3 IMPLEMENTATION
ARRANGEMENTS
3.1 Implementation
Modalities
|
The Commission will
ensure that the EU appropriate rules and procedures for providing financing
to third parties are respected, including
review procedures, where appropriate, and compliance of the action with EU
restrictive measures.
|
3.1.1 Direct
Management (Grants)
|
Grants
(twinning): (direct management)
(a)
Purpose of the grant(s)
Grants will
contribute to the achievement of the Specific
Objectives 1 (Output 1.2 and 1.4)
(b)
Type of applicants targeted
Twinning grant(s)
applicants must be EU Member State administrations or their mandated bodies.
|
3.1.2 Direct
Management (Grants)
|
Grants:
(direct management)
(a)
Purpose of the grant(s)
Grants will
contribute to the achievement of the Specific
Objectives 1 (Output 1.2)
(b)
Type of applicants targeted
(i) be a legal
person,
(li) be
non-profit-making,
(iii) Non-State
Actors
|
3.1.3 Indirect
Management with a pillar assessed entity
|
A part of this action
may be implemented in indirect management with a
pillar assessed entity(ies) and direct
management (grants) for Non-State Actors and SDG 16+. (Outputs 2.1,
2.2). This implementation entails all outputs and
activities necessary for the achievement of Specific
Objectives 1 and 2. The envisaged entity will be selected using the following
criteria:
1) First-hand
understanding of International Human Rights Treaties and mechanisms;
2) Long-standing
experience working on Rule of Law and Human Rights-related issues in Viet
Nam, supported by a presence in the country and a team of qualified
core staff;
3) Good relations and
track records working with the Government of Viet Nam as an independent organisation,
free of any conflict of interest;
4) Previous experience
implementing similar EU-funded projects successfully
in Viet Nam.
If the pillar
assessed entity needs to be replaced, the Commission’s services may select a
replacement entity using the same criteria. Whenever an entity is replaced,
the decision to replace it must be justified.
|
3.2 Scope of
geographical eligibility for procurement and grants
|
The geographical
eligibility in terms of place of establishment for participating in
procurement and grant award procedures and in terms of the origin of supplies
purchased as established in the basic act and set out in the relevant
contractual documents shall apply.
The Commission’s
authorising officer responsible may extend the
geographical eligibility on the basis of urgency or of unavailability of services
in the markets of the countries or territories concerned or in other duly
substantiated cases where the application of the eligibility rules would make
the realisation of this action impossible or exceedingly difficult
(Article 28(10) NDICI-Global Europe Regulation).
|
3.3 Indicative Budget
|
Indicative
Budget components
|
EU
contribution
(amount
in EUR)
|
|
Implementation
modalities - cf 3.1
|
|
|
Specific
objectives 1 and 2 composed of
|
|
|
Indirect
management with pillar assessed entity(ies) - cf. section 3.1.3
|
11
700 000
|
|
Grants (twinning) (direct
management) - cf. section 3.1.1
|
3
000 000
|
|
Grants (direct
management) - cf. section 3.1.2
|
10
000 000
|
|
Evaluation
- cf. section 4.2
Audit
- cf. section 4.3
|
300
000
|
|
Totals
|
25
000 000
|
The government of
Vietnam intends to provide counterpart funds for project management purpose, in
accordance with Vietnamese regulations.
3.4 Organisational
Set-up and Responsibilities
|
3.4.1.
Project Steering Committee (PSC)
- The PSC is the
highest management level, with the right to decide the operational direction
of the EU JULE II Project for implementation modalities, direct
and indirect management. The Co-Chairs of
the PSC are representatives of the MOJ and the Ambassador - Head of the EU
Delegation to Vietnam. Members of the PSC will be determined during
implementation in accordance with the participation of relevant agencies and
organizations[6].
Members of the PMU of
the MOJ will attend the PSC’s meetings as observers to implement contents
agreed upon the co-chairs of the PSC during PSC’s meetings.
Representatives of
the implementing partners under indirect management, EU Members States and
the implementing partner of the grants under direct management (Section
3.1.2) will attend as regular observers. Other actors are invited to attend
as observers on an ad hoc basis.
- The PSC decides on
policies and orientations (including orientation on activities expected to be
implemented during the year) to implement the program, approves the Project's
annual work plan, decides on criteria for grant approval within the framework
of the grants under direct management (Section 3.1.2),
review and approve the winning bidder selected
by the Funding Review Board, and decide on other important issues such as
deciding on the nomination list of localities participating in the Project implementation,
considering approval of the Funding Review Board’s members (including member
replacement.) The PSC will meet at least once a year and hold extraordinary
meetings when convened by one of the two co-heads of the committee. After the
Work Plan is approved, if there is a need to supplement or adjust activities
during the year, the PMU and EU will discuss, agree, and submit it to the two
Co-Heads of the PSC for consideration and decision.
- The PSC shall work
on consensus.
3.4.2.
MOJ’s Project Management Unit
The PMU
of the MOJ is the standing agency of the PSC. The MOJ is responsible for the
operating costs of the PMU in the counterpart fund of the Vietnamese Government
for the Project and from the Project’s support sources. The MOJ’s PMU has
responsibilities to:
- Ensure
the achievement of project results and effective budget management according
to EU regulations and Vietnamese law;
- Support
the MOJ in managing and coordinating Project
activities according to Vietnamese law;
- Coordinate
with the Department of International Cooperation, MOJ to support the PSC in
synthesizing the annual work plan (organize conferences to exchange, discuss,
evaluate results and propose activities) and resolving arising issues for
both components - State component and JIFF before
submitting to the Committee.
- Monitor
activities within the framework of the EU JULE II Project
including implementation of grants under direct management (Section 3.1.2)
(the EU component provides direct support to qualified
organizations selected to receive funding
approved by the Steering Committee).
- Act as a focal
point to help the PSC contact and seek opinions from Vietnamese Government
agencies in the management and implementation of the Project, including
Consulting with the Ministry of Home Affairs
on the organizations that won the bids selected by the funding
review board to submit to PSG.
- Agree
in writing with the selected Non-State Actor responsible for the
implementation of grants under direct management (Section 3.1.2) on the
implementation of activities approved by competent authorities in the Annual
Work Plan.
Two implementation
modalities, direct and indirect management be used. Further details regarding
the organisational set-up and responsibilities of each mechanism will be
explored, discussed and agreed during the inception phase of the Programme.
For direct management, the implementing Non-State Actor will be selected
through a public, transparent call for proposals in accordance with EU rules
and regulations. The EU will consult with MoJ on the guidelines of this call
for proposals where the eligibility conditions and selection and award
procedures will be specifíed. Members of the PSC may participate as observers
in this process.
A grants committee
will be established by the selected Non-State Actor on the basis of the
principles of the previous JIFF under the Justice Partnership Programme
(2010-2015) and EU JULE I (2015-2024). The
composition of the committee will be suggested as follows: 3 independent
experts with profound expertise in legal/judicial issues, for instance: legal
dissemination and education; access to justice and protection of rights;
legal aid. MoJ will propose a member for the committee to the Secretariat.
The grants committee will assess grant proposals and select actions to
receive funding. The sub-granting award process
will be the sole responsibility of the selected Non-State Actor. A list of
selected sub-grantees will be shared with the PSC for information and
non-objection for implementation. The grant committee shall work on
consensus.
|
4 PERFORMANCE
MEASUREMENT
4.1 Monitoring and
Reporting
|
The day-to-day
technical and financial monitoring of the
implementation of this action will be a continuous process and part
of the implementỉng partner’s responsibilities. To this aim, the implementing
partner shall establish a permanent internal,
technical and financial monitoring system for the action
and elaborate regular progress reports (not less than annual) and final
reports. Every report shall provide an accurate account of the implementation
of the action, difficulties encountered, changes
introduced, as well as the degree of achievement of its results (Outputs and
direct Outcomes) as measured by corresponding indicators, using as reference
the logframe matrix (for project
modality) and the partner’s strategy, policy, or reform action plan list (for
budget support).
Gender equality and
the human rights-based approach will be mainstreamed into the monitoring and
evaluation of the project, and indicators will be
sex-disaggregated and disaggregated by other relevant aspects
whenever possible.
The Commission may
undertake additional project monitoring visits through its staff
and through independent consultants recruited directly by the Commission for
independent monitoring reviews (or recruited by the responsible agent
contracted by the Commission for implementing such reviews).
Roles and
responsibilities for data collection, analysis and monitoring:
Day-to-day technical
and financial monitoring of the
implementation of this action will be a continuous process as part of the
responsibilities of implementing partners, both under direct and indirect
management. To this aim, they shall establish a permanent intemal, technical
and financial monitoring system for the
programme, which will be used to elaborate the progress reports.
The PMU within the
MoJ will implement of both mechanisms in order to ensure achievement of
expected outputs and effective budget management in accordance with
regulations of the EU and Viet Nam’s laws.
|
4.2 Evaluation
|
Having regard to the
nature of the action, mid-term and final
evaluations will be carried out for this action or its components via
independent consultants contracted by the Commission.
Mid-term
evaluation(s) will be carried out for problem-solving and learning
purposes, particularly concerning the project’s steering and identifying
lessons learnt. In addition, the final
evaluation will be carried out for accountability and learning
purposes at various levels (including for policy revision), taking into
account, in particular, the fact that the project is supporting several key
ongoing reforms in Viet Nam.
The Commission shall
inform the implementing partner at least 30 days in advance of the dates
envisaged for the evaluation missions. Furthermore, the implementing partner
shall collaborate efficiently and effectively with the evaluation experts and
inter alia provide them with all necessary information and documentation, as
well as access to the project premises and activities.
The evaluation
reports may be shared with the partners and other key stakeholders following
the best practice of evaluation dissemination. The implementing partner and
the Commission shall analyse the conclusions and recommendations of the
evaluations and, where appropriate, apply the necessary adjustments.
Evaluation services may
be contracted under a framework contract.
|
4.3 Audit and Verifications
|
Without prejudice to
the obligations applicable to contracts concluded for the implementation of
this action, the Commission may, based on a risk assessment, contract
independent audit or verification assignments
for one or several contracts or agreements.
|
5 STRATEGIC COMMUNICATION
AND PUBLIC DIPLOMACY
|
The 2021-2027
programming cycle will adopt a new approach to pooling, programming and
deploying strategic communication and public diplomacy resources.
It will remain a
contractual obligation for all entities implementing EU-funded
external actions to inform the relevant
audiences of the Union’s support for their
work by displaying the EU emblem and a short funding
statement as appropriate on all communication materials related to the
actions concerned. This obligation will continue to apply equally, regardless
of whether the actions concerned are implemented by
the Commission, partner countries, service providers,
grant beneficiaries or entrusted or delegated
entities such as UN agencies, international financial
institutions and agencies of EU member States.
However, action
documents for specific sector programmes are, in principle,
no longer required to include a provision for
communication and visibility actions promoting the programmes concerned.
Instead, these resources will be consolidated in Cooperation Facilities
established by support measure action documents, allowing Delegations to plan
and execute multiannual strategic communication and public diplomacy actions
with sufficient critical mass to be effective
on a national scale.
In Viet Nam, the EU
Strategic Communication and Public Diplomacy Action Plan will provide
guidelines on communication priorities.
|
ANNEX II - GENERAL CONDITIONS
Contents
Part One: Provisions
Applicable to Activities for which the Partner is the Contracting
Authority
Article 1 - General
principles
Article 2 - Deadline
for the signature of contracts and agreements by the Partner
Article 3 - Exclusion
and administrative actions
Article 4 - Partial
delegation
Article 5 - Imprest
component of the programme estimate
Article 6 - [empty]
Article 7 - Publication
of information on procurement and grant contracts
by the Partner
Article 8 - Recovery of
funds
Article 9 - Financial
claims under procurement and grant contracts
Article 10 - Cost
overruns and ways of financing them
Part Two: Provisions
Applicable to Budget Support
Article 11 - Policy
dialogue
Article 12 - Verification
of conditions and disbursement
Article 13 -
Transparency of budget support
Article 14 - Recovery
of budget support
Part Three: Provisions
Applicable to this Action as a Whole, Irrespective of the Management
Mode
Article 15 - Execution
period and contracting deadline
Article 16 - Verifications
and checks by the Commission, the European Anti-Fraud
Office (OLAF), the European Public Prosecutor
Office (EPPO) and the European Court
of Auditors
Article 17 - Tasks of
the Partner in fighting irregularities, fraud
and corruption
Article 18 - Suspension
of payments
Article 19 - [empty]
Article 20 - Right of
establishment and residence
Article 21 - Tax and
customs provisions and foreign exchange arrangements
Article 22 - Confidentiality
Article 23 - Use of
studies
Article 24 -
Consultation between the Partner and the Commission
Article 25 - Amendment
of this Financing Agreement
Article 26 - Suspension
of this Financing Agreement
Article 27 -
Termination of this Financing Agreement
Article 28 - Dispute
settlement arrangements
Part One: Provisions Applicable to Activities for which the
Partner is the Contracting Authority
Article
1 - General principles
1.1 The purpose of Part
One is to define the tasks entrusted to the Partner in indirect management as
described in Annex I (Technical and Administrative Provisions) and to define
the rights and obligations of the Partner and of the Commission in carrying out
these tasks.
Part One shall apply to
the tasks related to the EU contribution alone or in combination with the funds
of the Partner or of a third party where such funds are pooled and thus
implemented in joint co-financing.
These tasks encompass
the implementation by the Partner as contracting authority of procedures for
the award of procurement contracts, grant contracts and contribution agreements
as well as the awarding, signing and enforcing
of the resulting procurement contracts, grant contracts and contribution
agreements. For the purpose of Part One of this Financing Agreement, every
reference to grant contracts shall also include contribution
agreement and every reference to grant beneficiaries
shall also include organisations having signed contribution
agreements.
The designation of
entities pertaining to the Partner's government
or administrative structure and identified in Annex I (Technical and
Administrative Provisions) to carry out certain tasks, does not qualify
as sub-delegation. Such entities shall respect the rights and obligations laid
down in Part One for the Partner as contracting
authorities, while at the same time the Partner remains fully responsible for
the fulfilment of the obligations stipulated in this Financing Agreement.
References in the Financing Agreement to Partner also encompass those entities.
As contracting
authority, the Partner shall act under partial delegation, except when it acts
under the imprest component of a programme
estimate:
- Under partial
delegation, the Partner acts as contracting authority for procurement
contracts, grant contracts, whereby the Commission controls
ex ante all award procedures and executes all related payments to the
contractors and grant beneficiaries;
- Under the imprest
component of a programme estimate, the Partner acts as contracting
authority for procurement and grant contracts, whereby it may, up to
established thresholds, conduct procurement and grant award procedures without
or with limited ex ante control of the Commission
and execute payments to the contractors and grant beneficiaries,
as well as in the context of direct labour.
1.2 The Partner shall
remain responsible for the fulfilment of the obligations stipulated in this
Financing Agreement even if it designates other entities identified
in Annex I (Technical and Administrative Provisions)
to carry out certain tasks. The Commission, in
particular, reserves the right to suspend payments, and to suspend and/or
terminate this Financing Agreement on the basis of the acts, omissions and/or
situations of any designated entity.
1.3 The Partner shall
set up and ensure the functioning of an effective and efficient
internal control system.
The Partner shall respect the principles of sound financial
management, transparency, non-discrimination, visibility
of the European Union in the implementation of the action and avoid situations
of conflict of interest.
A conflict
of interest exists where the impartial and objective exercise of the functions
of any responsible person is compromised for reasons involving family,
emotional life, political or national affinity, economic interest or any other
direct or indirect personal interest.
Internal control system
is a process aimed at providing reasonable assurance that operations are
effective, efficient and economical, that the reporting is reliable, that
assets and information are safeguarded, that fraud
and irregularities are prevented, detected and corrected, and that risks
relating to the legality and regularity of the financial operation are adequately
managed, taking into account the multiannual character of the activities as
well as the nature of the payments concerned.
In particular, where
the Partner carries out payments under the imprest component of a programme
estimate, the functions of the authorising and accounting
officers shall be segregated and mutually incompatible and the Partner shall
operate an accounting system that provides accurate, complete, reliable and
timely information.
1.4 Except
where the Partner may apply its own procedures and standard documents for the
award of procurement contracts and grant contracts pursuant to
Article 5.2, the Partner shall conduct the award procedures and conclude the
resulting contracts and agreements in the language of this Financing Agreement.
The project/programme shall be implemented under the responsibility of the
Partner with the approval of the Commission.
1.5 The
Partner shall take the necessary measures to ensure the visibility of EU funding
for the activities entrusted to it or for other activities under this action in
line with the requirements in the 2022 “Communicating and Raising EU
visibility: Guidelines for External Action” or any successor document. These
measures shall either be defined in Annex I (Technical
and Administrative Provisions) or shall be agreed later between the Partner and
the Commission.
1.6 Under
partial delegation and under the imprest component of a programme estimate, the
Partner shall keep all relevant financial
and contractual supporting documents from the date of the entry into force of
this Financing Agreement or as from an earlier date which is stipulated as the
start date of the period of execution for five years as from the end of the
execution period, in particular, the following:
Procurement procedures:
a. Prior information
notice and contract notice with proof of publication and any corrigenda;
b. Appointment of
shortlist panel;
c. Shortlist report
(incl. annexes) and requests to participate;
d. Letters to
non-shortlisted candidates;
e. Invitation to tender
or equivalent;
f. Tender dossier
including annexes, clarifications, minutes of the meetings, proof
of publication;
g. Appointment of the
evaluation committee;
h. Tender opening
report, including annexes;
j. Evaluation /
negotiation report, including annexes and bids received[1];
k. Notification
letter;
l. Supporting
documents;
m. Cover letter for
submission of contract;
n. Letters to unsuccessful
candidates;
o.
Award (including shortlist notice) / cancellation notice, including proof of
publication;
p. Signed contracts,
addenda , and relevant correspondence.
Calls for proposals and
direct award of grants:
a. Appointment of the
evaluation committee;
b. Opening and
administrative report including annexes and applications received[2];
c. Letters to successful
and unsuccessful applicants following concept note evaluation;
d. Concept note
evaluation report;
e. Evaluation report of
the full application or negotiation report with relevant annexes;
f. Eligibility check
and supporting documents;
g. Letters to successful
and unsuccessful applicants with approved reserve list
following full application
evaluation;
h. Cover letter for
submission of grant contract;
i. Award/cancellation
notice with proof of publication;
j. Signed contracts,
addenda, and relevant correspondence.
1.7
The Partner shall ensure an appropriate protection of
personal data. Personal data means any information
relating to an identified or identifiable
natural person.
Personal data shall be:
a. Processed lawfully,
fairly and in a transparent manner in relation
to the data subject;
b. Collected for specified,
explicit and legitimate purposes and not further
processed in a manner that is incompatible with those purposes;
c. Adequate, relevant
and limited to what is necessary in relation to the purposes for which they are
processed;
d. Accurate and, where
necessary, kept up to date;
e. Processed in a
manner that ensures appropriate security of the personal data and
f. Kept in a form which
permits identification of data subjects for no longer than
is necessary for the purposes for which the personal data are processed.
Personal data included in documents to be kept by the Partner in accordance
with Article 16.1 has to be deleted once the deadline set out in Article 16.1
has expired.
Any operation involving
the processing of personal data, such as collection, recording, organisation,
storage, adaption or alteration, retrieval, consultation, use, disclosure,
erasure or destruction, shall be based on rules and procedures of the Partner
and shall only be done as far as it is necessary for the implementation of this
Financing Agreement.
In particular, the
Partner shall take appropriate technical and organisational security measures
concerning the risks inherent in any such
operation and the nature of the information relating to the natural person
concerned, in order to:
a. Prevent any
unauthorised person from gaining access to Computer Systems performing
such operations, and especially unauthorised reading, copying, alteration or
removal of storage media; unauthorised data input as well as any unauthorised
disclosure, alteration or erasure of stored information;
b. Ensure that
authorised users of an IT System performing
such operations can access only the information
to which their access right refers;
c. Design its
organisational structure in such a way that it meets the above requirements.
Article
2 - Deadline for the signature of contracts and agreements by the Partner
2.1 The procurement
contracts and grant contracts shall be signed during the
operational implementation period of this Financing Agreement.
When implementing a
multi-donor Action, the procurement contracts and grant contracts
shall be concluded within the contracting deadline set out in the Special
Conditions or set out for the imprest component of the programme estimate.
When the Action is not
a multi-donor Action, procurement contracts and grant contracts
shall be concluded at the latest within three years of the entry into force
of this Financing Agreement.
Additional procurement
contracts and grant contracts resulting from an amendment to this Financing
Agreement which increases the EU contribution shall be signed at the latest
within three years of the entry into force of that amendment to this Financing
Agreement, or for a multi- donor Action within the fixed contracting deadline
for the additional EU contribution.
The three
years-deadline for non-multi-donor Actions may not be extended.
2.2 However, the
following transactions may be signed at any time
during the operational implementation period:
a. amendments to
procurement contracts and grant contracts
already signed;
b. procurement contracts
and grant contracts to be concluded after
early termination of existing procurement contracts and grant contracts;
c. contracts relating
to audit and evaluation, which may also be signed during the closure period;
d. operating costs
referred to in Article 5.1;
2.3 After expiry of the
deadlines referred to in Article 2.1, the financial
balance for the related activities entrusted to the Partner for which contracts
have not been duly signed shall be decommitted by the Commission.
2.4 No such
decommitment shall apply to the funds
budgeted for audit and evaluations referred to in Article 2.2.c) or the
operating costs referred to in Article 2.2.d).
Likewise, no such
decommitment shall apply to any financial
balance of the contingency reserve or to funds
available again after
early termination of a contract referred to in
Article 2.2.b), which both may be used to finance
contracts reíerred to in Article 2.2.
Article
3 - Exclusion and administrative actions
3.1 Exclusion criteria
When applying the
procedures and standard documents laid down and published by the Commission for
the award of procurement and grant contracts, the Partner shall accordingly
ensure that no EU financed procurement or grant contract
is awarded to a legal or natural person in one of the exclusion situations
provided for in the relevant procedures and standard documents of the
Commission.
3.2 Information duty
The Partner shall inform
the Commission when an economic operator or grant applicant is in a situation
referred to in Article 3.1, or has committed irregularities
and fraud, or has been found
in serious breach of its contractual obligations.
3.3 Administrative
actions
Where the Partner
becomes aware of one of the situations referred to in Article 3.1 in the
implementation of the tasks described in Annex I, the Partner shall, under the
conditions of its national legislation, impose upon the economic operator or
grant applicant, an exclusion from its future
procurement or grant award procedures and/or a financial penalty proportional
to the value of the contract concerned.
Such financial penalties or exclusions shall be
imposed following an adversarial procedure ensuring the right of defence of the
person concerned.
The Partner may be
exempted from the obligations under the first
paragraph where:
- the Partner's
national legislation does not allow to impose an exclusion and/or a financial
penalty,
- the
protection of the EU's financial interests requires to impose an
administrative action within deadlines incompatible with the Partner's internal
procedures,
- the imposition
of an administrative action requires a
mobilisation of resources beyond the Partner's means,
- its national legislation does not allow to exclude an economic operator
from all EU financed award procedures.
In such cases, the
Partner will notify its impediment
to the Commission. The Commission may decide to impose to the economic operator
or grant applicant an exclusion from future EU financed
award procedures and/or a financial penalty not
exceeding 10 % of the total value of the contract
concerned.
Article
4 - Partial delegation
Award procedures
4.1 The tasks shall be
carried out by the Partner in accordance with the procedures and standard documents
laid down and published by the Commission for the award of procurement
contracts and grant contracts, in force at the time of the launch of the
procedure in question.
Ex ante control
4.2 To allow ex ante
control, the Partner shall submit tender dossiers and documents for calls for
proposals, or negotiated procedure to the Commission for approval before
launching invitations to tender and calls for proposals, or negotiations. Likewise,
the Partner shall invite the Commission to the opening of tenders and
proposals, and shall provide the Commission with copies of tenders and
proposals received. The Partner shall notify the
Commission of the results of the examination of tenders, proposals, or
negotiation and shall submit the award proposal, as well as the draft
procurement contracts and grant contracts
to the Commission for approval.
During the
implementation of the procurement contracts and grant contracts, the Partner
shall equally submit draft addenda and draft administrative orders thereto, to
the Commission for prior approval.
The Partner shall
invite the Commission for provisional and final
acceptance.
Report and Management
Declaration
4.3 If Article 5 of the
Special Conditions so provides, the report on the implementation of the tasks
entrusted to the Partner shall follow the template provided in Annex III and
the management declaration shall follow the template provided in Annex IV. An
independent external audit opinion on the management declaration, performed
in accordance with internationally accepted auditing standards,
does not have to be provided in this case as the Commission shall conduct the
audits for this action. These audits will verify
the truthfulness of the assertions made in the
management declaration and the legality and regularity of the underlying
transactions made.
Payment procedures
4.4 The Partner shall
provide the Commission with the approved payment requests within the following
deadlines, starting from the date of receipt of the payment request, not
counting the periods of suspension of the time-limit for payment:
(a) 15 calendar days
for pre-financing specified in the procurement contract and grant contract;
(b) 45 calendar days
for other payments.
The Commission shall
act in accordance with Articles 4.9 and 4.10 within the period amounting to the
time-limit for payment provided for in the procurement contract and grant
contracts minus the above deadlines.
4.5 Upon receipt of a
payment request from a contractor, or grant beneficiary,
the Partner shall inform the Commission of its receipt and shall immediately
examine whether the request is admissible, i.e. whether it contains the identification
of that contractor or grant beneficiary, the contract or agreement concerned,
the amount, the currency and the date. If the
Partner concludes that the request is inadmissible, it shall reject it and inform
the contractor or grant beneficiary of this rejection
and of its reasons within 30 days of receipt of the request. The Partner shall
also inform the Commission of this rejection and its reasons.
4.6 Upon
receipt of an admissible payment request, the Partner shall examine whether a
payment is due, i.e. whether all contractual obligations justifying the payment
have been fulfilled,
including examining a report, where applicable. If the Partner concludes that a
payment is not due, it shall inform the contractor or grant beneficiary
thereof and of the reasons. The dispatch of this information suspends the
time-limit for payment. The Commission shall receive a copy of the information
so dispatched. The Commission shall also be informed
of the reply or corrective action of the contractor or grant beneficiary.
That reply or action aimed at correcting the non- compliance with its
contractual obligations shall restart the time-limit for payment. The Partner shall
examine this reply or action pursuant to this paragraph.
4.7 If the Commission
disagrees with the Partner's conclusion that a payment is not due, it shall inform
the Partner thereof The Partner shall re-examine its
positions and, if it concludes that the payment is due, it shall inform
thereof the contractor or, grant beneficiary. The
suspension of the time-limit for payment shall be lifted upon dispatch of this
information. The Partner shall also inform
the Commission. The Partner shall further proceed as provided for in Article
4.8.
If disagreement between
the Partner and the Commission persists, the Commission may pay the undisputed
part of the invoiced amount provided that it is clearly separable from the
disputed amount. It shall inform the Partner and the contractor or grant beneficiary
of this partial payment.
4.8 Where the Partner
concludes that the payment is due, it shall transfer the
payment request and all necessary accompanying documents to the Commission for
approval and payment. It shall provide an overview of how many days of the
time-limit for payment are left and of all periods of suspension of this
time-limit.
4.9 After transfer of
the payment request pursuant to Article 4.8, if the Commission concludes that the
payment is not due, it shall inform the Partner and, in
copy, the contractor or grant beneficiary thereof and
of the reasons. Informing the contractor or grant beneficiary
shall have the effect of suspending the time-limit for
payment, as provided for in the contract concluded. A reply or corrective
action of the contractor or grant beneficiary
shall be treated by the Partner in accordance with Article 4.6.
4.10 Where the Partner
and the Commission conclude that the payment is due, the Commission shall execute
the payment.
4.11 Where late-payment
interest is due to the contractor or grant beneficiary,
it shall be allocated between the Partner and the Commission pro rata to the
days of delay in excess of the time limits stipulated in Article 4.4, subject
to the following:
(a) the number of days
used by the Partner is calculated from the date of the registration of an
admissible payment request referred to in Article 4.6 to the date of the
transfer of the request to the Commission referred to in Article 4.8 and from
the date of information by the Commission referred to Article 4.9 to the
following transfer of the request to the Commission referred to in Article 4.8.
Any period of suspension of the time-limit for payment shall be deducted.
(b) the number of days
used by the Commission is calculated from the date
following that of transfer of the request by the Partner referred
to in Article 4.8 to the date of payment and from the date of transfer to the
date of informing the Partner pursuant to Article 4.9.
4.12 Any circumstances
unforeseen by the above procedure shall be
solved in a spirit of cooperation between the
Partner and the Commission by analogy to the above provisions while respecting
the contractual relations of the Partner with the
contractor or grant beneficiary.
Where feasible,
One party shall cooperate at the request of the other party in providing useful
information for the assessment of the payment request, even before
the payment request is formally transferred
to or returned from the first
party.
4.13 A procurement
contract or grant contract which has not given rise to any payment within two
years of its signature shall be automatically terminated and its funding
shall be decommitted, except in case of litigation before judicial courts or
arbitral bodies.
Article
5 - Imprest component of the programme estimate
Application
5.1 The programme
estimate is a document laying down the programme of activities to be carried
out and the human and material resources required,
the corresponding budget and the detailed technical and administrative
implementing arrangements for the execution of these operational activities
over the operational implementation period of this Financing Agreement.
The programme estimate
implementing the Financing Agreement must respect the procedures and Standard
documents concerning programme estimates laid down by the
Commission, in force at the time of the adoption of the programme estimate in
question.
The body implementing
those operational activities within the programme estimate, may be the central government
of the Partner itself (Central operations) or a commissioned public law or private
law body with a public-service mission (public commissioned operations).
The programme estimate
shall have an imprest component and may have a component of specific
commitments.
Under the component of
specific commitments, Article 4 shall apply.
Under the imprest
component of the programme estimate, the implementing body may, up to established
thresholds, conduct procurement and grant award procedures without or with
limited ex ante control of the Commission and execute payments to the
contractors and grant beneficiaries, as well as in the context of direct
labour.
Direct labour relates
to the operational activities which the implementing body executes directly using
staff it employs and/or its existing resources (machinery, equipment, other
inputs).
The operating costs
incurred by the implementing body may be eligible for EU financing
under the imprest component of the programme estimate. If so, they shall be
eligible for EU financing during the entire duration of the
execution period of this Financing Agreement, unless an earlier start of cost
eligibility is stipulated in Article 6 of the Special Conditions. Operating
costs are costs of the implementing body incurred in carrying out
implementation tasks and include local staff, utilities (e.g. water, gas, and
electricity), rental of premises, consumables, maintenance, short-term business
trips and fuel for vehicles. They shall not include
procurement of vehicles or of any other equipment, or any operational activity.
Such ordinary operating costs may be charged and paid in accordance
with the implementing body's own procedures.
Award procedures
5.2 Under the imprest
component of the programme estimate, the implementing body may carry out,
totally or partially, the award procedures for procurement and grant contracts
in accordance with its own procedures and standard documents, to the extent
that the Commission establishes that there is a level of protection of the financial
interests of the Union equivalent to the Commission’s through a pillar
assessment.
To the extent that no
such evidence is obtained, the award procedures for procurement and grant contracts
shall be carried out by the implementing body in accordance with the procedures
and standard documents laid down and published by the Commission, in force at
the time of the launch of the procedure in question. By derogation, the Partner
may use its Standard procurement contracts
for contracts with a value not exceeding EUR 20 000.
Ex ante control
5.3 Under the imprest
component, unless the Technical and Administrative Arrangements of the programme
estimate stipulate otherwise, the implementing body shall submit to
the Commission for prior approval, the tender dossiers and proposals for award
decision of procurement contracts whose value
exceeds EUR 100 000, as well as all guidelines for applications and proposals
for award decisions of grant contracts, which follow the procedures and standard
documents laid down and published by the Commission.
In addition to the
record-keeping obligations laid down in Article 1.6 of these
General Conditions, the Partner shall, during the same period, keep all
relevant financial and contractual supporting documents.
Management declaration
5.4 The Partner shall
submit to the Commission annually, by the date stipulated in Article 6 of the
Special Conditions, a management declaration signed by the Partner using the
template in Annex IV.
An independent external
audit opinion on the management declaration, performed
in accordance with internationally accepted auditing standards, does not have
to be provided in this case as the Commission shall conduct the audits for this
action. These audits will verify the truthfulness
of the assertions made in the management declaration and the legality and
regularity of the underlying transactions made.
Payments
5.5 The Commission
shall transfer the first
pre-financing instalment, upon signature of the
programme estimate by all parties, within 30 calendar days.
The Commission shall
pay the further pre-financing
instalments within 60 calendar days of receiving and approving the payment
request and its reports.
Late-payment interest
shall be due pursuant to the applicable Financial Regulation. The time-limit for
the payment may be suspended by the Commission by informing
the Partner, at any time during the period referred to above, that the payment
request cannot be met, either because the amount is not due or because the
appropriate supporting documents have not been produced. If information
which puts in doubt the eligibility of expenditure appearing in a payment
request comes to the notice of the Commission, the Commission may suspend the
time-limit for the payment for the purpose of further
verification, including an on-the-spot check, in
order to ascertain, prior to payment, that the expenditure is indeed eligible.
The suspension and the reasons for it shall be communicated to the Partner as
soon as possible. The time-limit for the payment shall resume once the missing
supporting documents have been provided or the payment request has been
corrected.
5.6 The Commission
shall make payments to a bank account opened at a financial
institution accepted by the Commission.
5.7 The Partner shall
guarantee that funds paid by the Commission can be identified
in this bank account.
5.8 Transfers in euro
shall, if necessary, be converted into the Partner's national currency as and
when payments have to be made by the Partner, at the bank rate in force on the
day of payment by the Partner.
Article
6 - [empty]
Article
7 - Publication of information on procurement and grant contracts by the
Partner
7.1 The Partner
undertakes to publish each year in a dedicated and easily accessible place of
its internet site, for each procurement and grant contract for which it is
contracting authority under the imprest component of the programme estimate
reíerred to in Article 5, its nature and purpose, the name and locality of the
contractor (contractors in case of a consortium) or grant beneficiary
(grant beneficiaries in case of a multi-beneficiary
grant), as well as the amount of the contract.
The locality of a
natural person shall be a region at NUTS2 level. The locality of a legal person
shall be its address.
If such internet
publication is impossible, the information shall be published by any other
appropriate means, including the official journal of the
Partner.
Article 6 of
the Special Conditions shall stipulate the location, on
the internet or otherwise, of the
place of publication; reference shall be made to this location in the dedicated
place of the internet site of the Commission.
7.2 Education support
and direct financial support to natural persons most in
need shall be published anonymously and in an accumulated manner by category of
expenditure.
Names of natural
persons shall be replaced by "natural person" two years after
publication. The name of a legal entity containing that of a natural person
involved in this entity shall be treated as a natural person's name.
Publication of names of
natural persons shall be waived if such publication risks violating their
fundamental rights or damaging their commercial interests.
The Partner shall
present a list of data to be published on natural persons with any justifications
for proposed waivers of publication to the Commission which must grant prior
authorisation to this list. Where necessary, the Commission shall
complete the locality of the natural person limited to a region at NUTS2 level.
7.3 Publication of the procurement
and grant contracts concluded (i.e. signed by the Partner
and the contractor or grant beneficiary)
during the reporting period shall take place within six months folIowing the
date for submitting the report pursuant to Article 6 of Special Conditions.
7.4 Publication of
contracts may be waived if such publication risks harming the commercial
interests of contractors or grant beneficiaries.
The Partner shall present a list with such justifications
to the Commission which must grant prior authorisation to such publication waiver.
7.5 Where the
Commission carries out payments to contractors or grant beneficiaries
pursuant to Article 4, it shall ensure the publication of information
on procurement contracts and grant contracts
according to its rules.
The Partner shall
promptly inform the Commission of the initiation of
any arbitration proceedings resulting from a procurement contract and promptly
communicate to the Commission any resulting arbitral award. The Partner agrees
that, at the request of the arbitral tribunal,
the Commission shall publish any arbitral award resulting from
a procurement contract, after anonymisation, on the
Commission’s external website.
Article
8 - Recovery of funds
8.1 The Partner shall
take any appropriate measures to recover the funds
unduly paid.
Amounts unduly paid and
recovered by the Partner, amounts from financial
guarantees lodged on the basis of procurement and grant award procedures,
amounts from financial penalties imposed by the Partner,
as well as damages awarded to the Partner shall be returned
to the Commission.
8.2 Without prejudice
to the above responsibility of the Partner to recover funds
unduly paid, the Partner agrees that the Commission may, in accordance with the
provisions of the Financial Regulation applicable and this Financing Agreement,
formally establish an amount as being unduly paid under procurement contracts
and grant contracts financed under Part One and proceed to its
recovery by any means on behalf of the Partner, including by offsetting the amount
owed by the contractor or grant beneficiary against any of its claims against
the EU and by forced recovery before the competent courts.
8.3 To this end, the
Partner shall provide to the Commission all the documentation and information
necessary. The Partner hereby empowers the Commission to carry out the recovery
in particular by calling on a guarantee of a contractor or grant beneficiary of
which the Partner is the contracting authority or by
offsetting the funds to be recovered against any amounts owed to the contractor
or grant beneficiary by the Partner as contracting
authority and financed by the EU under this or another
Financing Agreement or by forced recovery before
the competent courts.
8.4 The Commission
shall inform the Partner that the recovery
proceedings have been initiated (including where necessary before
a national court).
8.5 Where the Partner
is a grant beneficiary of an entity with which the
Commission concluded a contribution agreement, the
Commission may recover funds from the Partner which are due to the entity but
which the entity was not able to recover itself.
Article
9 - Financial claims under procurement and grant contracts
The Partner undertakes
to confer with the Commission before
taking any decision concerning a request for compensation made by a
contractor or grant beneficiary and considered by the Partner to be
justified in whoIe or in part. The financial
consequences may be borne by the EU only where the Commission has
given its prior authorisation. Such prior authorisation is also required for
any use of funds committed under the present Financing
Agreement to cover costs arising from disputes relating to contracts.
Article
10 - Cost overruns and ways of financing them
10.1 Individual
overruns of the budget headings of the activities implemented by the Partner
shall be dealt with by reallocating funds within the overall budget, in
accordance with Article 25 of these General Conditions.
10.2 Wherever there is
a risk of overrunning the amount foreseen for the activity implemented by the
Partner, the Partner shall immediately inform the Commission and seek its prior
authorisation for the corrective activities planned to cover the overrun,
proposing either to scale down the activities or to draw on its own or other
non-EU resources.
10.3 If the activities
cannot be scaled down, or if the overrun
cannot be covered either by the Partner's own resources or other resources, the
Commission may, at the Partner's duly substantiated request, decide to grant
additional EU financing. Should the Commission take such
a decision, the excess costs shall be financed,
without prejudice to the relevant EU rules and procedures, by the release of an
additional financial contribution to be set by the
Commission. This Financing Agreement shall be amended accordingly.
Part Two: Provisions Applicable to Budget Support
Article
11 - Policy dialogue
The Partner and the EU
commit to engage in a regular constructive dialogue at the appropriate level on
the implementation of this Financing Agreement.
Where the Partner is an
ACP State this dialogue may form a part of the broader political dialogue
provided for in Article 8 of the ACP-EC Partnership Agreement, or legal instrument
replacing the ACP-EC Partnership Agreement.
Article
12 - Verification of conditions and disbursement
12.1. The Commission
shall verify the conditions for the payment of the tranches
of the budget support component, as identified in
Annex I (Technical and Administrative Provisions).
Where the Commission
concludes that the conditions for payment are not fulfilled, it shall
inform the Partner thereof without undue
delay.
12.2. Disbursement
requests submitted by the Partner shall be eligible for EU financing
provided that they are in accordance with the provisions set out in Annex I
(Technical and Administrative Provisions) and that they are submitted during
the operational implementation period.
12.3. The Partner shall
apply its national foreign exchange regulations in a
nondiscriminatory manner to all disbursements of the budget support component.
Article
13 - Transparency of budget support
The Partner hereby
agrees to the publication by the Commission, of this Financing Agreement and
any amendment thereof, including by electronic means, and of such basic
information on the budget support which the Commission deems appropriate. Such
publication shall not contain any data in violation of the EU laws applicable
to the protection of personal data.
Article
14 - Recovery of budget support
All or part of the
budget support disbursements may be recovered by the Commission, with due
respect to the principle of proportionality, if the Commission establishes that
payment has been vitiated by a serious irregularity attributable to the
Partner, in particular if the Partner provided unreliable or incorrect information,
or if corruption or fraud was involved.
Part Three: Provisions Applicable to this Action as a Whole,
Irrespective of the Management Mode
Article
15 - Execution period and contracting deadline
15.1 The execution
period of this Financing Agreement shall comprise two periods:
- an operational
implementation period, in which the operational activities of the action are carried
out. This period shall start on the entry into force of
this Financing Agreement or on the date stipulated in the Special Conditions
and end with the opening of the closure period;
- a closure period,
during which final audit and evaluation are carried out
and contracts and the programme estimate for the
implementation of this Financing Agreement are technically and financially
closed. The duration of this period is stipulated in Article 2.3 of the special
Conditions. It starts after the end of the operational implementation period.
These periods shall be
reflected in the agreements to be concluded
by the Partner and by the Commission in the implementation of this Financing
Agreement, in particular in contribution agreements and procurement and grant
contracts.
15.2 Costs related to
the operational activities shall be eligible for EU financing
only if they have been incurred during the
operational implementation period. Costs related to
final
audits and evaluation, to closure activities and operating costs referred to in
Article 5.1 shall be eligible until the end of the closure period.
15.3 Any balance
remaining from the EU contribution shall
be automatically decommitted no
later than six months after
the end of the execution period.
15.4 In exceptional and
duly substantiated cases, a request may be made for the extension of the
operational implementation period or the closure period, as well as
correlatively of the execution period. If agreed upon, the Financing Agreement
shall be amended accordingly.
15.5 Article 2 of these
General Conditions shall apply to procurement contracts,
grant contracts and contribution agreements awarded by the
Commission as contracting authority. The agreements for blending operations may
be concluded at any time within the operational implementation period.
Article
16 - Verifications and checks by the Commission, the European Anti-Fraud Office
(OLAF), the European Public Prosecutor Office (EPPO) and the European Court of
Auditors
16.1 The Partner shall
assist and support the verifications and checks
carried out by the Commission, OLAF, EPPO and the European Court of Auditors at
their request.
The Partner agrees to
the Commission, EPPO, OLAF and the European Court of Auditors conducting
documentary and on-the-spot controls on the use made of
EU financing under the activities under this
Financing Agreement and carrying out a full
audit, if necessary, on the basis of supporting documents of accounts and
accounting documents and any other documents relating to the financing
of the activities, throughout the duration of this Financing Agreement and for five
years from the end of the execution period.
16.2 The Partner also
agrees that EPPO and OLAF may carry out on-the-spot checks and verifications
in accordance with the procedures laid down by EU law for the protection of the
EU’s financial interests against fraud
and other irregularities.
To that end, the Partner
shall grant officials of the Commission, EPPO, OLAF and
the European Court of Auditors and their authorised agents access to sites and
premises at which operations financed under this
Financing Agreement are carried out, including their Computer Systems, and to
any documents and computerised data concerning
the technical and financial management of those operations,
and to take every appropriate measure to facilitate their work. Access by authorised
agents of the Commission, EPPO, OLAF and the European Court of Auditors shall
be granted on conditions of strict confidentiality
with regard to third parties, without prejudice to public law obligations to
which they are subject. Documents must be accessible and filed
in a manner permitting easy inspection, the Partner being bound to inform
the Commission, EPPO, OLAF or the European Court of Auditors of the exact
location at which they are kept.
16.3 The checks and
audits described above shall also apply to contractors, grant beneficiaries,
organisations having signed contribution agreements and subcontractors or
recipients of financial support who have received EU financing.
16.4 The Partner shall
be notified of on the spot missions by agents
appointed by the Commission, OLAF or the European Court of Auditors.
Article
17 - Tasks of the Partner in fighting irregularities, fraud and corruption
17.1 The Partner shall
immediately inform the Commission of any element brought to its attention which
arouses suspicions of irregularities, fraud
or corruption and of any measure taken or planned to deal with them.
17.2 The Partner shall
ensure and check regularly that the actions financed
from the budget are effectively carried out and implemented correctly. It shall
take appropriate measures to prevent, detect and correct
irregularities
and fraud and where necessary, bring
prosecutions and recover funds unduly paid.
"Irregularity"
shall mean any infringement of this Financing Agreement, implementing contracts
and programme estimate or of EU Iaw resulting from an act or omission by anyone
who has, or would have, the effect of prejudicing the funds
of the EU, either by reducing or losing revenue owed to the EU, or by an
unjustified item of expenditure.
"Fraud"
shall mean any intentional act or omission concerning:
- the use or
presentation of false, incorrect or incomplete, statements or documents which
has as its effect the misappropriation or wrongful
retention of funds from the general budget of the EU;
- non-disclosure of
information in violation of a specific
obligation, with the same effect;
- the misapplication of
such funds for purposes other than those for which they are originally
granted.
17.3 The Partner
undertakes to take every appropriate measure to prevent, detect and punish any practices
of active or passive corruption during the implementation of the Financing
Agreement.
"Passive
corruption" shall mean the deliberate action of an official,
who, directly or through an intermediary, requests or receives advantages of
any kind whatsoever, for himself or for a third
party, or accepts a promise of such an advantage, to act or refrain
from acting in accordance with his duty or in the exercise of his functions
in breach of his official duties, which has, or would have, the
effect of harming the EU's financial interests.
"Active
corruption" shall mean the deliberate action of whosoever promises or
gives, directly or through an intermediary, an advantage of any kind whatsoever
to an official, for himself or for a third party, to act or refrain
from acting in accordance with his duty or in the exercise of his functions in
breach of his official duties, which has, or would have,
the effect of harming the EU’s financial interests.
17.4 If the Partner
does not take appropriate measures to prevent fraud,
irregularities and corruption, the Commission may adopt precautionary measures
including the suspension of this Financing Agreement.
Article
18 - Suspension of payments
18.1 Without prejudice
to the suspension or termination of this Financing Agreement according to
Articles 26 and 27, respectively, the Commission may suspend
payments partially or fully, if:
a) the Commission has
established or has serious concerns
that, on the basis of information it received, and needs to verify,
the Partner has committed substantial errors, irregularities
or fraud in the procurement and grant award
procedure or in the implementation of the action, or the Partner has failed
to comply with its obligations under this Financing Agreement, including
obligations regarding the implementation of the Communication and Visibility
plan;
b) the Commission has
established or has serious concerns that, on the basis of information
it received, and needs to verify, the Partner has committed systemic or
recurrent errors, irregularities, fraud
or breach of obligations under this or other Financing Agreements, provided
that those errors, irregularities, fraud
or breach of obligations have a material impact on the implementation on this
Financing Agreement or call into question the reliability of the Partner's internal
control system or the legality and regularity of the underlying expenditure;
c) the Commission
suspects that the Partner committed substantial errors, irregularities, fraud
or breach of obligations in the procurement and grant award procedure or in the
implementation of the action and needs to verify
whether they have occurred.
d) it is necessary to
prevent significant damage to the financial
interests of the EU.
18.2 The Commission
shall immediately inform the Partner about the suspension of
payments and of the reasons for this suspension.
18.3 The suspension of
payments shall have the effect of suspending payment time-limits for any payment
request pending.
18.4 In order to resume
payments the Partner shall endeavour to remedy the situation leading to the suspension
as soon as possible and shall inform the
Commission of any progress made in this respect. The Commission shall, as soon
as it considers that the conditions for resuming payments have been met, inform
the Partner thereof.
Article
19 - [empty]
Article
20 - Right of establishment and residence
20.1 Where justified by
the nature of the procurement contract, grant contract or contribution agreement,
the Partner shall entitle natural and legal persons participating in
invitations to tender for works, supply or service contracts or calls for
proposals and organisations expected to sign contribution
agreements with a provisional right of establishment and residence in the
Partner’s territory(ies). This right shall remain
valid for one month after the contract is awarded.
20.2 The Partner shall
also entitle procurement contractors, grant beneficiaries, organisations having
signed contribution agreements and natural persons
whose services are required for the performance
of this action and members of their families with similar rights during the implementation
of the action.
Article
21 - Tax and customs provisions and foreign exchange arrangements
Where a Framework
Agreement is applicable, which includes more detailed provisions on this subject,
these provisions shall apply as well.
Article
22 - Confidentiality
22.1 The Partner agrees
that documents and information related to the Action and held by
any entity may be forwarded to the Commission, by that entity, for the sole
purpose of implementing this or another Financing
Agreement.
22.2 Without prejudice
to Article 16 of these General Conditions, the Partner and the Commission shall
preserve the confidentiality of any document, information
or other material directly related to the implementation of this Financing
Agreement that is classified as confidential.
22.3 The Parties shall
obtain each other's prior written consent before publicly disclosing such information.
22.4 The Parties shall
remain bound by the confidentiality until five
years after the end of the execution period.
22.5 The Partner shall
also comply with the obligations under Article 1.7 where the Commission provides
personal data to the Partner, for example in the context of procedures and
contracts managed by the Commission.
Article
23 - Use of studies
The contract related to
any study financed under this Financing Agreement
shall include the right for the Partner and for the Commission to use the
study, to publish it and to disclose it to third parties.
Article
24 - Consultation between the Partner and the Commission
24.1 The Partner and
the Commission shall consult each other before
taking any dispute relating to the implementation or interpretation of this
Financing Agreement further pursuant to Article 28 of these
General Conditions.
24.2 Where the
Commission becomes aware of problems in carrying out procedures relating to management
of this Financing Agreement, it shall establish all necessary contacts with the
Partner to remedy the situation and take any steps that are necessary.
24.3 The consultation
may lead to the amendment, suspension or termination of this Financing Agreement.
24.4 The Commission
shall regularly inform the Partner of the implementation of activities
described in Annex I which do not fall under Parts One and Two of these General
Conditions.
Article
25 - Amendment of this Financing Agreement
25.1 Any amendment of
this Financing Agreement shall be made in writing, including an exchange of
letters.
25.2 If the request for
an amendment comes from the Partner, the latter shall submit that request to
the Commission at least three months before the
amendment is intended to enter into force, except in cases which are duly
substantiated by the Partner and accepted by the Commission. In the exceptional
cases of an adjustment of the objectives of the action and/or an increase in
the EU contribution, such request shall be submitted
at least six months before the amendment is intended to enter into force.
25.3 If the adjustment
both does not significantly affect the objectives of the activity
implemented pursuant to Part One of these General Conditions, and if it concerns
matters
of detail which do not affect the technical solution adopted, and if it does
not include the reallocation of funds, or if it concerns reallocations of funds
for an amount equivalent to the amount of the contingency reserve, the Partner
shall inform the Commission of the adjustment and
its justification in writing as soon as possible and may apply that adjustment.
25.4 The use of the
contingency reserve provided for an action shall be subject to the Commission's
prior written approval.
25.5 Where the
Commission considers that the Partner ceases to perform
satisfactorily the tasks entrusted pursuant to
Article 1.1 of these General Conditions and without prejudice to Articles 26
and 27 of these General Conditions, the Commission may decide to retake the
tasks entrusted from the Partner in order to continue the implementation of the
activities on behalí of the Partner after informing the latter in writing.
Article
26 - Suspension of this Financing Agreement
26.1 The Financing
Agreement may be suspended by the Commission in any of the following cases:
a. the Partner breaches
an obligation under this Financing Agreement.
b. the Partner breaches
any obligation set under the procedures and standard documents referred to in
Articles 1, 4 and 5 of these General Conditions.
c. the Partner fails to
observe the principles of International law, including the principles as
referred to in the United Nations Charter, the principles of democracy, the
rule of law or good governance, or respect for human rights and fundamental
freedoms
or for internationally recognised nuclear safety
standards, in serious cases of corruption or if the Partner is guilty of grave
professional misconduct proven by any justified means. Grave professional
misconduct is to be understood as any of the following:
- a violation of
applicable laws or regulations or ethical standards of the profession to which
a person or entity belongs, or
- any wrongful
conduct of a person or entity which has an impact on its professional
credibility where such conduct denotes wrongful
intent or gross negligence.
d. in cases of force
majeure, as defined below.
"Force
majeure" shall mean any unforeseeable and exceptional situation or event
beyond the parties' control which prevents either of them from fulfilling
any of their obligations, not attributable to error or negligence on their part
(or the part of their contractors, agents or employees) and proves
insurmountable in spite of all due diligence. Defects in equipment or material
or delays in making them available, labour disputes, strikes
or financial difficulties cannot be invoked as force majeure. A party shall not
be held in breach of its obligations if it is prevented from fulfilling them by
a case of force majeure of which the other party is duly informed. A party
faced with force majeure shall inform
the other party without delay, stating the nature, probable duration and
foreseeable effects of the problem, and take any measure to minimise possible
damage. Neither of the Parties shall be held liable for breach of its
obligations under this Financing Agreement if it is prevented from fulfilling
them by force majeure, provided it takes measures to minimise any possible damage.
e. in cases such as
crisis or change of position at national level, including its policy
priorities.
26.2 The Commission may
suspend this Financing Agreement without prior notice.
26.3 The Commission may
take any appropriate precautionary measure before suspension takes place.
26.4 When the
suspension is notified, the consequences for the on-going
procurement and grant contracts, contribution agreements and programme estimates
shall be indicated.
26.5 A suspension of
this Financing Agreement is without prejudice to the
suspension of payments and termination of this Financing Agreement by the
Commission in accordance with Article 18 and 27 of the General Conditions.
26.6 The parties shall
resume the implementation of the Financing Agreement once the conditions allow
with the prior written approval of the Commission. This is without prejudice to
any amendments of this Financing Agreement which may be necessary to adapt the
action to the new implementing conditions,
including, if possible, the extension of the operational implementation
period, or the termination of this Financing Agreement in accordance with
Article 27.
Article
27 - Termination of this Financing Agreement
27.1. If the issues
which led to the suspension of this Financing Agreement have not been resolved within
a maximum period of 180 days, either party may terminate this Financing
Agreement at 30 days' notice.
27.2. Without prejudice
to Article 27.1 above, if at any time, the Commission believes that the purpose
of this Financing Agreement can no longer effectively
or appropriately performed, this Financing Agreement may be
terminated by serving (30) thirty days written motivated notice.
27.3. This Financing
Agreement shall be automatically terminated, if no implementing contract has
been signed within the deadlines of Article 2.
27.4 The consequences
of such terminations on the ongoing activities may be analysed, where relevant,
and determined on a case by case basis.
Article
28 - Dispute settlement arrangements
28.1 Any dispute
concerning this Financing Agreement which cannot be settled within a six-month
period by the consultations between the parties provided for in Article 24 of
these General Conditions may be settled by arbitration
at one of the parties' request.
Where the Partner is an
ACP State or an ACP regional body or organisation, the dispute shall be
submitted, prior to arbitration and after the mutual consultations. Each party
shall designate an arbitrator within 30 days of the request for arbitration.
Failing that, either party may ask the Secretary-General of the Permanent Court
of Arbitration (The Hague) to designate a second
arbitrator. The two arbitrators shall in their tum designate a third arbitrator
within 30 days. Failing that, either party may ask the Secretary-General of the
Permanent Court of Arbitration to designate the third arbitrator.
28.2 The procedure laid
down in the 2012 Permanent Court of Arbitration
Rules for Arbitration shall apply. The arbitrators'
decisions shall be taken by a majority within a period of three months.
28.3 Each party shall
be bound to take the measures necessary for the application of the arbitrators'
decision.