COUNCIL DECISION

of 13 November 2012

on the conclusion, on behalf of the European Union, of the Food Assistance Convention

(2012/738/EU)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 214(4) in conjunction with Article 218(6)(a), thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament,

Whereas:

The Union is a Party to the Food Aid Convention 1999 (1) (‘FAC 1999’), which expires on 1 July 2012.

In accordance with Council Decision 2012/511/EU (2) , the Food Assistance Convention (‘the Convention’) was signed on 23 July 2012, subject to its conclusion.

It is in the interest of the Union to be a Party to the Convention as the latter would help to achieve the humanitarian aid objectives referred to in Article 214(1) of the Treaty on the Functioning of the European Union.

HAS ADOPTED THIS DECISION:

Article 1

The Food Assistance Convention (‘the Convention’) is hereby approved on behalf of the Union.

The text of the Convention is attached to this Decision.

Article 2

The Commission shall decide on the annual commitment to be made on behalf of the Union in accordance with Article 5 of the Convention and shall inform the Secretariat of the Committee thereof.

Article 3

The Commission shall provide annual reports and participate in information sharing on behalf of the Union in accordance with Article 6 of the Convention.

Article 4

The President of the Council shall designate the person(s) empowered to proceed, on behalf of the Union, to the deposit of the instrument of approval provided for in Article 12 of the Convention, in order to express the consent of the Union to be bound by the Convention (3).

Article 5

This Decision shall enter into force on the day of its adoption.

(1) OJ L 222, 24.8.1999, p. 40.

(2) OJ L 256, 22.9.2012, p. 3.

(3) The date of entry into force of the Convention will be published in the Official Journal of the European Union by the General Secretariat of the Council.

FOOD ASSISTANCE CONVENTION

PREAMBLE

THE PARTIES TO THIS CONVENTION,

CONFIRMING their continued commitment to the still valid objectives of the Food Aid Convention 1999, to contribute to world food security, and to improve the ability of the international community to respond to emergency food situations and other food needs of developing countries;

SEEKING to improve the effectiveness, efficiency, and quality of food assistance in preserving the lives and alleviating the suffering of the most vulnerable populations, especially in emergency situations, by strengthening international cooperation and coordination, in particular among the Parties and stakeholders;

RECOGNISING that vulnerable populations have particular food and nutritional needs;

AFFIRMING that States have the primary responsibility for their own national food security, and therefore for the progressive realisation of the right to adequate food as set out in the Food and Agriculture Organisation (FAO) voluntary guidelines to support the progressive realisation of the right to adequate food in the context of national food security adopted by the FAO Council in November 2004;

ENCOURAGING governments of food insecure countries to develop and implement country-owned strategies that address the root causes of food insecurity through long-term measures, and that ensure proper linkages between relief, recovery and development activities;

REFERRING to international humanitarian law and the fundamental humanitarian principles of humanity, impartiality, neutrality and independence;

REFERRING to the principles and good practice of humanitarian donorship, endorsed in Stockholm on 17 June 2003;

RECOGNISING that the Parties have their own policies related to providing food assistance in emergency and non-emergency situations;

CONSIDERING the World Food Summit Plan of Action adopted in Rome in 1996, as well as the Five Rome Principles for Sustainable Global Food Security identified in the Declaration of the World Summit on Food Security of 2009, in particular the commitment to achieve food security in all countries and the ongoing effort to reduce poverty and eradicate hunger that was reaffirmed by the United Nations General Assembly in the United Nations Millennium Declaration;

CONSIDERING the commitments made by donor and recipient countries to improve development aid effectiveness by applying the principles of the Organisation for Economic Cooperation and Development’s (OECD) Paris Declaration on Aid Effectiveness adopted in 2005;

DETERMINED to act in accordance with their World Trade Organisation (WTO) obligations, in particular any WTO disciplines on food aid,

HAVE AGREED AS FOLLOWS:

Article 1

Objectives

The objectives of this Convention are to save lives, reduce hunger, improve food security, and improve the nutritional status of the most vulnerable populations by:

(a) addressing the food and nutritional needs of the most vulnerable populations through commitments made by the Parties to provide food assistance that improves access to, and consumption of, adequate, safe and nutritious food;

(b) ensuring that food assistance provided to the most vulnerable populations is appropriate, timely, effective, efficient, and based on needs and shared principles; and

(c) facilitating information-sharing, cooperation, and coordination, and providing a forum for discussion in order to improve the effective, efficient, and coherent use of the Parties’ resources to respond to needs.

Article 2

Principles of food assistance

The Parties, in providing and delivering food assistance to the most vulnerable populations, should always adhere to the following principles:

(a) General principles of food assistance: (i) provide food assistance only when it is the most effective and appropriate means of addressing the food or nutrition needs of the most vulnerable populations; (ii) provide food assistance, taking into account the long-term rehabilitation and development objectives of the recipient countries, while supporting the broader goal of achieving food security, whenever appropriate; (iii) provide food assistance in a manner that protects livelihoods and strengthens the self-reliance and resilience of vulnerable populations, and local communities, and that prevents, prepares for, mitigates and responds to food security crises; (iv) provide food assistance in such a way as to avoid dependency and minimise direct and indirect negative impacts on beneficiaries and others; (v) provide food assistance in a way that does not adversely affect local production, market conditions, marketing structures and commercial trade or the price of essential goods for vulnerable populations; (vi) provide food aid in fully grant form, whenever possible;

(b) Principles of food assistance effectiveness: (i) in order to increase the amount available to spend on food assistance for vulnerable populations and to promote efficiency, minimise associated costs as much as possible; (ii) actively seek to cooperate, coordinate and share information to improve the effectiveness and efficiency of food assistance programmes, and the coherence between food assistance and related policy areas and instruments; (iii) purchase food and other components of food assistance locally or regionally, whenever possible and appropriate; (iv) increasingly provide untied cash-based food assistance, whenever possible and based on needs; (v) only monetise food aid where there is an identified need to do so, and to improve the food security of vulnerable populations; base monetisation on transparent and objective market analysis and avoid commercial displacement; (vi) ensure food assistance is not used to promote the market development objectives of the Parties; (vii) avoid re-exportation of food aid to the maximum extent possible except to prevent or respond to an emergency situation; only re-export food aid in a manner that avoids commercial displacement; (viii) acknowledge, where appropriate, that relevant authorities or relevant stakeholders have the primary role and responsibility for the organisation, coordination and implementation of food assistance operations;

(c) Principles on the provision of food assistance: (i) target food assistance according to the food and nutrition needs of the most vulnerable populations; (ii) involve beneficiaries in the assessment of their needs and in the design, implementation, monitoring and evaluation of food assistance, as well as other relevant stakeholders, where appropriate; (iii) provide food assistance that meets applicable safety and quality standards, and that respects cultural and local dietary habits and the nutritional needs of the beneficiaries; (iv) uphold the dignity of beneficiaries of food assistance;

(d) Principles of food assistance accountability: (i) take specific and appropriate measures to strengthen the accountability and transparency of food assistance policies, programmes, and operations; (ii) monitor, evaluate, and communicate, on a regular and transparent basis, the outcomes and the impact of food assistance activities in order to further develop best practices and maximise their effectiveness.

Article 3

Relationship with WTO Agreements

Nothing in this Convention shall derogate from any existing or future WTO obligations applicable between Parties. In case of conflict between such obligations and this Convention, the former shall prevail. Nothing in this Convention will prejudice the positions that a Party may adopt in any negotiations in the WTO.

Article 4

Eligible country, eligible vulnerable populations, eligible products, eligible activities, and associated costs

1. ‘Eligible country’ means any country on the OECD’s Development Assistance Committee (DAC) list of Official Development Assistance Recipients, or any other country identified in the Rules of Procedure and Implementation.

2. ‘Eligible vulnerable populations’ means vulnerable populations in any eligible country.

3. ‘Eligible products’ means products for human consumption that comply with relevant national policies and legislation of the country of operation, including, as appropriate, applicable international food safety and quality standards as well as products that contribute to meeting food needs and protecting livelihoods in emergency and early recovery situations. The list of eligible products is provided in the Rules of Procedure and Implementation.

4. Eligible activities for the fulfilment of a Party’s minimum annual commitment in accordance with Article 5 shall be consistent with Article 1, and shall include at least the following activities:

(a) the provision and distribution of eligible products;

(b) the provision of cash and vouchers; and

(c) nutritional interventions.

These eligible activities are further elaborated in the Rules of Procedure and Implementation.

5. Associated costs eligible for the fulfilment of a Party’s minimum annual commitment according to Article 5 shall be consistent with Article 1, and shall be limited to costs directly linked to the provision of eligible activities, as further elaborated in the Rules of Procedure and Implementation.

Article 5

Commitment

1. To meet the objectives of this Convention, each Party agrees to make an annual commitment of food assistance, set in accordance with its laws and regulations. Each Party’s commitment is referred to as its ‘minimum annual commitment’.

2. The minimum annual commitment shall be expressed in terms of value or quantity as further elaborated in the Rules of Procedure and Implementation. A Party may choose to express either a minimum value or a minimum quantity, or a combination of both for its commitment.

3. Minimum annual commitments in terms of value can be expressed in the currency chosen by the Party. Minimum annual commitments in terms of quantity can be expressed in tonnes of grain equivalent or other units of measure provided under the Rules of Procedure and Implementation.

4. Each Party shall notify the Secretariat of its initial minimum annual commitment as soon as possible and no later than six months following the entry into force of this Convention, or within three months of its accession to this Convention.

5. Each Party shall notify the Secretariat of any change to its minimum annual commitment for subsequent years no later than the fifteenth day of December of the year preceding the change.

6. The Secretariat shall communicate the updated minimum annual commitments to all of the Parties as soon as possible and no later than the first day of January of each year.

7. Contributions made to meet minimum annual commitments should be made in fully grant form whenever possible. With respect to food assistance counted towards a Party’s commitment, not less than 80 per cent provided to eligible countries and eligible vulnerable populations, as further elaborated in the Rules of Procedure and Implementation, shall be in fully grant form. To the extent possible, the Parties shall seek progressively to exceed this percentage. Contributions that are not made in fully grant form should be accounted for in each Party’s annual report.

8. The Parties shall undertake to conduct all food assistance transactions under this Convention in such a way as to avoid harmful interference with normal patterns of production and international commercial trade.

9. The Parties shall ensure that the provision of food assistance is not tied directly or indirectly, formally or informally, explicitly or implicitly, to commercial exports of agricultural products or other goods and services to recipient countries.

10. To meet its minimum annual commitment, whether expressed in value or quantity, a Party shall make contributions that are consistent with this Convention and that consist of funding for eligible products and activities, and associated costs, as set forth in Article 4, and as further elaborated in the Rules of Procedure and Implementation.

11. Contributions provided to meet the minimum annual commitment under this Convention may only be directed at eligible countries or eligible vulnerable populations, as set forth in Article 4 and as further elaborated in the Rules of Procedure and Implementation.

12. The Parties’ contributions may be provided bilaterally, through intergovernmental or other international organisations, or through other food assistance partners, but not through other Parties.

13. Each Party shall make every effort to meet its minimum annual commitment. If a Party is unable to meet its minimum annual commitment for a particular year, it shall describe the circumstances of its failure to do so in its annual report for that year. The unfulfilled amount shall be added to the Party’s minimum annual commitment for the following year unless the Committee established under Article 7 decides otherwise, or unless extraordinary circumstances justify not doing so.

14. If a Party’s contribution exceeds its minimum annual commitment, the amount of the excess, but not more than five per cent of its minimum annual commitment, may be counted as part of the Party’s contribution for the following year.

Article 6

Annual reporting and information sharing

1. Within 90 days after the end of the calendar year, each Party shall provide an annual report, in accordance with the Rules of Procedure and Implementation, to the Secretariat, detailing how it met its minimum annual commitment under this Convention.

2. This annual report shall contain a narrative component that may include information on how the Party’s food assistance policies, programmes and operations contribute to the objectives and principles of this Convention.

3. The Parties should, on an ongoing basis, exchange information on their food assistance policies and programmes and the results of their evaluations of these policies and programmes.

Article 7

Food Assistance Committee

1. A Food Assistance Committee (the ‘Committee’), consisting of all of the Parties to this Convention, is hereby established.

2. The Committee shall make the decisions at its formal sessions and perform the functions that are required to carry out the provisions of this Convention in accordance with the principles and objectives of the Convention.

3. The Committee shall adopt rules governing its proceedings; it may also adopt rules elaborating further the provisions of this Convention to ensure that they are properly implemented. Document FAC(11/12)1, 25 April 2012, of the Food Aid Committee of the Food Aid Convention 1999, shall serve as the initial Rules of Procedure and Implementation for this Convention. The Committee may subsequently decide to modify those Rules of Procedure and Implementation.

4. The Committee shall make decisions by consensus, meaning that no Party formally opposes the proposed decision of the Committee on a matter under discussion at a formal session. Formal opposition may occur either at the formal session or within 30 days after the circulation of the minutes of a formal session recording the proposed decisions concerned.

5. For each year, the Secretariat shall prepare a summary report for the Committee, to be drafted, adopted and published, in accordance with the Rules of Procedure and Implementation.

6. The Committee should provide a forum for discussion among the Parties with respect to food assistance matters, such as the need to mobilise appropriate and timely resource commitments to address the food and nutritional needs, especially in specific emergency and crisis situations. It should facilitate information-sharing with and dissemination to other stakeholders, and should consult with and receive information from them to support its discussions.

7. Each Party shall designate a representative to receive notices and other communications from the Secretariat.

Article 8

Chairperson and Vice-Chairperson of the Committee

1. At the last formal session held in each year, the Committee shall decide on a Chairperson and a Vice-Chairperson for the following year.

2. The Chairperson shall have the following duties:

(a) to approve the draft agenda for each formal session or informal meeting;

(b) to preside at formal sessions or informal meetings;

(c) to open and close each formal session or informal meeting;

(d) to submit the draft agenda to the Committee for adoption at the beginning of each formal session or informal meeting;

(e) to direct discussions and ensure that the procedures specified in the Rules of Procedure and Implementation are observed;

(f) to invite the Parties to speak;

(g) to rule on points of order in accordance with the relevant Rules of Procedure and Implementation; and

(h) to ask questions and announce decisions.

3. If the Chairperson is absent from all or part of a formal session or an informal meeting, or is temporarily unable to fill the office of Chairperson, the Vice-Chairperson shall act as Chairperson. In the absence of the Chairperson and the Vice-Chairperson, the Committee shall appoint a temporary Chairperson.

4. If, for any reason, the Chairperson is unable to continue to fill the office of Chairperson, the Vice-Chairperson shall become Chairperson until the end of the year.

Article 9

Formal sessions and informal meetings

1. The Committee shall hold formal sessions and informal meetings according to the Rules of Procedure and Implementation.

2. The Committee shall hold at least one formal session a year.

3. The Committee shall hold additional formal sessions and informal meetings at the request of the Chairperson or at the request of at least three of the Parties.

4. The Committee may invite observers and relevant stakeholders who wish to discuss particular food assistance related matters to attend its formal sessions or informal meetings in accordance with the Rules of Procedure and Implementation.

5. The Committee shall meet at a location determined in accordance with the Rules of Procedure and Implementation.

6. The agenda for formal sessions and informal meetings shall be developed in accordance with the Rules of Procedure and Implementation.

7. The minutes of a formal session, which shall include any proposed decisions of the Committee, shall be circulated within 30 days after the formal session.

Article 10

Secretariat

1. The Committee shall designate a Secretariat and request its services, in accordance with the Rules of Procedure and Implementation. The Committee shall request of the International Grains Council (IGC) that its Secretariat act as the initial Secretariat of the Committee.

2. The Secretariat shall perform the duties that are set out in this Convention and the Rules of Procedure and Implementation, perform any administrative duties, including the processing and distribution of documents and reports, and carry out other functions identified by the Committee.

Article 11

Resolution of disputes

The Committee shall seek to resolve any dispute among the Parties concerning the interpretation or implementation of this Convention or the Rules of Procedure and Implementation, including any claim of failure to perform the obligations set out in this Convention.

Article 12

Signature and ratification, acceptance, or approval

This Convention shall be open for signature by Argentina, Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Republic of Croatia, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the European Union, the Republic of Estonia, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, Hungary, Ireland, the Italian Republic, Japan, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the Kingdom of the Netherlands, the Kingdom of Norway, the Republic of Poland, the Portuguese Republic, Romania, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, at United Nations Headquarters in New York from 11 June 2012 until 31 December 2012. This Convention shall be subject to ratification, acceptance or approval by each Signatory. Instruments of ratification, acceptance or approval shall be deposited with the Depositary.

Article 13

Accession

1. Any State listed in Article 12 that has not signed this Convention by the end of the signature period, or the European Union if it has not signed by that time, may accede to it at any time after that period. Instruments of accession shall be deposited with the Depositary.

2. Once this Convention has entered into force in accordance with Article 15, it shall be open for accession by any State other than those referred to in Article 12 or by a separate customs territory possessing full autonomy in the conduct of its external commercial relations that is deemed eligible by a decision of the Committee. Instruments of accession shall be deposited with the Depositary.

Article 14

Notification of provisional application

Any State referred to in Article 12, or the European Union, that intends to ratify, accept, or approve this Convention or accede thereto, or any State or separate customs territory deemed eligible under Article 13(2) for accession by a decision of the Committee but has not yet deposited its instrument, may at any time deposit a notification of provisional application of this Convention with the Depositary. The Convention shall apply provisionally for that State, separate customs territory, or the European Union from the date of deposit of its notification.

Article 15

Entry into force

1. This Convention shall enter into force on 1 January 2013 if by 30 November 2012 five Signatories have deposited instruments of ratification, acceptance, or approval.

2. If this Convention does not enter into force in accordance with paragraph 1, the Signatories to this Convention that have deposited instruments of ratification, acceptance, or approval and States or the European Union that have deposited instruments of accession pursuant to Article 13(1) may decide by unanimous consent that it shall enter into force among themselves.

3. For any State or separate customs territory, or the European Union, that ratifies, accepts, approves, or accedes to the Convention after the Convention enters into force, this Convention shall enter into force on the date of the deposit of its instrument of ratification, approval, acceptance, or accession.

Article 16

Assessment and amendment procedure

1. At any time after the entry into force of this Convention, a Party may propose an assessment of the relevance of this Convention or propose amendments to it. Any proposed amendments shall be circulated by the Secretariat to all of the Parties at least six months in advance and discussed at the next formal session of the Committee following the end of the notice period.

2. Proposals for amendment to this Convention shall be adopted by decision of the Committee. The Secretariat shall communicate to all of the Parties, and to the Depositary, any proposals for amendment adopted by the Committee. The Depositary shall circulate any adopted amendment to all Parties.

3. Notification of acceptance of an amendment shall be sent to the Depositary. An adopted amendment shall enter into force for those Parties having sent that notification, 90 days after the date on which the Depositary has received such notifications from not less than four fifths of the number of Parties to this Convention on the date of adoption of the proposed amendment by the Committee. Such an amendment shall enter into force for any other Party 90 days after that Party deposits its notification with the Depositary. The Committee may decide that a different threshold be used for the number of notifications required to trigger the entry into force of a specific amendment. The Secretariat shall communicate such a decision to all Parties and the Depositary.

Article 17

Withdrawal and termination

1. Any Party may withdraw from this Convention at the end of any year by giving written notice of withdrawal to the Depositary and the Committee at least 90 days prior to the end of that year. That Party shall not be released from its minimum annual commitment or reporting obligations incurred under this Convention, while it was a Party, that have not been discharged by the end of that year.

2. At any time after the entry into force of this Convention, a Party may propose the termination of this Convention. Such a proposal shall be communicated in writing to the Secretariat and shall be circulated by it to all of the Parties at least six months in advance of its consideration by the Committee.

Article 18

Depositary

1. The Secretary-General of the United Nations is designated as the Depositary of this Convention.

2. The Depositary shall receive notice of any signature, ratification, acceptance, approval, notification of provisional application of, and accession to, this Convention, and notify all Parties and Signatories of these notices.

Article 19

Authentic texts

The originals of this Convention, of which the English and French texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.