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BỘ NGOẠI GIAO
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CỘNG HÒA XÃ HỘI
CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
09/2015/TB-LPQT
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Hà Nội, ngày 13
tháng 03 năm 2015
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THÔNG BÁO
VỀ
VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại khoản 3 Điều
47 của Luật Ký kết, gia nhập và thực hiện điều ước quốc tế năm 2005, Bộ Ngoại
giao trân trọng thông báo:
Hiệp định tài chính Dự án Chương trình hiện đại
hóa tài chính công của EU tại Việt Nam giữa Chính phủ nước Cộng hòa xã hội chủ
nghĩa Việt Nam và Liên minh Châu Âu ký tại Hà Nội ngày 30 tháng 12 năm
2014, có hiệu lực kể từ ngày 30 tháng 12 năm 2014.
Bộ Ngoại giao trân trọng gửi Bản sao Hiệp định theo
quy định tại Điều 68 của Luật nêu trên./.
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TL. BỘ TRƯỞNG
KT. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
PHÓ VỤ TRƯỞNG
Nguyễn Văn Ngự
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DCI-ASIE/2013/024-371
FINANCING
AGREEMENT
between
THE EUROPEAN UNION
and
THE GOVERNMENT OF THE SOCIALIST
REPUBLIC OF VIET NAM
"EU Public Finance
Modernisation Programme in Viet Nam (EU-PFMO)
FINANCING AGREEMENT
SPECIAL CONDITIONS
The European Commission, hereinafter referred to as
"the Commission", acting on behalf of the European Union, hereinafter
referred to as "the EU",
of the one part, and
The Government of the Socialist Republic of Viet
Nam, hereinafter referred to as "the Beneficiary",
of the other part,
have agreed as follows:
Article 1 - Nature of the
action
1.1. The EU agrees to finance and the Beneficiary
agrees to accept the financing of the following action:
EU Public Finance Modernisation Programme in
Viet Nam (EU-PFMO)
Ref: DCI-ASIE 2013/024371
This action is financed from the EU Budget under
the following basic act: Multiannual Financial Framework 2007-2013.
1.2. The total estimated cost of this action is EUR
12,900,000 and the maximum EU contribution to this action is set at EUR
6,400,000.
1.3. Following the signing of the Transfer
agreement between the EU and Swiss State Secretariat for Economic Affairs
(SECO), the total estimated cost of this action will be increased:
● to EUR 13,600,000 subject to the actual receipt
of EUR 700,000 (1st instalment) by the EU;
● to EUR 14,000,000 subject to the actual receipt
of EUR 400,000 (2nd (final) instalment) by the EU
The increased estimated costs of this action will
be communicated to government in writing within 30 days from actual receipts of
the respective transfers.
1.4. The Beneficiary shall not co-finance the
action.
Article 2 - Execution period
2.1. The execution period of this Financing
Agreement as defined in Article 15 of Annex II (General Conditions) shall
commence on the entry into force of this Financing Agreement and end 84 months
after this date.
2.2. The duration of the operational implementation
phase is fixed at 60 months.
2.3. The duration of the closure phase is fixed at
24 months.
Article 3 - Addresses
All communications concerning the implementation of
this Financing Agreement shall be in writing, shall refer expressly to this
action as identified in Article 1.1 of these Special Conditions and shall be
sent to the following addresses:
a) for the Commission
Delegation of the European Union to Vietnam
17th floor, Pacific Place,
83B Ly Thuong Kiet,
Ha Noi,
Viet Nam
b) for the Beneficiary
The Ministry of Finance of Viet Nam
28 Tran Hung Dao,
Ha Noi,
Viet Nam
The State Audit Office of Viet Nam
111 Tran Duy Hung,
Ha Noi
Viet Nam
Article 4 - OLAF contact point
The contact point of the Beneficiary having the
appropriate powers to cooperate directly with the European Anti-Fraud Office
(OLAF) in order to facilitate OLAF's operational activities shall be:
Government Inspectorate
Address: D29 Lot Tran Thai Tong - Yen Hoa - Cau
Giay - Hanoi
Email: [email protected]
Article 5 - Annexes
5.1. This Financing Agreement is composed of:
(a) these Special Conditions;
(b) Annex I: Technical and Administrative
Provisions, containing the detailed breakdown of the activities of this action;
(c) Annex II: General Conditions;
5.2. In the event of a conflict between, on the one
hand, the provisions of the Annexes and, on the other hand, the provisions of
these Special Conditions, the latter shall take precedence. In the event of a
conflict between, on the one hand, the provisions of Annex I (Technical and
Administrative Provisions) and, on the other hand, the provisions of Annex II
(General Conditions), the latter shall take precedence.
Article 6 - Entry into force
This Financing Agreement shall enter into force on
the date on which it is signed by the last party.
Done in four original copies in the English
language, two being handed to the Commission and two to the Beneficiary.
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FOR THE COMMISSION
Drik Meganck
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FOR THE BENEFICIARY
Dinh Tien Dung
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Director
Directorate Asia, Central Asia,
Middle East/Gulf and Pacific
Directorate-General Development and
Co-operation - EuropeAid
Brussels, Belgium
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Minister of Finance
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ANNEX I
TO FINANCING AGREEMENT NoDCI-ASIE/2013/024-371
TECHNICAL AND ADMINISTRATIVE PROVISIONS
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PARTNER COUNTRY / REGION
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VIET NAM - ASIE
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BUDGET HEADING
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EU Budget BGUE2013-19.100101
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TITLE/CRIS NR
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EU Public Finance Modernisation Programme in Viet
Nam (EU-PFMO) CRIS number: 2013/024371
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TOTAL COST
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Total estimated cost: EUR 12,900,000*
Total amount of EU budget contribution: EUR
6,400,000.
This action is co-financed in joint co-financing
by:
● (Component 1) Following the signing of the
Transfer agreement between the EU and Swiss State Secretariat for Economic
Affairs (SECO), the total estimated cost of this action will be increased:
• to EUR 13,600,000, subject to the actual receipt of EUR 700,000** (1st
instalment) by the EU;
• to EUR 14,000,000 subject to the actual receipt of EUR 400,000 (2nd
(final) instalment) by the EU.
● (Component 2) Deutsche Gesellschaft für Internationale
Zusammenarbeit (GIZ) for an amount of EUR 6,500,000***
* EU budget contribution of EUR 6,400,000 + GIZ
EUR 6,500,000
** An additional amount of EUR 100,000, not
included in the present Financing Agreement, will be transferred to the EU to
cover management costs for the SECO contribution
*** Subject to a separate Financing Agreement
between Federal Republic of Germany and Viet Nam
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AID METHOD/ MANAGEMENT MODE AND TYPE OF
FINANCING
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Project Approach
- Direct management implemented by the Commission
as the Contracting Authority (Component 1)
- Indirect management with GIZ as the Contracting
Authority (Component 2)
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DAC-CODE
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15111
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SECTOR
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Public finance management
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1. DESCRIPTION
The aim of this programme is to contribute to the
improved management and oversight of public finances in Viet Nam, by building
the organisational and operational capacity of two key institutions, namely the
Ministry of Finance (MoF) and State Audit Office of Viet Nam (SAV). In doing
so, the programme will contribute to the alleviation of poverty in Viet Nam by
reinforcing macroeconomic stability and resilience to external shock, improving
the government’s ability to implement its economic and social policies through
efficient and effective planning and execution of the state budget, as well as
improve the accountability and transparency of public service delivery.
● Component 1 of the programme is aimed at ensuring
that the activities and outputs of SAV make a significant contribution to
improving the accountability, reporting, transparency and oversight of public
financial management activities. A twinning-like arrangement will be
established with one or more European State Audit Institutions which will be given
the mandate to implement the activities under the Component with funding from
the EU, SECO (through a transfer agreement to the EU and earmarked to implement
activities under this Component) and an in-kind Government Contribution.
● Component 2 of the programme will focus on
ensuring that the legal, organisational and regulatory framework for the
planning and execution of the state budget at the central and local levels is
closer to international standards. The main counterparts within MOF will be the
State Budget Department, the Tax Policy Department, the General Department of
Taxation (GDT), the Viet Nam Customs Administration and the Financial Strategy
and Policy Institute (NIF). This component will be implemented by GiZ with
funding from EU (GiZ will manage the EU funds - indirect centralised
management), and with an in-kind Government of Viet Nam (GoV) contribution.
The programme is seen as complementary to sizeable
on going and planned budget support operations in the Health sector in Viet
Nam. To maximise the impact on poorer provinces, where the Ethnic Minorities
are prevalent, it is anticipated that the selection of pilot provinces of the
programme will dovetail those targeted under the planned Health Sector Budget
Support operation.
1.1. Objectives
The overall objective of the
programme is to contribute to poverty alleviation and inclusive growth in Viet
Nam by reinforcing macroeconomic stability, improving the government’s ability
to implement its economic and social policies and strengthening the
accountability and transparency of public finance in Viet Nam.
The purpose of the programme is to
improve the governance of public funds by strengthening the organisational and
operational capacity on public finance and audit in two key institutions, namely
the Ministry of Finance and State Audit Office of Viet Nam.
Cross-cutting issues:
- Democracy & good governance: The
programme aims to contribute to the legitimacy and assertiveness of the
National Assembly on the formulation of policy and oversight of public
resources, by providing better quality information from the State Audit Office.
The programme also foresees an improvement in the transparency of public
finances.
- Gender equality: While respecting the overarching
legal framework for public administration in Viet Nam and the broader reform
context (which is beyond the scope of this programme), the programme will seek
to address gender inequalities by the following measures:
● In dialogue with programme counterparts, the EU
Delegation will actively promote implementation of the Law on Gender Equality
(2006) and the National Strategy on Gender Equality (2011) as part of Viet
Nam’s ongoing public administration reform, with an emphasis on gender-friendly
human resource policies, such as transparent recruitment, equal access to
professional development opportunities, merit based promotion, equal mandatory
retirement ages.
● During the development of work plans and the
implementation of all project activities, the core principle of equal
opportunity to access all training and related capacity development is to be
ensured. Likewise, the programme will work with respective HR departments to
better identify “hidden” gender issues and integrate gender into their work,
where possible.
- Climate change and environmental
sustainability: In accordance with the requirements of the German Federal
Government, environmental issues and “green” practices are to be fully
mainstreamed into GIZ’s future PFM related support (co-financed by EU under
Component 2).
- Ethnic Minority issues: To maximise the
impact on poorer provinces, where ethnic minorities are prevalent, it is
anticipated that the “pilot” provinces and districts will target these
provinces and address the specific challenges faced in these provinces.
1.2. Expected results and main activities
The programme has two main components:
Component 1 will provide capacity building
support to the Supreme Audit Institution by establishing a twinning-like
arrangement with one or more European State Audit Institutions which will be
given the mandate to implement the activities under the Component with funding
from the EU, SECO (through a transfer agreement to the EU and earmarked to
implement activities under this Component) and with an in-kind GoV
contribution. Two expected results of the programme (result 1 and 2 detailed
below) will fall under this component.
Component 2 will provide capacity building
support to the Ministry of Finance through the GiZ, with funding from the EU (indirect
centralised management to GiZ and earmarked for activities under Component 2),
and with an in-kind GoV contribution. Three expected results of the programme
(result 3, 4 and 5 detailed below) will fall under this component.
The Expected results and indicative
main activities are as follows:
Expected Result 1 (Component 1 SAV): SAV's
ability to carry out its mandate is strengthened by improving the
Organisational Structure and Management of its Human Resources
Indicative activities:
● A revised organisation structure for SAV in
place which is fit for purpose and consistent with achieving the SAV mandate
efficiently and effectively;
● The formulation and implementation of human
resource strategies, plans and procedures that are aligned with SAV’s overall
strategy, and appropriate monitoring and review mechanisms are developed to
ensure effectiveness, transparency, coherence and consistency in their
implementation.
● Appropriate human resource management systems
are in place ensuring that SAV is able to attract, develop, utilise, reward and
retain the required number of staff and the right ‘mix’ of competencies,
experience and skills.
● Continuous professional development systems in
place - including Code of Ethics and Professional Conduct - ensuring all staff
are equipped with the skills and training necessary to fulfil their
professional and ethical responsibilities;
● The HR function is enhanced through the use of
computerised tools and techniques
Expected Result 2 (Component 1 SAV): The quality
of external audits of public funds is improved by using Modern Strategic Audit
Planning techniques. Audit Methodologies and Audit Activity Management
techniques
Indicative activities:
● SAV elaborates its own audit standards in
compliance with the Vietnamese legal framework, INTOSAI norms, as well as its
own audit experience.
● Guidelines, procedures, and methods are
developed, trialled (through join audits) and disseminated for all phases of
the audit process (i.e. planning, execution, reporting, and follow-up) in order
to ensure high quality financial and compliance audit activities in accordance
with the SAV standards
● Appropriate quality control systems are in
place to ensure appropriate supervision of audit teams and review of audit
work.
● Computerised audit tools and techniques are
developed to improve the structure, quality and productivity of the audit
process and an appropriate computerised database is developed to help SAV
management improve audit planning, quality control and risk assessment as well
as enhance knowledge sharing and good-practice amongst SAV staff.
● Clear, concise, accurate and objective
criteria are set for SAV audit reports, resulting in the provision of
information which contributes to more transparent public finances and effective
oversight of public financial management in Viet Nam.
Expected Result 3 (Component 2 MoF): The
legal framework for the planning and execution of the State Budget is improved
and is more aligned to international practice
Indicative activities:
● Prepare policy papers outlining good
international practice in budget planning and execution.
● Support the studies, and issue
recommendations, for revision of the State Budget Law, including provisions
expanding the scope and content of the budget, the planning calendar, the
sectoral allocation, the extent of fiscal decentralization, principles on
medium-term financial planning, and the weaknesses related to the current
practice of carrying over amounts of revenue and expenditure between fiscal
years.
● Support the studies, and issue
recommendations, for the revision of implementing guidelines and secondary
legislation, including practical arrangements for budget preparation,
execution, accounting and reporting, including the classifications used in presenting
the budget proposals and reporting.
● Support the studies, and issue
recommendations, for disclosure provisions in order to improved budget
transparency and timely release of budget documents to the public.
Expected Result 4 (Component 2 MoF): The
policy and regulatory framework for increased fiscal decentralisation is
developed and the capacity of sub-national entities to manage public funds is
strengthened, with focus on the poorest provinces, where Ethnic Minority are
prevalent
Indicative activities:
● Prepare policy papers outlining new principles
for the intergovernmental transfer system, including functions to be
transferred from line ministries to sub-national levels.
● Support the studies and issue recommendations
for a suitable framework and improved guidelines for budget entities at the
sub-national and sectoral level.
● Devise and implement a capacity development
plan for central and sub-national administrations.
● Provide training to selected officials at the
central level to manage a decentralized distribution of responsibilities for
planning, preparation and execution of the budget while retaining the central
policy role.
● Provide training to selected personnel at
lower levels of government (province, district and municipality), with focus on
Ethnic Minority Provinces, to be able to take on the increased devolved budget
responsibility and accountability on a pilot basis.
Expected Result 5 (Component 2 MoF): Budgetary
planning is more effective through the development of medium-term revenue and
fiscal forecasting, and better alignment of expenditure with national policy
priorities
Indicative activities:
● Support the improved revenue forecasts in the
state budget through better linkage to macroeconomic forecasting and better tax
analysis.
● Appropriate technical tools for medium-term
fiscal planning are introduced and applied.
● Accompany the reform of the Vietnamese
planning process, including improved linkages between budgets and
national/sector policies.
● Enhance capacity on the development of
medium-term fiscal frameworks (MTFF) for sub- national administration on a
pilot basis, with focus on the poorest provinces.
To maximise the impact on poorer provinces, where
the Ethnic Minorities are prevalent, it is anticipated that the selection of
pilot provinces and districts will dovetail with the provinces and districts
upon which the planned Health Sector Budget support operation will focus.
Progress monitoring indicators
Under each component, indicators, baselines and
targets will be defined after the inception phase of the project, estimated to
take place during the first six months of implementation. The below indicators
will be the reference framework of indicators to be detailed further during the
inception phase:
For the Specific Objective:
● Overall improvement in some relevant PEFA
indicators
● Quality of state civil servants’ performance
● MOF and SAV’s effectiveness and efficiency in
implementing PFM improved
● Revised legal framework for PFM, with new
laws, policies and regulations issued
● Availability of key budget information to the
general public and the media is improved
● Perception of SAV as an independent
institution committed to fill their mandate
● Audit reports consistent with international
standards are presented to the National Assembly and published
For Expected Result 1:
● A revised organisation structure for SAV in
place which is consistent with achieving the SAV mandate efficiently and
effectively
● Human Resource Management systems in place - including
Code of Ethics and Professional Conduct
● Training needs assessment and training plan
developed
For Expected Result 2
● Revised and improved audit planning
arrangements operational
● Programme of joint pilot financial and performance
audits agreed and pilot audits completed to international standards
● Staff working on pilot audits appropriately
trained and guidance materials prepared and disseminated
● Specialised trainers identified and trained
● Training and guidance materials updated to
reflect practical experience gained during pilot audits
For Expected Result 3
● In the revision of the State Budget Law (SBL)
and implementing regulations, the annual budget planning process is clearly
stipulated, including sufficient time for legislative oversight
● State Budget Law revision clarifies the scope
of the State Budget including fees, charges, government bonds, principal debt
servicing, etc. in line with international practice
● Mid-year assessments of budget implementation
are published
● Revised legal framework provides a good
foundation for government budgeting at both central and local level
For Expected Result 4
● Revised framework provides a good foundation
for government budgeting and at both central and local level
● Revised framework provides a good foundation
for improved cooperation and communication between the budget financial
agencies (MOF, DOF, etc.) and sector agencies
● Number of Staff in provinces appropriately
trained on fiscal decentralisation and guidance materials prepared and
disseminated
For Expected Result 5
● Budget revenue forecasts based on detailed
macroeconomic analysis
● Revenue and fiscal forecasting capacity of
government officials is enhanced.
● Sub-national MTFF piloted
● Number of Staff appropriately trained on
revenue forecasting and budgetary planning and guidance materials prepared and
disseminated
2. IMPLEMENTATION
2.1. Indicative operational implementation
period
The indicative operational implementation period of
this action is as specified in Article 2 of the Special Conditions.
2.2. Location
The programme will be implemented in the Socialist
Republic of Viet Nam.
The majority of activities will take place at the
central level (in Hanoi) with associated activities taking place at sub-national
offices in a select number of provinces. A limited number of activities may
take place outside Viet Nam, in Asia or Europe. The project teams and experts
will be based in Hanoi, and carry out missions to the selected provinces.
To maximise the impact on poorer provinces, where
the ethnic minorities are prevalent, it is the pilot provinces will dovetail
with the provinces, upon which the planned Health Sector Budget support
operation will focus.
2.3. Implementation components and modules
The programme is divided into two distinct
components, in order to respect the division between executive and legislature
branches of government and maintain the independence of the partner
institutions.
The two components will be implemented using
different modalities:
2.3.1. Component 1 - Grant: direct award
(direct management implemented by the Commission as the Contracting Authority)
to “Support State Audit of Viet Nam to improve the accountability, reporting,
transparency and oversight of public financial management activities”
(a) Objectives of the grant, fields of
intervention, priorities of the year and expected results
Component 1 of the project will enhance the
capacity of SAV to provide an independent opinion on financial management
issues across the public sector and communicate any management deficiencies in
internal control that the auditor has identified to those charged with
governance. The project will also aim to provide SAV with the skills and
practical experience necessary to develop its audit capacity in line with
INTOSAI (International Organisation of Supreme Audit Institutions) standards,
with a view to ultimately providing the National Assembly with the quality
information it needs to undertake an appropriate oversight function.
The expected results can be seen in Section 1.2
(Expected Result 1 and 2)
(b) Justification of a direct grant
Under the responsibility of the Commission, the
recourse to an award of a grant without a call for proposals is justified
because:
● As partnership with Supreme Audit Institutions
(SAI) through peer-to-peer support has been specifically requested by the
Auditor General and senior officials of SAV and is in line with the Backbone
Strategy Annex 6;
● On account of the action requiring specific
technical competence, knowledge of SAI functioning and high degree of
specialisation, generally limited to Supreme Audit Institutions;
● A Service contract of this nature is not likely
to succeed given that a number of European SAIs would not be in a position to
sign a service contract and this would therefore limit competition amongst
European SAIs[1];
● Due to the sensitive nature of the work, which
may require access to SAV’s client auditees and/or confidential/sensitive
documentation, the partnership with SAI is more likely to allow the project to
engage more closely in SAV’s core activities and field-work, hence increasing
the impact of the capacity building;
● To enhance active cooperation between the State
Audit Office of Viet Nam and other Supreme Audit Institutions, in accordance
with pillar five of SAV's Development Action Plan, and to ensure sustainability
of action beyond the lifecycle of the project through the establishment of
support and information-sharing networks, as requested by SAV;
● To ensure a maximum degree of EU visibility
through the use of a consortium of Supreme Audit Institutions led by an EU
Member State SAI.
(c) Eligibility conditions
A direct grant contract between the European Union,
represented by the Commission and one or more Supreme Audit Institutions is
envisaged under this component. Provided that it is led by an EU Supreme Audit
Institution, the partnership may include:
● Supreme Audit Institutions or Regional Public
Sector External Audit bodies from EU Member States
● Supreme Audit Institutions from non-EU European
States
● Supreme Audit Institutions from Asia
(d) Essential selection and award criteria
The essential selection criteria are financial and
operational capacity of the applicant.
The essential award criteria are relevance of the
proposed action to the objectives of the call; design, effectiveness,
feasibility, sustainability and cost-effectiveness of the action.
(e) Maximum rate of co-financing
The maximum possible rate of co-financing for this
grant is 100%.
The maximum possible rate of co-financing may be up
to 100 % in accordance with Article 192 of Regulation (EU, Euratom) No 966/2012
if full funding is essential for the action to be carried out. The essentiality
of full funding will be justified by the Commission in the award decision, in
respect of the principles of equal treatment and sound financial management.
(f) Indicative trimester to contact the potential
direct grant beneficiary
Second trimester of 2014
(g) Exception to the non-retroactivity of costs
Not applicable.
2.3.2. Component 2 - Indirect management with
GIZ as the Contracting Authority to “Support the Ministry of Finance to improve
the legal, organisational and regulatory framework for the planning and
execution of the state budget at the central and local levels"
This action with the objective of Supporting the
Ministry of Finance to improve the legal, organisational and regulatory
framework for the planning and execution of the state budget at the central and
local levels will be implemented in indirect management with Deutsche
Gesellschaft für Internationale Zusammenarbeit (GIZ) in accordance with Article
58(1)(c) of Regulation (EU, Euratom) No 966/2012. This implementation is
justified because GIZ has a long-standing and solid track record of cooperation
and support to the Ministry of Finance, which has allowed gaining trust and to
access higher-level policy makers for policy dialogue with the Government. The
project component, by delegating the management of funds to GIZ, will be able
to engage at a higher level and in a more effective way on some key policy
reform issues (notably State Budget legislation) which are targeted by the
project. It will also ensure aid effectiveness by reducing the burden and transaction
costs of a separate EU intervention, and is in line with the EU Code of Conduct
and Division of Labour.
The entrusted entity will be responsible to the EC
for all project technical, project management and budget matters.
GIZ will be responsible to the EC for all programme
technical, programme management and budget matters. It will be overall
responsible for the management of the funds, sub-contracting, ensure the direct
relations with the programme counterparts, and submit the regular progress reports.
While GIZ will partially sub-contract specific activities under their
management, it will also directly implement part of the action by recruiting
temporary staff specifically for the assignment, as this provides direct value
added and higher likelihood of impact for the component. Appropriate provisions
will be included in the delegation agreement.
The expected results can be seen in Section 1.2.
(Expected result 3, 4 and 5)
The change of management mode from indirect to
direct management, whether partially or entirely is not considered a
substantial change.
2.3.3. Procurement (direct management,
implemented by the Commission as the Contracting Authority)
At the project level, external monitoring and
evaluation, specific communication and visibility actions, as well as audit
assignments, managed by the European Commission are foreseen.
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Subject in generic terms, if possible
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Type (works, supplies, services)
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Indicative number of contracts
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Indicative trimester of launch of the procedure
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Audit / Monitoring and Evaluation (Project level)
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Services
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3
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Mid-term and ex-post
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Visibility and Information (Project level)
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Services
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1
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Entire lifecycle
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2.4. 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 origin of supplies purchased as established in the basic act shall
apply.
The Commission may extend the geographical
eligibility in accordance with Article 9(2b) of Regulation (EU) No 236/2014
(CIR) on the basis of urgency or of the unavailability of products and services
in the markets of the countries concerned, or other duly substantiated cases
where the eligibility rules would make the realisation of this action
impossible or exceedingly difficult.
2.5. Indicative budget
The total budget for the operation is EUR
12,900,000. Following the signing of a transfer Agreement between SECO and the
EU, the total budget will be increased to EUR 13,600,000 subject to the actual
receipt of EUR 700,000 (1st instalment) by the EU and further,
increased to EUR 14,000,000 subject to actual receipt of 2nd (final)
instalment of EUR 400,000) by the EU, with an EU contribution amounting to EUR
6,400,000.00.
Component 1 (total amount EUR 3,900,000, of which
EU contribution is EUR 2,900,000): co- financing between EU and SECO is
foreseen. A financial contribution of EUR 1,100,000 is to be made by SECO, via
the signature of a transfer agreement with the EU in two instalments of EUR
700,000 and 400,000 respectively.
An additional amount of EUR 100,000, not included
in the present Financing Agreement, will be transferred to the EU to cover
management costs for the SECO contribution
NOTE: Upon receipt of each instalments, the
Government of Vietnam will be informed-by-the EU of the increased total budget
of the operation to EUR 13,600,000 and EUR 14,000,000, by means of letters.
In addition, the project counterpart, SAV, will
provide for an in-kind contribution (estimated value of EUR 300,000) to cover
costs related to seconded staff and a part of the operating costs, including
office space and office running costs.
Component 2 (total amount is EUR 3,000,000): The
EU’s contribution, outlined in this Financing Agreement, is via a delegated
cooperation agreement and will be earmarked for specific activities under the
PFM component of the GIZ programme. The EU contribution will support a specific
component of the GIZ “Programme in Support of Sustainable Development in Viet
Nam”, which is to be co-financed by the German government with an estimated EUR
6,500,000.00 from December 2014 to November 2017.
NOTE: The contribution of the German
government is to be covered by a separate, bilateral Financing Agreement
between the governments of Germany and Viet Nam.
In addition, the project counterpart, MOF, will
provide for an in-kind contribution (estimated value of EUR 300,000) to cover
costs related to seconded staff and a part of the operating costs, including
office space and office running costs.
Additional amounts (total EUR 600,000, of which EU
contribution is EUR 500,000 and the contribution of SECO is EUR 100,000) are
foreseen for independent evaluation and audit, communication and visibility
actions and contingencies. These amounts will be directly managed by the EU
Delegation.
|
|
EU
contribution
|
GIZ
contribution
**
|
Total
|
SECO contribution***
|
|
|
|
|
|
1st instalment
|
2nd instalment
|
Total
|
Total
|
|
Categories
|
6,400,000
|
6,500,000
|
12,900,000
|
700,000
|
400,000
|
1,100,000
|
14,000,000
|
|
Component 1:
|
2,900,000
|
|
2,900,000
|
600,00
|
400,00
|
1,000,000
|
3,900,000
|
|
Grants (direct
centralised) to Support SAV to improve the accountability, reporting,
transparency and oversight of public financial management activities
|
2,900,000
|
|
2,900,000
|
|
|
1,000,000
|
3,900,000
|
|
Component 2:
|
3,000,000
|
6,500,000
|
9,500,000
|
|
|
|
9,500,000
|
|
Indirect
centralised management with GIZ to Support the MOF to improve the legal,
organisational and regulatory framework for the planning and execution of the
state budget at the central and local levels
|
3,000,000
|
6,500,000
|
9,500,000
|
|
|
|
9,500,000
|
|
Procurement
|
300,000
|
|
300,000
|
100,000
|
|
100,000
|
400,000
|
|
Communication/
Visibility
|
150,000
|
|
150,000
|
50,000
|
|
50,000
|
200,000
|
|
Monitoring,
External Evaluation and Audit
|
150,000
|
|
150,000
|
50,000
|
|
50.000
|
200,000
|
|
Contingencies*
|
200,000
|
|
200,000
|
|
|
|
200,000
|
|
TOTAL****
|
6,400,000
|
6,500,000
|
12,900,000
|
700,000
|
400,000
|
1,100,000
|
14,000,000
|
* The European Union's contribution to the
"Contingencies" heading may be used only with prior agreement of the
Commission.
** Subject to a separate Financing Agreement
between the governments of Germany and Viet Nam
*** The total budget for the operation is EUR
12,900,000 (following the signing of a TA with SECO, increased to EUR
13,600,000 following actual receipt of 1st instalment of EUR 700,000 by the EU
and further increased to EUR 14,000,000 following actual receipt of 2nd (final)
instalment of EUR 400,000 by the EU),
**** The State Audit of Viet Nam and the Ministry
of Finance will provide each an in-kind contribution (estimated value of EUR
300,000)
2.6. Performance monitoring
The project will first and foremost rely on
existing monitoring procedures by the Government of Viet Nam and the
implementing institutions to monitor performance and progress (i.e. reporting
pursuant to Viet Nam's existing regulations). At the purpose level, monitoring
of progress, outcomes and impact will be based on reference documents such as:
● Government, National Assembly and Communist Party
reports, including:
o Reporting on progress against the SEDP;
o Reporting on progress in economic management;
o Reporting on progress against corruption
o State Audited Accounts and Annual auditing
reports
● Independent diagnostic work, including:
o Repeal PEFA Assessment (expected at the end of
the project lifecycle)
Performance indicators at objective level will be
based on the Ministry of Finance’s Financial Sector Development Strategy to
2020 and The State Audit Office’s Development Strategy to 2020, behind which
the EU-PFMO is fully aligned.
Performance indicators at the activity level are to
be drawn from the respective medium-term Development Action Plans of MOF and
SAV. In accordance with existing internal procedures, both MOF and SAV will
report on progress in the implementation of their respective Development Action
Plans on an annual basis.
At results and activity level, the project will
rely on internal institutional reporting systems, as well as implementation
reports by the grantees (Component 1) and the Delegate, GIZ (Component 2).
2.7. Donor Coordination
Viet Nam has a developed architecture for promoting
aid effectiveness, including permanent dialogue structures, ad-hoc thematic
working groups and regular reporting and review processes.
During implementation, synchronisation between the
EU and other donors is to take place formally - within the PFM donor
coordination group and the PFM partnership group - as well as informally
through ad-hoc meetings and consultations in order to avoid potential
overlapping and duplication.
2.8. Communication and visibility
Communication and visibility of the EU is a legal
obligation for all external actions funded by the EU.
This action shall contain communication and
visibility measures which shall be based on a specific Communication and
Visibility Plan for the Action, to be elaborated before the start of
implementation and supported with the budget indicated in section 2.5 above.
The measures shall be implemented either (a) by the
Commission, and/or (b) by the partner country. Appropriate contractual
obligations shall be included in, respectively, procurement and grant
contracts.
The Communication and Visibility Manual for
European Union External Action shall be used to establish the Communication and
Visibility Plan of the Action and the appropriate contractual obligations.
2.9. Organisational set-up and responsibilities
The programme is divided into two distinct
components, in order to respect the division between executive and legislature
branches of government and maintain the independence of the partner
institutions. The two components will be implemented using parallel
organisational set-ups and responsibilities, which will be further defined and
clarified during start-up:
Component 1: “Support State Audit of Viet Nam to
improve the accountability, reporting, transparency and oversight of public
financial management activities”
The project will be implemented by the European
Commission, through its Delegation in Viet Nam.
It is envisaged under this component to have a
direct grant contract between the European Union, represented by the Commission
and a consortium of Supreme Audit Institutions. All contracts and payments are
made by the Commission, on behalf of the Beneficiary.
A steering committee shall be set up to oversee and
validate the overall direction and policy of the project, including the
approval of annual work plans and budgets. The project steering committee shall
meet twice a year.
The project steering committee shall be chaired by
a Senior SAV official and made up of:
● Senior officials of SAV
● The Project Team leader (from Consortium of SAI)
● a representative of the EU Delegation to Viet Nam
● a representative of SECO
Component 2: “Support the Ministry of Finance to
improve the legal, organisational and regulatory framework for the planning and
execution of the state budget at the central and local levels”
This action is to be implemented in indirect
centralised management with Deutsche Gesellschaft für Internationale
Zusammenarbeit (GIZ) in accordance with Article 54(2)(c) of Financial
Regulation 1605/2002.
The tasks entrusted to this body shall give rise to
the signature of a delegation agreement between the Commission and the delegate
body, in addition to this financing agreement.
A committee shall be set up to oversee and validate
the overall direction of the project, including the approval of annual work
plans and activities. The committee shall meet twice a year.
The committee shall be chaired by a senior official
from the Ministry of Finance and made up of:
● Senior officials of the Ministry of Finance
● Representatives of GIZ, led by the Project
Director
● A representative of the EU Delegation to Viet Nam
In due consideration of the principle of ownership,
the European Commission reserves its right to change the delegated body
indicated above or the scope of the delegation, without this necessarily
requiring an amendment to the financing agreement. In that case, it shall
consult the Beneficiary on this change and notify to it the name of the new
delegated body and/or the scope of the task(s) delegated to it.
2.10. Reporting
Reporting by the Grantee and the Delegate is to be
carried out pursuant to the rules and procedures set out in the practical
guide.
The State Audit Office will be responsible for
preparing annual reports on the implementation of its Development Action Plan,
and the six-monthly reports on project progress to be discussed at the Steering
Commitees.
The Ministry of Finance will be responsible for
preparing annual reports on the implementation of the Medium-Term Action Plan
(MTAP), and the six-monthly reports on project progress to be discussed at the
Steering Commitees.
3. MONITORING, EVALUATION AND AUDIT
3.1. Monitoring
(a) Day-to-day technical and financial monitoring
will be a continuous process as part of the Beneficiary responsibilities. To
this aim, the Beneficiary shall establish a permanent internal, technical and
financial monitoring system for the project, which will be used to elaborate
the progress reports.
(b) Independent consultants recruited directly by
the Commission (or the responsible body to which the monitoring task has been
delegated) on specifically established terms of reference may carry out
external monitoring ROM system, which in principle will start from the sixth
month of project activities, and will be finalised at the latest 6 months
before the end of the operational implementation phase.
3.2. Evaluation
a) The Commission may carry out external
evaluations [via independent consultants], as follows:
(a) a mid-term evaluation mission;
(b) a final evaluation, at the beginning of the
closing phase;
(c) an ex-post evaluation.
The Beneficiary and the Commission shall analyse
the conclusions and recommendations of the mid-term evaluation and jointly
decide on the follow-up action to be taken and any adjustments necessary,
including, if indicated, the reorientation of the project. The reports of the
other evaluation and monitoring missions will be given to the Beneficiary, in
order to take into account any recommendations that may result from such
missions.
b) The Commission shall inform the Beneficiary at
least one month in advance of the dates foreseen for the external missions. The
Beneficiary shall collaborate efficiently and effectively with the monitoring
and/or evaluation experts, and inter alia provide them with all necessary
information and documentation, as well as access to the project premises and
activities.
3.3. Audit
(a) The Commission shall appoint, in accordance
with EU procurement rules, an internationally recognised external auditor. In
the context of Regional Blending Facilities the auditor is appointed by the
Lead Financing Institution to which the EC has entrusted its residual tasks.
The auditor's role shall include:
1. Monitoring the project’s expenditure and
auditing on a 12 month basis the project’s accounts for submission to the
Commission.
2. In case of programme estimates, ensuring that
the segregation of duties between the Authorising Officer and the Accounting
Officer is in place and respected and that the monitoring of expenditure
complies with the rules and procedures established in the practical guide to
procedures for programme estimates.
(b) In the case where the audits carried out
identify non-eligible expenditure, the following procedure is applicable:
1. The Commission shall send the Beneficiary a
report concerning the non-eligible expenses;
2. The Beneficiary shall submit its comments to the
Commission within one month following its reception of the report;
3. The Commission will communicate its final
decision concerning the non-eligible expenses to the Beneficiary;
4. The Beneficiary shall transfer the non-eligible amount
to the project account within 45 days following communication of the
Commission’s final decision. In the case that this deadline is not respected,
the Commission may withhold this amount from future payments to the project
account.
4. ANNEXES
Logframe
Financing Agreement - Annex II - General Conditions
ANNEX II
GENERAL CONDITIONS
Contents
Part One: Provisions Applicable to Activities
for which the Beneficiary is the Contracting Authority
Article 1 - General principles
Article 2 - Deadline for the signature of the
procurement and grant contracts by the Beneficiary
Article 3 - Visibility
Article 4 - Provisions on payments made by the
Commission to contractors and grant beneficiaries on behalf of the Beneficiary
Article 5 - Programme estimate
Article 6 - Payments to the Beneficiary
implementing the imprest component of a programme estimate
Article 7 - Publication of information on
procurement and grant contracts by the Beneficiary
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 in direct management
Article 16 - Verifications and checks by the
Commission, the European Anti-Fraud Office (OLAF) and the European Court of
Auditors
Article 17 - Tasks of the Beneficiary in fighting
irregularities, fraud and corruption
Article 18 - Suspension of payments
Article 19 - Allocation of funds recovered by the
Commission to the action
Article 20 - Right of establishment and residence
Article 21 - Tax and customs provisions
Article 22 - Confidentiality
Article 23 - Use of studies
Article 24 - Consultation between the Beneficiary
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 Beneficiary is the
Contracting Authority
Article 1 - General principles
1.1 The purpose of Part One is to define the
budget-implementation tasks entrusted to the Beneficiary in indirect management
as described in Annex I (Technical and Administrative Provisions) and to define
the rights and obligations of the Beneficiary and of the Commission in carrying
out these tasks.
Part One shall apply to the budget-implementation
tasks related to the EU contribution alone or in combination with the funds of
the Beneficiary or of a third party where such funds are implemented in joint
co-financing, i.e. where they are pooled. These tasks encompass the
implementation by the Beneficiary as contracting authority of procurement and grant
award procedures, and the awarding, signing and enforcing the resulting
procurement and grant contracts.
As a rule, the Commission shall carry out related
payments to contractors and grant beneficiaries. However, the Beneficiary shall
carry out certain payments including to its own staff on the basis of a
programme estimate as defined in Article 5 of these General Conditions.
Where the Beneficiary is an ACP State and the
action is financed by the EDF pursuant to Article 1.1 of the Special
Conditions, the tasks entrusted shall be those listed in points (c) to (k) of
the sixth subparagraph of Article 35(1) and in Article 35(2) of Annex IV to the
ACP-EC Partnership Agreement.
Where the Beneficiary is an OCT and the action is
financed by the EDF pursuant to Article 1.1 of the Special Conditions, the
exercise of tasks entrusted shall also respect the conditions of Article 86(3)
of Council Decision 2013/755/EU of 25 November 2013 on The association of the
overseas countries and territories with the European Union (Overseas
Association Decision).
1.2 The Beneficiary 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 budget-implementation tasks in
the context of the implementation of a programme estimate referred to in
Article 5 of these General Conditions. 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 tasks identified in Article 1.1 of these
General Conditions shall be carried out by the Beneficiary in accordance with
the procedures and standard documents laid down and published by the Commission
for the award of procurement and grant contracts, in force at the time of the
launch of the procedure in question.
1.4 The Beneficiary shall set up and ensure the
functioning of an effective and efficient internal control system. The
Beneficiary shall respect the principles of sound financial management,
transparency and non-discrimination 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 shared interest with a tenderer or
applicant, or contractor or grant beneficiary.
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 Beneficiary carries out
payments pursuant to a programme estimate, the functions of the authorising and
accounting officers shall be segregated and mutually incompatible and the
Beneficiary shall operate an accounting system that provides accurate,
complete, reliable and timely information. The Beneficiary shall also
reasonably protect data enabling the identification of a natural person
(personal data).
1.5 Where made a part of this Financing Agreement
pursuant to Article 5 of the Special Conditions, the report on the
implementation of the tasks entrusted to the Beneficiary shall follow the
template provided in Annex III. However, where programme estimates are used
pursuant to Article 5 of these General Conditions, the report shall follow the
requirements stipulated in the standard documents referred to in Article 5.3 of
these General Conditions. Where made a part of this Financing Agreement
pursuant to Article 5 of the special Conditions, the management declaration
shall follow the template provided in Annex IV.
1.6 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.
1.7 The Beneficiary shall conduct the procurement and
grant award procedures and conclude the resulting contracts in the language of
this Financing Agreement.
1.8 The Beneficiary shall inform the Commission
when a candidate, tenderer or applicant is in a situation of exclusion from
participating in procurement and grant award procedures referred to in Article
1.3 and when a contractor or grant beneficiary has been guilty of making false
declarations or has made substantial errors or committed irregularities and
fraud, or has been found in serious breach of its contractual obligations.
In such cases, without prejudice to the power of
the Commission to take measures against such entity according to the applicable
Financial Regulation, financial penalties mentioned in the provisions on
administrative and financial penalties of the General Conditions of procurement
and grant contracts concluded by the Beneficiary pursuant to standard documents
referred to in Article 1.3 may be imposed on the contractors and grant
beneficiaries by the Beneficiary if this is allowed by its national law. Such
financial penalties shall be imposed following an adversarial procedure
ensuring the right of defence of the contractor or grant beneficiary.
The Beneficiary may take into account, as
appropriate and on its own responsibility the information contained in the
Central Exclusion Database, when awarding procurement and grant contracts.
Access to the information can be provided through the liaison point(s) or via
consultation to the Commission1 (European
Commission, Directorate- General for Budget, Accounting Officer of the
Commission, BRE2-13/505, B-1049 Brussels, Belgium and by email to
[email protected] in copy to the Commission address identified in
Article 3 of the Special Conditions). The Commission may refuse payments to a
contractor or grant beneficiary in an exclusion situation.
1.9. The Beneficiary 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 cost eligibility in Article 6 of the Special
Conditions for five years as from the end of the execution period, in
particular, the following:
Procurement procedures:
a. Forecast notice with proof of publication of the
procurement notice and any corrigenda
b. Appointment of shortlist panel
c. Shortlist report (incl. annexes) and
applications
d. Proof of publication of the shortlist notice
e. Letters to non-shortlisted candidates
f. Invitation to tender or equivalent
g. Tender dossier including annexes,
clarifications, minutes of the meetings, proof of publication
h. Appointment of the evaluation committee
i. Tender opening report, including annexes
j. Evaluation / negotiation report, including
annexes and bids received2
k. Notification letter
l. Supporting documents
m. Cover letter for submission of contract
n. Letters to unsuccessful candidates
o. Award / cancellation notice, including proof of
publication
p. Signed contracts, amendments, riders 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 received3
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
l. Award/cancellation notice with proof of publication
j. Signed contracts, amendments, riders and
relevant correspondence
In case of programme estimates: In addition to the
above, all relevant documentation relating to payments, recoveries and
operating costs.
1.10. The Beneficiary shall ensure an appropriate
protection of personal data. Personal data means any information relating to an
identified or identifiable natural person. Any 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 Beneficiary and
shall only be done as far as it is necessary for the implementation of this
Financing Agreement.
In particular, the Beneficiary 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 the
procurement and grant contracts by the Beneficiary
2.1 The procurement and grant contracts shall be
duly signed by both parties during the operational implementation phase of this
Financing Agreement and at the latest within three years of the entry into
force of this Financing Agreement. Additional procurement and grant contracts
resulting from an amendment of this Financing Agreement that adds new
activities and increases the EU contribution shall be duly signed by both
parties during the operational implementation phase of this Financing Agreement
and at the latest within three years of the entry into force of that amendment
of this Financing Agreement.
Where this action is financed from the EDF,
programme estimates referred to in Article 5 of these General Conditions shall
also be endorsed by the Commission within that three-year deadline.
That three-year deadline may not be extended,
except when the action is financed by the EDF. The extension shall be
stipulated in Article 6 of the Special Conditions.
2.2. However, the following transactions may be
signed at any time during the operational implementation phase.
a. procurement and grant contracts implementing the
imprest component of a programme estimate financed under the EDF;
b. amendments to procurement and grant contracts
already signed;
c. individual procurement contracts to be concluded
after early termination of an existing procurement contract;
d. amendment of this Financing Agreement resulting
from the change of the entity charged with the entrusted tasks, referred to in
Article 1.2 of these General Conditions; the amendment shall also stipulate a
new period within which procurement and grant contracts shall be concluded by
this new entity in accordance with Article 2.1:
e. Contracts relating to audit and evaluation,
which may also be signed during the closure phase.
2.3 After expiry of the three years of the entry
into force of this Financing Agreement, any financial balance for activities
entrusted to the Beneficiary for which contracts have not been duly signed
shall be decommitted by the Commission.
2.4 Article 2.3 shall not apply to any financial
balance of the contingency reserve or to funds available again after early
termination of a contract. This balance or funds may be used to finance
contracts referred to in Article 2.2.
2.5 A procurement or grant contract which has not
given rise to any payment within three years of its signature shall be
automatically terminated and its funding shall be decommitted.
Article 3 - Visibility
The Beneficiary 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. These measures shall either be defined
in Annex I (Technical and Administrative Provisions) or shall be agreed later
between the Beneficiary and the Commission.
These communication and information measures shall
comply with the Communications and Visibility Manual for EU External Actions
laid down and published by the Commission, in force at the time of the
measures.
Article 4 - Provisions on payments made by the
Commission to contractors and grant beneficiaries on behalf of the Beneficiary
4.1. The Beneficiary 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) for pre-financing specified in the procurement
or grant contract:
(i) 15 calendar days for an action financed under
the Budget;
(ii) 30 calendar days for an action financed under
the EDF;
b) 45 calendar days for other payments.
The Commission shall act in accordance with
Articles 4.6 and 4.7 within the period amounting to the time-limit for payment
provided for in the procurement and grant contracts minus the above deadlines.
4.2 Upon receipt of a payment request from a
contractor or grant beneficiary, the Beneficiary 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 concerned, the amount, the currency and the date. If
the Beneficiary 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 Beneficiary shall also
inform the Commission of this rejection and its reasons.
4.3 Upon receipt of an admissible payment request,
the Beneficiary 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 Beneficiary 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 Beneficiary shall examine this reply or action
pursuant to this paragraph.
4.4 If the Commission disagrees with the
Beneficiary's conclusion that a payment is not due, it shall inform the
Beneficiary thereof. The Beneficiary 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 Beneficiary shall also inform the
Commission. The Beneficiary shall further proceed as provided for in Article
4.5.
If disagreement between the Beneficiary 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 Beneficiary and the contractor or grant beneficiary of this partial
payment.
4.5 Where the Beneficiary 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.
4.6 After transfer of the payment request pursuant
to Article 4.5, if the Commission concludes that the payment is not due, it
shall inform the Beneficiary 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 Beneficiary in accordance with Article 4.3.
4.7. Where the Beneficiary and the Commission
concludes that the payment is due, the Commission shall execute the payment.
4.8. Where late-payment interest is due to the
contractor or grant beneficiary, it shall be allocated between the Beneficiary
and the Commission pro rata to the days of delay in excess of the time limits
stipulated in Article 4.1, subject to the following:
(a) the number of days used by the Beneficiary is
calculated from the date of the registration of an admissible payment request
referred to in Article 4.3 to the date of the transfer of the request to the
Commission referred to in Article 4.5 and from the date of information by the
Commission referred to Article 4.6 to the following transfer of the request to
the Commission referred to in Article 4.5. 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
Beneficiary referred to in Article 4.5 to the date of payment and from the date
of transfer to the date of informing the Beneficiary pursuant to Article 4.6.
4.9 Any circumstances unforeseen by the above
procedure shall be solved in a spirit of cooperation between the Beneficiary
and the Commission by analogy to the above provisions while respecting the
contractual relations of the Beneficiary 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.
Article 5 - Programme estimate
5.1 - When the Beneficiary is additionally
entrusted with making payments to contractors, grant beneficiaries and/or in
the context of direct labour, it shall do so on the basis of a programme
estimate agreed by the Beneficiary and the Commission beforehand.
5.2 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 activities
over a specified period by means of procurement, grants and/or direct labour.
The programme estimate shall have an imprest
component and a component of specific commitments.
Under the imprest component of a programme
estimate, the Beneficiary shall be entrusted with implementing the procurement
and grant award procedures and carry out the related payments and the payments
for direct labour.
Under the component for specific commitments, the
Beneficiary shall carry out tasks as referred to in the second subparagraph of
Article 1.1 of these General Conditions; the Commission shall carry out related
payment to contractors and grant beneficiaries. Certain identified activities,
including audits, evaluations and recourse to the framework contract, shall be
implemented directly by the Commission.
Where the action is financed under the EDF, the
tasks described in Annex I may be implemented by a body governed by private law
on the basis of a service contract, awarded by the Beneficiary in accordance
with the procedures and standard documents referred to in Article 1.3.
5.3 All programme estimates implementing the
Financing Agreement must respect the procedures and standard documents
concerning programme estimates and laid down by the Commission, in force at the
time of the adoption of the programme estimate in question.
Ordinary operating costs incurred by the entity in
charge of the tasks entrusted to the Beneficiary referred to in Articles 1.1
and 5.1 of these General Conditions shall be eligible for EU financing under
the imprest component of a programme estimate 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. These costs
are incurred in carrying out budget-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 purchase of vehicles or of any other equipment, or any
operational activity. Article 1.3 and 2.1 of these General Conditions shall not
apply to these ordinary operating costs.
5.4 The Beneficiary shall submit to the Commission
annually, by the date stipulated in Article 6 of the Special Conditions, a
management declaration signed by the Beneficiary at the appropriate level using
the template in Annex IV.
Article 6 - Payments to the Beneficiary
implementing the imprest component of a programme estimate
6.1 The Commission shall transfer funds no later
than 30 calendar days after the date on which it registers an admissible
payment request for pre-financing from the Beneficiary which contains the date,
the amount and the currency; the time-limit shall be 90 calendar days for a
payment request for replenishment or closure. 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 Beneficiary, 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 Beneficiary
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.
6.2 The Commission shall make payments to a bank
account opened at a financial institution accepted by the Commission.
6.3 The Beneficiary shall guarantee that funds paid
by the Commission can be identified in this bank account.
6.4 Transfers in euro shall, if necessary, be
converted into the Beneficiary's national currency as and when payments have to
be made by the Beneficiary, at the bank rate in force on the day of payment by
the Beneficiary.
6.5 The imprest component of a programme estimate
which has not given rise to any payment to the Beneficiary within three years
of the conclusion of the programme estimate shall be automatically terminated,
and the corresponding committed amount shall be decommitted.
Article 7 - Publication of information on
procurement and grant contracts by the Beneficiary
7.1 The Beneficiary 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 programme
estimates referred 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 Beneficiary.
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 Scholarships to, and direct financial support
of natural persons most in need shall be published anonymously and in an
accumulated manner by category of expenditure.
Otherwise, 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 Beneficiary 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 approval 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 Beneficiary and the contractor or grant
beneficiary) during the reporting period shall take place within six months
following 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 Beneficiary shall present a list with such justifications to
the Commission which must grant prior approval to such publication waiver.
7.5 Where the Commission carries out payments to
contractors and grant beneficiaries, it shall ensure the publication of
information on procurement and grant contracts according to its rules.
Article 8 - Recovery of funds
8.1 The Beneficiary shall take any appropriate
measures to recover the funds unduly paid.
Amounts unduly paid and recovered by the
Beneficiary, amounts from financial guarantees lodged on the basis of
procurement and grant award procedures, amounts from financial penalties
imposed by the Beneficiary on candidates, tenderers, applicants, contractors or
grant beneficiaries, as well as damages awarded to the Beneficiary shall be
returned to the Commission.
8.2 Without prejudice to the above responsibility
of the Beneficiary to recover funds unduly paid, the Beneficiary 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 and grant contracts financed
under Part One and proceed to its recovery by any means on behalf of the
Beneficiary, including by offsetting the amount owed by the contractor or grant
beneficiary against any of his claims against the EU and by forced recovery
before the competent courts.
8.3 To this end, the Beneficiary shall provide to
the Commission all the documentation and information necessary. The Beneficiary
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
Beneficiary is the contracting authority or by offsetting the funds to be
recovered against any amounts owed to the contractor or grant beneficiary by
the Beneficiary 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 Beneficiary
that the recovery proceedings have been initiated (including where necessary
before a national court).
8.5 Where the Beneficiary is a sub-delegatee of an
entity with which the Commission concluded a delegation agreement, the
Commission may recover funds from the Beneficiary 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 Beneficiary 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 Beneficiary to
be justified in whole or in part. The financial consequences may be borne by
the EU only where the Commission has given its prior approval. Such prior
approval 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 Beneficiary 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 Beneficiary, the
Beneficiary shall immediately inform the Commission and seek its prior approval
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 Beneficiary’s own resources or
other resources, the Commission may, at the Beneficiary'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 Beneficiary and the EU commit to engage in a
regular constructive dialogue at the appropriate level on the implementation of
this Financing Agreement.
Where the Beneficiary is an ACP State and this
action is financed under the EDF pursuant to Article 1.1 of the Special
Conditions, this dialogue may form a part of the broader political dialogue
provided for in Article 8 of 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 Beneficiary thereof without
undue delay.
12.2 Disbursement requests submitted by the
Beneficiary shall be eligible for EU financing provided that they are in
accordance with the provisions set out in Annex 1 (Technical and Administrative
Provisions) and that they are submitted during the operational implementation
phase.
12.3 The Beneficiary 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 Beneficiary 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 Beneficiary, in particular if the
Beneficiary 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 in direct management
15.1 The execution period of this Financing
Agreement shall comprise two phases:
- an operational implementation phase, in which the
principal operational activities of the action are carried out. This phase
shall start on the entry into force of this Financing Agreement and end with
the opening of the closure phase;
- a closure phase, during which final audits and
evaluation are carried out and contracts and programme estimates for the
implementation of this Financing Agreement are technically and financially
closed. The duration of this phase is stipulated in Article 2.3 of the Special
Conditions. It starts after the end of the operational implementation phase.
Only expenditure necessary for the closure shall be eligible.
These periods shall be reflected in the agreements
to be concluded by the Beneficiary and by the Commission in the implementation
of this Financing Agreement, in particular in delegation agreements and
procurement and grant contracts.
15.2 Costs related to the principal operational
activities shall be eligible for EU financing only if they have been incurred
during the operational implementation phase; the costs incurred by the
Beneficiary before the entry into force of this Financing Agreement shall not
be eligible for EU financing unless provided otherwise in Article 6 of the Special
Conditions. Costs related to final audits and evaluation, and to closure
activities shall be eligible until the end of the closure phase.
15.3 Any balance remaining from the EU contribution
will 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 phase
and correlatively of the execution period. If the extension is requested by the
Beneficiary, the request must be made at least three months before the end of
the operational implementation phase and approved by the Commission before that
end. This Financing Agreement shall be amended accordingly.
15.5 In exceptional and duly substantiated cases,
and after the end of the operational implementation phase, a request may be
made for the extension of the closure phase and correlatively of the execution
period. If the extension is requested by the Beneficiary, the request must be
made at least three months before the end of the closure phase and approved by
the Commission before that end. This Financing Agreement shall be amended
accordingly.
15.6 Article 2 of these General Conditions shall
apply to activities implemented by the Commission as contracting authority
(direct management) with the exception of the second and third subparagraph of
Article 2.1.
Article 16 - Verifications and checks by the
Commission, the European Anti-Fraud Office (OLAF) and the European Court of
Auditors
16.1 The Beneficiary shall assist and support the
verifications and checks carried out by the Commission, OLAF and the European
Court of Auditors at their request.
The Beneficiary agrees to the Commission, 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 Beneficiary also agrees that 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, pursuant to Regulation (EC, Euratom)
No 2185/96 and to Regulation (EC, Euratom) No 883/2013, the Beneficiary shall grant
officials of the Commission, 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, 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 Beneficiary
being bound to inform the Commission, 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 and grant beneficiaries, and subcontractors who have
received EU financing.
16.4 The Beneficiary 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 Beneficiary in
fighting irregularities, fraud and corruption
17.1 The Beneficiary 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 Beneficiary 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
estimates or of EU law 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 or the EDF;
- 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 Beneficiary 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 The Beneficiary shall immediately inform the
Commission (contacts pursuant to the third subparagraph of the Article 1.8 of
the General Conditions) of the name of the entity that has been the subject of
a judgment which has the force of res judicata for fraud, corruption,
involvement in a criminal organisation, money laundering or any other illegal
activity detrimental to the EU’s financial interests.
17.5 lf the Beneficiary 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 that or has
serious concerns, on the basis of information it received, and needs to verify,
whether the Beneficiary has committed substantial errors, irregularities or
fraud in the procurement and grant award procedure or in the implementation of
the action, or the Beneficiary has failed to comply with its obligations under
this Financing Agreement, including obligations regarding the implementation of
the Communications and Visibility plan;
b) the Commission has established that or has
serious concerns, on the basis of information it received, and needs to verify,
whether the Beneficiary 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 Beneficiary's internal
control system or the legality and regularity of the underlying expenditure;
c) the Commission suspects that the Beneficiary
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
Beneficiary 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 Beneficiary
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 Beneficiary thereof.
Article 19 - Allocation of funds recovered by
the Commission to the action
Where the action is financed under the EDF, amounts
unduly paid and recovered by the Commission, amounts from financial guarantees
lodged on the basis of procurement and grant award procedures, amounts from
financial penalties imposed on candidates, tenderers, applicants, contractors
or grant beneficiaries, as well as damages awarded to the Commission shall be
allocated to this action.
Article 20 - Right of establishment and
residence
20.1 Where justified by the nature of the
procurement or grant contract, the Beneficiary shall entitle natural and legal
persons participating in invitations to tender for works, supply or service
contracts or calls for proposals and entities expected to be entrusted with
budget-implementation tasks identified in Annex I with a provisional right of
establishment and residence in the Beneficiary's territory(ies). This right
shall remain valid for one month after the contract is awarded.
20.2 The Beneficiary shall also entitle procurement
contractors and grant beneficiaries, entities entrusted with budget-implementation
tasks identified in Annex I (Technical and Administrative Provisions), 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
21.1 The Beneficiary shall apply to procurement
contracts and grants financed by the EU the most favoured tax and customs
arrangements applied to States or international development organisations with
which it has relations.
Where the Beneficiary is an ACP State, account
shall not be taken of arrangements applied by it to the other ACP States or to
other developing countries for the purpose of determining the
most-favoured-State treatment.
21.2 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 Beneficiary agrees that its documents and
data held by an entity with which the Beneficiary is in a contractual
relationship regarding them may be forwarded to the Commission by that entity
for the sole purpose of implementing this or another Financing Agreement. The
Commission shall respect all confidentiality arrangements agreed between the
Beneficiary and that entity.
22.2 Without prejudice to Article 16 of these
General Conditions, the Beneficiary 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.
Article 23 - Use of studies
The contract related to any study financed under
this Financing Agreement shall include the right for the Beneficiary and for
the Commission to use the study, to publish it and to disclose it to third
parties.
Article 24 - Consultation between the
Beneficiary and the Commission
24.1 The Beneficiary 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 29 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 Beneficiary 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
Beneficiary of the implementation of activities described in Annex I which do
not fall under Part One 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
Beneficiary, 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 Beneficiary 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 within the limit of the
contingency reserve, the Beneficiary 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 contingency reserve provided for an
action shall be subject to the Commission’s prior written approval.
25.5 Where the Commission considers that the
Beneficiary 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 Beneficiary in order to continue the implementation of
the activities on behalf of the Beneficiary after informing the latter in
writing.
Article 26 - Suspension of this Financing
Agreement
26.1 The Financing Agreement may be suspended in
the following cases:
- The Commission may suspend the implementation of
this Financing Agreement if the Beneficiary breaches an obligation under this
Financing Agreement.
- The Commission may suspend the implementation of
this Financing Agreement if the Beneficiary breaches any obligation set under
the procedures and standard documents referred to in Article 1.3 and 5.3 of these
General Conditions.
- The Commission may suspend this Financing
Agreement if the Beneficiary breaches an obligation relating to respect for
human rights, democratic principles and the rule of law and in serious cases of
corruption.
- This Financing Agreement may be suspended 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 if takes measures to minimise any
possible damage.
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, delegation
agreements and programme estimates and for such contracts, delegation
agreements and programme estimates to be signed 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
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 This Financing Agreement shall be
automatically terminated, if within the period of three years of its signature:
a) it has not given rise to any payment;
b) no implementing contract or delegation agreement
has been signed;
c) and where this action is financed under the EDF,
no programme estimate has been signed;
27.3 When the termination is notified, the
consequences for the on-going procurement and grant contracts, delegation
agreements and programme estimates and for such contracts, delegation agreements
and programme estimates to be signed shall be indicated.
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 Beneficiary is an ACP State or an ACP
regional body or organisation and this action is financed under the EDF, the
dispute shall be submitted, prior to arbitration and after the consultations
provided for in Article 24 of these General Conditions, to the ACP-EC Council
of Ministers, or, between its meetings, to the ACP-EC Committee of Ambassadors,
pursuant to Article 98 of the ACP-EC Partnership Agreement. If the Council or
Committee does not succeed in settling the dispute, either party may request
settlement of the dispute by arbitration in accordance with Articles 28.2, 28.3
and 28.4.
28.2 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 turn
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.
28.3 Unless the arbitrators decide otherwise, the
procedure laid down in the Permanent Court of Arbitration Optional Rules for
Arbitration Involving International Organisations and States shall apply. The
arbitrators' decisions shall be taken by a majority within a period of three
months.
28.4 Each party shall be bound to take the measures
necessary for the application of the arbitrators' decision.