Proposal for a Council Decision concluding the Agreement for scientific and technological cooperation between the European Community and the Government of the United States of America (98/C 162/07) COM(1998) 137 final - 98/0095(CNS)

(Submitted by the Commission on 11 March 1998)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 130m, in conjunction with Article 228(2), first sentence, and the first subparagraph of Article 228(3) thereof;

Having regard to the proposal from the Commission;

Having regard to the opinion of the European Parliament;

Whereas the European Community and the United States of America are pursuing specific RTD programmes in areas of common interest;

Whereas on the basis of past experience, both sides have expressed a desire to establish a deeper and broader framework for the conduct of collaboration in science and technology;

Whereas this cooperation agreement in the field of science and technology forms part of the global cooperation between the European Community and the United States of America as reflected, in particular, in the New Transatlantic Agenda, adopted by both sides in December 1995;

Whereas by its Decision of 25 June 1996, the Council authorised the Commission to negotiate an agreement for scientific and technological cooperation between the European Community and the Government of the United States of America;

Whereas by its Decision of 1 December 1997, the Council decided that the Agreement for scientific and technological cooperation be signed on behalf of the European Community;

Whereas the Agreement for scientific and technological cooperation was signed on 5 December 1997;

Whereas the Agreement for scientific and technological cooperation between the EC and the Government of the United States of America should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement for scientific and technological cooperation between the European Community and the Government of the United States of America is hereby approved on behalf of the Community. The text of the Agreement is attached to this Decision.

Article 2

Pursuant to Article 12 of the Agreement, the President of the Council shall give notification that the procedures necessary for the entry into force of the Agreement have been completed on the part of the European Community.

Done at Brussels, . . .

For the Council

The President

AGREEMENT for scientific and technological cooperation between the European Community and the Government of the United States of America

THE EUROPEAN COMMUNITY (hereinafter 'the Community`),

of the one part, and

THE GOVERNMENT OF THE UNITED STATES OF AMERICA,

of the other part,

hereinafter referred to as the 'Parties`;

CONSIDERING the importance of science and technology for their economic and social development;

RECOGNISING that the Community and the Government of the United States of America are pursuing research and technological activities in a number of areas of common interest, and that participation in each other's research and development activities on a basis of reciprocity will provide mutual benefits;

HAVING REGARD to the Declaration on EC-US Relations of November 23, 1990 and the New Transatlantic Agenda and the Joint EU-US Action Plan adopted in Madrid on December 3, 1995;

DESIRING to establish a formal basis for cooperation in scientific and technological research which will extend and strengthen the conduct of cooperative activities in areas of common interest and encourage the application of the results of such cooperation to their economic and social benefit;

HAVE AGREED AS FOLLOWS:

Article 1

Purpose

The Parties shall encourage, develop and facilitate cooperative activities in fields of common interest where they are pursuing research and development activities in science and technology.

Article 2

Definitions

For the purposes of this Agreement:

(a) 'Cooperative activity` means any activity which the Parties undertake, or support, pursuant to this Agreement, and includes joint research;

(b) 'Information` means scientific or technical data, results or methods of research and development stemming from joint research, and any other data relating to cooperative activities;

(c) 'Intellectual property` shall have the meaning defined in Article 2 of the Convention establishing the World Intellectual Property Organisation, done at Stockholm, 14 July 1967;

(d) 'Joint research` means research that is implemented with financial support from one or both Parties and that involves collaboration by participants from both the Community and the United States of America, and is designated as joint research in writing by the Parties or their scientific and technological organisations and agencies, or in the case where there is funding by only one Party, by that Party and the participants in that project;

(e) 'Participants` means any individual or entity, including inter alia, the Parties' scientific and technological organisations and agencies, private persons, undertakings, research centres, universities, subsidiaries of European and U.S. entities, or any other form of legal entity involved in cooperative activities.

Article 3

Principles

Cooperative activities shall be conducted on the basis of the following principles:

(a) Mutual benefit based on an overall balance of advantages;

(b) Reciprocal opportunities to engage in cooperative activities;

(c) Equitable and fair treatment;

(d) Timely exchange of information which may affect cooperative activities.

Article 4

Areas of cooperative activities

(a) Sectors for cooperative activities are:

- environment (including climate research);

- biomedicine and health (including research on AIDS, infectious diseases and drug abuse);

- agriculture;

- fisheries science;

- engineering research;

- non-nuclear energy;

- natural resources;

- materials sciences and metrology;

- information and communication technologies;

- telematics;

- biotechnology;

- marine sciences and technology;

- social sciences research;

- transportation;

- science and technology policy, management, training and mobility of scientists.

(b) The Parties may modify this list upon recommendation by the Joint Consultative Group mentioned in Article 6, in accordance with procedures in force for each Party.

(c) The Parties may jointly pursue cooperative activities with third parties.

Article 5

Forms of cooperative activities

(a) Subject to applicable laws, regulations and policies, the Parties shall foster, to the fullest extent practicable, the involvement of participants in cooperative activities under this Agreement with a view to providing comparable opportunities for participation in their scientific and technological research and development activities.

(b) Cooperative activities may take the following forms:

1. coordinated research projects and joint research projects;

2. joint task forces;

3. joint studies;

4. joint organisation of scientific seminars, conferences, symposia and workshops;

5. training of scientists and technical experts;

6. exchange or sharing of equipment and materials;

7. visits and exchanges of scientists, engineers or other appropriate personnel;

8. exchanges of scientific and technological information as well as on practices, laws, regulations and programmes relevant to cooperation under this Agreement.

Where appropriate, such cooperative activities shall take place pursuant to implementing arrangements concluded between the Parties' executive agents, or their scientific and technological organisations and agencies. These arrangements may describe the nature and the duration of cooperation for a specific area or purpose, treatment of intellectual property as provided for in the Annex, funding, allocation of costs, and other relevant matters.

Article 6

Coordination and Facilitation of Cooperative Activities

(a) The Coordination and facilitation of cooperative activities under this Agreement shall be accomplished on behalf of the Government of the United States of America by the Department of State and on behalf of the Community by the European Commission, acting as Executive Agents.

(b) The Executive Agents shall establish a Joint Consultative Group (hereinafter referred to as the 'JCG`) for the oversight of scientific and technological cooperation under this Agreement. The JCG shall consist of a limited equal number of official representatives of each Party.

(c) The JCG may hold consultations on general science and technology issues; exchange information; establish task forces and working groups as appropriate; consult experts as appropriate and needed; and otherwise work to increase mutual understanding of the Parties' activities and programmes related to science and technology.

(d) The functions of the JCG shall include:

1. overseeing and recommending activities under the Agreement;

2. making recommendations pursuant to Article 4(b);

3. advising the Parties on ways to enhance cooperation consistent with the principles set out in this Agreement;

4. annually providing a report on the status and effectiveness of cooperation undertaken under this Agreement;

5. reviewing the efficient and effective functioning of the Agreement.

(e) The JCG shall meet annually, unless otherwise agreed by the Parties. Meetings should be held alternately in the Community and the United States of America. The JCG shall establish its own rules of procedure, subject to approval by the Parties.

(f) Decisions of the JCG shall be reached by consensus. Minutes, comprising a record of the decisions and principal points discussed, shall be taken at each meeting. These minutes shall be agreed upon by those persons selected from each side to jointly chair the meetings.

Article 7

Funding and Legal Considerations

(a) Cooperative activities shall be subject to the availability of appropriated funds and to the applicable laws and regulations, policies and programmes of the Community and the United States of America.

(b) Each Party shall bear the costs of discharging its responsibilities under this Agreement, including costs of participation in meetings of the JCG. However, costs, other than those for travel and accommodation, which are directly associated with meetings of the JCG, shall be borne by the host Party.

Article 8

Entry of Personnel and Equipment

Each Party shall take all reasonable steps and use its best efforts, within applicable laws and regulations, to facilitate entry to and exit from its territory of persons, material, data and equipment involved in or used in cooperative activities under this Agreement.

Article 9

Treatment of Intellectual Property

The allocation and protection of intellectual property rights under this Agreement shall be in accordance with the provisions of the Annex, which forms an integral part of this Agreement.

Article 10

Other Agreements and Transitional Provisions

(a) The Parties shall endeavour, where appropriate, to bring under the terms of this Agreement new arrangements for scientific and technological cooperation between the Community and the Government of the United States of America that fall under the scope of Article 4.

(b) This Agreement is without prejudice to rights and obligations under other agreements between the Parties and any agreement or arrangement between either of the Parties and non-participant third parties, including agreements of arrangements between their scientific and technological organisations or agencies and a Member State of the Community.

Article 11

Territorial Application

This Agreement shall apply, on the one hand to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty, and on the other hand to the territory of the United States of America. This shall not prevent the conduct of cooperative activities on the high seas, outer space, or the territory of third countries, in accordance with international law.

Article 12

Entry into Force, Termination and Dispute Settlement

(a) This Agreement shall enter into force on the date on which the Parties have notified each other in writing that their respective internal procedures necessary for its entry into force have been completed.

(b) This Agreement is concluded for an initial period of five years. Subject to review by the Parties in the final year of each successive period, the Agreement may be extended, with possible amendments, thereafter for additional periods of five years by mutual written agreement between the Parties.

(c) This Agreement may be terminated at any time by either Party upon six months' written notice. The expiration or termination of this Agreement shall not affect the validity or duration of any arrangements made under it, or any specific rights and obligations that have accrued in compliance with the Annex.

(d) This Agreement may be amended by agreement of the Parties. Amendments shall enter into force on the date on which the Parties have notified each other in writing that their respective internal procedures necessary for amending this Agreement have been completed.

(e) All questions or disputes related to the interpretation or implementation of this Agreement shall be settled by mutual agreement of the Parties.

Article 13

This Agreement is signed in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish, and Swedish languages, each of these texts being equally authentic.

Hecho en Washington D.C., el cinco de diciembre de mil novecientos noventa y siete.

Udfærdiget i Washington D.C., den femte december nitten hundrede og syv og halvfems.

Geschehen zu Washington D.C. am fünften Dezember neunzehnhundertsiebenundneunzig.

¸ãéíå óôçí ÏõÜóéãêôïí D.C., óôéò ðÝíôå Äåêåìâñßïõ ÷ßëéá åííéáêüóéá åíåíÞíôá åðôÜ.

Done at Washington D.C. on the fifth day of December in the year one thousand nine hundred and ninety-seven.

Fait à Washington D.C., le cinq décembre mil neuf cent quatre-vingt-dix-sept.

Fatto a Washington D.C., addì cinque dicembre millenovecentonovantasette.

Gedaan te Washington D.C., de vijfde december negentienhonderd zevenennegentig.

Feito em Washington D.C., em cinco de Dezembro de mil novecentos e noventa e sete.

Tehty Washington D.C.:ssä viidentenä päivänä joulukuuta vuonna tuhatyhdeksänsataayhdeksänkymmentäseitsemän.

Som skedde i Washington D.C. den femte december nittonhundranittiosju.

Por la Comunidad Europea

For Det Europæiske Fællesskab

Für die Europäische Gemeinschaft

Ãéá ôçí ÅõñùðáúêÞ Êïéíüôçôá

For the European Community

Pour la Communauté européenne

Per la Comunità europea

Voor de Europese Gemeenschap

Pela Comunidade Europeia

Euroopan yhteisön puolesta

På Europeiska gemenskapens vägnar

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Por el Gobierno de los Estados Unidos de América

For regeringen for Amerikas Forenede Stater

Für die Regierung der Vereinigten Staaten von Amerika

Ãéá ôçí ÊõâÝñíçóç ôçò ÇíùìÝíåò Ðïëéôåßåò ôçò ÁìåñéêÞò

For the Government of the United States of America

Pour le gouvernement des États-Unis d'Amérique

Per il Governo degli Stati Uniti d'America

Voor de Regering van de Verenigde Staten van Amerika

Pelo Governo dos Estados Unidos da América

Amerikan yhdysvaltojen hallituksen puolesta

På Amerikas förenta staternas regerings vägnar

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For the Government of the United States of America

Por el Gobierno de los Estados Unidos de América

For regeringen for Amerikas Forenede Stater

Für die Regierung der Vereinigten Staaten von Amerika

Ãéá ôçí ÊõâÝñíçóç ôùí ÇíùìÝíùí Ðïëéôåéþí ôçò ÁìåñéêÞò

Pour le gouvernement des États-Unis d'Amérique

Per il Governo degli Stati Uniti d'America

Voor de Regering van de Verenigde Staten van Amerika

Pelo Governo dos Estados Unidos da América

Amerikan yhdysvaltojen hallituksen puolesta

På Amerikas förenta staternas regerings vägnar

>REFERENCE TO A FILM>

For the European Community

Por la Comunidad Europea

For Det Europæiske Fællesskab

Für die Europäische Gemeinschaft

Ãéá ôçí ÅõñùðáúêÞ Êïéíüôçôá

Pour la Communauté européenne

Per la Comunità europea

Voor de Europese Gemeenschap

Pela Comunidade Europeia

Euroopan yhteisön puolesta

På Europeiska gemenskapens vägnar

>REFERENCE TO A FILM>

ANNEX

INTELLECTUAL PROPERTY

Pursuant to Article 9 of this Agreement;

The Parties shall ensure adequate and effective protection of intellectual property created or furnished under this Agreement and relevant implementing arrangements. The Parties agree to notify one another in a timely fashion of any inventions or copyrighted works arising under this Agreement and to seek protection for such intellectual property in a timely fashion. Rights to such intellectual property shall be allocated as provided in this Annex.

I. SCOPE

A. This Annex is applicable to all cooperative activities undertaken by the Parties or their participants pursuant to this Agreement, except as otherwise specifically agreed by the Parties.

B. For purposes of this Agreement, 'intellectual property` shall have the meaning found in Article 2 of the Convention Establishing the World Intellectual Property Organisation, done at Stockholm, July 14, 1967.

C. This Annex addresses the allocation of rights, interests, and royalties between the Parties or their participants. Each Party shall ensure that the other Party or its participants can obtain the rights to intellectual property allocated in accordance with the Annex. This Annex does not otherwise alter or prejudice the allocation between a Party and its nationals, which shall be determined by that Party's laws and practices.

D. Disputes concerning intellectual property arising under this Agreement should be resolved through discussions between the relevant participants, or, if necessary, the Parties. Upon mutual agreement of the Parties, the participants may submit a dispute to an arbitral tribunal for binding arbitration. Unless the participants agree otherwise in writing, the arbitration rules of UNCITRAL shall govern.

E. Termination or expiration of this Agreement shall not affect rights or obligations under this Annex.

II. ALLOCATION OF RIGHTS

A. Each Party shall be entitled to a non-exclusive, irrevocable, royalty-free licence in all countries to reproduce, publicly distribute and translate scientific and technical journal articles, non-proprietary scientific reports, and books directly arising from cooperation under this Agreement. All publicly distributed copies of a copyrighted work prepared under this provision shall indicate the names of the authors of the work unless an author explicitly declines to be named. Each Party or its participants shall have the right to review a translation prior to public distribution.

B. Rights to all forms of intellectual property, other than those rights described in paragraph II(A) above, shall be allocated as follows:

1. Visiting researchers, for example, scientists visiting primarily in furtherance of their education, shall receive intellectual property rights under arrangements with their host institutions. In addition, each visiting researcher named as an inventor shall be entitled to treatment as a national of the host country with regard to awards, bonuses, benefits, or any other rewards, in accordance with the policies of the host institution.

2. (a) For intellectual property which is or may be created during joint research, the Parties or their participants shall jointly develop a technology management plan. The technology management plan shall consider the relative contributions of the Parties and their participants, the benefits of licensing by territory or for fields of use, requirements imposed by the Parties' domestic laws, and other factors deemed appropriate.

(b) If the parties or their participants did not agree to a joint technology management plan in the initial research cooperation agreement and cannot reach an agreement within a reasonable time, not to exceed six months, from the time a Party becomes aware of the creation or likely creation of the intellectual property in question as a result of the joint research, the Parties or their participants shall resolve the matter in accordance with the provisions of paragraph I(D). Pending resolution of the matter, such intellectual property shall be owned jointly by the Parties or their participants, but shall be commercially exploited (including product development) only by mutual agreement.

(c) 'Joint research` means research that is implemented with financial support from one or both Parties and that involves collaboration by participants from both the Community and the United States of America and is designated as joint research in writing by the Parties or their scientific and technological organisations and agencies, or in the case where there is funding by only one Party, by that Party and the participants in that project.

(d) In the event that either Party believes that a particular joint research project under this Agreement has led or will lead to the creation or furnishing of a type of intellectual property that it protects but is not protected throughout the territory of the other Party, the Parties shall immediately hold discussions to determine the allocation of the rights to the said intellectual property. The joint activities in question will be suspended during the discussions, unless otherwise agreed by the Parties thereto. If no agreement can be reached within a three-month period from the date of the request for discussions, cooperation on the project in question will be suspended or terminated at the request of either Party.

III. PROPRIETARY INFORMATION

In the event that information identified in a timely fashion as proprietary is furnished or created under the Agreement, each Party and its participants shall protect such information in accordance with applicable laws, regulations, and administrative practice. Without prior written consent, none of the Parties shall disclose any proprietary information except to employees, government personnel, and prime and subcontractors. Such disclosures shall be for use only within the terms of their permits or licences with the Parties or the scope of work of their contracts with the Parties and in work relating to the subject matter of the information so disseminated. The Parties shall impose, or shall have imposed, through appropriate arrangements such as research contracts, grant documents, technology management plans, etc., an obligation on all participants receiving such information to keep it confidential.

If one of the Parties becomes aware that, under its laws or regulations, it will be, or may reasonably be expected to become, unable to meet the non-disclosure provisions, it shall immediately inform the other Party. The Parties shall thereafter consult to define an appropriate course of action. Information may be identified as proprietary if it is secret in the sense that it is not, as a body or in the precise configuration or assembly of its components, generally known or readily accessible by lawful means; has actual or potential commercial value by virtue of its secrecy; has been subject to steps that were reasonable under the circumstances by the person lawfully in control, to maintain its secrecy; and not already in the possession of the recipient without an obligation concerning its confidentiality.