Instruction n° 60 du 21 décembre 2007 relative aux contrats d’externalisation

In the particular context of the Council of Europe, the term “outsourcing” shall be used to mean the result of a predominately economic decision to ask a third party[1] to perform totally or partially a general support task[2]rather than using members of the Secretariat or investing in the acquisition of technological resources and facilities.

In the framework of the activities of the Organisation the Secretariat may need to enter into outsourcing contracts with third parties to accomplish essentially ongoing and recurrent tasks.

The Staff Regulations and the rules concerning temporary staff members shall not apply to parties engaged under outsourcing contracts.

The Instruction responds to the need to detail the principles and provisions of Resolution Res(2004)26 of the Committee of Ministers on outsourcing contracts to external service providers (see Appendix I).

For the purposes of this Instruction the reference to the Secretary General shall be read in conformity with the Statute of the Council of Europe, the Staff Regulations and the rules of delegation of authority.

Each Commitment Officer is responsible for the application of these rules within the sector for which he/she has authority by introducing relevant local internal control procedures.

II. PROVISIONS GOVERNING OUTSOURCING CONTRACTS

A. GENERAL CONDITIONS FOR ENGAGING THIRD PARTIESUNDER AN OUTSOURCING CONTRACT

Article 1 – General principles applicable to outsourcing contracts to service providers

a. Service providers shall be required to observe the applicable principles, rules and values of the Council of Europe[3], and confidentiality. For these purposes explicit references to the above shall be given in the contract.

b. In granting contracts to service providers attention shall be given to the extent to which such service providers respect Council of Europe’s equal opportunity and non-discrimination policy.[4]

c. Contracts with service providers shall be carried out in accordance with the applicable financial rules, including the Financial Regulations of the Council of Europe, and with general principles of sound management. Whenever appropriate, a competitive tendering procedure shall be used.

Article 2 - Circumstances in which a service provider may be engaged under an outsourcing contract

Recourse to an outsourcing contract to service providers shall be used for the following reasons:

§ outsourcing shall allow the Organisation to focus on core issues while having support tasks assumed by a service provider so that the latter tasks do not require disproportionate amounts of management resources and attention;

§ by the very nature of the tasks concerned, service providers shall bring extensive and specialised resources to meet the needs of the Organisation. This could include access to new technology, tools and techniques which the Organisation does not currently possess;

§ outsourcing shall allow the Organisation to realise more quickly the anticipated benefits of process re-engineering by having a service provider take over the process;

§ outsourcing shall allow the Organisation to become more flexible and thus better able to adapt to changing opportunities or priorities;

§ outsourcing shall enable the Organisation to reduce or have better control over operating costs;

§ outsourcing shall reduce the need to invest capital funds in non-core functions, thus making capital funds available for core areas;

§ the Organisation may have recourse to outsourcing because its does not have access to the required resources internally[5].

Article 3 – Tasks appropriate for outsourcing

a. Tasks appropriate for outsourcing in the context of the Council of Europe shall be of a general support nature. These tasks are not considered to be at the core of the Organisation’swork.

b. The tasks concerned shall be essentially ongoing and recurrent ones[6]. More specifically, tasks which may be considered for outsourcing solutions are as follows: security, cleaning, catering, document production, mail delivery, maintenance work of buildings, information technology services, proof-reading service, translation, cashier services and management of official travel.

c. Decision on the tasks to be outsourced shall be taken by the Secretary General. This decision will be based on the presentation of the proposal describing the factors as referred to under Article 4.

d. The periodicity for calls for tender in respect of the different tasks considered for outsourcing solutions shall be determined by the Secretary General.

Article 4 – Factors to be taken into account while deciding on outsourcing contract

The various factors to be taken into account to assess advantages and disadvantages of outsourcing contract shall be as follows:

a. International nature of the Council of Europe

Outsourcing can be seen as a potential threat to the international nature of the Council of Europe in two major ways. One relates to the displacement of the role of international civil servants in implementing activities and functions of the Organisation. The other relates to the need to avoid discrepancies between member States in the award of contracts due – for obvious reasons of facility – to favouring companies located closest geographically.

Thus, the first requirement for the use of outsourcing is to have a well defined basis for determining what kinds of activities and functions can be outsourced – provided significant gains can be achieved by doing so while preserving security and confidentiality – and what activities cannot be outsourced for important policy reasons, no matter what gains could be achieved in this area.

Secondly, while contractors from host countries may have an inevitable advantage in seeking contracts for outsourced tasks, this can be mitigated to a great extent by a rigorous application of requirements for assuring free competition through full access to competitive tendering procedures.

b. Economic impact

Outsourcing is a predominately economic decision which aims either to obtain lower unit cost than in-house or to achieve greater flexibility enabling fixed costs to be reduced. To realise such an economic benefit, the following costs shall be considered:

Production costs

Defined as the amount of money the Council of Europe pays a service provider for his/her services, production costs shall be an important factor to consider. The main rationale for this is that the Organisation is looking to achieve a production cost advantage, which is the difference between what it costs to keep a specific task in-house and what a service provider charges.

Transaction costs

Transaction costs are the expenses which accrue from the time the Organisation begins considering outsourcing solution through the managing of the contract once it is in place. These costs shall include the time and money taken:

§ to search for a viable vendor;

§ to negotiate and write a contract;

§ to monitor and enforce service levels;

§ to switch from one vendor to another in the event of a contractor failing to meet contractual obligations.

It is of the essence to assess transaction costs to ensure that the Organisation is saving money by sub-contracting tasks to services providers. Any production cost advantage could be cut in half, nullified completely, or even lead to a loss if transaction costs are higher than the production cost savings.

The economic impact of outsourcing shall not be assessed solely in terms of immediate and obvious savings. It shall be assessed at least in the medium term, taking into account not only staff costs, but also the effects on investment and offices.

The economic impact shall be subjected to as exhaustive an examination as is possible, objectively and without reference at this stage to any other considerations (quality of service, social implications).

c. Preservation of the Council’s autonomy in the long run

The Council of Europe shall not become a captive client of any service provider and lose the ability to regain, if necessary, its independence in terms of tasks assigned to a service provider.

Where appropriate and in order to guarantee availability, continuity, security and confidentiality of the outsourced tasks, the Organisation shall preserve a minimal structure in the sector of activities concerned.

d. Retaining control over outsourced activities

The Council of Europe shall also retain the ability to exercise supervision over the conduct of the activity by the service provider, viz:

§ quality control,

§ cost control,

§ control of internal procedures where it may impinge on fair competition and the Council of Europe’s fundamental principles

e. Social acceptability

Potential savings cannot be made effective unless arrangements which are socially acceptable to staff members can be established.

Article 5 - Choice of service provider

a. The service provider shall be chosen with the greatest care and impartially from among suitable persons (or institutions or commercial organisations) having sufficient qualifications and experience for the work to be performed.

b. The service provider shall be chosen as a result of a competitive tendering procedure. In exceptional cases (e.g. translation, proof-reading) service providers can be chosen from the list of qualified suppliers for the services in question.

c. In choosing a service provider the Council of Europe’s policy on non-discrimination on grounds of gender, disability, age, marital or parental status, “race”, colour, ethnic origin, religion, belief, citizenship/nationality and sexual orientation shall be respected.

d. Particular attention shall be paid to the need to offer contracts, wherever possible, to persons with disabilities or to institutions or to commercial organisations with a high percentage of disabled people in their employment.

B. FORM AND CONTENT OF OUTSOURCING CONTRACT

Article 6 – General provisions

a. The contract shall clearly state all the duties of the parties towards each other and the service provider’s terms of reference, indicate the duration of the contract and specify any fees.

b. The duration of the contract may be extended by tacit renewal, but the Secretariat department concerned shall when necessary (see Article 3d) denounce a contract within the specified notice period and organise a call for tenders.

c. A full, clear and detailed description of the work shall be given in an attached memorandum “Service-level agreement”[7] which shall form an integral part of the contract.

d. Appendix II to this Instruction summarises the provisions which are obligatory for all outsourcing contracts. It may be amended by an office circular of the Director General of Administration and Logistics.

Article 7 –Time-limit for performance of work

Where the services are to be provided by the service provider within a specified time limit, this shall be stipulated in the contract and shall be binding.

Article 8 - Fees and expenses

a. Fees shall be stated in Euros.

b. As a rule, the fees shall cover all the expenses incurred in the performance of the work. No additional payment for administrative expenses (e.g. secretariat support, telecommunication, translation, interpretation) shall be made, unless they are clearly provided in the contract. Where travelling is involved, the contract shall state the conditions for the reimbursement of travel and subsistence expenses. The conditions shall be in accordance with the Rules concerning the reimbursement of travel and subsistence expenses to government experts and other persons travelling at the expense of the Council of Europe budget.

c. Fees shall be fixed in relation to the complexity of the tasks assigned, the quality of work required and the existing market rates for similar services. Where a competitive tendering procedure is applied, fees shall be determined accordingly.

d. Where fee scales exist (e.g. translation, proof-reading), these scales shall be up-dated by relevant Secretariat departments on an annual basis. In other cases, the contract shall include a clause stipulating the procedure and periodicity of revision of fees for the period of the duration of the contract.

Article 9 – Assets provided to the service provider

a. In cases where the Organisation makes available various assets and/or facilities to service providers, the conditions shall be clearly described in the contract. The contract shall stipulate that such assets shall only be used for the intended purpose in conjunction with the assignment, do not become the property of the service provider, and shall be returned to the Organisation upon completion of the work.

b. Where appropriate, depreciation costs for use of assets and/or facilities shall be deducted from service providers’ fees.

Article 10 - Method of payment

a. The request for payment from the service provider shall take the form of an invoice. The service provider shall be responsible for ensuring that the invoice is in conformity with the applicable legislation[8]. A model of the invoice is attached in Appendix III. This model can be modified as appropriate to conform with such legislation.

b. Fees and expenses shall not be paid until the work to which the contract relates has been performed and accepted by the Secretary General.

c. Advances on fees can be granted only in the case where at the beginning of the work the service provider has to incur significant expenses for the performance of the duties (e.g. purchase of equipment, new technology). An appropriate sum (which should not exceed 30% of the total annual fees or for a contract of less than one year no more than 30% of the total fees) may be payable on signature of the contract, provided that the contract contains a clause providing for the possibility of its repayment should the external provider’s duties under the contract not be carried out.

d. If the performance of the contract involves a number of stages or is extended over a long period of time, provision shall be made in the contract for an appropriate payment at the end of each such stage or after an appropriate period of time.

e. Payments are to be made only by bank transfer to the account of the service provider concerned.

Article 11 – Health, social and travel insurance

The contract shall specify that the Council of Europe shall not be responsible for any health or social risks concerning illness, maternity or accident that might occur during the performance of work under the contract. The service provider shall undertake all necessary measures to arrange for health, social and travel insurance for all personnel assigned to work with the Council of Europe during the entire period of the performance of work under the contract.

Article 12 - Loyalty and discretion

a. The contract shall indicate that in the performance of the contract a service provider shall neither solicit nor accept instructions from any government or any authority external to the Council of Europe.

b. Furthermore, the contract shall require the service provider to comply with the Secretary General's directives for the completion of the work, to observe absolute discretion with regard to all service matters and to refrain from any word or act which may be construed as committing the Council of Europe. Explicit references to the above shall be given in the contract.

Article 13 - Intellectual property rights

a. In cases when the provision by the service provider of services of an intellectual nature may give rise to intellectual property rights, the contract shall stipulate that the service provider cedes to the Council of Europe, on an exclusive basis and for an unlimited period of time, all rights in the deliverables submitted by the service provider under the contract. Such rights shall include in particular the right to use, reproduce, represent, publish, adapt, translate and distribute – or to have used, reproduced, represented, published, adapted, translated and distributed - in any country, in any language, in any form and on any kind of support, including on a CD-ROM or the internet, the deliverables, or any part thereof, submitted under the contract.

b. In consequence, the contract shall indicate that the Secretary General's authority shall be obtained for any use by the service provider of the deliverables. Such authority shall be granted if such use serves the interests of the Organisation and if royalties, if any, are paid to the Council of Europe.

Article 14 – Use of the Council of Europe’s name

The contract shall provide that the service provider may use the Council of Europe name and logo subject to obtaining prior permission from the Secretary General. Any request for such permission shall stipulate the purpose for which the Council of Europe name and logo is to be used.

Article 15 – Disclosure of terms of the contract

A special provision shall be included in the contract requiring a service provider to consent to the disclosure of all relevant terms of the contract, including identity, for the sole purposes of the internal and external audit and to the Committee of Ministers and to the Parliamentary Assembly (as far as the Parliamentary Assembly external providers are concerned) with a view to these latter discharging their statutory functions. In fully justified and exceptional cases, specific confidentiality measures shall be taken by the Secretary General in the interests of a service provider’s security. In these cases, the identity of a service provider might not be disclosed.

Article 16 – Fiscal obligations of service providers

The contract shall remind service providers to comply with the law including the need to declare all fees received from the Council of Europe for tax purposes as required in their country of fiscal residence. For this purpose service providers are required to submit an invoice as indicated in paragraph 10a. Explicit reference to these obligations shall be made in the contract.

Article 17 – Breach of contract

a. The contract shall stipulate that in case of failure of the service provider to perform the duties under the contract or if the service provider’s services do not reach a satisfactory level as set out in the Service-level agreement, the Secretary General shall be entitled to regard this as breach of contract, to refuse payment of the fees and to demand payment of any penalties stipulated under the contract.

b. In addition, the contract shall specify that in the cases described in paragraph 17a the Council of Europe reserves, at any moment and further to prior notification to a service provider, the right to terminate the contract. In case of termination, the Council shall pay only the amount corresponding to the services actually and satisfactorily provided at the time of termination of the contract and shall request reimbursement of the sums already paid for services not provided.

Article 18 – Disputes

A special provision shall be included in the contract indicating that any dispute between the Council of Europe and the service provider regarding the terms of execution of the contract shall - failing a friendly settlement between the parties - be submitted to arbitration in accordance with Rule No. 481 issued by the Secretary General with the approval of the Committee of Ministers as provided in Article 21 of the General Agreement on Privileges and Immunities of the Council of Europe (see Appendix IV).

C. CONCLUSION, SUPERVISION AND SETTLEMENT OF CONTRACTS

Article 19 – Decision on the tasks to be outsourced

a. Decision on the tasks to be outsourced shall be taken by the Secretary General. This decision will be based on the presentation of the proposal describing the factors as referred to under Article 4.

b. Once this decision is made, the choice of the service provider shall be carried out in conformity with the Financial Regulations of the Council of Europe.

Article 20 - Preparation of file and documents to be produced

Once the choice of a service provider is made, and for internal control purposes, the department concerned shall prepare a file comprising:

§ the proposed draft contract;

§ any other explanatory supporting document;

§ where applicable, relevant documents for presentation to the Tenders Board.

Article 21 - Internal control

The file containing the documents referred to in Article 20 above shall be subject to local internal control procedures defined by each Commitment Officer in his/her respective area of responsibility. Internal control procedures are indispensable to ensure that the provisions of the present Instruction have been complied with.

Article 22 - Signature of contracts

a. The Organisation may not be bound except by signing a contract with the service provider in the manner and form provided in this Instruction.

b. Once a draft contract has received its approval, the department concerned shall send to the service provider for acceptance and signature two copies of the contract.

c. Both copies signed by the service provider shall be submitted for signature by the Secretary General.

d. One signed copy of the contract shall be returned to the service provider and the other kept by the department concerned.

Article 23 - Verification of performance

The department concerned shall ensure that the work assigned to the service provider has been carried out in accordance with the terms of the contract, in particular, where appropriate, as specified in the Service-level agreement.

Article 24 – Settlement of contracts ^{^[9]}

For the payment of fees and expenses to be made a Certificate of acceptance of work and other relevant supporting documents (e.g. original invoices or certified copies of invoices) shall be certified by the department concerned and accepted by the Secretary General, and be sent to the Directorate of Finance.

Article 25 - Amendments to contracts

Any amendment to the clauses of a contract shall before the time-limit for performance therein laid down be embodied in a formal additional clause or an exchange of letters between the parties, which clause or exchange of correspondence shall be submitted for signature by the Secretary General.

Article 26 – Archiving information pertaining to contracts

a. For the purposes of internal and external control during and after the execution of a contract the department concerned shall keep all relevant information and documents pertaining to the contract for a period of time defined by the archiving policy of the Organisation[10]. These documents are as follows:

§ signed copy of the contract;

§ where applicable, tender’s file;

§ copy of the certificate of acceptance of work;

§ original (or certified copies of) invoices and other relevant documents;

§ where appropriate, monitoring procedures set out in the Service-level agreement.

b. Each Commitment Officer shall ensure that summary tables[11] concerning all outsourcing contracts of service providers for the previous calendar year and including the following information: object and type of service provided, contracting administrative entity, source of funding, total annual expenditure, are submitted to the Central Division of the DGAL via electronic mail no later than 15 February of each calendar year.

Article 27 – Entry into force

This Instruction repeals Instruction No. 50 of 1 July 2005 on outsourcing contracts to external service providers and takes effect on 1 January 2008.

Strasbourg, 21 December 2007

The Secretary General

Terry DAVIS

Appendix I to Instruction No. 60 - Resolution Res(2004)26 on outsourcing contracts to external service providers

(Adopted by the Committee of Ministers on 24 November 2004 at the 907th meeting of the Ministers’ Deputies)

The Committee of Ministers,

Having regard to Resolution Res(2004)25 on service contracts of consultants;

Considering that it is necessary to set down the conditions under which outsourcing contracts are offered to third parties;^{^[12]}

Having regard to the relevant provisions of the Financial Regulations, in particular as regards decentralisation of financial management and delegation of authority and the principles of results-based budgeting;

In pursuance of Articles 16 and 17 of the Statute,

Resolves as follows:

I. Definition and scope

1. The term “outsourcing” shall be used to mean the result of a predominantly economic decision to ask a third party to perform totally or partially a general support task rather than using staff members of the Secretariat or investing in the acquisition of technological resources, facilities, etc. The Staff Regulations shall not apply to parties engaged under outsourcing contracts.

2. Third parties contracted under outsourcing contracts shall be called “external service providers”.

3. The tasks concerned shall be essentially ongoing and recurrent ones.^{^[13]} More specifically, tasks that may be considered for outsourcing solutions are as follows: security, cleaning, catering, complex document production, mail delivery, complex maintenance work of buildings, specialised information technology services, proof-reading services, translation, management of official travel, etc.

4. All references to the Secretary General in this Resolution shall be subject to the relevant provisions of the Statute of the Council of Europe, the Staff Regulations and the rules on delegation of authority.

II. Reasons for outsourcing

5. Recourse to outsourcing contracts shall be had for the following reasons:

5.1. outsourcing shall allow the Organisation to focus on core issues while having support tasks assumed by an external service provider so that the latter tasks do not require disproportionate amounts of management resources and attention;

5.2. by the very nature of the tasks concerned, external service providers shall bring extensive and specialised resources to meet the needs of the Organisation. This could include access to new technology, tools and techniques that the Organisation does not currently possess;

5.3. outsourcing shall allow the Organisation to realise more quickly the anticipated benefits of process re-engineering by having an external service provider take over the process;

5.4. outsourcing shall allow the Organisation to become more flexible and thus better able to adapt to changing opportunities or priorities;

5.5. outsourcing shall enable the Organisation to reduce or have better control over operating costs;

5.6. outsourcing shall reduce the need to invest capital funds in non-core functions, thus making capital funds available for core areas;

5.7. the Organisation may have recourse to outsourcing because its does not have access to the required resources internally.

III. Selection of external service providers and general principles governing contracts with external service providers

6. External service providers shall be engaged to perform a clearly defined task in return for a specified fee.

7. External service providers shall be selected by the Secretary General to the largest possible extent on a competitive basis bearing in mind the requirement of impartiality and objectivity.

8. The most important criterion in selecting an external service provider shall be his/her competence to perform the task required.

9. The Secretary General shall endeavour to ensure a fair geographical distribution of outsourcing contracts to external service providers.

10. External service providers shall be required to carry out their work in an impartial and objective manner and to respect the applicable principles, rules and values of the Council of Europe,^{^[14]} its intellectual property rights and confidentiality.

11. Contracts with external service providers shall respect the Financial Regulations of the Council of Europe and the general principles of sound management.

12. Outsourcing contracts shall be signed by the Secretary General on behalf of the Council of Europe and by the external service providers concerned.

IV. Terms of reference

13. The contract shall clearly state the external service provider’s terms of reference, including a detailed description of services to be rendered and the duration of the contract.

14. The content of the terms of reference shall be determined by the Secretary General.

V. Fees

15 Fees shall take account, inter alia, of the complexity of the tasks involved, the quality of work required and existing market rates for similar services.

VI. Supervision and reporting

16. The Secretary General shall ensure that the work assigned to an external service provider has been carried out in accordance with the terms of the contract, in particular as regards the expected results and quality of work.

17. In case of failure of the external service provider to perform the duties under the contract or if the external service provider’s services do not reach a satisfactory level, the Secretary General shall be entitled to regard this as a breach of contract, to refuse payment of the fees and to demand payment of any penalties stipulated under the contract. Contracts shall provide for dispute-settlement procedures.

18. The Secretary General shall establish internal procedures for the collection and storing of all relevant information concerning outsourcing contracts.

19. Contracts with external service providers shall expressly authorise the Secretary General to disclose any information that would be required by the Internal and External Auditor and the Committee of Ministers and the Parliamentary Assembly (as far as Parliamentary Assembly external service providers are concerned) in the discharge of their functions.

20. On the request of the Budget Committee, the Secretary General shall provide them with information on outsourcing contracts.

21. In fully justified and exceptional cases, specific confidentiality measures may be taken by the Secretary General in the interest of an external service provider’s security. In these cases, the identity of an external service provider might not be disclosed.

VII. Application of the Resolution

22. The Secretary General shall ensure the application of the principles outlined in this Resolution by way of an instruction on outsourcing contracts to external service providers.

VIII. Entry into force

23. This Resolution repeals and replaces Resolution No. R (76) 4 and enters into force on 24 November 2004.

Appendix II to Instruction No. 60 - Provisions obligatory for all outsourcing contracts

Article - Loyalty and Confidentiality

a. In the performance of the present contract, the Service Provider will not seek or accept instructions from any government or any authority external to the Council. The Service Provider undertakes to comply with the Council’s directives for the completion of the work, to observe absolute discretion regarding all service matters and to refrain from any word or act that may be construed as committing the Council.

b. The Service Provider shall observe the utmost discretion in all matters concerning the contract, and particularly any service matters or data that have been or are to be recorded that come to the service provider’s attention in the performance of the contract. Unless obliged to do so under the terms of the contract, or expressly authorised to do so by the Secretary General of the Council, the Service Provider shall refrain at all times from communicating to any person, legal entity, government or authority external to the Council any information which has not been made public and which has come to the service provider’s notice as a result of dealings with the Council. Nor shall the Service Provider seek to gain private benefit from such information. Neither the expiry of the contract nor its termination by the Council shall lift these obligations.

Article - Intellectual property rights

(Where applicable)

a. The Service Provider cedes to the Council, on an exclusive basis and for an unlimited period of time all rights in the deliverables referred to in Article [nature of services]. Such rights shall include in particular the right to use, reproduce, represent, publish, adapt, translate and distribute – or to have used, reproduced, represented, published, adapted, translated and distributed - in any country, in any language, in any form and on any kind of support, including on a CD-ROM or the internet, the deliverables, or any part thereof, submitted by the Service Provider under the contract.

The Council reserves to exercise the above-mentioned rights for any purpose falling within its activities and in particular to [specify whenever possible, with an indication of all uses envisaged or possible on the part of the Council].

b. The Service Provider guarantees that the rights of third parties will not be infringed upon following the use by the Council of the deliverable(s) of the contract referred to under Article [nature of services]. However, should the Council incur liability as the result of any such infringement, the Service Provider shall keep the Council wholly indemnified of any ensuing prejudice.

c. Notwithstanding the provision in Article [nature of services] above, the Council may, on prior application by the Service Provider, authorise the Service Provider to use deliverable(s) referred to in Article [nature of services] above. When giving the Service Provider such authority, the Council will inform the Service Provider of any conditions to which such use may be subject.

Article - Use of the Council’s name

The Service Provider shall not use the Council’s name, flag or logo without prior authorisation of the Secretary General of the Council.

Article - Health, social and travel insurance

The Service Provider shall undertake all necessary measures to arrange for health and social insurance during the entire period of the performance of work under the contract. The Service Provider acknowledges and accepts in this regard that the Council shall not assume any responsibility for any health and social risks concerning illness, maternity or accident that might occur during the performance of work under the contract.

Article - Disclosure of the terms of the contract

a. The Service Provider is informed and gives an authorisation of disclosure of all relevant terms of the contract, including identity, for the sole purposes of internal and external audit and to the Committee of Ministers and to the Parliamentary Assembly of the Council with a view to these latter discharging their statutory functions.

b. Whenever appropriate, specific confidentiality measures shall be taken by the Council to preserve the vital interests of the Service Provider.

Article - Fiscal obligations of the Service Provider

The Service Provider undertakes to observe any applicable law and to comply with his/her fiscal obligations in:

§ submitting an invoice to the Council in conformity with the applicable legislation[15];

§ declaring all fees received from the Council for tax purposes as required in his/her country of fiscal residence.

Article - Other obligations of the Service Provider

a. In the performance of the present contract, the Service Provider undertakes to comply with the applicable principles, rules and values of the Council,[16].

b. The Staff Regulations and the rules concerning temporary staff members shall not apply to the Service Provider.

c. Nothing in this contract may be construed as conferring on the Service Provider the capacity of a Council of Europe staff member or employee.

Article - Breach of contract

a. In the event that the Service Provider does not satisfy the conditions laid down in this contract or those resulting from any modifications duly accepted in writing by both parties, in accordance with the provisions of Article [modifications] below, or the services provided as referred to under Article [nature of services] do not reach a satisfactory level, the Council shall consider there to have been a breach of contract and may consequently refuse to pay to the Service Provider the amounts referred to in Article [fees and expenses] above.

b. In the cases described in paragraph [paragraph “a”] above, the Council reserves further, at any moment and further to prior notification to the Service Provider, the right to terminate the contract. In case of termination, the Council shall pay only the amount corresponding to the services actually and satisfactorily provided at the time of termination of the contract and shall request reimbursement of the sums already paid for services not provided.

c. The outstanding sums shall be paid to the Council’s bank account within 60 calendar days from the notification in writing by the Council of the Service Provider regarding the outstanding sums to be paid.

Article - Modifications

a. The provisions of this contract cannot be modified without the written agreement of both parties.

b. This contract may not be transferred, in full or in part, for money or free of charge, without the Council’s prior authorisation in writing.

Article - Case of force majeure

a. In the event of force majeure, the parties shall be released from the application of this contract without any financial compensation. Force majeure is defined as including the following: major weather problems, earthquake, strikes affecting air travel, attacks, a state of war or events that would require the Council or the Service Provider to cancel the contract.

b. In the event of such circumstances each party shall be required to notify the other party accordingly in writing within a period of 7 calendar days.

Article - Disputes

In accordance with the provisions of Article 21 of the General Agreement on Privileges and Immunities of the Council of Europe, all disputes between the Council and the Service Provider as regards the application of this contract shall be submitted, if a mutual agreement cannot be reached between the parties, to arbitration as laid down in Rule No 481 of the Secretary General [attach Rule to be found in Appendix VI ].

Appendix III to Instruction No. 60 - MODEL INVOICE

NAME:
ADDRESS:



VAT Registration No.
Tax Reference No.
Invoice No.
Council of Europe Contract No.
Date:

Description of Item		Amount €

	Total Net of VAT
	VAT
	Total incl. of VAT

Signature:

Appendix IV to Instruction No. 60 - Rule No. 481 of 27 February 1976 on the arbitration procedure of any disputes between the Council and private persons

The Secretary General of the Council of Europe,

HAVING REGARD to the Statute of the Council of Europe, of 5 May 1949, and in particular its Articles 11 and 40,

HAVING REGARD to the General Agreement on Privileges and Immunities of the Council of Europe signed on 2 September 1949, and in particular its Articles 1, 3, 4 and 21, as well as the Special Agreement relating to the seat of the Council of Europe signed on 2 September 1949,

CONSIDERING THAT it is appropriate to determine the arbitration procedures for any disputes between the Council and private persons regarding supplies furnished, services rendered or immovable property purchased on behalf of the Council,

HAVING REGARD to the decision of the Committee of Ministers of the Council of Europe at the 253^rd meeting of the Deputies,

Decides

Article 1

Any dispute relating to the executives or application of a contract covered by Article 21 of the General Agreement on Privileges and Immunities of the Council of Europe shall be submitted, failing a friendly settlement between the parties, for decision to an Arbitration Board composed of two arbitrators each selected by one of the parties, and of a presiding arbitrator, appointed by the other two arbitrators : in the event of no presiding arbitrator being appointed under the above conditions within a period of six months, the President of the Tribunal de Grande Instance of Strasbourg shall make the appointment.

Article 2

However, the parties may submit the dispute for decision to a single arbitrator selected by them by common agreement or, failing such agreement, by the President of the Tribunal de Grande Instance of Strasbourg.

Article 3

The Board referred to in Article 1 or, where appropriate, the arbitrator referred to in Article 2 shall determine the procedure to be followed.

Article 4

If the parties do not agree upon the law applicable the Board or, where appropriate, the arbitrator shall decide ex acquo et bono having regard to the general principles of law and to commercial usage.

Article 5

The arbitral decision shall be binding upon the parties and there shall be no appeal from it.

Strasbourg, 27 Februray 1976

Georg KAHN-ACKERMANN

Secretary General

[1] A third party may be an individual or a (public- or private-law, profit- or non-profit- making) organisation.

[2] The Instruction does not apply in the case of a grant given under an ‘administrative arrangement’ to institutional partners or non-profit-making organisations.

[3] In particular, Instruction No. 44 of 7 March 2002 on the protection of human dignity, Instruction No. 47 of 28 October 2003 on the use of the Council of Europe’s information system and Rule No. 1267 of 20 January 2007 prohibiting smoking inside all Council of Europe buildings.

[4]Attention is drawn to the Council of Europe’s regulations, codes of good practice and policy documents concerning equality.

[5] All of the Organisation’s internal resources, as well as their geographical location, should be taken into account.

[6] Whether a task is ongoing and recurrent should be assessed from the Organisation’s and not the service provider’s point of view.

[7] A Service-level agreement shall be drawn up in order to:

· Identify the Council of Europe’s objectives and the resulting service levels to be provided by the service provider;

· Set up monitoring and reporting mechanisms of the actual service levels as perceived by the Organisation;

· Agree on non-compliance procedures, including penalties, and identify performance indicators for continuous service improvement.

[8] The legislation of his/her country of fiscal residence or that of the country in which the services have been provided, as the case may be.

[9] Settlement procedure can be revised, when necessary, by the Directorate of Finance.

[10] See RAP-INF(2001)6 (extract) 30 May 2001.

[11] Summary tables can be revised, when necessary, by the DGAL

[12] By “third party” is understood any organisation or institution, public or non-public, commercial or non-profitable, or any individual with whom the Council of Europe may enter into an outsourcing contract.

[13]Contracts with third parties to accomplish specialised tasks which are essentially non-recurrent ones that are not normally performed either by the staff members of the Secretariat of the Council of Europe or by a member of the relevant committee are covered by Resolution Res(2004)25 on service contracts of consultants.

[14] In particular Instruction 44 on the protection of human dignity of the Council of Europe and Instruction 47 on the use of the Council of Euruope’s information system.

[15] The legislation of his/her country of fiscal residence or that of the country in which the services have been provided, as the case may be.

[16] See www.coe.int and, in particular, Instruction No. 44 of 7 March 2002 on the protection of human dignity, Instruction No. 47 of 28 October 2003 on the use of the Council of Europe’s information system and Rule No. 1267 of 20 January 2007 prohibiting smoking inside all Council of Europe buildings.