Key Benefits:
Paris, 18 January 2010.
The Prime Minister to the Minister of State, Madam Minister of State, Ladies and Gentlemen Ministers, Ladies and Gentlemen Secretary of State, High Commissioner
Annexes: five.
References:
Circulars of 24 December 2002 on State subsidies to associations and No. 5193/SG of 16 January 2007 on State subsidies to multi-year associations and conventions of objectives.
The second Associative Life Conference (CVA) was held on 17 December 2009 on three themes: security, recognition and development. This event is an important step in consolidating the dialogue between the State, the local authorities and the associations, and in clarifying and securing relations, especially financial, between public authorities and the associative world.
The preparatory work for the conference of associative life has highlighted the expectations and proposals of the associative world on two points:
― clarifying and securing the legal framework for financial relations between public authorities and associations, particularly with regard to European regulations on State aids;
― simplifying the procedures carried out by associations as part of the accreditation procedures.
On these two points, the Government made commitments at the conference of 17 December 2009 that will give more dynamism to society and that I wish to see you decline with each of the administrations under your authority.
1. Clarification of financial relations rules
between public authorities and associations
The associations requested a clear and shared doctrine between the State, the territorial authorities and the associations on the respectful scope of subsidies and market procedures, public service delegation or calls for projects.
A first response to this request was made at the conference of associative life in the form of a note, complementary to the new multi-year convention of objectives and intended to recall simple, accessible rules to all, and to dispel some confusions.
This note, attached to this note (Appendix I) and I urge you to share with your services and partners, does not purport to close the definition exercise of a comprehensive framework of references to clarify and secure financial relations between public authorities and associations. It is the first step in this clarification process that I would like to continue, in the first quarter of 2010, with your services, in consultation with the associations and representatives of the local authorities and with the support of the General Secretariat for European Affairs (SGAE).
2. Securing objectives conventions
Following in-depth interdepartmental work and consultations of representatives of local authorities and associations, a single model of an annual or multi-year convention of objectives was developed to form a new framework for granting subsidies to associations (annex II). A new form of "subsidy application file" is attached to this agreement.
This new funding convention will simplify the approaches of associations. It was developed with the aim of taking into account the various applicable legal requirements of national or community origin. It must be implemented upon receipt of the present circular and, in particular, will allow you to enter the next triennial agreement cycle. In this regard, I would like to remind you that the funding guarantee scheme provided by my circular No. 5193/SG of 16 January 2007 on State subsidies to multi-year associations and conventions of objectives is maintained.
The new objective convention model is accompanied by a manual of use, for the use of administrations and associations, to facilitate the preparation of the grant application file and the drafting of the convention (annex IV).
The grant application file has been revised and is contained in annex III to the present circular. The new CERFA form will be available by mid-January on the website www.associations.gouv.fr. It must be used by all State administrations and by public institutions under their supervision.
It is also necessary to encourage local authorities and their public institutions to use or inspire them, especially when they finance actions jointly with the State or its public institutions. The High Commissioner for Active Solidarity against Poverty, High Commissioner for Youth, will issue a circular to the Prefects in this sense.
This file will be integrated into the new online grant application system available on the www.mon.service-public.fr website. This one-stop shop, which will be experienced in the first semester before being generalized, will gradually avoid the associations subsidized by several state administrations having to provide several successive files. In addition, this tool will facilitate the management of public aid to associations, an annual report on this subject to be submitted to the European Commission. It will be articulated with the National Register of Associations (RNA) and the Official Journal "Associations" to facilitate the seizure.
3. Simplification of the approaches of associations
in the licensing procedures
In order to simplify the procedures of associations seeking several approvals, I decided to establish a common accreditation trunk comprising three criteria, detailed in Appendix V to the present circular: object of general interest, mode of democratic operation and financial transparency.
Each department instructing a first application for approval will examine the elements that form this common trunk and will show their validation in the National Association Directory.
The validation by a ministry of these criteria will be required for all other state administrations. For example, an association that has satisfied this common base will no longer have to provide these information, except in the event of a change of the information, when requesting another approval.
The validation of this common trunk does not question the competence of the various ministerial departments concerned to issue specific approvals or authorizations. These specific parts – and they alone – will be the subject of a particular review by each department concerned, in view of its own issues.
This administrative simplification approach will allow for the establishment in the coming months of a dematerialized procedure for applications for approval.
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The implementation of the security measures and simplification of the conditions of intervention of the associations will be fully involved in the recognition of the action of the associations and the rise of the associative movement to which the Government reaffirmed its commitment at the conference of associative life.
I therefore ask you to ensure that these measures are implemented within the services under your authority or guardianship.
AN N E X E S
A N N E X E I
RAPPELS ON THE RULES OF THE FINANCIAL RELATIONS OF PUBLIC COLLECTIVITIES WITH THE ASSOCIATIONS
Non-profit associations regularly express their concern about the consequences of a legal framework, largely of community origin, including concepts and terminology, because they question or transcend definitions or distinctions traditionally established in the national public debate, are sometimes seen as an attack on the specificity of the associative commitment, or even its development.
In fact, an increasing number of activities carried out by associations are within the scope of community law, particularly because they are considered to be of an economic nature. This situation has raised a series of practical and interpretation issues, particularly with regard to the rules relating to State aids and public procurement.
This concern is crystallized with the use of tender procedures, especially in fields such as the social field, where the contribution of the associative world is old, strong and, in many cases, indispensable for social cohesion. These procedures can be felt negatively: they are accused of highlighting the principle of competition to the detriment of co-operation among associative actors and of promoting a logic of projects that meet the need of the community on associative development.
The preparatory work for the Conference on Associative Life (CVA) highlighted the need to clarify the legal framework for financial relations between Governments and associations. It is both a matter of getting better informed about the applicable legal framework, in order to avoid the temptation to ignore it or the risk of avoiding it by unknowingly, without making it an exaggeratedly binding interpretation, to better share the hypotheses where a market has to be passed and those where it can be resorted to subsidy, so as to avoid differences in treatment that are harmful and to secure the way of associations.
Associations called for a clear and shared doctrine between the State, territorial authorities and associations on the use of subsidies, on the respectful scope of market procedures, public service delegation or calls for projects. It was a work that had been undertaken in 2006 with the National Council of Associative Life. It is a permanent work on which the public authorities in the broad sense must mobilize, as the European Union leaves them precisely an essential role and a broad power of appreciation both for the definition of services of general economic interest and for their organizational mode.
This is the ambition of one of the CVA's working groups, which this document extends the conclusions to recall a few simple rules that are accessible to all, and to avoid some confusing sources of incomprehension in relations between public authorities and associations.
It does not intend to finalize all cases of figure or to exhaust the subject, but is a first step in the process of defining a comprehensive framework of references to clarify and secure financial relations between public authorities and associations. This approach will continue in the first quarter of 2010 and will be coordinated with the associations and representatives of the local authorities.
This document is intended for the use of associative leaders as administrations. It is complementary to the new multi-year convention on the occasion of the CVA.
1. The European regulation of State aids also applies to associations:
In order to guarantee free competition within the Union, European law prohibits public aids supporting services or production under conditions that may affect exchanges between States.
However, adjustments and exceptions are provided by the Treaty and have been progressively clarified by the European jurisprudence and then by the Commission to take into account and supervise the assistance provided by public, national or local authorities, in order to compensate for the burdens on organizations involved in the exercise of activities of general interest.
This so-called "state aid" regulation (1) applies to any "business" receiving public funding, as long as it carries out a "economic" activity of general interest, regardless of its legal status (sociative or otherwise) or how it is financed by the public community. Thus, a not-for-profit association carrying out a general economic activity and soliciting a public financial contest will be described as a community-based company and subject to the regulation of State aids for the part of its activity that is "economic". The aid supervision rules will not, however, apply to its share of activity that would be deemed non-economic.
This "economic activity" concept covers, regardless of the sector of activity, any supply of goods or services on a given market:
― the fact that the activity concerned can be of a "social" nature is not in itself sufficient to make exception to the qualification of economic activity within the meaning of the law of State aids;
― the fact that the entity likely to benefit from the public competition does not pursue a profit purpose does not mean that the activities it carries out are not of an economic nature;
― only escape this qualification activities related to the exercise of public power prerogatives or certain activities identified by community jurisprudence, such as public education benefits or the management of mandatory insurance plans.
In practice, the vast majority of activities carried out by associations can be considered "economic activities", so that the public aids provided therein must comply with the European regulations on State aids.
2. Securing the granting of public assistance to an association carrying out a general economic activity can be ensured by taking some simple precautions:
By exception, the financial competitions paid in the form of grants to an association carrying on an economic activity of general interest that remain less than 200,000 € (2) over a three-year period are not qualified as State aids and are not subject to any particular requirement in the regulation of State aids.
This threshold is appreciated by all public aids and by integrating the facilities granted free of charge by public authorities (available to premises, personnel or equipment...).
When the financial competition envisaged for an association carrying on a general economic activity exceeds 200,000 € over a three-year period, the granting of assistance by the public community is only acceptable if it can be viewed as compensation for public service obligations. The following conditions must be met:
― the association is explicitly charged, by a unilateral act (law, regulation or deliberation of a territorial community) or contract, with the performance of public service obligations (3), clearly defined in their consistency, duration and scope. This requirement is regularly referred to as a "general interest warrant" or "mandate";
― the parameters on which the financial compensation for the performance of public service obligations is calculated have been previously established, objectively and transparently;
– the financial compensation paid in respect of the obligations so charged to the association is at the same time strictly proportionate to the costs caused by the performance of the public service obligations insured and periodically controlled and evaluated by the community to avoid over-contribution.
When these conditions are met, the competition paid to the association is compatible with the requirements of competition law that base the regulation of State aids. However, compensation must be notified to the European Commission.
However, this notification itself is not necessary:
- if the amount of financial compensation paid to the association in return for public service obligations does not exceed 30 million euros per year and the annual non-tax revenue of the association did not exceed 100 million euros during the previous two years; the public community concerned is then exempt from prior notification of assistance to the European Commission. With regard to "businesses" of social housing, there is no limit on the amount of compensation that is exempted from notification;
– or if the association has been selected after a public procurement process or as part of a public service delegation to ensure that the service will be offered at the lowest cost; the financial compensation paid to the association then simply escapes the qualification of State aid.
3. Thus, the European regulation on State aids does not impose by itself the use of public procurement procedure:
The exercise of a mandate of general interest and the requirement of proportionate compensation do not limit the autonomy and freedom of initiative of the associations and remain compatible with grant funding.
The concept of terms of reference is indeed sufficiently flexible to incorporate the assumptions in which the public community approves and funds the proposals from the associative sector that it recognizes as meeting a general purpose. Thus, the rules adopted in 2005 (4) on the state aid system allow associations to manage a general economic service, without necessarily involving the transfer of a public market or a public service delegation.
The grant can therefore be a method of legal financing under a general economic service. The community must simply define, in its unilateral or contractual act of mandate, the general economic service mission as well as the parameters for the calculation of compensation and associated backups.
When within the scope of the grant and the amount of the grant exceeds 23,000 € (5), the grant shall be subject to an annual agreement (pluri-) of objectives between the public and the association.
The new model of convention (pluri-)year of objectives proposed under the CVA takes into account not only this national requirement but also the community requirements for the mandate and adjustment of compensation to the public service obligations provided by the association. This model secures the allocation of grants to associations.
There is therefore no obligation for the community to resort to the public market under the European rules on State aids.
4. ... However, the national law of the public order defines the use of subsidies: the association must be at the initiative of the project:
With respect to the national regulations on public order, the grant characterizes the situation in which the community provides financial support to an action initiated and carried out by a public or private person, pursuing specific objectives to which the administration, in its interest, provides support and assistance.
In order to be eligible for a grant, an association must be at the initiative of the project it carries, which covers two cases:
(a) The project originates from the association and does not give rise to direct counterpart for the public community:
This condition is fulfilled if the association carries a project it is on the initiative: this means that it does not meet a requirement previously defined by the public community, on whose behalf it would act as a paid provider, with a direct counterparty.
Public authorities are not required to make any public announcement to pay a grant to an association. It is therefore not necessary to use prior advertising. But the public community must then make public the subsidies it grants (Act of May 23, 2006).
For example, it is recognized that a public community can grant a grant to an association to organize a book festival, as long as this action is an initiative of the association and not a manifestation in reality designed for the community. Such a private initiative is in fact a response to community-based objectives of general interest that justify subsidy.
(b) The project developed by the association is part of a call for projects launched by a public community:
In such a case, the community calls for projects that allow it to highlight a number of objectives that seem to be of particular interest to it. It is about defining a general framework, a theme. Associations are invited to submit projects within this framework. But they are the ones who take the initiative of these projects and define their content.
As part of calls for projects, the public community identified a problem but did not define the solution expected. The call for projects does not prejudge the extent of proposals that will be formulated or their context. This differentiates it from a market that needs to be clearly identified (this is the case law that a specific study, carried out on behalf of a community and giving rise to specific remuneration, constitutes an expensive service provision).
If the community is at the initiative of the project, it is within the framework of the public order:
Two modes of action must be distinguished: the use of public procurement (call for tenders) and the public service delegation. In both cases, prior and subsequent advertising is required.
The public market aims to meet a need for the community and results in compensation for a benefit.
A public market is a costly contract between a procuring power (state, territorial authorities, public institutions) and an economic operator, whether public or private, to meet its work, supplies or services needs.
The distinctions to the grant field are as follows:
―the initiative does not belong to the association, but to the community, which seeks to meet one of its needs: the association is then a provider of the community;
―the market implies a direct link between the amounts paid and the benefits realized: a specific study, carried out on behalf of a community and giving rise to a specific remuneration, thus constitutes a cost-effective service delivery; on the other hand, an association may be subsidized to conduct studies in a given field and promotion activities (CoDIAC jurisprudence);
– the market involves a direct counterparty for the public person or the benefit of an immediate advantage.
The scope of the public service delegation differs from that of public procurement, both from the point of view of the subject-matter and from the method of remuneration. As part of a public service delegation, the public person entrusts the management of a public service to a delegate whose remuneration is substantially related to the results of the operation of the service.
While, for a public market, full and immediate payment is made by the public purchaser, on the other hand, for a public service delegation, remuneration is drawn mainly from the operation of the service.
The delegate therefore assumes a share of risk related to the operation of this public service.
Beyond these principles, the Government undertakes additional work to clarify the line of sharing between public order and grant, in the light of the decisions of administrative courts. Associations and representatives of local elected officials will be consulted on this work by the end of the first quarter of 2010.
5. The so-called "services" directive (6) is unrelated to the issue of subsidies to associations in relation to state aid legislation and public order:
The main obligation imposed on Member States by the "services" directive is to conduct a review of the specific licensing procedures and supervisory mechanisms to ensure that they do not affect unjustified or disproportionately the freedom of establishment and service delivery in the European domestic market.
The transposition of the directive is being completed in France through draft sectoral laws adopted or under consideration in Parliament. France transmitted to the European Commission in December 2009 the list of authorisation regimes included in the scope of the directive.
The social services referred to in section 2.2(j) of the directive that are mandated by the public authorities are not included in the scope of Directive (7) and are therefore not concerned. Certain authorisation schemes to which they are subject have nevertheless been declared by France because they apply indifferently to service activities that are subject to a mandate (e.g., collective reception of minors under six years of age). Their compatibility with the directive was justified by France to the European Commission.
The scope and terms and conditions of application of the services directive have no impact on the issues referred to in items 1 to 4 of this annex (competition law regulations including State aids, and rules relating to the law of public order).
Item 5 of this annex has been amended from the note distributed at the Conference on Associative Life of 17 December 2009 to reflect the transmission to the European Commission at the end of December of the report to declare the authorisation regimes included in the scope of the directive.
A N N E X E I
The model convention annexed to the Prime Minister's circular No. 5193/SG of 16 January 2007 on State subsidies to multi-year associations and conventions of objectives is replaced by the following model.
CONVENTION MODEL (PLURI-)ANNUAL
OBJECTIVES WITH ASSOCIATION
Come on.
YYYYY represented by , and designated
under the term "administration", on the one hand,
And
XXXXXX, an association governed by the law of 1 July 1901, whose head office is located, represented by its president,
and designated under the term "association", on the other hand,
SIRET:
It agreed that:
Preamble
Considering the project initiated and designed by the association [Precise for example to fight against illiteracy] in accordance with its statutory object.
Considering: [Precise references to the general objectives of public policies in which the convention is inscribed, for example, for the State, resumption of the annual project of performance of the imputation budget program defining public service missions carried out directly or indirectly by the administration, or for a local community the local public interest (8).
Considering that the action program or the action [to choose] below presented by the association participates in this policy.
Article 1
Purpose of the convention
By this Agreement, the Association undertakes, on its initiative and under its responsibility, to implement, in accordance with the public policy directions mentioned in the preamble, the following action or action [to the choice], which includes the obligations [option if an EIS: public service] referred to in Annex I, which is an integral part of the agreement:
―
―
―
In this context, the administration contributes financially to this service [option if an EIS is present: a general economic service in accordance with European Commission decision 2005/842/EC of 28 November 2005].
The administration does not expect any direct consideration of this contribution.
Article 2
Duration of the convention
The convention has a duration of X years (9).
Article 3
Conditions for determining the cost of action
3.1. The estimated total eligible cost of the share program or action [to choose] on the duration of the agreement is assessed at [...] €, in accordance with the forecasted budget(s) set out in Appendix II.
3.2. The estimated annual total annual eligible costs of the share program or action [to be chosen] are set out in Appendix II. The need for public funding must take into account all products affected by the action.
The forecasted budget(s) of the share program or action [to be chosen] indicates [option: in the context of a share program, different annual budgets per share] the details of the costs eligible for the financial contribution of the administration, established in accordance with the rules set out in section 3.3, and all the products affected.
3.3. The costs to be taken into consideration include all costs incurred by the implementation of the share program or action [to choose] in accordance with the grant application file [CERFA number of the new application file] submitted by the association. They include:
– all costs directly related to the implementation of the action, which:
― are linked to the purpose of the action program or the action [to choose] and are evaluated in the annex;
― are necessary for the realization of the program of actions or action [at choice];
- are reasonable in accordance with the principle of good management;
―are generated during the time of the realization of the program of actions or action [at the choice];
― are spent by "association";
- are identifiable and controllable;
- and, if applicable, the indirect costs eligible on the basis of a [...X%...] package of the total amount of eligible direct costs, including:
― variable costs, common to all the activities of the association;
– the costs associated with investments or infrastructure required for the operation of the service [option if an EIS is present: of general economic interest].
3.4. When implementing the share program or action [at choice], the recipient may make an adjustment to his/her forecasted budget(s) through transfers between eligible expenses such as purchases, rentals, publications expenses, personnel expenses, travel expenses, etc. This adjustment of the expenditures made in accordance with the total amount of eligible costs referred to in paragraph 3.1 shall not affect the delivery of the share program or action [to be chosen] and shall not be substantial [option: shall not exceed X% of the amount of each transferee account].
When implementing the share program or action [at choice], the recipient may make an adjustment to the increase or decrease in its forecasted budget(s) provided that this adaptation does not affect the achievement of the share program or action [at option] and that it is not substantial [option: does not exceed X % eligible cost] in respect of the intended share program.
The association shall notify the administration in writing as soon as it is able to assess and in any event before July 1 of the current year.
Payment of the annual balance in accordance with section 5.2 [option: in section 5 if advance provided for in section 5.1] may only be made upon express acceptance by the administration of these amendments.
Article 4
Conditions for determining the financial contribution
4.1. The administration contributes financially for a maximum forecast amount of [...] €, equivalent to [...] % of the estimated total amount of eligible costs on the entire execution of the agreement, established for signature of these, as referred to in Article 3.1.
4.2. For the year 200X, the administration contributes financially for an amount of [...] €, equivalent to [...] % of the estimated annual total amount of eligible costs.
4.3. For the second, (and) third [option: fourth year] year of implementation of this Agreement, the forecast amounts (10) of the financial contributions of the administration are:
- for the year 200X + 1 : € (€), or X % of the estimated total annual cost estimate;
- for the year 200X + 2 : € (€), or X % of the estimated annual total amount of eligible costs;
- for the year 200X + 3 : € (€), or X % of the estimated total annual cost estimate [option if fourth year].
4.4. The financial contributions of the administration referred to in paragraph 4.3 are applicable only subject to the following three conditions:
― [Registration of payment credits in financial law for the State or the vote of payment credits by the region or department (11) or the deliberation of the territorial community (12)];
- the association's compliance with the obligations referred to in Articles 1, 6, 7 and 8, without prejudice to the application of Article 12;
― the audit by the administration that the amount of the contribution does not exceed the cost of the action, in accordance with section 10.
Article 5
Method of payment of the financial contribution
5.1. The administration pays XX euros to the notification of the convention.
[option:
an advance to the notification of the convention within 50% of the annual forecast amount of the contribution referred to in section 4.3 for that same year;
- the balance after the audits conducted by the administration in accordance with section 6 and, where applicable, acceptance of the amendments provided for in section 3.4.
5.2. For the second, (and) third (and fourth) year(s) of implementation of this Agreement, the annual financial contribution, subject to [State option: the registration of payment credits in financial law], shall be paid in the following manner (13):
an advance before March 31 of each year, without prejudice to the control of the administration in accordance with section 10, within 50% of the annual forecast amount of the contribution referred to in section 4.3 for that year;
- the annual balance subject to compliance with the above-mentioned conditions in section 4.4 and, where applicable, acceptance of the notification under section 3.4.
The grant is charged to [program credits ,
Article 2, LOLF action of the mission for the State].
The financial contribution will be credited to the association's account according to the accounting procedures in force.
Payments will be made to:
Establishment code: Window code:
Account number: RIB Key:
The expense teller is the
The assignor is [the budgetary and departmental accountant to the Minister for the State].
Article 6
Rationale
The Association undertakes to provide within six months of the closing of each fiscal year the following documents established in accordance with the provisions of domestic law and community law:
― the financial record in accordance with the October 11, 2006 decision taken under theArticle 10 of Act No. 2000-321 of 12 April 2000 the rights of citizens in their relations with administrations;
This document reliably retraces the use of the funds allocated for the performance of the obligations [option if a public service SIEG is present] in this Agreement. It is accompanied by a quantitative and qualitative report of the share program or action [to choose] including the elements listed in Schedule III and defined by a common agreement between the administration and the association. These documents are signed by the President or any authorized person;
― the annual accounts and the report of the External AuditorArticle L. 612-4 of the Commercial Code or, where appropriate, the reference to their publication in the Official Journal;
- the activity report.
Article 7
Other commitments
The association shall forthwith transmit to the administration the copy of the declarations referred to in sections 3, 6 and 13-1 of the decree of 16 August 1901 concerning the regulation of public administration for the execution of the law of 1 July 1901 concerning the contract of association shall be informed of any new declaration registered in the RNA and shall provide the copy of any new bank domicile.
Option: The association undertakes to include in a legible manner (e.g.: State: Ministry of ........) in all documents produced under the convention.
In the event of failure or modification of the terms and conditions of execution and delay in the execution of this Agreement by the Association, for any reason, the Association shall notify the administration without delay by registered letter with acknowledgement of receipt.
Article 8
Sanctions
In the event of substantial non-performance or modification and in the event of [significant] delay of the terms and conditions of execution of the agreement by the association without the written agreement of the administration, the association may, respectively, require the payment of all or part of the amounts already paid under this agreement, decrease or suspend the amount of the subsidy, after consideration of the supporting documents submitted by the association and having previously heard its representatives. The administration informs the association by registered letter with acknowledgement of receipt.
Article 9
Evaluation
The association undertakes to provide, at least three months before the end of the agreement, an overview, qualitative and quantitative, of the implementation of the programme of actions or of the action [to be chosen] under the conditions specified in Annex III to this Agreement.
The administration, together with the association, undertakes to assess the conditions for the implementation of the action program or the action [to be chosen] to which (to which) it has assisted on a quantitative as qualitative plan.
The evaluation includes the conformity of the results to the object referred to in section 1, on the impact of the action program or action [to be chosen] with respect to the general interest [of the local interest to the territorial communities in accordance with articles L. 2121-29, L. 3211-1 and L. 4221-1 of the general code of territorial authorities].
Article 10
Administration control
The administration controls annually and at the end of the agreement that the financial contribution does not exceed the cost of implementing the service [option if an EIS is present: of general economic interest].
The administration may require reimbursement of the equivalent share of the financial contribution [option if an EIS is present: if the EIS exceeds the cost of implementing the EIS].
During and at the end of the agreement, on-site control may be carried out by the administration, as part of the assessment under section 9 or as part of the annual financial control. The association undertakes to facilitate access to all supporting documentation of expenditures and any other documents whose production would be deemed to be useful in this control.
Article 11
Renewal of the Convention
The possible conclusion of a new convention is subject to the completion of the assessment under Article 9 and to the control of Article 10.
Article 12
Aven
This Agreement may only be amended by assent signed by the administration and association. Subsequent amendments will be part of this Agreement and will be subject to all the provisions that govern it. The application to amend this Agreement shall be made in the form of a recommended letter with acknowledgement of receipt specifying the subject matter of the amendment, its cause and all the consequences it carries. Within two months of sending this request, the other party may apply by registered letter with acknowledgement of receipt.
Article 13
Termination of the Convention
In the event of non-compliance by one of the parties with any of its obligations arising from this Agreement, the latter may be terminated in full right by the other party, without prejudice to any other rights that it may assert, upon the expiration of a period of two months following the sending of a recommended letter with acknowledgement of receipt, which will remain in compliance with the contractual obligations and remain unsuccessful (14).
Article 14
Appeal
Any dispute arising from the execution of this Agreement shall be within the jurisdiction of the territorially competent administrative tribunal.
The
For the association:
The President
A N N E X E 1
(The PROGRAMME OF ACTIONS OR ACTION)
Obligation:
The association undertakes to implement the following action or action [to choose] with obligations [option if an EIS is present: public service] to enable the Service to be carried out: [option if an EIS is present] referred to in Article 1 of the Convention:
1. Action by....
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A N N E X E 2
BUDGET GLOBAL DU PROGRAMME D'ACTIONS
OR BUDGET ACTION 201 X
[option: as part of a share program, different annual budgets per share]
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
BUDGET 201 + 1
[option: as part of a share program, different annual budgets per share]
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
BUDGET 201 + 2
[option: as part of a share program, different annual budgets per share]
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
BUDGET 201 + 3 (FOURTH YEAR OPTION)
[option: as part of a share program, different annual budgets per share]
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
A N N E X E 3
(EVALUATION INDICATORS
AND ASSESSMENT CONDITIONS)
Quantitative indicators:
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A N N E X E I I
FORM "SUBVENTION REQUEST"
The following document is the one being registered.
The registered CERFA form will be available online in mid-January.
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
You can consult the table in the
JOn° 16 of 20/01/2010 text number 1
A N N E X E I V
USE OF THE CONVENTION (PLURI-)ANNUELLE OBJECTIVES AND TRAINING "SUBVENTION REQUEST"
This document is the manual for the use of the template (pluri-) year of objectives and the updated grant application file ("CERFA form"). These documents must be used by State departments and State public institutions.
Territorial authorities and their public institutions may also appropriate and use them when public funding meets an associative initiative and when it is not mandatory to use public order procedures.
This manual is intended primarily for public officials responsible for instructing grant applications. He commented on the documents concerned to clarify the use of the grant application file and, on the other hand, facilitate the drafting of the conventions.
I. ∙ Instruction of application and agreement
The rules governing financial relations between public authorities and associations have been recalled in the context of the conference of associative life, including the community regulation of State aids. This summary document is available on the website www.associations.gouv.fr.
In practice, the vast majority of activities carried out by associations can be considered as "economic activities" within the meaning of community law, so that the public aids provided therein must comply with the European regulation on State aids (all of the direct or indirect benefits that public authorities may allocate to a "business", this notion being understood extensively and applicable to any entity, including a non-profit association, a corporation exercising its legal status,
On the contrary, advocacy, network head, coordination or federation activity is not an economic priori or likely to affect trade, but an analysis on a case-by-case basis will, however, allow it to be established.
As soon as the public community chooses to support an association, the convention may, as the case may be, include two objects:
- a first relative to the financing of the association, under its associative project not within the economic field;
- a second on its actions within the economic sphere; It then confers on the convention the character of an official act by which the public community entrusts the association with the responsibility for the execution of a service mission of general economic interest, for which it grants, as compensation, a public subsidy.
This Convention allows these two dimensions to be taken into account, thus meeting the national rules on public financing of associations as well as the requirements of the Community law of State aids.
1. Registration of the associative project as part of a public policy.
General principle:
The project presented by the association (action program or action), for which financial support is sought, must be linked to a public policy of general interest. A project that would not correspond to any public policy cannot be subsidized.
The term "public policy" must be understood broadly, as opposed to the sole defence of particular interests.
Application:
The CERFA record 3.1 ensures that the recipient refers to a public policy within the legal competence of the requested authority. This indication provided by the applicant may be more or less accurate depending on the level of knowledge of public policies implemented by the public authorities. They are, for example, for the State budget, specified in the annual performance projects (PAP) available on the website www.performance-publique.gouv.fr.
Any applicant may also obtain the contact information for the public services at http://lannuaire.service-public.fr for this information.
Implementation:
The second consideration of the preamble of the convention must mention the references of public policy in which the action that is the subject of the grant is part of [example: the budget program of imputation 304 "Right against poverty: income of active solidarity and social experiments". Public policy will then be characterized by "fighting poverty and solidarity".]
2. Determination of the origin of the application and the corresponding need.
General principle:
The administration must verify that the association is actually at the initiative of the application and that its object does not meet a need expressed by the administration. If the benefit is sought by the administration and its content previously defined by it, it is a public order and the applicable rules are not those of the grant.
For further information, please refer to the above-mentioned note, presented at the conference on Associative Life of 17 December 2009 and available on the website www.associations.gouv.fr, recalling the rules governing financial relations between public authorities and associations.
Reminders:
In terms of grants, certain practices are prohibited except for exemption. Thus, section 15 of the Decree-Law of 2 May 1938 prohibits associations from disbursing a grant to a third party, except for the Minister's formal authorization, subject to the expenditure controller.
This obligation also applies to territorial authorities. However, theArticle 84 of Law No. 2009-526 of 12 May 2009 simplification and clarification of the law and ease of procedures (Article L. 1611-4 of the General Code of Territorial Communities) provides that an express exemption from this principle may be provided for in the agreement between the territorial community and the subsidized agency.
Application:
Sheet 3.1 of the CERFA file: the association answers the questions: "What does this need?" and "who identified this need? (this is most of the time of its deliberative body).
Possible background on the subject will be sought to the extent possible to determine whether it is a public order (e.g.: deliberation of the public authority decided to carry out this project and assign it to a particular structure).
Form 3.2 on the forecasting budget of the action is another element of appreciation of the source of the initiative, for example by measuring the public funding rate. A grant covering the full cost of an action would transform this action into service delivery and bring it into the public order field.
The budgetary valorization of "voluntary contributions" corresponding to volunteerism, the free provision of persons or movable property (materials, vehicles, etc.) or immovables is important to the extent that it constitutes a specific resource of the association, allowing de facto reduction of the public funding rate.
Accounting registration is only possible if the association has quantitative and valuable information on these voluntary contributions as well as reliable registration methods.
The accounting plan of the associations, derived from CRC Regulation No. 99-01, provides a minimum of information (quantitative or, failing that, qualitative) in the schedule and a possibility to register in accounting in "out-of-balance" and "at the foot" of the result account, in the special accounts of Class 8.
When available, this information must be taken into account (to denominator) for the calculation of the percentage of public funding of the action and/or association.
Implementation:
The first consideration of the preamble recalls the associative origin of the initiative of the action program.
3. A convention is mandatory for any annual public funding exceeding €23,000.
General principles:
In application of theArticle 10 of Act No. 2000-321 of 12 April 2000 concerning the rights of citizens in their relations with the administrations and Article 1 of the Decree of Application No. 2001-495 of 6 June 2001, a convention is required for any public funding to associations greater than 23,000 €.
Any subsidy less than or equal to 23,000 € may be subject to a simple grant attribute order.
In the context of community law, where the proposed financial contest for an association carrying on an economic activity of general interest exceeds 200,000 € over a three-year period (the "minimum" threshold), the granting of assistance by the public community must meet several requirements – as specified in paragraph 4 below – that are taken into account by the proposed model convention.
This threshold is appreciated by all public aids and by integrating the facilities granted free of charge by public authorities (available to premises, personnel or equipment...).
When the financial competitions paid in the form of grants to an association carrying on a general economic activity remain below this threshold of €200,000 over a three-year period, they are not qualified as State aids. The use of the proposed model of convention, which meets the requirement of agreement laid down in section 10 of the Act of April 12, 2000, meets the requirements of community law by permitting the monitoring, monitoring and evaluation of the use of this funding.
Application:
Sheet 2 of the CERFA document (forecasting budget of the association) provides the indication of the amount of public aids sought. The "74" product line must include all known and/or requested public aids for the current fiscal year.
The financial record (Figure 6), when it is documented, allows to assess the amount of public aid previously received under the subsidized action. It must be based on annual accounts that include, among other things, the result account. The latter is mandatory for grants exceeding €23,000 and is an indispensable element for this audit.
Data sheet 4.2 of the CERFA document is an attestation that the association meets if it considers that the amount of public aid it receives is less than the threshold of 200,000 € over three accounting years. The Association's statement is considered valid, unless there is a clear appreciation error, in view of the forecasted budget presented.
4. Funding compatible with community law.
The agreement is the official act ("mandate") within the meaning of Monti Decision No. 2005/842/EC of 28 November 2005) by which the public community entrusts to an association a mission relating to a general economic service and assigns it, as compensation, a subsidy.
This term must meet three cumulative criteria (as defined in the Monti decision):
1. The recipient entity must, by an official act, be responsible for the execution of clearly defined "public service" obligations.
2. The parameters according to which compensation is calculated must be pre-, objective and transparent.
3. Compensation shall not exceed what is necessary to cover all or part of the costs caused by the performance of public service obligations, deducting any revenue and a "reasonable" benefit.
In the absence of an official act entrusting the execution of a mission and providing for the fulfilment of these criteria, a grant relating to the exercise of a general economic interest activity would not (subject to the minimum exception referred to in point 3) regular under community law.
4.1. An official act entrusting the realization of a general economic service.
Principle:
The official act entrusts the applicant with the completion of a general economic service, determines the general interest mission entrusted to the applicant and the extent and general operating conditions of the service, including the public service obligations it entails.
This act may take the form of a convention (pluri-)annual. Can also constitute "mandates", as long as they meet the three cumulative criteria mentioned in the Monti decision:
– departmental programming contracts;
– Ministerial instructions;
- laws and regulatory acts;
the decisions of the legislative bodies of the territorial authorities;
– annual or multi-year performance contracts.
On the other hand, the approval granted by a public authority does not constitute a mandate when it represents a simple "authorisation to do".
Application:
The qualification of a general economic interest service assigned to the actions proposed by the applicant shall normally be drawn out of sheets 1.1 (activity representation), 3.1 (action description) and 3.2 (action forecast) of the CERFA file. They are used to determine precisely the public service obligations (PSOs) that would be borne by the applicant and the cost calculation parameters.
Implementation:
In order for the convention to be an official act of attribution, its article 1 must:
― expresses, on the one hand, the desire of the requested State or public authority to qualify as a service of general economic interest the activity that the applicant proposes to carry out and, on the other hand, the decision to contribute to the financing of this service of general economic interest;
― accurately describe the action or program of shares and, in particular, the public service obligations that arise from it, the territorial right of action or program of shares and the recipient public.
4.2. Just compensation.
Principle:
The grant is a compensation for the public service obligations that are paid to the beneficiary association. This subsidy shall not exceed the amount of costs incurred by the fulfilment of these obligations. The a priori verification of this correspondence entails a forecasting estimate of all costs and taking into account possible revenues of any kind. This means that the forecast budget can be slightly surplus.
The amount of compensation includes all "benefits" provided by public funding in any form (financial contribution, availability of personnel, equipment premises, etc.).
The costs to be considered include all costs associated with the management of the general economic service.
The calculation method must be accurate:
where the general economic service covers all the activities of the association in question, all costs may be considered;
― where the association also performs other activities outside the general economic interest service (e.g. benefits sold at the market rate), only the costs associated with the general economic interest service are considered;
– the costs allocated to the general economic service may cover all the variable costs caused by the provision of that service and a contribution proportionate to the fixed costs common to the service in question and other activities;
– the costs associated with investments, including infrastructure, may be partially taken into account when necessary for the operation of the general economic service.
It is therefore necessary to be able to put in place a traceability of funding on each action or action program. This will be facilitated by an analytical accounting, being specified that the accounting requirements should be proportionate to the financial and technical capacity of the association.
A sectoral accounting by activity must be implemented in the case of a joint business and non-commercial activity (lucrative and non-profit).
The cost calculation parameters of the subsidized action must be defined in the terms of reference, i.e. in the agreement.
If it is impossible to provide detailed costs in advance, the mandate must at least indicate the basis for the future calculation of compensation. For example, compensation will be based on a price per day, per meal, care, etc., based on an estimate of the number of potential users.
Application:
Data sheet 3.2 of the CERFA file must be used to assess whether the grant sought constitutes a fair compensation, including by means of the elements provided in the answers to questions:
― method used to develop the forecast budget of the action;
― the amount of participation of beneficiaries in action;
cost associated with the characteristics of the recipient public;
– distribution key for indirect costs – wages, fixed expenses (EDF...);
- the nature and purpose of the most significant spending positions (service fees, travel, wages, etc.);
voluntary contributions in kind for the implementation of the subsidized project or action;
– financial participation of recipients (or target audience) of the action.
Implementation:
Section 3 of the agreement, Schedule 1 to the budgetary allocation of the grant and Schedule 2 to the entire budget of the action describe precisely the criteria used to calculate the financial participation, activity by activity.
The basis and method of calculating participation shall be specified by an explicit reference to the conditions for determining the amount of the grant.
Article 4 of the agreement defines the amount of compensation and the conditions of its determination.
II. ― Control
Principle:
The grant of a grant requires two types of control:
― the execution of the grant must be consistent with the commitments made in the agreement. Pursuant to section 10 of the Act of 12 April 2000 referred to above, where the subsidy is allocated to a specified expenditure, the use of the subsidy must be the object for which it was granted. Thus, if it appears, in particular as a result of an inspection check, that a financial contest has not received the job to which it was intended, a refund may be required to a maximum of the amounts that have been used to a different object than the one that had been anticipated (Act No. 96-314 of 12 April 1996 bringing various economic and financial provisions, art. 43-IV);
― the subsidy paid to an association for the fiscal year of a general economic interest activity shall not exceed the costs incurred by public service obligations, taking into account other recognized products. In such a case, the Community Regulation provides, if the accumulated public funding is greater than the threshold of €200,000 over a three-year period, the reimbursement of any possible over-costing and requires the updating of the compensation calculation parameters.
Implementation:
The phased payment of the subsidy, referred to in Article 5 of the Convention, as well as the supporting documents required by Article 6 (financial account) and the penalties provided for in Article 8 allow the proper execution of the subsidy to be monitored.
Article 10 of the Convention, which states that an annual check will be carried out on the basis of the supporting documents required in Article 6 and details the terms and conditions of this control, further emphasizes the need not to overcompensate the costs incurred by public service obligations.
The elements to ensure a posteriori that no over-compensation must be in possession of the administration. The analysis of the financial record of the application file (Figure 6) and of the documents referred to in Article 6 "justificatives" of the agreement allows for a possible surplus (benefit) that constitutes an excessive over-contribution.
However, this notion of "excessive over-compensation" must be appreciated with measure. Where the accrued expenses of the share or share program are less than the financial and in-kind public contributions, the annual aggregate compensation for these public contributions is reduced to the total amount of the share or share program expenses.
The difference between the total amount allocated to public contributions and this compensation is the over-expenditure. If the compensation is less than 10% of the amount of the compensation, it may be deferred to the following period (n + 1) and deducted from the amount of the compensation due for that new period (n + 1).
Example: An association has a public contribution of 100 to carry out an action. At the end of the action, the accounts and the financial record show that the association spent 80. The difference of 20 is overcompensation. 10% of 80, or 8, can be deferred the following year. The remaining 12 must be set aside.
III. ― Evaluation
Principles:
The evaluation of the actions financed by the State is mandatory, especially when the latter are part of multi-year objectives conventions (circular of 1 December 2000 [Official Gazette of 2 December 2000], circulars of 24 December 2002 on State subsidies to associations [Official Gazette of 27 December 2002] and No. 5193/SG of 16 January 2007 relating to State subsidies to multi-year associations and conventions).
The evaluation focuses on the conformity of the results to the object and objectives referred to in Article 1 of the Convention, on the impact of actions in the general interest and on the potential extensions to the convention, including the conclusion, if any, of a new convention.
Application:
Article 9 of the Convention must describe precisely the conditions for joint implementation of the evaluation.
The modalities for carrying out this assessment shall be proportionate to projects or actions benefiting from the financial assistance. In order to facilitate the evaluation, the indicators must set targets to be achieved, without being disproportionate to the EIS.
In addition, the evaluation of the results achieved implies that they are measurable by the indicators listed in Appendix III, agreed upon. It is therefore necessary to set "just" targets to be achieved.
An evaluation guide published following the circular dated 24 December 2002, available at www.associations.gouv.fr, outlines the principles of the evaluation process and proposes a practical and illustrated method of application.
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A N N E X E V
CRITÈS FORMANT LE TRONC COMMUN D'AGRÉMENT
The criteria forming the common trunk of accreditation are:
1. The association responds to a general interest object:
– the association does not defend particular interests and is not limited to defending the interests of its members;
– the association must be open to all without discrimination and be sufficiently guaranteed in respect of individual freedoms;
― the association must continue a non-profit activity, have uninterested management (42) (to be managed and directed on a voluntary basis), provide no exorbitant benefit to its members and not act for a restricted circle;
― the association must demonstrate its ability to work in network with other partners, including associations.
2. The association has a mode of democratic functioning:
- regular meeting of the bodies;
- regular renewal of the governing bodies;
General assembly accessible to all members as defined in the statutes, or to their representatives of local structures;
the general assembly elects the members of the governing body;
- for the documents on which they will be required to decide, the members will have to have enough of them in advance by any means (travel, internet, on-site consultation...) specified in the rules of procedure or the statutes;
― the modalities of the various votes shall be specified in the statutes or rules of procedure.
3. The association respects financial transparency:
– accounts must be accessible to all members;
―the accounts are published in the Official Journal or sent annually to all the administrations with which the association has financial, administrative relations (cf. approval...); in the case of a publication in the Official Journal, the association will only give the date of this publication;
― the sustainability of the association must not depend exclusively on the same financialer. The proportion of public funds should not be such as to qualify the association as a para-administrative association.
Obligations:
― account advertising (43), for associations with more than 153,000 € of donations or public subsidies, on the principle of Decree No. 2009-540 of 14 May 2009 ;
- annual reporting of activities to the prefect of the head office or to the central administration of the department that issued the approval;
∙ compliance with declarative obligations (cf. art. 5 of the Act of July 1, 1901 and art. 3 of the decree of 16 August 1901) (transmission to the prefecture of the update of the data concerning the composition of the governing bodies and changes of statutes if necessary) and the 1991 law for associations appealing to national public generosity (transmission to the prefecture of the resource employment account).
François Fillon
