Title, commencement and application

1. —(1) These Regulations may be cited as the Fisheries and Aquaculture Structures (Grants) (England) Regulations 2001 and shall come into force on 25th April 2001.

(2) These Regulations shall apply in relation to England only.

Interpretation

2. —(1) In these Regulations, unless the context otherwise requires—

• “amend” includes revoke;

• “application” means an application as described in regulation 3(1) and “applicant” shall be construed accordingly;

• “approval” means an approval granted under regulation 5 and includes the terms and conditions to which it is subject (including any such conditions which have been amended or added) and “approve” and “approved” shall be construed accordingly;

• “approved operation” means an operation which the Minister has approved under regulation 5;

• “authorised officer” means a person authorised in writing to be an officer—

  (a)

  for the purposes of these Regulations, by the Minister, or

  (b)

  for the purposes of exercising any functions required by the Minister under regulation 11 to be exercised by it, by the Authority

  and includes any duly appointed official of the Commission who accompanies such an authorised officer;

• “the Authority” means the Sea Fish Industry Authority;

• “beneficiaries” means applicants whose applications have been approved and a “beneficiary” shall be construed accordingly;

• “the Commission” means the Commission of the European Communities;

• “Community aid” means aid towards eligible expenditure available from the Financial Instrument for Fisheries Guidance and payable in accordance with the Community legislation;

• “Community fishing vessel” has the meaning given to it in article 3 of Council Regulation 3 );

• “the Community legislation” means—

  (a)

  Council Regulation 1260/1999;

  (b)

  Council Regulation 4 );

  (c)

  Council Regulation 2792/1999;

  (d)

  Commission Decision 5 );

  (e)

  Commission Decision 6 );

  (f)

  Commission Regulation 7 );

  (g)

  Commission Decision No. C(2000) 2046 of 24 July 2000 approving the Single Programming Document for Community structural assistance under Objective 1 in the region of Cornwall and the Isles of Scilly in the United Kingdom;

  (h)

  Commission Decision No. C (2000) 2047 of 24 July 2000 approving the Single Programming Document for Community structural assistance under Objective 1 in the region of Merseyside in the United Kingdom;

  (i)

  Commission Decision No. C (2000) 4298 of 27 December 2000 approving the Single Programming Document for Community structural assistance in the fisheries sector in the United Kingdom in areas outside Objective 1;

  (j)

  Commission Regulation 8 ); and

  (k)

  Commission Regulation 9 ).

• “Council Regulation 1260/1999” means Council Regulation 10 );

• “Council Regulation 2792/1999” means Council Regulation 11 );

• “eligible expenditure” means expenditure which is incurred or to be incurred in connection with an approved operation and which the Minister 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 Minister by the Bank of England on the first working day of that month, rounded if necessary to two decimal places;

• “the Minister” means the Minister of Agriculture, Fisheries and Food;

• “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, 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; and

• “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 a numbered regulation shall, unless the context otherwise requires, be construed as a reference to the regulation bearing that number in these Regulations.

(4) Any reference in these Regulations to the doing of anything which under any regulation shall 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 Minister to enable or provide for such electronic means to be used.

Financial assistance

3. —(1) Subject to the provisions of the Community legislation and these Regulations the Minister may pay Community aid and, if he so determines, a grant to any person—

(a) who has, for the purpose of obtaining such financial assistance, made an application in accordance with regulation 4 for approval-

(i) of a relevant operation; and

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

(b) whose application he has 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 he may make,

the Minister 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 Minister may from time to time require.

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

Approval of applications

5. —(1) Subject to the Community legislation, the Minister 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 he may determine.

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

(3) The Minister 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 and of any conditions which have been amended or added pursuant to this regulation.

(4) Where the Minister notifies an applicant in accordance with paragraph (3) that he has refused to approve an application or a beneficiary that he has granted an approval subject to conditions or has varied the terms of an existing approval, he shall give such applicant or beneficiary—

(a) written reasons for his decision; and

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

(5) Where the Minister has received any representations in accordance with paragraph (4) above he shall consider them and may confirm his decision or substitute a different decision.

(6) Any confirmation made or decision substituted under paragraph (5) above shall be notified to the applicant or beneficiary in writing.

Eligibility and claims for payment of financial assistance

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

(2) No financial assistance shall be paid in respect of an approvedapplication unless the Minister 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, or the part of the operation to which the payment in question relates, has been properly carried out.

Method of payment of financial assistance

7. Payments by way of financial assistance may be made—

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

(b) subject to such conditions,

as the Minister 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 Minister to give such undertakings as the Minister considers appropriate to the case.

Information

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

(2) Where the Minister requires such information, the beneficiary shall supply him with it within such period as the Minister 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 Minister 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( 12 ) or to his ability to exercise any functions under these Regulations himself, the Minister may, from time to time, require the Authority to exercise any of his 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 Minister under these Regulations which the Authority has been required to exercise pursuant to paragraph 1 shall be discharged on behalf of the Authority 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 Minister may, with the approval of the Treasury, 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 Minister, 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 statement of accounts.

(5) The auditors shall complete the audit of the accounts and shall send the Minister 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 Minister and the Comptroller and Auditor General 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 beneficiary or any employee, servant or agent of any 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 purposes of—

(a) verifying the accuracy of any information or evidence contained in or included with an application or supplied pursuant to regulation 6 or 9;

(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 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) above 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 person as he considers necessary and regulations 12 and 14 and paragraphs (2), (3) and (5) of this regulation shall apply in relation to such person when acting under the instructions of the authorised officer as if he were an authorised officer.

(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 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 Minister may be required to make available to the Commission pursuant to Article 38(6) of 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 Minister has approved an application, it appears to him that-

(a) any relevant condition has not been complied with in whole or in part;

(b) the application so approved (or any part of it) was not an application (or part) 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 Minister 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 1260/1999 to suspend 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) below 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) below has occurred before the elapse of six years from the purchase of the relevant equipment or ten years from the purchase of the premises or the completion of the works,

he may revoke the approval in whole or in part and 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) above 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 Minister 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 Minister before it was made);

(d) the use of the relevant equipment, premises, or works primarily for 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-paragraph (i) or (j) of paragraph (1) above applies and none of the other sub-paragraphs of that paragraph applies, the maximum amount which the Minister may recover from a beneficiary pursuant to that paragraph 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.

(5) Before taking any step specified in paragraph (1), the Minister 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 Minister considers reasonable; and

(c) consider any representations.

Recovery of interest

16. —(1) If the Minister decides to recover any amount under regulation 15, he 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 beginning on the day on which the financial assistance in question was paid and ending when the Minister recovers the amount.

(2) In any proceedings relating to the recovery of such interest a certificate issued by the Minister showing the rate or rates of interest applicable, the amount of such interest recoverable and the period for which interest is calculated shall, unless the contrary is shown, be conclusive evidence of those 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 (2) or 13(5)(a) knowingly or recklessly makes a statement which is false or misleading in a material particular; or

(b) in purported compliance with a requirement imposed under regulation 4(2) or 13(5)(a) or (c) knowingly or recklessly produces a document which is false or misleading in a material particular,

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) below, 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 purposes 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 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) above 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.

Prosecutions

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