, the
applied to and by the EIB (“contracted implementing body”),
labour market and citizens, it is appropriate that this
to cover the provisioning and capital allocation of guar
Regulation enters into force on the day of its publication
antees and loans, as well as other financial facilities,
in the Official Journal of the European Union.
granted under the risk-sharing instrument.
(24) Regulation
(EC) No 1083/2006 should therefore be
amended accordingly,
3. The
cooperation
agreement,
referred
to
in
paragraph
2, shall contain rules in particular on: the total amount of
the Union contribution and a schedule on how it will be
made available; the trust account conditions to be set up by
HAVE ADOPTED THIS REGULATION:
the contracted implementing body; the eligibility criteria for
the use of the Union contribution; the details of the exact
risk-sharing (including the leverage ratio) to be covered and
Article 1
the guarantees to be provided by the contracted imple
Regulation (EC) No 1083/2006 is hereby amended as follows:
menting body; the pricing of the risk-sharing instrument
based on the risk margin and the coverage of all the admin
istrative costs of the risk-sharing instrument; the application
and approval procedure for the project proposals covered
(1) in Article 14, paragraph 1 is replaced by the following:
by the risk-sharing instrument; the period of availability of
the risk-sharing instrument; and the reporting requirements.
‘1. The
budget
of
the
European
Union
allocated
to
the
Funds shall be implemented within the framework of shared
management between the Member States and the
The exact risk-sharing (including the leverage ratio) to be
Commission, in accordance with point (b) of Article 53
undertaken, pursuant to the cooperation agreement, by the
of Council Regulation (EC, Euratom) No 1605/2002 of
contracted implementing body, shall, as an average, aim at
25 June 2002 on the Financial Regulation applicable to
being at least 1,5 times the amount of the Union
the general budget of the European Communities (*), with
contribution to the risk-sharing instrument.
the exception of the instrument referred to in Article 36a of
this Regulation and of the technical assistance referred to in
Article 45 of this Regulation.
Payments to the risk-sharing instrument shall be made in
tranches, in accordance with the scheduled use of the risk-
The principle of sound financial management shall be
sharing instrument in providing loans and guarantees
applied in accordance with Article 48(2) of Regulation
financing specific operations.
(EC, Euratom) No 1605/2002.
___________
4. By
way
of
derogation
from
Article
54(5),
the
risk-
(*) OJ L 248, 16.9.2002, p. 1.’;
sharing instrument shall be used to finance operations co-
financed by the ERDF or the Cohesion Fund, regarding
investment costs which cannot be financed, as eligible
expenditure pursuant to Article 55, or pursuant to the
Union rules on State aids.
(2) the following article is inserted:
‘Article 36a
It may also be used to finance operations which contribute
Risk-sharing instrument
to the achievement of the objectives of the national strategic
reference framework of the requesting Member State and
1. For
the
purpose
of
this
Article,
a
risk-sharing
the Community strategic guidelines on cohesion under
instrument means a financial instrument which guarantees
Council Decision 2006/702/EC (*), and which bring the
the total or partial coverage of a defined risk, where appro
greatest added value to the Union strategy for smart,
priate in exchange for an agreed remuneration.
sustainable and inclusive growth.

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23.5.2012 Official
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European
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5. The
risk-sharing
instrument
shall
be
implemented
by
(c) indicative list of eligible projects for financing; and
the Commission within the framework of indirect
centralised management in accordance with Articles 54
and 56 of Regulation (EC, Euratom) No 1605/2002.
(d) the maximum amount of the Union contribution that
can be allocated to the risk-sharing instrument from the
Member State allocations available, and the instalments
6. A
Member
State
seeking
to
benefit
from
a
risk-sharing
for practical implementation.
instrument shall submit a written request to the
Commission by 31 August 2013. In its request, the
Member State shall provide all the information necessary
The Commission decision shall be published in the Official
to establish:
Journal of the European Union.
(a) that it meets one of the conditions referred to in points
When deciding on the Member State request, the
(a), (b) and (c) of Article 77(2), by providing a reference
Commission shall ensure that only projects for which a
to a Council decision or other legal act proving its
favourable financing decision is taken either by the EIB or
eligibility;
by a national or international public-sector body or body
governed by private law with a public-service mission, shall
be accepted as eligible for financing through an established
(b) the list of programmes (including project proposals and
risk-sharing instrument.
related funding needs) co-financed either by the ERDF
or by the Cohesion Fund, and the part of the 2012 and
2013 allocations to such programmes that it wants to
8. The
Commission
decision
referred
to
in
paragraph
7
take out of those programmes in order to reallocate
shall be preceded by the revision of the operational
those amounts to the risk-sharing instrument;
programmes under the ERDF and the Cohesion Fund in
accordance with Article 33(2).
(c) the list of proposed projects pursuant to the second
subparagraph of paragraph 4, and the part of the
9. The
financial
allocations
to
the
risk-sharing
instrument
2012 and 2013 allocations that it wants to take out
shall be strictly capped and shall not exceed 10 % of the
of the programmes in order to reallocate those amounts
indicative total allocation for the requesting Member State
to the risk-sharing instrument;
for the years 2007-13 regarding the ERDF and the
Cohesion Fund, which was approved in accordance with
Article 28(3)(b). The financial allocations available to the
projects in the second subparagraph of paragraph 4 of
(d) the amount available for its exclusive benefit within its
this Article are limited to the amounts left after financing
cohesion policy financial allocation pursuant to
the operations mentioned in the first subparagraph of
Article 18(2), and an indication of the amount which
paragraph 4 of this Article. Apart from the total Union
may be earmarked for the objectives of the risk-sharing
contribution to the risk-sharing instrument endorsed in
instrument exclusively from the Union budget
the decision referred to in paragraph 7 of this Article, the
commitments to be effected in the years 2012 and
Union participation in a risk-sharing instrument shall not
2013, pursuant to Article 75(1).
create any additional contingent liabilities either for the
general budget of the European Union or for the Member
State concerned.
7. After
verifying
that
the
Member
State
request
is
correct and justified, the Commission shall adopt a
decision, within four months of the Member State request,
10. Any
reflow
or
amount
left
over
after
the
completion
by means of an implementing act, specifying the system
of an operation covered by the risk-sharing instrument may
established to guarantee that the amount available is used
be reused, at the request of the Member State concerned,
for the exclusive benefit of the Member State which
within the risk-sharing instrument, provided that the
provided it within its cohesion policy financial allocation
Member State still meets one of the conditions set out in
pursuant to Article 18(2), as well as setting out the terms
points (a), (b) and (c) of Article 77(2). If the Member State
and conditions of the participation of the requesting
no longer meets any of those conditions, the reflow or the
Member State in the risk-sharing instrument. The terms
amount left-over shall be considered as assigned revenue
and conditions shall in particular cover the following:
within the meaning of Article 18 of Regulation (EC,
Euratom) No 1605/2002. At the request of the Member
State concerned, additional commitment appropriations
(a) traceability and accounting, information on the use of
generated by this assigned revenue shall be added the
the funds, payment conditions and monitoring and
following year to the cohesion policy financial allocation
control systems;
of that Member State.
(b) structure of the fees and other administrative and
___________
management costs;
(*) OJ L 291, 21.10.2006, p. 11.’.

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L 133/6
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Official Journal of the European Union
23.5.2012
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European
Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 22 May 2012.
For the European Parliament
For the Council
The President
The President
M. SCHULZ
N. WAMMEN

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