8. (a) The delegate shall make sure, on behalf of the Commission, that the projects and programmes financed from the Fund's resources administered by the Commission are executed properly from the financial and technical angles;
(b) accordingly, the delegate shall endorse contracts, riders thereto and estimates, as well as payment authorizations issued by the National Authorizing Officer.
Article 229.
1. For the purpose of effecting payments in the national currencies of the ACP States, accounts denominated in the currency of one of the Member States or in ECUs shall be opened in each ACP State in the Commissionâs name with a national public or semi-public financial institution, chosen by agreement between the ACP State and the Commission. This institution shall exercise the functions of paying agent.
2. The accounts referred to in paragraph 1 shall be replenished by the Commission by reference to actual cash requirements, account being taken of the advance timetable for payments provided for in Article 216(2). Transfers shall be made in the currency of one of the Member States or in ECUs and shall be converted into the currency of the ACP State as and when payments fall due.
3. The paying agent shall not be remunerated for its services; no interest shall be payable on deposited funds.
4. Within the limits of the funds available, the paying agent shall make the disbursements authorized after verifying that the supporting documents provided are substantively correct and in order, and that the discharge is valid.
5. In order to contribute towards the servicing of the debt resulting from Community loans from the Bank's own resources, special loans and risk capital, the ACP States may, in accordance with arrangements to be made on a case-by-case basis with the Commission, use the available foreign currency referred to in paragraph 2 for such servicing, as and when debt repayment fall due and up to the amount required for payments in national currency.
6. For the purpose of effecting payments in currencies other than the currencies of the ACP States, payment for services provided shall be made on instructions from the Commission by drawing on its accounts.
Article 230.
In general, payments shall be made in the form of advances to the ACP States, so that they shall be spared any prefinancing burden; the Community may, however, effect payment direct to contractors, subject to the prior authorization of the ACP States concerned and upon submission of relevant certificates of conformity.
Article 231.
The procedures for clearance, authorization and payment of expenditure shall be completed within a maximum of:
- two months, in the case of supply and service contracts,
- three months, in the case of works contracts, from the date on which the payment was due.
Section 3. Competition and Preferences
Article 232.
1. As a general rule, works and supply contracts financed from the Fund's resources administered by the Commission shall be concluded following an open invitation to tender.
2. As regards operations financed by the Community, participation in invitations to tender and contracts shall be open on equal terms to all natural persons and companies or firms falling within the scope of the Treaty and to all natural persons and companies or firms of the ACP States. The companies or firms referred to in the preceding subparagraph shall be those defined in Article 253.
3. Measures to encourage the participation of ACP States' enterprises in the performance of contracts shall be taken in order to permit optimum use of those States' physical and human resources.
4. Paragraph 2 shall not imply that the funds provided by the Community must be used exclusively for purchases of goods or payment for services in the Member States of the Community and the ACP States.
5. In order to encourage the regional co-operation of the ACP States and to ensure the optimum cost-effectiveness of the system, non-ACP developing countries associated with the Community under comprehensive co-operation agreements may be authorized, case by case and by way of exception, to participate in contracts financed by the Community, at the reasoned request of the ACP States concerned.
6. The ACP States concerned shall provide the Commission with the information needed for a decision on such derogations. The Commission shall examine the information with particular attention to:
(a) the geographical location of the ACP State concerned;
(b) the competitiveness of suppliers and contractors from the Community and the ACP States;
(c) the need to avoid excessive increases in the cost of operations;
(d) transport difficulties or delays due to delivery times or other similar problems;
(e) technology that is the most appropriate and best suited to local conditions.
7. Participation by third countries in contracts financed by the Community may be authorized where the Community participates in the financing of regional or inter-regional co-operation schemes involving third countries and in the joint financing of projects with other providers of funds.
Article 233.
1. The ACP States and the Commission shall take the necessary measures to ensure the widest possible participation on equal terms in invitations to tender and works and supply contracts financed from the Fund's resources administered by the Commission.
2. The purpose of these measures shall be in particular to:
(a) ensure publication of invitations to tender in the Official Journal of the European Communities, the official journals of the ACP States and any other suitable information media;
(b) eliminate discriminatory practices or technical specifications which might stand in the way of widespread participation on equal terms;
(c) encourage co-operation between the enterprises of the Member States and of the ACP States, for example by means of prequalification and the creation of consortia.
Article 234.
With the aim of ensuring the rapid and effective implementation of projects and programmes financed by the Community:
1) operations the estimated cost of which is less than 4 million ECU may be performed by direct labour subject to approval by the Community and where the recipient ACP State has sufficient suitable equipment and qualified staff available in its national departments;
2) without prejudice to the provisions of (1), an expedited procedure for issuing invitations to tender shall be organized in the case of works contracts the estimated cost of which is less than 4 million ECU.
The organization of this expedited procedure shall not rule out the possibility of issuing an international invitation to tender where it appears that the nature of the works to be performed or the usefulness of widening participation justify recourse to international competition;
3) for operations relating to emergency aid and for other operations where urgency of the situation is established or where the nature, small scale or certain particular characteristics of the works or supplies so warrant, the ACP States may, in agreement with the Commission, authorize the placing of contracts by direct agreement or after restricted invitations to tender. However, in the case of emergency aid, it shall also be possible to have recourse to direct labour.
Article 235.
To promote the widest possible participation by national enterprises of the ACP States in the performance of works and supply contracts financed from the Fund's resources administered by the Commission, the following measures shall be adopted:
1) for carrying out works the value of which is less than 4 million ECU, national enterprises of the ACP States shall be accorded a 10% preference where tenders of equivalent economic and technical quality are compared. This preference shall be confined to national enterprises of the ACP States within the means of the national Jaws of these States, provided that their residence for tax purposes and main business headquarters are established in an ACP State and that a significant share of the capital and management staff is supplied by one or more ACP States;
2) for the delivery of supplies, irrespective of their value, enterprises of the ACP States shall be accorded a 15% preference where tenders of equivalent economic and technical quality are compared. This preference shall be confined to national enterprises of the ACP States which account for a sufficient margin of added value.
Article 236.
1. For each operation the criteria for selecting the tender that is economically the most advantageous shall take into account inter alia the qualifications of and the guarantees offered by the tenderers, the nature and conditions of implementation of the works or supplies and the price, operating costs, and technical value of those works or supplies and the offer of an after-sales service in the ACP State concerned.
2. Where two tenders are acknowledged to be equivalent on the basis of the criteria stated above, preference shall be given to the tender of the enterprise which is a national of an ACP State or if no such tender is forthcoming, to the one which permits the greatest possible use of the physical and human resources of the ACP States.
3. The ACP States and the Commission shall ensure that all the selection criteria are specified in the invitation to tender dossier.
Article 237.
1. The general conditions applicable to the award and performance of works and supply contracts financed from the Fund's resources administered by the Commission are contained in the general conditions, which shall be adopted by decision of the Council of Ministers at its first meeting following the entry into force of this Convention, after consultation of the ACP- EEC Committee referred to in Article 193.
2. Until the implementation of the decision provided for in paragraph 1, the award and performance of public contracts financed by the Fund shall be governed:
- in respect of the ACP States party to the Convention signed at Yaoundé on 29 July 1969, by the legislation in force at 31 January 1975,
- in respect of the other ACP States, by their national legislation or established practices regarding international contracts.
Article 238.
1. Any dispute arising between the authorities of an ACP State and a contractor, supplier or provider of services, candidate or tenderer, on the occasion of the placing or performance of a contract financed by the Fund shall be settled by arbitration in accordance with procedural rules adopted by the Council of Ministers.
2. The procedural rules referred to in paragraph 1 shall be adopted by decision of the Council of Ministers not later than its first meeting following the entry into force of this Convention, after consultation of the ACP-EEC Committee referred to in Article 193.
3. As a transitional measure pending the implementation of the decision provided for in paragraph 2, the final decision on all disputes shall be taken in accordance with the rules on conciliation and arbitration of the International Chamber of Commerce.
Section 4. Tax and Customs Arrangements
Article 239.
The tax and customs arrangements applicable in the ACP States to contracts financed by the Community are set out in Protocol 6.
Title IV. Investment, Capital Movements, Establishment and Services
Chapter 1. Investment
Article 240.
The Contracting Parties recognize the importance of private investment for the promotion of their development co-operation and acknowledge in this respect the need to take such steps as would promote such investment. In this regard the Contracting Parties jointly and severally agree to:
(a) implement measures to encourage private economic operators who comply with the objectives and priorities of their development co-operation and with the appropriate laws and regulations of their respective States to participate in their development efforts;
(b) accord fair and equitable treatment to such investors, and encourage and create clear and stable conditions conducive to the participation of such investors;
(c) maintain a predictable and secure investment climate and be prepared to enter into negotiations on agreements which will improve such a climate and, in so doing, further mutual interests;
(d) promote effective co-operation amongst their respective economic operators
Article 241.
1. In order to accelerate further their development co-operation and the expansion of directly productive investment, the Contracting Parties, using the technical and financial assistance provided within this Convention, agree to study measures which will facilitate an increased and more stable flow of private capital and which will further enhance:
(a) joint financing of productive investments with the private sector;
(b) access by interested ACP States to international financial markets;
(c) the activity and effectiveness of domestic financial markets.
2. To this end, the Contracting Parties agree to review the economic, technical, legal or institutional obstacles which currently hamper such developments as well as the action required to remove these obstacles, with due respect for international commitments, in order to promote further the development of productive investment.
Article 242.
1. Taking account of the link between investment decisions, the capacity of the ACP States to generate adequate export earnings to service the investment and the ability effectively to support existing and new productive investment, the Community undertakes to explore ways and means to provide, within the framework of financial and technical co-operation:
(a) credit lines to finance imports of intermediate materials needed for the export industries of a requesting ACP State;
(b) appropriate and effective
2. Taking account of the role of domestic development financing institutions as channel and intermediary for attracting private capital flows into development co-operation, the Contracting Parties agree, within the framework of financial and technical co-operation, to encourage the setting-up or the strengthening of:
(a) national or regional financing institutions to finance ex- ports and guarantee export credits;
(b) regional payment mechanisms that would facilitate intra- ACP trade.
Article 243.
1. The Contracting Parties affirm the need to promote and protect either party's investments on their respective territories, and in this context affirm the importance of concluding between States, in their mutual interest, investment promotion and protection agreements which could also provide the basis for insurance and guarantee schemes.
2. In order to further encourage European investment in development projects of special importance to, and promoted by, the ACP States, the Community and the Member States on the one hand, and the ACP States on the other, may also conclude agreements relating to specific projects of mutual interest where the Community and European enterprises contribute towards their financing.
Article 244.
1. The Contracting Parties agree to undertake a joint study of the scope and appropriate mechanisms of a joint ACP-EEC insurance and guarantee system, complementary to existing national systems, that could have a positive effect on the flow of private-sector resources from the Community to the ACP States.
2. The Contracting Parties further agree to explore the use of private sector market insurance to insure additional private capital flows to the ACP States that could have a positive effect on the flow of private-sector resources from the Community to the ACP States.
Article 245.
In order to promote the development of private investment flows, the Community and the ACP States hereby agree, within the framework of this Convention and in co-operation with other interested. bodies, to:
(a) encourage the flow of information on investment opportunities between financial or development finance institutions, other specialized financial institutions and other potential investors and sponsors by organizing periodic investment promotion meetings, making available periodic information on existing financial or other specialized institutions, their facilities and conditions and encouraging the establishment of focal points in ACP States;
(b) make a detailed analysis, taking full account of work being done in other institutions, of possible net increases in the flow of funds for investment financing that might result from greater use of co-financing and joint ventures and, in this regard, enable suggestions to be made to multilateral, regional and other institutions regarding ways and means of improving and increasing the number of such arrangements in order to expand the funds available to ACP States in the form of equity and long-term capital;
(c) strengthen, with financial and technical assistance from the Community, existing activities to promote European private investment in the ACP States by organizing discussions between any ACP State interested and potential private investors on the legal and financial framework which that ACP State offers or might offer to a potential investor;
(d) encourage the dissemination, to all interested parties, of information on the nature and availability of investment guarantees and insurance mechanisms to facilitate investment in ACP States, and encourage or prepare, wherever appropriate, the creation or expansion of such mechanisms in ACP States, if necessary in collaboration with other appropriate agencies;
(e) provide assistance to small and medium-sized enterprises in ACP States in designing and obtaining equity and loan financing on optimal terms and conditions;
(f) explore ways and means of overcoming or reducing the host country risk for individual investment projects that are in themselves viable and could contribute to economic progress;
(g) help ACP States to:
(i) improve the quality of feasibility studies and the preparation of projects with appropriate economic and financial effects;
(ii) introduce integrated project management covering the entire project development cycle within the framework of the development programme of the State.
Article 246.
1. The Contracting Parties hereby recognize that the least-developed, landlocked and island ACP States suffer from certain unique disadvantages which render them less attractive to private investment.
2. The Contracting Parties therefore commit themselves to undertaking, as soon as possible after the entry into force of this Convention, a joint study to identify the specific measures it may be desirable to adopt in relation to those States in order to improve their attractiveness to investment.
Article 247.
1. In order to improve understanding of the issues involved in private-sector flows and the effectiveness of attempts to encourage such flows, the Contracting Parties hereby agree that the Commission shall, with their assistance, produce regular reports for the information of the Council of Ministers on flows of investment, lending, payment arrears and capital movements between the Community and the ACP States.
2. The Contracting Parties hereby agree that the issues relating to the promotion and protection of investment in their respective territories may be the subject of discussions in the appropriate ACP-EEC co-operation forum or of consultations between the ACP State concerned and the Community, especially where particular investment promotion schemes are being implemented.
3. The Contracting Parties hereby agree to launch ail the studies referred to in this Chapter in the shortest possible time and, in any event, not later than one year after the entry into force of this Convention. The result of these studies will be submitted upon completion to the interested parties for consideration and appropriate action, not later than two years after the entry into force of this Convention.
Chapter 2. Provisions Relating to Current Payments and Capital Movements
Article 248.
With regard to capital movements linked with investments and to current payments, the Contracting Parties shall refrain from taking action in the field of foreign exchange transactions which would be incompatible with their obligations under this Convention resulting from the provisions relating to trade in goods, services, establishment and industrial co-operation.
These obligations shall not, however, prevent the Contracting Parties from adopting the necessary protective measures should this be justified by reasons relating to serious economic difficulties or severe balance-of-payments problems.
Article 249.
In respect of foreign exchange transactions linked with in- vestments and current payments, the ACP States on the one hand and the Member States on the other shall avoid, as far as possible, taking discriminatory measures vis-a-vis each other or according more favourable treatment to third states, taking full account of the evolving nature of the international monetary system, the existence of specific monetary arrangements and balance-of-payments problems.
To the extent that such measures or treatment are unavoidable, they shall be maintained or introduced in accordance with international monetary rules and every effort shall be made to minimize any adverse effects on the parties concerned.
Article 250.
Throughout the duration of the loans and risk capital operations provided for in Article 194, each of the ACP States hereby undertakes to:
(a) place at the disposal of the beneficiaries referred to in Article 191 the currency necessary for the payment of interest and commission on and amortization of loans and quasi-capital aid granted for the implementation of aid measures on their territory;
(b) make available to the Bank the foreign currency necessary for the transfer of all sums received by it in national currency which represent the net revenue and proceeds from transactions involving the acquisition by the Community of holdings in the capital of companies or firms.
Article 251.
At the request of the Community or of the ACP States, the Council of Ministers shall examine any problems raised by the application of Articles 248, 249 and 250. It shall also formulate any relevant recommendations.
Chapter 3. Provisions Relating to Establishment and Services
Article 252.
As regards the arrangements that may be applied in matters of establishment and provision of services, the ACP States on the one hand and the Member States on the other shall treat nationals and companies or firms of Member States and nationals and companies or firms of the ACP States respectively on a non-discriminatory basis. However, if, for a given activity, an ACP State or a Member State is unable to provide such treatment, the Member States or the ACP States, as the case may be, shall not be bound to accord such treatment for this activity to the nationals and companies or firms of the State concerned.
Article 253.
For the purpose of this Convention "companies or firms" mean companies or firms constituted under civil or commercial law, including co-operative societies and other legal persons governed by public or private law, save those which are non-profit-making.
"Companies or firms of a Member State or of an ACP State" means companies or firms formed in accordance with the law of a Member State or an ACP State and whose registered office, central administration or principal place of business is in a Member State or ACP State; however, a company or firm having only its registered office in a Member State or an ACP State must be engaged in an activity which has an effective and continuous link with the economy of that Member State or the ACP State.
Article 254.
At the request of the Community or of the ACP States, the Council of Ministers shall examine any problems raised by the application of Articles 252 and 253. It shall also formulate any relevant recommendations.
Title V. General Provisions for the Least-developed, Landlocked and Island ACP States
Article 255.
Special attention shall be paid to the least-developed, land- locked and island ACP States and the specific needs and prob- lems of each of these three groups of countries in order to enable them to take full advantage of the opportunities offered by this Convention.
In this spirit, the following Articles contain specific provi- sions and adjustments to the general provisions applicable to ail ACP States, with details of derogations from such provi- sions in different fields.
Chapter 1. Least-developed ACP States
Article 256.
The least-developed ACP States shall be accorded special treatment in order to enable them to overcome the serious economic and social difficulties hindering their development.
Article 257.
1. The following shall be considered least-developed ACP States for the purposes of this Convention:
Antigua and Barbuda
Belize
Benin
Botswana
Burkina Faso
Burundi
Cape Verde
Central African Republic
Chad
Comoros
Djibouti
Dominica
Equatorial Guinea