COUNCIL REGULATION (EC) No 521/2008
of 30 May 2008
setting up the Fuel Cells and Hydrogen Joint Undertaking
(Text with EEA relevance)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 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 for the establishment of long term public-private partnerships in the form of Joint Technology Initiatives (hereinafter referred to as JTI) which could be implemented through Joint Undertakings within the meaning of Article 171 of the Treaty. These JTI were established as a result of the work of European Technology Platforms, already set up under the Sixth Framework Programme, and cover selected aspects of research in their field. 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), underlines the need for ambitious pan-European public-private partnerships to accelerate the development of major technologies and large research actions at Community level including, in particular, JTI.
(3)
The Lisbon Growth and Jobs Agenda underscores the need to develop favourable conditions for investment in knowledge and innovation in the Community to boost competitiveness, growth and jobs.
(4)
In March 2007 the European Council concluded that Member States were determined to promote eco-innovations through an ambitious approach, taking full advantage of lead markets in areas such as sustainable and safe low carbon technologies, renewable energies and energy and resource efficiency; it recognised the need to strengthen energy research in particular to accelerate the competitiveness of sustainable energies, notably renewables, and low carbon technologies and the further development of energy efficiency technologies.
(5)
In its conclusions of 3 March 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 trans-national public-private links.
(6)
In November 2003 the European Council adopted a European Initiative for Growth. This Initiative, in the Quick-start Programme, includes a Project Area ‘Hydrogen economy’ with a total amount of EUR 2 800 million between 2004 and 2015 and possible funding from the Research, Technological development and Demonstration (hereinafter referred to as ‘RTD’) Framework Programmes and the Structural Funds.
(7)
In May 2003 a Hydrogen and Fuel Cell High Level Group presented a vision report on ‘Hydrogen Energy and Fuel Cells - a vision of our future’, recommending, inter alia, the formation of a fuel cell and hydrogen technology partnership and a substantially increased RTD budget, as well as a demonstration and pilot programme to extend the technology validation exercises into the market development arena.
(8)
In December 2003, the Commission facilitated the creation of the European Hydrogen and Fuel Cell Technology Platform (hereinafter referred to as EHFC TP), bringing together all interested stakeholders in a joint effort to move towards achieving the High Level Group's vision. In March 2005, the said Technology Platform adopted a Strategic Research Agenda and Deployment Strategy, aimed at accelerating the development and market introduction of fuel cell and hydrogen technologies in the Community.
(9)
The technology challenge facing fuel cells and hydrogen is of great complexity and scale and the dispersion of technical competencies is very high. Therefore, in order to achieve critical mass in terms of scale of activity, excellence, and potential for innovation, this challenge needs to be tackled in a focused and coherent way at EU level. This, and its potential contribution to Community policies, in particular energy, environment, transport, sustainable development and economic growth, calls for the JTI approach in this sector.
(10)
The objective of the JTI on ‘Fuel Cells and Hydrogen’ is to implement a programme of RTD activities in Europe in the fields of fuel cells and hydrogen. These should be carried out, building on the EHFC TP, with the cooperation and involvement of stakeholders from industry including small and medium-sized enterprises (hereinafter referred to as SMEs), research centres, universities, and regions.
(11)
Significant breakthroughs in a number of fields are needed in order for fuel cell and hydrogen technologies to be effectively deployed. Proper emphasis should be put on long-term research, taking into account advice provided by the advisory bodies of the Fuel Cells and Hydrogen Joint Undertaking (hereinafter the FCH Joint Undertaking).
(12)
Taking into account the public-private partnership involving major stakeholders and its long term activity, the generated socioeconomic benefits for European citizens, the pooling of financial resources and co-financing in the field of fuel cells and hydrogen RTD activity provided by the Commission and industry, the high scientific and technical expertise required, and the input of industrial property rights, it is vital to set up a FCH Joint Undertaking under Article 171 of the Treaty. This legal entity should ensure the coordinated use and efficient management of the funds assigned to the JTI on ‘Fuel Cells and Hydrogen’. To ensure the appropriate management of activities initiated but not concluded during the Seventh Framework Programme the FCH Joint Undertaking should be set up for a period up to 31 December 2017.
(13)
The objectives of the FCH Joint Undertaking should be pursued by pooling resources from the public and private sectors to support RTD activities with a view to increase the overall efficiency of European research efforts and accelerate the development and deployment of fuel cell and hydrogen technologies. To that end, the FCH Joint Undertaking should be able to organise competitive calls for proposals for projects to implement the RTD activities. Research activities should respect fundamental and ethical principles applicable to the Seventh Framework Programme.
(14)
The founding members of the FCH Joint Undertaking should be the Community represented by the Commission as public representative and the European Fuel Cell and Hydrogen Joint Technology Initiative Industry Grouping (hereinafter referred to as the ‘Industry Grouping’), which represents the interests of industry and is open to private companies. A Research Grouping may become a member of the FCH Joint Undertaking.
(15)
The running costs of the FCH Joint Undertaking should be covered equally in cash by the Community and the Industry Grouping from the outset. If the Research Grouping is established it should also contribute to the running costs.
(16)
The operational costs should be funded by the Community, industry and other public and private legal entities participating in the activities. Further financing options may be available, inter alia, from the European Investment Bank, in particular through the Risk-Sharing Finance Facility developed jointly with the European Investment Bank and the Commission pursuant to Annex III to Decision 2006/971/EC.
(17)
According to the Seventh Framework Programme and Council Decision 2006/975/EC of 19 December 2006 concerning the Specific Programme to be carried out by means of direct actions by the Joint Research Centre under the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (3), the Joint Research Centre may participate in joint technology initiatives where relevant. The Joint Research Centre has specific expertise in the fields of fuel cells and hydrogen, and therefore, it is appropriate to clarify that its possible contribution to joint technology initiatives is not intended to form part of the Community contribution foreseen in the legal acts setting up the joint technology initiatives.
(18)
The FCH Joint Undertaking should be a body set up by the Community and discharge for the implementation of its budget should be given by the European Parliament, on the recommendation of the Council. However, account should be taken of the specificities resulting from the nature of JTI as a public-private partnership and in particular from the private-sector contribution to the budget.
(19)
The FCH Joint Undertaking should adopt, in accordance with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (4) and subject to prior consent with 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 RTD activities in an efficient and timely manner. In order to ensure a harmonised treatment between the participants of the FCH 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) (5).
(20)
The rules for the organisation and operation of the FCH Joint Undertaking should be laid down in the Statutes of the FCH Joint Undertaking as part of this Regulation.
(21)
The intellectual property rights policy of the FCH Joint Undertaking should provide for rights ownership for the participants of the projects as the owners of the industrial property created through the FCH Joint Technology Initiative, and should enable its proper exploitation.
(22)
Appropriate measures should be taken to prevent irregularities and fraud and the 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), 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).
(23)
As a body endowed with legal personality, the FCH Joint Undertaking should be accountable for its actions. Where relevant, the Court of Justice of the European Communities should be competent for resolution of disputes arising from the activities of the FCH Joint Undertaking.
(24)
Since the objective of this Regulation, namely the establishment of the FCH Joint Undertaking, cannot be sufficiently achieved by the Member States due to the trans-national nature and magnitude of the research challenges 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 this objective,
HAS ADOPTED THIS REGULATION:
Article 1
Establishment
1. For the implementation of the Joint Technology Initiative (hereinafter referred to as JTI) on Fuel Cells and Hydrogen, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter referred to as the FCH Joint Undertaking) is hereby set up for a period up to 31 December 2017.
2. The seat of the FCH Joint Undertaking shall be located in Brussels, Belgium.
Article 2
Objectives
1. The FCH Joint Undertaking shall contribute to the implementation of the Seventh Framework Programme and in particular the Specific Programme ‘Cooperation’ themes for ‘Energy’, ‘Nanosciences, Nanotechnologies, Materials and New Production Technologies’, ‘Environment (including Climate Change)’, and ‘Transport (including Aeronautics)’.
2. It shall, in particular:
(a)
aim at placing Europe at the forefront of fuel cell and hydrogen technologies worldwide and at enabling the market breakthrough of fuel cell and hydrogen technologies, thereby allowing commercial market forces to drive the substantial potential public benefits;
(b)
support Research, Technological development and Demonstration (hereinafter referred to as RTD) in the Member States and countries associated with the Seventh Framework Programme (hereinafter referred as Associated countries) in a coordinated manner to overcome the market failure and focus on developing market applications and thereby facilitate additional industrial efforts towards a rapid deployment of fuel cells and hydrogen technologies;
(c)
support the implementation of the RTD priorities of the JTI on Fuel Cells and Hydrogen, notably by awarding grants following competitive calls for proposals;
(d)
aim to encourage increased public and private research investment in fuel cells and hydrogen technologies in the Member States and Associated countries.
Article 3
Legal status
The FCH Joint Undertaking shall be a Community body and shall have legal personality. In each of the Member States of the European 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 may be a party to legal proceedings.
Article 4
Statutes
The Statutes of the FCH Joint Undertaking, as set out in the Annex hereto, constitute an integral part of this Regulation and are hereby adopted.
Article 5
Community contribution
1. The maximum Community contribution to the FCH Joint Undertaking covering running costs and operational costs shall be EUR 470 million. The contribution shall be paid from the appropriations in the general budget of the European Union allocated to the ‘Energy’, ‘Nanosciences, Nanotechnologies, Materials and New Production Technologies’, ‘Environment (including Climate Change)’, and ‘Transport (including Aeronautics)’ themes of the Specific Programme ‘Cooperation’ implementing the Seventh Framework Programme according to the provisions of Article 54(2)(b) of Regulation (EC, Euratom) No 1605/2002.
2. The arrangements for the Community financial contribution shall be established by means of a general financing agreement and annual financing agreements to be concluded between the Commission, on behalf of the Community, and the FCH Joint Undertaking.
3. The Community contribution to the FCH Joint Undertaking used to fund projects shall be allocated following open and competitive calls for proposals and evaluation with the assistance of independent experts.
4. Any possible financial or in-kind contribution from the Joint Research Centre to the FCH Joint Undertaking shall not be considered as part of the Community contribution referred to in paragraph 1.
Article 6
Financial rules
1. The FCH 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 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of the Financial Regulation (9) where the specific operating needs of the FCH Joint Undertaking so require and subject to prior consent of the Commission.
2. The FCH Joint Undertaking shall have its own internal audit capability.
Article 7
Staff
1. The Staff Regulations of Officials of the European Communities, the Conditions of Employment of Other Servants of the European Communities and the rules adopted jointly by the institutions of the European Community for the purpose of applying these Staff Regulations and Conditions of Employment shall apply to the staff of the FCH Joint Undertaking and its Executive Director.
2. Without prejudice to paragraph 3 of this Article and Article 6(3) of the Statutes, the FCH 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 of Officials of the European Communities, and the Conditions of Employment of Other Servants of the European Communities.
4. The staff resources shall be determined in the establishment plan of the FCH Joint Undertaking that will be set out in its annual budget.
5. The staff of the FCH Joint Undertaking shall consist of temporary agents and contract agents engaged for a fixed period that may be renewed no more than once for a fixed period. The total period of engagement shall not exceed seven years and shall not in any case exceed the lifetime of the Joint Undertaking.
6. All cost related to the staff shall be borne by the FCH Joint Undertaking.
Article 8
Privileges and Immunities
The Protocol on the Privileges and Immunities of the European Communities shall apply to the FCH Joint Undertaking and its staff.
Article 9
Liability
1. The contractual liability of the FCH 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 FCH 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 FCH 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 FCH Joint Undertaking and shall be covered by the resources of the FCH Joint Undertaking.
4. The FCH 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 the Statutes referred to in Article 4;
(b)
pursuant to any arbitration clause contained in agreements or contracts concluded by the FCH Joint Undertaking;
(c)
in actions brought against the FCH Joint Undertaking, including decisions of its bodies, under the conditions provided for in Articles 230 and 232 of the Treaty;
(d)
in disputes relating to compensation for damage caused by the staff of the FCH 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 FCH 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 FCH Joint Undertaking. This report shall contain details of implementation including number of proposals submitted, number of proposals selected for funding, type of participants, including SMEs, and country statistics.
2. By 30 May 2011, but in any case no later than 30 June 2011, as well as by 31 December 2013, the Commission shall conduct an interim evaluation of the FCH Joint Undertaking with the assistance of independent experts, on the basis of the terms of reference established after consultation of the FCH Joint Undertaking. These evaluations shall cover the quality and efficiency of the FCH Joint Undertaking and progress towards its objectives. The Commission shall communicate the conclusions thereof, accompanied by its observations and, where appropriate, proposals to amend this Regulation, including the possible early termination of the Joint Undertaking, to the European Parliament and to the Council.
3. No later than six months after the winding-up of the Joint Undertaking, the Commission shall conduct a final evaluation of the FCH 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 FCH Joint Undertaking shall be given by the European Parliament, upon recommendation of the Council, in accordance with a procedure provided for by the financial rules of the FCH Joint Undertaking.
Article 12
Protection of the financial interests of the members and anti-fraud measures
1. The FCH Joint Undertaking shall ensure that the financial interests of its members are adequately protected by carrying out or commissioning appropriate internal and external controls.
2. In case of irregularities committed by the FCH Joint Undertaking or its staff, the members of the FCH Joint Undertaking shall reserve the right to recover any amount unduly spent, including by a reduction or suspension of subsequent contributions to the FCH Joint Undertaking.
3. For the purposes of combating fraud, corruption and any other illegal activities, Regulation (EC) No 1073/1999 shall apply.
4. The FCH Joint Undertaking shall carry out on-the-spot checks and financial audits among the recipients of the FCH Joint Undertaking's public funding.
5. The Commission and/or the Court of Auditors may, as necessary, carry out on-the-spot checks among the recipients of the FCH Joint Undertaking's funding and the agents responsible for its allocation. To that end, the FCH 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, on behalf of the FCH Joint Undertaking, the appropriate controls and, in the event of the detection of irregularities, to impose dissuasive and proportionate penalties.
6. The European Anti-Fraud Office (hereinafter referred to as OLAF) set up by Commission Decision 1999/352/EC, ECSC, Euratom (10) shall enjoy the same powers in respect of the FCH Joint Undertaking and its staff as it enjoys in respect of Commission departments. As soon as the FCH 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 (11). The FCH Joint Undertaking shall adopt the necessary measures needed to facilitate internal investigations conducted by OLAF.
Article 13
Confidentiality
Without prejudice to Article 14, the FCH Joint Undertaking shall ensure the protection of sensitive information whose disclosure could damage the interests of its members or of participants in the activities of the FCH 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 (12), shall apply to documents held by the FCH Joint Undertaking.
2. The FCH Joint Undertaking shall adopt the practical arrangements for implementing Regulation (EC) No 1049/2001 by 15 December 2008.
3. Decisions taken by the FCH 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.
Article 15
Intellectual property
The FCH 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 (hereinafter referred to as the Rules of Participation of the Seventh Framework Programme), as referred to in Article 25 of the Statutes which ensure that, where appropriate, intellectual property generated in RTD 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 FCH Joint Undertaking until the Joint Undertaking has the operational capacity to implement its own budget. The Commission shall carry out, in accordance with Community law, all necessary actions in collaboration with its members and the involvement of the competent bodies.
2. For that purpose, until such time as the Executive Director takes up his/her duties following his/her appointment by the Governing Board in accordance with Article 6(4) 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 FCH Joint Undertaking once approved by the Governing Board and may conclude contracts, including staff contracts following the adoption of the FCH Joint Undertaking establishment plan. The Commission authorising officer may authorise all payments covered by the credits provided in the general budget of the FCH Joint Undertaking.
Article 17
Support from the host State
A host agreement shall be concluded between the FCH Joint Undertaking and Belgium concerning office accommodation, privileges and immunities and other support to be provided by Belgium to the FCH 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, 30 May 2008.