1999/66/Euratom: Council Decision of 22 December 1998 concerning the rules for the participation of undertakings, research centres and universities in the implementation of the fifth framework programme of the European Atomic Energy Community (Euratom) (1998-2002)
Date: 1998-12-22
Institutions: Council of the European Union
Subjects: EAEC, research body, research programme, shareholding, type of business, university

L  26/56

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1.2.1999

COUNCIL  DECISION

of  22  December  1998

concerning  the  rules  for  the  participation  of  undertakings,  research  centres  and  universities  in
the  implementation  of  the  fifth  framework  programme  of  the  European  Atomic  Energy
Community  (Euratom)  (1998-2002)

(1999/66/Euratom)

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 (1),

Having  regard 
Parliament (2),

to 

the  opinion  of 

the  European

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

(1)  Whereas  the  fifth  framework  programme  of  the
European  Atomic  Energy  Community  (Euratom)
for  research  and  training  activities  (1998-2002)
(hereinafter  referred  to  as  ‘the  fifth  framework
programme’)  was  adopted  by  Council  Decision
1999/64/Euratom (4); 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 in research and technological activities,
including  demonstration  activities,  and  training
activities, hereinafter referred to as ‘indirect RTDT
actions’;

(2)  Whereas  the  new  provisions  should  be  part  of  a

complete,  coherent  and  transparent  framework;

(3)  Whereas 

the  rules 

the  participation  of
for 
undertakings,  research  centres  and  universities
must  be  adapted  to  the  nature  of  the  indirect
RTDT  actions;  whereas  moreover,  they  may  vary
depending on whether the participant is based in a
Member State, an Associated State or a third State
and  on  its  legal  structure;

(4)  Whereas  the  participation  of  legal  entities  of  third
States  should  be  envisaged,  including  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  accordingly
enjoy  genuine  access  to  the  research  programmes
of  the  third  State  concerned;

(5)  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;

(6)  Whereas  the  rules  should  be  applied  in  a  simple
and  efficient  manner  so  as  to  minimise  the
administrative and financial burden on participants
and  the  Commission,  particularly  with  respect  to
the  time  taken  to  prepare  proposals,  conclude
contract  negotiations  and  make  reimbursements;

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

(8)  Whereas  research  and 

technological  activities,
including  demonstration  activities,  and  training
activities  should  be  carried  out  in  accordance  with
the  principles  of  sound  financial  management;

(1)  OJ  C  40,  7.2.1998,  p.  14.
(2)  OJ  C  195,  22.6.1998,  p.  27.
(3)  OJ  C  214,  10.7.1998,  p.  51.
(4)  See  page  34  of  this  Official  Journal.

(9)  Whereas,  to  the  extent  necessary  for  achieving  its
objectives,  the  research  and  training  programme
may  set  out  in  greater  detail  or  supplement  the
rules for the participation of undertakings, research
centres  and  universities;

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

(d) ‘third State’ means a State which is neither a Member

State  nor  an  Associated  State;

(11)  Whereas, in order to ensure coherence between the
activities  carried  out  under  the  fifth  framework
programme  and  those  undertaken  pursuant  to
Decision  No  182/1999/EC  of 
the  European
Parliament  and  the  Council  of  22  December  1998
concerning  the  fifth  framework  programme  of  the
European  Community  for  research,  technological
development 
activities
(1998-2002) (1), 
and  Council
Decision  1999/65/EC  of  22  December  1998
concerning  the  rules  for  the  participation  of
undertakings,  research  centres  and  universities  and
for  the  dissemination  of  research  results  for  the
framework
implementation 
programme (2),  should  be  adopted  simultaneously
and  for  the  same  period,

this  Decision 

demonstration 

fifth 

and 

the 

of 

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  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  in  such  actions  under  the  conditions
laid  down  in  Article  6;

agreement 

(c)  ‘Associated  State’  means  a  State  which  is  party  to  an
the
international 
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 
to
cooperation  in  research  and  training;

concluded  with 

agreement 

relates 

said 

(e) ‘legal entity’ means:

—  any  natural  person,  or

—  any 

legal  person,  provided  that 

it  has  been
established  under  Community 
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;

law  or 

(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 RTD results’ means any legal entity,
any  international  organisation  or  the  JRC  which,  by
its  needs  and  capabilities  —  whether
virtue  of 
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  AND
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 
international
organisations  and  of  the  JRC  in  indirect  RTDT  actions.

entities 

legal 

and 

S e c t i o n   1

Conditions  for  participation  and  financing

Article  3

Number  of  participants  in  indirect  RTDT  actions

(1)  See  page  1  of  this  Official  Journal.
(2)  See  page  46  of  this  Official  Journal.

1.

Indirect  RTDT  actions  shall  be  carried  out  by:

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(a)  at 

least  two  mutually 

legal  entities
established  in  two  different  Member  States  or  in  a
Member  State  and  an  Associated  State;  or

independent 

(b) at least one legal entity established in a Member State

or  in  an  Associated  State  and  the  JRC;  or

(c)  one or several 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  (a)  or  (b).

2. Exceptionally, where the nature of the indirect RTDT
action  or  activity  to  be  undertaken  requires  it  to  be
carried out by a single participant, it must be carried out
by:

(a)  a  legal  entity  established  in  a  Member  State,  in  an

Associated  State  or  in  a  third  State;  or

(b) an  international  organisation;  or

(c)  the  JRC.

Article  4

Conditions  for  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  RTD
actions  and  receive  funding  from  the  fifth  framework
programme,  provided  that:

—  it  is  carrying  out  or  is  about  to  carry  out  an  RTDT

activity, or

—  it  contributes  to  the  dissemination  and  use  of  results

of  RTDT  activities,  or

—  it  is  a  potential  user  of  RTDT  results,  or

—  in  the  case  of  thematic  networks  and  concerted
actions,  it  is  in  a  position  to  contribute  substantial
added  value  to  the  quality  of  work  to  be  undertaken
by  virtue  of  its  knowledge  of  the  relevant  area  of
research.

2. The conditions set out in paragraph 1 do not apply in
case  of  accompanying  measures,  where  the  legal  entity
has  the  necessary  technical  know-how  to  carry  out  the
indirect  RTDT  action  in  question.

3. Where  the  purpose  of  the  indirect  RTDT  action
concerned  so  permits,  any  legal  entity  referred  to  in
paragraphs 1 and 2 must carry out the major part of the
work  within  the  Member  States  or  Associated  States.

Article  5

Conditions  for  legal  entities  from  third  States  and  for
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 in conformity with the interests of
the  Community  and  without  financing  from  the  fifth
framework  programme,  provided  that:

(a)  the  number  of  participations  in  the  proposal  for  an
indirect RTDT action is in accordance with Article 3;
and

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

This  shall  not  apply  to  training  fellowships  as  defined  in
Annex  III  to  the  fifth  framework  programme.

property 

2. Where  necessary  to  provide  access  to  high-quality
programmes  in  a  third  State  and/or  to  ensure  suitable
intellectual 
arrangements,
rights 
participation  of  legal  entities  established  in  that  third
State  is  subject  to  the  conclusion  of  an  international
agreement  between  the  Community  and  the  third  State
concerned. Where such an agreement exists, participation
is  additionally  subject  to  the  principles,  conditions  and
limits  laid  down  therein.

(IPR) 

3. Any legal entity established in the central and eastern
European  States  or  the  new  independent  States  which
meets  the  conditions  laid  down  in  paragraph  1  may
participate  with  financing  from  the  fifth  framework
programme  in  the  area  of  nuclear  fission,  provided  that
the  financing  is  duly  justified  on  the  grounds  that  the
participation  makes  an  essential  contribution  to  the
objectives  of  the  programme  which  cannot  be  provided
by  other  means.

Community  financing  will  be  provided  only  for  the
training
the 
activities 
programme  and  under  the  conditions  laid  down  therein.

research  and 

specified 

in 

This  shall  not  apply  to  training  fellowships  as  defined  in
Annex  III  to  the  fifth  framework  programme.

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,

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—  the financing is duly justified as being essential for
achieving  the  objectives  of  the  indirect  RTD
action  in  question,  and

the  Official  Journal  of  the  European  Communities  and
should  also  be  disseminated  through  other  appropriate
channels.

—  where  any  basic  facility  is  to  be  used  which  is
located  in  a  third  State,  it  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  JRC

Subject  to  the  internal  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,  demonstrate  that  it  will
have  all  the  necessary  resources  as  and  when  needed
for  carrying  it  out.

2. The  resources  needed  for  carrying  out  the  indirect
resources,
RTDT 
infrastructure, 
and,  where
appropriate,  intangible  property.

comprise  human 
resources 

shall 
financial 

action 

S e c t i o n   2

Procedures

Article  8

to 

actions 

relating 

Indirect  RTDT 
controlled
thermonuclear fusion and carried out under the contracts
of  the  Association,  the  Net  Agreement,  the  quadripartite
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
Joint  European  Torus 
Undertaking  and  any  other  agreement  concluded  by  the
Community  shall  comply  with  the  procedures  laid  down
in  those  agreements.

(JET) 

2. Accompanying  measures  shall,  as  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 

for  appointment  as  an
independent  expert  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 independent
highly  qualified  experts  appointed  for  the  five-year
evaluation  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 as set out in the research and training programme
decision.

shall  keep 

4. Subject  to  legal  constraints  and  the  need  to  respect
requirements  of  transparency  and  equal  treatment,  the
Commission 
the
submission,  selection  and  adoption  of  proposals  as  short
as  reasonably  achievable  and  keep  the  administrative
costs  of  the  applicants  and  of  the  Commission  to  the
minimum level necessary.

the  procedures 

for 

Article  9

Procedures  to  be  applied

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

1.
Indirect  RTDT  actions  other  than  accompanying
measures shall be the subject of calls for proposals. These
may  be  preceded  by  a  call  for  expressions  of  interest  of
an informative nature. All such calls shall be published in

1. Proposals  for  indirect  RTDT  actions  resulting  from
calls  for  proposals  and  pilot  schemes  shall  be  selected  in
conformity  with  Annex  I  to  the  fifth  framework

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programme  on 
for
participation  set  out  in  Articles  3  to  7  and  the  following
criteria:

the  conditions 

the  basis  of 

(a)  scientific excellence;

(b) Community  added  value;

(c)  the  potential  contribution  to  furthering  the  economic

and  social  objectives  of  the  Community;

(d) the  innovative  nature  of  the  proposal  for  an  indirect

RTDT  action;

(e)  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;

(f)  effective  transnational  cooperation;

(g)  effective  and  efficient  management;

(h) any  additional  criteria  set  out  in  the  research  and

training programme.

These  criteria  shall  be  applied  in  accordance  with  the
category of indirect RTDT action and with the nature of
the  RTDT  activity.

Any  project  which  contravenes  the  principles  laid  down
in relevant international conventions and regulations shall
not  be  selected.

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.

2. 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.

S e c t i o n   3

Contracts

Article  10

Community  financial  participation  and  eligible  costs

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

2. A  cost  relating  to  an  indirect  RTDT  action  shall  be
eligible  where  it  is  necessary  for  the  action  in  question

is  provided  for 

and 
in  the  contract.  It  shall  be
reimbursable  by  payment  within  a  reasonable  period
provided that the amount has actually been spent and has
been  recorded  in  the  accounts  or  the  tax  documents.

In  the  appropriate  circumstances,  provisions  should  be
made  for  advance  payments.

3.
In  the  case  of  the  research  projects,  demonstration
projects  and  combined  research/demonstration  projects,
recourse shall be had to additional eligible costs where, in
the  view  of  the  Commission,  the  system  of  accounting
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.

4. Total  eligible  costs  will  be  reimbursed  by  payments
against  justification  of  the  actual  costs  of  the  indirect
RTDT  action  concerned.  The  documents  substantiating
these  costs  must  be  satisfactory.  However,  at  the  request
of those taking part in the proposal for an indirect RTDT
action,  general  expenses  may  instead  be  calculated  on  a
flat-rate  basis  by  agreement  with  the  Commission.

At the request of those taking part in the proposal for an
indirect  RTDT  action  and  by  agreement  with  the
Commission,  the  contract  can  establish  other  conditions:

(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, 
demonstration 
contractually agreed objectives;

fixed  amounts 
efforts 

best 

of 

linked 
to 

to 

the
complete

(c)  other arrangements involving flat- and composite-rate

payments  appropriate  to  specific  projects.

5. Additional eligible costs, as referred to in Annex III to
the  fifth  framework  programme,  shall  comprise  the
following:

—  the  additional  eligible  costs  generated  simply  by

taking  part  in  the  indirect  RTDT  action,

—  a  flat-rate  contribution  to  the  general  expenses.

Article  11

Contracts

for 

1. Proposals 
selected
following any of the procedures set out in Article 8 shall
be  subject  of  a  contract.

indirect  RTDT  actions 

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2. Contracts  will  be  based  on  the  relevant  model
contract  drawn  up  by  the  Commission  in  consultation
with  Member  States,  taking  account,  where  appropriate,
of  the  different  RTDT  activities  involved.

Article  14

Reports

CHAPTER  III

FINAL  PROVISIONS

Article  12

Provisions  which  may  be  laid  down  in  the  research  and
training programme

1. The  rules  for  the  participation  of  undertakings,
research centres and universities may be set out in greater
detail  or  supplemented  in  the  Council  Decision  adopting
the  research  and  training  programme  implementing  the
fifth  framework  programme.

2. Paragraph  1  shall  not  apply  in  the  case  of  the
definitions set out in Article 1 or the training fellowships
referred  to  in  Article  5(1),  second  subparagraph,  and
Article  5(3),  third  subparagraph.

Article  13

Detailed  rules  of  application

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

1. 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 
implementation  of  this
Decision.

information  on  the 

2. Before the end of the fifth framework programme the
Commission  shall  present  a  report  to  the  Council  on  the
application  of  this  Decision.

Article  15

Duration

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

Done  at  Brussels,  22  December  1998.

For  the  Council

The  President

C.EINEM