Proposal for a Council Decision concerning the rules for the participation of undertakings, research centres and universities and for the implementation of the fifth framework programme of the European Atomic Energy Community (Euratom) (1998 to 2002) (98/C 40/09) (Text with EEA relevance) COM(97) 587 final/2 - 97/0310(CNS)

(Submitted by the Commission on 16 December 1997)

(Cancelling and replacing the text published in OJ C 3 of 7 January 1998)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 7 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 Economic and Social Committee,

Whereas the fifth framework programme of the European Atomic Energy Community (Euratom) for research and training activities (1998 to 2002) (hereinafter referred to as 'the fifth framework programme`) was adopted by Council Decision No . ./. . ./Euratom, whereas the detailed rules for financial participation by the Community, as set out in Annex III to that Decision, must be supplemented by other provisions relating to the participation of undertakings, research centres and universities;

Whereas the new provisions should be part of a complete, coherent and transparent framework;

Whereas the rules for the participation of undertakings, research centres and universities must be adapted to the nature of the indirect research activities, including demonstration activities, and training activities (RTDT); whereas they may very depending on whether the participant is based in a Member State, an associated State or a third State, and on its legal structure;

Whereas the participation of legal entities of third States should be envisaged on the basis of international agreements; whereas, however, the agreements concluded with the Community, in particular on the basis of Article 101 of the Treaty, must be implemented in accordance with the principle of reciprocity and the protection of intellectual and industrial property rights; whereas the Community's legal entities must thus enjoy genuine access to the research programmes of the third State concerned;

Whereas the Joint Research Centre (JRC) takes part in indirect RTDT actions on the same basis as legal entities established in a Member State or in an associated State;

Whereas the Community financial participation should be paid to the participants against justification of the eligible costs of the indirect RTDT action although other more appropriate methods may be used;

Whereas RTDT activities should be carried out in accordance with the principles of sound financial management;

Whereas, to the extent necessary for achieving its objectives, the research and training programme relating to controlled thermonuclear fusion and to energy systems connected with nuclear fission may set out in greater detail or supplement the rules for the participation of undertakings, research centres and universities;

Whereas the provisions relating to the dissemination of knowledge are laid down in Articles 12 to 29 of the Treaty;

Whereas, in order to ensure coherence between the activities carried out under the fifth framework programme and those undertaken pursuant to Decision No . ./. . ./EC of the European Parliament and of the Council concerning the fifth framework programme of the European Community for research, technological development and demonstration activities (1998 to 2002), the present Decision and Council Decision 97/. . ./EC concerning the rules for the participation of undertakings, research centres and universities and for the dissemination of the research results, should be adopted simultaneously and for the same period,

HAS DECIDED AS FOLLOWS:

CHAPTER I: GENERAL PROVISIONS

Article 1

Definitions

For the purposes of this Decision:

(a) 'RTDT activities` means the research activities, including demonstration activities, and training activities described in Annex II to the fifth framework programme;

(b) 'indirect RTDT actions` means one of the two ways of implementing the RTDT activities as described in Annex III to the fifth framework programme. Such actions are carried out by third parties under contracts concluded with the Community; the JRC may take part therein under the conditions laid down in Article 6;

(c) 'associated State` means a State which is party to an international agreement, concluded with the Community in particular on the basis of Article 101 of the Treaty, under which the State concerned makes a financial contribution to the fifth framework programme. The said agreement must relate to cooperation in research and training;

(d) 'third State` means a State which is neither a Member State nor an associated State;

(e) 'legal entity` means:

- any natural person,

or

- any legal person, provided that it has been established under Community law or the applicable national law and has been given legal personality or has the capacity, in its own name, to hold rights and obligations of all kinds, to conclude contracts and to be a party to legal proceedings;

(f) 'international organisation` means any association of States, other than the Community, established on the basis of a Treaty or similar act, having common institutions and an international legal personality distinct from that of its Member States;

(g) 'potential user of RTDT results` means any legal entity, any international organisation or the JRC which, by virtue of its needs and capacities, whether scientific, technological, economic or social, has a specific contribution to make to the use or the ensuring of the use of the results of indirect RTDT actions.

CHAPTER II: RULES FOR THE PARTICIPATION OF UNDERTAKINGS, RESEARCH CENTRES AND UNIVERSITIES

Article 2

Scope

The rules laid down in this Chapter shall apply, in conformity with Article 10 of the Treaty, to the participation of legal entities and international organisations, of the JRC in indirect RTDT actions.

SECTION 1: CONDITIONS FOR PARTICIPATION

Article 3

Number of participants in indirect RTDT actions

1. Indirect RTDT actions shall be carried out by:

(a) at least two mutually independent legal entities established in two different Member States or in a Member State and an associated State;

or

(b) at least one legal entity established in a Member State or in an associated State and the JRC;

or

(c) one or more legal entities established in a third State, or international organisations, acting in cooperation with the minimum number of legal entities established in a Member State or associated State and the JRC, as required in points (a) or (b).

2. Indirect RTDT actions to be carried out by a single participant, in view of the nature of the RTDT activity to be undertaken or the nature of the indirect RTDT action, must be carried out by:

(a) a legal entity established in a Member State, in an associated State or in a third State,

(b) an international organisation,

(c) the JRC.

Article 4

Conditions for the participation of legal entities from the Member States and associated States

1. Any legal entity established in a Member State or in an associated State may take part in indirect RTDT actions and receive financing from the fifth framework programme, provided that:

(a) in the case of indirect RTDT actions other than those referred to in points (b) and (c):

- it is carrying out, or is about to carry out an RTDT activity,

or

- it contributes to the dissemination and use of the results of RTDT activities,

or

- it is a potential user of RTDT results;

(b) in the case of thematic networks and concerted actions:

- it meets at least one of the conditions set out in point (a),

or

- by virtue of its knowledge of the relevant area of research, it is in a position to contribute substantial added-value to the quality of the work to be undertaken;

(c) in the case of accompanying measures, it has the necessary technical know-how to carry out the indirect RTDT action in question.

2. Where the purpose of the indirect RTDT action concerned so permits, any legal entity referred to in paragraph 1 must carry out the work as its principal activity within the Member States or associated States.

Article 5

Conditions for the participation of legal entities from third States and of international organisations

1. Without prejudice to the conditions set out in paragraph 2, any legal entity established in a third State and any international organisation may take part in indirect RTDT actions without financing from the fifth framework programme, provided that:

(a) its participation is in the interests of the Community,

(b) the number of participants in the proposal for an indirect RTDT action is in accordance with Article 3,

and

(c) it meets the conditions laid down in Article 4(1) for legal entities from the Member States and associated States.

2. Any legal entity established in a third State may take part:

(a) without receiving financing from the fifth framework programme:

- in the programme of research and training relating to controlled thermonuclear fusion and to energy systems connected with nuclear fission, open to the third State in which it is established, in accordance with an international agreement concluded with the Community in particular within the meaning of Article 101 of the Treaty and relating to cooperation in research and training, in accordance with the principles, conditions and limits laid down in that agreement,

- in the programme of research and training referred to in the first indent, open in the absence of an international agreement by this programme to the third State in which the entity is established,

- in cases other than those referred to in the first and second indents, in the programme of research and training mentioned in the first indent, provided that its participation is duly justified, that is, it is essential for implementing all or part of the research and training programme in accordance with the objectives of that programme;

(b) exceptionally with financing from the fifth framework programme provided that it corresponds to one of the cases referred to in point (a) and provided that this financing is duly justified, that is, it is essential for achieving the objectives of the indirect RTDT action in question.

The provision laid down in this point shall not apply to training fellowships as defined in Annex III to the fifth framework programme.

3. In the case of RTDT activities specific to the countries of Central and Eastern Europe and to the States which were formerly part of the Soviet Union, any legal entity which is established in one of those third States and meets the conditions set out in paragraph 1 may take part and receive financing from the fifth framework programme in accordance with the procedures laid down in the programme of research and training relating to controlled thermonuclear fusion and to energy systems connected with nuclear fission.

4. Any international organisation may, exceptionally, receive financing from the fifth framework programme provided that:

(a) in the case of indirect RTDT actions other than accompanying measures,

- the financing is duly justified, that is, it is essential for achieving the objectives of the indirect RTDT action in question,

and

- the international organisation has, or is about to have, a basic structure for the proposed work located:

(i) in a Member State or associated State,

or

(ii) in a third State, provided that the said structure is essential for carrying out the proposed work;

(b) in the case of accompanying measures, it has the necessary technical skills and know-how, which are not readily accessible or are unavailable in the Member States or the associated States.

Article 6

Conditions for the participation of the JRC

Subject to the budgetary and administrative measures necessary to enable the JRC to take part in indirect RTDT actions, the JRC shall be bound by the same conditions and have the same rights and obligations as the legal entities established in a Member State or an associated State taking part in indirect RTDT actions.

Article 7

Conditions relating to resources

1. Any legal entity, international organisation and the JRC must:

- when filing its proposal for an indirect RTDT action, have at least the potential resources needed for carrying it out,

- when the contract is signed, have the essential resources needed for carrying it out.

2. The resources needed for carrying out the indirect RTDT action shall be understood as being human resources, infrastructure, financial resources and, where appropriate, intangible property.

SECTION 2: PROCEDURES

Article 8

Procedures to be applied

1. As a general rule, indirect RTDT actions other than accompanying measures shall be the subject of calls for proposals published in the Official Journal of the European Communities The calls for proposals may, where appropriate, be preceded by a call for expressions of interest of an informative nature.

Indirect RTDT actions relating to controlled thermonuclear fusion and carried out under the contracts of Association, the NET Agreement, the four-power Cooperation Agreement between the Community, Japan, the Russian Federation and the United States of America concerning the engineering design activities of the International Thermonuclear Experimental Reactor (ITER), the Joint European Torus (JET) Joint Undertaking and any other agreement concluded by the Community shall comply with the procedures laid down in those agreements.

2. Accompanying measures shall, where appropriate, be the subject of:

- calls for proposals, in accordance with procedures identical to those described in paragraph 1,

- public procurement procedures where the indirect RTDT action consists of a purchase or a service, in accordance with the applicable provisions,

- invitations to apply, where the measure concerned requires the Commission to take account, in a balanced fashion, of the various research players, without prejudice to other procedures designed to achieve the same result in the case of the high-level experts referred to in Article 5(2) of the fifth framework programme.

3. Indirect RTDT actions carried out as pilot schemes shall be governed by procedures appropriate to those actions.

Article 9

Selection criteria and conditions applicable in accordance with the type of procedure

1. Proposals for indirect RTDT actions resulting from calls for proposals and pilot schemes shall be selected on the basis of the conditions for participation set out in Articles 3 to 7 and the criteria set out in points (a), (b) and (c), which shall be applied in accordance with the category of indirect RTDT action and with the nature of the RTDT activity:

(a) the categories of criteria listed in Annex I to the fifth framework programme;

(b) the additional criteria set out in the research and training programme relating to controlled thermonuclear fusion and to energy systems connected with nuclear fission;

(c) the following criteria:

- the innovative nature of the proposal for an indirect RTDT action,

- the prospects for disseminating/exploiting the results, as described in the plan for dissemination and use attached to the proposal for an indirect RTDT action.

2. Proposals for accompanying measures which are subject to a public procurement procedure shall be evaluated on the basis of selection and award criteria defined in accordance with the relevant provisions.

3. Applicants responding to an invitation to apply shall be selected on the basis of the criteria set out in the relevant Commission Decision and of the relevant conditions for participation set out in Articles 3, 4 and 5.

SECTION 3: CONTRACTS

Article 10

Community financial participation and eligible costs

1. The Community financial participation shall consist of the reimbursement, in part or in whole, of the eligible costs of the indirect RTDT action, in compliance with the provisions of Annex III to the fifth framework programme.

2. A cost relating to an indirect RTDT action shall be eligible where it is necessary for the action in question and is provided for in the contract. It shall be reimbursable provided that the amount has actually been spent and has been recorded in the accounts or the tax documents.

3. In the case of contracts concluded following calls for proposals, the usual method shall be to make payments against justification of the eligible costs of the indirect RTDT action.

General expenses may be calculated either on a flat-rate basis or on the basis of the actual costs, provided that, in the latter case, the documents detailing and substantiating those costs are satisfactory.

By agreement with the Commission, another method may be used at the request of those taking part in the proposal for an indirect RTDT action:

(a) in the case of small-scale projects, fixed amounts determined on the basis of an assessment of the estimated costs of the work;

(b) in other cases, fixed amounts linked to the achievement of contractually agreed objectives.

4. The notion of additional eligible costs, as referred to in Annex III to the fifth framework programme, shall comprise the following:

- the additional costs generated simply by taking part in the indirect RTDT action;

- a flat-rate contribution to the general expenses.

In the case of the research and technological development projects, demonstration projects and integrated projects referred to in Annex III to the fifth framework programme, recourse shall be had to additional costs where, in the view of the Commission, the system of accountancy used by the participant in an indirect RTDT action does not enable the full costs of carrying out the indirect RTDT action to be established with sufficient precision.

Article 11

Contracts

Proposals for indirect RTDT actions selected following any of the procedures set out in Article 8 shall be subject of a contract.

CHAPTER III: FINAL PROVISIONS

Article 12

Provisions which may be laid down in the research and training programme relating to controlled thermonuclear fusion and to energy systems connected with nuclear fission

The rules for the participation of undertakings, research centres and universities may be set out in more detail or supplemented in the Council Decision adopting the research and training programme relating to controlled thermonuclear fusion and to energy systems connected with nuclear fission, implementing the fifth framework programme.

The first paragraph shall not apply in the case of the definitions set out in Article 1, the training fellowships referred to in the second sentence of Article 5(2)(b) or the list of third States given in Article 14.

Article 13

Detailed rules of application

The Commission shall lay down the detailed rules for applying Articles 3, 7 and 10.

Article 14

Publication of the list of third States

The list of third States referred to in Article 5(2)(a) shall be published in the Official Journal of the European Communities.

Article 15

Reports

The annual report which the Commission sends to the European Parliament and the Council in accordance with Article 5(4) of the fifth framework programme shall contain information on the implementation of this Decision.

Article 16

Duration

This Decision shall apply to indirect RTDT actions implementing the fifth framework programme.