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"Community fishing vessel" has the meaning given to it in article 3 of Council Regulation (EEC) No. 3760/92 establishing a Community system for fisheries and aquaculture[3];

"the Community legislation" means - 

(a) Council Regulation 1260/1999;

(b) Council Regulation (EC) No. 1263/1999 on the Financial Instrument for Fisheries Guidance[4];

(c) Council Regulation 2792/1999;

(d) Commission Decision (EC) No. 1999/501 of 1st July 1999 fixing an indicative allocation by Member State of the commitment appropriations for Objective 1 of the Structural Funds for the period 2000 to 2006[5];

(e) Commission Decision (EC) No. 1999/502 of 1st July 1999 drawing up the list of regions covered by Objective 1 of the Structural Funds for the period 2000 to 2006[6];

(f) Commission Regulation (EC) No. 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) 1260/1999 as regards eligibility of expenditure of operations co-financed by the Structural Funds[7];

(g) Commission Decision No. C (2001) 637 of 22nd March 2001 approving the operational programme forming part of the Community Support Framework for Community structural assistance in the region of Northern Ireland qualifying for transitional support under Objective 1 in the United Kingdom;

(h) Commission Regulation EC 448/2001 of 2nd March 2001 laying down detailed rules for the application of Council Regulation (EC) No. 1260/1999 regarding the procedure for making financial corrections of assistance granted under the Structural Funds[8];

(i) Commission Regulation (EC) No. 438/2001 laying down detailed rules for the application of Council Regulation (EC) No. 1260/1999 regarding the management and control systems for assistance granted under the Structural Funds and regarding the form and content of the accounting information that the Member States must hold at the disposal of the Commission for the purposes of checking Structural Funds accounts[9];

"Council Regulation 1260/1999" means Council Regulation (EC) No. 1260/1999 laying down general provisions on the Structural Funds[10];

"Council Regulation 2792/1999" means Council Regulation (EC) No. 2792/1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector[11];

"the Department" means - 

(a) in the case of a relevant operation which is an investment, project or action in respect of aquaculture in inland waters, the Department of Culture, Arts and Leisure;

(b) in the case of all other relevant operations, the Department of Agriculture and Rural Development;

"eligible expenditure" means expenditure which is incurred or to be incurred in connection with an approved operation and which the Department has approved for the purpose of receiving financial assistance under regulation 5;

"financial assistance" means any amount by way of grant or Community aid;

"grant" means a grant towards eligible expenditure payable under these Regulations in addition to any Community aid;

"LIBOR" in relation to any particular day of the month, means the rate of interest per centum notified to the Department by the Bank of England on the first working day of that month, rounded if necessary to two decimal points;

"relevant conditions" means any conditions relating to the approval of an application or the making of a payment of any financial assistance which have been notified to a beneficiary under regulation 5(3)(b) or 7;

"relevant documents" means any invoice, amount, account, drawing, plan, technical specification or other document relating to the approved operation;

"relevant equipment" means any plant, machinery or other equipment for which financial assistance has been claimed or paid;

"relevant operation" means an investment, project or action which is eligible for Community aid;

"works" means any construction, harbour or other building works, whether completed or not, for which financial assistance has been claimed or paid.

    (2) Other expressions used in these Regulations have, insofar as the context admits, the same meanings as in the Community legislation.

    (3) Any reference in these Regulations to the doing of anything which under any regulation is required to be or may be done or evidenced in writing or otherwise using a document, notice or instrument shall, be regarded as including by electronic means where arrangements have been made by the Department to enable or provide for electronic means to be used.

    (4) The Interpretation Act (Northern Ireland) 1954[12], except section 20(2) and (3), shall apply to these Regulations as it applies to an Act of the Northern Ireland Assembly.

Financial Assistance
     3.  - (1) Subject to the provisions of the Community legislation and these Regulations the Department may pay Community aid and, if it so determines, a grant to any person - 

(a) who has applied, in accordance with regulation 4, for the purpose of obtaining such financial assistance, for approval under regulation 5 - 


(i) of a relevant operation; and

(ii) of expenditure incurred or to be incurred in connection with that operation, and



(b) whose application it has so approved.

    (2) In determining under paragraph (1) - 

(a) whether to pay a grant in addition to Community aid; and

(b) the amount of any such grant it may make,

the Department shall have regard to the requirements of the Community legislation and, in particular the limits on total State financial participation (national, regional and other) as set out in Annex IV to Council Regulation 2792/1999.

Applications
     4.  - (1) Applications shall be made in such form and manner and at such time, shall include such information and shall be delivered at such address as the Department may from time to time require.

    (2) Without prejudice to paragraph (1) the Department may from time to time specify categories of relevant operation in respect of which applications may be made.

    (3) Applicants shall furnish all such further information and documents relating to the application as the Department may require.

Approval of applications
     5.  - (1) Subject to the Community legislation the Department may - 

(a) refuse to approve an application for the purpose of the receipt of financial assistance; or

(b) approve it in whole or in part and either unconditionally or subject to such conditions as it may determine.

    (2) The Department may, from time to time vary an approval by amending any conditions to which it has been made subject or by adding conditions.

    (3) The Department shall - 

(a) notify applicants in writing of the result of their applications;

(b) notify beneficiaries of any conditions to which an approval has been made subject or which have been varied pursuant to this regulation.

    (4) Where the Department notifies an applicant that it has refused to approve an application or a beneficiary that it has granted an approval subject to conditions, or has varied the terms of an existing approval, it shall give such applicant or beneficiary - 

(a) written reasons for its decision; and

(b) an opportunity to make representations in relation thereto within such time as the Department considers reasonable and has notified to the applicant or beneficiary.

    (5) Where the Department has received any representations in accordance with paragraph (4) it shall consider them and may confirm its decision or substitute a different decision and the decision so confirmed or substituted shall be final and it shall notify the applicant or beneficiary in writing accordingly.

    (6) If no representations, pursuant to paragraph (4), are received within the time notified to the applicant or beneficiary under that paragraph, the original decision as notified under paragraph (3) shall remain in effect.

Eligibility and claims for payment of financial assistance
     6.  - (1) Subject to paragraph (2) and to regulation 15, a beneficiary shall be eligible for payment of financial assistance.

    (2) Financial assistance shall not be paid in respect of an approved application unless the Department has been supplied with - 

(a) satisfactory evidence that the amount of expenditure for which financial assistance is claimed has been incurred including details of any discount received by the applicant; and

(b) satisfactory evidence that the approved operation to which the application relates has been properly executed.

Method of payment of financial assistance
     7. Payments by way of financial assistance may be made - 

(a) at such time, or by such installments at such intervals or times; and

(b) subject to such conditions,

as the Department may reasonably determine and any conditions in relation to any payment shall be notified to the beneficiary in writing.

Undertakings
     8. A beneficiary may be required by the Department to give such undertakings as it considers appropriate to the case.

Information
     9.  - (1) A beneficiary shall supply the Department with such information about an approved operation as the Department may from time to time reasonably require.

    (2) Where the Department requires such information, the beneficiary shall supply the Department with it within such period as the Department may reasonably determine.

Records
     10.  - (1) A beneficiary shall - 

(a) keep a record of all expenditure incurred in connection with an approved operation; and

(b) during the carrying out of the approved operation, on completion of the approved operation and thereafter for the duration of the control period retain such record together with any relevant documents, except to the extent that an authorised officer has removed and retained any of the same under regulation 13(5)

    (2) For the purposes of this regulation the "control period" means in relation to an approved operation - 

(a) a period of six years commencing with the last payment of financial assistance in respect of that operation; or

(b) that six year period plus such further period as has been notified by the Department to the recipient of financial assistance at any time before the expiry of that initial six year period,

but in determining in either case the date on which the control period shall come to an end no account shall be taken of any time between the commencement and final determination or settlement of any proceedings brought under regulation 15 for the recovery of any financial assistance paid in respect of that approved operation.

Exercise of functions by the Sea Fish Industry Authority
     11.  - (1) Without prejudice to section 2(5) of the Fisheries Act 1981[13] or to its ability to exercise any functions under these Regulations itself, the Department of Agriculture and Rural Development may, from time to time, require the Authority to exercise any of that Department's functions under, these Regulations either generally or in relation to financial assistance in connection with particular categories of relevant operation and may from time to time issue directions as to the manner in which such functions may be exercised.

    (2) Any functions of the Department of Agriculture and Rural Development under these Regulations which the Authority has been required to exercise pursuant to paragraph (1) shall be discharged by members of the Authority appointed under section 1(3) of the Fisheries Act 1981 to the exclusion of the other members.

    (3) The Authority shall keep such accounts with respect to any payments made by or to it pursuant to its exercise of functions under these Regulations as the Department of Agriculture and Rural Development may direct and shall prepare in respect of each financial year a statement of the accounts in such form and giving such information as may be directed.

    (4) The accounts for each financial year shall, in accordance with a scheme of audit approved by the Department of Agriculture and Rural Development, to be audited by the persons appointed in respect of that year to audit the other accounts of the Authority and the auditors shall be furnished by the Authority with copies of the statements of accounts.

    (5) The auditors shall complete the audit of the accounts and shall send the Department of Agriculture and Rural Development copies of the statement of accounts and of their report on the accounts and the statement as soon as possible after the end of the financial year to which they relate and in any event not later than 30th September following the end of that year.

    (6) The Department of Agriculture and Rural Development and the Comptroller and Auditor General for Northern Ireland shall be entitled to inspect all books, papers and other records of the Authority relating to, or to matters dealt with in, the accounts required to be kept pursuant to this regulation.

Assistance to authorised officers
     12. any applicant or beneficiary or any employee, servant or agent of any applicant or beneficiary shall give to an authorised officer such assistance as he may reasonably request to exercise any power conferred upon him by regulation 13.

Powers of authorised officers
     13.  - (1) An authorised officer may at all reasonable hours and on producing, if required to do so, some duly authenticated document showing his authority, exercise the powers specified in this regulation for the purpose of - 

(a) verifying the accuracy of any information or evidence contained in or included with an application or supplied pursuant to regulation 6;

(b) ascertaining whether and to what extent any expenditure in respect of which financial assistance is claimed should be approved;

(c) ascertaining whether and to what extent any undertakings given by a beneficiary under regulation 8 and any relevant conditions have been complied with;

(d) ascertaining whether and to what extent any amount of financial assistance is payable, or should be reduced, withheld or recovered under regulation 15;

(e) ascertaining whether an offence under regulation 17 has been or is being committed; or

(f) otherwise ascertaining, pursuant to Article 38 of Council Regulation 1260/1999, whether Community aid is being efficiently and correctly used,

and such powers shall be exercisable for those purposes on a random, spot-check or sample basis as well as by reference to the particular circumstances or suspected circumstances of individual cases.

    (2) An authorised officer may enter upon any premises, other than premises used only as a dwelling, which are, or which such officer has reasonable cause to believe are, relevant premises.

    (3) Any authorised officer who has entered any premises in accordance with paragraph (2) may inspect those premises, any equipment which is, or which such officer has reasonable cause to believe is, relevant equipment and any documents on those premises which are, or which such officer has reasonable cause to believe are, relevant documents.

    (4) An authorised officer entering any premises by virtue of this regulation may take with him such other persons as he considers necessary and regulations 12 and 14 and paragraphs (2), (3) and (5) shall apply in relation to such other persons when acting under the instructions of the authorised person as if they were authorised persons.

    (5) An authorised officer may - 

(a) require a beneficiary or an employee, servant or agent of a beneficiary to produce any relevant documents and to supply such additional information in that person's possession or under his control relating to an application or an approved operation as the officer may reasonably request;

(b) inspect any such documents and, where any such documents are kept by means of a computer, have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been used in connection with those documents;

(c) require that copies of, or extracts from, any relevant documents to be produced; or

(d) remove and retain for a reasonable period any such relevant document which he has reason to believe may be required as evidence in proceedings under these Regulations or which the Department may be required to make available to the Commission pursuant to Article 38(6) of Council Regulation 1260/1999 and, where any such document is kept by means of a computer, require it to be produced in a form in which it may be taken away and in which it is visible and legible.

    (6) In this regulation - 

"premises" includes any vessel or other vehicle; and

"relevant premises" means any premises to which an approved operation relates or in which relevant documents or relevant equipment are retained.

Protection of officers
     14. Any authorised officer shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred on him by virtue of regulation 13 if the court is satisfied that the act was done in good faith, that there were reasonable grounds for doing it and that it was done with reasonable skill and care.

Reduction, withholding and recovery of financial assistance
     15.  - (1) Subject to the provisions of this regulation, if, at any time after the Department has approved an application, it appears to it that - 

(a) any relevant conditions have not been complied with in whole or in part;

(b) the application so approved or any part of it was not an application which the beneficiary was eligible to make;

(c) the beneficiary or an employee, servant or agent of a beneficiary - 


(i) has failed to comply with a requirement imposed by regulation 10 or under regulation 9, 12 or 13(5);

(ii) has intentionally obstructed any authorised officer in the exercise of his powers under regulation 13; or

(iii) has given information on any matter relevant to the giving of the approval or the making of a payment relevant to the approval which is false or misleading in a material respect;



(d) the approved operation was commenced before the date on which the Department gave written permission to do so;

(e) the approved operation in respect of which the expenditure was incurred has not been carried out or has not been carried out properly or in accordance with the approval in relation thereto;

(f) the approved operation has been or is being unreasonably delayed beyond the time limits set out in the notification of approval or is unlikely to be completed;

(g) any undertakings given by the beneficiary have not been complied with;

(h) the Commission has decided pursuant to Article 38 or 39 of Council Regulation No. 1260/1999 to suspend, reduce or recover Community aid;

(i) in any case of financial assistance for the construction or modernisation of a fishing vessel, any of the events specified in paragraph (2) has occurred before the elapse of ten years from the completion of the construction or five years from the completion of the modernisation of the vessel; or

(j) in any case of financial assistance for any relevant operation other than for the construction or modernisation of a fishing vessel, any of the events specified in paragraph (3) has occurred before the elapse of six years from the purchase of the equipment or ten years from the purchase of the premises or the completion of the works,

it may revoke the approval in whole or in part or may reduce or withhold any financial assistance in respect of the approved operation and, where payment by way of financial assistance has been made, may on demand recover as a debt an amount equal to the whole or any part of the payment which has been so made.

    (2) The events mentioned in sub-paragraph (i) of paragraph (1) are - 

(a) the total loss of the vessel;

(b) the damage or destruction of any relevant equipment resulting in payment under an insurance policy or by way of compensation or damages;

(c) a mortgage of the vessel (other than a mortgage created for the raising of money applied to the cost of construction or modernisation of the vessel, being a mortgage approved by the Department before it was made);

(d) the use of the vessel primarily for purposes other than those in respect of which financial assistance was approved;

(e) a disposal whether by sale or otherwise of the vessel or any part thereof, its engine or any part thereof or any relevant equipment or other equipment or apparatus used on or in connection with the vessel; or

(f) the vessel ceasing to be a Community fishing vessel.

    (3) The events mentioned in sub-paragraph (j) of paragraph (1) above are - 

(a) the total loss of the relevant equipment;

(b) the damage or destruction of any relevant equipment, premises, or works resulting in payment under an insurance policy or by way of compensation or damages;

(c) the creation of a right in security over the relevant equipment, premises, or works (other than a right in security created for the raising of money applied to the cost of construction or modernisation of the relevant equipment, premises, or works, being a right in security approved by the Department before it was made);

(d) the use of the relevant equipment, premises, or works primarily for the purposes other than those in respect of which financial assistance was approved; or

(e) a disposal whether by sale or otherwise of the relevant equipment, premises, or works or any part thereof.

    (4) Where sub-paragraphs (i) or (j) of paragraph (1) applies and none of the other sub-paragraphs of that paragraph applies, the maximum amount which the Department may recover from a beneficiary pursuant to paragraph (1) shall be an amount representing the unexpired part of the ten, or, as the case may be, five or six year period calculated as a proportion of the total payment of financial assistance, together with interest thereon under regulation 16.

    (5) Before taking any step specified in paragraph (1), the Department shall - 

(a) give to the beneficiary a written explanation of the reasons for the step proposed to be taken;

(b) afford the beneficiary the opportunity of making written representations within such time as the Department considers reasonable; and

(c) consider any representations.

Recovery of interest
     16.  - (1) If the Department decides to recover any amount under regulation 15, it may also recover on demand interest on that amount at a rate of 1 percentage point above LIBOR calculated on a daily basis for the period from the day on which the financial assistance was granted until the Department recovers the amount.

    (2) In any proceedings relating to the recovery of such interest a certificate of the Department showing the rate or rates of interest, the amount of such interest recoverable and the period for which interest is calculated shall, unless the contrary is shown, be conclusive evidence of these matters.

Offences and penalties
     17.  - (1) If any person, for the purposes of obtaining financial assistance for himself or any other person - 

(a) in furnishing any information in purported compliance with a requirement imposed by or under regulation 4(1) or (3) or 13(5)(a) knowingly or recklessly makes a statement which is false or misleading in a material respect; or

(b) in purported compliance with a requirement imposed under regulation 4(3) or 13(5)(a) or (c) knowingly or recklessly produces a document which is false or misleading in a material respect,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (2) If any person - 

(a) fails to comply with the requirement imposed under regulation 9 or by regulation 10;

(b) fails to comply with a request made under regulation 12; or

(c) intentionally refuses to supply any information, make any return, or produce any document when required to do so by, or otherwise intentionally obstructs, an authorised officer (or a person accompanying him and acting on his instructions) acting in exercise of a power conferred by regulation 13,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

    (3) Proceedings for an offence under paragraph (1) or (2) above may, subject to paragraph (4), be commenced within the period of six months from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to his knowledge.

    (4) No such proceedings shall be commenced by virtue of this regulation more than five years after the commission of the offence.

    (5) For the purpose of this regulation - 

(a) a certificate signed by or on behalf of the prosecutor and stating the date on which evidence sufficient in his opinion to warrant the proceedings came to his knowledge shall be conclusive evidence sufficient of that fact; and

(b) a certificate stating that matter purporting to be so signed shall be deemed to be so signed unless the contrary is proved.

    (6) Where an offence under this regulation which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

    (7) Where the affairs of a body corporate are managed by its members, paragraph (6) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Prosecution
     18. Proceedings for an offence under regulation 17 shall not be instituted except by the Department.



Sealed with the Official Seal of the Department of Agriculture and Rural Development on


10th January 2002.

L.S.

E. Cummins
A senior officer of the Department of Agriculture and Rural Development


Sealed with the Official Seal of the Department of Culture, Arts and Leisure on


10th January 2002.

L.S.

N. Carson
A senior officer of the Department of Culture, Arts and Leisure

[2] 1972 c. 68back

[3] O.J. No. L389, 31.12.92, p. 1back

[4] O.J. No. L161, 26.6.1999, p. 54back

[5] O.J. No. L194, 27.7.1999, p. 49back

[6] O.J. No. L194, 27.7.2000, p. 53back

[7] O.J. No. L193, 29.7.2000, p. 39back

[8] O.J. No. L64, 6.3.2001, p. 13back

[9] O.J. No. L63, 3.3.2001, p. 21back

[10] O.J. No. L161, 26.6.1999, p. 1back

[11] O.J. No. L337, 30.12.1999, p. 10back

[12] 1954 c. 33 (N.I.)back

[13] 1981 c. 29back

  © Crown copyright 2002