21.5.2009 Official Journal of the European Union L1263 REGULATION (EC) No 397/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 May 2009 amending Regulation (EC) No 1080/2006 on the European Regional Development Fund as regards the eligibility of energy efficiency and renewable energy investments in housing THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- PEAN UNION, Having regard to the Treaty establishing the European Commu- nity, and in particular Article 162 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee (1), Having consulted the Committee of the Regions, Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), Whereas: (1)  With a view to enhancing Europe’s longer-term sustainable growth potential, the Commission adopted, on 26 Novem- ber 2008, a Communication on a European Economic Recovery Plan which considers the importance of under- taking investments improving energy efficiency of the buildings, including the housing sector. (2)  The European Regional Development Fund (ERDF) sup- ports interventions in the housing sector, including energy efficiency, only in favour of Member States that acceded to the European Union on or after 1 May 2004, where the conditions set out in Article 7(2) of Regulation (EC) No 1080/2006 of the European Parliament and of the Council (*) are met. Such support for energy efficiency and renewable energy investment in the housing sector should be made available for all Member States. (3)  Support should be provided to those investments which take place in the framework of public schemes in line with the objectives of the Directive 2006/32/EC of the Euro- pean Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services (4). (4)  Inorder to ensure that the objectives of the cohesion policy as set out in Article 158 of the Treaty are met, interven- tions should support social cohesion. (") Opinion of 25 February 2009 (not yet published in the Official Jour- nal). (?) Opinion of the European Parliament of 2 April 2009 (not yet pub- lished in the Official Journal) and Council Decision of 5 May 2009. () OJ L 210, 31.7.2006, p. 1. () OJ L 114, 27.4.2006, p. 64. (5)  The European Court of Auditors recommended in its 2007 annual report that the legislative authorities and the Com- mission be prepared to reconsider the design of future expenditure programmes by giving due consideration to simplifying the basis of calculation of eligible costs and making greater use of lump-sum or flat-rate payments instead of reimbursement of ‘real costs’. (6)  Inorder to ensure the necessary simplification in the man- agement, administration and control of operations that receive an ERDF grant, particularly when linked to a result- based reimbursement system, it is appropriate to add three additional forms of eligible costs, namely, indirect costs, lump sums and flat-rate standard scales of unit cost. (7)  In order to ensure legal certainty in relation to the eligibil- ity of expenditure, these additional forms of eligible costs should be applicable to all grants from the ERDF. Retroac- tive application should therefore be necessary with effect from 1 August 2006, which is the date of entry into force of Regulation (EC) No 1080/2006. (8)  Regulation (EC) No 1080/2006 should therefore be amended accordingly, HAVE ADOPTED THIS REGULATION: Article 1 Article 7 of Regulation (EC) No 1080/2006 is hereby amended as follows: 1. the following paragraph shall be inserted: ‘la.  In each Member State, expenditure on energy effi- ciency improvements and on the use of renewable energy in existing housing shall be eligible up to an amount of 4 % of the total ERDF allocation. Member States shall define categories of eligible housing in national rules, in conformity with Article 56(4) of Regulation (EC) No 1083/2006, in order to support social cohesion.’; 2. the introductory phrase of paragraph 2 shall be replaced by the following: 2. Expenditure on housing, except for energy efficiency and the use of renewable energy as set out in paragraph 1a, shall be eligible only for those Member States that acceded to the European Union on or after 1 May 2004, where the fol- lowing conditions are met:’;