Specific conditions are used either to supplement (i.e. add something to) or to derogate from (i.e. remove something from) an Agreement and the rules applicable to it. They are included in Article 8 of the special conditions of the Agreement.
Specific Conditions should be included when the Agreement is initially set up. By way of exception, specific conditions may also be agreed upon between the Partner and DG ECHO after the signature of the Agreement, depending on the circumstances.
Both parties may request the Agreement to be supplemented or the General Conditions or the procurement rules (“Annex IV” in case of signatories of the FPA) be derogated from. Such a request must always be explicit and well justified.
In cases where the Partner wishes to apply a provision already foreseen in the rules governing the Agreement, supplementary Agreements are not needed. The Partner may request a confirmation reply.
A distinction is to be made between Special Conditions and Specific Conditions. The Special Conditions are the text of the Grant or Contribution Agreement. They establish the Action's purpose, implementation period, budget, and reporting and payment arrangements, as well as Specific Conditions.
Article 8 of the Agreement serves the purpose of introducing specific conditions either to supplement the General Conditions or to derogate from one or more of their provisions. It is strongly recommended to introduce the necessary specific provisions, if any, in the Agreement from the start, in order to avoid having to amend the Agreement once the implementation of the Action has begun.
Specific Conditions to the Agreement include new provisions not envisaged in other parts of the Agreement that are necessary for the implementation of the Action. The need for such provisions is part of the Partner's planning of the Action and can, therefore, in most cases, be expected to be known at the stage of the drafting of the initial proposal/Single Form.
There are three categories of Specific Conditions clauses:
8.1 The following shall supplement the General Conditions:
Specific conditions supplementing the Agreement refer to cases where one of the Parties wants to add provisions to the Agreement not foreseen in the existing clauses.
If the clause has to be inserted after the signature of the Agreement, a formal amendment in the form of a Supplementary Agreement must always be concluded and properly justified (see Amendment methods).
Examples: specific reporting requirements, additional intermediate reports for Agreements with A control mechanism, additional pre-financing payment after additional intermediate reports for Agreements with A control mechanism, etc.
8.2 The following derogations from the General Conditions shall apply:
Derogations refer to cases where, for well-founded reasons, a clause forming part of an Agreement or of the rules applicable to the Agreement (such as the General Conditions and the procurement rules (“Annex IV” in case of signatories of the FPA) should not apply to the particular Agreement, and another rule is to be applied instead.
The need for derogation would normally be known in advance and, therefore, should be taken into consideration at the stage of the drafting of the initial Agreement. In cases where the FPA/NGO, the FPA/IO or the FAFA allow for exemptions (already foreseen), no derogations will be made, but a confirmation reply may be requested by the Partner.
In case a Partner applying P control mechanism wants to derogate from its own rules, DG ECHO will never be able to accept or reject an explicit derogation. This has to be handled as foreseen in the Partner's procedures. The partner can derogate from its own rules provided it follows its own internal derogation/waiver process, without needed to seek DG ECHO’s permission/approval.
When the need for derogation emerges after the conclusion of the Agreement, a formal amendment in the form of a Supplementary Agreement must be concluded and properly justified (see Amendment methods).
Examples: exchange rate (derogation to art. 10.4 of the General conditions), derogation to rules of nationality and origin only for Actions financed by European Development Fund (EDF), permission to use a less strict procurement procedure in cases not set out in the procurement rules (“Annex IV” in case of signatories of the FPA) (Article 13.2 of the General Conditions) - Only for Agreements with A control mechanism.
8.3 The rules applicable to urgent, multi-donor actions shall apply to this Agreement
This information will be retrieved from sections 1.7 and 1.8 of the Single Form.
The nature of a given Action such as an urgent Action (this is applicable to Global Plans and Ad Hoc financing Decisions as well as Primary Emergency and Emergency Decisions) or multi-donor, in the case of International Organisations and UN-agencies, should always be known and established before signature of the Agreement and cannot be modified.
References and useful links