2.4.12. Procedure with a 'suspension clause'
In duly justified cases and via a prior approval, tender procedures may be published with a suspension clause in the two following cases:
(i) before a financing decision is adopted or
(ii) before a financing agreement between the European Commission and the beneficiary country is signed.
PROGRAMMES FUNDED BY THE EU BUDGET:
Suspension clauses are rarely used because the EU financial rules generally require the adoption of a financing decision by the European Commission (or, where relevant, conclusion of a financing agreement) before a call for tenders or proposals is launched. However, exceptional circumstances may arise that give grounds for departing from the usual decision-making process. As a rule, circumstances justifying the use of a suspension clause are outside the European Commission's control. Note that:
- the use of the suspension clause after the financing decision is adopted but before the financing agreement is signed may be considered in most cases as being outside the European Commission's control, as the entry into force of such agreement depends on the will of a third party (i.e. the beneficiary country);
- the use of the suspension clause before a financing decision is adopted requires good reasons why there are objective circumstances leading to the use of such clause and it is impossible to wait for the decision to be adopted. These reasons must be duly reflected in the request for prior approval and in the relevant financing decision. There are some cases where a suspension clause is justified in order to make efficient use of procedures, e.g. by having the option of launching a call for proposals covering two budgetary years.
PROGRAMMES FUNDED BY THE EDF:
Note that the use of this clause before the adoption of the financing decision is expressly authorised for the EDF (see Article 19b of Annex IV of the Cotonou Agreement) in all duly substantiated cases in order to ensure early project start-up.
The actual award and signing of contracts following a call launched with a suspension clause depends on the adoption of the financing decision and/or, where applicable, the conclusion of the financing agreement.
Because of its implications, the contract notice or the guidelines for grant applicants must explicitly state that there is a suspension clause.
The procedure will invariably be cancelled if the European Commission's decision-making procedure is not completed or the financing agreement is not signed.