FRAMEWORK ADMINISTRATIVE AGREEMENT (the Agreement ) the INTERNATIONAL ORGANIZATION FOR MIGRATION (the "IOM" or

Transcription

1 Annex 2 FRAMEWORK ADMINISTRATIVE AGREEMENT (the Agreement ) between the EUROPEAN UNION (the EU) and the INTERNATIONAL ORGANIZATION FOR MIGRATION (the "IOM" or the "Organisation") on actions administered by the IOM and funded or co-funded by the EU Preamble 1. WHEREAS, the IOM, represented by its Director General, and the EU, represented by the European Commission, "the Commission", referred to individually as a Party and collectively as Parties" acknowledge the need to define an enabling environment in order to facilitate effective cooperation within the legal and policy frameworks of each of the parties and in full respect of the EU Financial Regulations 1 by which the EU is bound; 2. WHEREAS, the Commission acts in its capacity to manage the EU's budget and the European Development Fund and, under the EU Financial Regulation, may implement the EU budget directly or indirectly by entrusting budget implementation tasks to the IOM. 3. WHEREAS, the Parties entered into a framework agreement on 8 November 2011 (the "Original Agreement"), which due to certain changes in the rules and regulations of the Parties, the Parties now desire to restate; 4. WHEREAS, the Commission has developed standard contractual arrangements for managing the EU funds under both Indirect Management and Direct Management (Pillar Assessed Grant Or Delegation Agreement, hereinafter: "PAGoDA"), adopted by Commission Decision C(2015)XXXX which are applicable to both EU External and Internal Policies, except in the fields of humanitarian aid and research (Horizons 2020 Programme), which provide such enabling environment; 5. WHEREAS, this Agreement aims at taking into account the specificities of the IOM in the implementation of the standard provisions of PAGoDA, in order to simplify the contractual negotiations; 1 Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council, of 25 October 2012, on the financial rules applicable to the general budget of the Union (OJ L 298, of 26 October 2012, pp. 1-96), and the Regulation (EU) 2015/323 of 2 March 2015 on the financial regulation applicable to the 11 th European Development Fund (OJ L 58, of 3 march 2015, pp.17-38). 1

2 6. WHEREAS, the provisions of this Agreement refer to the version of PAGoDA applicable at the signature of this Agreement (November 2014) and are applicable mutatis mutandis to its subsequent amendments; 7. WHEREAS, the IOM is promptly informed of such amendments upon their adoption and has the right to provide its observations and terminate the Agreement in case of disagreement; 8. WHEREAS, this Agreement is subject to the positive assessment of the IOM pillars conducted on the basis of the terms of reference elaborated by the Commission based on Article 60.2 of the EU Financial Regulation (the "pillars assessment"). The pillars assessment of the Organisation has been finalised and the Commission acknowledged its positive outcome on 18 December 2014; 9. WHEREAS, nothing in this Agreement shall override the provisions contained in the specific contractual framework concluded between the Parties on the financing of humanitarian aid actions (i.e. the Framework Partnership Agreement on Humanitarian Aid and underlying contracting templates); 10. WHEREAS, any budgetary commitment on behalf of the EU under the EU Financial Regulations is subject to the conclusion of a specific agreement. NOW, THEREFORE, the Parties hereto agree as follows: I. Scope of the Agreement I.1. For Actions administered by the IOM and financed or co-financed by the EU where such financing or co-financing is entrusted by the Commission itself or by the partner country to the IOM under Indirect Management, the PAGoDA provisions for Delegation Agreement (Special Conditions for EU Delegation Agreement and its Annexes) shall apply with the provisions set out in Part II of this Agreement and subject to the positive outcome of the IOM pillars assessment. I.2. For Actions administered by the IOM and financed or co-financed by the EU where such financing or co-financing qualifies as PA Grant and is entrusted to the IOM either by the Commission under Direct Management or by the partner country, the PAGoDA provisions for PA Grants (Special Conditions for PA Grant Agreement and its Annexes) shall apply with the provisions set out in Part III of this Agreement. I.3. In specific circumstances, the Parties may agree to additional specific provisions or to use another contractual template. I.4. The Parties further agree on a specific verification clause, set out in Annex I, applicable to both Delegation Agreements and PA Grants signed by the IOM. The verification clause applies also when the IOM takes part in operations financed or co-financed by the EU as Sub-Delegatee (in a Delegation 2

3 Agreement), Co-Beneficiary (in a PA Grant) or contractor or grant beneficiary/ recipient of financial support. I.5. The Parties also commit themselves to cooperate in order to interpret and apply in a coherent and consistent manner these contractual arrangements while keeping in mind the specificities of the IOM as an intergovernmental organisation. II. Provisions applicable to Delegation Agreements II.1. Supplementary provisions II.1.1. Article 7 of the Special Conditions of each Delegation Agreement signed between the parties shall state: 7(1) The following shall supplement the General Conditions: 7(1)(1) Article 18 shall be supplemented by the following: "Where the implementation of the Action requires the setting up or the use of local infrastructure in the partner country/ies (field office/s), the Organisation may declare as acceptable expenditure the capitalised and operating costs of local infrastructure if all the following conditions are fulfilled: (a) They comply with the acceptability criteria referred to in Article 18.1 of the General Conditions; (b) They fall within one of the following categories: (i) costs of staff, including administrative and support staff, directly assigned to the operations of local (ii) travel and subsistence costs for staff and other persons directly assigned to the operations of local (iii) depreciation costs, rental costs or lease of equipment and assets composing local (iv) costs of maintenance and repair contracts specifically awarded for the operations of local (v) costs of consumables and supplies specifically purchased for the operations of local (vi) costs of IT and telecommunication services specifically purchased for the operations of local (vii) costs of energy and water specifically supplied for the operations of local (viii)costs of facility management contracts including security fees and insurance costs specifically awarded for the operations of local (c) The Organisation declares as acceptable expenditure only the portion of the capitalised and operating costs of local infrastructure which corresponds to the duration of the Action and (i) the rate of actual use of local infrastructure for the purposes of the Action; or 3

4 (ii) the rate of use of local infrastructure for the purposes of the Action, determined by the Organisation on the basis of a simplified allocation method, provided that the allocation method is: - compliant with the Organisation's usual accounting and management practices and applied in a consistent manner regardless of the source of funding, and - based on an objective, fair and reliable allocation key." II.2. Derogation provisions II.2.1 For non-eu External Actions, if justified in view of the nature or level of complexity of the Action, the Parties may agree in the Special Conditions on a period for submitting the final report longer than the three-month period set out in Article 3.8 of the General Conditions and up to six months. In such cases, Article 7 of the Special Conditions of each Delegation Agreement signed between the parties shall state: "7(2) The following derogations from the General Conditions shall apply: 7(2)(1) By derogation from Article 3.8 of the General Conditions, the final report shall be submitted at the latest [ ] months after the end of the Implementation Period. II.3. Interpretative provisions II.3.1. The accounting currency for the Action as mentioned in Article 3.14 of the General Conditions corresponds to the IOM s project currency. II.3.2. With respect to Article 1.3 b) of the Special Conditions of each Delegation Agreement, it is understood that, subject to the positive outcome of the pillars assessment, the Organisation shall apply its own rules for grant award procedure, as assessed in the ex-ante pillars assessment and its own procurement procedures, as assessed in the ex-ante pillars assessment. II.3.3. It is understood that article 1.5 of the Special Conditions of each Delegation Agreement refers to this Agreement. II.3.4.The Parties will agree on the pre-financing rate referred to in Article 4.2 of the Special Conditions taking account of the IOM financing needs according to the project implementation schedule and the EU budget availability. II.3.5. Subject to the fact that according to IOM applicable rules, the interest on pre-financing shall not be due to donors, Article 3.3 of the Special Conditions of each Delegation Agreement shall state that interest generated on pre-financing shall not be due. III. Provisions applicable to PA Grants 4

5 III.1. Supplementary provisions III.1.1. Article 7 of the Special Conditions of for each Grant Agreement signed between the parties shall state: "7(1) The following shall supplement the General Conditions: 7(1)(1) Article 25 shall be supplemented by the following: "Where the implementation of the Action requires the setting up or the use of local infrastructure in the partner country/ies (field office/s), the Organisation may declare as eligible direct costs the capitalised and operating costs of local infrastructure if all the following conditions are fulfilled: (a) They comply with the cost eligibility criteria referred to in Article 25.1 of the General Conditions; (b) They fall within one of the following categories: (i) costs of staff, including administrative and support staff, directly assigned to the operations of local (ii) travel and subsistence costs for staff and other persons directly assigned to the operations of local (iii) depreciation costs, rental costs or lease of equipment and assets composing local (iv) costs of maintenance and repair contracts specifically awarded for the operations of local (v) costs of consumables and supplies specifically purchased for the operations of local (vi) costs of IT and telecommunication services specifically purchased for the operations of local (vii) costs of energy and water specifically supplied for the operations of local (viii) costs of facility management contracts including security fees and insurance costs specifically awarded for the operations of local (c) The Organisation declares as direct eligible costs only the portion of the capitalised and operating costs of local infrastructure which corresponds to the duration of the Action and (i) the rate of actual use of local infrastructure for the purposes of the Action; or (ii) the rate of use of local infrastructure for the purposes of the Action, determined by the Organisation on the basis of a simplified allocation method, provided that the allocation method is: - compliant with the Organisation's usual accounting and management practices and applied in a consistent manner regardless of the source of funding, and - based on an objective, fair and reliable allocation key." III.2. Derogation provisions 5

6 II.2.1 For non-eu External Actions, if justified in view of the nature or level of complexity of the Action, the Parties may agree in the Special Conditions on a period for submitting the final report longer than the three-month period set out in Article 3.8 of the General Conditions and up to six months. In such cases, Article 7 of the Special Conditions of each Delegation Agreement signed between the parties shall state: "7(2) The following derogations from the General Conditions shall apply: 7(2)(1) By derogation from Article 3.8 of the General Conditions, the final report shall be submitted at the latest [ ] months after the end of the Implementation Period. III.3. Interpretative provisions III.3.1 The accounting currency for the Action as mentioned in Article 3.14 of Annex II corresponds to the IOM s project currency. III.3.2. It is understood that Article 1.6 of the Special Conditions of each Grant Agreement refers to this Agreement. III.3.3. The Parties will agree on the pre-financing rate referred to in Article 4.1 of the Special Conditions taking account of the IOM financing needs according to the project implementation schedule and the EU budget availability. IV. Specific Contact points IV.1. The Contact points within the IOM having the appropriate powers to co-operate directly with the European Anti-Fraud Office in order to facilitate the latter s operational activities are: Mr. Eugenio Ambrosi Regional Director International Organization for Migration Regional Office for the EEA, the EU and NATO Address : Rue Montoyer 40, B-1000 Brussels, Belgium eambrosi@iom.int Tel: Fax: IV.2. The IOM Contact point on questions related to Central Exclusion Database is: 6

7 Mr. Eugenio Ambrosi Regional Director International Organization for Migration Regional Office for the EEA, the EU and NATO Address : Rue Montoyer 40, B-1000 Brussels, Belgium eambrosi@iom.int Tel: Fax: IV.3 All communications related to this Framework Agreement will be directed to: a) For IOM: Mr. Eugenio Ambrosi Regional Director International Organization for Migration Regional Office for the EEA, the EU and NATO Address : Rue Montoyer 40, B-1000 Brussels, Belgium eambrosi@iom.int Tel: Fax: b) For the Commission: European Commission Directorate General for International Cooperation and Development - Europaid For the attention of the Head of Unit of the Legal Affairs Unit Rue de la Loi 41 B-1040 Bruxelles The IOM and the Commission will inform each other without delay of any change in the above mentioned Contact points. V. Status of IOM, settlement of disputes V.1. Nothing in this Agreement shall be interpreted as a waiver of any privileges and immunities accorded to IOM or to the Commission under international law. V.2. Any dispute, controversy or claim arising out of or relating to the interpretation, application or performance of this Agreement, including its existence, validity or termination, shall be, if not settled amicably by negotiation between the Parties, settled by arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitration Involving International Organizations and States, as in effect on the date of this Agreement. The appointing authority shall be the Secretary General of the 7

8 Permanent Court of Arbitration. The arbitrator s decision shall be binding on all Parties and there shall be no appeal. VI. Entry into force, termination, amendments VI.1. This Agreement shall enter into force on the date the latter of the parties duly signs. From this date the Original Agreement is replaced by the present Agreement. VI.2. This Agreement may be reviewed after a period of 12 months in the light of the results obtained. VI.3 This Agreement shall not affect contracts entered into force between IOM and the Commission prior to the date of its entry into force, which shall remain governed by any Framework Agreement in force at the time of the conclusion of such contracts where applicable, unless otherwise agreed on a case by case basis by the Parties in writing. VI.4. The Parties undertake to promote regular exchange of information on all matters arising out of this Agreement. VI.5. Any amendment to this Agreement shall be done in writing by exchange of letters between the parties. Any change in the contact points mentioned in Part IV of this Agreement and in Annex I will be notified in writing to the other Party. VI.6. Either Party may terminate this Agreement by serving six months written notice. Unless the parties agree otherwise, the contracts governed by the terms of this Agreement which entered into force before the date of termination, shall not be affected by the termination. * * * IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Agreement. For the Commission ( ) On behalf of the European Union For IOM ( ) 8

9 ANNEX I AGREEMENT ON THE VERIFICATION IMPLEMENTING RULES 1. Interpretation of verification provisions As regards Article 17 of the General Conditions (GC) of the Pillars Assessed Grant Or Delegation Agreement (PAGoDA), or similar provisions in other agreements, it is agreed that all financial information relevant to the Actions financed by the European Union shall, upon request, be supplied to the Commission 2. It is understood that the information shall be drawn from accounts and records and will be in a form which makes it possible for the Commission to verify the use to which its funds or contributions have been put and that EU funds are properly used in accordance with the principles of the FA and the conditions of the Agreement. It is further agreed and understood that clarifications, including verification of specific documents, may be requested by the Commission. If so requested by the Commission, the Organisation, where appropriate, may request its external auditors to respond directly to the Commission in respect of such clarifications. As regards the verifications to which reference is made in Article 17 of the GC of the PAGoDA, or similar provisions in other agreements, it is understood that representatives of the Commission will be given access to the site(s) of the Action or the headquarters of the Organisation, taking into account the guidelines for verifications under point 2 below. The Organisation will supply all relevant financial and operational information and will explain to the Commission representatives, with appropriate concrete examples, how the accounts are managed and the procedures used to ensure transparency and accuracy in the accounts and to guard against the misuse of funds and fraud. The purpose of such verifications is to allow representatives from the European Union to be in a position to report to their own institutions and to the European Parliament on the implementation of the Actions. It is understood that such verifications will be limited to information on the use of EU funds and is without prejudice to the immunities of the Organisation as set forth in the respective Articles of Agreements or Conventions. Any question of application and interpretation of, and any dispute arising from, this Agreement shall be resolved by amicable means between the Commission and the Organisation, without prejudice to Article 14 of the GC of the PAGoDA or similar provisions in other agreements. Each party to this Agreement is to bear its own costs under the arrangements. 2. Guidelines for verifications by Commission services to the Organisation 2.1 Purpose of the verification The Commission acknowledges the mandated primacy of the Organisation oversight and control systems, including the principle of exclusive or single audit, and in keeping with internationally-accepted practice in the discipline of financial oversight and control, will endeavour to build reliance on these systems. 2 The present Agreement only applies to the European Commission. References to the Commission hereinafter shall be deemed to apply of the European Commission's services and their representatives, excluding OLAF. 9

10 Commission services, which are responsible for financing or co-financing Actions administered by the Organisation, are required by the Financial Regulation to verify the legality and regularity of the expenditure and that it is in accordance with the principles of sound financial management. The Organisation therefore recognises the need for the Commission to obtain an assurance that an adequate system of accountability is in place (accounting systems and procedures, reporting, including the oversight mechanisms), to acquire an understanding of that system, and to report to the EU institutions on the proper use of the EU funds. The provisions allowing the Commission to carry out such verifications - the verification clause - are contained in Article 17 of the GC of PAGoDA or similar provisions in other agreements. 2.2 Preparation of the verification Requests by the Commission for verifications shall be sent to the Organisation: Mr. Eugenio Ambrosi Regional Director International Organization for Migration Regional Office for the EEA, the EU and NATO Address : Rue Montoyer 40, B-1000 Brussels, Belgium Tel: , Fax: eambrosi@iom.int In order to ensure that this Agreement functions satisfactorily, it is important that the verifications are carefully prepared, that sufficient notice, at least two months, is given and that the Organisation is informed in advance of the Actions to be verified. The Commission and the Organisation shall agree in advance on procedural matters. These matters include the timing of verification, questions the verification team wishes to review with the management of the Organisation, the nature of the financial information and whether verifications are to be conducted at headquarters locations and/or field offices. This will ensure that the necessary documentation, which may not be readily available, can be prepared. It will also enable the delegated focal point and/or internal and/or external auditors to be advised so that the delegated focal point, and where possible, the internal and/or external auditor, are available to assist the verification team. Access to original documentation or certified true copies held by the Organisation will be ensured. The relevant services of the Organisation will assist the verification team in seeking access to original documentation held by the Sub-delegatees, Co-Beneficiaries and other third parties. 2.3 Conduct of the verification Verifications by the Commission should be conducted in a collaborative manner between the Commission s representatives and the Organisation s operational and accounting services. The verification will be carried out by Commission representatives in a reasonable manner and without creating an undue burden on the Organisation's regular operations. Verifications are based on the concept of "agreed upon procedures". The verification team performs procedures which the Commission has specified and listed in in the terms of reference. The verification team does not provide an audit opinion but a report of factual findings. The objective is not to carry out an audit of the Organisation but to verify, by sample-checking, how the EU funds have been used. 10

11 In carrying out the verification, the verification team will work as far as possible in close collaboration with the internal and external audit services of the Organisation, which will allow the verification including visual inspection - by Commission representatives of original or certified true copies justifying vouchers such as invoices, replies to calls for tender, proof of payments, justifying vouchers in the case of sub-contracting, etc. The verification team shall have access to all original documents (which may be in electronic form) or certified true copies, for verification purposes. Documents will only be photocopied if this is necessary and copies will not be taken of documents which the Organisation considers particularly sensitive. In cases where the verification team identifies serious problems of mismanagement, irregularities, weaknesses in the control systems and procedures, this will be brought immediately to the attention of the Organisation: Mr. Eugenio Ambrosi Regional Director International Organization for Migration Regional Office for the EEA, the EU and NATO Address : Rue Montoyer 40, B-1000 Brussels, Belgium Tel: , Fax: eambrosi@iom.int The verification team will make a draft of its report available to the Organisation's Management for comments prior to final issuance. 2.4 Procedure for dealing with problems arising during a verification If problems arise concerning access to documentation or any other aspect of this Agreement, the verification team shall contact immediately the responsible Director at Commission headquarters in order to resolve difficulties without delay and to complete the verification on time. 11