Commission Regulation (EC) No 996/1999 of 11 May 1999 on the implementation of Council Decision 1999/65/EC concerning the rules for the participation of undertakings, research centres and universities and for the dissemination of research results for the implementation of the fifth framework programme of the European Community (1998-2002)
Date: 1999-05-11
Institutions: European Commission
Subjects: dissemination of information, research body, research programme, shareholding, type of business, university

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COMMISSION REGULATION (EC) No 996/1999

of 11 May 1999

on the implementation of Council Decision 1999/65/EC concerning the rules for
the participation of undertakings, research centres and universities and for the
dissemination of research results for the implementation of the fifth framework
programme of the European Community (1998-2002)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to 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 implementa-
tion of the fifth framework programme of the European
Community (1998-2002) (1), and in particular Article 22
thereof,

(1) Whereas the fifth framework programme of the
European Community for research, technological
development and demonstration activities (1998-
(hereinafter referred to as the ‘fifth frame-
2002)
work programme') was adopted by Decision No
182/1999/EC of the European Parliament and of
the Council (2); whereas, detailed rules must be laid
down for the implementation of the rules regarding
the rules
participation in the actions and of
governing the dissemination of research results laid
down by Decision 1999/65/EC;

(2) Whereas participation in indirect

research and
technological development (RTD) actions requires
the concept of participant to be defined taking into
account,
in particular, the capacity in which he
takes part in a project and his rights and obliga-
tions;

(3) Whereas,

in order to ensure that indirect RTD
actions to be undertaken under the fifth framework
the
programme have a European dimension,
application of the rules for the participation of
undertakings,
research centres and universities
should place the emphasis on the requirement for
several participants and on the transnational nature
of the projects;

(4) Whereas the particular nature of the indirect RTD
action or the RTD activity to be undertaken may
justify making exceptions to those principles;

Council Regulation (EEC) No 2137/85 (3) should be
able to take part on their own in indirect RTD
actions requiring several participants;

(6) Whereas the Commission must be able to ensure
that
the participants will have the necessary
resources, of whatever kind, to carry out indirect
RTD actions; whereas, in order to safeguard the
Community’s financial interests and avoid obstacles
to such actions being carried out, the Commission
must also be informed of
the importance and
origin of such resources, and of the conditions of
their availability;

(7) Whereas the Community’s financial participation
compatible with competition rules,
must be
notably those of the Community framework for
State aid to research and development (4);

(8) Whereas the Community financial participation
should be paid to the participants against justifica-
tion of
the indirect RTD
action, although other more appropriate methods
may be used;

the eligible costs of

(9) Whereas,

as

regards

projects,

indirect RTD actions
consisting of research and technological develop-
and
demonstration
ment
combined RTD/demonstration projects, the parti-
cipants
their
should charge total costs unless
accounting system allows only additional costs to
be charged;

projects

(10) Whereas, with a view to promoting innovation,
reimbursement should be allowed with respect to
certain costs of protecting knowledge and of meas-
ures to demonstrate its potential for use, in compli-
ance with the rules of the Community framework
for State aid for research and development;

(5) Whereas, in view of their essentially transnational
and European dimension, European Economic
Interest Groupings (EEIG) within the meaning of

(11) Whereas the costs of coordinating a project can be
significant and it should be possible to charge
them where they are borne by the project co-
ordinator;

(1) OJ L 26, 1.2.1999, p. 46.
(2) OJ L 26, 1.2.1999, p. 1.

(3) OJ L 199, 31.7.1985, p. 1.
(4) OJ C 83, 11.4.1986, p. 2.

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(12) Whereas provision should be made for charging
overheads on a flat-rate basis, particularly with a
view to encouraging a transition towards
the
charging of total costs;

(13) Whereas contracts may provide for payment of the
Community’s financial contribution in instalments;
whereas there may nevertheless be restrictions on
the possibility of the payment of an initial advance;

(14) Whereas the Community’s financial contribution
should be paid without prejudice to financial
controls carried out by or on behalf of
the
Commission or the Court of Auditors;

(15) Whereas the rules governing ownership, extent of
access rights and destination of knowledge depend,
as a rule, on how close the project is to the market;
whereas they should not be affected by exemptions
or reductions regarding the rate of the Community
financial participation referred to in Annex IV to
the fifth framework programme;

(16) Whereas, in order to encourage the participation of
small and medium-sized enterprises (SMEs) and to
achieve the objectives of cooperative research
projects, it should be possible for exceptions to be
made to the principle of the ownership of know-
ledge by the participants who carried out the work;

granted for

(17) Whereas, in order to ensure the use of knowledge,
it should be possible for exclusive access rights to
be
exploitation purposes, while
respecting the interests of the participants taking
part
in the same project and the applicable
competition rules, in particular those of Commis-
sion Regulation (EC) No 240/96 of 31 January
1996 on the application of Article 85(3) of the
Treaty to certain categories of technology transfer
agreements (1);

(18) Whereas Member States and Associated States must
be able to have access,
in accordance with the
conditions provided for in Decision 1999/65/EC,
to knowledge that is relevant to their policy ori-
entations, particularly with a view to prevent over-
laps in research activities;

(19) Whereas the technological

implementation plan
should be prepared in line with progress on the
work of the project; whereas it should be a deter-
mining element with a view to the use and dissem-
the
ination of knowledge in the interests of

(1) OJ L 31, 9.2.1996, p. 2.

the participants and international
Community,
the
agreements with the Community; whereas
implementation plan should be
technological
drawn up in such a manner as
to allow its
monitoring and to allow the conditions of exploita-
tion and the search for financial resources for
development to be facilitated;

(20) Whereas the measures provided for in this Regula-
tion are in accordance with the opinion of the
Committee set up by Article 23 of Decision 1999/
65/EC,

HAS ADOPTED THIS REGULATION:

PART I

GENERAL PROVISIONS

Article 1

This Regulation lays down the detailed rules for applying
Articles 4, 8, 11 and 14 to 20 of Decision 1999/65/EC.

Article 2

The definitions in Decision 1999/65/EC apply to

1.
this Regulation.

For the purposes of this Regulation, the following

2.
definitions shall apply:

(a)

(b)

(c)

(d)

‘participant': a legal entity or international organ-
isation, and the Joint Research Centre (JRC) under
the conditions provided for in Article 7 of Decision
1999/65/EC, taking part in a project as principal
contractor, assistant contractor, member, or grant
holder;

‘project': work to be carried out, under one or more
contracts, as part of an RTD action provided for in
the fifth framework programme;

‘contract': agreement between the Community and
one or more principal contractors and, as relevant,
assistant contractors, with the aim of carrying out or
contributing to a project;

‘principal contractor': a participant, other than an
assistant contractor, taking part in a project by virtue
of the conclusion of a contract and having the rights
and obligations provided for in this Regulation and
in the contract;

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(e)

(f)

contractor':

indirect RTD actions
for
‘assistant
consisting of research and technological development
projects, demonstration projects and combined RTD/
demonstration projects, a participant taking part in a
project by virtue of the conclusion of a contract,
acting under the technical supervision of one or more
principal contractors and having the same rights and
obligations as them, except as regards the scope of its
responsibility for
the project
pursuant to the contract and access rights;

the execution of

‘member':
for indirect RTD actions consisting of
research training networks, thematic networks and
accompanying measures with similar objectives, and
concerted actions, a participant
in a
project under a membership contract signed with a
principal contractor acting in agreement with the
Community and in accordance with the contract,
having the same rights and obligations pursuant to
the membership contract vis-(cid:133)-vis the Community as
the principal contractor except where otherwise
stipulated;

taking part

(g)

‘grant holder': a natural person taking part in an
indirect RTD action consisting of a grant, who either
concludes a contract with the Community or takes
part, by virtue of an agreement with a host institute,
in a contract concluded between the Community and
that host institute;

(h)

an agreement

‘subcontract':
to provide services,
supplies or goods between a principal contractor,
assistant contractor or member and one or more
subcontractors for the specific needs of the project
under the conditions provided for in the contract;

concluded with them, under indirect RTD actions
consisting of cooperative research projects;

(m)

‘consortium agreement': one or more agreements
between participants in a project, and, as the case
may be, RTD performers, which aims to specify or
supplement as between them the provisions of a
contract, but without coming into conflict with them;

(n)

‘European Economic Interest Grouping': any legal
entity formed under the conditions, by the proced-
ures and with the effects laid down by Regulation
(EEC) No 2137/85;

(o)

‘access rights': licences and rights to use knowledge
or pre-existing know-how;

(p)

‘favourable conditions': conditions more favourable
than market conditions owing to discounts of any
kind.

PART II

MODES OF PARTICIPATION OF UNDERTAKINGS,
IN
RESEARCH CENTRES AND UNIVERSITIES

INDIRECT RTD ACTIONS

CHAPTER I

Number of participants

Section 1

I n d i r e c t R T D a c t i o n s i n v o l v i n g s e v e r a l p a r t i -
c i p a n t s

(i)

‘subcontractor': a legal entity or international organ-
isation, or the JRC, which is a party to a subcontract;

Article 3

(j)

‘complementary contract': an agreement with the
Community covering work that is technically inter-
dependent with one or more projects, including for
the purpose of using knowledge, and accepted as
such by the participants in each contract;

(k)

‘complementary contractor': a legal entity or inter-
national organisation, or the JRC under the condi-
tions provided for in Article 7 of Decision 1999/65/
EC, which is a party to a complementary contract
and is accepted as such by the participants in each
contract;

(l)

‘RTD performer': a legal entity or
international
organisation, or the JRC, carrying out RTD work on
behalf of participants, and by virtue of an agreement

The following indirect RTD actions shall involve
1.
several participants,
two principal
including at
contractors required to satisfy the conditions laid down in
Article 4(1) of Decision 1999/65/EC:

least

(a) research and technological development projects;

(b) demonstration projects;

(c) combined RTD/demonstration projects;

(d) technology stimulation projects for SMEs, consisting

of exploratory awards.

Indirect RTD actions consisting of cooperative
2.
research projects, as part of
technology stimulation
projects for SMEs, shall be carried out by at least three
SMEs participating as principal contractors and satisfying
the conditions laid down in Decision 1999/65/EC,
in
particular Article 4(1) thereof.

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An EEIG is, by its nature, regarded as satisfying the
3.
conditions of Article 4(1) of Decision 1999/65/EC and
may therefore be a sole principal contractor
in the
indirect RTD actions referred to in paragraph 1 of this
Article. The same applies in the case of indirect RTD
actions
referred to in paragraph 2 when the EEIG
comprises at least three SMEs.

its members, however,

Where an EEIG merely coordinates and organises the
the conditions of
activities of
Article 4(1) of Decision 1999/65/EC must be satisfied by
those of its members which actually carry out the research
on its behalf under the project.

Section 2

I n d i r e c t R T D a c t i o n s w h i c h m a y i n v o l v e

a

s i n g l e p a r t i c i p a n t

Article 6

Indirect RTD actions consisting of accompanying meas-
ures, grants and support for access to research infrastruc-
tures may be carried out by a single principal contractor
or grant-holder who must satisfy the conditions laid down
in Article 4(2) of Decision 1999/65/EC.

Article 4

Conditions applicable to resources

CHAPTER II

The following indirect RTD actions shall involve several
participants, including at least two principal contractors
or one principal contractor and one member satisfying
the conditions of Article 4(1) of Decision 1999/65/EC:

(a) research training networks;

(b) thematic networks;

(c) concerted actions.

Article 5

1.
Two legal entities are independent of one another
within the meaning of Article 4(1) of Decision 1999/
65/EC where there is no controlling relationship between
them.

A controlling relationship exists where one legal entity
directly or indirectly controls the other or one legal entity
is under the same direct or indirect control as the other.

Control may result in particular from:

(a) direct or indirect holding of a majority of share capital
in a legal entity or a majority of voting rights of the
shareholders or associates of that entity;

Article 7

The resources referred to in Article 8(2) of Decision 1999/
65/EC shall be assessed according to and as far as is
necessary for the execution of the indirect RTD action
and with regard to the nature of the work to be carried
out.

Article 8

The resources needed to carry out
the indirect RTD
action include the participants’ own resources and,
without prejudice to Article 12(3), second subparagraph,
resources made available to them by third parties by
virtue of a prior commitment.

Article 9

1.
Participants must be able to demonstrate, when
submitting a proposal for an indirect RTD action, that
they have or will have the resources needed to carry out
the indirect RTD action, and in particular to specify the
origin of those resources and the terms on which they
will have access to them.

Participants must have at their disposal the resources

2.
needed to carry out the work as it progresses.

CHAPTER III

(b) direct or indirect holding in fact or in law of decision-

making powers in a legal entity.

Community financial participation and eligible
costs

2. Direct or indirect holding of a majority of share
capital in a legal entity or a majority of voting rights of
the shareholders or associates of such entity by public
investment
or
venture-capital companies and funds does not in itself
constitute a controlling relationship.

corporations,

institutional

investors

Section 1

G e n e r a l p r i n c i p l e s

Article 10

3. Ownership or supervision of legal entities by the
same public body does not in itself generate a controlling
relationship between them.

The Community’s financial participation under the
1.
fifth framework programme shall consist of a partial or
full refund of the participants’ eligible costs as defined by
Article 11(2) of Decision 1999/65/EC.

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Contracts shall stipulate that the Community’s financial
participation may not exceed a certain amount.

2. Where appropriate, contracts may provide for a
Community financial participation under the fifth frame-
work programme in the form of preset amounts, amounts
calculated on the basis of flat rates, or an assessment of
the estimated costs, notably in the following cases:

Participants in indirect RTD actions shall charge
2.
additional eligible costs to the Commission when Annex
IV to the fifth framework programme expressly provides
for that principle, namely in the case of the following
actions:

(a) support for access to research infrastructures;

(b) training grants;

(a) projects for which the Community’s financial contri-

bution is less than or equal to EUR 100 000;

(c) research training networks;

(b) projects involving payments linked to the demonstra-
tion of best efforts to complete contractually agreed
objectives;

(c) projects consisting of grants and accompanying meas-
ures covered by invitations to apply as independent
experts.

3. Where the participants have so agreed among them-
selves and with the Commission, and where appropriate,
contracts may provide for payments based on composite
rates, provided that those rates do not significantly differ
from the actual costs of each participant.

Section 2

C h a r g i n g o f

t o t a l o r a d d i t i o n a l e l i g i b l e c o s t s

Article 11

(d) thematic networks;

(e) concerted actions.

Section 3

E l i g i b l e c o s t c a t e g o r i e s

Article 12

According to the indirect RTD action, the eligible

1.
costs categories shall include:

(a) personnel;

(b) durable equipment;

(c) consumables;

(d) travel and subsistence;

1. Without prejudice to Article 14(1), participants in
indirect RTD actions shall charge total eligible costs to
the Commission in the case of the following actions:

(e) computing;

(f) subcontracting;

(a) RTD projects;

(g) protection of knowledge and measures to demonstrate

the potential for use of knowledge;

(b) demonstration projects;

(h) other specific costs;

(c) combined RTD/demonstration projects;

(i) overheads.

(d) cooperative research projects;

(e) exploratory awards;

(f) accompanying measures.

2.
The coordination costs of the principal contractor
coordinating a project may be charged either under one
or more of the cost categories mentioned in paragraph
1(a) to (e), (g) and (h), under the conditions laid down in
the contracts, or as overheads as referred to in paragraph 1
(i). They must appear as such in the cost statements.

Participants in indirect RTD actions shall, in compliance
with Annex IV to the fifth framework programme, charge
additional eligible costs to the Commission where, in the
Commission’s view,
the participants do not have an
accounting system that allows the share of their direct and
indirect costs relating to the project to be distinguished.

The costs of coordinating indirect RTD actions consisting
of cooperative research projects may however be charged
under paragraph 1(f) where none of the principal con-
tractors referred to in Article 3(2) is in a position to act as
coordinator.

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3. One cost incurred by a participant may be charged
to only one of the eligible cost categories set out in
paragraph 1.

Computing costs shall comprise the costs arising out
6.
of the use of the participant’s computer services and
media.

No cost shall be charged in connection with resources
being made available to a participant free of charge.

Article 13

1. Without prejudice
special provisions
to
contained in the specific programmes and in the
contracts, eligible costs other than the overheads referred
to in Article 14 shall be charged in accordance with the
rules laid down in paragraphs 2 to 9.

any

2.
Personnel costs shall be charged on the basis of the
time actually spent on the project by the personnel
directly hired by a participant, within the limits and
under the terms laid down in the contract. They shall
include the participant’s expenses for
taking on the
personnel,
remuneration and related
including their
charges.

Contracts may allow a participant to charge average costs
provided that they are established in accordance with its
usual practices and do not differ significantly from actual
costs.

For a participant charging additional eligible costs within
the meaning of Article 11(1), second subparagraph, except
in specific cases provided for in the specific programme,
personnel costs shall comprise the costs generated by the
sole participation in the indirect RTD action, and shall
not include costs which have to be borne irrespective of
whether the participant takes part.

The refundable amount of durable equipment costs
3.
shall depend, except in specific cases provided for in the
specific programme, on the life of the equipment and the
extent to which it is used for the needs of the project, in
accordance with the conditions laid down in the contract.

Consumables

cover only materials
4.
purchased specifically for
the project,
including software licences, where justified by its purpose.

the needs of

costs

shall

7.
in an
The subcontracting costs of a participant
indirect RTD action shall comprise the price paid to the
subcontractor, RTD performer or service provider, and
must be in line with market prices.

8.
The costs of protecting knowledge and of measures
to demonstrate the potential for use of knowledge shall
exclude the costs of obtaining the access rights referred to
in Articles 26 to 35 and the costs of creating and
marketing a product or process and the costs of creating
and providing a service. Without prejudice to competition
rules, they shall be refundable only with the Commis-
sion’s written consent.

The other specific costs are those necessary for an
9.
indirect RTD action and different in nature from those
set out in paragraphs 2 to 8 of this Article and in Article
14. They shall be refundable only with the Commission’s
in particular, direct
written consent and may include,
costs incurred in the setting-up of financial guarantees
requested by the Commission with a view to the payment
of an initial advance.

Article 14

1.
Participants in an indirect RTD action charging
total eligible costs may charge overheads either on an
actual-cost basis and in compliance with the contracts,
provided that the supporting documents are acceptable to
the Commission, or on a flat-rate basis.

Flat-rate overheads shall amount to 80 % of the costs of
the participants’ personnel for research and technological
development projects, demonstration projects, combined
RTD/demonstration projects and cooperative research
projects. For the other categories of indirect RTD actions,
contracts may provide for other percentages where applic-
able. For certain accompanying measures, the contract
may provide that overheads may not be refunded.

5.
The refunding of travel and subsistence costs shall
require the prior approval of the Community for any
destination outside the territory of the Member States, the
Associated States or a third country in which a participant
in the same project is established, unless such a destina-
tion is provided for in the contract.

2. Where the participants in an indirect RTD action
charge additional eligible costs within the meaning of
Article 11, overheads shall, except where the contract
provides otherwise, amount
their costs,
excluding subcontracting costs.

to 20 % of

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Section 4

P a y m e n t o f

t h e c o m m u n i t y c o n t r i b u t i o n

Article 15

1.
The Community contribution shall be paid under
the conditions provided for in the contracts and may
include several provisional payments in accordance with
the rules laid down in paragraphs 2 and 3.

2.
To speed up or facilitate the start of the work, the
Commission pays an initial advance which amounts to
40 % of the maximum contribution referred to in Article
10(1), second subparagraph.

The rate of the advance may, however, be reduced in
accordance with the requirement of protecting the
Community’s financial interests.

It may also be reduced where there is a significant differ-
ence between the needs the advance would cover during
the first year of the project and the real needs for the
same period.

The cumulative amount of the initial advance and the
successive provisional payments may not exceed 85 % of
the maximum contribution referred to in the Article
10(1), second subparagraph.

of

In the framework of

the indirect RTD actions
3.
consisting
and grants,
accompanying measures
contracts may provide for the payment of an initial
advance and specify its maximum amount and the
maximum amount of all the provisional payments.

Section 5

F i n a n c i a l a u d i t s

Article 16

In order to carry out such controls and in conformity with
the provisions of the contracts, the Commission and its
authorised representatives shall have access to any data
they consider relevant, on whatever medium, and may
require that such data be handed over to them in an
appropriate form.

2.
The Court of Auditors may check on the use of the
Community’s financial contribution in the contracts on
the basis of its own rules.

PART III

MODES OF DISSEMINATION AND USE OF KNOW-
LEDGE

TITLE I

Rules applicable to indirect RTD actions

CHAPTER I

Adaptation of the rules for the dissemination and
use of knowledge

Article 17

1.
The rules regarding ownership, extent of access
rights, and the use or dissemination of knowledge depend
on the rate of Community financial participation referred
to in Annex IV to the fifth framework programme or,
exceptionally, on the particular nature of the indirect
RTD action in accordance with the provisions of Chap-
ters II to VI.

The rules set out in paragraph 1 shall not be affected

2.
by:

(a) any

exceptions provided

specific
programmes to the rates of Community financial
participation referred to in Annex IV to the fifth
framework programme;

the

for

by

1. Without prejudice to the provisions of the contracts,
the Commission and its authorised representatives are
empowered to carry out financial controls with a view in
particular to ensuring that the provisions of Chapter III
are complied with. Such controls may be carried out, in
accordance with the requirements of confidentiality, at
any time during the contract and at the latest five years
after each payment made by the Commission.

(b) the reduction of the rates of Community financial
participation referred to in Annex IV to the fifth
framework programme owing to the application of the
rules on combined State aid;

(c) any other reduction of the rates of Community finan-
cial participation referred to in Annex IV to the fifth
framework programme at the request of the parti-
cipants.

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CHAPTER II

Article 20

Ownership of knowledge

Article 18

Where a participant transfers ownership of knowledge, he
shall take steps or conclude agreements to pass on his
obligations under this Regulation and the contract to the
assignee.

1. Knowledge gained from projects, all the costs of
which are borne by the Community, shall be the property
of the Community.

The participant shall inform the Commission and other
participants in the same project in advance of the condi-
tions of the assignment.

the participants’

At
the Commission may
request,
authorise them to use its knowledge, on a royalty-free
basis, for all their internal needs.

2. Knowledge gained from projects partly funded by
the Community shall be the property of the participants
carrying out the work leading to that knowledge.

3. Where several participants have carried out work
generating knowledge, they shall agree among themselves
on the allocation and the terms of exercising the owner-
ship of the knowledge in accordance with the provisions
of this Regulation and of the contract.

4.
If personnel hired, and in particular employed, by a
participant or RTD performer may claim rights to know-
ledge, the participant shall take steps or reach appropriate
agreements to ensure that these rights can be exercised in
a manner compatible with its obligations under this
Regulation and the contract.

5.

Paragraphs 1 to 4 apply with prejudice to Article 19.

Article 19

1. Knowledge
projects shall be the joint property of
contractors referred to in Article 3(2).

gained

from cooperative

research
the principal

They shall jointly decide the terms for exercising and
terminating joint ownership of the knowledge in accord-
ance with the provisions of
this Regulation and the
contract.

RTD performers shall make available to the principal
contractors referred to in Article 3(2) the necessary data to
enable or facilitate the exercise of ownership of
the
knowledge free of charge.

2.
In the case of certain accompanying measures, the
contract may provide that the knowledge is owned by the
participants.

In the case of grants, the contract shall lay down the
the

3.
terms of allocating and exercising ownership of
knowledge.

CHAPTER III

Protection of knowledge

Article 21

The owners of knowledge shall provide adequate
is usable

1.
and effective protection for knowledge that
under Article 23.

The terms of the protection, including deadlines, shall be
defined in the
implementation plan
technological
referred to in Article 20 of Decision 1999/65/EC.

2. Where the Commission considers it necessary to
protect knowledge in a particular country and such
protection has not been applied for or has been waived,
the Commission may, with the agreement of the parti-
cipant concerned, take protection measures. In this case,
the Community shall take on the obligations referred to
in Article 22 to 35 instead of the participant.

The participant may not refuse without good reason.

The participant shall be entitled to royalty-free access
rights in the country concerned, on terms to be defined in
the contract, and shall be entitled to grant sub-licences.

3.
A participant may publish, or allow the publication
of, data, on whatever medium, concerning knowledge it
owns provided that this does not affect the protection of
that knowledge.

The Community and the other participants in the same
project shall be given prior notice of any planned publica-
tion. A copy of the medium containing these data shall be
communicated to them if they so request within 30 days
after receipt of such notice. The Community and the
other participants may object to publication within a new
period of 30 days after receipt of such data on the ground
that, from their point of view, it would adversely affect the
protection of the knowledge as referred to in paragraph 1.

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The consortium agreements may specify the details of
such a right to object.

CHAPTER V

CHAPTER IV

Use of knowledge

Article 22

The participants shall use or cause to be used the
1.
knowledge referred to in Article 23 which they own, in
accordance with the interests of the Community and in
compliance with international agreements concluded with
the Community.

The terms of use,
including a reasonable deadline at
which it must take place, shall be set out in the techno-
logical implementation plan in accordance, in particular,
with the area of activity concerned.

2.
If the knowledge is not used in accordance with
paragraph 1, second subparagraph, the participants shall
disseminate it, in accordance with the conditions set out
in Article 19 of Decision 1999/65/EC, within a period
laid down by the Community. Should the participants fail
to do so, the Community shall disseminate the knowledge
itself.

Article 23

The participants shall, in accordance with Article
1.
22(1), use or cause to be used the knowledge gained, in
particular from the following indirect RTD actions:

Making knowledge and pre-existing know-how
available

Article 24

1.
Access rights shall be granted by participants or
RTD performers on request on the conditions provided
for in Articles 26 to 35. Access rights shall be granted to
pre-existing know-how provided that
the participant
concerned is free to do so.

2.
The granting of access rights may be made condi-
tional on the conclusion of specific agreements aimed at
ensuring that they are used only for the intended purpose,
and appropriate confidentiality agreements.

3.
Except where the participant granting access rights
so agrees, such rights give no entitlement to grant sub-
licences.

4. With the agreement of the participant concerned,
access rights may be granted on financial terms more
favourable than those provided for in Articles 26 to 35.

5.
Participants in a project may designate another
contract as complementary contract and lay down terms
for granting access rights, the period for which access
rights may be demanded and the related financial condi-
tions.

The essential transfer costs for the granting of access

6.
rights shall be borne by the beneficiary.

(a) research and technological development projects;

Article 25

(b) demonstration projects;

(c) combined RTD/demonstration projects;

(d) cooperative research projects.

2.
In the case of demonstration projects and cooper-
ative research projects, the use of knowledge shall give
priority to exploitation of such knowledge, taking account
of the legitimate interests of the participants.

In the

case of

3.
combined RTD/demonstration
projects, paragraph 2 shall apply, as a rule, to knowledge
gained from the ‘demonstration' component.

It shall also apply where the ‘research and technological
development' and ‘demonstration' components are not
distinguishable
the
Community funding rates normally applicable to both
components does not exceed 42,5 %.

and the weighted average

of

applicable

Consortium agreements with the purpose, in particular, of
granting additional access rights or supplementing the
requirements
rights, but not
conflicting with the latter, may be concluded between the
participants and, as the case may be, RTD performers.
Any
comply with
competition policy as defined in the Treaty.

agreement of

type must

to access

this

Section 1

A c c e s s r i g h t s f o r t h e e x e c u t i o n o f

t h e p r o j e c t

Article 26

As regards research and technological development

1.
projects, paragraphs 2 and 3 shall apply.

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Principal contractors involved in the same project
2.
shall enjoy royalty-free access rights to the knowledge
needed to carry out their own work under that project.

requested from other participants in the same project,
access rights shall be granted on favourable conditions.

Assistant contractors involved in the same project shall
enjoy royalty-free access rights to the knowledge needed
to carry out their own work under that project, when such
rights are requested from the principal contractor or prin-
cipal contractors to whose technical supervision they are
subject or their other assistant contractors. When they are
requested from other participants in the same project,
access rights shall be granted on favourable conditions.

Subject to legitimate interests as provided in the contract,
principal contractors established in a Member State or
Associated State and working under the same specific
programme shall enjoy access rights to the knowledge
needed to carry out their own work under that specific
programme on favourable conditions.

3.
Principal contractors involved in the same project
shall enjoy access rights to the pre-existing know-how
needed to carry out their own work under that project on
favourable conditions.

Assistant contractors involved in the same project shall
enjoy access rights to the pre-existing know-how needed
to carry out their own work under that project on favour-
able conditions, when such rights are requested from the
principal contractor or principal contractors to whose
technical supervision they are subject or their other assis-
tant contractors. When they are requested from other
participants in the same project, access rights shall be
granted on market conditions.

Article 27

Principal contractors involved in the same project
3.
shall enjoy access rights to the pre-existing know-how
needed to carry out their own work under that project on
favourable conditions.

Assistant contractors involved in the same project shall
enjoy access rights to the pre-existing know-how needed
to carry out their own work under that project on favour-
able conditions, when such rights are requested from the
principal contractor or principal contractors to whose
technical supervision they are subject or their other assis-
tant contractors. When they are requested from other
participants in the same project, access rights shall be
granted on market conditions.

Article 28

As regards combined RTD/demonstration projects,

1.
paragraphs 2 and 3 shall apply.

2.
As a rule, the provisions of Article 26 shall apply to
work involved in the ‘research and technological develop-
ment', component. The provisions of Article 27 shall
apply to the work involved in the ‘demonstration' com-
ponent.

3. Where the ‘research and technological development'
and ‘demonstration' components are not distinguishable,
the provisions of Article 26 shall apply where the
weighted average of
the Community funding rates
normally applicable to both components exceeds 42,5 %.
At or below that rate the provisions of Article 27 shall
apply.

As regards demonstration projects, paragraphs 2 and

1.
3 shall apply.

Article 29

2.
Principal contractors involved in the same project
shall enjoy royalty-free access rights to the knowledge
needed to carry out their own work under that project.

Assistant contractors involved in the same project shall
enjoy royalty-free access rights to the knowledge needed
to carry out their own work under that project, when such
rights are requested from the principal contractor or prin-
cipal contractors to whose technical supervision they are
subject or their other assistant contractors. When they are

As regards cooperative research projects, paragraphs

1.
2, 3 and 4 shall apply.

RTD performers involved in the same project shall
2.
enjoy royalty-free access rights to the knowledge needed
to carry out their own work under that project.

RTD performers involved in the same project shall
3.
enjoy royalty-free
to the pre-existing
rights
know-how needed to carry out their own work under that
project.

access

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Principal contractors involved in the same project as
referred to in Article 3(2) shall enjoy royalty-free access
rights to the pre-existing know-how needed to carry out
their own work under that project.

4. When the access rights referred to in paragraphs 2
and 3 are granted to RTD performers, the granting of
such rights may be subject to the conclusion of specific
agreements aimed at ensuring that they are used only for
the intended purpose, and of appropriate confidentiality
agreements.

Section 2

A c c e s s r i g h t s f o r u s e o f k n o w l e d g e

Article 30

As a rule, access rights may not be granted on an

1.
exclusive basis.

However, exclusive access rights to knowledge may be
granted where it is economically indispensable in view, in
particular, of the market, the risks and the investment
required to exploit the knowledge. They shall be granted
on market conditions.

Agreements on exclusive access rights shall satisfy the
competition rules, notably those in Regulation (EC) No
240/96.

2.
Participants planning to grant exclusive access rights
shall give prior notice of the relevant conditions to the
other participants.

Principal contractors involved in the same project may,
within 30 days of receiving the notice referred to in the
first subparagraph, state their commitment to exploit the
knowledge on the basis of non-exclusive access rights, in
accordance with the first subparagraph of paragraph 1. In
that case, exclusive access rights may not be granted.

Article 31

A participant may refuse other participants access rights
on his knowledge if he is exploiting it himself.

Such refusal shall only be justified, however, when it is
economically indispensable in view, in particular, of the
market, the risks and the investment required to exploit
the knowledge.

Article 32

As regards research and technological development

1.
projects, paragraphs 2, 3 and 4 shall apply.

2.
Principal contractors involved in the same project
shall enjoy royalty-free access rights, for use purposes, to
all the knowledge generated under that project.

A participant involved in the same project who does not
generally carry out commercial activities and who is
unable to exploit the knowledge he has generated may
decide on his own to grant access rights to that know-
ledge to other principal contractors involved in that
instead of royalty-free, on financial or similar
project,
terms which are reasonable and acceptable in relation to
his contribution to the project and to the use potential of
the knowledge. The negotiation of the terms shall not
delay the granting of access rights.

Assistant contractors involved in the same project shall
enjoy access rights to the knowledge needed to use the
knowledge they have generated under that project on
favourable conditions, when such rights are requested
from the principal contractor or principal contractors to
whose technical supervision they are subject or their other
assistant contractors. When they are requested from other
participants in the same project, access rights shall be
granted on market conditions.

Subject to legitimate interests as provided in the contract,
principal contractors established in a Member State or
Associated State and involved in the same specific
programme shall enjoy access rights to the knowledge
generated under a project in the same specific programme
which is needed to use the knowledge they have
generated under
that specific programme on market
conditions.

3.
Principal contractors involved in the same project
shall enjoy access rights to the pre-existing know-how
and to the knowledge other than that referred to under
paragraph 2 which is needed to use the knowledge
generated under that project on favourable conditions.

4. When the access rights referred to in paragraphs 2
and 3 are granted for the purpose of using knowledge in
subsequent research activities, the granting of such rights
may be made conditional on the submission of a duly
justified request and on the conclusion of a specific agree-
ment aimed at ensuring that they are used only for the
intended purpose and of appropriate confidentiality
commitments. In such a case, the access rights granted do
not give any entitlement to grant sub-licences, unless the
participant granting such rights agrees thereto.

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Article 33

CHAPTER VI

As regards demonstration projects, paragraphs 2 and

1.
3 shall apply.

2.
Principal contractors involved in the same project
shall enjoy access rights, for exploitation purposes, to all
the knowledge generated under that project, on favourable
conditions.

Assistant contractors involved in the same project shall
enjoy access rights to the knowledge needed to exploit
the knowledge they have generated under that project on
favourable conditions, when such rights are requested
from the principal contractor or principal contractors to
whose technical supervision they are subject or their other
assistant contractors. When they are requested from other
participants in the same project, access rights shall be
granted on market conditions.

Principal contractors involved in the same project
3.
shall enjoy access rights to the pre-existing know-how
and to the knowledge other than that referred to in para-
graph 2 which is needed to exploit
the knowledge
generated under that project on favourable conditions.

Dissemination of knowledge

Article 36

The participants and the Community must dissem-
1.
inate or arrange the dissemination of
the knowledge
referred to in paragraph 2 which lends itself to dissemina-
tion and is their property.

Participants shall agree terms with the Commission for
the dissemination of knowledge within a reasonable
period,
in
Article 19(2) and (3) of Decision 1999/65/EC, in particular
their legitimate interests, and the content of the contracts.

in accordance with the conditions set out

The obligation referred to in paragraph 1 concerns
from the following

in particular,

2.
knowledge gained,
indirect RTD actions:

(a) accompanying measures;

(b) exploratory awards;

(c) research training networks;

(d) thematic networks;

(e) concerted actions;

(f) support for access to infrastructures;

Article 34

(g) grants.

As regards combined RTD/demonstration projects,

1.
paragraphs 2 and 3 shall apply.

Article 37

2.
As a rule, the provisions of Article 32 shall apply to
the work involved in the ‘research and technological
development' component. The provisions of Article 33
shall apply to the work involved in the ‘demonstration'
component.

3. Where the ‘research and technological development'
and ‘demonstration' components are not distinguishable,
the provisions of Article 32 shall apply where the
weighted average of
the Community funding rates
normally applicable to both components exceeds 42,5 %.
At or below that rate the provisions of Article 33 shall
apply.

Article 35

research

cooperative

Regarding
principal
contractors involved in the same project as referred to in
Article 3(2) shall enjoy access rights to the pre-existing
know-how needed to exploit the knowledge generated
under that project on favourable conditions.

projects,

1.
In particular cases, Member States and Associated
States shall, on the basis of a reasoned request, have access
to useful knowledge which is relevant to policy-making,
including notably legislative policy-making.

Participants may oppose such a request in accordance
with the conditions referred to in Article 19 of Decision
1999/65/EC.

The possibility of enjoying the access provided for
2.
in paragraph 1 shall be set out in the relevant calls for
proposals and,
the implementing details
if necessary,
thereof shall be specified in the contracts.

CHAPTER VII

Technological implementation plan

Article 38

The rules concerning the technological implementation
plan laid down in Article 20 of Decision 1999/65/EC
shall apply in particular in the context of the following
indirect RTD actions:

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(a) research and technological development projects;

terms set out
completion of the project.

in the contract, and no later than the

(b) demonstration projects;

(c) combined RTD/demonstration projects;

(d) cooperative research projects.

Article 39

implementation plan shall

In accordance with the provisions of Article 17, the
1.
technological
a
summary of the project and a forecast of the participants’
intentions, as well as a description of their achievements,
regarding dissemination and use of the knowledge, in
accordance with Article 20 of Decision 1999/65/EC.

include

2.
The summary of the project shall be submitted to
the Commission through the coordinator for the purpose
of dissemination and shall contain a description of the
project and its results as well as the names of the parti-
cipants owning the results.

3.
The forecast of the participants’ intentions regarding
dissemination and use of the knowledge as well as their
field shall be submitted to the
achievements in that
Commission by each participant individually and shall
contain, in particular, the following data:

(a) protection measures obtained or planned and steps

taken to that effect;

(b) data necessary to ascertain the terms of use as
described in Article 22(1),
second subparagraph,
including an indicative timetable and an outline of
the resources contemplated for that purpose;

(c) terms of dissemination as described in Article 36(1),
second subparagraph, including an indicative time-
table and an outline of the resources contemplated for
that purpose;

(d) any other data necessary to ascertain the extent of the

Community added-value.

The Commission shall keep confidential any data, knowl-
edge, document and other element expressly communi-
cated to it as confidential.

4.
Any change made to the initial dissemination and
use plan which significantly alters the dissemination and
use conditions shall be duly justified in the technological
implementation plan.

Article 41

The technological

1.
implementation plan shall be
approved by the Commission taking account of the inter-
ests of the Community as referred to in Article 2 of
Decision 1999/65/EC and international
agreements
concluded with the Community.

The approval of the technological implementation
2.
plan, limited to verifying compliance with the obligations
set out in the contract, shall be without prejudice to
compliance with the conditions laid down in Articles 30
and 31.

3.
In order to enable it to approve the technological
implementation plan, the participants shall provide the
Commission with the documentation they consider rele-
vant in the light of Article 39, whatever its medium, and
in an appropriate form.

Article 42

1.
The participants shall inform the Commission, upon
request, at any time during the period provided for in the
contract, of the arrangements for carrying out the techno-
logical implementation plan.

Once it has been approved, they shall justify any change
to it that significantly alters the dissemination or use
conditions.

2.
Participants shall provide the Commission, at the
latest one year after the expiry of the deadlines laid down
implementation plan, with a
in the
summary of the implementation of the plan for dissem-
ination purposes without prejudice to Article 46.

technological

Article 43

Without prejudice to the provisions laid down in the
contracts, the Commission and its authorised representa-
tives shall be empowered to carry out
technological
controls with a view to ensuring that participants are
complying with the intentions stated in the technological
implementation plan. The contracts shall determine the
conditions under which the participants may oppose the
carrying out of
the technological controls by certain
authorised representatives of the Commission.

Article 40

The technological implementation plan, complying with
the conditions of Article 39, shall be provided to the
Community, by the deadline and in accordance with the

Such controls may be carried out at any time after the
approval of the technological
implementation plan in
accordance with Article 41, and up to one year after the
expiry of the deadlines set out therein.

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In order to carry out the controls, the Commission and its
authorised representatives shall have access, on a confi-
dential basis, to all data they consider relevant in the light
of Article 39, on whatever medium, in the participants’
possession, and may require it to be handed over to them
in an appropriate form.

CHAPTER VIII

Incompatible or restrictive commitments

Article 46

1. Without prejudice to Article 45 and subject to the
conditions to be laid down in the contracts, the Commis-
sion and the participants shall keep confidential any data,
knowledge and documents communicated to them as
confidential.

2. When disclosing any data, knowledge and docu-
ments, as referred to in paragraph l, the Commission and
the participants shall first require the recipient to keep it
confidential and to use it only for the purpose for which
it was disclosed.

Article 44

Article 47

1.
Participants shall take all necessary steps to avoid
commitments that are incompatible with the obligations
provided for in Chapters III, IV and V or in the contract.

2. Without prejudice to paragraph 1, participants
involved in the same project shall be informed, as soon as
possible, by the participant required to grant access rights
of any limitations on the granting of access rights to
pre-existing know-how, obligations to grant rights to the
knowledge or any restriction which might substantially
affect the granting of access rights.

CHAPTER IX

For the entire duration of the contract, and for a further
two years following its expiry, participants shall, without
prejudice to Article 46, provide appropriate data to stan-
dardisation bodies regarding knowledge obtained under
that contract which may contribute to the preparation of
European standards or, as appropriate, international stan-
dards. The Commission shall inform the contractors as far
as possible of any standardisation work under way or
planned.

TITLE III

Rules applicable to direct RTD actions

Publicity and confidentiality

CHAPTER I

Article 45

1.
The Commission shall publish general data, notably
on the objectives, total estimated cost and Community
financial contribution, duration and progress of
the
projects and knowledge.

The legal names of the participants and the names of the
laboratories carrying out the work shall also be published
unless the participants object, with sufficient advance
notice, on duly substantiated, essential grounds of an
industrial or commercial nature.

Any communication, publication or dissemination,
2.
on whatever medium, concerning the progress of the
project or concerning the knowledge shall make appro-
priate mention of the programme under which the work
is being carried out or the knowledge gained, and the
support provided by the Community.

It shall be stated that the author is solely responsible for
content communicated, published or disseminated and
that it does not represent the Commission’s opinion.

Ownership of knowledge

Article 48

1. Knowledge gained from projects undertaken under
the
direct RTD actions
Community.

shall be the property of

2. Where the Community transfers ownership of
knowledge, it shall take steps or conclude agreements to
pass on its obligations under this Regulation to the
assignee.

CHAPTER II

Protection of knowledge

Article 49

1.
The Community shall ensure adequate and effective
protection of knowledge that is eligible for use under
Article 50.

Contracts may

3.
regarding publicity and confidentiality.

contain

additional

provisions

2.
The Community may disclose data about the know-
ledge it owns provided that the protection of that know-
ledge is not thereby affected.

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CHAPTER III

Use of knowledge

Article 50

The Community shall use or cause to be used the know-
ledge owned by it which lends itself to such use,
in
accordance with the interests of the Community.

The terms of use shall depend in particular on the area of
activity concerned.

CHAPTER IV

Making knowledge available for use

Article 51

1. Knowledge owned by the Community should be
made available to any interested legal entity established in
the Community or an Associated State for its research
needs or in so far as it undertakes to use such knowledge,
or to cause it to be used, in accordance with the interests
of the Community.

Such provision of knowledge may be subject to appro-
priate conditions, particularly concerning the payment of
fees.

The rules laid down in paragraph 1 shall not apply

2.
to confidential knowledge.

Article 52

As a rule, knowledge owned by the Community may not
be made available on an exclusive basis.

Exclusive agreements may be concluded, however, when
it is economically indispensable in view, in particular, of
the market, the risks and the investment required to
exploit the knowledge. They shall be granted on market
conditions.

Agreements on exclusive availability of knowledge shall
satisfy the competition rules, notably those in Regulation
(EC) No 240/96.

Article 53

The Community may refuse to make its knowledge avail-
able under the conditions provided for in Article 51 if it
is exploiting it itself.

Such refusal shall only be justified, however, when it is
economically indispensable in view, in particular, of the
market, the risks and the investment required to exploit
the knowledge.

CHAPTER V

Dissemination of knowledge

Article 54

The Community shall disseminate or cause to be dissem-
inated the knowledge owned by it which lends itself to
such dissemination, in accordance with the conditions
laid down in Article 19(1) of Decision 1999/65/EC.

Part IV

Final provisions

Article 55

This Regulation shall not affect the provisions contained
in the decisions adopting the specific programmes speci-
fying or supplementing Decision 1999/65/EC.

Article 56

This Regulation shall enter into force on the third day
following that of its publication in the Official Journal of
the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member
States.

Done at Brussels, 11 May 1999.

For the Commission

(cid:144)dith CRESSON

Member of the Commission