EN Official Journal of the European Union L 30/21

COUNCIL REGULATION (EC) No 72/2008

of 20 December 2007

setting up the ENIAC Joint Undertaking

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 (1),

Having regard to the opinion of the European Economic and Social Committee (2),

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) (3) (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 JTIs) which could be implemented through Joint Undertakings within the meaning of Article 171 of the Treaty. These JTIs stem from 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) (4) underlines the need for ambitious pan-European public-private partnerships to speed up 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 the Community to boost competitiveness, growth and jobs.

(4) In its conclusions of 25 and 26 November 2004, the Council encouraged the Commission to further elaborate the concepts of Technology Platforms and JTIs. It underlined that such initiatives could contribute to coordinating overall Community research efforts with a view to achieving synergies with the activities of existing schemes such as Eureka taking into account their important contribution to Research and Development (hereinafter referred to as R & D).

(5) European companies and other R & D organisations active in the field of nanoelectronics took the lead in establishing the European Technology Platform on Nanoelectronics (hereinafter referred to as the ENIAC Technology Platform) under the Sixth Framework Programme. The ENIAC Technology Platform developed a Strategic Research Agenda based on an extensive consultation with public and private stakeholders. The Strategic Research Agenda identified the priorities in the nanoelectronics domain and recommended directions for a JTI in this field.

(6) The JTI on nanoelectronics responds to the Commission Communications of 6 April 2005 on ‘Building the ERA of knowledge for growth’ and of 20 July 2005 on ‘Common Actions for Growth and Employment: The Community Lisbon Programme’, which call for a new and more ambitious approach to large-scale public-private partnerships in fields of major interest for European competitiveness identified through dialogue with industry.

(7) The JTI on nanoelectronics responds to the need for support for pervasive Information and Communication Technologies as identified in the report ‘Creating an Innovative Europe’ of January 2006. This report also commends the ENIAC Joint Technology model for combining national and Community funding within a clear legal structure and in a harmonised and synchronous manner.

(8) The JTI on nanoelectronics should create a sustainable public-private partnership and increase and leverage private and public investment in the sector of nanoelectronics in Europe, which for the purpose of this Regulation includes the Member States of the European Union (hereinafter referred to as Member States) and countries associated with the Seventh Framework Programme (hereinafter referred to as the associated countries). The JTI on nanoelectronics should also achieve effective coordination and synergy of resources and funding from the Framework Programme, industry, national R & D programmes and intergovernmental R & D schemes, thus contributing to strengthening Europe's future growth, competitiveness and sustainable development. Finally, its objective should be to foster collaboration between all stakeholders such as industry, including small and medium-sized enterprises (SMEs), national authorities, academic and research centres pulling together and focusing the research effort.

(9) The JTI on nanoelectronics should define a commonly agreed research agenda (hereinafter referred to as the Research Agenda), closely following the recommendations of the Strategic Research Agenda developed by the ENIAC Technology Platform. This Research Agenda should identify and regularly review research priorities for the development and adoption of key competences for nanoelectronics across different application areas in order to strengthen European competitiveness and allow the emergence of new markets and societal applications.

(10) The JTI on nanoelectronics should address two objectives which are a substantial part of the Strategic Research Agenda of the ENIAC Technology Platform: enhancing the further integration and miniaturisation of devices, and increasing their functionalities. It should deliver new materials, equipment and processes, new architectures, innovative manufacturing processes, disruptive design methodologies and new packaging and ‘systemising’ methods. It should drive and be driven by innovative high-tech applications in the area of communication and computing, transport, health care and wellness, energy and environmental management, security and safety, and entertainment.

(11) The ambition and scope of the stated objectives of the JTI on nanoelectronics, the scale of the financial and technical resources that need to be mobilised, and the need to achieve effective coordination and synergy of resources and funding, call for action to be taken by the Community. Therefore, it is necessary to set up a Joint Undertaking (hereinafter referred to as the ENIAC Joint Undertaking) under Article 171 of the Treaty as a legal entity responsible for the implementation of the JTI on nanoelectronics. To ensure the appropriate management of R & D activities initiated under the Seventh Framework Programme, the ENIAC Joint Undertaking should be set up for a period up to 31 December 2017.

(12) The ENIAC 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 JTIs as public-private partnerships and in particular from the private sector contribution to the budget.

(13) The objectives of the ENIAC Joint Undertaking should be pursued by pooling resources from the public and private sectors to support R & D activities in the form of projects. To that end, the ENIAC Joint Undertaking should be able to organise competitive calls for proposals for projects to implement parts of the Research Agenda. The R & D activities should respect fundamental ethical principles applicable in the Seventh Framework Programme.

(14) The ENIAC Joint Undertaking will ensure and promote a safe, integrated, and responsible approach to nanoelectronics in keeping with the high safety standards already established in the nanoelectronics industry and in accordance with public health, safety, environmental and consumer Community policies and the European Action ‘Nanosciences and nanotechnologies: An action plan for Europe 2005-2009’.

(15) The founding members of the ENIAC Joint Undertaking should be the Community, Belgium, Germany, Estonia, Ireland, Greece, Spain, France, Italy, the Netherlands, Poland, Portugal, Sweden, the United Kingdom, and AENEAS, an association representing companies and other R & D organisations active in the field of nanoelectronics in Europe. The ENIAC Joint Undertaking should be open to new members.

(16) The rules for the organisation and operation of the ENIAC Joint Undertaking should be laid down in the statutes of the ENIAC Joint Undertaking as part of this Regulation.

(17) A letter of commitment to contribute to the establishment and implementation of the ENIAC Joint Undertaking has been signed by AENEAS.

(18) The projects should be supported both by the Community's and ENIAC Member States' financial contribution as well as by contributions in kind from the R & D organisations participating in the projects of the ENIAC Joint Undertaking. 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.

(19) Public funding for the R & D activities following open and competitive calls for proposals published by the ENIAC Joint Undertaking should consist of national financial contributions from the ENIAC Member States and a financial contribution from the ENIAC Joint Undertaking. The financial contribution of the ENIAC Joint Undertaking should be provided at a percentage of the R & D costs incurred by participants in projects. This percentage should be equal for all participants in projects in any given call for proposals.

(20) Over the duration of the ENIAC Joint Undertaking, the R & D organisations participating in projects should provide resources that equal or exceed the total public funding for the R & D activities.

(21) Since there is a need to ensure stable employment conditions and equal treatment of staff, and in order 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 Council Regulation (EEC, Euratom, ECSC) No 259/68 (5) should be applied to all staff recruited by the ENIAC Joint Undertaking.

(22) As a body endowed with legal personality, the ENIAC Joint Undertaking should be accountable for its actions. Where relevant, the Court of Justice should be competent to resolve any disputes arising from the activities of the Joint Undertaking.

(23) The Commission should regularly report on the progress by the ENIAC Joint Undertaking to the European Parliament and the Council.

(24) The ENIAC 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 (6) (hereinafter referred to as the Financial Regulation) and subject to prior consent from the Commission, specific financial rules which take into account its specific operating needs arising, in particular, from the need to combine Community and national funding to support R & D activities in an efficient and timely manner. In order to ensure a harmonised treatment between the participants of the ENIAC 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) (7).

(25) 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 (8), 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 (9), and Regulation (EC) No 1073/1999 of 25 May 1999 of the European Parliament and of the Council concerning investigations concluded by the European Anti-Fraud Office (OLAF) (10).

(26) The Intellectual Property Rights Policy of the ENIAC Joint Undertaking should promote knowledge creation and exploitation.

(27) In order to facilitate the setting up of the ENIAC Joint Undertaking, the Commission should be responsible for the establishment and initial operation of the ENIAC Joint Undertaking until it has the operational capacity to implement its own budget.

(28) Since the objective of this Regulation, namely the establishment of the ENIAC Joint Undertaking, cannot be sufficiently achieved by the Member States due to the trans-national nature of the great research challenges identified, which requires the pooling of complementary knowledge and financial resources across the 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

Establishment of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative (hereinafter JTI) on nanoelectronics, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter the ENIAC Joint Undertaking) is hereby set up for a period up to 31 December 2017.

2. The seat of the ENIAC Joint Undertaking shall be located in Brussels, Belgium.

Article 2

Objectives

The ENIAC Joint Undertaking shall contribute to the implementation of the Seventh Framework Programme and the theme ‘Information and Communication Technologies’ of the Specific Programme ‘Cooperation’. It shall, in particular:

(a) define and implement a Research Agenda for the development of key competences for nanoelectronics across different application areas in order to strengthen European competitiveness and sustainability and allow for the emergence of new markets and societal applications;

(b) support the activities required for the implementation of the Research Agenda (hereinafter R & D activities), notably by awarding funding to participants in selected projects following competitive calls for proposals;

(c) promote a public-private partnership aiming at mobilising and pooling Community, national and private efforts, increasing overall R & D investments in the field of nanoelectronics, and fostering collaboration between the public and private sectors;

(d) achieve synergy and coordination of European R & D efforts in the field of nanoelectronics including, when added value can be created, the progressive integration into the ENIAC Joint Undertaking of the related activities in this field currently implemented through intergovernmental R & D schemes (Eureka);

(e) promote the involvement of SMEs in its activities in line with the objectives of the Seventh Framework Programme.

Article 3

Legal status

The ENIAC Joint Undertaking shall be a Community body and shall have legal personality. In each of the Member States, 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 ENIAC 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 ENIAC Joint Undertaking covering running costs and R & D activities shall be EUR 450 million paid from the appropriations in the general budget of the European Union allocated to the theme ‘Information and Communication Technologies’ of the Specific Programme ‘Cooperation’.

2. The arrangements for the Community financial contribution shall be established by means of a general agreement and annual financial agreements to be concluded between the Commission, on behalf of the Community, and the ENIAC Joint Undertaking.

3. The Community contribution to the ENIAC Joint Undertaking used to fund projects shall be allocated following open and competitive calls for proposals.

Article 6

Financial rules

1. The ENIAC Joint Undertaking shall adopt specific financial rules in accordance with Article 185(1) of the Financial Regulation. They may depart from the rules laid down in Commission Regulation (EC, Euratom) No 2343/2002 (11) on the framework Financial Regulation for the bodies referred to in Article 185 of the Financial Regulation where the specific operating needs of the ENIAC Joint Undertaking so require and subject to prior consent from the Commission.

2. The ENIAC 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 Communities for the purpose of applying these Staff Regulations and Conditions of Employment shall apply to the staff of the ENIAC Joint Undertaking and its executive director.

2. Without prejudice to paragraph 3 of this Article and Article 7(2) of the statutes, the ENIAC 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 ENIAC Joint Undertaking that shall be set out in its annual budget.

5. The staff of the ENIAC 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 ENIAC Joint Undertaking.

7. The ENIAC Joint Undertaking may adopt provisions to allow experts to be seconded to it.

Article 8

Privileges and immunities

The Protocol on the Privileges and Immunities of the European Communities shall apply to the ENIAC Joint Undertaking and its staff.

Article 9

Liability

1. The contractual liability of the ENIAC 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 ENIAC 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 ENIAC 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 ENIAC Joint Undertaking and shall be covered by the resources of the ENIAC Joint Undertaking.

4. The ENIAC 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) 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 ENIAC Joint Undertaking;

(c) in actions brought against the ENIAC 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 ENIAC 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 ENIAC Joint Undertaking is located shall apply.

Article 11

Report, evaluations and discharge

1. The Commission shall present to the European Parliament and the Council an annual report on the progress achieved by the ENIAC Joint Undertaking. This report shall contain details of implementation of the JTI on nanoelectronics, including number of proposals submitted, number of proposals selected for funding, type of participants, including SMEs, and country statistics.

2. By 31 December 2010, as well as by 31 December 2013, the Commission shall carry out an interim evaluation of the ENIAC Joint Undertaking with the assistance of independent experts, on the basis of terms of reference established after consultation of the ENIAC Joint Undertaking. These evaluations shall cover the quality and efficiency of the ENIAC Joint Undertaking and progress towards the objectives set. 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 ENIAC Joint Undertaking, to the European Parliament and the Council.

3. No later than six months after the winding-up of the ENIAC Joint Undertaking, the Commission shall conduct a final evaluation of the ENIAC Joint Undertaking with the assistance of independent experts. The results of the final evaluation shall be presented to the European Parliament and the Council.

4. Discharge for the implementation of the budget of the ENIAC Joint Undertaking shall be given by the European Parliament, upon recommendation of the Council, in accordance with the procedure provided for in the financial rules of the ENIAC Joint Undertaking referred to in Article 6.

Article 12

Protection of the financial interests of the members and anti-fraud measures

1. The ENIAC 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, the members of the ENIAC Joint Undertaking shall reserve the right to recover amounts unduly spent, including by a reduction or a suspension of subsequent contributions to the ENIAC Joint Undertaking.

3. For the purposes of combating fraud, corruption and other illegal acts, Regulation (EC) No 1073/1999 shall apply.

4. The ENIAC Joint Undertaking shall carry out on-the-spot checks and financial audits among the recipients of the ENIAC Joint Undertaking's public funding. These checks and audits shall be performed either directly by the ENIAC Joint Undertaking or by ENIAC member States on its behalf. ENIAC member States may carry out any other checks and audits among the recipients of their national funding as they deem necessary and shall communicate the results to the ENIAC Joint Undertaking.

5. The Commission and/or the Court of Auditors may, if necessary, carry out on-the-spot checks among the recipients of the ENIAC Joint Undertaking's funding and the agents responsible for its allocation. To that end, the ENIAC Joint Undertaking shall ensure that grant agreements and contracts provide for the right of the Commission and/or of 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) established by Commission Decision 1999/352/EC, ECSC, Euratom (12) shall enjoy the same powers in respect of the ENIAC Joint Undertaking and its staff as it enjoys in respect of Commission departments. As soon as the ENIAC 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 (13). The ENIAC Joint Undertaking shall adopt the necessary measures needed to facilitate internal investigations conducted by OLAF.

Article 13

Confidentiality

Without prejudice to Article 14, the ENIAC Joint Undertaking shall ensure the protection of sensitive information, whose disclosure could damage the interests of its members or of participants in projects.

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 (14) shall apply to documents held by the ENIAC Joint Undertaking.

2. The ENIAC Joint Undertaking shall adopt the practical arrangements for implementing Regulation (EC) No 1049/2001 by 7 August 2008.

3. Decisions taken by the ENIAC 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 rules governing the protection, use and the dissemination of research results, based on Regulation (EC) No 1906/2006, are set out in Article 23 of the statutes.

Article 16

Preparatory actions

1. The Commission shall be responsible for the establishment and initial operation of the ENIAC 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 other founding members and with 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 7(2) 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 ENIAC Joint Undertaking once approved by the governing board and may conclude contracts, including staff contracts following the adoption of the ENIAC Joint Undertaking establishment plan. The Commission authorising officer may authorise all payments covered by the credits provided in the budget of the ENIAC Joint Undertaking.

Article 17

Support from the host State

A host agreement shall be concluded between the ENIAC Joint Undertaking and Belgium concerning office accommodation, privileges and immunities and other support to be provided by Belgium to the ENIAC 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. For the Council The President F. NUNES CORREIA

(1) Opinion of 12 December 2007 (not yet published in the Official Journal).

(2) Opinion of 25 October 2007 (not yet published in the Official Journal).

(3) OJ L 412, 30.12.2006, p. 1.

(4) OJ L 400, 30.12.2006, p. 86, corrected by OJ L 54, 22.2.2007, p. 30.

(5) OJ L 56, 4.3.1968, p. 1. Regulation as amended by Regulation (EC, Euratom) No 337/2007 (OJ L 90, 30.3.2007, p. 1).

(6) OJ L 248, 16.9.2002, p. 1. Regulation as last amended by Regulation (EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2006, p. 1).

(7) OJ L 391, 30.12.2006, p. 1.

(8) OJ L 312, 23.12.1995, p. 1.

(9) OJ L 292, 15.11.1996, p. 2.

(10) OJ L 136, 31.5.1999, p. 1.

(11) OJ L 357, 31.12.2002, p. 72.

(12) OJ L 136, 31.5.1999, p. 20.

(13) OJ L 136, 31.5.1999, p. 15.

(14) OJ L 145, 31.5.2001, p. 43.