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Force majeure in EU projects in practice

April 13, 2016

No matter how detached an average Horizon 2020 R&I project in general may seem from global politics, certain aspects still can affect even the most research focused initiative with no ties whatsoever to politics or global security.

Even though the suicide bombings in Madrid and London over a decade ago were terrible with devastating numbers of victims and casualties, retrospectively they did not seem to have the same effect which now tends to creep into our everyday life here in Europe on the wake of the dreadful events occurred in Paris, Brussels and Istanbul recently. Ever since the attack on Charlie Hebdo, Europe started to have a sample of the bitter taste what it feels like not taking your safety granted. The coordinated attacks in November 2015 reinforced this notion and brought it to a whole new level, by targeting random civilians at multiple locations at the same time, rather than focusing the wrath of a few selected jihadists with a twisted justification on a few journalists. Until that point you might have felt that since you do not mock Islam you might be safe, but the Bataclan proved you wrong. The bombings in Brussels recently aimed at the very foundation of how we live our lives here in the EU. For a few days, Europe’s capital resembled a warzone, with soldiers armed to the teeth patrolling the streets, public transportation suspended, businesses and schools closed and in general the whole city felt safer behind doors. Needles to say, all pre-scheduled activities for those days of state-of-emergency got cancelled, postponed or re-scheduled for safety reasons.

The attacks hitting the most touristic areas of Istanbul followed a similar pattern, targeting foreigners, though with a touch of putting pressure on the Turkish Government about certain elements of its foreign policy.

It is evident that such a climate does not favour certain activities such as having project meetings that on one hand are essential from a managerial point of view, and on the other hand often require international travel to a number of exotic locations, that up until recently were considered safe to visit; but some of them – at least temporarily – are on the list of non-advised destinations, such as Istanbul. In 2016, the city has already been hit twice with both attacks targeting popular touristic areas killing 15 and injuring 36.

The relevance of all this in our case is that the second general assembly meeting for one of our ongoing Horizon 2020 projects was announced in February, and the Turkish partner kindly offered that they would happily host the meeting in Istanbul at the selected date in early April. The preparations went well, flights were arranged and accommodations were booked when just 3 weeks before the set date the second suicide bombing took place in the heart of the city. The following day the first emails started to land in the coordinator’s mailbox (the whole consortium in cc) with essentially the same type of message appearing in all of them “…under these circumstances our team feel unsafe and decided not to travel”. A few days later a decision was made to cancel the meeting and hold it at a later date elsewhere. This could be considered as an example of force majeure that is covered under Article 51 of the H2020 Annotated Model Grant Agreement (AGA).

According to the AGA’s definition „In case of force majeure, a party will be excused from not fulfilling its obligations (…)‘Force majeure’ relates to an extraordinary event or situation that is beyond the party’s control and that prevents it from fulfilling its obligations under the GA. The event or situation must be inevitable (despite the beneficiary’s due diligence, i.e. level of care that can reasonably be expected from a beneficiary, in order to ensure the fulfilment of its obligations under the GA) and unforeseeable. Force majeure can NOT be used to justify situations caused by a beneficiary’s negligence or by events that could reasonably have been anticipated. Force majeure normally has no specific effects on the eligibility of costs. For example: Airline tickets bought for a beneficiary to attend a meeting related to the action. The flight is cancelled due to a volcano eruption, making it impossible for the beneficiary to travel to the meeting. If the ticket costs fulfil the eligibility conditions set out under Article 6 of the GA, they are eligible, even if the beneficiary did not travel and did not take part in the meeting.”

We believe that in this particular case, the events that have led to the cancellation of our planned meeting can be considered as force majeure. The suicide attack was clearly beyond the consortium’s control and was also unforeseeable (despite some countries (US, Australia) suggested its citizens beforehand not to travel to Istanbul). Airline tickets were bought but since the meeting was called off they had to be cancelled too (depends on the airline and the type of ticket various degrees of refunds were available). Hotel bookings were also revoked (tip: it’s worth booking accommodation with free cancellation policy, to spare yourself the extra hassle in such cases).

The meeting eventually has been rescheduled to take place in Madrid at a later date. All we hope is that history won’t repeat itself and Madrid remains to be incident-free.

Source of photo: The Telegraph (http://www.telegraph.co.uk)

Written by: Istvan Pari

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