Article 161.
1. The system shall apply to the earnings from an ACP State's exports of the products listed in Article 148 if, during the year preceding the year of application, earnings from the export of each product to all destinations, re-exports excluded, represented at least 6% of its total earnings from exports of goods. The percentage shall be 4,5% in the case of sisal.
2. For the least-developed, landlocked and island ACP States, the percentage referred to in paragraph 1 shall be 1,5%.
3. Where, following a natural disaster, a substantial fall in production of the product in question is recorded during the year preceding the year of application, the percentage referred to in paragraph 1 shall be calculated on the basis of the average export earnings from that product during the first three reference years instead of on the basis of total export earnings during the year preceding the year of application.
A substantial fall in production shall be taken to mean at least 50% of the average production during the first three refer- ence years.
Article 162.
1. An ACP State shall be entitled to request a transfer if, on the basis of the results of one calendar year, its actual earnings, as defined in Article 165, from its exports of each product to the Community and, in the cases referred to in Article 150(1)(b), to other ACP States or, in the cases referred to in Article 150(1)(c), to all destinations, are at least 6% below the reference level.
2. The percentage given in paragraph 1 shall be 1,5% for the least-developed, landlocked and island ACP States.
Article 163.
Request for transfers shall be inadmissible in the following cases:
(a) if the request is presented after 31 March of the year following the year of application;
(b) if it emerges from the examination of the request, to be undertaken by the Commission in conjunction with the ACP State concerned, that the fall in earnings from exports to the Community is the result of a trade policy of the ACP State concerned adversely affecting exports to the Community in particular.
Article 164.
Should examination of the trend of the requesting ACP State's exports to all destinations and of production of the product in question in the ACP State concerned and of demand in the Community reveal significant changes, consultations shalt take place between the Commission and the requesting ACP State to determine whether the transfer basis is to be maintained or reduced, and, if so, to what extent.
Article 165.
1. The system shall be implemented in respect of the products listed in Article 148 where they are:
(a) released for home use in the Community, or
(b) brought into the Community under the inward processing arrangements in order to be processed.
2. The statistics used to implement the system shall be:
(a) those obtained by cross-checking Community and ACP State statistics, account being taken of fob values, or
(b) those obtained by multiplying the unit values for the exports of the ACP State in question, as given in that ACP State's statistics, by the quantities imported by the Community, as shown in Community statistics.
3. When submitting the transfer request for each product, the requesting ACP State shall choose one of the two systems set out above.
4. With regard to the product or products for which an ACP State is accorded the derogation referred to in Article 150(2) and 150(3), the export statistics adopted shall be those of the ACP State concerned.
Article 166.
1. In order to ensure that the stabilization system functions efficiently and rapidly, statistical and customs co-operation shall be instituted between each ACP State and the Commission.
2. To this end, each ACP State shall notify the Commission, by sending monthly statistics on the volume and value of total exports, and exports to the Community and, where available, on the volume of marketed production, for each product on the list in Article 148 to which the system may apply.
3. The ACP States and the Commission shall adopt by agreement any measures facilitating inter alia the exchange of necessary information, the submission of requests for transfers, the provision of information concerning the use of transfers, the implementation of the replenishment provisions and of any other aspect of the system, by means of the widest possible use of standard forms.
Article 167.
1. The Commission shall adopt a transfer decision on completion of the examination carried out in conjunction with the requesting ACP State; this examination shall bear on the statistical data and the calculation of the transfer basis which may give rise to a payment, and also on the information referred to in Article 157.
2. For each transfer a transfer agreement shall be concluded between the Commission and the ACP State concerned.
3. The amounts transferred shall not bear interest.
Article 168.
1. The ACP State concerned and the Commission shall take all possible steps to ensure that the cross-checking of statistics referred to in Article 165 is completed not later than 31 May following receipt of the request. Not later than that date, the Commission shall notify the requesting ACP State of the result of the cross-checking operation or, in the event of a delay, the reason why it was not possible to complete the said operation.
2. The ACP State concerned and the Commission shall take all possible steps to ensure that the consultations referred to in Article 164 are concluded not later than two months after the notification referred to in paragraph 1. After this period has elapsed, the Commission shall notify the ACP States of the amount of the transfer resulting from appraisal of the request.
3. Without prejudice to Article 170(i) and not later than 31 July following receipt of the requests, the Commission shall take decisions concerning all transfer requests, except for those where cross-checking or consultations have not been concluded.
4. On 30 September following receipt of the requests, the Commission shall report to the Committee of Ambassadors on the progress made with the processing of all transfer re- quests,
Article 169.
1. In the event of a disagreement between the requesting ACP State and the Commission over the results of the examination referred to in Articles 163 and 164, the requesting ACP State shall have the right to initiate, without prejudice to possible recourse to Article 278, a good offices procedure.
2. The good offices procedure shall be carried out by an expert appointed by agreement between the Commission and the requesting ACP State.
3. Within two months of this appointment, the conclusions of the procedure shall be communicated to the requesting ACP State and to the Commission, which shall take account of them in making the transfer decision.
The ACP State concerned and the Commission shall take all possible steps to ensure that the decision is taken not later than 31 October following receipt of the request.
4. The procedure shall not result in a delay in the processing of any other transfer requests for the same year of application.
Article 170.
1. The ACP State concerned and the Commission shall take such steps as are required to ensure that transfers are made rapidly in accordance with the procedure laid down in Article 168. To this end, provision shall be made for the payment of advances.
2. Programmes or operations to which the recipient ACP State undertakes to allocate the transferred resources shall be decided by that State subject to compliance with the objectives laid down in Article 147.
3. Before the transfer agreement is signed, the recipient ACP State shall communicate substantial information relating to the programmes and operations to which it has allocated or undertakes to allocate the funds, in accordance with the objectives set out in Article 147, Substantial information, in the context of this Article and that of Article 157 shall be taken to mean that relating to the diagnosis of the problems in the sector or sectors concerned, statistics, and the allocation plan drawn up by the requesting ACP State. Should the requesting ACP State intend, as specified in Article 147(2), to allocate the funds to a sector other than that where the loss has occurred, it shall communicate to the Commission the reasons for this allocation. In either case, the Commission shall ensure that such communication conforms with Article 157.
Article 171.
1. Within twelve months of the signing of the transfer agreement the recipient ACP State shall send the Commission a report on the use which it has made of the funds transferred. The report shall contain all the information specified on the form drawn up jointly in accordance with Article 166.
2. Should the report referred to in paragraph 1 not be presented within the time-limit set or should it call for comment, the Commission shall send a request for substantiation to the ACP State concerned, which shall be obliged to reply thereto within two months.
3. Once the deadline referred to in paragraph 2 has expired, the Commission may, having referred the matter to the Council of Ministers and having duly informed the ACP State concerned, three months after completion of this procedure, suspend application of decisions on subsequent transfer requests until that State has provided the required information.
The ACP State concerned shall be notified of this measure immediately.
Article 172.
ACP States which have received transfers shall, with the exception of the least-developed ACP States, contribute to the replenishment of the resources made available for the system by the Community. The replenishment obligation shall disappear if, during the seven-year period following the year during which the transfer was made, the conditions laid down in Article 173 have not been met.
Article 173.
1. Where the trend of the export earnings derived from the product which sustained the drop in export earnings that gave rise to the transfer so permits, the ACP States concerned shall help replenish the resources of the system.
2. For the purposes of paragraph 1, the Commission shail determine:
- at the beginning of each year over the seven years following the year during which the transfer was paid,
- until such time as the whole amount of the transfer has been paid back into the system,
- in accordance with Article 165,
whether, for the preceding year:
(a) the unit value of the product under consideration exported to the Community was higher than the average unit value during the four years prior to the preceding year;
(b) the quantity of the same product actually exported to the Community was at least equal to the average of the quantities exported to the Community during the four years prior to the preceding year:
(c) the earnings for the year and the product in question amount to at least 106% of the average of earnings from exports to the Community during the four years prior to the preceding year.
3. If the three conditions set out in paragraph 2(a), (b) and (c) are fulfilled simultaneously, the ACP State shall contribute to the system an amount equal to the difference between the actual earnings derived in the preceding year from exports to the Community and the average of earnings from exports to the Community during the four years prior to the preceding year, but in no case shall the amount of the contribution towards the replenishment of the resources of the system exceed the transfer in question.
4. In implementing paragraphs 2 and 3, account shall be taken of trends established in exports to all destinations.
Article 174.
1. The amount referred to in Article 173(3) shall be contributed to the system at the rate of one fifth per year after a two-year deferment period beginning in the year during which the obligation to contribute towards replenishment was established.
2. The contribution may be made, at the request of the ACP State, either
- direct to the system, or
- by deduction from its transfer rights established before any application of Article 155, or
- by payment in local currency. In this case, the contribution shall be used, as a matter of priority, to cover local expenditure charged to the European Development Fund (hereinafter referred to as the "Fund") within the framework of development projects to the financing of which it is contributing.
Chapter 2. Special Undertakings on Sugar
Article 175.
1. In accordance with Article 25 of the ACP-EEC Convention of Lomé signed on 28 February 1975 and with Protocol 3 annexed thereto, the Community has undertaken for an indefinite period, notwithstanding the other provisions of this Convention, to purchase and import, at guaranteed prices, specific quantities of cane sugar, raw or white, which originates in the ACP States producing and exporting cane sugar and which those States have undertaken to deliver to it.
2. The conditions for the implementation of the aforementioned Article 25 have been laid down by Protocol 3 referred to in paragraph 1. The text of the Protocol is annexed to this Convention as Protocol 7.
3. Article 139 of this Convention shall not apply within the framework of the said Protocol.
4. For the purpose of Article 8 of the said Protocol the institutions established under the Convention may be used during the period of application of this Convention.
5. Article 8(2) of the said Protocol shall apply should this Convention cease to be operative.
6. The declarations contained in Annexes XIII, XXI and XXII of the Final Act to the ACP-EEC Convention of Lomé signed on 28 February 1975 are reaffirmed and their provisions shall continue to apply. These declarations are annexed as such to this Convention.
7. This Article and the Protocol 3 referred to in paragraph 1 shall not apply to relations between the ACP States and the French overseas departments.
Chapter 3. Mining Products: Special Financing Facility (SSYSMIN)
Article 176.
With a view to contributing to the creation of a more solid basis for the development of the ACP States whose economies are dependent on the mining sectors and in particular towards helping them cope with a decline in their capacity to export mining products to the Community and the corresponding decline in their export earnings, a system shall be established to assist these States in their efforts to re-establish the viability of the mining sector or to remedy the harmful effects on their development of serious temporary or unforeseeable disruptions affecting those mining sectors and beyond the control of the ACP States concerned.
Article 177.
1. The system laid down in Article 176 shall apply notably to the following products:
- copper, including associated production of cobalt,
- phosphates,
- manganese,
- bauxite and alumina,
- tin
- iron ore (ores, concentrates and roasted iron pyrites), whether or not in agglomerate form (including pellets).
2. If, not sooner than twelve months following the entry into force of this Convention, one or more products not contained in the above list, but upon which the economies of one or more ACP States depend to a considerable extent, are affected by serious disruptions, the Council of Ministers shall decide, not later than six months after the presentation of a request by the ACP State or States concerned, whether or not to include the said product or products in the list.
Article 178.
1. For the purposes specified in Article 176 and for the duration of this Convention, a special financing facility shall be set up to which the Community shall allocate an overall amount of 415 million ECU to cover all its commitments under this system:
(a) this amount shall be managed by the Commission;
(b) this overall amount shall be divided into a number of equal annual instalments corresponding to the number of years of application. Each year, except the last, the Council of Ministers, on the basis of a report submitted to it by the Commission, may authorize the advance use of up to 50% of the following year's instalment where required;
(c) whatever balance remains at the end of each year of application of this Convention, except the last, shall be carried over automatically to the following year;
(d) if the resources available for any year of application are insufficient, the amounts due shall be reduced accordingly;
(e) the resources available for each year of application shall be made up of the following elements:
- the annual instalment, minus any amounts used under (b),
- the sums carried over under (c).
2. Before the expiry of the period referred to in Article 291, the Council of Ministers shall decide on the allocation of any balances remaining from the overall amount referred to in this Article.
Article 179.
1. Recourse to the means of financing available under the special facility provided for in Article 178 shall be open to:
(a) the countries eligible under Article 180(a) for a product covered by Article 177 and exported to the Community,
(b) the countries not eligible under Article 180(a) but eligible under Article 180(b), by derogation on a case-by-case basis from Articles 177 and 180(a),
when a substantial fall is recorded, or can be expected over the following months, in their capacity to produce or to export, or in their export earnings derived from mining products referred to in Articles 177 and 180(b), of such a magnitude as to affect seriously the profitability of otherwise viable and economic lines of production, thus preventing them from replacing at a normal rate or maintaining the production plant or export capacity, and from continuing to provide funds for major identified development projects to which the ACP State concerned has given the highest priority in the allocation of mining revenue.
2. The recourse referred to in paragraph 1 shall also be available when a substantial fall in production or export capacity is experienced, or is foreseen, owing to accidents and serious technical mishaps or grave political events, whether internal or external, or important technological and economic developments affecting the profitability of production.
3. A substantial fall in production or export capacity shall be taken to mean 10%.
Article 180.
An ACP State which, during at least two of the preceding four years, as a general rule, has derived either
(a) 15% or more of its export earnings from a product covered by Article 177, or
(b) by derogation on a case-by-case basis from Article 177 and from (a) above, 20% or more of its export earnings from all its mining products (excluding precious minerals, oil and gas)
may apply for financial aid from the resources allocated to the special financing facility if the conditions laid down in Article 179 are fulfilled.
However, for least-developed, landlocked or island ACP States, the figure stipulated in (a) shall be 10% and the figure stipulated in (b) shall be 12%.
Article 181.
The application for aid shall be made to the Commission, which shall examine it in conjunction with the ACP State concerned. Where necessary, an expeditious expertsâ study to diagnose the production capacity concerned from the technical and financial angles may be financed from the funds provided under Article 178, notably with a view to expediting appraisal of the application.
The fact that the aid conditions have been fulfilled shall be established by agreement between the Community and the ACP State. Notification thereof by the Commission to the ACP State shall entitle the latter to Community aid from the special financing facility.
Article 182.
The aid referred to in Article 180 shall be directed at the objectives set out in Article 176.
As a matter of priority such aid shall be used to finance rehabilitation, maintenance and rationalization programmes to complement the efforts made by the ACP State concerned to restore the affected production and export capacity to a viable level, with special attention being paid to integrating it satisfactorily in the country's overall development process. Where it would appear impossible to restore such capacity to a viable state, the ACP State concerned and the Commission shall seek projects or programmes best suited to attaining the objectives of the system.
Where Articles 179(1)(b) and 180(b) are applied, the resources of the special financing facility shall be used as a matter of priority to support the efforts the ACP State concerned deploys to avoid interruption of the development projects referred to in Article 179 or to promote projects that would replace, even partially, the mining capacities lost as a source of export earnings.
The amount of this aid shall be determined by the Commission in the light of the funds available under the special financing facility, the nature of the projects or programmes proposed by the ACP State concerned and the possibilities for co-financing.
In determining the amount, account shall be taken of the scale of the reduction in production or export capacity, and of the losses of earnings suffered by the ACP States as identified in Article 179 and of the relative importance of the mining industry affected for the ACP State's export earnings.
Under no circumstances may a single ACP State be eligible for more than 35% of the funds available under an annual instalment. This percentage shall be 15% for a contribution on the basis of Articles 179(1)(b) and 180(b).
The procedures applicable to assistance in the above circumstances and the implementing arrangements shall be as provided for under Title III, Part Three, of this Convention; account shall be taken of the need for rapid implementation of the aid.
Article 183.
1. To permit the implementation of precautionary measures to halt deterioration of production plant during the appraisal or implementation of these projects or programmes, the Community may grant an advance to any ACP State which requests one. This possibility shall not exclude recourse by the ACP State concerned to the emergency aid provided for in Article 203.
2. Since an advance is granted as a means of prefinancing projects or programmes which it precedes or to which it is preparatory, account shall be taken of the scale and nature of those projects or programmes when the amount of the advance is fixed.
3. The advance shall take the form of supplies or of the provision of services, or of cash payments if this arrangement is considered more appropriate.
4. It shall be incorporated in the amount earmarked for Community operations in the form of projects or programmes when the financing agreement relating to such operations is signed.
Article 184.
Aid granted from the special financing facility shall be reim- bursed on the same terms and conditions as special loans, account being taken of the provisions adopted in favour of the least-developed ACP States.
Title II. Financial and Technical Co-operation
Chapter 1. General Provisions
Section 1. Objectives and Principles
Article 185.
The aims and objectives of financial and technical co-operation shall be to:
(a) make, in favour of the ACP States, by adequate financial resources and appropriate technical assistance, a significant contribution to the implementation of the objectives of this Convention in order to support and promote the efforts of those States to achieve self-determined, self-reliant and self-sustained integrated social, cultural and economic development, on the basis of mutual interest and in a spirit of interdependence;
(b) help raise the standard of living and improve the well-being of the peoples of the ACP States;
(c) promote measures likely to mobilize the capacity for initiative of communities and to encourage and support the participation of those concerned in the design and implementation of development projects;
(d) complement the efforts of the ACP States and remain in keeping with them;
(e) promote the optimum development of human resources and contribute to the rational utilization of the natural resources of the ACP States;
(f) encourage intra-ACP co-operation and regional co-operation among ACP States;
(g) permit the establishment of more balanced economic and social relations and better understanding between the ACP States, Member States of the Community and the rest of the world with a view to achieving a new international economic order;
(h) enable the ACP States faced with serious economic and social difficulties of an exceptional nature resulting from natural disasters or extraordinary circumstances having comparable effects to benefit from emergency aid;
(i) help the least-developed, landlocked and island ACP States to overcome the specific obstacles which hamper their development efforts.
Article 186.
Financial and technical co-operation shall:
(a) be implemented on the basis of objectives and priorities established by the ACP States, with due regard to their respective geographical, social and cultural characteristics, specific potential and development strategies;