COUNCIL DECISION 2013/755/EU
of 25 November 2013
on the association of the overseas countries and territories with the European Union
(‘Overseas Association Decision’)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 203 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national Parliaments,
Having regard to the opinion of the European Parliament,
Acting in accordance with a special legislative procedure,
Whereas:
(1)
This Decision replaces Council Decision 2001/822/EC (1) which applies until 31 December 2013. Pursuant to Article 62 of Decision 2001/822/EC, the Council is to establish the provisions to be laid down for the subsequent application of the principles set out in Articles 198 to 202 of the Treaty on the Functioning of the European Union (TFEU).
(2)
In its conclusions of 22 December 2009 on the EU’s relations with Overseas Countries and Territories (OCTs), the Council invited the Commission to submit a legislative proposal to revise the Overseas Association Decision before July 2012. The Council endorsed the Commission’s proposal to base the future partnership between the Union and the OCTs on three key pillars: (1) enhancing competitiveness, (2) strengthening resilience and reducing vulnerability and (3) promoting cooperation and integration between the OCTs and other partners and neighbouring regions.
(3)
The Commission held a public consultation between June and October 2008 and proposed a number of orientations for a new Association Decision. The results of this consultation were synthesised in a Communication of 6 November 2009 entitled ‘Elements for a new partnership between the European Union and the Overseas Countries and Territories (OCTs)’.
(4)
The TFEU and its secondary legislation do not automatically apply to the OCTs, with the exception of a number of provisions which explicitly provide for the contrary. Although not third countries, the OCTs do not form part of the single market and must comply with the obligations imposed on third countries in respect of trade, particularly rules of origin, health and plant health standards and safeguard measures.
(5)
The special relationship between the Union and the OCTs should move away from a classic development cooperation approach to a reciprocal partnership to support the OCTs’ sustainable development. Moreover, the solidarity between the Union and the OCTs should be based on their unique relationship and their belonging to the same ‘European family’.
(6)
The contribution of civil society to OCTs development can be enhanced by strengthening civil society organisations in all spheres of cooperation.
(7)
Given the OCTs’ geographical position, cooperation between them and their neighbours, despite the different status vis-à-vis Union law of each actor in a given geographical area, should be pursued in the interests of all sides with a particular focus on areas of common interest and the promotion of the Union’s values and standards. Moreover, the OCTs could act as regional hubs or centres of excellence in their regions.
(8)
The Union should support the policies and strategies of an OCTs in an area of mutual interest on the basis of the specific need, potential and choice of the OCTs concerned.
(9)
The association should aim at ensuring the conservation, restoration and sustainable use of biological diversity and ecosystem services as a key element for the achievement of sustainable development.
(10)
The OCTs are host to wide terrestrial and marine biodiversity. Climate change could impact on OCTs’ natural environment and constitute a threat undermining their sustainable development. Actions in the fields of conservation of biodiversity and ecosystem services, disaster risk reduction, sustainable management of natural resources and promotion of sustainable energy would contribute to adaptation and mitigation of climate change in the OCTs.
(11)
The significant role which OCTs could play in contributing to the Union’s commitments under Multilateral Environmental Agreements should be recognised in the relations between the Union and the OCTs.
(12)
It is important to support the OCTs in their efforts in becoming less dependent on fossil fuels, with a view to reducing their vulnerability to fuels access and price volatility, thus making their economy more resilient and less vulnerable to external shocks.
(13)
The Union could assist the OCTs to reduce their vulnerability to disasters and support the actions and measures they undertake for this purpose.
(14)
The effects of the OCTs’ remoteness constitute a barrier to their competitiveness and thus it is important to improve the accessibility of the OCTs.
(15)
The Union and the OCTs recognise the importance of education and vocational training as a lever for the OCTs’ sustainable development.
(16)
Further economic and social development of the OCTs should be mutually supportive and aim at strengthening competitiveness of the OCTs’ economy, as well as attaining social welfare and inclusion, in particular for vulnerable groups and persons with disabilities. To that end, cooperation between the Union and OCTs should include exchange of information and best practice in the relevant areas, including skills development and social protection as well as promoting the rights of persons with disabilities, bearing in mind the principles of the UN Convention on the Rights of Persons with Disabilities. Moreover, the association between the Union and OCTs should contribute to the promotion of decent work, including best practice in social dialogue, as well as respect for core labour standards, equal opportunities, non-discrimination and accessibility in the OCTs and regions where they are located.
(17)
Tourism could constitute an area of cooperation between the Union and the OCTs. The aim of cooperation should be to support the efforts of the authorities of the OCTs to derive maximum benefit from local, regional and international tourism and stimulate private financial flows from the Union and other sources into the development of tourism in the OCTs. Particular attention should be given to the need to integrate tourism into the social, cultural and economic life of the people, as well as respect for the environment.
(18)
The incidence of communicable diseases in the OCTs, such as dengue in the Caribbean and the Pacific and chikungunya in the Indian Ocean region, can have a significant negative impact on health and the economy. Beyond decreasing the productivity of affected populations, epidemics in OCTs are likely to heavily impact tourism, which is a mainstay of many OCTs’ economies. Given the large number of tourists and migrant workers travelling to OCTs, they are vulnerable to importation of infectious diseases. Inversely, the large flow of people travelling back from OCTs could be a vector of introduction of communicable diseases in Europe. Ensuring a ‘safe tourism’ is therefore a critical factor for the sustainability of those OCTs economies that heavily rely on tourism.
(19)
The association between the Union and the OCTs should take into account and contribute to the preservation of the cultural diversity and identity of OCTs.
(20)
The Union recognises the importance of developing a more active partnership with the OCTs as regards good governance and the fight against organised crime, trafficking in human beings, terrorism and corruption.
(21)
Trade and trade-related cooperation between the Union and the OCTs should contribute to the objective of sustainable economic development, social development and environmental protection.
(22)
Global changes, reflected in the continuing process of trade liberalisation, broadly implicate the Union, the principal trading partner of the OCTs, their ACP neighbours and other economic partners.
(23)
The OCTs are fragile island environments requiring adequate protection, including in respect of waste management. In respect of radioactive waste, Article 198 of the Euratom Treaty and the related secondary legislation provide for this, except with regard to Greenland, to which the Euratom Treaty does not apply. For other waste, it should be specified which Union rules are to apply in respect of the OCTs.
(24)
This Decision should provide for more flexible rules of origin, including new possibilities of cumulation of origin. Cumulation should be possible not only with OCTs and Economic Partnership Agreement (EPA) countries, but under certain conditions, also for products originating in countries with which the Union is applying a free trade agreement as well as for products entering the Union duty-free and quota-free under the Union’s General System of Preferences (2), also subject to conditions. These conditions are necessary to prevent trade circumvention and ensure the proper functioning of the cumulation arrangements.
(25)
The procedures for certification of OCTs origin should be updated, in the interests of the operators and administrations concerned in the OCTs. Provisions on administrative cooperation between the Union and the OCTs should also be updated accordingly.
(26)
Methods of administrative cooperation and the possibility to temporarily withdraw preferential treatment in respect of all or of certain products originating in the OCTs in cases of fraud, irregularities or a systematic failure to comply with the rules concerning the origin of the products, or a failure to provide administrative cooperation should be established. In addition, sufficiently detailed safeguard and surveillance provisions should be laid down. This would allow OCTs and Union competent authorities as well as economic operators to rely on clear and transparent rules and procedures. Finally, it is a matter of common interest to ensure the proper application of the procedures and arrangements that allow the OCTs to export goods to the Union duty-free and quota-free.
(27)
Taking into account the aims of integration and the developments of global trade in the area of services and establishment, it is necessary to support the development of services markets and investment possibilities by improving the market access of OCTs services and investment to the Union market. In this regard the Union should offer to OCTs the best possible treatment offered to any other trading partner through comprehensive most favoured nation clauses, while ensuring more flexible possibilities for trade relations for OCTs by limiting the treatment offered by OCTs to the Union to what has been offered to other major trading economies.
(28)
Intellectual property rights are a crucial component for stimulating innovation and are a tool to promote economic and social development. They benefit countries by allowing them to protect intellectual creations and assets. Their protection and enforcement helps to facilitate trade, growth and foreign investment as well as to combat the health and safety risks of counterfeit products. OCTs can benefit from a policy on intellectual property rights, in particular in the context of the preservation of biodiversity and the development of technology.
(29)
Sanitary and phyto-sanitary measures and technical barriers to trade may have an impact on trade and require cooperation. Trade and trade-related cooperation should also address competition policies and intellectual property rights, which affect the equitable distribution of the gains of trade.
(30)
In order to ensure that OCTs may participate under the best conditions in the Union’s internal market as well as in regional, sub-regional and international markets, it is important to develop the capacity of the OCTs in relevant areas. These include the development of human resources and skills, the development of small and medium enterprises, the diversification of economic sectors and the implementation of an appropriate legal framework in order to achieve a business climate conducive to investment.
(31)
Cooperation in the area of financial services between the Union and OCTs should contribute to building a safer, sounder, more transparent financial system that is essential to enhance global financial stability and to underpin sustainable growth. Efforts in that area should focus on convergence with internationally agreed standards and approximation of OCTs legislation with Union acquis on financial services. Adequate attention should be paid to strengthening administrative capacity of OCTs authorities, including in the area of supervision.
(32)
Financial assistance to the OCTs should be allocated on the basis of uniform, transparent and effective criteria, taking into account the needs and performances of the OCTs. Such criteria should take into account the size of the population, the level of Gross Domestic Product (GDP), the level of previous allocations from the European Development Fund (EDF) and constraints due to the geographical isolation of OCTs.
(33)
In the interest of efficiency, simplification and recognition of the management capacities of the OCTs authorities, the financial resources granted to the OCTs should be managed on the basis of a reciprocal partnership. Moreover, the authorities of the OCTs should assume the responsibility for the formulation and implementation of those policies agreed upon between the parties as cooperation strategies.
(34)
The procedures regarding financial assistance should delegate the main responsibility for the 11th EDF programming and implementing cooperation to the OCTs in particular. Cooperation should be conducted predominantly in conformity with OCTs territorial regulations and should underpin support for monitoring, evaluating and auditing the operations programmed. The limited administrative and human resources of the OCTs should be taken into account in the programming and implementation process. In addition, it is necessary to clarify that OCTs are eligible for different sources of funding.
(35)
OCTs may participate in European Groupings of Territorial Cooperation (EGTC), pursuant to Regulation (EC) No 1082/2006 of the European Parliament and of the Council (3). Regional cooperation for OCTs may therefore consist in their participation in an EGTC, in accordance with the arrangements applicable to the Member State to which the OCTs is linked. OCTs members of an EGTC may be eligible for regional financing.
(36)
In order to take into account technological developments and changes in customs legislation, the power to adopt acts amending the Appendices to Annex VI, in accordance with Article 290 TFEU, should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a timely and appropriate transmission of relevant documents to the Council.
(37)
By virtue of this Decision, the Council should be able to produce an innovative response to all the factors mentioned above, which is both consistent and tailored to the variety of situations,
HAS ADOPTED THIS DECISION:
PART ONE
GENERAL PROVISIONS OF THE ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES WITH THE UNION
Chapter 1
General provisions
Article 1
Purpose
1. This Decision establishes an association of the overseas countries and territories (OCTs) with the Union (the ‘association’), which constitutes a partnership, based on Article 198 TFEU, to support the OCTs’ sustainable development as well as to promote the values and standards of the Union in the wider world.
2. The partners to the association are the Union, the OCTs and the Member States to which they are linked.
Article 2
Territorial application
The association shall apply to the OCTs listed in Annex II to the TFEU.
Article 3
Objectives, principles and values
1. The association between the Union and the OCTs shall be based on objectives, principles and values shared by the OCTs, the Member States to which they are linked and the Union.
2. The association shall pursue the overall objectives laid down in Article 199 TFEU, by the enhancement of the OCTs’s competitiveness, the strengthening of the OCTs’ resilience, the reduction of their economic and environmental vulnerability and the promotion of cooperation between them and other partners.
3. In pursuing those objectives, the association shall respect the fundamental principles of liberty, democracy, human rights and fundamental freedoms, the rule of law, good governance and sustainable development, all of which are common to the OCTs and the Member States to which they are linked.
4. There shall be no discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in the areas of cooperation referred to in this Decision.
5. The partners recognise each other’s rights to determine their sustainable development policies and priorities, to establish their own levels of domestic environmental and labour protection, and to adopt or modify accordingly the relevant laws and policies, consistently with commitment to the internationally recognised standards and agreements. In doing so, they shall strive to ensure high levels of environmental and labour protection.
6. In implementing this Decision, the partners shall be guided by the principles of transparency, subsidiarity and the need for efficiency and shall equally address the three pillars of OCTs’ sustainable development: economic development, social development and environmental protection.
Article 4
Management of the association
Management of the association shall be conducted by the Commission and the OCTs authorities and, where necessary, by the Member State to which the OCTs is linked, in accordance with respective institutional, legal and financial competences.
Article 5
Mutual interests, complementarity and priorities
1. The association is the framework for policy dialogue and cooperation on issues of mutual interest.
2. Priority shall be given to cooperation in areas of mutual interest, such as:
(a)
the economic diversification of OCTs economies, including their further integration in world and regional economies;
(b)
the promotion of green growth;
(c)
the sustainable management of natural resources, including the conservation and sustainable use of biodiversity and ecosystem services;
(d)
the adaptation to and mitigation of impacts of climate change;
(e)
the promotion of disaster risk reduction;
(f)
the promotion of research, innovation and scientific cooperation activities;
(g)
the promotion of social, cultural and economic exchanges between the OCTs, their neighbours and other partners.
3. Cooperation in the areas of mutual interest aims at the promotion of OCTs self-reliance and of the development of OCTs’ capacities to formulate, implement and monitor strategies and policies set out in paragraph 2.
Article 6
Promotion of the association
1. With an aim to strengthen the relations between themselves, the Union and the OCTs endeavour to make the association known among their citizens, in particular by promoting the development of the links and cooperation between the authorities, academic community, civil society and businesses of OCTs on the one hand and their interlocutors within the Union on the other.
2. OCTs shall make efforts to strengthen and promote their relations with the Union as a whole. The Member States shall support these efforts.
Article 7
Regional cooperation, regional integration and cooperation with other partners
1. Subject to Article 3 of this Decision, the association aims at supporting the OCTs in their efforts to take part in relevant international, regional and/or sub-regional cooperation initiatives as well as regional or sub-regional integration processes, in line with their own aspirations and in accordance with objectives and priorities defined by the competent OCTs authorities.
2. To this end, the Union and the OCTs may exchange information and best practices or establish any other form of close cooperation and coordination with other partners in the context of the OCTs’ participation in regional and international organisations, where appropriate by means of international agreements.
3. The association aims at supporting cooperation between the OCTs and other partners in the areas of cooperation set out in Parts Two and Three of this Decision. In that respect, the objective of the association is to promote the cooperation between the OCTs and the outermost regions, referred to in Article 349 TFEU, their neighbouring African, Caribbean and Pacific (ACP) and non-ACP States. In order to achieve that objective, the Union shall improve coordination and synergies between cooperation programmes supported by different EU financial instruments. The Union shall also endeavour to associate OCTs in its instances of dialogue with their neighbouring countries, whether they are ACP or non-ACP States, and with the outermost regions, where appropriate.
4. The support to OCTs’ participation in relevant regional integration organisations shall focus in particular on:
(a)
capacity building of relevant regional organisations and institutions of which OCTs are members;
(b)
regional or sub-regional initiatives such as the implementation of sectoral reform policies relating to the areas of cooperation identified in Parts Two and Three of this Decision;
(c)
the awareness and knowledge of the OCTs on the impacts of regional integration processes in different areas;
(d)
OCTs participation in the development of regional markets within the context of regional integration organisations;
(e)
cross-border investment between OCTs and their neighbours.
Article 8
Participation in European Groupings of Territorial Cooperation
In the application of Article 7(1) to (3) of this Decision, the cooperation initiatives or other forms of cooperation shall also mean that governmental authorities, regional and sub-regional organisations, local authorities and, where appropriate, other public and private bodies or institutions (including public service providers) from an OCTs may participate in a European Grouping of Territorial Cooperation (EGTC) subject to the rules and objectives of the cooperation activities of this Decision and those of Regulation (EC) No 1082/2006 and in accordance with the arrangements applicable to the Member State to which the OCTs is linked.
Article 9
Specific treatment
1. The association shall take into account the diversity of the OCTs in terms of economic development and capacity to fully benefit from regional cooperation and regional integration referred to in Article 7.
2. A specific treatment shall be established for isolated OCTs.
3. In order to enable isolated OCTs to overcome structural and other obstacles to their development, this specific treatment shall take account of their specific difficulties, inter alia, when determining the volume of financial assistance and the conditions attached thereto.
4. The OCTs which shall be considered to be isolated are listed in Annex I.
Chapter 2
Actors of cooperation
Article 10
General approach
1. The association shall be based on a broad dialogue and consultations on issues of mutual interest between the OCTs, the Member States to which they are linked and the Commission, and, if appropriate, the European Investment Bank (EIB).
2. The OCTs shall organise, where appropriate, a dialogue and consultations with authorities and bodies such as:
(a)
the competent local and other public authorities;
(b)
the economic and social partners;
(c)
any other appropriate body representing civil society, environmental partners, non-governmental organisations, and bodies responsible for promoting of equality between men and women.
Article 11
Actors of cooperation
1. Actors of cooperation in the OCTs shall include:
(a)
the OCTs’ governmental authorities;
(b)
the local authorities within the OCTs;
(c)
public service providers and civil society organisations, such as social, business, employers’ and trade union associations, and local, national or international non-governmental organisations;
(d)
regional and sub-regional organisations.
2. The Member States to which the OCTs are linked shall inform the Commission within three months of the entry into force of this Decision of the governmental and local authorities referred to in points (a) and (b) of paragraph 1.
Article 12
Responsibilities of the non-governmental actors
1. Non-governmental actors may play a role in the exchange of information and consultations concerning the cooperation, and in particular for the preparation and implementation of cooperation assistance, projects or programmes. They may receive a delegation of financial management powers for implementing such projects or programmes for the purpose of supporting local development initiatives.
2. Non-governmental actors eligible for decentralised management of projects or programmes shall be identified by agreement between the OCTs authorities, the Commission and the Member State to which the OCTs is linked, taking into account the subject concerned, their expertise and field of activity. The process of identification shall be conducted in each OCTs as part of the broad dialogue and consultations referred to in Article 10.
3. The association aims at contributing to the efforts of the OCTs to strengthen civil society organisations, concerning in particular their creation and development, and the development of the arrangements necessary for opening their involvement in the design, implementation and evaluation of development strategies and programmes.
Chapter 3
Institutional framework of the association
Article 13
Guiding principles for dialogue
1. The Union, the OCTs and the Member States to which they are linked, shall regularly engage in a comprehensive and political dialogue.
2. The dialogue shall be conducted in full compliance with the respective institutional, legal and financial powers of the Union, of the OCTs and of the Member States to which they are linked. The dialogue shall be conducted in a flexible manner: it may be formal or informal, at an appropriate level or format, and conducted within the framework referred to in Article 14.
3. The dialogue shall enable the OCTs to take a full part in the implementation of the association.
4. The dialogue shall focus, inter alia, on specific political issues of mutual concern or of general significance for the attainment of the objectives of the association.
Article 14
Instances of the association
1. The association shall establish the following instances of dialogue:
(a)
an OCTs-EU forum for dialogue (the ‘OCTs-EU Forum’), shall meet annually to bring together OCTs authorities, representatives of the Member States and the Commission. Members of the European Parliament, representatives of the EIB, and representatives of the outermost regions shall, where appropriate, be associated with the OCTs-EU Forum;
(b)
on a regular basis, the Commission, the OCTs and the Member States to which they are linked shall hold trilateral consultations. These consultations shall be organised at least four times a year on the initiative of the Commission or at the request of the OCTs and of the Member States to which they are linked;
(c)
in agreement between the OCTs, the Member States to which they are linked and the Commission, working parties, acting in an advisory capacity, shall be set up to follow the implementation of the association, in a form appropriate to the issues to be addressed. These working parties may be convened at the request of the Commission, of a Member State or of an OCTs. They shall provide for technical discussions on matters which are of specific concern to the OCTs and the Member States to which they are linked, complementing the work that is being done in the OCTs-EU Forum and/or in the trilateral consultations.
2. The Commission shall chair the OCTs-EU Forum, the trilateral consultations and the working parties and shall provide their secretariat.
PART TWO
AREAS OF COOPERATION FOR SUSTAINABLE DEVELOPMENT IN THE FRAMEWORK OF THE ASSOCIATION
Chapter 1
Environmental issues, climate change and disaster risk reduction
Article 15
General objectives and principles
In the context of the association, cooperation in the field of environment, climate change and disaster risk reduction may concern:
(a)
support to the OCTs efforts to define and implement policies, strategies, action plans and measures;
(b)
support to OCTs’ efforts to integrate in regional networks and initiatives;
(c)
the promotion of sustainable resource use and resource efficiency, and encouragement to the decoupling of economic growth from environmental degradation; and
(d)
support to OCTs efforts to act as regional hubs and centres of excellence.
Article 16
Sustainable management and conservation of biodiversity and ecosystem services
In the context of the association, cooperation in the field of sustainable management and conservation of biodiversity and ecosystem services may concern:
(a)
the promotion of the establishment and effective management of marine and terrestrial protected areas and improved management of existing protected areas;
(b)
the encouragement of sustainable management of marine and terrestrial resources, which contribute to protecting species, habitats and ecosystem functions outside protected areas, in particular, endangered, vulnerable and rare species;
(c)
the strengthening of conservation and sustainable use of marine and terrestrial biodiversity and ecosystems by:
(i)
addressing the wider ecosystem challenge of climate change by maintaining healthy, resilient ecosystems and fostering green infrastructure and ecosystem- based approaches to climate change adaptation and mitigation which often bring multiple benefits;
(ii)
strengthening capacities at a local, regional and/or international scale, by promoting exchange of information, knowledge and best practice amongst all stakeholders including public authorities, landowners, private sector, researchers and civil society;
(iii)
strengthening existing nature conservation programmes and related efforts within and outside conservation areas;
(iv)
broadening the knowledge base and filling the knowledge gaps, including quantifying the value of ecosystem functions and services;
(d)
the encouragement and facilitation of regional cooperation in order to address issues such as invasive alien species or the impacts of climate change;
(e)
the development of mechanisms to lever resources including payments for ecosystem services.
Article 17
Sustainable forest management
In the context of the association, cooperation in the field of sustainable forest management may concern the promotion of the conservation and sustainable management of forests, including their role in the conservation of the environment from erosion and desertification control, afforestation and management of timber exports.
Article 18
Integrated coastal zone management
In the context of the association, cooperation in the field of integrated coastal zone management may concern:
(a)
the support to the efforts of the OCTs towards an effective sustainable management of marine and coastal zones in defining strategic and integrated approaches to marine and coastal zone planning and management;
(b)
conciliation of economic and social activities such as fisheries and aquaculture, tourism, maritime transports and agriculture with the potential of marine and coastal zones in terms of renewable energy, raw materials, whilst taking into account impacts of climate change and human activities.
Article 19
Maritime Affairs
In the context of the association, cooperation in the field of maritime affairs may concern:
(a)
the strengthening of the dialogue on issues of common interest in that field;
(b)
the promotion of marine knowledge and biotechnology, ocean energy, maritime surveillance, coastal zone management and an ecosystem based management;
(c)
the promotion of integrated approaches at international level.
Article 20
Sustainable management of fish stocks
1. In the context of the association, cooperation in the field of sustainable management of fish stocks shall be based on the following principles:
(a)
commitment to responsible fisheries management and fishing practices;
(b)
refraining from measures or activities that are inconsistent with the principles of sustainable exploitation of fisheries resources;
(c)
without prejudice to existing or future bilateral fisheries partnership agreements between the Union and the OCTs, the Union and the OCTs shall aim to regularly consult each other on the conservation and management of the living marine resources and to exchange information on the ongoing state of resources within the context of the relevant instances of the association provided for in Article 14.
2. Cooperation in the field referred to in paragraph 1 may concern:
(a)
the active promotion of good governance, best practices and responsible fisheries management in the conservation and sustainable management of fish stocks, including fish stocks of common interest and those managed by regional fisheries management organisations;
(b)
dialogue and cooperation regarding the conservation of fish stocks including measures to fight illegal, unreported and unregulated fishing and effectively cooperating with and within regional fisheries management organisations. Dialogue and cooperation shall include control and inspection schemes, incentives and obligations for a more effective management of fisheries and coastal environments in the long term.
Article 21
Sustainable water management
1. In the context of the association, the Union and the OCTs may cooperate in the area of sustainable water management through water policy and institution building, protecting water resources, water supplies in rural and urban areas for domestic, industrial or agricultural purposes, storage, distribution and management of water resources and waste water management.
2. In the field of water supply and sanitation sector, particular attention shall be given to access in under-served areas to drinking water supply and sanitation services and those particularly exposed to natural disasters, which contribute directly to human resources development by improving the state of health and increasing productivity.
3. Cooperation in these areas shall be guided by the principle that the continuing need to extend the provision of basic services in water and sanitation to both urban and rural populations must be addressed in environmentally sustainable ways.
Article 22
Waste management
In the context of the association, cooperation in the field of waste management may concern the promotion of the use of the best environmental practice in all operations related to waste management, including the reduction of waste, recycling or other processes of recovery, e.g. energy recovery and waste disposal.
Article 23
Energy
In the context of the association, cooperation in the field of sustainable energy may concern:
(a)
energy production, distribution and access, in particular, the development, promotion, use and storage of sustainable energy from renewable energy sources;
(b)
energy policies and regulations, in particular the formulation of policies and adoption of regulations guaranteeing affordable and sustainable energy tariffs;
(c)
energy efficiency, in particular the development and introduction of energy efficiency standards and implementation of energy efficiency measures in different sectors (industrial, commercial, public and households), as well as accompanying educational and awareness activities;
(d)
transport, in particular the development, promotion and use of more environmental-friendly public and private transport means such as hybrid, electric or hydrogen vehicles, carpooling and cycling schemes;
(e)
town planning and construction, in particular the promotion and introduction of high environment quality standards and high energy performance in urban planning and construction; and
(f)
tourism, in particular the promotion of energy self-sufficient (renewable energy based) and/or green tourism infrastructures.
Article 24
Climate change
In the context of the association, cooperation in the field of climate change shall aim to support the initiatives of the OCTs concerning climate change mitigation and adaptation to the adverse effects of climate change, and may cover:
(a)
the development of evidence; identification of key risks and territorial, regional and/or international actions, plans, or measures in view of adapting to climate change or mitigating its adverse effects;
(b)
the integration of adaptation to climate change and its mitigation in public policies and strategies;
(c)
the elaboration and identification of statistical data and indicators, essential tools for policy making and implementation; and
(d)
the promotion of the participation of the OCTs in regional and international dialogue in order to foster cooperation, including exchange of knowledge and experience.
Article 25
Disaster risk reduction
In the context of the association, cooperation in the field of disaster risk reduction may concern:
(a)
the development or perfection of systems, including infrastructures, for disaster prevention and preparedness, including prediction and early-warning systems, with a view to reducing the consequences of disasters;
(b)
the development of detailed knowledge of the exposure to the disasters and the current response capacities in the OCTs and in the regions where they are located;
(c)
the strengthening of existing measures of disaster prevention and preparation at local, national and regional levels;
(d)
the improvement of response capacities of the actors concerned, to render them more coordinated, effective and efficient;
(e)
the improvement of awareness-raising and information to the population regarding the exposure to risks, prevention, preparation and the response in the event of disaster, with due attention to the specific needs of persons with disabilities;
(f)
the strengthening of collaboration between key actors involved in civil protection; and
(g)
the promotion of the participation of the OCTs in regional, European and/or international instances in order to allow a more regular exchange of information and a closer cooperation among the different partners in the event of disaster.
Chapter 2
Accessibility
Article 26
General objectives
1. In the context of the association, cooperation in the field of accessibility shall aim to:
(a)
ensure greater access of OCTs to global transport networks; and
(b)
ensure greater access of OCTs to information and communication technologies and services.
2. Cooperation in the context referred to in paragraph 1 may encompass:
(a)
policy and institution building;
(b)
transport by road, rail, air, sea or inland waterway; and
(c)
storage facilities in sea- and airports.
Article 27
Maritime transport
1. In the context of the association, cooperation in the field of maritime transport shall aim to the development and promotion of cost-effective and efficient maritime transport services in the OCTs and may concern:
(a)
the promotion of efficient shipments of cargo at economically and commercially viable rates;
(b)
the facilitation of greater OCTs participation in international shipping services;
(c)
the encouragement of regional programmes;
(d)
the support to local private sector involvement in shipping activities; and
(e)
the development of infrastructure.
2. The Union and the OCTs shall promote shipping safety, security of crews and the prevention of pollution.
Article 28
Air transport
In the context of the association, cooperation in the field of air transport may concern:
(a)
the reform and modernisation of the OCTs air transport industries;
(b)
the promotion of the commercial viability and competitiveness of the OCTs’ air transport industries;
(c)
the facilitation of private sector investment and participation; and
(d)
the promotion of exchange of knowledge and good business practice.
Article 29
Air transport safety
In the context of the association, cooperation in the field of air transport safety shall aim to support the OCTs in their efforts to comply with the relevant international standards and may cover inter alia:
(a)
the implementation of air navigation safety systems;
(b)
the implementation of airport security and strengthening of the capacity of civil aviation authorities to manage all aspects of operational security placed under their control; and
(c)
the development of infrastructures and human resources.
Article 30
Information and communication technologies services
In the context of the association, cooperation in the field of information and communication technology (ICT) services shall aim to spur, in the OCTs, innovation, economic growth and improvements in daily life for both citizens and businesses, including the promotion of accessibility for persons with disabilities. Cooperation shall, in particular, be directed at enhancing OCTs’ regulatory capacity and may support the expansion of ICT networks and services through the following measures:
(a)
creation of a predictable regulatory environment that keeps pace with technological developments, stimulates growth and innovation and fosters competition and consumer protection;
(b)
dialogue on the various policy aspects regarding the promotion and monitoring of the information society;
(c)
exchange of information on standards and interoperability issues;
(d)
promotion of cooperation in the field of ICT research and in the field of ICT-based research infrastructures;
(e)
development of services and applications in domains of high societal impact.
Chapter 3
Research and innovation
Article 31
Cooperation in research and innovation
In the context of the association, cooperation in the field of research and innovation may cover science, technology, including information and communication technologies, with the aim of contributing to the OCTs’ sustainable development and to promoting the OCTs’s role as regional hubs and centres of excellence as well as their industrial competitiveness. In particular, cooperation may concern:
(a)
dialogue, coordination and creation of synergies between OCTs and Union policies and initiatives with regard to science, technology and innovation;
(b)
policy and institutional building within OCTs and concerted actions at local, national or regional level, with a view to developing science, technology and innovation activities and their application;
(c)
cooperation between legal entities from the OCTs, the Union, the Member States and the third countries;
(d)
participation of individual OCTs researchers, research bodies and legal entities from OCTs in the framework for cooperation related to research and innovation programmes within the Union and the Programme for the Competitiveness of Enterprises and small and medium - size enterprises (COSME); and
(e)
training and international mobility of OCTs researchers and exchange.
Chapter 4
Youth, education, training, health, employment and social policy
Article 32
Youth
1. The Union shall ensure that natural persons from OCTs, as defined in Article 50, can participate in initiatives of the Union concerning youth on the same basis as nationals of Member States.
2. The association aims at strengthening the ties between young people living in the OCTs and the Union, among others by promoting learning mobility of OCTs youth and by fostering mutual understanding between young people.
Article 33
Education and training
1. In the context of the association, cooperation in the field of education and training may cover:
(a)
the provision of high quality, inclusive education at primary, secondary and higher education level and in the area of vocational education and training; and
(b)
the support to the OCTs in defining and implementing education and vocational training policies.
2. The Union shall ensure that natural persons from the OCTs, as defined in Article 50, can participate in education and vocational training initiatives of the Union on the same basis as nationals of Member States.
3. The Union shall ensure that educational bodies and institutes from OCTs can take part in education related cooperation initiatives of the Union on the same basis as the educational and vocational training bodies and institutes of the Member States.
Article 34
Employment and social policy
1. The Union and the OCTs shall maintain dialogue in the area of employment and social policy in order to contribute to the economic and social development of the OCTs and the promotion of decent work in the OCTs and regions where they are located. Such a dialogue shall also aim at supporting the efforts of the OCTs’ authorities to develop policies and legislation in this area.
2. The dialogue shall mainly consist of exchange of information and best practices relating to policies and legislation in the area of employment and social policy that are of mutual interest to the Union and the OCTs. In this regard, areas such as skills development, social protection, social dialogue, equal opportunities, non-discrimination and accessibility for persons with disabilities, health and safety at work and other labour standards shall be taken into consideration.
Article 35
Public health
In the context of the association, cooperation in the field of public health shall aim to strengthen the OCTs’ capacity for surveillance, early detection and response to outbreaks of communicable diseases through measures including:
(a)
actions to strengthen preparedness and response capacity against cross-border health threats such as infectious diseases which should be built on existing structures and should target unusual events;
(b)
capacity building through strengthening public health networks at regional level, facilitating exchange of information among experts and promoting adequate training;
(c)
development of tools and communication platforms as well as e-learning programs adapted to OCTs’ particular needs.
Chapter 5
Culture
Article 36
Cultural exchanges and dialogue
1. In the context of the association, cooperation in the field of cultural exchanges and dialogue may concern:
(a)
the self-reliant development of the OCTs, this being a process centred on people themselves and rooted in each people’s culture;
(b)
the support to the policies and measures adopted by the competent authorities of OCTs to enhance their human resources, increase their own creative capacities and promote their cultural identities;
(c)
the participation by the population in the process of development;
(d)
the development of a common understanding and enhanced exchange of information on cultural and audiovisual matters through dialogue.
2. Through their cooperation the Union and the OCTs shall seek to stimulate cultural exchanges between each other through:
(a)
cooperation between the cultural and creative sectors of all partners;
(b)
promotion of the circulation of cultural and creative works and operators between them;
(c)
policy cooperation in order to foster policy development, innovation, audience building and new business models.
Article 37
Audiovisual cooperation
1. In the context of the association, cooperation in the audiovisual field aims at promoting each other’s audiovisual productions and may cover the following actions:
(a)
cooperation and exchange between the respective broadcasting industries;
(b)
encouraging exchange of audiovisual works;
(c)
exchange of information and views on audiovisual and broadcasting policy and regulatory framework between competent authorities;
(d)
encouraging visits to and participation in international events held in each other’s territory as well as in third countries.
2. Co-produced audiovisual works shall be entitled to benefit from any scheme for the promotion of local or regional cultural content set up in the Union, the OCTs and the Member States to which they are linked.
Article 38
Performing arts
In the context of the association, cooperation in the field of performing arts may concern:
(a)
the facilitation of increased contacts between practitioners of performing arts in areas such as professional exchanges and training including participation in auditions, development of networks and promotion of networking;
(b)
the encouragement of joint productions between producers of one or several Member States of the Union and one or several OCTs; and
(c)
the encouragement of the development of international theatre technology standards and the use of theatre stage signs, including through appropriate standardisation bodies.
Article 39
Protection of cultural heritage and historic monuments
In the context of the association, cooperation in the field of tangible and intangible cultural heritage and historic monuments aims at allowing the promotion of exchanges of expertise and best practices through:
(a)
the facilitation of exchanges of experts;
(b)
the collaboration on professional training;
(c)
the awareness of the local public; and
(d)
the counselling on the protection of the historic monuments and protected spaces and on the legislation and implementation of measures related to heritage, in particular its integration into local life.
Chapter 6
Fight against organised crime
Article 40
Fight against organised crime, trafficking in human beings, child sexual abuse and sexual exploitation, terrorism and corruption
1. In the context of the association, cooperation in the field of organised crime may include:
(a)
the development of innovative and effective means of police and judicial cooperation, including cooperation with other stakeholders such as civil society, in the prevention of and fight against organised crime, trafficking in human beings, child sexual abuse and sexual exploitation, terrorism and corruption; and
(b)
support in order to increase the efficiency of OCTs’ policies to prevent and fight against organised crime, trafficking in human beings, child sexual abuse and sexual exploitation, terrorism and corruption, as well as the production, distribution and trafficking of all kinds of narcotic drugs and psychotropic substances, preventing and reducing drug use and drug-related harms, taking into account work carried out in these areas by international bodies, through inter alia:
(i)
training and capacity building in preventing and fighting organised crime, including trafficking in human beings, child sexual abuse and sexual exploitation, terrorism and corruption;
(ii)
prevention including training, education and health promotion, treatment and rehabilitation of dependent drug users, including projects for the reintegration of dependent drug users into work and social environments;
(iii)
development of effective enforcement measures;
(iv)
technical, financial and administrative assistance on the development of effective policies and legislation on trafficking in human beings, in particular awareness raising campaigns, referral mechanisms and victim protection systems, involving all relevant stakeholders and civil society;
(v)
technical, financial and administrative assistance relating to the prevention, treatment and reduction of harms related to drug use;
(vi)
technical assistance to support the development of legislation and of policy against child sexual abuse and sexual exploitation; and
(vii)
technical assistance and training to support capacity building and encourage compliance with international anti-corruption standards notably those set out in the UN Convention against Corruption.
2. In the context of the association, the OCTs shall cooperate with the Union as regards combatting money laundering and the financing of terrorism in accordance with Articles 70 and 71.
Chapter 7
Tourism
Article 41
Tourism
In the context of the Association, cooperation in the field of tourism may include:
(a)
measures aiming at defining, adapting and developing sustainable tourism policies;
(b)
measures and operations to develop and support sustainable tourism;
(c)
measures aiming at integrating sustainable tourism into the social, cultural and economic life of OCTs citizens.
PART THREE
TRADE AND TRADE RELATED COOPERATION
TITLE I
GENERAL PROVISIONS
Article 42
General objectives
The general objectives of the trade and trade-related cooperation between the Union and the OCTs are to:
(a)
promote the economic and social development of the OCTs by establishing close economic relations between them and the Union as a whole;
(b)
stimulate the OCTs’ effective integration in the regional and world economies and the development of trade in goods and services;
(c)
support OCTs in creating a favourable investment climate to support social and economic development of OCTs;
(d)
promote the stability, integrity and transparency of the global financial system, and good governance in the tax area;
(e)
support the process of diversification of OCTs economies;
(f)
support OCTs capacities to formulate and implement policies necessary for the development of their trade in goods and services;
(g)
support the OCTs’ export and trading capacities;
(h)
support OCTs’ efforts to align or converge their local legislation with Union legislation, where relevant;
(i)
provide possibilities for targeted cooperation and dialogue with the Union on trade and trade-related areas.
TITLE II
ARRANGEMENTS FOR TRADE IN GOODS AND SERVICES AND ESTABLISHMENT
Chapter 1
Arrangements for trade in goods
Article 43
Free access for originating goods
1. Products originating in the OCTs shall be imported into the Union free of import duty.
2. The definition of originating products and the methods of administrative cooperation relating thereto are laid down in Annex VI.
Article 44
Quantitative restrictions and measures having equivalent effect
1. The Union shall not apply to imports of products originating in the OCTs any quantitative restrictions or measures having equivalent effect.
2. Paragraph 1 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality or public policy, the protection of health and life of humans, animals and plants, the protection of national treasures possessing artistic, historic or archaeological value, the conservation of exhaustible natural resources or the protection of industrial and commercial property.
Prohibitions or restrictions referred to in the first subparagraph shall in no case constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction of trade generally.
Article 45
Measures adopted by the OCTs
1. The authorities of the OCTs may retain or introduce, in respect of imports of products originating in the Union, such customs duties or quantitative restrictions as they consider necessary in view of their respective development needs.
2. For the fields covered by this chapter, the OCTs shall grant to the Union a treatment no less favourable than the most favourable treatment applicable to any major trading economy as defined in paragraph 4.
3. Paragraph 2 shall not preclude an OCTs from granting certain other OCTs or other developing countries more favourable treatment than that accorded to the Union.
4. For the purposes of this Title, a ‘major trading economy’ means any developed country, or any country accounting for a share of world merchandise exports above one per cent, or, without prejudice to paragraph 3, any group of countries acting individually, collectively or through an economic integration agreement accounting collectively for a share of world merchandise exports above 1,5 %. For this calculation the latest available official data by the WTO on leading exporters in world merchandise trade (excluding intra-Union trade) shall be used.
5. The authorities of the OCTs shall communicate to the Commission by 2 April 2014, the customs tariffs and lists of quantitative restrictions which they apply in compliance with this Decision.
The authorities of the OCTs shall also communicate to the Commission any subsequent amendments to such measures as and when they are adopted.
Article 46
Non-discrimination
1. The Union shall not discriminate between OCTs and the OCTs shall not discriminate between Member States.
2. In compliance with Article 65, the implementation of the specific provisions in this Decision and in particular its Articles 44(2), 45 and 48, 49, 51 and 59(3) shall not be deemed to constitute a discrimination.
Article 47
Conditions for movements of waste
1. Movements of waste between the Member States and the OCTs shall be controlled in accordance with international and Union law. The Union shall support the establishment and development of effective international cooperation in this area with a view to protecting the environment and public health.
2. The Union shall prohibit all direct or indirect export of waste to the OCTs, with the exception of exports of non-hazardous waste destined for recovery operations while at the same time the OCTs authorities shall prohibit the direct or indirect import into their territory of such waste from the Union or any third country, without prejudice to specific international undertakings concerning these areas that have been made, or may be made in future, in the competent international fora.
3. As regards those OCTs, which, due to their constitutional status, are not Party to the Basel Convention, their relevant authorities shall expedite adoption of the necessary internal legislation and administrative regulations to implement the provisions of the Basel Convention in those OCTs.
4. In addition, the Member States to which OCTs are linked shall promote the adoption by the OCTs of the necessary internal legislation and administrative regulations to implement the following acts:
(a)
Regulation (EC) No 1013/2006 of the European Parliament and of the Council (4), as follows:
-
Article 40 as regards exports of waste to overseas countries or territories;
-
Article 46 as regards imports of waste from overseas countries or territories;
(b)
Commission Regulation (EC) No 1418/2007 (5); and
(c)
Directive 2000/59/EC of the European Parliament and of the Council (6) subject to the time limits for transposition laid down in Article 16 thereof.
5. One or more OCTs and the Member States to which they are linked may apply their own procedures to export of waste from the OCTs to that Member State.
6. In this case, the Member State to which the OCTs is linked shall notify to the Commission the applicable legislation by 2 July 2014, as well as any future relevant national legislation, and any subsequent amendments to such legislation.
Article 48
Temporary withdrawal of preferences
Where the Commission considers that there are sufficient grounds to question whether this Decision is being correctly implemented, the Commission shall enter into consultations with the OCTs and the Member State with which the OCTs has special relations, in order to ensure the proper implementation of this Decision. In case the consultations do not lead to a mutually acceptable way of implementing this Decision, the Union may temporarily withdraw preferences from the OCTs concerned in accordance with Annex VII.
Article 49
Safeguard and surveillance measures
In order to ensure the proper implementation of this Decision, the Union may take safeguard and surveillance measures set out in Annex VIII.
Chapter 2
Arrangements for trade in services and for establishment
Article 50
Definitions
For the purposes of this Chapter:
(a)
‘natural person from an OCTs’ means a person ordinarily resident in an OCTs who is a national of a Member State or who enjoys a legal status specific to an OCTs. This definition is without prejudice to the rights conferred by citizenship of the Union within the meaning of the TFEU;
(b)
‘legal person of an OCTs’ means a legal person of the OCTs set up in accordance with the laws applicable in a given OCTs, and having its registered office, its central administration, or its principal place of business in the territory in this OCTs; should the legal person have only its registered office or central administration in the OCTs, it shall not be considered as a legal person of the OCTs, unless it engages in an activity which has a real and continuous link with the economy of that country or territory;
(c)
the respective definitions laid down in the economic integration agreements referred to in Article 51(1) shall apply to the treatment accorded between the Union and the OCTs.
Article 51
Most favourable treatment
1. With respect to any measures affecting trade in services and establishment in economic activities:
(a)
the Union shall accord to natural and legal persons of the OCTs a treatment no less favourable than the most favourable treatment applicable to like natural and legal persons of any third country with whom the Union concludes or has concluded an economic integration agreement;
(b)
an OCTs shall accord to the natural and legal persons of the Union a treatment no less favourable than the most favourable treatment applicable to like natural and legal persons of any major trading economy with whom it has concluded an economic integration agreement after 1 January 2014.
2. The obligations provided for in paragraph 1 of this Article shall not apply to treatment granted:
(a)
in the framework of an internal market requiring the parties thereto to significantly approximate their legislation with a view to removing non-discriminatory obstacles to establishment and to trade in services;
(b)
under measures providing for recognition of qualifications, licences or prudential measures in accordance with Article VII of the General Agreement on Trade in Services (GATS) or the GATS Annex on Financial Services. This is without prejudice to OCTs specific measures under this Article;
(c)
under any international agreement or arrangement relating wholly or mainly to taxation;
(d)
under measures benefiting from the coverage of a most-favoured nation exemption listed in accordance with Article II.2 of the GATS.
3. The authorities of an OCTs may with a view to promoting or supporting local employment, adopt regulations to aid their natural persons and local activities. In this event, the OCTs authorities shall notify the Commission of the regulations they adopt so that it may inform the Member States thereof.
Article 52
Professional qualifications
With regard to the professions of doctor, dentist, midwife, general nurse, pharmacist and veterinary surgeon, the Council shall adopt in accordance with Article 203 TFEU the list of professional qualifications specific to the OCTs which are to be recognised in the Member States.
TITLE III
TRADE RELATED AREAS
Chapter 1
Trade and sustainable development
Article 53
General approach
Trade and trade-related cooperation under the association aims at contributing to sustainable development in its economic, social and environmental dimensions. In this context, the domestic environmental or labour laws and regulations of OCTs shall not be lowered in order to encourage trade or investment.
Article 54
Environmental and climate change standards in trade
1. Trade and trade-related cooperation under the association aims at enhancing the mutual supportiveness between trade and environmental policies and obligations. Trade and trade-related cooperation under the association shall take into account the principles of international environmental governance and multilateral environmental agreements.
2. The ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol shall be pursued. Cooperation shall be based on the development of the future legally binding international climate change agreement involving mitigation commitments by all parties in accordance with the implementation of decisions emanating from the Conferences of the Parties of the UNFCCC.
3. Measures to implement multilateral environmental agreements shall not be applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the partners or a disguised restriction of trade.
Article 55
Labour standards in trade
1. The association aims at promoting trade in such a way that it is conducive to full and productive employment and decent work for all.
2. The internationally recognised core labour standards, as defined by the relevant International Labour Organisation Conventions, shall be respected and implemented in law and practice. Such labour standards include in particular respect for freedom of association, right to collective bargaining, abolition of all forms of forced or compulsory labour, elimination of the worst forms of child labour, the minimum age for admission to employment and non-discrimination in respect to employment.
3. The violation of core labour standards cannot be invoked or otherwise used as a legitimate comparative advantage. Those standards shall not be used for protectionist purposes.
Article 56
Sustainable trade in fisheries products
With a view to promoting the sustainable management of fish stocks, the association may include cooperation regarding the combat of illegal, unreported and unregulated fishing and related trade. Cooperation in this field aims at:
(a)
promoting the implementation of measures to combat illegal, unreported and unregulated fishing and related trade in OCTs;
(b)
facilitating cooperation between OCTs and regional fisheries management organisations, in particular with respect to the development and effective implementation of control and inspection schemes, incentives and measures for effective long term management of fisheries and marine ecosystems.
Article 57
Sustainable timber trade
In the context of the association, cooperation in the field of timber trade aims at promoting trade in legally harvested timber. Such cooperation may include dialogue on regulatory measures as well as exchange of information on market-based or voluntary measures such as forest certification or green procurement policies.
Article 58
Sustainable development in trade
1. In the context of the association, cooperation in the of field sustainable development may be pursued by:
(a)
facilitating and promoting trade and investment in environmental goods and services including through the elaboration and implementation of local legislation, as well as in those goods that contribute to the improvement of social conditions in OCTs;
(b)
facilitating the removal of obstacles to trade or investment regarding goods and services of particular relevance for climate change mitigation, such as sustainable renewable energy and energy efficient products and services, including through the adoption of policy frameworks conducive to the deployment of best available technologies and through the promotion of standards that respond to environmental and economic needs and minimise technical obstacles to trade;
(c)
promoting trade in goods that contribute to social conditions and environmentally sound practices, including goods that are the subject of voluntary sustainability assurance schemes such as fair and ethical trade schemes, eco-labels, and certification schemes for natural resource -based products;
(d)
promoting internationally recognised principles and guidelines in the area of corporate social responsibility, and encourage companies operating in the territory of OCTs to implement them;
(e)
exchanging information and best practices in the area of corporate social responsibility.
2. In the design and implementation of measures aimed at protecting the environment or labour conditions that may affect trade or investment, the Union and the OCTs shall take account of available scientific and technical information, and relevant international standards, guidelines or recommendations, including the precautionary principle.
3. The Union and the OCTs shall apply full transparency to develop, introduce and implement any measures aimed at protecting the environment and labour conditions affecting trade or investment.
Chapter 2
Other trade-related areas
Article 59
Current payments and capital movements
1. No restrictions shall be imposed on any payments in freely convertible currency on the current account of balance of payments between residents of the Union and of the OCTs.
2. With regard to transactions on the capital account of balance of payments, the Member States and the OCTs authorities shall impose no restrictions on the free movement of capital for direct investments in companies formed in accordance with the laws of the host Member State, country or territory and shall ensure that the assets formed by such investment and any profit stemming therefrom can be realised and repatriated.
3. The Union and the OCTs shall be entitled to take the measures referred to in Articles 64, 65, 66, 75 and 215 TFEU in accordance with the conditions laid down therein mutatis mutandis.
4. The OCTs authorities, the Member State concerned or the Union shall inform one another immediately of any such measures and submit a timetable for their elimination as soon as possible.
Article 60
Competition policies
The elimination of distortions to competition, with due consideration to the different levels of development and economic needs of the OCTs, shall involve the implementation of local, national or regional rules and policies including the control and, under certain conditions, the prohibition of agreements between undertakings, of decisions by associations of undertakings and of concerted practices between undertakings which have as their object or effect the prevention, restriction or distortion of competition. Such prohibition also relates to the abuse by one or more undertakings of a dominant position in the territory of the Union or of the OCTs.
Article 61
Protection of intellectual property rights
1. An adequate and effective level of protection of intellectual property rights, including means for enforcing such rights, shall be ensured in line with the highest international standards, where appropriate, with a view to reducing distortions and impediments to bilateral trade.
2. In the context of the association, cooperation in this field may concern the preparation of laws and regulations for the protection and enforcement of intellectual property rights, the prevention of the abuse of such rights by right holders and of the infringement of such rights by competitors and support for regional intellectual property organisations involved in enforcement and protection, including the training of personnel.
Article 62
Technical barriers to trade
The association may include cooperation in the fields of technical regulation for goods, standardisation, conformity assessment, accreditation, market surveillance and quality assurance with a view to removing unnecessary technical barriers to trade between the Union and the OCTs and to reduce differences in those areas.
Article 63
Consumer policy, consumer health protection and trade
In the context of the association, cooperation in the field of consumer policy, consumer health protection and trade may include the preparation of laws and regulations in the area of consumer policy and consumer health protection, with a view to avoiding unnecessary barriers to trade.
Article 64
Sanitary and phyto-sanitary measures
In the context of the association, cooperation in the field of sanitary and phyto-sanitary measures aims at:
(a)
facilitating trade between the Union and the OCTs as a whole and between OCTs and third countries, whilst safeguarding human, animal and plant health or life in accordance with the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the ‘WTO SPS Agreement’);
(b)
addressing problems arising from sanitary and phyto-sanitary measures;
(c)
ensuring transparency as regards sanitary and phyto-sanitary measures applicable to trade between the Union and the OCTs;
(d)
promoting the harmonisation of measures with international standards, in accordance with the WTO SPS Agreement;
(e)
supporting the effective participation of OCTs in organisations that set international sanitary and phyto-sanitary standards;
(f)
promoting consultation and exchanges between OCTs and European institutes and laboratories;
(g)
establishing and enhancing OCTs technical capacity to implement and monitor sanitary and phyto-sanitary measures;
(h)
promoting technology transfer in the area of sanitary and phyto-sanitary measures.
Article 65
Prohibition of protectionist measures
The provisions of Chapters 1 and 2 shall not be used as a means of arbitrary discrimination or a disguised restriction on trade.
Chapter 3
Monetary and tax matters
Article 66
Tax carve out
1. Without prejudice to the provisions of Article 67, the most favoured- nation treatment granted in accordance with this Decision shall not apply to tax advantages which the Member States or OCTs authorities are providing or may provide in the future on the basis of agreements to avoid double taxation or other tax arrangements, or domestic tax legislation in force.
2. Nothing in this Decision may be construed so as to prevent the adoption or enforcement of any measure aimed at preventing tax fraud or avoidance or evasion of taxes pursuant to the tax provisions of agreements to avoid double taxation or other tax arrangements, or domestic tax legislation in force.
3. Nothing in this Decision shall be construed so as to prevent the respective competent authorities from distinguishing, in the application of the relevant provisions of their tax legislation, between taxpayers who are not in the same situation, in particular with regard to their place of residence, or with regard to the place where their capital is invested.
Article 67
Tax and customs arrangements for Union funded contracts
1. The OCTs shall apply to contracts funded by the Union tax and customs arrangements no less favourable than those applied by them to the Member State to which the OCTs is linked or to the states to which the most-favoured nation treatment is granted, or to international development organisations with which they have relations, whichever treatment is the most favourable.
2. Without prejudice to paragraph 1, the following arrangements shall apply to contracts financed by the Union:
(a)
the contract shall not be subject in the beneficiary OCTs to stamp or registration duties or to fiscal charges having equivalent effect, whether such charges already exist or are to be instituted in the future; however, such contracts shall be registered in accordance with the laws in force in the OCTs and a fee corresponding to the service rendered may be charged for it;
(b)
profits and/or income arising from the performance of contracts shall be taxable according to the internal fiscal arrangements of the beneficiary OCTs, provided that the natural persons or legal persons who realise such profit and/or income have a permanent place of business in that OCTs, or that the performance of the contract takes longer than six months;
(c)
enterprises which must import equipment in order to carry out works contracts shall, if they so request, benefit from the system of temporary admission as laid down by the legislation of the beneficiary OCTs in respect of that equipment;
(d)
professional equipment necessary for carrying out tasks defined in a service contract shall be temporarily admitted into the beneficiary OCTs free of fiscal, import and customs duties and of other charges having equivalent effect where these duties and charges do not constitute remuneration for services rendered;
(e)
imports under supply contracts shall be admitted into the beneficiary OCTs without customs duties, import duties, taxes or fiscal charges having equivalent effect. The contract for supplies originating in the OCTs concerned shall be concluded on the basis of the ex-works price of the supplies, to which may be added such internal fiscal charges as may be applicable to those supplies in the OCTs;
(f)
fuels, lubricants and hydrocarbon binders and all materials used in the performance of works contracts shall be deemed to have been purchased on the local market and shall be subject to fiscal rules applicable under the legislation in force in the beneficiary OCTs;
(g)
personal and household effects imported for use by natural persons, other than those recruited locally, engaged in carrying out tasks defined in a service contract and members of their families, shall be exempt from customs or import duties, taxes and other fiscal charges having equivalent effect, within the limits of the legislation in force in the beneficiary OCTs.
3. Any contractual matter not covered by paragraphs 1 and 2 shall remain subject to the legislation of the OCTs concerned.
Chapter 4
Trade capacity development
Article 68
General approach
With a view to ensuring that OCTs derive the maximum benefit from the provisions of this Decision and that they may participate under the best possible conditions in the Union’s internal market as well as regional, sub-regional and international markets, the association aims at contributing to the development of the OCTs’ trade capacities by:
(a)
increasing the OCTs’ competitiveness, self-reliance and economic resilience, through diversifying the range and increasing the value and volume of OCTs trade in goods and services and by strengthening the OCTs’ ability to attract private investments in various sectors of economic activity;
(b)
improving cooperation in trade in goods, services and establishment between the OCTs and neighbouring countries.
Article 69
Trade dialogue, cooperation and capacity development
In the context of the association, trade dialogue, cooperation and capacity development initiatives may include:
(a)
strengthening the OCTs’ capacities to define and implement policies necessary for the development of trade in goods and services;
(b)
encouraging the efforts of OCTs to put into place appropriate legal, regulatory and institutional frameworks as well as the necessary administrative procedures;
(c)
promoting private sector development, in particular SMEs;
(d)
facilitating market and product development, including product quality improvement;
(e)
contributing to the development of human resources and professional skills relevant to trade in goods and services;
(f)
enhancing the capacity of business intermediaries to provide OCTs enterprises services pertinent to their exporting activities, such as market intelligence;
(g)
contributing to the creation of a business climate conducive to investment.
Chapter 5
Cooperation in the area of financial services and taxation matters
Article 70
Cooperation on international financial services
With a view to promote the stability, integrity and transparency of the global financial system, the association may include cooperation on international financial services. Such cooperation may concern:
(a)
the provision of effective and adequate protection of investors and other consumers of financial services;
(b)
the prevention and combat of money laundering and financing of terrorism;
(c)
the promotion of cooperation between different actors of the financial system, including regulators and supervisors;
(d)
the setup of independent and effective mechanisms for supervision of financial services.
Article 71
Regulatory alignment in financial services
The Union and the OCTs shall promote regulatory convergence with recognised international standards on regulation and supervision in the area of financial services including: the Basel Committee’s ‘Core Principle for Effective Banking Supervision’, the International Association of Insurance Supervisors’ ‘Insurance Core Principles’, the International Organisation of Securities Commissions’ ‘Objectives and Principles of Securities Regulation’, the OECD’s ‘Agreement on exchange of information on tax matters’, the G20 ‘Statement on Transparency and exchange of information for tax purposes’, the Financial Stability Board’s ‘Key Attributes of Effective Resolution Regimes for Financial Institutions’ and the Financial Action Task Force’s ‘International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation - the FATF Recommendations’.
Where it is appropriate to do so, or at the request of the OCTs concerned, the Union and the OCTs may make efforts to promote greater alignment of OCTs legislation with Union Legislation on financial services.
Article 72
Cooperation between regulatory and supervisory authorities
The Union and the OCTs shall encourage the cooperation between relevant regulatory and supervisory authorities, including information exchange, sharing of expertise on financial markets and other such measures. Special attention shall be given to the development of administrative capacity of such authorities, inter alia, through personnel exchange and joint training.
Article 73
Cooperation in taxation matters
The Union and the OCTs shall promote cooperation in the tax area in order to facilitate the collection of legitimate tax revenues and to develop measures for the effective implementation of the principles of good governance in the tax area, including transparency, exchange of information and fair tax competition.
PART FOUR
INSTRUMENTS FOR SUSTAINABLE DEVELOPMENT
Chapter 1
General provisions
Article 74
General objectives
The Union shall contribute to the achievement of the association’s overall objectives through the provision of:
(a)
adequate financial resources and appropriate technical assistance aimed at strengthening the OCTs’ capacities to formulate and implement strategic and regulatory frameworks;
(b)
long term financing to promote private sector growth.
Article 75
Definitions
For the purposes of this Part, the following definitions shall apply:
(a)
‘programmable aid’ means the non-repayable aid under the European Development Fund allocated to the OCTs in order to finance territorial or regional strategies and priorities set out in programming documents;
(b)
‘programming’ means the process of organisation, decision-making and allocation of indicative financial resources intended to implement, on a multi-annual basis, in an area referred to in Part Two of this Decision, the action to achieve the association’s objectives for the sustainable development of the OCTs;
(c)
‘programming document’ means the document which sets out the OCTs’s strategy, priorities and arrangements and translates the objectives and targets of the OCTs for its sustainable development in an effective and efficient way to pursue the objectives of the association;
(d)
‘development plans’ referred to in Article 83 means a coherent set of operations defined and financed exclusively by the OCTs in the framework of their own policies and strategies of development, and those agreed upon between an OCTs and the Member State to which it is linked;
(e)
‘territorial allocation’ means the amount allocated to individual OCTs for the programmable aid under the European Development Fund in order to finance territorial strategies and priorities set out in programming documents;
(f)
‘regional allocation’ means the amount allocated for the programmable aid under the European Development Fund in order to finance regional cooperation strategies or thematic priorities common to several OCTs and set out in programming documents;
(g)
‘financing decision’ means the act adopted by the Commission specifying the details of the Union’s financial contribution and authorizing to grant financial aid from the European Development Fund.
Article 76
Principles of finance cooperation
1. Union financial assistance shall be based on the principles of partnership, ownership, alignment on territorial systems, complementarity and subsidiarity.
2. Operations funded within the framework of this Decision can take the form of programmable or non-programmable aid.
3. Union financial assistance shall:
(a)
be implemented with due regard to the OCTs respective geographical, social and cultural characteristics, as well as their specific potential;
(b)
ensure that resource flows are accorded on a predictable and regular basis;
(c)
be flexible and tailored to the situation in each OCTs; and
(d)
be conducted in full compliance with the respective institutional, legal and financial powers of each of the partners.
4. The authorities of the OCTs concerned shall be responsible for implementing operations without prejudice to the powers of the Commission to ensure sound financial management in the use of Union funds.
Chapter 2
Financial resources
Article 77
Sources of financing
OCTs shall be eligible for the following sources of funding:
(a)
resources allocated for the OCTs under the Internal Agreement between the Member States of the Union establishing the 11th European Development Fund (EDF);
(b)
the Union programmes and instruments provided for in the Union’s general budget; and
(c)
funds managed by the EIB under the EIB’s own resources, and the resources allocated to the EDF Investment Facility, in accordance with the conditions of the Internal Agreement between the Member States of the Union establishing the 11th EDF (7) (the ‘11th EDF Internal Agreement’).
Chapter 3
Specific provisions for the financial assistance under the 11th EDF
Article 78
Subject-matter and scope
Within the framework of the strategy and priorities established by the OCTs concerned at local or regional level, and without prejudice to humanitarian and emergency aid, financial support may be given to the following activities helping to achieve the objectives set out in this Decision:
(a)
sector policies and reforms as well as projects that are in coherence with them;
(b)
institutional development, capacity building and integration of environmental aspects;
(c)
technical cooperation; and
(d)
additional support in the event of fluctuations in export earnings from exports of goods and services referred in Article 82.
Article 79
Humanitarian and emergency aid
1. Humanitarian and emergency aid shall be granted in the OCTs faced with serious economic and social difficulties of an exceptional nature resulting from natural or man-made disasters or extraordinary circumstances having comparable effects. Humanitarian and emergency aid shall be maintained as long as necessary to deal with the urgent problems which arise in such situations.
Humanitarian and emergency aid shall be granted solely on the basis of the needs and interests of disaster victims.
2. The aim of humanitarian and emergency aid shall be to:
(a)
save human lives, prevent and alleviate suffering and maintain human dignity in crisis and post-crisis situations;
(b)
contribute to the financing and delivery of humanitarian aid and to the direct access to it of its intended beneficiaries by all logistical means available;
(c)
carry out short-term rehabilitation and reconstruction to enable the victims to benefit from a minimum of socioeconomic integration and, as soon as possible, create the conditions for a resumption of development on the basis of long-term objectives;
(d)
address the needs arising from the displacement of people, such as refugees, displaced persons and returnees, following natural or man-made disasters so as to meet, for as long as necessary, all the needs of refugees and displaced persons, regardless of where they are located, and facilitate action for their voluntary repatriation and re-integration in their country of origin; and
(e)
assist the OCTs in setting up short term disaster prevention and preparedness mechanisms, including for prediction and early warning, with a view to reducing the consequences of disasters.
3. The aid provided for by this Article may also be granted to OCTs taking in refugees or returnees to meet acute needs not covered by emergency assistance.
4. Aid provided for by this Article shall be financed from the general budget of the Union. However, it may exceptionally be financed from the allocations laid down in Annex II, in addition to the funding from the budget heading concerned.
5. Humanitarian and emergency aid operations shall be undertaken at the request of the OCTs affected, the Commission, the Member State to which the OCTs is linked, international organisations or local or international non-governmental organisations. Such aid shall be administered and implemented under procedures that facilitate rapid, flexible and effective operations.
Article 80
Capacity development
1. Financial assistance may contribute to, among other things, supporting the OCTs with developing the necessary capacities to define, implement and monitor territorial and/or regional strategies and actions in view of achieving the general objectives for the areas of cooperation mentioned in Parts Two and Three.
2. The Union shall support the efforts of the OCTs in developing reliable statistical data regarding those areas.
3. The Union may support OCTs in their efforts to improve comparability of their macroeconomic indicators.
Article 81
Technical assistance
1. On the initiative of the Commission, studies or technical assistance measures may be financed in order to ensure the preparation, monitoring, evaluation and supervision necessary for implementing this Decision and for its overall evaluation. Technical assistance provided locally shall be implemented in all instances in accordance with the rules applicable to decentralised financial management.
2. On the initiative of the OCTs, studies or technical assistance measures may be financed in relation to the implementation of the activities scheduled in the programming documents. The Commission may decide to finance such action either from the programmable aid or from the envelope earmarked for technical cooperation measures.
Article 82
Additional support in the event of fluctuations in export earnings
1. In order to mitigate the adverse effects of any short-term fluctuations in export earnings, in particular in the agricultural, fisheries and mining sectors, which might jeopardise the attainment of the development objectives of the OCTs concerned, a system of additional support shall be instituted within the financial allocation referred to in Annex II.
2. Support in the event of short-term fluctuations in export earnings shall be aimed to safeguard macroeconomic and sectoral reforms and policies that are at risk as a result of a drop in revenue and remedy the adverse effects of instability of export earnings in particular from agricultural and mining products.
The dependence of the OCTs economies on exports, in particular in the agricultural and mining sectors, shall be taken into account in the allocation of resources referred to in Annex V. In this context the isolated OCTs referred to in Annex I shall receive more favourable treatment in accordance with the criteria set out in Annex V.
3. The additional resources shall be provided in accordance with the specific modalities of the support mechanism as set out in Annex V.
4. The Union shall also provide support for market-based insurance schemes designed for OCTs seeking to protect themselves against the risk of fluctuations in export earnings.
Article 83
Programming
1. For the purpose of this Decision, programmable aid shall be based on a programming document.
2. The programming document may take into account the territorial development plans or other plans agreed upon between the OCTs and the Member States to which they are linked.
3. Pursuant to Article 10, the OCTs authorities shall assume the primary responsibility for the formulation of strategies, priorities and arrangements through the preparation of programming documents in coordination with the Commission and the Member State to which the OCTs is linked.
4. The OCTs authorities shall be responsible for:
(a)
establishing their priorities on which the strategy shall be based; and
(b)
formulating project and programme proposals submitted to and examined with the Commission.
Article 84
Preparation, appraisal and approval of the Programming Document
1. The competent Territorial or, in the case of regional programmes, Regional Authorising Officer shall prepare a proposal for a Programming Document following consultations with the widest possible range of stakeholders and shall draw on lessons learned and best practices.
2. Each proposal for a Programming Document shall be adapted to the needs and specific circumstances of each OCTs. It shall set out the focal sector(s) selected for Union financing, the specific objectives, the expected results, the performance indicators by which it shall be assessed and evaluated and the indicative financial allocation. It shall promote local ownership of cooperation programmes.
3. The proposal for the Programming Document shall be the subject of an exchange of views between the OCTs and Member State concerned and the Commission since the early stages of the programming process and with a view to promoting complementarity and consistency among their respective cooperation activities.
4. The Commission shall appraise the proposal for the Programming Document to determine whether it contains all the elements required and is consistent with the aims of this Decision and the relevant Union policies. The Commission shall consult with the European Investment Bank on the draft Programming Document.
5. The OCTs shall provide all the necessary information, including the results of any feasibility studies, to make the appraisal of the draft Programming Document by the Commission as effective as possible.
6. The OCTs authorities and the Commission shall be jointly responsible for approving the programming document. The Commission shall approve the programming document following the procedure provided for in Article 86.
Article 85
Implementation
1. The Commission shall adopt the financing decision corresponding to a programming document in accordance with the standards set out in the Financial Regulation applicable to the 11th EDF and following the procedure provided for in Article 87.
2. The Commission shall implement OCTs 11th EDF resources in any of the ways set out in the Financial Regulation applicable to the 11th EDF and in accordance with the conditions set out in this Decision and in the measures implementing that Decision. To this end, it shall conclude financing agreements with the relevant authorities of the OCTs.
3. The OCTs authorities shall be responsible for:
(a)
preparing, negotiating and concluding contracts;
(b)
implementing and managing projects and programmes; and
(c)
maintaining projects and programmes and ensuring their sustainability.
4. The relevant authorities of the OCTs and the Commission shall be jointly responsible for:
(a)
ensuring equality of conditions for participation in invitations to tender and contracts;
(b)
monitoring and evaluating the effects and results of projects and programmes; and
(c)
ensuring the proper, prompt and efficient execution of projects and programmes.
5. To facilitate the exchanges of views, technical meetings shall be held at least once a year between the Territorial Authorising Officers, the Member States concerned and representatives of the Commission involved in the programming, notably through the use of modern technologies or, if possible, as an extension of the OCTs-EU Forum dialogue.
6. Actions financed under the 11th EDF may be implemented with parallel or joint co-financing subject to provisions of the Financial Regulation applicable to the 11th EDF.
Article 86
Territorial and Regional Authorising Officers
1. The Government of each OCTs shall appoint a Territorial Authorising Officer to represent it in all operations financed from the resources of the 11th EDF managed by the Commission and the European Investment Bank. The Territorial Authorising Officer shall appoint one or more deputy Territorial Authorising Officers to replace him when he is unable to carry out his duties and shall inform the Commission of this appointment. Wherever the conditions regarding institutional capacity and sound financial management are met, the Territorial Authorising Officer may delegate his functions for implementation of the programmes and projects concerned to the body responsible within the competent OCTs authority. The Territorial Authorising Officer shall inform ex-ante the Commission of any such delegation.
When the Commission becomes aware of problems in carrying out procedures relating to management of resources from the 11th EDF, it shall, in conjunction with the Territorial Authorising Officer, make all contacts necessary to remedy the situation and take any appropriate steps. The Territorial Authorising Officer shall assume financial responsibility only for the executive tasks entrusted to him.
Where resources from the 11th EDF are managed indirectly and subject to any additional powers that might be granted by the Commission, the Territorial Authorising Officer shall:
(a)
be responsible for the coordination, programming, regular monitoring and reviews of implementation of cooperation, and for coordination with donors;
(b)
in close cooperation with the Commission, be responsible for the preparation, submission and appraisal of programmes and projects.
2. Where 11th EDF resources are managed in an indirect way and subject to any additional powers that might be granted by the Commission, the relevant Territorial Authorising Officer shall act as the Contracting Authority for programmes implemented by means of tenders or calls for proposals, under the ex-ante control of the Commission.
3. The Territorial Authorising Officer shall, during the execution of operations and subject to the requirement to inform the Commission, decide on:
(a)
technical adjustments and alterations to programmes and projects in matters of detail so long as they do not affect the technical solution adopted and remain within the limits of the reserve for adjustments provided for in the financing agreement;
(b)
changes of site for multiple-unit programmes or projects where justified on technical, economic or social grounds;
(c)
imposition or remission of penalties for delay;
(d)
acts discharging guarantors;
(e)
subcontracting;
(f)
final acceptance, provided that the Commission has endorsed the provisional acceptance, the corresponding minutes and, where appropriate, is present at the final acceptance, in particular where the extent of the reservations recorded at the provisional acceptance necessitates major additional work; and hiring of consultants and other technical assistance experts.
4. In the case of regional programmes, the authorities of the participating OCTs shall designate a Regional Authorising Officer among the actors of cooperation referred to in Article 11. The duties of the Regional Authorising Officer correspond mutatis mutandis to those of the Territorial Authorising Officer.
Article 87
EDF-OCTs Committee
1. The Commission shall, where appropriate, be assisted by the Committee created by the 11th EDF Internal Agreement.
2. When exercising the powers conferred on it by this Decision, the Committee shall be known as the ‘EDF-OCTs Committee’. The procedures of the Committee laid down in the 11th EDF Internal Agreement and the Implementation Regulation applicable to the 11th EDF shall apply to the EDF-OCTs Committee. Until the entry into force of the latter Regulation, the procedures laid down in Council Regulation (EC) No 617/2007 (8) shall apply.
3. The Committee shall focus its work on the substantive issues of cooperation at OCTs and regional level. In the interests of coherence, coordination and complementarity, it shall monitor the implementation of the Programming Documents.
4. The Committee shall give its opinion on:
(a)
draft Programming Documents and any amendments to them; and
(b)
the financing decisions for implementing this Part of the Decision.
Article 88
Role of Union delegations
1. Where the Union is represented by a Delegation under the authority of a Head of Delegation, the provisions of the Financial Regulation applicable to the 11th EDF concerning authorising officers and accounting officers by subdelegation shall apply.
2. The Territorial and/or Regional Authorising Officer shall cooperate and work closely with the Head of Delegation, who shall be the main contact for the different actors of cooperation in the OCTs concerned.
Article 89
Rules on nationality and origin for public procurement, grants and other award procedures for OCTs
1. General rules on eligibility:
(a)
Participation in the award of procurement contracts, grants and other award procedures for actions financed under this Decision for the benefit of third parties shall be open to all natural persons who are nationals of, and legal persons which are effectively established in, an eligible country or territory as defined in paragraph 2, and to International Organisations.
(b)
In the case of actions jointly co-financed with a partner or other donor or implemented through a Member State in shared management or through a Trust Fund established by the Commission, countries which are eligible under the rules of that partner, other donor or Member State or determined in the constitutive act of the trust fund, shall also be eligible.
In the case of actions implemented through entrusted bodies, which are Member States or their agencies, the European Investment Bank or through International Organisations or their agencies, natural and legal persons who are eligible under the rules of that entrusted body, as identified in the agreements concluded with the co-financing or implementing body, shall also be eligible.
(c)
In the case of actions financed under this Decision and, in addition, under another Instrument for external action, including the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (9), as last amended in Ouagadougou on 22 June 2010 (10), the countries identified under any of these Instruments shall be considered eligible for the purpose of that action.
In the case of actions of a global, regional or cross-border nature financed under this Decision, natural and legal persons from countries, territories and regions covered by the action may participate in the procedures implementing such actions.
(d)
All supplies purchased under a procurement contract, or in accordance with a grant agreement, financed under this Decision shall originate from an eligible country or territory. However, they may originate from any country or territory when the amount of the supplies to be purchased is below the threshold for the use of the competitive negotiated procedure. For the purposes of this Article, the term ‘origin’ is defined in Article 23 and 24 of Council Regulation (EEC) No 2913/92 (11) and other Union legislation governing non-preferential origin.
(e)
The rules under this Article do not apply to, and do not create nationality restrictions for, natural persons employed or otherwise legally contracted by an eligible contractor or, where applicable, subcontractor.
(f)
Eligibility as defined in this Article may be restricted with regard to the nationality, localisation or nature of applicants, where required by the nature and the objectives of the action and as necessary for its effective implementation.
(g)
Natural and legal persons who have been awarded contracts shall respect applicable environmental legislation including multilateral environmental agreements as well as internationally agreed core labour standards.
2. Tenderers, applicants and candidates from the following countries and territories shall be eligible to funding under this Decision:
(a)
Member States, candidate countries and potential candidates as recognised by the Union, and members of the European Economic Area;
(b)
OCTs;
(c)
developing countries and territories, as included in the OECD-DAC list of ODA Recipients, which are not members of the G-20 group;
(d)
countries for which reciprocal access to external assistance is established by the Commission. Reciprocal access may be granted, for a limited period of at least one year, whenever a country grants eligibility on equal terms to entities from the Union and from OCTs;
(e)
Member States of the OECD, in the case of contracts implemented in a Least Developed Country;
(f)
when announced in advance in the documents of the procedure:
(i)
countries having traditional economic, trade or geographical links with neighbouring beneficiary countries;
(ii)
all countries, in the case of urgency or of unavailability of products and services in the markets of the eligible countries.
3. Tenderers, applicants and candidates from non-eligible countries or goods from non-eligible origin may be accepted as eligible by the Commission in duly substantiated cases where the eligibility rules would make the realisation of a project, a programme or an action impossible or exceedingly difficult.
4. For actions implemented in shared management, the relevant Member State to which the Commission has delegated implementation tasks is entitled, on behalf of the Commission, to authorise participation of tenderers, applicants and candidates from other countries and authorise goods from other countries within the meaning of point (f) of paragraph 2, and to accept as eligible, tenderers, applicants and candidates from non-eligible countries within the meaning of paragraph 3, or goods from non-eligible origin within the meaning of point (d) of paragraph 1.
Article 90
Protecting the Union’s financial interests and financial controls
1. The Commission shall take appropriate measures ensuring that, when actions financed under this Decision are implemented, the financial interests of the Union are protected by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by the recovery of the amounts wrongly paid and, where appropriate, by effective, proportionate and deterrent penalties.
2. The Commission and the Court of Auditors (ECA) shall have the power of audit, on the basis of documents and on-the-spot, over all grant beneficiaries, contractors and subcontractors who have received Union funds.
The European Anti-fraud Office (OLAF) may carry out on-the-spot checks and inspections on economic operators concerned directly or indirectly by such funding in accordance with the procedures laid down in Council Regulation (Euratom, EC) No 2185/96 (12) with a view to establishing whether there has been fraud, corruption or any other illegal activity in connection with a grant agreement or grant decision or a contract concerning Union funding.
Without prejudice to the first and second subparagraphs, agreements with third countries and international organisations, and grant agreements and grant decisions and contracts resulting from the implementation of this Decision shall expressly empower the Commission, the ECA and OLAF to conduct such audits, on-the-spot checks and inspections, in accordance with the relevant EDF Financial Regulation.
3. OCTs shall bear primary responsibility for the financial supervision of the Union funds. This shall be carried out, where appropriate, in coordination with the Member State to which the OCTs is linked in accordance with the applicable national legislation.
4. The Commission shall be responsible for:
(a)
ensuring that management and control systems exist and function properly in the OCTs concerned so as to ensure that the Union funds are used correctly and effectively; and
(b)
in the event of irregularities, sending recommendations or requests for corrective measures to remedy those irregularities and rectify any management shortcomings found.
5. The Commission, the OCTs and, where appropriate, the Member State to which it is linked, shall cooperate on the basis of administrative arrangements at annual or biannual meetings to coordinate programmes, methodologies and the implementation of controls.
6. With regard to financial corrections:
(a)
the OCTs concerned shall be responsible in the first instance for detecting and correcting financial irregularities;
(b)
however, in the event of shortcomings by the OCTs concerned, the Commission shall take action, if the OCTs fails to remedy the situation and attempts at conciliation are unsuccessful, to reduce or withdraw the balance of the overall allocation corresponding to the financing decision of the Programming Document.
Article 91
Monitoring, evaluation, review process and reporting
1. Financial cooperation shall be sufficiently flexible to ensure that operations are kept constantly in line with the objectives of this Decision and take account of any changes occurring in the economic situation, priorities and objectives of the OCTs concerned, in particular by means of an ad hoc review of the Programming Document.
2. The review may be launched by the Commission or at the request of the OCTs concerned and following the agreement of the Commission.
3. The Commission shall examine the progress made in implementing the financial assistance provided to the OCTs, under the 11th EDF, and shall submit to the Council a report every year starting in 2015 on the implementation and results and, as far as possible, the main outcomes and impacts of the Union’s financial assistance. The report shall also be sent to the European Parliament, the European Economic and Social Committee and the Committee of the Regions.
4. The report referred to in paragraph 3 shall contain information relating to the previous year on the measures financed, the results of monitoring and evaluation exercises, the involvement of the relevant partners, and the implementation of the 11th EDF commitments and payments appropriations. The report shall assess the results of the assistance, using as far as possible, specific and measurable indicators. It shall reflect the main lessons learned and the follow-up to the recommendations of the evaluations of the previous years.
Chapter 4
Principles of eligibility
Article 92
Eligibility for territorial financing
1. The OCTs public authorities shall be eligible for financial support provided for in this Decision.
2. Subject to the agreement of the authorities of the OCTs concerned, the following entities or bodies shall also be eligible for financial support provided for in this Decision:
(a)
local, national and/or regional public or semi-public agencies, departments or local authorities of the OCTs and in particular their financial institutions and development banks;
(b)
companies and firms of the OCTs and of regional groups;
(c)
companies and firms of a Member State, so as to enable them, in addition to their own contribution, to undertake productive projects in the territory of an OCTs;
(d)
OCTs or Union financial intermediaries promoting and financing private investments in the OCTs; and
(e)
actors of decentralised cooperation and other non-governmental actors from OCTs and from the Union, to enable them to undertake economic, cultural, social and educational projects and programmes in the OCTs in the framework of decentralised cooperation, as referred to in Article 12.
Article 93
Eligibility for regional financing
1. A regional allocation shall be used for operations benefiting and involving:
(a)
two or more OCTs regardless of their location;
(b)
one or more OCTs and one or more outermost regions referred to in Article 349 TFEU;
(c)
one or more OCTs and one or more neighbouring ACP and/or non-ACP States;
(d)
one or more OCTs, one or more outermost regions and one or more ACP and/or non-ACP States;
(e)
two or more regional bodies of which OCTs are members;
(f)
one or more OCTs and regional bodies of which OCTs, ACP States or one or more of the outermost regions are members;
(g)
the OCTs and the Union as a whole; or
(h)
one or more entities, authorities or other bodies from at least one OCTs, being members of an EGTC in accordance with Article 8, one or more outermost regions and one or more neighbouring ACP and/or non-ACP States.
2. The funding to enable participation of the ACP States, outermost regions and other countries shall be additional to funds allocated to the OCTs under this Decision.
3. The participation of ACP States, outermost regions and other countries to programmes established pursuant to this Decision 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 OCTs;
(b)
equivalent provisions exist in the framework of the Union’s financial instruments; and
(c)
the principle of proportionality is respected.
4. Appropriate measures will allow for matching of funding of credits from the EDF and the general budget of the Union to finance cooperation projects between the OCTs, the ACP Countries, the outermost regions as well as other countries, in particular simplified mechanisms for joint management of such projects.
Article 94
Eligibility for Union programmes
1. Natural persons from an OCTs, as defined in Article 50, and, where applicable, the relevant public and/or private bodies and institutions in an OCTs, shall be eligible for participation in and funding from Union programmes, subject to the rules and objectives of the programmes and possible arrangements applicable to the Member State to which the OCTs is linked.
2. OCTs shall also be eligible for support under programmes of the Union for cooperation with other countries, notably developing countries, subject to the rules, objectives and arrangements of those programmes.
3. The Commission shall report to the EDF-OCTs Committee on the participation of OCTs to Union programmes, on the basis of information contained in the Annual Implementation Report submitted by OCTs and other information available.
PART FIVE
FINAL PROVISIONS
Article 95
Delegation of powers to the Commission
The Commission shall be empowered to adopt delegated acts amending the Appendices of Annex VI for the purpose of taking into account technological development and changes in customs legislation, in accordance with the procedure laid down in Article 96.
Article 96
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 95 shall be conferred on the Commission for a period of 5 years from 1 January 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the Council opposes such extension not later than three months before the end of each period.
3. The delegation of power referred to in Article 95 may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of power specified in that Decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it to the Council.
5. A delegated act adopted pursuant to Article 95 shall enter into force only if no objection has been expressed by the Council within a period of 2 months of notification of the act to the Council or if, before the expiry of that period, the Council has informed the Commission that it will not object. That period shall be extended by 2 months at the initiative of the Council.
Article 97
Change of status
The Council, acting according to Article 203 TFEU, shall decide on any necessary adjustments to this Decision when:
(a)
an OCTs becomes independent;
(b)
an OCTs leaves the association;
(c)
an OCTs becomes an outermost region;
(d)
an outermost region becomes an OCTs.
Article 98
Repeal
Council Decision 2001/822/EC is hereby repealed.
References to the repealed Decision shall be construed as references to this Decision.
Article 99
Entry into force
This Decision shall enter into force on 1 January 2014.
Annex VI shall apply as provided for in Article 65 of that Annex.
Done at Brussels, 25 November 2013.