Proposal for a COUNCIL DECISION concerning the conclusion of an Agreement relating to scientific and technical cooperation between the European Economic Community and Australia
Date: 1993-06-10
Institutions: European Commission
Subjects: Australia, agreement (EU), cooperation agreement, scientific cooperation, scientific research, technical cooperation

C O M M I S S I ON  OF  THE  EUROPEAN  CCSVIVnJNITIES 

C0M(93)  269  f i n al  -  SYN 461 

B r u s s e l s,  10  June  1993 

Proposal 

f or  a 

COUNCIL  DECISION 

concerning  the  conclusion  of  an  Agreement  relating  to  scientific  and  technical 
S o ^ on  between the European Economic Community and Austraha 

(presented by the Commission) 

EXPLANATORY MEMORANDUM 

1.  Scientific  and  technological  contacts  between  the  European  Communities  and 
Australia  have  been  based  so  far  on  an  arrangement  signed  in  November  1986 
between the Commission and the Australian Government.  This arrangement  aims 
at initiating cooperation through the exchange of non-confidential information arising 
from research  in  Austraha  and  the  European  Community  in  a  number  of  areas. 
Both sides considered it as a starting point to explore more structured and concrete 
cooperation. 

2.  During  the  Ministerial  Consultations  of  May  1988  the  two  sides  came  to  the 
conclusion that more concrete scientific and technical cooperation would require the 
conclusion of an agreement between the European  Economic Community and  the 
Government of Australia. 

3.  On  June  1989 the  Commission  transmitted  to  Council  a  Recommendation  for  a 
Decision  authorizing  it to  negotiate  a  framework  agreement  for  S&T  cooperation 
with Australia  (SEC(89)783 of  24 May  1989).  This initiative was jointly taken by 
Vice-Presidents Pandolfi and Andriessen.  At the request of several Members States 
further  discussion  was  postponed  while  waiting  for  a  Commission  document  on 
cooperation  in  science  and  technology  with  third  countries.  That  document  was 
transmitted to Council on 25 June 1990 (COM(90)256).  Council drew its conclusions 
during its meeting of 20 November 1990. 

4. 

In the light of these conclusions and as a result of further  contacts with Australia's 
scientific community and simultaneous progress on establishing guiding principles on 
the allocation of intellectual property rights within S&T cooperation agreements with 
third countries, the Commission submitted on  13 January  1992 a  Recommendation 
for  a  Council  Decision  authorizing  it to  negotiate  an  agreement  for  scientific  and 
technical cooperation with Australia.  Council took its Decision on 21 May 1992. 

3 

5.  On this basis negotiations took place with the Australian Government which resulted 
in  the  attached  draft  agreement,  including  its  annex  on  the  dissemination  and 
utilization  of  information  and management,  allocation  and exercise  of  intellectual 
property  rights. 

It is the first time that a cooperation  agreement of  this kind has been negotiated 
between  the  European  Community  and  an  industrialized  third  country  outside 
Europe.  It is  also  the first time  that  the  afore-mentioned  annex  relating  to  the 
dissemination and utilization of information and intellectual property rights was put 
to a test in negotiations concerning a scientific and technical cooperation agreement 
with  a  third  country.  This  follows  the  adoption  on  26  June  1992  of  a  "Joint 
declaration of the Council and the Commission in respect of the Intellectual Property 
aspects  of  scientific  and  technological  cooperation  agreements  between  the 
Community and third countries". 

6.  The  draft  Agreement,  which  is  annexed  to  the  attached  proposal  for  a  Council 

decision, provides for: 

-  the  participation  of  persons  and  legal  entities,  research  institutes,  and  other 
bodies,  including  the  Parties  themselves,  in  research  projects  conducted  by 
Australia or the Community in a restricted number of research areas; 

-  the shared use of research facilities in pursuit of cooperation on research projects; 

-  visits and exchanges of scientists, engineers and other appropriate personnel; 

-  the exchange of information; 

-  other activities as may be jointly determined by a Joint Cooperation Committee 

in accordance with the applicable policies and programmes of the Parties; 

-  the endorsement by the Parties of Technology Management Plans as a condition 
for  research  projects  to  proceed,  as  described  in  the  Annex  to  the  draft 
Agreement; 

-  cooperative  activities  to  be  subject  to  the  availability  of  funds  and  to  the 
applicable  laws and regulations, policies  and programmes  of Australia and the 
Community; no transfer of funds will take place. 

1 

7.  As  far  as  the  results  of  the  negotiations  are  concerned  in  comparison  with  the 
negotiating instructions, it should be stressed that the provisions with regard to the 
scope of the agreement, the forms of cooperation, the dissemination and utilization 
of information, and the financing provisions, have been respected.  As regards the 
management of the draft Agreement it is foreseen that participation in each other's 
research projects will take place in accordance with the procedures in force for each 
Party [Article 4.1.(a)], which implies  on the Community's  side the  full  part to be 
played by the committees of the specific  programmes in the selection of projects 
which will be  the  subject  of  cooperation.  It  should  also  be  underlined  that the 
Commission  has  been  able  to  have  the  Community's  guiding  principles  on  the 
dissemination and utilization of information and management, allocation and exercise 
of  intellectual  property rights almost  completely  accepted by the Australian side. 
The  annex  to  the  draft  agreement  which  deals  with  these  guiding  principles 
constitutes an integral part of the draft Agreement. 

8.  In the light of the above-mentioned considerations the Commission proposes that the 

Council adopt the attached proposal for a Decision. 

s 

Proposal for a 

COUNCIL DECISION 

concerning  the  conclusion  of  an  Agreement  relating  to  scientific  and  technical 
cooperation between the European Economic Community and Australia 

THE COUNCIL OF THE EUROPEAN COMMUNITIES, 

Having regard to  the Treaty establishing the European Economic Community, and in 
particular Article 130Q(2) thereof, 

Having regard to the proposal of the Commission  \ 

in cooperation with the European Parliament2, 

Having regard to the opinion of the Economic and Social Committee 3, 

WHEREAS  the  European  Economic  Community  and Australia  are pursuing  specific 
research programmes in areas of common interest, 

WHEREAS  on  the  basis  of  past  experience  in  the framework of  the  Arrangement 
between  the  Government  of  Austraha  and  the  Commission  of  the  European 
Communities for cooperation in Science and Technology, signed on 12 November 1986, 
both sides have expressed a desire to establish a more formal framework for the conduct 
of collaboration in science and technology, 

/EEC  4  of  21  May  1992  Council  authorized  the 
WHEREAS  by  Decision  92/ 
Commission to negotiate an agreement for scientific and technical cooperation between 
the European Economic Community and Australia, 

WHEREAS  the  Community  and  Australia  expect  to  obtain  mutual  benefit  from 
cooperation, 

WHEREAS the Agreement on scientific and technical cooperation between the EEC and 
Australia should be approved, 

DECIDES: 

1  O.J. N° 

2  O.J. N° C 

3  OJ.  N°C 

4  OJ. N° 

Article 1 

The Agreement relating to Scientific and Technical Cooperation between the European 
Economic Community and Australia, is hereby approved  on behalf  of the  Community. 
The text of the Agreement is attached to this Decision. 

Artidc2 

The President of the Council shall carry out the notifications provided for in Article 11 
of the Agreement 

Ike 

DRAFT 

AGREEMENT RELATING TO SCIENTIFIC AND TECHNICAL 
COOPERATION BETWEEN AUSTRALIA AND TOE 
EUROPEAN ECONOMIC COMMUNITY 

AUSTRALIA and THE EUROPEAN ECONOMIC COMMUNITY, hereinafter  referred 
to as the "Parties", 

RECOGNISING  that  the  European  Economic  Community,  hereinafter  called  "the 
Community",  and  Australia  are  pursuing  specific  research  programmes  in  areas  of 
common interest; 

NOTING the Arrangement between the Government of Australia and the Commission 
of  the  European  Communities  for  Cooperation  in Science  and  Technology, signed  at 
Canberra on 12 November 1986, which provides for cooperation in fields of science and 
technology of mutual interest through the exchange of information arising from research 
in specific fields; 

CONSIDERING the importance of scientific and technical research to Australia and the 
Community, and the mutual benefits that may be derived if the Parties facilitate  further 
cooperation; and 

DESIRING  to establish a framework  for the conduct of collaboration  in scientific  and 
technical research which will extend  and strengthen  collaboration  in areas of common 
interest and encourage the application of results of such collaboration to the social and 
economic benefit  of Australia and  the Community; 

HAVE AGREED AS FOLLOWS: 

ARTICLE 1 
Definitions 

1. 

2. 

3. 

4. 

5. 

"Cooperative  activity" means an activity carried  on  under this Agreement, and 
includes joint research. 

"Information" means scientific or technical data, results or methods of research 
and development stemming from the joint research and any other  information 
deemed necessary by the Parties and/or participants engaged in the joint research 
to be provided or exchanged under this Agreement or research pursuant thereto. 

Intellectual  Property  shall  have  the  meaning  defined  in  Article  2  of  the 
Convention  establishing the World Intellectual  Property Organization, done at 
Stockholm, 14 Jury 1967. 

"Joint  research"  means  research  implemented  and/or  funded  by  the  joint 
contributions  of  the  Parties  and  with  collaboration  from  participants  of  both 
Parties, where appropriate. 

"Participant" means any person, legal entity, research institute or any other body 
participating in a research project under this Agreement, including the Parties 
themselves. 

ARTICLE2 
Objectives 

The  Parties  shall  encourage  and,  within  the  terms  of  this  Agreement,  facilitate 
cooperation between Australia and the Community in fields of common interest where 
the Parties are supporting research and development activities to advance science and/or 
technology relevant to those fields of interest 

ARTICLE 3 
Principles 

Cooperation  under  this  Agreement  shall  be  conducted  on  the  basis  of  the  following 
principles: 

(a)  mutual benefit; 

(b) 

timely exchange of information which may affect the actions of participants 
in cooperative activities; 

(c)  within  the  framework  of  applicable  laws  and  regulations  relating  to 
intellectual  property,  effective  protection  and  equitable  distribution  of 
intellectual  property, as set  out in the  Annex  to  this Agreement, which 
forms an integral part thereof; and 

(d) 

pursuit of  economic  and  social  benefits  of  cooperative  activities  to the 
Community and Australia in view of the contributions made to cooperative 
activities by the respective participants and Parties. 

ARTICLE 4 
Scope 

1. 

Cooperation may include the following activities: 

(a) 

(b) 

(c) 

(d) 

(e) 

participation of persons and legal entities,  research institutes, and other 
bodies, including the Parties themselves, in research projects conducted by 
Australia or the Community, in accordance with the procedures in force 
for each Party; 

shared  use  of  research  facilities  in  pursuit  of  cooperation  on  research 
projects; 

visits  and  exchanges  of  scientists,  engineers  and  other  appropriate 
personnel  for  the  purposes  of  participating  in  seminars,  symposia  and 
workshops relevant to cooperation under this Agreement; 

exchange  of  information  such  as  practices,  laws,  regulations  and 
programmes relevant to cooperation under this Agreement; and 

other activities as may be mutually determined by the Joint Science and 
Technology  Cooperation  Committee  in  accordance  with  the  applicable 
policies and programmes of the Parties. 

2. 

For the purposes of this Agreement, cooperation shall be restricted to activities 
in the following areas: 

*7© 

biotechnology; 

(a) 
(b)  medical and health research; 
(c)  marine science and technology; 
(d) 
(e) 
(f) 

environment; 
information technologies; and 
communication technologies. 

3. 

Research projects shall not proceed under this Agreement until the Parties have 
endorsed  a  Technology  Management  Plan,  as  described  in  the  Annex  to  this 
Agreement, and which is agreed by the participants. 

ARTICLE 5 
Joint Science and Technology Cooperation Committee 

1. 

2. 

Cooperative  activities  under  this  Agreement  shall  be  administered  by  a  Joint 
Science and Technology Cooperation Committee  comprising  representatives of 
each Party. 

The functions of the Joint Science and Technology Cooperation Committee shall 
be to: 

(a) 

promote and review the activities envisaged under the Agreement; 

(b) 

(c) 

(d) 

authorise activities falling under Article 4,l(e) of this Agreement as being 
cooperative activities to which this Agreement applies; 

advise  the  Parties on ways  to  enhance  cooperation  consistent  with  the 
objectives and principles set out in this Agreement; and 

provide  a  report  annually  to  the  Parties  on  the  level,  status  and 
effectiveness  of cooperative activities undertaken under this Agreement 

A*\ 

3. 

The  Joint  Science and  Technology  Cooperation  Committee  shall  endeavour  to 
meet once a year, with such annual meetings being held alternately in Europe and 
Australia.  Other meetings may be held as mutually determined. 

Decisions of the Joint Science and Technology Cooperation  Committee 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 
by those persons selected from each side to jointly chair  the meeting, and shall, 
together  with  the  annual  report,  be  available  to  the  next  bilateral  Ministerial 
meeting between Australia and the Community. 

ARTIOUE6 
Dissemination and utilization of  information 

The  dissemination  and  utilization  of  information,  and  management,  allocation  and 
exercise  of  intellectual  property  rights,  resulting  from  joint  research  under  this 
Agreement, shall be subject to the principles set out  in the Annex to this Agreement. 

ARTICLE 7 
Funding 

1. 

2. 

3. 

Cooperative  activities  shall  be  subject  to  the  availability  of  funds  and  to  the 
applicable  laws and  regulations, policies and  programmes  of  Australia  and  the 
Community. 

Costs incurred by participants in cooperative activities subject  to this Agreement 
shall not require any transfer  of funds  from  one Party to the other. 

Costs incurred by or on behalf of the Joint Science and Technology Cooperation 
Committee  shall  be  met  by  the  Party  to  whom  the  members  are  responsible. 
Costs, other than those of travel and accommodation, which are directly associated 
with meetings of the Joint Science and Technology Cooperation Committee, shall 
be met by the host Party. 

Ah 

ARTICLE 8 
Entry of personnel and equipment 

Each Party shall take all reasonable steps and use its best efforts to facilitate entry to and 
exit from its territory of personnel, material and equipment of the other Party engaged 
in or used in cooperative activities under this Agreement 

ARTICLE 9 
Other Agreements 

This Agreement is without prejudice to cooperation which may be undertaken pursuant 
to other Agreements or arrangements between the Parties. 

ARTIOJE 10 
Territorial application of this Agreement 

This  Agreement  shall  apply,  on  the  one  hand,  to  the  territories  in  which  the  Treaty 
establishing the European Economic Community is applied and under the conditions laid 
down in that Treaty and, on the other hand, to the territory of  Australia. 

ARTICLE 11 
Entry into force and termination 

This Agreement shall enter into force on the date on which the Parties shall have 
1. 
notified each other in writing that their legal requirements for the entry into force of this 
Agreement have been  fulfilled. 

2. 
The Agreement  may be amended or extended by agreement of the Parties. 
Amendments or extensions shall enter into force on the date on which the Parties shall 
have notified  each other  in writing that their  legal requirements  have been  fulfilled. 

3. 
This  Agreement  may  be  terminated  at  any  time  by  either  Party  upon  twelve 
months written notice.  The expiration or termination of this Agreement shall not  affect 
the validity or duration of any arrangements made under it, or the rights and obligations 
established  pursuant  to the Annex to this Agreement. 

13 

ARTICIJE12 

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

IN WITNESS WHEREOF the undersigned have signed this Agreement 

DONE AT 

, this day of 

, One thousand nine hundred and ninety-

FOR 
AUSTRALIA: 

FOR THE EUROPEAN ECONOMIC 
COMMUNITY: 

AU 

ANNEX ON THE 

DISSEMINATION AND UTILIZATION OF INFORMATION AND 
MANAGEMENT, AI LOCATION AND EXERCISE 
OF INTELLECTUAL PROPERTY RIGHTS 

I. 

OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS 

1. 

2. 

All research carried out pursuant to this Agreement shall be "joint research". The 
participants shall jointly develop joint technology management plans (TMPs)1 in 
respect  of  the  ownership  and  use,  including  publication,  of  information  and 
Intellectual Property (IP) to be created in the course of joint research.  Those 
plans  shall  be  approved  by the  Parties  before  the  conclusion  of  any  specific 
research and development cooperation contracts to which they refer.  The TMPs 
shall be developed taking into account the aims of the joint research, the relative 
contributions of the participants, the advantages and disadvantages of licensing by 
territory or for fields of use, requirements  imposed by applicable laws, dispute 
settlement procedures, and other factors deemed appropriate by the participants. 
The  rights  and  obligations  concerning  the  research  generated  by  visiting 
researchers in respect of IP shall also be addressed in the TMPs. 

Information or IP created in the course of joint research and not addressed in the 
TMP  shall  be  allocated,  with  the  approval  of  the  Parties,  according  to  the 
principles  set  out  in  the  TMP,  including  dispute  resolution. 
In  case  of 
disagreement which for sound reasons cannot be resolved by the agreed dispute 
settlement  procedure,  the  dispute  may  be  referred  to  the  Joint  Science  and 
Technology Cooperation Committee which shall endeavour to mediate between 
the  participants.  If,  having  exhausted  the  procedures  described  above,  the 
disagreement continues, such information or IP shall be owned jointly by all the 
participants  involved  in  the joint  research from which  the  information  or  IP 
results.  Each participant to whom this provision applies shall have the right to use 
such information or IP for his own commercial exploitation with no geographical 
limitation. 

3. 

Each Party shall ensure that the other  Party and its participants  may have the 
rights to IP allocated in accordance with the principles set out in Section I of this 
Annex. 

The indicative features of such TMPs are set out in the Appendix. 

AS 

While  maintaining  the  conditions  of  competition  in  areas  affected  by  the 
Agreement  each  Party shaii endeavour  to ensure that rights acquired  pursuant  to 
this Agreement  and  arrangements  made  under  it  are  exercised  in  such  a way  as 
to  encourage  in  particular: 

(i) 

the  dissemination  and  use  of  information  created,  disclosed,  or  otherwise 
made  available, under  the  Agreement;  and 

(il) 

the  adoption  and  implementation  of  international  standards. 

IL 

COPYRIGHT  WORKS 

Copyright  belonging  to  the  Parties  or  to  their  participants  shall  be  accorded 
treatment  consistent  with  the  Berne  Convention (Paris Act  1971). 

III. 

SCIENTIFIC LITERARY  WORKS 

Subject to Section  IV, unless otherwise  agreed  in the TMP. publication  of  results 
of  research  shall  be  made  jointly  by  the  Parties  or  participants  to  that  joint 
research.  Subject  to  this general  role,  the  following  procedures  shall  apply: 

1. 

2. 

3. 

In  the  case  of  publication  by  a  Party  or  public  bodies  of  that  Party  of 
scientific and technical journals, articles, reports, books, including video and 
software, arising from joint research pursuant to this Agreement, the  other 
Party  shall be  entitled  to  a worldwide,  non-exclusive,  irrevocable,  royalty-
free  licence to translate, reproduce, adapt,  transmit and  publicly distribute 
such  works. 

The Parties shall ensure that literary works of a scientific  character  arising 
from  joint  research  pursant 
this  Agreement  and  published  by 
to 
independent  publishers  shall be  disseminated  as widely  as  possible. 

All  copies  of  a  copyright  work  to  be  publicly  distributed  and  prepared 
under  this  provision  shall  indicate  the  names  of  the  author  or authors  of 
the work  unless an  author or  authors expressly  declines  or  decline  to  be 
named.  Copies  shall  also  bear a clearly  visible  acknowledgement  of  the 
cooperative  support of  the  Parties. 

A6 

IV.  UNDISCLOSED INFORMATION 

A 

Documentary  undisclosed  information 

1. 

Each Party or its participants, as appropriate, shall identity at the earliest possible 
moment  and  preferably  in  the  TMP  the  information  that  it  wishes  to  remain 
undisclosed in relation to this Agreement, taking into account, among other things, 
the following  criteria: 

(i) 

(ii) 

(iii) 

secrecy of  the  information  in the sense that  the  information  is not, as  a 
body  or  in  the  precise  configuration  or  assembly  of  its  components, 
generally known among or readily accessible by lawful means to experts in 
the field; 

the actual or potential commercial value of the information by virtue of its 
secrecy; and 

previous protection of the information  in the sense that it has been subject 
to  steps  that  were  reasonable  under  the  circumstances  by  the  person 
lawfully  in control, to maintain its secrecy. 

The Parties and the participants may in certain cases agree that, unless otherwise 
indicated,  parts  or all of the  information  provided, exchanged  or  created  in  the 
course of joint research pursuant to this Agreement may not be  disclosed. 

2. 

3. 

4. 

Each Party shall ensure that undisclosed  information  under this Agreement  and 
its privileged nature is readily recognizable as such by the other Party, for example 
by means of an appropriate marking or restrictive legend.  This also applies to any 
reproduction  of the said information,  in whole or  in part. 

A  Party  receiving  undisclosed  information  pursuant  to  this  Agreement  shall 
respect its privileged nature. These limitations shall automatically terminate when 
this  information  is disclosed  by the  owner  without  restriction  to  experts  in  the 
field. 

information  communicated  under 

this  Agreement  may  be 
Undisclosed 
disseminated by the receiving Party to persons within or employed by the receiving 
Party,  and  other  concerned  departments  or  agencies  in  the  receiving  Party 
authorised for the specific purposes of the joint research under way, provided that 
any  such  undisclosed  information  shall  be  disseminated  only  on  conditions  of 
confidentiality  and shall be readily recognizable as such, as set out above. 

-H 

5.  With the  prior written  consent  of  the  Party providing  undisclosed  information 
under  this  Agreement,  the  receiving  Party  may  disseminate  such  undisclosed 
information  more  widely  than  otherwise  permitted  in  Paragraph  4  above. 
TheParties shall cooperate in developing procedures for requesting and obtaining 
prior written consent for such wider dissemination, and each Party shall grant such 
approval to the extent permitted by its domestic policies, regulations and laws. 

B. 

Non-documentary undisclosed information 

Non-documentary  undisclosed  or  other  confidential  or  privileged  information 
provided  in  seminars  and other  meetings  arranged  under  this  Agreement,  or 
information arising from the attachment of staff, use of facilities, or joint projects, 
shall be  treated by the Parties or their participants according to  the principles 
specified for documentary information in the Agreement, provided, however, that 
the recipient of such undisclosed or other confidential or privileged information 
has  been  made  aware  of  the  confidential  character  of  the  information 
communicated at the time such communication is made. 

C. 

Control 

Each Party shall endeavour to ensure that undisclosed information received by it 
under  this  Agreement  shall  be  controlled  as  provided  therein.  If  one  of  the 
Parties becomes aware that it will be, or may reasonably be expected to become, 
unable to meet the non-dissemination provisions of Subsections A or B above, it 
shall immediately inform the other Party.  The Parties shall thereafter consult to 
define an appropriate course of action. 

12 

APPENDIX 

Indicative features of a 
Technology Management Plan (TMP) 

The TMP is a specific  agreement to be concluded between the participants about the 
implementation  of  joint  research  and  the  respective  rights  and  obligations  of  the 
participants.  With respect to IP, the TMP will normally address, among other things, 
ownership, protection, user rights for research and development purposes, exploitation 
and dissemination, including arrangements for joint publication, the rights and obligations 
of visiting researchers and dispute settlement procedures.  The TMP may also address 
foreground and background information, licensing and deliverables. 

«12 

ISSN 0254-1475 

COM(93) 269 final 

DOCUMENTS 

EN 

11 15 

Catalogue number : CB-CO-93-299-EN-C 

ISBN 92-77-56675-2 

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