4. The Community and the ACP State concerned shall take all necessary measures to ensure that the programming process is completed within the shortest possible time and, save in exceptional circumstances, within twelve months of the adoption of the multi-annual financial framework of cooperation. In this context, the preparation of the CSP and the indicative programme must be part of a continuous process leading to the adoption of a single document.
5. When an ACP State faces a crisis situation as the result of a war or other conflict, or exceptional circumstances with a comparable effect, preventing the National Authorising Officer from carrying out his duty, the Commission may it- self manage the resources allocated to the State in question in accordance with Article 3 and use it for special support. Special support may concern peace building policies, conflict management and resolution, post-conflict support, including institution-building, economic and social development activities, taking particular account of the needs of the most vulnerable sections of the population. The Commission and the ACP State concerned shall revert to normal implementation and normal management procedures as soon as the authorities responsible for managing cooperation are able to do so once more.
Article 5. Review Process
1. Financial cooperation between the ACP State and the Community shall be sufficiently flexible to ensure that operations are kept constantly in line with the objectives of this Agreement and to take account of any changes occurring in the economic situation, priorities and objectives of the ACP State concerned. In this context, the National Authorising Officer and the Commission shall:
(a) annually undertake an operational review of the indicative programme; and
(b) undertake a mid-term and end-of-term review of the CSS and the indicative programme in the light of current needs and performance.
2. In exceptional circumstances as referred to in Article 3(4), in order to take into account new needs or exceptional performance, an ad hoc review can be carried out on the demand of either Party.
3. The National Authorising Officer and the Commission shall:
(a) take all necessary measures to ensure adherence to the provisions of the indicative programme, including ensuring that the timetable of commitments and disbursements agreed at the time of programming is adhered to; and
(b) determine any causes of delay in implementation and propose suitable measures to remedy the situation.
4. The annual operational, mid-term and end-of-term reviews of the indicative programme shall consist of a joint assessment of the implementation of the programme and take into account the results of relevant activities of monitoring and evaluation. These reviews shall be conducted locally and shall be finalised between the National Authorising Officer and the Commission, in consultation with the appropriate stakeholders, including non-state actors, local authorities and, where relevant, ACP parliaments. They shall in particular cover an assessment of:
(a) the results achieved in the focal sector(s) measured against the identified targets and impact indicators and sectoral policy commitments;
(b) programmes and projects outside the focal sector(s);
(c) the use of resources set aside for non-state actors;
(d) the effectiveness in implementation of current operations and the extent to which the timetable for commitments and payments have been respected; and
(e) an extension of the programming perspective for the following years.
5. The Commission shall submit once a year a synthesis report on the conclusion of the annual operational review to the ACP-EU Development Finance Cooperation Committee. The Committee shall examine the report in accordance with its responsibilities and powers under the Agreement.
6. In the light of the annual operational reviews, the National Authorising Officer and the Commission may at the mid-term and end-of-term reviews, review and adapt the CSP:
(a) where operational reviews indicate specific problems; and/or
(b) in the light of changed circumstances of an ACP State.
A change in the CSP may also be decided as a result of the ad hoc review process foreseen under paragraph 2.
The end-of-term review may also include adaptation for the new multi-annual financial framework of cooperation in terms of both resource allocation and preparation for the next programme.
7. Following the completion of the mid-term and end-of-term reviews, the Commission may, on behalf of the Community, increase or decrease the resource allocation of a country in the light of current needs and performance of the ACP State concerned.
Following an ad hoc review as foreseen under paragraph 2, the Commission may, on behalf of the Community, also increase the resource allocation in the light of new needs or exceptional performance of the ACP State concerned, as defined in Article 3(4).
Chapter 2. Programming and Preparation (Regional)
Article 6. Scope
1. Regional cooperation shall cover operations benefiting and involving:
(a) two or more or all ACP States as well as any non-ACP developing countries participating in these operations, and/or
(b) a regional body of which at least two ACP States are members, including those with members which are non-ACP countries.
2. Regional cooperation can also involve Overseas Countries and Territories and outermost regions. The funding to enable participation of these territories shall be additional to funds allocated to the ACP States under the Agreement.
3. Requests for financing of regional programmes shall be submitted by:
(a) a duly mandated regional body or organisation; or
(b) a duly mandated sub-regional body, organisation or an ACP State in the region concerned at the programming stage, provided that the operation has been identified in the regional indicative programme (RIP).
4. The participation of non-ACP developing countries to regional programmes shall be envisaged only to the extent that:
(a) the centre of gravity of the projects and programmes funded under the multi-annual financial framework of cooperation remains in an ACP country;
(b) equivalent provisions exist in the framework of the Community's financial instruments; and
(c) the principle of proportionality is respected.
Article 7. Regional Programmes
The ACP States concerned shall decide on the definition of geographical regions. To the maximum extent possible, regional integration programmes should correspond to programmes of existing regional organisations. In principle, in case the membership of several relevant regional organisations overlaps, the regional integration programme should correspond to the combined membership of these organisations.
Article 8. Regional Programming
1. Programming shall take place at the level of each region. The programming shall be a result of an exchange of views between the Commission and the duly mandated regional organisation(s) concerned, and in the absence of such a mandate, the National Authorising Officers of the countries in that region. Where appropriate, programming may include a consultation with non-state actors represented at regional level and, where relevant, regional parliaments.
2. The regional strategy paper (RSP) shall be prepared by the Commission and the duly mandated regional organisation(s) in collaboration with the ACP States in the region concerned, on the basis of the principle of subsidiarity and complementarity, taking into account the programming of the CSP.
3. The RSP will be an instrument to prioritise activities and to build local ownership of supported programmes. The RSP shall include the following standard elements:
(a) an analysis of the political, economic and social and environmental context of the region;
(b) an assessment of the process and prospects of regional economic integration and integration into the world economy;
(c) an outline of the regional strategies and priorities pursued and the expected financing requirements;
(d) an outline of relevant activities of other external partners in regional cooperation;
(e) an outline of the specific EU contribution towards achievement of the goals for regional integration, complementary insofar as possible to operations financed by the ACP States themselves and by other external partners, particularly the EU Member States; and
(f) an indication of the most appropriate support and implementation mechanisms to be applied in implementing the above strategies.
Article 9. Resource Allocation
1. The indicative resource allocation among ACP regions shall be based on standard, objective and transparent estimates of needs and the progress and prospects in the process of regional cooperation and integration.
2. The allocated resources shall comprise:
(a) a programmable allocation to cover support to regional integration, sector policies, programmes and projects in support of the focal or non-focal areas of Community assistance; and
(b) an allocation for each ACP region to cover unforeseen needs such as those defined in Articles 72, 72a and 73 of this Agreement where, given the cross-border nature and/or scope of the unforeseen need, such support can more effectively be provided at regional level. These funds shall be accessible under the conditions set out in Articles 72, 72a and 73 of this Agreement, where such support cannot be financed from the Union's budget. Complementarity between interventions provided for under this allocation and possible interventions at country level shall be ensured.
3. The programmable allocation shall facilitate the long-term programming of Community aid for the region concerned. In order to achieve an adequate scale and to increase efficiency, regional and national funds may be mixed for financing regional operations with a distinct national component.
A regional allocation for unforeseen needs may be mobilised to the benefit of the region concerned and of ACP countries outside the region where the nature of the unforeseen need requires their involvement and the centre of gravity of the projects and programmes envisaged remains on the region.
4. Without prejudice to Article 11 concerning reviews, the Community may, in order to take account of new needs or exceptional performance, increase a region's programmable allocation or its allocation for unforeseen needs:
(a) new needs are needs resulting from exceptional circumstances such as crisis and post-crisis situations or from unforeseen needs as referred to in paragraph 2(b);
(b) exceptional performance is a situation in which, outside the mid-term and end-of-term reviews, a region's allocation is totally committed and additional funding from the regional indicative programme can be absorbed against a background of effective regional integration and sound financial management.
Article 10. Regional Indicative Programme
1. On the basis of the resource allocation indicated above, the duly mandated regional organisation(s), and in the absence of such a mandate, the National Authorising Officers of the countries in the region, shall draw up a draft Regional Indicative Programme. In particular, the draft programme shall specify:
(a) the focal sectors and themes of Community aid;
(b) the most appropriate measures and operations to achieve the objectives set for those sectors and themes; and
(c) the programmes and projects enabling those objectives to be attained, in- sofar as they have been clearly identified as well as an indication of the resources to be deployed for each of these elements and a timetable for their implementation
2. The Regional Indicative Programmes shall be adopted by common agreement between the Community and the duly mandated regional organisation(s) or, in the absence of such a mandate, the ACP States concerned.
Article 11. Review Process
1. Financial cooperation between each ACP region and the Community shall be sufficiently flexible to ensure that operations are kept constantly in line with the objectives of this Agreement and to take account of any changes occurring in the economic situation, priorities and objectives of the region concerned. A mid-term and end-of-term review of the regional indicative programmes shall be undertaken to adapt the indicative programme to evolving circumstances and to ensure that they are correctly implemented. Following the completion of mid-term and end-of-term reviews, the Community may revise the resource allocation in the light of current needs and performance.
2. In exceptional circumstances as referred to in Article 9(4), in order to take into account new needs or exceptional performance, the review can be carried out on the demand of either Party. As a result of an ad hoc review, a change in the RSP may be decided by both Parties and/or the resource allocation increased by the Commission on behalf of the Community.
The end-of-term review may also include adaptation for the new multi-annual financial framework of cooperation in terms of both resource allocation and preparation for the next regional indicative programme.
Article 12. Intra-ACP Cooperation
1. Intra-ACP cooperation shall, as an instrument of development, contribute to the objective of the ACP-EC Partnership. The Intra-ACP cooperation is a supra-regional cooperation. It aims to address the shared challenges facing ACP States through operations that transcend the concept of geographic location and benefit many or all ACP States.
2. In keeping with the principles of subsidiarity and complementarity, an intra-ACP intervention is envisaged when national and/or regional action proves impossible or less effective, so as to provide added value in comparison to the operations carried out with other cooperation instruments.
3. When the ACP Group decides to contribute to international or inter-regional initiatives from the intra-ACP fund, appropriate visibility shall be ensured.
Article 12. A Intra-ACP Strategy Paper
1. The programming of the Intra-ACP cooperation shall be the result of an exchange of views between the Commission and the ACP Committee of Ambassadors, and shall be jointly prepared by the Commission services and the ACP Secretariat, following consultations with relevant actors and stakeholders.
2. The Intra-ACP strategy paper defines the priority actions of the Intra-ACP cooperation and actions necessary to build ownership of supported programmes. It shall include the following standard elements:
(a) an analysis of the political, economic, social and environmental context of the ACP Group of States;
(b) an assessment of Intra-ACP cooperation as to its contribution to achieving the objectives of this Agreement and lessons learnt;
(c) an outline of the Intra-ACP strategy and objectives pursued and the expected financing requirements;
(d) an outline of relevant activities of other external partners in the cooperation; and
(e) an indication of the EU contribution towards achievement of the objectives of the Intra-ACP cooperation and its complementarity to operations financed at the national and regional levels and by other external partners, particularly the EU Member States.
Article 12B. Requests for Financing
Requests for financing of intra-ACP programmes shall be submitted:
(a) directly by the ACP Council of Ministers or the ACP Committee of Ambassadors; or
(b) indirectly by:
(i) at least three duly mandated regional bodies or organisations belonging to different geographic regions, or at least two ACP States from each of the three regions;
(ii) international organisations, such as the African Union, carrying out operations that contribute to the objectives of regional cooperation and integration, subject to prior approval by the ACP Committee of Ambassadors; or
(iii) the Caribbean or Pacific regions, in view of their particular geographic situation, subject to prior approval by the ACP Council of Ministers or the ACP Committee of Ambassadors.
Article 12. Resource Allocation
The indicative resource allocation shall be based on the estimates of needs and the progress and prospects in the process of Intra-ACP cooperation. It shall comprise a reserve of non-programmed funds.
Article 13. Intra-acp Indicative Programme
1. The Intra-ACP indicative programme comprises the following main standard elements:
(a) focal sectors and themes of Community aid;
(b) the most appropriate measures and actions for achieving the objectives set for the focal sectors and themes; and
(c) the programmes and projects necessary to achieve the objectives identified, insofar as they have been clearly identified, as well as an indication of the resources to be allocated to each of them and an implementation timetable.
2. The Commission and the ACP Secretariat shall identify and appraise the corresponding actions. On this basis, the intra-ACP indicative programme shall be jointly prepared by the services of the Commission and the ACP Secretariat and presented to the ACP-EC Committee of Ambassadors. It shall be adopted by the Commission, on behalf of the Community and by the ACP Committee of Ambassadors.
3. Without prejudice to point (iii) of Article 12b(b), the ACP Committee of Ambassadors shall present each year a consolidated list of requests for financing of the priority actions foreseen in the Intra-ACP indicative programme, The Commission shall identify and prepare the corresponding actions with the ACP Secretariat as well as an annual action programme. To the extent possible and in consideration of the allocated resources, requests for financing of actions not foreseen in the Intra-ACP indicative programme shall be included in the annual action programme. In exceptional cases, these requests are adopted through a special financing decision of the Commission.
Article 14. Review Process
1. Intra-ACP cooperation should be sufficiently flexible and reactive to ensure that its actions remain consistent with the objectives of this Agreement and to take account of any changes in the priorities and objectives of the ACP Group of States.
2. The ACP Committee of Ambassadors and the Commission shall undertake a mid-term and end-of-term review of the intra-ACP cooperation strategy and indicative programme to adapt it to current circumstances and ensure its correct implementation. If circumstances so require, ad hoc reviews may also be conducted to take account of new needs which may arise from exceptional or unforeseen circumstances, such as those arising from new challenges which are common to ACP countries.
3. The ACP Committee of Ambassadors and the Commission may, at the mid-term and end-of-term reviews, or after an ad hoc review, review and adapt the Intra-ACP cooperation strategy paper.
4. Following the mid-term and end-of-term review exercises, or ad hoc re- views, the ACP Committee of Ambassadors and the Commission may adjust the allocations within the intra-ACP indicative programme and mobilise the non-programmed Intra-ACP reserve.
Chapter 3. Appraisal and Financing
Article 15. Identification, Preparation and Appraisal of Programmes and Projects
1. Programmes and projects that have been presented by the ACP State concerned or the relevant organisation or body at regional or intra-ACP level shall be subject to joint appraisal. The ACP-EC Development Finance Cooperation Committee shall develop the general guidelines and criteria for appraisal of programmes and projects. These programmes and projects are generally multi-annual and may incorporate a whole range of actions of a limited size in a particular area.
2. Programme and project dossiers prepared and submitted for financing must contain all information necessary for the appraisal of the programmes and pro- jects or, where programmes and projects have not been completely defined, provide the broad outlines necessary for their appraisal.
3. Programme and project appraisal shall take due account of national human resource constraints and ensure a strategy favourable to the promotion of such resources, It shall also take into account the specific characteristics and constraints of each ACP State or region.
4. Programmes and projects to be implemented by non-state actors which are eligible in accordance with this Agreement may be appraised by the Commission alone and give rise to the establishment, between the Commission and non-state actors, of grant contracts as defined in Article 19a. This appraisal shall comply with Article 4(1)(d) regarding the types of actors, their eligibility and the type of activity to be supported. The Commission, through the Head of Delegation, shall inform the relevant Authorising Officer of such allocated grants.
Article 16. Financing Proposal and Decision
1. The conclusions of the appraisal shall be summarised in a financing proposal, the final version of which shall be drawn up by the Commission in close collaboration with the ACP State concerned or the relevant organisation or body at regional or intra-ACP level.
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4. The Commission, acting on behalf of the Community, shall communicate its financing decision to the ACP State concerned or the relevant organisation or body at regional or intra-ACP level within 90 days from the date on which the final version of the financial proposal is drawn up.
5. Where the financing proposal is not adopted by the Commission on behalf of the Community, the ACP State concerned or the relevant organisation or body at regional or intra-ACP level shall be informed immediately of the reasons for that decision. In such a case, the representatives of the ACP State concerned or the relevant organisation or body at regional or intra-ACP level may, within 60 days thereafter, request either:
(a) that the matter be referred to the ACP-EC Development Finance Cooperation Committee set up under this Agreement; or
(b) that they be given a hearing by the Community's representatives.
6. Following such a hearing, a definitive decision to adopt or reject the financing proposal shall be taken by the Commission on behalf of the Community. Before any decision is taken, the ACP State concerned or the relevant organisation or body at regional or intra-ACP level may forward to the Commission any facts which may appear necessary to supplement the information available to it.
Article 17. Financing Agreement
1. As a rule, programmes and projects financed by the multi-annual financial framework of cooperation are subject to a financing agreement drawn up by the Commission and the ACP State or the relevant organisation or body at regional or intra-ACP level.
2. The financing agreement shall be drawn up within 60 days following the communication of the financing decision taken by the Commission. The financing agreement shall:
(a) specify, in particular, the details of the Community's financial contribution, the financing arrangements and terms and the general and specific provisions relating to the programme or project concerned, including expected outcomes and results; and
(b) make adequate provision for appropriations to cover cost increases, contingencies, audits and evaluations.
3. Any unexpended balance left upon closure of the accounts of programmes and projects within the timeframe for commitments of the multi-annual financial framework of cooperation from which the programmes and projects have been funded shall accrue to the ACP State or the relevant organisation or body at regional or intra-ACP level.
Article 18. Overrun
1, Once it appears that there is a risk of cost over-runs over and above the financing available under the financing agreement, the relevant Authorising Officer shall notify the Commission and request its prior approval on the measures which the relevant Authorising Officer intends to take in order to cover such cost overruns, either by reducing the scale of the programme or project or by calling on national or other non-Community resources.
2. If it is not possible to reduce the scale of the programme or project or to cover the overruns with other resources, the Commission, acting on behalf of the Community, may, on the basis of a reasoned request from the relevant Authorising Officer, take an additional financing decision on resources from the indicative programme.
Article 19. Retroactive Financing
1. In order to ensure early project start-up, avoid gaps between sequential pro- jects and prevent delays, the ACP States or the relevant organisation or body at regional or intra-ACP level may, on completion of project appraisal and before the financing decision is taken, pre-finance activities linked to the start-up of pro- grammes, preliminary and seasonal work, orders for equipment with long delivery lead times as well as some ongoing operations. Such expenditure shall satisfy the procedures provided for in this Agreement.
2. Any expenditure referred to in paragraph 1 shall be mentioned in the financing proposal and shall be without prejudice to the financing decision taken by the Commission on behalf of the Community.
3. Expenditure made by the ACP State or the relevant organisation or body at regional or intra-ACP level under this Article shall be retroactively financed un- der the programme or project, once the financing agreement is signed.
Chapter 4. Implementation
Article 19A. Implementation Measures
1. Implementation of programmes and projects financed from the multi-annual financial framework of cooperation under this Agreement shall consist chiefly of the following:
(a) awarding of procurement contracts;
(b) awarding of grants;
(c) performance by direct labour;
(d) direct payments as budgetary support, support for sectoral programmes, debt relief and support to mitigate the adverse effects resulting from short-term exogenous shocks including fluctuations of exports earnings.
2. In the context of this Annex, procurement contracts are contracts for pecuniary interest concluded in writing in order to obtain, against payment of a price, the supply of movable assets, the execution of works or the provision of services.
3. In the context of this Annex, grants are direct financial contributions awarded by way of a donation in order to finance:
(a) either an action designed to help achieve an objective of this Agreement or of a programme or project adopted in accordance with this Agreement, or
(b) the functioning of a body which pursues such an objective.
Grants shall be covered by a written contract.
Article 19B. Tender Procedure with Suspension Clause
In order to ensure early project start-up, the ACP States or the relevant organisation or body at regional or intra-ACP level may, in all duly substantiated cases and in agreement with the Commission, issue invitations to tender for all types of contracts with a suspension clause, once project appraisal is completed but before the financing decision is taken. Such a provision must be mentioned in the financing proposal.
Article 19C. Awarding Contracts, Awarding Grants and Performing Contracts
1. Except as provided for in Article 26, contracts and grants shall be attributed and implemented according to Community rules and, except in the specific cases provided for by these rules, according to the standard procedures and documentation set and published by the Commission for the purposes of implementing cooperation actions with third countries and in force at the time the procedure in question is launched.
2. In decentralised management, where a joint assessment shows that the procedures for awarding contracts and grants in the ACP State or the recipient region or the procedures approved by the fund providers are in accordance with the principles of transparency, proportionality, equal treatment and non-discrimination and preclude any kind of conflict of interest, the Commission shall use these procedures, in accordance with the Paris Declaration and without prejudice to Article 26, in full respect of the rules governing the exercise of its powers in this field.
3. The ACP State or the relevant organisation or body at regional or intra-ACP level shall undertake to check regularly that the operations financed from the multi-annual financial framework of cooperation under this Agreement have been properly implemented, to take appropriate measures to prevent irregularities and fraud, and, if necessary, to take legal action to recover unduly paid funds.
4. In decentralised management, contracts are negotiated, established, signed and performed by the ACP States or the relevant organisation or body at regional or intra-ACP level. These states or the relevant organisation or body at regional or intra-ACP level may, however, call upon the Commission to negotiate, establish, sign and perform contracts on their behalf.
5. Pursuant to the commitment referred to in Article 50 of this Agreement, contracts and grants financed from resources from the multi-annual financial framework of cooperation with the ACP shall be performed in accordance with internationally recognised basic standards in the field of labour law.