COUNCIL REGULATION (EC) No 71/2007
of 20 December 2007
setting up the Clean Sky Joint Undertaking
(Text with EEA relevance)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 171 and 172 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the European Economic and Social Committee,
Whereas:
(1)
Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) (1) (hereinafter referred to as the Seventh Framework Programme), provides for a Community contribution to the establishment of long term public private partnerships in the form of Joint Technology Initiatives (hereinafter referred to as JTIs), which could be implemented through Joint Undertakings within the meaning of Article 171 of the Treaty. These JTIs result from the work of European Technology Platforms, already set up under the Sixth Framework Programme, and cover selected aspects of research in their respective fields. They should combine private sector investment and European public funding, including funding from the Seventh Framework Programme.
(2)
Council Decision 2006/971/EC of 19 December 2006 concerning the Specific Programme ‘Cooperation’ implementing the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (2) (hereinafter referred to as the Specific Programme Cooperation), underlines the need for ambitious pan-European public-private partnerships to accelerate the development of major technologies by large research actions at Community level including, in particular, JTIs.
(3)
The Lisbon Growth and Jobs Agenda underscores the need to develop favourable conditions for investment in knowledge and innovation in Europe with a view to boosting competitiveness, growth and jobs in the European Union.
(4)
In its conclusions of 13 May 2003, of 22 September 2003 and of 24 September 2004, the Council highlighted the importance of further developing actions following the 3 % Action Plan for research and the innovation policy, including the development of new initiatives aimed at intensifying cooperation between industry and the public sector in funding research to enhance transnational public-private links.
(5)
In its conclusions of 4 December 2006 and of 19 February 2007, the Council and, its conclusions of 8-9 March 2007 the European Council, invited the Commission to submit proposals for the setting up of JTIs for initiatives that have reached an appropriate stage of preparedness.
(6)
The Aeronautics European Technology Platform Advisory Council for Aeronautics Research in Europe (ACARE) developed a Strategic Research Agenda, which identified as one of its high priorities the reduction of aviation's impact on the environment. It also concluded that technological changes are needed in order to achieve by 2020 the goals of cutting CO2 emissions by 50 %, reducing NOx emissions by 80 %, reducing perceived external noise by 50 %, and making substantial progress in reducing the impact of manufacture, maintenance and disposal of aircrafts and related products on the environment.
(7)
The extent of the effort required to address the environmental challenges to the air transport system as defined in the Strategic Research Agenda of ACARE justified the setting up of a Joint Undertaking as the appropriate instrument to coordinate the relevant research activities.
(8)
The Clean Sky JTI should mitigate the various risks of market failure which discourage private investment in aeronautics research in general, and in clean Air Transport technologies in particular. It should provide integration and demonstration at the level of the system as a whole, thus decreasing the risk for private investment in developing new environmentally friendly aeronautics products. It should stimulate private R & D investment in environmentally friendly technologies in the European Union, thus addressing the existing R & D and environmental externalities.
(9)
The Clean Sky JTI should accelerate the development in the European Union of clean Air Transport technologies for earliest possible deployment which will contribute to achieving Europe's strategic environmental and social priorities, in combination with sustainable economic growth.
(10)
The Clean Sky JTI should be a public-private partnership associating all key stakeholders. Taking into account the long-term nature of this partnership, the necessary pooling and availability of financial resources, the high scientific and technical expertise required, including the management of a vast amount of knowledge, and appropriate intellectual property rules, it is vital to set up a legal entity capable of ensuring the coordinated use and efficient management of the funds assigned to the Clean Sky JTI. It is therefore appropriate to set up a Joint Undertaking under Article 171 of the Treaty (hereinafter referred to as the Clean Sky Joint Undertaking).
(11)
The Clean Sky Joint Undertaking aims at addressing the implementation of innovative, environmentally-friendly technologies in all segments of civil air transport, including large commercial aircraft, regional aircraft and rotorcraft, and in all supporting technologies such as engines, systems and materials life cycle. The Clean Sky Joint Undertaking will deliver full scale demonstrators in all areas of research activities, which should be tested either in flight or on the ground, as a result of a fully integrated approach and monitoring of the technological progress and impact.
(12)
The Clean Sky Joint Undertaking should be set up for the period up to 31 December 2017 to ensure the appropriate management of research activities, including exploitation of the results by the members of the Clean Sky Joint Undertaking and the participants initiated but not concluded during the Seventh Framework Programme. However, exploitation of results will not be funded by the Joint Undertaking.
(13)
The members of the Clean Sky Joint Undertaking should be the European Community represented by the Commission as public representative, the leaders of Integrated Technology Demonstrators (hereinafter referred to as ‘ITDs) and the Associate members of the individual ITDs.
(14)
The Clean Sky Joint Undertaking should be open to new members.
(15)
The Clean Sky Joint Undertaking should be a body set up by the Communities, and discharge for the implementation of its budget should be given by the European Parliament, on a recommendation from the Council, taking however into account the particular characteristics resulting from the nature of JTIs as public-private partnerships and in particular from the private sector contribution to the budget.
(16)
The leaders of ITDs have signed a Memorandum of Understanding committing their respective companies to technical, managerial and financial participation in the Clean Sky Joint Undertaking for its full duration. All Associate members have committed themselves to a threshold financial participation for the whole duration of Clean Sky Joint Undertaking.
(17)
The research activities should be funded by the Community and funded at least equally by the other members’ resources. Further financing options may be available, inter alia, from the European Investment Bank (EIB), in particular through the Risk-Sharing Finance Facility developed jointly with the EIB and the Commission, pursuant to Annex III of Decision 2006/971/EC.
(18)
The running costs of the Clean Sky Joint Undertaking should be covered equally by the Community and the other members.
(19)
The leaders of ITDs and the Associate Members of the individual ITDs should receive support from the Clean Sky Joint Undertaking when carrying out the research activities of which they are in charge.
(20)
The Clean Sky Joint Undertaking should be capable of organising competitive calls for proposals for supporting research activities, where appropriate.
(21)
Research activities carried out under the Clean Sky Joint Undertaking should respect the fundamental ethical principles applicable in the Seventh Framework programme.
(22)
The Clean Sky Joint Undertaking should adopt, in accordance with Article 185(1) of Council Regulation (EC, Euratom) No 1605/2002 (3) of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (hereinafter referred to as ‘Financial Regulation) and subject to prior consent of the Commission, specific financial rules which take into account its specific operating needs arising, in particular, from the need to combine Community and private funding to support research and development activities in an efficient and timely manner. In order to ensure a harmonised treatment of the participants of the Joint Undertaking research activities and those of the indirect actions of the Seventh Framework Programme, it is appropriate that value added tax should not be an eligible cost for Community funding, in line with Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) (4).
(23)
In order to ensure stable employment conditions and equal treatment of staff, and to attract specialised scientific and technical staff of the highest calibre, the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities, laid down in Regulation (EEC, Euratom, ECSC) No 259/68 of the Council (5) (the Staff Regulations) should be applied to all staff recruited by the Clean Sky Joint Undertaking.
(24)
The rules for the organisation and operation of the Clean Sky Joint Undertaking should be laid down in the Statutes of the Clean Sky Joint Undertaking annexed to this Regulation.
(25)
The Commission should be entrusted with specific tasks associated with the monitoring of public funds and safeguarding Community interests in the Joint Undertaking.
(26)
The Clean Sky Joint Undertaking should regularly report to the European Parliament and to the Council on its progress.
(27)
The Clean Sky Joint Undertaking should rely on a number of external advisory bodies, involving National States and the ACARE European Technology Platform for Aeronautics, and should maintain regular contacts with National States.
(28)
As a body possessing legal personality, the Clean Sky Joint Undertaking should be accountable for its actions. As regards the resolution of disputes in contractual matters, any grant agreements or contracts concluded by the Clean Sky Joint Undertaking could provide for the jurisdiction of the Court of Justice.
(29)
The intellectual property rights policy of the Clean Sky Joint Undertaking should promote the creation and exploitation of knowledge.
(30)
Appropriate measures should be taken to prevent irregularities and fraud, and necessary steps should be taken to recover funds lost, wrongly paid or incorrectly used, in accordance with Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (6), and Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on the spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (7), and Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations concluded by the European Anti-Fraud Office (OLAF) (8).
(31)
In order to facilitate the setting up of the Clean Sky Joint Undertaking, the Commission should be responsible for the establishment and initial operation of the Clean Sky Joint Undertaking until it has the operational capacity to implement its own budget.
(32)
The Clean Sky Joint Undertaking should be established in Brussels, Belgium. A host agreement should be concluded between the Clean Sky Joint Undertaking and Belgium concerning office accommodation, privileges and immunities and other support to be provided by Belgium to the Clean Sky Joint Undertaking.
(33)
Since the objective of this Regulation, namely the setting up of the Clean Sky Joint Undertaking, cannot be sufficiently achieved by the Member States due to the transnational nature of the great research challenge identified; which requires the pooling of complementary knowledge and financial resources across sectors and borders, and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,
HAS ADOPTED THIS REGULATION:
Article 1
Setting up of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative on Clean Sky, a Joint Undertaking within the meaning of Article 171 of the Treaty is hereby set up for the period up to 31 December 2017 (hereinafter referred to as the Clean Sky Joint Undertaking).
2. Its seat shall be located in Brussels, Belgium.
Article 2
Objectives of the Joint Undertaking
1. The Clean Sky Joint Undertaking shall contribute to the implementation of the Seventh Framework Programme and in particular Theme 7, Transport (including Aeronautics) of the Specific Programme Cooperation.
2. The objectives of the Clean Sky Joint Undertaking shall be the following:
(a)
accelerating in the EU the development, validation and demonstration of clean Air Transport technologies for earliest possible deployment;
(b)
ensuring coherent implementation of European research efforts aiming at environmental improvements in the field of Air Transport;
(c)
creating a radically innovative Air Transport System based on the integration of advanced technologies and full scale demonstrators, with the target of reducing the environmental impact of air transport through significant reduction of noise and gaseous emissions, and improvement of the fuel economy of aircrafts;
(d)
accelerating the generation of new knowledge, innovation and the uptake of research proving the relevant technologies and fully integrated system of systems, in the appropriate operational environment, leading to strengthened industrial competitiveness.
Article 3
Legal status
The Clean Sky Joint Undertaking shall be a Community body with legal personality. In all the Member States of the Community, it shall enjoy the most extensive legal capacity accorded to legal persons under the laws of those States. It may, in particular, acquire or dispose of movable and immovable property and be a party to legal proceedings.
Article 4
Statutes
The Statutes of the Clean Sky Joint Undertaking, as set out in Annex I hereto, constitute an integral part of this Regulation and are hereby adopted.
Article 5
Community contribution
1. The maximum Community contribution to the Clean Sky Joint Undertaking covering running costs and research activities shall be EUR 800 million paid from the budget appropriation allocated to the Theme ‘Transport’ of the Specific Programme Cooperation, according to Article 54(2)(b) of the Financial Regulation.
2. Where appropriate, the Community contribution to the Clean Sky Joint Undertaking for the funding of the research activities shall include funding of proposals selected by way of open and competitive calls for proposals.
The evaluation and selection process shall ensure that allocation of the Clean Sky Joint Undertaking public funding for competitive calls for proposals follow the principles of excellence and competition, and shall be carried out with the assistance of independent experts.
Any public or private entity established in a Member State or in a country associated to the Seventh Framework Programme, shall be eligible for such funding.
3. The arrangements for the Community financial contribution shall be established by means of a general agreement and annual financial implementation agreements to be concluded between the Commission, on behalf of the Community, and the Clean Sky Joint Undertaking.
4. Other Members of the Joint Undertaking shall contribute resources at least equal to the Community contribution, excluding those allocated through calls for proposals in order to carry out the research activities of the Clean Sky Joint Undertaking.
Article 6
Financial rules
1. The Clean Sky Joint Undertaking shall adopt specific financial rules in accordance with Article 185(1) of Regulation (EC, Euratom) No 1605/2002. They may depart from the rules laid down in Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the budget of the European Communities (9) where the specific operating needs of the Clean Sky Joint Undertaking so require, subject to the prior consent of the Commission.
2. The Clean Sky Joint Undertaking shall have its own internal audit capability.
Article 7
Staff
1. The Staff Regulations and the rules adopted jointly by the institutions of the Communities for the purpose of applying them shall apply to the staff of the Clean Sky Joint Undertaking and its Executive Director.
2. Without prejudice to paragraph 3 of this Article and Article 7(3) of the Statutes, the Clean Sky Joint Undertaking shall exercise the powers conferred on the appointing authority by the Staff Regulations of Officials of the European Communities and on the authority empowered to conclude contracts by the Conditions of Employment of Other Servants of the European Communities in respect of its staff.
3. The Governing Board shall, in agreement with the Commission, adopt the necessary implementing measures referred to in Article 110 of the Staff Regulations.
4. The staff resources shall be determined in the establishment plan of the Clean Sky Joint Undertaking that shall be set out in its annual budget.
5. The staff of the Clean Sky Joint Undertaking shall consist of temporary agents and contract agents engaged for a fixed period that may be renewed no more than once for another fixed period. The total period of engagement shall not exceed seven years and shall not in any case exceed the period during which the Joint Undertaking shall exist.
6. All costs related to the staff shall be borne by the Clean Sky Joint Undertaking.
Article 8
Privileges and immunities
The Protocol on the Privileges and Immunities of the European Communities shall apply to the Clean Sky Joint Undertaking and its staff.
Article 9
Liability
1. The contractual liability of the Clean Sky Joint Undertaking shall be governed by the relevant contractual provisions and by the law applicable to the agreement or contract in question.
2. In the case of non-contractual liability, the Clean Sky Joint Undertaking shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its staff in the performance of their duties.
3. Any payment by the Clean Sky Joint Undertaking in respect of the liability referred to in paragraphs 1 and 2 and the costs and expenses incurred in connection therewith shall be considered as expenditure of the Clean Sky Joint Undertaking and shall be covered by the resources of the Clean Sky Joint Undertaking.
4. The Clean Sky Joint Undertaking shall be solely responsible for meeting its obligations.
Article 10
Jurisdiction of the Court of Justice and applicable law
1. The Court of Justice shall have jurisdiction:
(a)
in any dispute between the Members which relates to the subject matter of this Regulation and/or the Statutes referred to in Article 4;
(b)
pursuant to any arbitration clause contained in agreements and contracts concluded by the Clean Sky Joint Undertaking;
(c)
in actions brought against the Clean Sky Joint Undertaking, including decisions of its Bodies, under the conditions provided for in Articles 230 and 232 of the Treaty;
(d)
in disputes related to compensation for damage caused by the staff of the Clean Sky Joint Undertaking in the performance of their duties.
2. For any matter not covered by this Regulation or by other acts of Community law, the law of the State where the seat of the Clean Sky Joint Undertaking is located shall apply.
Article 11
Report, evaluation and discharge
1. The Commission shall present to the European Parliament and to the Council an annual report on the progress achieved by the Clean Sky Joint Undertaking. This report shall contain details of implementation including the number of proposals submitted, the number of those selected for funding, the type of participants, including SMEs, and statistics broken down by country. In particular this annual report will include assessment results of the Technology Evaluator referred to in Article 8(1) of the Statutes, as appropriate.
2. Three years after the adoption of this Regulation (but in any case no later than 31 December 2010), and subsequently by 31 December 2013, the Commission shall carry out an evaluation with the assistance of independent experts on the basis of terms of reference established after consultation with the Joint Undertaking. These evaluations shall cover the quality and efficiency of the Clean Sky Joint Undertaking, and progress towards the objectives set. The Commission shall communicate to the Council the conclusions thereof, accompanied by its observations and, where appropriate, by its proposals to amend this Regulation, including the possible early termination of the Joint Undertaking.
3. Not later than six months after the end of the Joint Undertaking, the Commission shall conduct a final evaluation of the Clean Sky Joint Undertaking with the assistance of independent experts. The results of the final evaluation shall be presented to the European Parliament and to the Council.
4. Discharge for the implementation of the budget of the Clean Sky Joint Undertaking shall be given by the European Parliament, upon recommendation from the Council, in accordance with a procedure provided for by the financial rules of the Clean Sky Joint Undertaking.
Article 12
Protection of the financial interests of the Members and anti-fraud measures
1. The Clean Sky Joint Undertaking shall ensure that the financial interests of its members are adequately protected by carrying out or by allowing the carrying out of appropriate internal and external controls.
2. Should the Members discover any irregularities, they shall reserve the right to reduce or suspend any subsequent contribution to the Clean Sky Joint Undertaking, or to recover amounts unduly spent.
3. For the purposes of combating fraud, corruption and other illegal acts, Regulation (EC) No 1073/1999 shall apply.
4. The Clean Sky Joint Undertaking shall carry out on-the-spot checks and financial audits among the recipients of the Clean Sky Joint Undertaking's public funding.
5. The Commission and/or the Court of Auditors may, if necessary, carry out on-the-spot checks among the recipients of the Clean Sky Joint Undertaking's funding and the agents responsible for allocating it. To that end, the Clean Sky Joint Undertaking shall ensure that grant agreements and contracts provide for the right of the Commission and/or the Court of Auditors to carry out the appropriate controls and, in the event of the detection of irregularities, to impose dissuasive and proportionate penalties.
6. The European Anti-Fraud Office (OLAF) (10) shall enjoy the same powers in respect of the Joint Undertaking and its staff as it enjoys in respect of Commission departments. As soon as the Joint Undertaking is established, it shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council and the Commission concerning internal investigations by OLAF. The Clean Sky Joint Undertaking shall adopt the measures necessary to facilitate internal investigations conducted by OLAF.
Article 13
Confidentiality
Without prejudice to Article 14, the Clean Sky Joint Undertaking shall ensure the protection of sensitive information, disclosure of which could damage the interests of its Members or of participants in the activities of the Clean Sky Joint Undertaking.
Article 14
Transparency
1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding access to European Parliament, Council and Commission documents (11) shall apply to documents held by the Clean Sky Joint Undertaking.
2. The Clean Sky Joint Undertaking shall adopt practical arrangements for implementing Regulation (EC) No 1049/2001 by 7 August 2008.
3. Decisions taken by the Clean Sky Joint Undertaking pursuant to Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman or of an action before the Court of Justice, under the conditions laid down in Articles 195 and 230 of the Treaty respectively.
4. The Clean Sky Joint Undertaking shall adopt practical arrangements for implementing Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (12) before 7 August 2008.
Article 15
Intellectual property
The Clean Sky Joint Undertaking shall adopt distinct rules governing the protection, use and dissemination of research results, based on the principles of Regulation (EC) No 1906/2006 as set out in Article 23 of the Statutes, which ensure that, where appropriate, intellectual property generated in research activities under this Regulation is protected, and that research results are used and disseminated.
Article 16
Preparatory actions
1. The Commission shall be responsible for the establishment and initial operation of the Clean Sky Joint Undertaking until the Joint Undertaking has the operational capacity to implement its own budget. It shall carry out, in accordance with Community law, all necessary actions in collaboration with other Founding Members and the involvement of the Governing Board.
2. For that purpose, until such time as the Executive Director takes up his duties following his appointment by the Governing Board in accordance with Article 7(3)(a) of the Statutes, the Commission may assign a limited number of its officials, including one to fulfil the functions of the Executive Director, on an interim basis.
3. The interim Executive Director may authorise all payments covered by the credits provided in the budget of the Clean Sky Joint Undertaking once approved by the Governing Board and may conclude contracts, including staff contracts following the adoption of the Clean Sky Joint Undertaking establishment plan. The Commission authorising officer may authorise all payments covered by the credits provided in the general budget of the Clean Sky Joint Undertaking.
Article 17
Support from the host State
A host agreement shall be concluded between the Clean Sky Joint Undertaking and Belgium concerning office accommodation, privileges and immunities and other support to be provided by Belgium to the Clean Sky Joint Undertaking.
Article 18
Entry into force
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2007.