C_2021_9324_2_EN_annexe_acte_autonome_nlw_part1_v1

Dieses Dokument ist Teil der Anfrage „Agreement regarding new reception centres in Greece

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Agreement number: HOME/2020/AMIF/AG/EMAS/0127                                   Ref. Ares(2021 (3639599 - 02/06/2021 ANNEX II — GENERAL CONDITIONS PART A — LEGAL AND ADMINISTRATIVE PROVISIONS ARTICLE II.1 - DEFINITIONS The following definitions apply for the purpose of the Agreement: ‘Action’: the set of activities or the project for which the grant is awarded, to be implemented by the beneficiary as described in Annex I; ‘Breach of obligations’: failure by the beneficiary to fulfil one or more of its contractual obligations; ‘Confidential information or document’: any information or document (in any format) received by either party from the other or accessed by either party in the context of the implementation of the Agreement that any of the parties has identified in writing as confidential. It does not include information that is publicly available; ‘Conflict of interests’: a situation where the impartial and objective implementation of the Agreement by the beneficiary is compromised for reasons involving family, emotional life, political or national affinity, economic interest, any other direct or indirect personal interest or any other shared interest with the Commission or any third party related to the subject matter of the Agreement; ‘Direct costs’: those specific costs which are directly linked to the implementation of the action and can therefore be attributed directly to it. They may not include any indirect costs; ‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the Agreement, which is not attributable to error or negligence on their part or on the part of the subcontractors affiliated entities or third parties in receipt of financial support and which proves to be inevitable despite their exercising due diligence. The following cannot be invoked as force majeure: labour disputes, strikes, financial difficulties or any default of a service, defect in equipment or materials or delays in making them available, unless they stem directly from a relevant case offorce majeure; ‘Formal notification’: form of communication between the parties made in writing, by mail or electronic mail which provides the sender with compelling evidence that the message was delivered to the specified recipient; ‘Fraud’: any act or omission relating to the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds or assets from the Union budget, the non-disclosure of information in violation of a specific obligation, with the same effect or the misapplication of such funds or assets for purposes other than those for which they were originally granted; 'Grave professional misconduct': a violation of applicable laws or regulations or ethical standards of the profession to which a person or entity belongs, or any wrongful conduct of a person or entity which has an impact on its professional credibility where such conduct denotes wrongful intent or gross negligence; 1
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 ‘Implementation period’ : the period of implementation of the activities forming part of the action, as specified in Article I.2.2; ‘Indirect costs’: those costs which are not specific costs directly linked to the implementation of the action and which therefore cannot be attributed directly to it. They may not include any costs identifiable or declared as eligible direct costs; ‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by the beneficiary, which has or would have the effect of prejudicing the Union’s budget; ‘Maximum amount of the grant’ : the maximum EU contribution to the action, as defined in Article I.3.1; ‘Pre-existing material’: any materials, document, technology or know-how which exists prior to the beneficiary using it for the production of a result in the implementation of the action; ‘Pre-existing right’ : any industrial and intellectual property right on pre-existing material; it may consist in a right of ownership, a licence right and/or a right of use belonging to the beneficiary or any other third parties; ‘Related person’: any natural or legal person who is a member of the administrative, management or supervisory body of the beneficiary or who has the powers of representation, decision or control with regard to the beneficiary; ‘Starting date’: the date on which the implementation of the action starts as provided for in Article I.2.2; ‘Subcontract’: a procurement contract within the meaning of Article II.10, which covers the implementation by a third party of tasks forming part of the action as described in Annex I; ARTICLE II.2 - GENERAL OBLIGATIONS OF THE BENEFICIARY The beneficiary: (a) is liable for carrying out the action in accordance with the Agreement; (b) must comply with any legal obligations it is bound by under applicable EU, international and national law; (c) must inform the Commission immediately of any events or circumstances of which the beneficiary is aware, that are likely to affect or delay the implementation of the action; (d) must inform the Commission immediately: (i) of any change in its legal, financial, technical, organisational or ownership situation and of any change in its name, address or legal representative; (ii) of any change in the legal, financial, technical, organisational or ownership situation of its affiliated entities and of any change in their name, address or legal representative; (iii) of any change regarding the exclusion situations listed in Article 136 of Regulation (EU) 2018/1046, including for its affiliated entities. ARTICLE II.3 - COMMUNICATION BETWEEN PARTIES 2
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 11.3.1 Form and means of communication Any communication relating to the Agreement or to its implementation must: (a)   be made in writing (in paper or electronic form) in the language of the Agreement; (b)   bear the number of the Agreement; and (c)   be made using the communication details identified in Article I.7. If a party requests written confirmation of an electronic communication within a reasonable time, the sender must provide an original signed paper version of the communication as soon as possible. 11.3.2 Date of communications Any communication is considered to have been made when the receiving party receives it, unless the Agreement states that communication is considered to have been made on the date when the communication was sent. Email is considered to have been received by the receiving party on the day of dispatch of that email, provided that it is sent to the email address indicated in Article I.7. The sending party must be able to prove the date of dispatch. If the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline. Mail sent to the Commission using the postal or courier services is considered to have been received by the Commission on the date on which it is registered by the department identified in Article I.7.2. Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient. ARTICLE II.4 - LIABILITY FOR DAMAGES 11.4.1 The Commission may not be held liable for any damage caused or sustained by the beneficiary, including any damage caused to third parties as a consequence of or during the implementation of the action. 11.4.2 Except in cases of force majeure, the beneficiary must compensate the Commission for any damage it sustains as a result of the implementation of the action or because the action was not implemented in full compliance with the Agreement. ARTICLE II.5 - CONFLICT OF INTEREST II.5.1 The beneficiary must take all necessary measures to prevent any situation of conflict of interests. 3
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 II.5.2 The beneficiary must inform the Commission without delay of any situation constituting or likely to lead to a conflict of interests. It must take immediately all the necessary steps to rectify this situation. The Commission may verify that the measures taken are appropriate and may require additional measures to be taken by a specified deadline. ARTICLE II.6 - CONFIDENTIALITY 11.6.1 During implementation of the action and for five years after the payment of the balance, the parties must treat with confidentiality any confidential information and documents. 11.6.2 The parties may only use confidential information and documents for a reason other than to fulfil their obligations under the Agreement if they have first obtained the prior written agreement of the other party. 11.6.3 The confidentiality obligations do not apply if: (a) the disclosing party agrees to release the other party from those obligations; (b) the confidential information or documents become public through other means than a breach of the confidentiality obligations; (c) the disclosure of the confidential information or documents is required by law. ARTICLE II.7 - PROCESSING OF PERSONAL DATA 11.7.1 Processing of personal data by the Commission Any personal data included in the Agreement must be processed by the Commission in accordance with Regulation (EU) No 2018/1725.1 Such data must be processed by the data controller identified in Article I.7.1 solely for implementing, managing and monitoring the Agreement or to protect the financial interests of the EU, including checks, audits and investigations in accordance with Article II.27. The beneficiary has the right to access, rectify or erase its own personal data and the right to restrict or, where applicable, the right to data portability or the right to object to data processing in accordance with Regulation (EU) No 2018/1725. For this purpose, it must send any queries about the processing of its personal data to the data controller identified in Article I.7.1. The beneficiary may have recourse at any time to the European Data Protection Supervisor. 11.7.2 Processing of personal data by the beneficiary The beneficiary must process personal data under the Agreement in compliance with applicable EU and national law on data protection (including authorisations or notification requirements). 1  Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC 4
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 The beneficiary may grant its personnel access only to data that is strictly necessary for implementing, managing and monitoring the Agreement. The beneficiary must ensure that the personnel authorised to process personal data has committed itself to confidentiality or is under appropriate statutory obligation of confidentiality. The beneficiary must adopt appropriate technical and organisational security measures having regard to the risks inherent in the processing and to the nature, scope, context and purposes of processing of the personal data concerned. This is in order to ensure, as appropriate: (a) the pseudonymisation and encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing; (e) measures to protect personal data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed. ARTICLE II.8 - VISIBILITY OF UNION FUNDING 11.8.1 Information on Union funding and use of the European Union emblem Unless the Commission requests or agrees otherwise, any communication or publication made by the beneficiary that relates to the action, including at conferences, seminars or in any information or promotional materials (such as brochures, leaflets, posters, presentations, in electronic form, etc.), must: (a) indicate that the action has received funding from the Union; and (b) display the European Union emblem. When displayed in association with another logo, the European Union emblem must have appropriate prominence. The obligation to display the European Union emblem does not confer on the beneficiary a right of exclusive use. The beneficiary may not appropriate the European Union emblem or any similar trademark or logo, either by registration or by any other means. For the purposes of the first, second and third subparagraphs and under the conditions specified therein, the beneficiary may use the European Union emblem without first obtaining permission from the Commission. 11.8.2 Disclaimers excluding Commission responsibility Any communication or publication that relates to the action, made by the beneficiary in any form and using any means, must indicate: 5
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 (a)   that it reflects only the author’s view; and (b)   that the Commission is not responsible for any use that may be made of the information it contains. ARTICLE II.9 - PRE-EXISTING RIGHTS AND OWNERSHIP AND USE OF THE RESULTS (INCLUDING INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS) 11.9.1 Ownership of the results by the beneficiary The beneficiary retains ownership of the results of the action, including industrial and intellectual property rights, and of the reports and other documents relating to it, unless stipulated otherwise in the Agreement. 11.9.2 Pre-existing rights If the Commission sends the beneficiary a written request specifying which of the results it intends to use, the beneficiary must: (a) establish a list specifying all pre-existing rights included in those results; and (b) provide this list to the Commission at the latest with the request for payment of the balance. The beneficiary must ensure that it or its affiliated entities have all the rights to use any pre­ existing rights during the implementation of the Agreement. 11.9.3 Rights of use of the results and of pre-existing rights by the Union The beneficiary grants the Union the following rights to use the results of the action: (a) for its own purposes and in particular to make available to persons working for the Commission, other Union institutions, agencies and bodies and to Member States’ institutions, as well as to copy and reproduce in whole or in part and in an unlimited number of copies; (b) reproduction: the right to authorise direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part; (c) communication to the public: the right to authorise any display performance or communication to the public, by wire or wireless means, including making the results available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes communication and broadcasting by cable or by satellite; (d) distribution: the right to authorise any form of distribution of results or copies of the results to the public; (e) adaptation: the right to modify the results; (f) translation; (g) the right to store and archive the results in line with the document management rules applicable to the Commission, including digitisation or converting the format for preservation or new use purposes; (h) where the results are documents, the right to authorise the reuse of the documents in conformity with Commission Decision 2011/833/EU of 12 December 2011 on the reuse of Commission documents if that Decision is applicable and if the documents fall within its scope and are not excluded by any of its provisions. For the sake of this 6
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 provision, the terms ‘reuse’ and ‘document’ have the meanings given to them by Decision 2011/833/EU. The above rights of use may be further specified in the Special Conditions. Additional rights of use for the Union may be provided for in the Special Conditions. The beneficiary must ensure that the Union has the right to use any pre-existing rights included in the results of the action. The pre-existing rights must be used for the same purposes and under the same conditions as applicable to the rights of use of the results of the action, unless specified otherwise in the Special Conditions. Information about the copyright owner must be inserted in cases where the result is divulged by the Union. The copyright information must read: ‘© — year — name of the copyright owner. All rights reserved. Licenced to the European Union under conditions.’. If the beneficiary grants rights of use to the Commission, this does not affect its confidentiality obligations under Article II.6 or the beneficiary’s obligation under Article II.2. ARTICLE II.10 - AWARD OF                           CONTRACTS            NECESSARY            FOR      THE IMPLENTATION OF THE ACTION 11.10.1 If the implementation of the action requires the beneficiary to procure goods, works or services, it may award the contract in accordance with their usual purchasing practices provided that the contract is awarded to the tender offering best value for money or, as appropriate, to the tender offering the lowest price. In doing so, it must avoid any conflict of interests. The beneficiary must ensure that the Commission, the European Court of Auditors and the European Anti-Fraud Office (OLAF) can exercise their rights under Article II.27 also towards the beneficiary' contractors. 11.10.2 The beneficiary that is a ‘contracting authority’ within the meaning of Directive 2014/24/EU2 or ‘contracting entity’ within the meaning of Directive 2014/25/EU3 must comply with the applicable national public procurement rules. The beneficiary must ensure that the conditions applicable to it under Articles II.4, II.5, II.6 and II.9 are also applicable to the contractors. 11.10.3 The beneficiary remains solely responsible for carrying out the action and for compliance with the Agreement. II.10.4. If the beneficiary breaches its obligations under Article II.10.1 the costs related to the contract concerned are considered ineligible in accordance with Article II.19.2 (c), (d) and (e). 2  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC 3  Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC 7
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 If the beneficiary breaches its obligations under Article II.10.2 the grant may be reduced in accordance with Article II.25.4. ARTICLE II.11 - SUBCONTRACTING OF TASKS FORMING PART OF THE ACTION 11.11.1 The beneficiary may subcontract tasks forming part of the action. If it does so, it must ensure that, in addition to the conditions specified in Article II.10, the following conditions are also complied with: (a) subcontracting does not cover core tasks of the action; (b) recourse to subcontracting is justified because of the nature of the action and what is necessary for its implementation; (c) the estimated costs of the subcontracting are clearly identifiable in the estimated budget set out in Annex III; (d) any recourse to subcontracting, if not provided for in Annex I, is communicated by the beneficiary and approved by the Commission. The Commission may grant approval: (i) before any recourse to subcontracting, if the beneficiary requests an amendment as provided for in Article II.13; or (ii) after recourse to subcontracting if the subcontracting: - is specifically justified in the interim, or final technical report referred to in Articles I.4.3 and I.4.4; and - does not entail changes to the Agreement which would call into question the decision awarding the grant or be contrary to the equal treatment of applicants; (e) the beneficiary ensures that the conditions applicable to it under Article II.8 are also applicable to the subcontractors. 11.11.2 If the beneficiary breaches its obligations under Article II.11.1 (a), (b), (c) or (d), the costs related to the contract concerned are considered ineligible in accordance with Article II.19.2 (f). If the beneficiary breaches its obligation under Article II.11.1 (e) the grant may be reduced in accordance with Article II.25.4. ARTICLE II.12 - FINANCIAL SUPPORT TO THIRD PARTIES II.12.1 If, while implementing the action, the beneficiary has to give financial support to third parties, the beneficiary must give such financial support in accordance with the conditions specified in Annex I. Under those conditions, the following information must be stated at least: (a) the maximum amount of financial support. This amount may not exceed EUR 60 000 for each third party except if achieving the objective of the action as specified in Annex I would otherwise be impossible or overly difficult ; (b) the criteria for determining the exact amount of the financial support; (c) the different types of activity that may receive financial support, on the basis of a fixed list; (d) the persons or categories of persons which may receive financial support; (e) the criteria for giving the financial support. 8
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 11.12.2 As an exception to Article II.12.1, if the financial support takes the form of a prize, the beneficiary must give such financial support in accordance with the conditions specified in Annex I. Under those conditions, the following information must at least be stated: (a) the eligibility and award criteria; (b) the amount of the prize; (c) the payment arrangements. 11.12.3 The beneficiary must ensure that the conditions applicable to it under Articles II.4, II.5, II.6, II.8, II.9 and II.27 are also applicable to the third parties receiving financial support. ARTICLE II.13 - AMENDMENTS TO THE AGREEMENT 11.13.1 Any amendment to the Agreement must be made in writing. 11.13.2 An amendment may not have the purpose or the effect of making changes to the Agreement which would call into question the decision awarding the grant or be contrary to the equal treatment of applicants. 11.13.3 Any request for amendment must: (a) be duly justified; (b) be accompanied by appropriate supporting documents; and (c) be sent to the other party in due time before it is due to take effect, and in any case one month before the end of the implementation period. Point (c) does not apply in cases duly substantiated by the party requesting the amendment if the other party agrees. 11.13.4 In case of an operating grant the period set out in Article I.2.2 may not be extended via amendments. 11.13.5 Amendments enter into force on the date on which the last party signs or on the date of approval of the request for amendment. Amendments take effect on a date agreed by the parties or, in the absence of such an agreed date, on the date on which the amendment enters into force. ARTICLE II.14 - ASSIGNMENT OF CLAIMS FOR PAYMENTS TO THIRD PARTIES 11.14.1 The beneficiary may not assign any of its claims for payment against the Commission to any third party, except if approved by the Commission on the basis of a reasoned, written request by the beneficiary. If the Commission does not accept the assignment or the terms of it are not complied with, the assignment has no effect on it. 11.14.2 In no circumstances may an assignment release the beneficiary from its obligations towards the Commission. 9
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Agreement number: HOME/2020/AMIF/AG/EMAS/0127 ARTICLE II.15 - FORCE MAJEURE 11.15.1 A party faced with force majeure must send a formal notification to the other party without delay, stating the nature of the situation or of the event, its likely duration and foreseeable effects. 11.15.2 The parties must take the necessary measures to limit any damage due to force majeure. They must do their best to resume the implementation of the action as soon as possible. 11.15.3 The party faced with force majeure may not be considered in breach of its obligations under the Agreement if it has been prevented from fulfilling them by force majeure. ARTICLE II.16 - SUSPENSION OF THE IMPLEMENTATION OF THE ACTION 11.16.1 Suspension of implementation by the beneficiary The beneficiary may suspend the implementation of the action or any part of it, if exceptional circumstances make such implementation impossible or excessively difficult, in particular in the event offorce majeure. The beneficiary must immediately inform the Commission, stating: (a) the reasons for suspension, including details about the date or period when the exceptional circumstances occurred; and (b) the expected date of resumption. Once the circumstances allow the beneficiary to resume implementing the action, the beneficiary must inform the Commission immediately and present a request for amendment of the Agreement as provided for in Article II.16.3. This obligation does not apply if the Agreement is terminated in accordance with Articles II.17.1 or points (b) or (c) of Article II. 17.2.1. 11.16.2 Suspension of implementation by the Commission 11.16.2.1 Grounds for suspension The Commission may suspend the implementation of the action or any part thereof: (a) if the Commission has evidence that the beneficiary has committed irregularities, fraud or breach of obligations in the award procedure or while implementing the Agreement; (b) if the Commission has evidence that the beneficiary has committed systemic or recurrent irregularities, fraud or serious breach of obligations in other grants funded by the Union or the European Atomic Energy Community (‘Euratom’) awarded to the beneficiary under similar conditions and the irregularities, fraud or breach of obligations have a material impact on this grant; or (c) if the Commission suspects irregularities, fraud or breach of obligations committed by the beneficiary in the award procedure or while implementing the Agreement and needs to verify whether they have actually occurred. 11.16.2.2 Procedure for suspension 10
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