TITLE II PERMANENT PROVISIONS Article 12 The adaptations to the acts listed in Annex III to the Act of Accession of 16 April 2003 made necessary by accession shall be drawn up in conformity with the guidelines set out in that Annex and in accordance with the procedure and under the conditions laid down in Article 36. Article 13 The measures listed in Annex IV to the Act of Accession of 16 April 2003 shall be applied under the conditions laid down in that Annex. Article 14 A European law of the Council may make the adaptations to the provisions of this Protocol relating to the common agricultural policy which may prove necessary as a result of a modification of Union law. The Council shall act unanimously after consulting the European Parliament.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 310 310 Part IV TITLE III TEMPORARY PROVISIONS Article 15 The measures listed in Annexes V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV to the Act of Accession of 16 April 2003 shall apply in respect of the new Member States under the conditions laid down in those Annexes. Article 16

1. The revenue designated as ‘Common Customs Tariff duties and other duties’ referred to in Article 2(1)(b) of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources ( 1 ), or the corresponding provision in any Decision replacing it, shall include the customs duties calculated on the basis of the rates resulting from the Common Customs Tariff and any tariff concession relating thereto applied by the Union in the new Member States’ trade with third countries.
2. For the year 2004, the harmonised VAT assessment base and the GNI (gross national income) base of each new Member State, referred to in Article 2(1)(c) and (d) of Council Decision 2000/597/EC, Euratom shall be equal to two thirds of the annual base. The GNI base of each new Member State to be taken into account for the calculation of the financing of the correction in respect of budgetary imbalances granted to the United Kingdom, referred to in Article 5(1) of Council Decision 2000/597/EC, Euratom shall likewise be equal to two thirds of the annual base.
3. For the purposes of determining the frozen rate for 2004 according to Article 2(4)(b) of Council Decision 2000/597/EC, Euratom the capped VAT bases of the new Member States shall be calculated on the basis of two thirds of their uncapped VAT base and two thirds of their GNI. Article 17
4. The budget of the Union for the financial year 2004 shall be adapted to take into account the accession of the new Member States through an amending budget taking effect on 1 May 2004.
5. The twelve monthly twelfths of VAT and GNI‑based resources to be paid by the new Member States under the amending budget referred to in paragraph 1, as well as the retroactive adjustment of the monthly twelfths for the period January—April 2004 that only apply to the present Member States, shall be converted into eighths to be called during the period May—December 2004. The retroactive adjustments that result from any subsequent amending budget adopted in 2004 shall likewise be converted into equal parts to be called during the remainder of the year. ( 1 ) OJ L 253, 7.10.2000, p. 42.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 311 Treaty establishing a Constitution for Europe 311 Article 18 On the first working day of each month the Union shall pay the Czech Republic, Cyprus, Malta and Slovenia, as an item of expenditure under the Union budget, one eighth in 2004, as of 1 May 2004, and one twelfth in 2005 and 2006 of the following amounts of temporary budgetary compensation: (EUR million, 1999 prices) Czech Republic 2004 2005 2006 125,4 178,0 85,1 Cyprus 68,9 119,2 112,3 Malta 37,8 65,6 62,9 Slovenia 29,5 66,4 35,5 Article 19 On the first working day of each month the Union shall pay the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as an item of expenditure under the Union budget, one eighth in 2004, as of 1 May 2004, and one twelfth in 2005 and 2006 of the following amounts of a special lump‑sum cash‑flow facility: (EUR million, 1999 prices) 2004 2005 2006 174,70 91,55 91,55 Estonia 15,80 2,90 2,90 Cyprus 27,70 5,05 5,05 Latvia 19,50 3,40 3,40 Lithuania 34,80 6,30 6,30 Hungary 155,30 27,95 27,95 Malta 12,20 27,15 27,15 Poland 442,80 550,00 450,00 Slovenia 65,40 17,85 17,85 Slovakia 63,20 11,35 11,35 Czech Republic954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 312 312 Part IV One thousand million euro for Poland and 100 million euro for the Czech Republic included in the special lump‑sum cash‑flow facility shall be taken into account for any calculations on the distribution of Structural Funds for the years 2004, 2005 and 2006. Article 20
6. The new Member States listed below shall pay the following amounts to the Research Fund for Coal and Steel referred to in Decision 2002/234/ECSC of the Representatives of the Governments of the Member States, meeting within the Council, of 27 February 2002 on the financial consequences of the expiry of the ECSC Treaty and on the Research Fund for Coal and Steel ( 1 ): (EUR million, current prices) Czech Republic 39,88 Estonia 2,50 Latvia 2,69 Hungary 9,93 Poland 92,46 Slovenia 2,36 Slovakia 20,11
7. The contributions to the Research Fund for Coal and Steel shall be made in four instalments starting in 2006 and paid as follows, in each case on the first working day of the first month of each year: 2006: 15 % 2007: 20 % 2008: 30 % 2009: 35 % Article 21
8. Save as otherwise provided for in this Protocol, no financial commitments shall be made under the Phare programme ( 2 ), the Phare cross‑border cooperation programme ( 3 ), pre‑accession funds for Cyprus and Malta ( 4 ), the ISPA programme ( 5 ) and the Sapard programme ( 6 ) in favour of the ( 1 ) 2 OJ L 79, 22.3.2002, p. 42. ( ) Regulation (EEC) No 3906/89 (OJ L 375, 23.12.1989, p. 11). ( 3 ) Regulation (EC) No 2760/98 (OJ L 345, 19.12.1998, p. 49). ( 4 ) Regulation (EC) No 555/2000 (OJ L 68, 16.3.2000, p. 3). ( 5 ) Regulation (EC) No 1267/1999 (OJ L 161, 26.6.1999, p. 73). ( 6 ) Regulation (EC) No 1268/1999 (OJ L 161, 26.6.1999, p. 87).954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 313 Treaty establishing a Constitution for Europe 313 new Member States after 31 December 2003. The new Member States shall receive the same treatment as the present Member States as regards expenditure under the first three Headings of the Financial Perspective, as defined in the Interinstitutional Agreement of 6 May 1999 ( 1 ), as from 1 January 2004, subject to the individual specifications and exceptions below or as otherwise provided for in this Protocol. The maximum additional appropriations for headings 1, 2, 3 and 5 of the Financial Perspective related to enlargement are set out in Annex XV to the Act of Accession of 16 April 2003. However, no financial commitment under the 2004 budget for any programme or agency concerned may be made before the accession of the relevant new Member State has taken place.
9. Paragraph 1 shall not apply to expenditure under the European Agricultural Guidance and Guarantee Fund, Guarantee Section, according to Articles 2(1), 2(2), and 3(3) of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy ( 2 ), which will become eligible for Community funding only from 1 May 2004, in accordance with Article 2 of this Protocol. However, paragraph 1 of this Article shall apply to expenditure for rural development under the European Agricultural Guidance and Guarantee Fund, Guarantee Section, according to Article 47a of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain regulations ( 3 ), subject to the conditions set out in the amendment of that Regulation in Annex II to the Act of Accession of 16 April 2003.
10. Subject to the last sentence of paragraph 1, as of 1 January 2004, the new Member States shall participate in Union programmes and agencies according to the same terms and conditions as the present Member States with funding from the general budget of the Union.
11. If any measures are necessary to facilitate the transition from the pre‑accession regime to that resulting from the application of this Article, the Commission shall adopt the required measures. Article 22
12. Tendering, contracting, implementation and payments for pre‑accession assistance under the Phare programme, the Phare cross-border cooperation programme and pre‑accession funds for Cyprus and Malta shall be managed by implementing agencies in the new Member States as from 1 May 2004. The Commission shall adopt European decisions to waive the ex ante control by the Commission over tendering and contracting following a positively assessed Extended Decentralised Implementation ( 1 ) Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure (OJ C 172, 18.6.1999, p. 1). ( 2 ) OJ L 160, 26.6.1999, p. 103. ( 3 ) OJ L 160, 26.6.1999, p. 80.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 314 314 Part IV System (EDIS) in accordance with the criteria and conditions laid down in the Annex to Council Regulation (EC) No 1266/1999 of 21 June 1999 on coordinating aid to the applicant countries in the framework of the pre‑accession strategy and amending Regulation (EEC) No 3906/89 ( 1 ). If these decisions to waive ex ante control have not been adopted before 1 May 2004, any contracts signed between 1 May 2004 and the date on which the Commission decisions are taken shall not be eligible for pre‑accession assistance. However, exceptionally, if the Commission decisions to waive ex‑ante control are delayed beyond 1 May 2004 for reasons not attributable to the authorities of a new Member State, the Commission may accept, in duly justified cases, eligibility for pre‑accession assistance of contracts signed between 1 May 2004 and the date of these decisions, and the continued implementation of pre‑accession assistance for a limited period, subject to ex ante control by the Commission over tendering and contracting.
13. Global budget commitments made before 1 May 2004 under the pre‑accession financial instruments referred to in paragraph 1, including the conclusion and registration of subsequent individual legal commitments and payments made after 1 May 2004, shall continue to be governed by the rules and regulations of the pre‑accession financing instruments and be charged to the corresponding budget chapters until closure of the programmes and projects concerned. Notwithstanding this, public procurement procedures initiated after 1 May 2004 shall be carried out in accordance with the relevant Union acts.
14. The last programming exercise for the pre‑accession assistance referred to in paragraph 1 shall take place in the last full calendar year preceding 1 May 2004. Actions under these programmes will have to be contracted within the following two years and disbursements made as provided for in the Financing Memorandum ( 2 ), usually by the end of the third year after the commitment. No extensions shall be granted for the contracting period. Exceptionally and in duly justified cases, limited extensions in terms of duration may be granted for disbursement.
15. In order to ensure the necessary phasing out of the pre‑accession financial instruments referred to in paragraph 1 as well as the ISPA programme, and a smooth transition from the rules applicable before and after 1 May 2004, the Commission may take all appropriate measures to ensure that the necessary statutory staff is maintained in the new Member States for a maximum of fifteen months following that date. During this period, officials assigned to posts in the new Member States before accession and who are required to remain in service in those States after 1 May 2004 shall benefit, as an exception, from the same financial and material conditions as were applied by the Commission before 1 May 2004 in accordance with Annex X to the Staff Regulations of officials and the conditions of employment of other servants of the European Communities laid down in Regulation (EEC, Euratom, ECSC) ( 1 ) OJ L 232, 2.9.1999, p. 34. ( 2 ) As set out in the Phare Guidelines (SEC (1999) 1596, updated on 6.9.2002 by C 3303/2).954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 315 Treaty establishing a Constitution for Europe 315 No 259/68 ( 1 ). The administrative expenditure, including salaries for other staff, necessary for the management of the pre‑accession assistance shall be covered, for all of 2004 and until the end of July 2005, under the heading ‘support expenditure for operations’ (former part B of the budget) or equivalent headings for the financial instruments referred to in paragraph 1 as well as the ISPA programme, of the relevant pre‑accession budgets.
16. Where projects approved under Regulation (EC) No 1258/1999 can no longer be funded under that instrument, they may be integrated into rural development programming and financed under the European Agricultural Guidance and Guarantee Fund. Should specific transitional measures be necessary in this regard, these shall be adopted by the Commission in accordance with the procedures laid down in Article 50(2) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds ( 2 ). Article 23
17. Between 1 May 2004 and the end of 2006, the Union shall provide temporary financial assistance, hereinafter referred to as the ‘Transition Facility’, to the new Member States to develop and strengthen their administrative capacity to implement and enforce Union and European Atomic Energy Community law and to foster exchange of best practice among peers.
18. Assistance shall address the continued need for strengthening institutional capacity in certain areas through action which cannot be financed by the Structural Funds, in particular in the following areas: (a) justice and home affairs (strengthening of the judicial system, external border controls, anti‑corruption strategy, strengthening of law enforcement capacities); (b) financial control; (c) protection of the financial interests of the Union and of the European Atomic Energy Community and the fight against fraud; (d) internal market, including customs union; (e) environment; (f) veterinary services and administrative capacity‑building relating to food safety; (g) administrative and control structures for agriculture and rural development, including the Integrated Administration and Control System (IACS); ( 1 ) OJ L 56, 4.3.1968, p. 1. ( 2 ) OJ L 161, 26.6.1999, p. 1.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 316 316 Part IV (h) nuclear safety (strengthening the effectiveness and competence of nuclear safety authorities and their technical support organisations as well as public radioactive waste management agencies); (i) statistics; (j) strengthening public administration according to needs identified in the Commission’s comprehensive monitoring report which are not covered by the Structural Funds.
19. Assistance under the Transition Facility shall be decided in accordance with the procedure laid down in Article 8 of Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to certain countries of Central and Eastern Europe ( 1 ).
20. The programme shall be implemented in accordance with Article 53(1)(a) and (b) of the Financial Regulation applicable to the general budget of the European Communities ( 2 ) or the European law replacing it. For twinning projects between public administrations for the purpose of institution‑building, the procedure for call for proposals through the network of contact points in the Member States shall continue to apply, as established in the Framework Agreements with the present Member States for the purpose of pre‑accession assistance. The commitment appropriations for the Transition Facility, at 1999 prices, shall be 200 million euro in 2004, 120 million euro in 2005 and 60 million euro in 2006. The annual appropriations shall be authorised by the budgetary authority within the limits of the Financial Perspective as defined by the Interinstitutional Agreement of 6 May 1999. Article 24
21. A Schengen Facility is hereby created as a temporary instrument to help beneficiary Member States between 1 May 2004 and the end of 2006 to finance actions at the new external borders of the Union for the implementation of the Schengen acquis and external border control. In order to address the shortcomings identified in the preparation for participation in Schengen, the following types of action shall be eligible for financing under the Schengen Facility: (a) investment in construction, renovation or upgrading of border‑crossing infrastructure and related buildings; (b) investments in any kind of operating equipment (e.g. laboratory equipment, detection tools, Schengen Information System — SIS II hardware and software, means of transport); (c) training of border guards; ( 1 ) OJ L 375, 23.12.1989, p. 11. ( 2 ) Regulation (EC, Euratom) No 1605/2002 (OJ L 248, 16.9.2002, p. 1).954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 317 Treaty establishing a Constitution for Europe 317 (d) support to costs for logistics and operations.
22. The following amounts shall be made available under the Schengen Facility in the form of lump‑sum grant payments as of 1 May 2004 to the beneficiary Member States listed below: (million euro, 1999 prices) 2004 2005 2006 Estonia 22,90 22,90 22,90 Latvia 23,70 23,70 23,70 Lithuania 44,78 61,07 29,85 Hungary 49,30 49,30 49,30 Poland 93,34 93,33 93,33 Slovenia 35,64 35,63 35,63 Slovakia 15,94 15,93 15,93
23. The beneficiary Member States shall be responsible for selecting and implementing individual operations in compliance with this Article. They shall also be responsible for coordinating use of the Schengen Facility with assistance from other Union instruments, ensuring compatibility with Union policies and measures and compliance with the Financial Regulation applicable to the general budget of the European Communities or with the European law replacing it. The lump‑sum grant payments shall be used within three years from the first payment and any unused or unjustifiably spent funds shall be recovered by the Commission. The beneficiary Member States shall submit, no later than six months after expiry of the three‑year deadline, a comprehensive report on the financial execution of the lump‑sum grant payments with a statement justifying the expenditure. The beneficiary State shall exercise this responsibility without prejudice to the Commission’s responsibility for the implementation of the Union’s budget and in accordance with the provisions applicable to decentralised management in the said Financial Regulation or in the European law replacing it.
24. The Commission retains the right of verification, through the Anti‑Fraud Office (OLAF). The Commission and the Court of Auditors may also carry out on‑the‑spot checks in accordance with the appropriate procedures.
25. The Commission may adopt any technical provisions necessary for the operation of the Schengen Facility. Article 25 The amounts referred to in Articles 18, 19, 23 and 24 shall be adjusted each year, as part of the technical adjustment provided for in paragraph 15 of the Interinstitutional Agreement of 6 May 1999.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 318 318 Part IV Article 26
26. If, until the end of a period of up to three years after 1 May 2004, difficulties arise which are serious and liable to persist in any sector of the economy or which could bring about serious deterioration in the economic situation of a given area, a new Member State may apply for authorisation to take protective measures in order to rectify the situation and adjust the sector concerned to the economy of the internal market. In the same circumstances, any present Member State may apply for authorisation to take protective measures with regard to one or more of the new Member States.
27. Upon request by the State concerned, the Commission shall, by emergency procedure, adopt the European regulations or decisions establishing the protective measures which it considers necessary, specifying the conditions and modalities under which they are to be put into effect. In the event of serious economic difficulties and at the express request of the Member State concerned, the Commission shall act within five working days of the receipt of the request accompanied by the relevant background information. The measures thus decided on shall be applicable forthwith, shall take account of the interests of all parties concerned and shall not entail frontier controls.
28. The measures authorised under paragraph 2 may involve derogations from the rules of the Constitution, and in particular from this Protocol, to such an extent and for such periods as are strictly necessary in order to attain the objectives referred to in paragraph 1. Priority shall be given to such measures as will least disturb the functioning of the internal market. Article 27 If a new Member State has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market, including any commitments in all sectoral policies which concern economic activities with cross‑border effect, or an imminent risk of such breach, the Commission may, until the end of a period of up to three years after 1 May 2004, upon the motivated request of a Member State or on its own initiative, adopt European regulations or decisions establishing appropriate measures. Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The measures shall be maintained no longer than strictly necessary, and, in any case, will be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the European regulations or decisions establishing the safeguard measures, and it shall take duly into account any observations of the Council in this respect.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 319 Treaty establishing a Constitution for Europe 319 Article 28 If there are serious shortcomings or any imminent risks of such shortcomings in a new Member State in the transposition, state of implementation or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty, Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, and European laws and framework laws adopted on the basis of Sections 3 and 4 of Chapter IV of Title III of Part III of the Constitution, the Commission may, until the end of a period of up to three years after 1 May 2004, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, adopt European regulations or decisions establishing appropriate measures and specify the conditions and modalities under which these measures are put into effect. These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between a new Member State and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The measures shall be maintained no longer than strictly necessary, and, in any case, will be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the adopted measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking safeguard measures, and it shall take duly into account any observations of the Council in this respect. Article 29 In order not to hamper the proper functioning of the internal market, the enforcement of the new Member States’ national rules during the transitional periods referred to in Annexes V to XIV to the Act of Accession of 16 April 2003 shall not lead to border controls between Member States. Article 30 If transitional measures are necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy under the conditions set out in this Protocol, such measures shall be adopted by the Commission in accordance with the procedure referred to in Article 42(2) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector ( 1 ), or as appropriate, in the corresponding Articles of the other Regulations on the common organisation of agricultural markets or of the European laws replacing them or the relevant procedure as determined in the applicable legislation. The transitional measures referred to in this Article may be adopted during a period of three years after 1 May 2004 and their application shall be limited to that period. A European law of the Council may extend this period. The Council shall act unanimously after consulting the European Parliament. ( 1 ) OJ L 178, 30.6.2001, p. 1.954393_TRAITE_EN_301_350 12-01-2005 15:56 Pagina 320 320 Part IV Article 31 If transitional measures are necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the Union veterinary and phytosanitary rules, such measures shall be adopted by the Commission in accordance with the relevant procedure as determined in the applicable legislation. These measures shall be taken during a period of three years after 1 May 2004 and their application shall be limited to that period. Article 32
29. The terms of office of the new members of the Committees, groups and other bodies listed in Annex XVI to the Act of Accession of 16 April 2003 shall expire at the same time as those of the members in office on 1 May 2004.
30. The terms of office of the new members of the Committees and groups set up by the Commission which are listed in Annex XVII to the Act of Accession of 16 April 2003 shall expire at the same time as those of the members in office on 1 May 2004.