Instruction No. 59 of 21 December 2007 on consultants’ contracts

I.         INTRODUCTION. 2

II.        PROVISIONS GOVERNING CONSULTANTS’ CONTRACTS. 3

I.          GENERAL CONDITIONS FOR ENGAGING THIRD PARTIES UNDER CONSULTANTS’ CONTRACTS  3

Article 1 – General principles applicable to consultants’ contracts 3

Article 2 - Circumstances in which a Consultant may be engaged under a Consultant’s contract 3

Article 3 – Categories of consultants 4

Article 4 – Nature of work performed. 4

Article 5 - Choice of Consultant 4

II.        FORM AND CONTENT OF A CONSULTANT’S CONTRACT. 5

Article 6 – General provisions 5

Article 7 – Language and length of documents produced as a result of contracts 5

Article 8 - Time-limit for performance of work. 5

Article 9 - Fees and expenses 6

Article 10 - Method of payment 6

Article 11 – Health, social and travel insurance. 7

Article 12 - Loyalty and discretion of consultants 7

Article 13 - Intellectual property rights 7

Articles 14 – Disclosure of terms of the contract 8

Articles 15 – Fiscal obligations of consultants 8

Articles 16 – Breach of contract 8

Articles 17 – Disputes 8

III.       CONCLUSION, SUPERVISION AND SETTLEMENT OF CONTRACTS. 8

Article 18 - Preparation of file and documents to be produced. 8

Article 19 - Internal control 9

Article 20 - Signature of contracts 9

Article 21 - Verification of performance. 9

Article 22 – Settlement of contracts 9

Article 23 - Amendments to contracts 9

Article 24 – Archiving information pertaining to contracts 9

Article 25 – Entry into force. 10

APPENDIX  I to Instruction No. 59 - MODEL CONSULTANT’S CONTRACT. 11

Article 1 - Nature of services and work completion date. 11

Article 2 – Language and length of documents 11

Article 3 – Intellectual property rights 11

Article 4 – Loyalty and confidentiality. 12

Article 5 – Health, social and travel insurance. 12

Article 6 – Disclosure of the terms of the contract 13

Article 7 – Use of the Council of Europe’s name. 13

Article 8 - Fiscal obligations of the Consultant 13

Article 9 - Other obligations of the Consultant 13

Article 10 – Fees, expenses and mode of payment 13

Article 11 - Breach of contract 15

Article 12 - Modifications 15

Article 13 - Case of force majeure. 15

Article 14 - Disputes 15

Article 15 - Addresses and bank details of the parties 16

Article 16 – Date, place and signatures of the parties 16

APPENDIX  II to Instruction No. 59 - MODEL LETTER-CONTRACT. 17

APPENDIX  III to Instruction No. 59 - MODEL INVOICE. 21

APPENDIX  IV to Instruction No. 59 - MODEL CERTIFICATE OF ACCEPTANCE OF WORK. 22

APPENDIX V to Instruction No. 59 - Resolution Res(2004)25 on service contracts of consultants 23

I.      Definition and scope. 23

II.        Selection of consultants and general principles governing contracts with consultants 24

III.       Terms of reference. 25

IV.       Fees 25

V.         Supervision and reporting. 25

VI.       Application of the Resolution. 25

VII.      Entry into force. 26

APPENDIX VI to Instruction No. 59 - Rule No. 481 of 27 February 1976 on the arbitration procedure of any disputes between the Council and private persons 27

Article 1. 27

Article 2. 27

Article 3. 27

Article 4. 27

Article 5. 28

I.         INTRODUCTION

The Secretariat, when carrying out the Organisation’s activities, may need to enter into contracts with third parties[1] for the provision of services of high intellectual content, involving tasks that are essentially non-recurrent and of such a specialised nature that they can be performed neither by Secretariat members[2] nor by a member of the relevant committee, as part of his/her obligations as a committee member.

The Staff Regulations and the rules concerning temporary staff members shall not apply to parties engaged under consultants’ contracts. For the purposes of this Instruction, third parties contracted under consultants’ contracts shall be called “consultants”.

Experts providing services to the Council of Europe on the basis of reimbursement of travel expenses and subsistence allowance only do not fall within the scope of this Instruction.

This Instruction does not apply to persons and institutions called upon to assist the European Court of Human Rights in accordance with the Annex to the Rules of Court concerning investigations. The European Court of Human Rights and its Registry shall be responsible for the implementation of this Instruction for all other contracts which fall within the scope of this Instruction.

This Instruction does not apply to ad hoc judges of the European Court of Human Rights, members of the Administrative Tribunal, the Data Protection Commissioner, nor to experts assisting the members of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The Instruction responds to the need to detail the principles and provisions of Resolution (2004)25 of the Committee of Ministers on service contracts of consultants (see Appendix V).

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 on delegation of authority.

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

II.       PROVISIONS GOVERNING CONSULTANTS’ CONTRACTS

I.         GENERAL CONDITIONS FOR ENGAGING THIRD PARTIES UNDER CONSULTANTS’ CONTRACTS

Article 1 – General principles applicable to consultants’ contracts

a.       Consultants 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 made in the contract.

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

c.       Contracts with consultants 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.

Article 2 - Circumstances in which a Consultant may be engaged under a Consultant’s contract

Recourse to a Consultant’s contract shall only be had if the work can not be done either by the Secretariat or by a member of a relevant committee as part of the work of this committee. Recourse to consultants’ contracts shall, therefore, be duly justified against this criterion.


Article 3 – Categories of consultants

The different categories of consultants and the activities for which the Secretariat can engage each category of consultants can be summarised as follows:

Category of consultants

Activities

Consultants for the programmes of activities

Intergovernmental co-operation,  assistance or monitoring activities; activities of the Parliamentary Assembly of the Council of Europe, the Congress of Local and Regional Authorities of the Council of Europe, the European Court of Human Rights and the partial agreements

Support services consultants

Activities of support services (e.g. buildings); activities related to the administrative modernisation of the Secretariat

Secretary General consultants 

Assist the Secretary General with issues of general interest

Article 4 – Nature of work performed

a.       The work assigned to a Consultant shall be clearly defined.

b.       The following are examples of the nature of work performed by a Consultant: written reports, studies or expertises, oral presentations at conferences, provision of technical services, training courses, advice in field missions and observation of elections.

Article 5 - Choice of Consultant

a.       The Consultant shall be selected to the largest possible extent on a competitive basis bearing in mind the requirements of impartiality and objectivity from among suitable individuals (or organisations) having sufficient qualifications and experience for the work to be performed. Due consideration shall be given to linguistic knowledge and drafting ability. The principles of equal opportunities, in particular gender balance, shall be respected.

b.       In order to identify the most suitable Consultant for the contract the Secretary General should, when appropriate, consult members of relevant committees, national authorities, including the Permanent Representations, professional associations and academic bodies. In the case of activities falling under the responsibilities of Steering or ad hoc Committees, the latter shall be consulted on the possible use of consultants in accordance with their terms of reference.

c.       The most important criteria in selecting a Consultant shall be the Consultant’s competencies for the work to be carried out. Nevertheless, particular attention should be paid to the requirement for a fair geographical distribution of consultants.

d.       In choosing a Consultant 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, or sexual orientation shall be respected.

e.       Particular attention should be paid to the need to offer contracts, wherever possible, to persons with disabilities or to companies with a high percentage of disabled people in their employment.

II.       FORM AND CONTENT OF A CONSULTANT’S CONTRACT

Article 6 – General provisions

a.       The contract shall clearly state all the duties of the parties towards each other and the Consultant’s terms of reference, including a description of the work to be carried out and its purpose, indicate its completion date and specify the fees.

b.       The content of the terms of reference of consultants for the programme of activities and for support services shall be determined with reference to the expected results of the projects or investment to which they relate.

c.       The contract shall include all essential details regarding the work assigned to the Consultant, in particular, whether it involves a study, travel or other duties. If necessary, and in any case for all contracts exceeding 5,000 Euros, a full clear and detailed description of the work shall be given in an attached memorandum which shall form an integral part of the contract.

d.       Consultants’ contracts shall be drawn up in accordance with the model in Appendix I and in one of the official languages of the Organisation. Contracts not exceeding 1,500 Euros may take the form of a letter-contract (model in Appendix II). Appendices I and II may be amended by an office circular of the Director General of Administration and Logistics.  

Article 7 – Language and length of documents produced as a result of contracts

a.       All written documents shall be produced in one of the Organisation’s two official languages. However, in duly justified exceptional cases a Consultant may be authorised to draft a document in a language other than the official languages.

b.       If the Consultant’s document is drafted in a language other than the official languages without this having been provided for in the contract, the cost of translation into an official language shall be charged to the Consultant and deducted from his/her fees.

c.       All written documents which exceed 1,500 words shall be preceded or accompanied by a text summarising its subject and main conclusions and shall not, unless specifically required, exceed 5,000 words.

Article 8 - Time-limit for performance of work

a.       The completion date shall be fixed in agreement with the Consultant, shall be stipulated in the contract and shall be binding.

b.       In case of need the completion date may be exceptionally extended by the Secretary General if such extension is compatible with the proper planning of the activity/project concerned (see Article 23 on amendments to contracts).

Article 9 - Fees and expenses

a.       Fees shall be stated in Euros.

b.       Fees shall be fixed in relation to the task assigned, the quality and characteristics of the work involved and the time required for its completion. Information concerning the calculation of fees shall be included in the electronic administrative follow-up form. Where a competitive tendering procedure is applied, fees shall be determined accordingly.

c.       As a rule, the fees of a Consultant shall cover all expenses incurred in the performance of the work. No additional payment for administrative expenses (such as secretarial support, telecommunication, translation and interpretation) shall be made, unless they are clearly provided in the contract. Where travelling is involved, the contract shall require prior approval by the Secretary General and 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 charge of Council of Europe budget.

Article 10 - Method of payment

a.       The request for payment from the Consultant shall take the form of an invoice. The Consultant shall be responsible for ensuring that the invoice is in conformity with the applicable legislation[5]. Consultants who do not charge VAT under the applicable legislation may submit a request for payment. A model invoice figures in Appendix III. It can be modified as appropriate to conform with the applicable 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 following cases:

·         If at the beginning of the work the Consultant must incur expenses for the performance of the duties, an appropriate sum (which should not exceed 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 Consultant’s duties under the contract not be carried out.

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

d.       Payments are to be made only by bank transfer to the account of the Consultant concerned.


Article 11 – Health, social and travel insurance

a.       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 Consultant shall undertake all necessary measures to arrange for health and social insurance during the entire period of the performance of work under the contract.

b.       In cases when a Consultant must travel at the expense of the Organisation’s budget, the latter will arrange for official journeys insurance covering specific risks related to travel and stay (medical costs related to unforeseen illness or accident, repatriation, death, cancellation of journey or flight, theft or loss of personal possessions), provided that such travel is approved a priori by the Secretary General.

c.       Consultants who do not travel at the expense of the Organisation’s budget, but whose duties are connected with activities monitored by the Organisation, may be, nevertheless, covered by the official journeys insurance scheme provided that such travel is approved a priori by the Secretary General.

d.       Consultants who are not covered by the official journeys insurance scheme are required to undertake all necessary measures to arrange for insurance to cover specific risks related to travel and stay as indicated in paragraph 11b above.

Article 12 - Loyalty and discretion of consultants

a.       The contract shall indicate that in the performance of the contract a Consultant 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 Consultant 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 that 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 view of the provision by the Consultant of services of intellectual nature which may give rise to intellectual property rights, the contract shall stipulate that the Consultant 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 Consultant 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 by the Consultant under the contract.

b.       In consequence, the contract shall indicate that the Secretary General’s authority shall be obtained for any use by the Consultant 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.


Articles 14 – Disclosure of terms of the contract

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

Articles 15 – Fiscal obligations of consultants

The contract shall remind consultants 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 consultants are required to submit an invoice as indicated in paragraph 10a. Explicit reference to these obligations shall be made in the contract.

Articles 16 – Breach of contract

a.       The contract shall stipulate that in case of failure of the Consultant to perform the duties under the contract or if the Consultant’s services do not reach a satisfactory level, the Secretary General shall be entitled to regard this as breach of contract and to refuse payment of the fees and expenses stipulated under the contract.

b.       In addition, the contract shall specify that in the cases described in paragraph 16a the Council of Europe reserves, at any moment and further to prior notification to a Consultant, 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.

Articles 17 – Disputes

A special provision shall be included in the contract indicating that any dispute between the Council of Europe and the Consultant 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 VI).

III.      CONCLUSION, SUPERVISION AND SETTLEMENT OF CONTRACTS

Article 18 - Preparation of file and documents to be produced

Once the choice of a Consultant is made, and for internal control purposes, the administrative entity concerned shall prepare a file comprising:

·         the proposed draft contract;

·         any other explanatory supporting document required for understanding the file;

·         where appropriate, relevant documents for the competitive tendering procedure or written record of consultation with at least three consultants.

It shall also fill in the electronic administrative follow-up form.


Article 19 - Internal control

The file containing the documents referred to in Article 18 above shall be subject to local internal control procedures defined by each Commitment Officer in his/her respective area of responsibility and made available to internal and external auditors as required.

Article 20 - Signature of contracts

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

b.       Once a draft contract has received its approval, the administrative entity concerned shall send two copies of the contract to the Consultant for acceptance and signature.

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

d.       One signed copy of the contract shall be returned to the Consultant and the other kept by the administrative entity concerned.

Article 21 - Verification of performance

The administrative entity concerned shall check that the work assigned to the Consultant has been carried out in accordance with the terms of the contract. 

Article 22 – Settlement of contracts[6]

For the payment of fees and expenses to be made a certificate of acceptance of work (see Appendix IV), accompanied by other relevant supporting documents (such as original invoices or certified copies of invoices), shall be established by the administrative entity concerned, accepted by the Secretary General and sent to the Directorate of Finance of the Directorate General of Administration and Logistics.

Article 23 - 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 24 – Archiving information pertaining to contracts

a.       For the purposes of internal and external control during and after the execution of a contract the administrative entity concerned shall keep all relevant information and documents pertaining to the contract, such as:

·         signed copy of the contract;

·         administrative follow-up form;

·         where appropriate, tenders file or written record of consultation with at least three consultants;

·         certificate of acceptance of work;

·         original (or certified copies of) invoices and other relevant documents.

b.       Once the payment (final payment when a contract involves a number of stages) of fees and expenses to a Consultant is made, the electronic administrative follow-up form shall be updated by the administrative entity concerned in order to reflect the real situation.

c.       The documents described in Article 24a shall be kept by the administrative entity concerned for a period of time defined by the archiving policy of the Organisation[7].

d.       Each Commitment Officer shall ensure that summary tables[8] concerning all consultants’ contracts for the previous calendar year and including the following information: name, nationality and category of Consultant, contracting administrative entity, source of funding, purchase order number, type of service provided, object of the contract, fees, date of contract[9] and dates of work are submitted to the Central Division of the DGAL not later than 15 February of each calendar year.

Article 25 – Entry into force

This Instruction repeals Instruction No. 49 of 1 July 2005 on service contracts of consultants and takes effect on 1 January 2008.

Strasbourg, 21 December 2007

The Secretary General

Terry DAVIS


APPENDIX  I to Instruction No. 59 - MODEL CONSULTANT’S CONTRACT

Contract No: …………….

FIMS PO No: ………………….

CEAD No[10]: …………………..

                              

Between        the Secretary General of the Council of Europe represented by [name and position of the person], hereinafter referred to as “the Council”

And              in case of an individual [name and position of person; or in the case of an  organisation [name of organisation followed by the name and position of the representative], hereinafter referred to as “the Consultant”.

Article 1 - Nature of services and work completion date

1.1     The Consultant undertakes, on the conditions, within the limits and in the manner laid down by common agreement hereafter excluding any accessory verbal agreement, to … [description of the services and deliverables; if necessary, a detailed and clear description of the work may be given in an attached memorandum which shall form an integral part of the contract].

1.2     The Consultant undertakes to submit to the Council for editing, if necessary, copy (copies) of a preliminary version of … [specify deliverables] not later than [date]; the final version shall be submitted not later than [date].[11]

Article 2 – Language and length of documents

2.1     Any written documents prepared by the Consultant under the contract shall be written in one of the Council’s official languages (English or French) [specify if otherwise] and produced on a word processing file.

2.2     If the Consultant’s document is drafted in a language other than the official languages without this having been provided for in the contract, the cost of translation into an official language shall be charged to the Consultant and deducted from the fees stipulated in Article 10.

2.3     All written documents of more than 1,500 words shall be preceded or accompanied by a text summarising the subject and main conclusions and shall not, unless specifically required, exceed 5,000 words.

Article 3 – Intellectual property rights

3.1     The Consultant cedes to the Council, on an exclusive basis and for an unlimited period of time all rights in the deliverables referred to in Article 1.1. 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 Consultant 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].

(Where applicable)

Unless otherwise agreed, any text published will indicate the author’s name.

3.2     The Consultant guarantees that use by the Council of the items supplied under the contract and referred to in Article 1.1. will not infringe the rights of third parties. However, should the Council incur liability as the result of any such infringement, the Consultant will compensate it in full for any damage it may suffer in consequence.

3.3     Notwithstanding the provision in Article 3.1 above, the Council may, on prior application by the Consultant, authorise the Consultant to use the deliverable(s) referred to under 1.1 above. When giving the Consultant such authority, the Council will inform the Consultant of any conditions to which such use may be subject.

Article 4 – Loyalty and confidentiality

4.1         In the performance of the present contract, the Consultant will not seek or accept instructions from any government or any authority external to the Council. The Consultant 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.

4.2         The Consultant 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 Consultant’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 Consultant 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 Consultant’s notice as a result of dealings with the Council.  Nor shall the Consultant 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 5 – Health, social and travel insurance

5.1     The Consultant 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 Consultant 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 which might occur during the performance of work under the contract.

         

(Where appropriate)

5.2     Unless otherwise specified in Article 10 below, the Consultant is required to arrange for travel insurance covering specific risks related to travel and stay (medical costs related to unforeseen illness or accident, repatriation, death, cancellation of journey or flight, theft or loss of personal possessions) during the performance of the work under the contract.

Article 6 – Disclosure of the terms of the contract

6.1     The Consultant 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.

6.2     Whenever appropriate, specific confidentiality measures shall be taken by the Council to preserve the vital interests of the Consultant.

Article 7 – Use of the Council of Europe’s name

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

Article 8 - Fiscal obligations of the Consultant

The Consultant undertakes to observe all applicable rules and to comply with his/her fiscal obligations in:

·         submitting an invoice to the Council in conformity with the applicable legislation [or a request for payment in the case of consultants who do not charge VAT under the applicable legislation[12]]  ;

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

Article 9 - Other obligations of the Consultant

9.1     In the performance of the present contract, the Consultant undertakes to comply with the applicable principles, rules and values of the Council[13].

9.2     The Staff Regulations and the rules concerning temporary staff members shall not apply to the Consultant.

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

Article 10 – Fees, expenses and mode of payment

10.1    In return for the fulfilment by the Consultant of his/her obligations under the contract, the Council undertakes to pay him/her a fee of € … [amount in words][14]. This fee is final and not subject to review.

10.2    The Consultant shall submit an invoice [or request for payment in the case of consultants who do not charge VAT under the applicable legislation] in triplicate and in Euros in conformity with the applicable legislation. A model is attached in Appendix … to this contract. This model can be modified as appropriate to conform with the applicable legislation.

10.3    This sum shall be payable within 60 calendar days upon receipt of the [report, study, or any other deliverables of the contract to be specified] and its acceptance by the Council and on presentation of an invoice in triplicate [or a request for payment in the case of consultants who no not charge VAT under the applicable legislation] and in Euros.

(Or alternatively)

10.3       This sum shall be payable as follows:

·         € [amount in words] on signature of this contract, 60 calendar days upon submission of an invoice in triplicate;

·         € [amount in words] on receipt of the [report, study, or any other deliverables of the contract to be specified] and its acceptance by the Council and 60 calendar days upon presentation of an invoice in triplicate [or a request for payment in the case of consultants who no not charge VAT under the applicable legislation] and in Euro currency.

(Where appropriate)

10.4    In the event of the Consultant being required to travel for the purposes of the contract, the Council also undertakes, provided the Consultant has obtained its prior agreement, to reimburse travel and subsistence allowances up to a maximum of € [amount in words] for visiting/attending [purpose, place].

Travel expenses will be reimbursed on the basis of the rail fare (first class) or air fare (tourist class) upon presentation of a request for payment supported by the relevant vouchers.

Subsistence expenses (including travel expenses within the locality visited) will be reimbursed at the rate of € [amount in words] a day.

 

(Where appropriate)

10.5    The Council also undertakes to reimburse administrative expenses [describe expenses covered] incurred by the Consultant up to a maximum of € [amount in words] and on presentation of the relevant vouchers where appropriate.

(Where appropriate)

10.6    In the cases when the Consultant has to undertake travel under the contract, the duration of the Consultant’s travel and stays will be covered by an insurance policy with the insurers AIG EUROPE (Policy No. 2.004.761). A telephone helpline is available in case of emergency (+ 32 (0)3 253 69 16). The said insurance will cover specific risks related to travel and stay of the Consultant (including medical costs related to unforeseen illness or accident, repatriation, death, cancellation of journey or flight, theft or loss of personal possessions). The insurance policy does not cover persons over 75 years of age.


Article 11 - Breach of contract

11.1    In the event that the Consultant 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 12 below, or the services provided as referred to under Article 1.1 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 Consultant the amounts referred to in Article 10 above.

11.2    In the cases described in paragraph 11.1 above, the Council reserves further, at any moment and further to prior notification to the Consultant, 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.

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

Article 12 - Modifications

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

12.2       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 13 - Case of force majeure

13.1    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 Consultant to cancel the contract.

13.2    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 14 - 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 Consultant 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).


Article 15 - Addresses and bank details of the parties

15.1    Consultant

Address:

Bank details:

15.2    Council of Europe

Address: F-67075 Strasbourg, Cedex, France

Bank details:

SOCIETE GENERALE STRASBOURG

Code IBAN: Fr 76 30003 02360 001500 1718672

SWIFT Code: SOGEFRPP

Article 16 – Date, place and signatures of the parties

Done in two copies, in [if the contracting parties are not physically present at the same place when signing the contract, insert the duty station of the person representing the Secretary Genera] this date of [if the contracting parties are not physically present at the same place when signing the contract, insert the date of the last signature].

 

On behalf of the Council

On behalf of the Consultant                    

Name

Position

Name

Position


APPENDIX  II to Instruction No. 59 - MODEL LETTER-CONTRACT

Secretariat general

Directorate General …

Directorate of …

[Please quote: … – PO … – CEAD …]



… (date)

Dear …

In connection with … (programme or project), the Council of Europe is organising a meeting on … (subject matter) to be held in … (place)[15] on … (date).

[More detailed description of the activity]  The working language[s] will be … [and …].

I would like to invite you to participate in this meeting as a ….. (state capacity). [If you accept this invitation, I would be grateful if you could:

- make a presentation on … and/or

- produce a … page [maximum] report on the conclusions of ...

(or other tasks)].

[Alternatively: In connection with … (programme or project), the Ministry of … (or other competent national authority) requests a study on … [an appraisal of … / an expert evaluation of … or other task]. I would be very grateful if you could take part in this exercise and submit a report to the Secretariat of the Council.]

[Your report/The written version of your presentation, in … (language), must reach the Secretariat by … at the latest.]

[Upon its receipt and approval by the Secretariat (in the case of a report/presentation)], and subject to your presenting an invoice in Euros (EUR) [in duplicate (in the case of consultants in France)] that complies with the applicable legislation[16], you will receive, for the fulfilment of the above-named task(s), a fee of € … (… Euros (in full)). The model invoice attached to this letter may be modified so as to comply with the requirements of the applicable legislation. If you do not charge VAT under the applicable legislation, you should submit a request for payment.

[Further information concerning the practicalities of this meeting will be forwarded to you in the next few days].

[Your travel (between the address quoted above and the meeting place) and subsistence expenses (€…. per meeting day) will be covered by the Council on the terms specified in the attached Rules and reimbursed by bank transfer after the meeting.  I would draw your attention to the fact that travel time is not taken into consideration for the calculation of your daily allowances and that these allowances are reduced if certain expenses are met by the organisers. You are kindly requested to arrange your journey by the most economical route and to make use, wherever possible, of any reduced fares (Pex, excursion, etc…) that may be available.  Travel expenses will only be reimbursed upon presentation of documentary evidence of the sum actually paid (invoice, copy of credit card slip, etc.).  If an invoice is provided, this must be the original document issued by the travel agency or airline that issued the ticket If an electronic ticket is purchased, documentation showing the flight details (dates and destination) and the amount actually paid must be provided. If no public transport is used, travel expenses will be reimbursed according to Article 6 of the enclosed Rules.

We strongly recommend that you purchase your tickets yourself, taking due account of the terms specified in the attached Rules. However, please note that, upon presentation of a duly justified request by ….. at the latest, the Secretariat can arrange for pre-paid tickets to be put at your disposal.  I would also like to confirm that in the event of your needing a visa, this expense will also be reimbursed upon presentation of documentary evidence of payment.

Specific travel related risks are covered by an AIG EUROPE insurance policy (number 2.004.761), which provides cover for persons up to their 76th birthday. The following help line AIG EUROPE Assistance 24 Hours can be called in case of need: + (32) 3 253 69 16.]

By signing this letter you are deemed to have entered into a Consultant’s contract with the Council that may be amended only by written agreement of the two parties and may not be transferred, in full or in part, for payment or free of charge, without the Council's prior authorisation in writing. Nothing in this letter may be construed as conferring on you the capacity of a Council staff member or employee.

I would like to draw your attention to the following general rules for the execution of Consultants’ contracts, which are applicable to you as part of your contract with the Council of Europe:

“Consultants are required to observe the applicable principles, rules and values of the Council of Europe.

The Consultant 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 Consultant'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 of Europe, the Consultant 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 Consultant's notice as a result of dealings with the Council. Nor shall the Consultant seek to gain private benefit from such information. Neither the expiry of the contract nor its termination by the Council shall lift these obligations.

In the performance of the present contract the Consultant will not seek or accept instructions from any government or any authority external to the Council. The Consultant 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.

The Consultant cedes to the Council of Europe, on an exclusive basis and for an unlimited period of time all rights in the deliverables submitted by him/her under the contract. Such rights 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 Consultant under the contract. Accordingly, the Secretary General's authority must be obtained for any use by the Consultant of the deliverables. 

The supplier shall not use the Council's name, flag or logo without prior authorisation of the Secretary General of the Council of Europe.

The Consultant 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 (as far as Parliamentary Assembly consultants are concerned) with a view to these latter discharging their statutory functions.

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

The Consultant undertakes to observe any applicable law and to comply with  his/her fiscal obligations  in conformity with the legislation of the Consultant's country of fiscal residence.

In the event that the Consultant does not satisfy the conditions laid down in this contract or if the Consultant’s services do not reach a satisfactory level, the Council shall consider there to have been a breach of contract and may consequently refuse payment of the fees and expenses stipulated under the contract. In such a case the Council of Europe reserves, at any moment and further to prior notification to the Consultant, 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.

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 Consultant 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 (attached).”

Ms/Mr … of … of the Directorate General of …. [or other Major Administrative Entity] (Tel.: + … ;
Fax: + …; E-mail: … @coe.int) is responsible for the organisation of this meeting [or event/activity] and is at your disposal for any further information you may require.

I would be grateful if you could now refer to the box below and complete it before dating and signing it.  A copy should then be returned to us at your earliest convenience.

Yours sincerely

(Name of CCM followed by his/her title)

Encl.:  - Model invoice

-          Rules concerning the reimbursement of travel and subsistence expenses

-          Rule No. 481

Text Box: I, the undersigned, …………………………………………………………………, agree with the terms referred to in this letter. 
Date …… [this being deemed to be the date of the contract]
The transfer for the payment of fees should be made to the following bank account:
Name of bank:
Address of bank:
Code IBAN:
SWIFT Code:



Signed ......................................... Date .........................................


                       


APPENDIX  III to Instruction No. 59 - 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. 59 - MODEL CERTIFICATE OF ACCEPTANCE OF WORK

From

To Head of Directorate of Finance (DGAL)

I, the undersigned, hereby certify that [name of Consultant]

has satisfactorily completed the work assigned under contract No.

and

has complied with the clauses of the contract concerning the nature of the services, the expected results and the completion date [add any possible comments in particular as regards compliance with expected results]

The sum of ................................. € provided for in Article 10 of the Contract may therefore be paid to [name of Consultant].

Or

has not satisfactorily completed the work assigned under contract No. …. for the following reasons: [specify reasons]

and, however, requests that the sum of ................................. € is paid by the Council of Europe in order to cover expenses [specify expenses] incurred.

The sum of ................................. € may therefore be paid to [name of Consultant].

Signed .........................................

Date ............................................


APPENDIX V to Instruction No. 59 - Resolution Res(2004)25 on service contracts of consultants

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

The Committee of Ministers,

Considering that Resolution No. R(76)4 on consultants no longer corresponds to the needs of the Council of Europe;

Having regard to Resolution Res(2004)26 on outsourcing contracts of external service providers;

Considering that it is necessary to set down the conditions under which service contracts are awarded to third parties[17];

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

In pursuance of Articles 16 and 17 of the Statute,

Resolves as follows:

I.         Definition and scope

1.       A service contract is an agreement with a third party for the provision of specialised services. The Staff Regulations shall not apply to parties engaged under service contracts.

2.       Third parties engaged under service contracts shall be called “consultants”.

3.       There shall be three categories of consultants:

4.       The tasks concerned shall be essentially non-recurrent and of such a specialised nature that they cannot be performed either by the staff members of the Secretariat of the Council of Europe[18] or by a member of the relevant committee. The Secretary General shall establish the necessary written procedures to ensure that these criteria are met whenever a Consultant is to be engaged.

5.       Experts providing services to the Council of Europe on the basis of reimbursement of travel expenses and a subsistence allowance only do not fall within the scope of this Resolution.

6.       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.       Selection of consultants and general principles governing contracts with consultants

7.       Consultants shall be engaged to perform a clearly defined task within a specific time limit and in return for a specified fee.

8.       In the case of activities that fall under the responsibility of Steering or Ad hoc Committees, the latter shall be consulted on the possible use of consultants in accordance with their terms of reference.

9.       Consultants 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. In order to identify the most suitable consultants, the Secretary General should when appropriate consult members of relevant committees, national authorities including the Permanent Representations, professional associations and academic bodies.

10.     The most important criterion in selecting a Consultant shall be his/her competence to carry out the work required.

11.     The Secretary General shall endeavour to ensure a fair geographical distribution of service contracts of consultants.

12.     Consultants 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[19], intellectual property rights and confidentiality.

13.     Contracts with consultants shall respect the Financial Regulations of the Council of Europe and the general principles of sound management.

14.     Service contracts shall be signed by the Secretary General on behalf of the Council of Europe and by the consultants concerned.


III.      Terms of reference

15.     The contract shall clearly state the Consultant’s terms of reference, including the general lines of the work to be done, its purpose and completion date.

16.     The content of the terms of reference of consultants for the programmes of activities and for support services shall be determined with reference to the specific objectives and expected results of the projects or investments to which they relate.

IV.       Fees

17.     Fees shall take account, inter alia, of the time required for work completion, the complexity of the tasks involved, and the quality of work required. A written record shall be kept of the procedure applied for determining the level of fees prior to the signature of the contract with the Consultant.

V.        Supervision and reporting

18.     The Secretary General shall ensure that the work assigned to a Consultant has been carried out in accordance with the terms of the contract, in particular as regards quality of work.

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

20.     The Secretary General shall establish internal procedures for the collection and storing of all relevant information concerning service contracts of consultants.

21.     Contracts with consultants 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 consultants are concerned) in the discharge of their functions.

22.     The Secretary General shall provide the Committee of Ministers and the Parliamentary Assembly (as far as Parliamentary Assembly consultants are concerned) with an annual report, with summary tables, concerning all service contracts of consultants and including the following information: name, nationality and category of consultants, contracting administrative entity, source of funding, type of services provided, object of the contract and fees.

23.     In fully justified and exceptional cases, specific confidentiality measures may be taken by the Secretary General in the interest of a Consultant’s security. In these cases, the identity of a Consultant might not be disclosed in the report referred to in paragraph 22.

VI.       Application of the Resolution

24.     The Secretary General shall ensure the application of the principles outlined in this Resolution by way of an instruction on service contracts of consultants.


VII.     Entry into force

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


APPENDIX VI to Instruction No. 59 - 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 253rd 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 term designates staff members under Article 1 of the Staff Regulations, temporary staff members under the relevant Rules and seconded officials under Article 1a of the Regulations on secondment to the Council of Europe.

[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] 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.

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

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

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

[9] Date of signature of the contract; when the contracting parties sign on different dates, this would be the date of the last signature.

[10]  CEAD N° shall be inserted where applicable

[11] If necessary, the text can be modified to describe in detail the time-limit for the performance of the work, including the different stages involved.

[12] 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.

[13] See www.coe.int and, in particular, Instruction No. 44 of 7 March 2002 on the protection of human dignity of the Council of Europe, 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.

[14] The table of fee ranges in the Administrative Handbook should be consulted.

[15] If the meeting is to be held on Council  premises please add the following sentence:

"I should draw your attention to the fact that the Council has decided to make all its buildings smoking-free areas. I count on your cooperation for strict compliance with this measure, which is intended to protect the health of everyone present on the Organisation's premises."

[16] 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.

[17] 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 a service contract.

[18] Contracts with third parties to perform support tasks which are essentially recurrent are covered by Resolution Res(2004)26 on outsourcing contracts.

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